Date: 03-22-2016

Case Style: STATE OF CONNECTICUT v. TYRONE LAWRENCE KELLEY

Case Number: AC 36992

Judge: F. Herbert Gruendel

Court: Connecticut Appellate Court

Plaintiff's Attorney: Rocco A. Chiarenza, Michael Dearington, Maxine V. Wilensky, LisaMariaProscino

Defendant's Attorney: Robert E. Byron

Description: .Thedefendant,TyroneLawrenceKelley, appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of correction for five years. His principal claim is that the court lacked subject matter jurisdiction over the probation revocation proceeding. The defendant also argues, in the alternative, that the courtabuseditsdiscretioninsentencinghim.Weaffirm the judgment of the trial court. In 2004, the defendant was convicted of possession ofnarcoticswiththeintenttosellinviolationofGeneral Statutes§ 21a-277(a).OnNovember 19,2004,thecourt sentenced the defendant to a term of nine years incarceration, execution suspended after four years, with five years of probation. The conditions of his probation required, inter alia, that the defendant ‘‘not violate any criminallawoftheUnitedStates,thisstateoranyother state or territory.’’ OnSeptember 19,2008,the defendant’sprobationary periodcommenceduponhisreleasefromthecustodyof the Department of Correction. Approximately thirteen months later, the defendant on October 26, 2009, was arrested and charged with, inter alia, possession of a controlled substance in violation of General Statutes (Rev. to 2009) § 21a-279 (c). In response, his probation officer obtained an arrest warrant for the defendant’s violation of the terms of his probation.1 While those chargeswerepending,thedefendantagainwasarrested following an incident thattranspired on August 7, 2011, and was charged with robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), carrying apistolwithoutapermitinviolationofGeneralStatutes § 29-35, criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1), and interfering with a police officer in violation of General Statutes § 53a167a (a). OnMarch24,2014,thestatefiledalongforminformation alleging that the defendant breached the terms of his probation in violation of General Statutes § 53a-32, due to his October 26, 2009, and August 7, 2011 arrests. The parties thereafter stipulated to the consolidation of the defendant’s probation revocation proceeding with the May, 2014 trial on his criminal charges stemming from the events of August 7, 2011. During that trial, the state presented testimonial and documentary evidence regarding the offenses allegedly committed on that date. In addition, the state submitted evidence outside of the presence of the jury regarding the defendant’s October 26, 2009 arrest for possession of a controlled substance. When the trial concluded, the court heard argument from the parties on the violation of probation allegations.At thattime, defensecounsel conceded,‘‘Ido not
feelthatIcanhonestlyrepresenttothecourtthatthere [is] really an argument as to the violation of probation [on the] possession of drugs’’ charge. The court thereafter found, by a preponderance of the evidence, that the defendant violated the terms of his probation in thathe‘‘didknowinglypossessaquantityofacontrolled substanceinviolationof§ 21-279(c).’’Thecourtfurther found that the defendant also violated those terms by ‘‘committing the crimes of robbery in the first degree, interfering with a police officer, carrying a pistol withoutapermit,andpossessionofaweaponbyaconvicted felon all in violation of the General Statutes.’’ In the dispositional phase of the violation of probation proceeding, the court found that ‘‘the beneficial aspects of rehabilitation are no longer being served.’’ The court therefore revoked the defendant’s probation and sentenced him to a term of five years incarceration. From that judgment, the defendant now appeals. I The defendant first claims that the trial court lacked subjectmatterjurisdictionovertherevocationofprobation proceeding. Specifically, he posits that his probationary period concluded on September 18, 2013, five years after his release from incarceration. He thus argues that the court lacked jurisdiction over him at thetimeoftheMay,2014probationrevocationproceeding. We do not agree. Althoughthedefendantdidnotraisethisclaimbefore the trial court, it nonetheless is reviewable, as it implicates the subject matter jurisdiction of that court. See State v. Velky, 263 Conn. 602, 605 n.4, 821 A.2d 752 (2003) (subject matter jurisdiction may be raised for firsttimeonappeal).‘‘Questionsregardingsubjectmatter jurisdiction are purely legal in nature and subject to plenary review.’’ (Internal quotation marks omitted.) State v. Ramos, 306 Conn. 125, 133, 49 A.3d 197 (2012). ‘‘Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. . . . Jurisdiction involves the power in a court to hear and determine the cause of action presented to it . . . . The Superior Court hearing a criminal matter acquires subject matter jurisdiction from its authority as a constitutional court of unlimited jurisdiction. . . . The Superior Court’s authorityinacriminalcase becomesestablishedbythe proper presentment of the information . . . which is essential to initiate a criminal proceeding. . . . [U]pon the return to the Superior Court of the indictment . . . against the accused, it obtained the sole and original jurisdiction of the charge therein made . . . . There is no doubt that the court may order probation and take it away. . . . Because [r]evocation is a continuing consequence of the original conviction from which probation was granted . . . and the inherent authority to convictandsentenceadefendantflowsfromtheauthor
ity to adjudicate a criminal cause of action, the subject matter jurisdiction over a probation revocation proceeding derives from the original presentment of the information.’’ (Citations omitted; internal quotation marksomitted.) Statev. Carey,222Conn.299,304–306, 610 A.2d 1147 (1992). At its essence, the defendant’s claim is that although his arrest and arraignment before the Superior Court weretimely,thefailuretoconducthisprobationrevocation proceeding prior to September 18, 2013, deprived the court of jurisdiction over that matter. That contention is contrary to the plain language of General Statutes § 53a-31 (b), which provides in relevant part that ‘‘[t]he issuance of a warrant or notice to appear, oranarraignmentfollowinganarrestwithoutawarrant, for violation [of probation] pursuant to section 53a-32 shall interrupt the period of the sentence until a final determination as to the violation has been made by the court.’’ See also State v. Egan, 9 Conn. App. 59, 73 n.5, 514 A.2d 394 (‘‘[w]here . . . the revocation [of probation proceeding] is initiated by arrest warrant, the running of the sentence of probation is tolled’’), cert. denied,201Conn.811,516A.2d886(1986).Accordingly, the December 29, 2009 issuance of his arrest warrant forviolatingthetermsofhisprobationtolledthedefendant’s probationary period.2 Moreover, we note that this court previously has rejectedaclaimakintothatadvancedbythedefendant in this appeal. In State v. Mack, 55 Conn. App. 232, 234, 738 A.2d 733 (1999), the defendant was arrested and chargedwithvariousnarcoticsoffenseswhileonprobation. Months after his probationary period concluded, the defendant entered a guilty plea, and his probation officer thereafter filed with the court a motion to commence a violation of probation proceeding. Id. Following the revocation of his probation by the trial court, the defendant appealed to this court, claiming that ‘‘the trial court was without subject matter jurisdiction to hearanddeterminethemotionforrevocationofprobation because he was not on probation at the time of thedispositionhearing.’’Id.Thiscourtconcludedotherwise, holding that ‘‘the trial court had subject matter jurisdictionoverthedefendant’sprobationrevocation.’’ Id., 236. That precedent compels a similar result in the present case. The defendant nevertheless submits, as an ancillary claim, that the legislature’s amendment of § 53a-32 (c) in 2008 also deprived the court of subject matter jurisdiction. See Public Acts 2008, No. 08-102, § 7 (P.A. 08102). As a result of that amendment, subsection (c) of § 53a-32providesinrelevantpartthatwhenadefendant has been arrested for violating the conditions of probation, ‘‘[u]nless good cause is shown, a charge of violationofanyoftheconditionsofprobationorconditional discharge shall be disposed of or scheduled for a hear
ing not later than one hundred twenty days after the defendant is arraigned on such charge.’’ The defendant thus claims that because his violation of probation proceeding was neither disposed of nor scheduled for a hearing within 120 days of his arraignment, the trial court ‘‘lost any and all jurisdiction over any aspect of his probation.’’ For two distinct reasons, we disagree. First,wearenotpersuadedthatthe120daylimitation provided in § 53a-32 (c) implicates subject matter jurisdiction, as the defendant maintains. The existence of the ‘‘good cause’’ exception specified in § 53a-32 (c) undermines that contention, as subject matter jurisdiction is a prerequisite to adjudication that ‘‘cannot be waived by anyone, including [the] court.’’ Simms v. Warden, 229 Conn. 178, 185, 640 A.2d 601 (1994). The trial court’s ability to waive the 120 day limitation for good cause cannot be reconciled with that fundamental precept.3 Moreover, the legislative history surrounding the enactment of the 120 day limitation indicates that it was intended to serve as a goal, rather than a jurisdictional bar. During floor debate regarding P.A. 08-102 in the House of Representatives, Representative Michael P. Lawlor explained that the aim of the 120 day limitation was to prevent violation of probation cases from lingering on the dockets of our trial courts. 51 H.R. Proc., Pt. 13, 2008 Sess., p. 4221. Representative Lawlor distinguished the 120 day limitation from ‘‘the speedy trialmechanism,’’notingthat‘‘thespeedytrialisaright. . . . [T]his [120 day limitation] is not the same thing, this is basically a guideline, [a] goal being articulated by the Legislature imposed on the judge really to bring a case to hearing.’’ Id., 4224–25. Representative Lawlor also emphasized that ‘‘there may be circumstances which require an extension of time’’ and reiterated that ‘‘[t]here would be no right of the defendant to have a hearing in 120 days under [§ 53a-32 (c)] . . . . So it is a little bit different in that respect. It is advisory on the part of the Legislature . . . .’’ Id., 4225. Representative ArthurJ.O’Neilllaterinquiredastowhetheranypenalty existed for a court’s noncompliance with the 120 day limitation. Id., 4226. Representative Lawlor responded that the only penalty would be the trial judge having to answerforthatnoncomplianceduringareconfirmation proceeding before the legislature. Id., 4227–28. That legislative history further persuadesus that the 120 day limitation of § 53a-32 (c) is not jurisdictional in nature. Second, even if that limitation were jurisdictional in nature, the defendant cannot prevail, as the record beforeuslacksanybasistoascertainwhetherthecourt, in fact, failed to comply with § 53a-32 (c). It is the responsibilityoftheappellanttoprovidethiscourtwith an adequate record for review. See Practice Book § 6110;Brown&Brown,Inc.v.Blumenthal,288Conn.646, 656n.6,954A.2d816(2008)(appellantmustensurethat
recordisperfectedforpresentationofappeal).Without an adequate record, we are left to speculation and conjecture; Gelormino v. Liberman, 36 Conn. App. 153, 154, 649 A.2d 259, cert. denied, 231 Conn. 946, 653 A.2d 826 (1994); which ‘‘have no place in appellate review.’’ (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 502, 510, 970 A.2d 578 (2009). Significantly, the defendant has not provided this court with a transcript of his arraignment proceeding on the violation of probation charge.Helikewisehasfailedtofurnishnumeroustranscriptsofcriminalproceedingsthattranspiredbetween thetimethathisarrestwarrantwasissuedinDecember, 2009, and his violation of probation proceeding that transpired in May, 2014. The record indicates that the defendant was arrested on multiple occasions for additional crimes, including robbery and home invasion, duringthattimeperiod.Yetthedefendanthasprovided this court with little documentation of the various proceedingsthattranspiredoverthoseyears.Furthermore, at no time in the proceedings before the trial court did the defendant raise any claim regarding the alleged noncompliance with the 120 day limitation. As a result, the record is silent as to why his probation revocation proceeding exceeded that limitation. Section53a-32(c)articulatesagoodcauseexception to its 120 day limitation. Without an adequate record on which to review the defendant’s claim, an appellate court simply cannot determine whether that exception applies. Such is the case here. We therefore reject the defendant’s claim that the trial court lacked subject matter jurisdiction over the violation of probation proceeding. II The defendant also claims that the court improperly sentenced him to a term of five years incarceration. ‘‘The standard of review of the trial court’s decision at the [dispositional] phase of the revocation of probation hearing is whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. . . . In determining whether therehasbeenanabuseofdiscretion,everyreasonable presumptionshouldbegiveninfavorofthecorrectness of the court’s ruling. . . . Reversal is required only whereanabuseofdiscretionismanifestorwhereinjustice appears to have been done.’’ (Internal quotation marks omitted.) State v. Altajir, 303 Conn. 304, 315, 33 A.3d 193 (2012). Thedefendantarguesthatcourtabuseditsdiscretion because he allegedly ‘‘had served most, if not all’’ of the probationary period. That claim is factually untenable.HisprobationaryperiodbegantorunonSeptember 19, 2008, and was tolled by the December 29, 2009 issuance of his arrest warrant pursuant to § 53a-31 (b). He thus served only sixteen months of his five year
probationary period. In addition, the defendant has provided no authority for the proposition that a sentencing judge, in a probation revocation proceeding, is obligated to credit the amount of time served in a probationary period in sentencingadefendantwhoseprobationhasbeenrevoked. Connecticut law provides otherwise. Pursuant to General Statutes § 53a-32 (d), the court in such instances ‘‘shall require the defendant to serve the sentence imposedorimposeanylessersentence.Anysuchlesser sentence may include a term of imprisonment, all or a portion of which may be suspended entirely or after a period set by the court, followed by a period of probation with such conditions as the court may establish. . . .’’ (Emphasisadded.) The trialcourt plainlyis vested with discretion to sentence a defendant to serve the sentence imposed, as the court did here. See State v. Tabone,292Conn.417,429,973A.2d74(2009)(ifdefendant violates probation on final day of probationary period ‘‘he would be exposed to the full suspended sentence of . . . incarceration’’). On the evidence before it, the court found that ‘‘the beneficial aspects of rehabilitation are no longer being served.’’ We cannot quarrel with that determination. The defendant’s original conviction was for possession of narcotics with the intent to sell. Approximately one yearintohisprobationaryperiod,thedefendantin2009 was arrested and charged with various drug related offenses, including possession of a controlled substance. Following the commencement of a probation revocationproceedingagainsthim,thedefendantagain was arrested in 2011, and charged with robbery in the firstdegree,carryingapistol withoutapermit,criminal possession of a firearm, and interfering with a police officer. The trial court also received evidence that in June, 2013, the defendant was arrested following the robbery of a convenience store and, later that year, he was arrested following a home invasion in which he allegedly duct taped the victim. During his period of probation, thedefendant twicetested positivefor marijuana. Furthermore, the defendant’s probation officer testified that, due to the defendant’s ongoing criminal behavior, continuation of probation was inappropriate, as its rehabilitative ends could not be met.

Outcome: The evidence before the court amply supports its decision to require the defendant to serve the full suspended sentence originally imposed in his underlying criminal proceeding. The court, therefore, did not abuse its discretion in sentencing the defendant to a term of five years incarceration. The judgment is affirmed.

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