Opinion
AC 45281
08-15-2023
STATE of Connecticut v. Juan MIELES
James B. Streeto, senior assistant public defender, for the appellant (defendant). Michele C. Lukban, Rocky Hill, senior assistant state's attorney, for the appellee (state).
James B. Streeto, senior assistant public defender, for the appellant (defendant).
Michele C. Lukban, Rocky Hill, senior assistant state's attorney, for the appellee (state).
Bright, C. J., and Moll and Cradle, Js.
CRADLE, J.
The defendant, Juan Mieles, appeals following the issuance of a standing criminal protective order as to the victim, imposed after he began serving his sentence for the crimes he perpetrated against the victim. The defendant claims that the trial court (1) abused its discretion in imposing the standing criminal protective order because there was no change in circumstances that would justify opening the judgment, (2) lacked jurisdiction to modify the defendant's sentence, and (3) violated constitutional protections against double jeopardy. We affirm the judgment of the court.
In accordance with our policy of protecting the privacy interests of the victims of sexual assault and the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim's identity may be ascertained. See General Statutes § 54-86e.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018), as amended by the Violence Against Women Act Reauthorization Act of 2022, Pub. L. No. 117-103, § 106, 136 Stat. 49, 851; we decline to identify any person protected or sought to be protected under a protection order, protective order, or a restraining order that was issued or applied for, or others through whom that person's identity may be ascertained.
The following facts and procedural history are relevant to this decision. On February 2, 2012, the defendant pleaded guilty to one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2), pursuant to a plea agreement under which he would be sentenced to fifteen years of incarceration, suspended after five years, and twenty-five years of probation. At the plea hearing, the state provided the following factual basis for the plea agreement: "[O]n June 7th, 2011, at about 5:10 p.m., [the victim's] mother in this case, [J], allowed her daughter, who was age seven, and her son ... permission to walk to [a park in Bridgeport] with [the] defendant. [The] defendant was [a friend] of the family .... [He] had [frequent] contact with, not only [J], but with the two children as well on previous occasions.
General Statutes § 53-21 provides in relevant part: "(a) Any person who ... (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child ... shall be guilty of ... a class B felony ... except that, if the violation is of subdivision (2) of this subsection and the victim of the offense is under thirteen years of age, such person shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court."
"[J] went to the park shortly thereafter to meet them, but she could not locate them. After riding around the neighborhood for approximately an hour, [J] saw them walking down [a street in Bridgeport], with the defendant carrying ... the [victim] on ... his back piggyback style. "When [J] pulled over, the young girl ran up to her and indicated [that] the defendant hurt [her]. She indicated something about his pee pee, to do like this. At that point in time, the young girl was making a motion with her hand going up and down. [J] checked the young girl's genital area and observed a redness.
"[J] then took the [victim] to [a hospital], where she met [with] the Bridgeport Police Department. In actuality, [J] ... forced [the defendant] to get into the car with her, when they drove to the hospital. And, at the hospital, the police were able to speak with [the defendant] at that point in time. [The defendant] told the [officer who] interviewed him that he took [J's] kids to his house ... [a]nd that they started wrestling, and he could have mistakenly touched the young girl's crotch area while wrestling. He added that, while wrestling, he did unintentionally have an erection.
"Further on ... [the defendant] admitted that [he] did rub [the victim's] genital areas .... He also stated that he rubbed his penis on her vagina through her clothing.
"The ... lab did an examination .... [T]he lab did find some spermatozoa on the undergarments of the young girl as well as on one of the vaginal swabs ...."
During the plea hearing, it came to light that the defendant had been making telephone calls to the victim's grandmother, and the following exchange took place between the court, Devlin, J. , and J:
"The Court: I'm going to enter an order today
"[J]: Mm-hmm.
"The Court: —that this defendant have absolutely no contact with your mother's telephone number.
"[J]: Mm-hmm.
"The Court: He should not be contacting you.
"[J]: Mm-hmm.
"The Court: And he should not have third persons contact you. It should
"[J]: Exactly.
"The Court: There should be no contact whatsoever. And you're absolutely entitled to that protection from the court. This is the first I've heard about this.
"[J]: Mm-hmm."
The court proceeded to canvass the defendant, during which it reiterated the terms of the plea agreement. After canvassing the defendant, the court accepted the defendant's guilty plea, ordered a presentence investigation, and imposed a no contact order as a condition of the defendant's bond, prohibiting the defendant from having any contact with the victim, her relatives, or anyone associated with the victim. The court then continued the matter for sentencing.
On April 13, 2012, the court sentenced the defendant to fifteen years of incarceration, execution suspended after five years, and twenty-five years of probation. The court imposed standard conditions of probation as well as special conditions of probation, which included sex offender treatment and a condition that he have no contact with the victim or any other minor without the permission of the probation department.
The defendant was released from incarceration on April 8, 2016, and placed in the January Center, a residential placement for homeless sex offenders. On May 5, 2016, the defendant was arrested, pursuant to a warrant, charging him with violation of probation, for stating that he was going to "burn the [January Center] to the ground and drag everyone in it to hell with him." The defendant admitted to violating the conditions of his probation, and the court, Devlin, J. , sentenced him to ten years of incarceration, execution suspended after one year, and twenty-four years of probation with all original conditions of probation reimposed. The defendant was released from incarceration on March 30, 2017, and he was charged with violation of probation again
in May, 2017. The defendant admitted to violating his probation, and, on July 17, 2019, the court, Alexander, J. , sentenced him to nine years of incarceration, execution suspended after three years, and twenty years of probation with all original conditions of probation reimposed.
A May 31, 2017 arrest warrant application for the defendant stated that the defendant was "in violation of the following court-ordered conditions: abide by all conditions of probation, abide by all sex offender registration rules/regulations, participate with special sex offender conditions, as well as the standard condition, ‘keep the probation officer informed of where you are, tell your probation officer immediately about any changes to your legal name, address, telephone number, cell phone number, beeper number, employment and allow the officer to visit you as he or she requires,’ and the sex offender conditions, ‘you will notify your probation officer of any new or existing romantic or sexual relationship, your place of residence must be approved by a probation officer. You will not move from your place of residence or sleep elsewhere overnight without a probation officer's prior knowledge and permission,’ and ‘you will participate in any other treatment program as directed by a probation officer.’ "
Initially, after the defendant admitted to violating his probation, the court, Devlin, J. , ordered him to attend a treatment program. The matter was continued several times while the defendant attended treatment, and progress reports were submitted to the court. After the defendant failed to appear in court on April 20, 2018, the court ordered his rearrest. As a result, the defendant was charged with failure to appear in the first degree, to which the defendant pleaded guilty. The defendant was then sentenced to one year of incarceration on the charge of failure to appear in the first degree, to run concurrently with his sentence for violation of probation.
On March 12, 2021, the state filed a motion to impose a standing criminal protective order on the defendant. In its motion, the state argued that "[t]he grounds for the motion are that, at the time of the defendant's sentencing, although a no contact order was issued, a protective order was not. [J] was erroneously under the impression that a standing criminal protective order was in place. The defendant is currently on supervised parole and will eventually be placed on probation, however [J] is afraid that, once the defendant is done with probation, there will be nothing preventing him from having contact with her daughter. In addition, [J] moves
quite frequently, and has previously resided in New Haven. She is aware that the defendant is currently on supervised parole and residing in New Haven. She is fearful for her daughter's safety and would request the added protection of a standing criminal protective order at the present time."
The court, Russo, J. , held a hearing on the motion on August 24, 2021. At the hearing, the state reasserted the grounds stated in its motion, namely, that J was under the impression that a standing criminal protective order already was in effect, and she was concerned for her daughter's safety should she move to an area close to where the defendant resides. The court then noted that, "according to State [v.] Alexander , [269 Conn. 107, 847 A.2d 970 (2004)], the imposition of an order like this does not change the sentence. It's an added layer of protection." The defendant argued that the present case is distinguishable from the facts of Alexander because he was sentenced more than nine years earlier, whereas the defendant in Alexander was sentenced less than one month prior to the standing criminal protective order. The defendant also expressed his disagreement with the outcome of Alexander , arguing that "a standing criminal [protective] order subjects [the defendant] to a heightened criminal legal liability. A potential violation of that would expose him to another felony charge, [and] potentially more incarceration."
During the hearing, the state noted that it "would have brought this forward slightly sooner ... [but] the defendant was incarcerated, he was in a halfway house and then absconded, so we weren't able to bring him in sooner. And that also added to the victim's fears that he was out and about."
In ruling on the motion, the court began by stating that the defendant has not done anything to trigger additional criminal proceedings. The court went on to reason that Alexander "instructs [the court] to ... understand that the imposition of a standing [criminal protective] order, which the state has requested through
its motion, one, is not punitive to you. Two, that it serves the purpose of protecting ... victims. It does not increase the term of imprisonment that you either have already served or are presently serving. Nor does it impose any type of additional monetary fine. And ... finally, [ Alexander ] does settle with the following language: Because the passage of the act is not punitive in law or in fact, we conclude that the court's imposition of a standing criminal [protective] order upon the defendant did not affect his sentence." Further, the court found that the sentencing court's failure to impose a standing criminal protective order, despite the understanding of the victim's mother that one would be imposed, implicated "the integrity of our criminal justice system." On the basis of the foregoing, the court granted the state's motion to impose a standing criminal protective order and imposed an order the same day. This appeal followed.
On appeal, the defendant claims that the court (1) abused its discretion in imposing the standing criminal protective order because there was no change in circumstances that would justify opening the judgment, (2) lacked jurisdiction to modify his sentence, and (3) violated constitutional protections against double jeopardy. As to the defendant's second and third claims, we conclude—and the defendant conceded at oral argument—that our Supreme Court's decision in Alexander controls. See State v. Alexander , supra, 269 Conn. at 119–20, 847 A.2d 970 (holding that trial court had jurisdiction to impose standing criminal protective order after sentencing and that such order did not violate protections against double jeopardy). We are bound by the result in Alexander and, therefore, cannot find in favor of the defendant as to these claims. See State v. Gonzalez , 214 Conn. App. 511, 522–23 n.10, 281 A.3d 501 ("It is axiomatic that, [a]s an intermediate appellate court, we are bound by Supreme Court precedent and are unable
to modify it .... [W]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them .... [I]t is not within our province to reevaluate or replace those decisions." (Internal quotation marks omitted.)), cert. denied, 345 Conn. 967, 285 A.3d 736 (2022). Accordingly, our review of this appeal is limited to the defendant's first claim.
We begin our analysis by setting forth the relevant legal principles and standard of review. General Statutes § 53a-40e (a) controls the imposition, modification, and repeal of standing criminal protective orders and provides in relevant part: "If any person is convicted of ... a violation of ... subdivision (1) or (2) of subsection (a) of section 53-21 ... the court may, in addition to imposing the sentence authorized for the crime under section 53a-35a or 53a-36, if the court is of the opinion that the history and character and the nature and circumstances of the criminal conduct of such offender indicate that a standing criminal protective order will best serve the interest of the victim and the public, issue a standing criminal protective order which shall remain in effect for a duration specified by the court until modified or revoked by the court for good cause shown ...."
Based on the foregoing, § 53a-40e (a) grants the court discretionary authority over the imposition of standing criminal protective orders. "Our review of such discretionary determinations is well settled, under which the trial court's order will be upset only for a manifest abuse of discretion .... When reviewing claims under an abuse of discretion standard, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness .... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it
did." (Citation omitted; footnote omitted; internal quotation marks omitted.) State v. Arthur H. , 288 Conn. 582, 595, 953 A.2d 630 (2008).
The defendant claims that the court abused its discretion in imposing the standing criminal protective order because there was no change in circumstances that would justify opening the judgment of conviction and imposing the order. As a predicate to this claim, the defendant maintains that the court's imposition of the standing criminal protective order should be construed as a modification of the judgment. The defendant asks that we construe the imposition of the standing criminal protective order as a modification of the judgment because, he alleges, the imposition of such an order modified his sentence. The construction of a judgment presents a question of law subject to plenary review. Bauer v. Bauer , 308 Conn. 124, 131, 60 A.3d 950 (2013). "In construing a trial court's judgment, [t]he determinative factor is the intention of the court as gathered from all parts of the judgment .... The interpretation of a judgment may involve the circumstances surrounding the making of the judgment .... Effect must be given to that which is clearly implied as well as to that which is expressed .... The judgment should admit of a consistent construction as a whole." (Internal quotation marks omitted.) Id.
In support of his argument that the standing criminal protective order was effectively a modification of the judgment, the defendant cites to the legislative history of § 53a-40e and statutes that the defendant construes as "similar" to § 53a-40e. Moreover, the defendant advocates for a "narrow interpretation of § 53a-40e." Insofar as the defendant asks this court to engage in statutory interpretation of § 53a-40e to determine whether a standing criminal protective order is a modification of the judgment, we note that we are bound by the interpretation of § 53a-40e set forth in State v. Alexander , supra, 269 Conn. at 119, 847 A.2d 970 ("the court's imposition of a standing criminal [protective] order upon the defendant [does] not affect his sentence"), and decline to do so. See Parrott v. Colon , 213 Conn. App. 375, 384, 277 A.3d 821 (2022) ("we are bound by our previous judicial interpretations of the language and the purpose of the statute" (internal quotation marks omitted)).
The crux of the defendant's argument is that the "addition" of the standing criminal protective order to the defendant's sentence constituted a modification of the judgment. In support of his argument, the defendant cites an array of civil and criminal precedent from this court, and our Supreme Court, to provide examples of circumstances under which our appellate courts have held that a trial court must make explicit findings prior to modifying a judgment. In his principal appellate brief, the defendant concludes his argument for his first claim by emphasizing that "[t]his case offers this court the opportunity to articulate the appropriate standards for the entry of a standing criminal protective order after a case has already gone to judgment." The defendant asserts that "the standard for modification of a judgment, the legislative history, and common sense dictate that the state or proponent of the change should have the burden of establishing by a preponderance of the evidence that there has been a change in circumstances justifying a change in the judgment." Contending that the court failed to make such a finding, the defendant claims that it abused its discretion in imposing the standing criminal protective order.
None of the cases cited by the defendant provides any authority for construing the trial court's imposition of the standing criminal protective order in the present case as a modification of the judgment. Instead, the defendant apparently cites these cases in an attempt to analogize the burdens articulated therein with the burden of imposing a standing criminal protective order.
For example, citing, inter alia, Jenks v. Jenks , 232 Conn. 750, 753, 657 A.2d 1107 (1995), the defendant argues that the court was required to make a factual determination as to whether mutual mistake was the cause of the sentencing court's failure to impose the challenged order in the first instance. The defendant also cites Antonio A. v. Commissioner of Correction , 205 Conn. App. 46, 74–75, 256 A.3d 684, cert. denied, 339 Conn. 909, 261 A.3d 744 (2021), to support the assertion that "[m]odification of a judgment usually requires a showing of change in circumstances." Additionally, the defendant points out that modifications of probation must be preceded by a hearing, at which the state must demonstrate good cause for the modification. See State v. Suzanne P. , 208 Conn. App. 592, 603–604, 265 A.3d 951 (2021).
The defendant's argument fails as a matter of law, because, as established in State v. Alexander , supra, 269 Conn. at 118–19, 847 A.2d 970, a standing criminal protective order is separate and distinct from the criminal judgment setting forth the defendant's sentence. A standing criminal protective order "neither increases the term of imprisonment already imposed upon the defendant nor imposes an additional fine" and is not punitive in law or in fact. State v. Alexander , supra, 269 Conn. at 118–19, 847 A.2d 970. Consequently, neither the sentence nor the criminal judgment is modified when a standing criminal protective order is imposed after sentencing. For this reason, the defendant's reliance on modification of judgment cases in both criminal and civil contexts is misplaced. Moreover, the court emphasized at the hearing on the state's motion that, under Alexander , standing criminal protective orders do not affect the defendant's sentence. This statement reflects the court's acknowledgment of what the order was—an exercise of judicial
We note that, in Alexander , our Supreme Court refers to the defendant's "standing criminal restraining order" throughout its analysis of § 53a-40e. See, e.g., State v. Alexander , supra, 269 Conn. at 119, 847 A.2d 970. In 2010, § 53a-40e (a) was amended to substitute "standing criminal protective order" for "standing criminal restraining order." See Public Acts 2010, No. 10-144, § 5. This technical change to the statute does not affect our Supreme Court's analysis in Alexander . Accordingly, for the sake of clarity, we refer to the order at issue in Alexander as a standing criminal protective order.
In support of his assertion that the court must find a change in circumstances before imposing a standing criminal protective order after sentencing, the defendant also cites to Kaplan v. Kaplan , 8 Conn. App. 114, 510 A.2d 1024 (1986). In Kaplan , the defendant in a divorce case moved to modify the court's judgment of dissolution of marriage nearly ten years after the judgment was rendered. Id., at 114–15, 510 A.2d 1024. The trial court denied the motion, and the defendant appealed. Id., at 116, 510 A.2d 1024. This court reversed the judgment of the trial court, stating that the coalescence of several factors established the "showing of a substantial and unforeseen change of circumstances" required to permit modification. Id., at 119, 510 A.2d 1024.
Kaplan , like much of the other precedent on which the defendant's argument relies, is distinguishable from the present case in that it concerns an order that impacts the prior judgment. As established, "the court's imposition of a standing criminal [protective] order upon the defendant [does] not affect his sentence." State v. Alexander , supra, 269 Conn. at 119, 847 A.2d 970.
discretion separate and apart from the defendant's sentence—and the purpose that it served—protection of the victim and the public. Therefore, in accordance with Alexander , we decline to construe the imposition of the standing criminal protective order as a modification of the judgment of conviction under which the defendant was sentenced.
The defendant attempts to draw a distinction between the judgment of conviction and the court's sentencing of the defendant. We are not persuaded. "The appealable final judgment in a criminal case is ordinarily the imposition of sentence." (Internal quotation marks omitted.) State v. Curcio , 191 Conn. 27, 31, 463 A.2d 566 (1983). The exceptions to this rule in criminal cases are limited to rulings made prior to the imposition of sentence that meet one of the two circumstances identified in Curcio . Id. Those exceptions do not apply in the present case.
Further, we disagree with the defendant's assertion that § 53a-40e (a) fails to provide any guidance as to the standard applicable to a trial court's imposition of such orders. As already stated in this opinion, § 53a-40e (a) provides that a trial court may impose a standing criminal protective order "if the court is of the opinion that the history and character and the nature and circumstances of the criminal conduct of such offender indicate that a standing criminal protective order will best serve the interest of the victim and the public." The language of § 53a-40e (a) clearly articulates the discretionary standard for trial courts when imposing standing criminal protective orders. The defendant, however, has not challenged the imposition of the contested order on the ground that the court failed to abide by the statutory standard. "[F]or this court judiciously and efficiently to consider claims of error raised on appeal ... the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed." (Internal quotation marks omitted.)
Verderame v. Trinity Estates Development Corp. , 92 Conn. App. 230, 232, 883 A.2d 1255 (2005). Furthermore, "our appellate courts do not presume error on the part of the trial court .... Rather, the burden rests with the appellant to demonstrate reversible error." (Citation omitted; internal quotation marks omitted.) Jalbert v. Mulligan , 153 Conn. App. 124, 145, 101 A.3d 279, cert. denied, 315 Conn. 901, 104 A.3d 107 (2014) ; see also State v. Henderson , 312 Conn. 585, 597, 94 A.3d 614 (2014) ("Although [the court] did not expressly state that [it] was of the opinion that the defendant's serious and violent criminal history indicated that extended incarceration would ‘best serve the public interest,’ this court has never required the talismanic recital of specific words or phrases if a review of the entire record supports the conclusion that the trial court properly applied the law .... Rather, this court presumes that the trial court properly applied the law in the absence of evidence to the contrary." (Citations omitted.)). Accordingly, we do not address whether the trial court satisfied the standard set forth in § 53a-40e (a) when it imposed the standing criminal protective order.
Finally, the defendant attempts to distinguish Alexander from the present case. In Alexander , the state filed a request for a standing criminal protective order against the defendant with respect to one of the victims after the defendant made threats during his sentencing hearing. State v. Alexander , supra, 269 Conn. at 109–11, 847 A.2d 970. The motion requesting the standing criminal protective order was filed after the defendant had been sentenced. Id., at 109, 847 A.2d 970. The trial court granted the request and imposed the standing criminal protective order, from which the defendant appealed. Id. In affirming the trial court's imposition of the standing criminal protective order, our Supreme Court held that such an order was not punitive in law or in fact. Id., at 119, 847 A.2d 970. Therefore, the court concluded that the imposition of a standing criminal
protective order, pursuant to § 53a-40e (a), did not affect the defendant's sentence. Id.
The defendant argues that Alexander is distinguishable from the present case in two ways. First, the defendant contends that whereas the standing criminal protective order in Alexander was imposed one month after sentencing, the order in the present case was not imposed until nearly nine years after sentencing. Second, the defendant asserts that, in Alexander , because the standing criminal protective order was requested after the defendant made threats during the sentencing hearing, there was a change in circumstances that justified granting the request. We are not persuaded by either argument.
First, there is nothing in § 53a-40e (a) or in the court's decision in Alexander that suggests that a trial court's authority to issue a standing criminal protective order has a temporal element to it. Alexander makes clear that such orders may enter after the judgment of conviction has become final following sentencing. Id., at 118, 847 A.2d 970. We see neither a legal basis to distinguish the holding in Alexander based on how much time has elapsed since the judgment of conviction has become final, nor a practical basis for determining when the court's granting of a postjudgment motion is sufficiently close in time to the judgment to be permissible.
Second, Alexander does not stand for the principle that a showing of changed circumstances is required before a court may impose a standing criminal protective order. Indeed, Alexander holds that such an order is separate from the defendant's sentence and, therefore, the court has jurisdiction to impose the same without violating due process or the protection against double jeopardy. Just as important, § 53a-40e (a) does not require a change in circumstances. It, instead, sets forth a clear test for the court to apply in deciding whether
to issue a standing criminal protective order. In the absence of a claim that the court failed to properly apply that test, there is no basis for this court to conclude that the court abused its discretion when issuing such an order.
The judgment is affirmed.
In this opinion BRIGHT, C. J., concurred.
MOLL, J., dissenting.
General Statutes § 53a-40e (a) controls the issuance, modification, and revocation of standing criminal protective orders. Because this case involves the issuance of a standing criminal protective order in the context of a person convicted pursuant to General Statutes § 53-21 (a) (2), the statutory language that controls the issuing court's authority in the present case provides that the court may issue a standing criminal protective order only " if the court is of the opinion that the history and character and the nature and circumstances of the criminal conduct of such offender indicate that a standing criminal protective order will best serve the interest of the victim and the public ...." (Emphasis added.) General Statutes § 53a-40e (a). The record before us reveals that the issuing court, which was not the sentencing court, did not have an adequate record before it to make such a determination. Rather, the record reflects that, more than nine years after the judgment of conviction, the court issued the standing criminal protective order on the basis of essentially double hearsay, i.e., an out-of-court statement that was (1) made by the victim's mother to the victim's advocate that was (2) conveyed to a prosecutor (not the one who had handled the original matter) and passed along to the issuing court without any evidentiary foundation. The issuance of the forty year protective order occurred notwithstanding the fact that the defendant's original sentence included a twenty-five
year period of probation, a special condition of which was no contact with the victim. In light of these concerns, I respectfully dissent from the majority's decision affirming the judgment of the trial court.
The following comments by the issuing court reveal that it exclusively relied on the assumption of the victim's mother that a standing criminal protective order previously had issued. "Sir, let me first begin by saying there is nobody in this room who believes for a second that you have done anything wrong or criminal directed at this other party, all right. No one is suggesting that. As I sit here today, I don't think you have done anything to trigger additional criminal conduct." Upon reciting the legal principles set forth in State v. Alexander , 269 Conn. 107, 847 A.2d 970 (2004), and recognizing thereunder that it had jurisdiction to impose the requested order, the issuing court stated: "[W]hat was equally persuasive to me was this person who had been in contact with the victim's advocate and the state's attorney's office indicated that she was told at disposition that there would be a standing order as part of the disposition. Now there wasn't, but according to her and according to the state's attorney's office, somehow it was indicated to her that that would be done. And what that does is it triggers the integrity of our criminal justice system. And if a person was told that, there is some sort of obligation to make sure that that signal is carried out here in the courtroom .... So, I do think also that it does satisfy the integrity of our criminal justice system that we correct these slight misrepresentations that may have been made with blame towards no one, sir." The court further stated: "[T]here's no reason to believe you're going to contact this person."
In sum, these comments do not reflect a determination that the issuing court had arrived at "the opinion that the history and character and the nature and circumstances of the criminal conduct of such offender
indicate that a standing criminal protective order will best serve the interest of the victim and the public ...." General Statutes § 53a-40e (a). Although the issuing court was not required to make such an express finding on the record, the comments made on the record reflect a rationale different from that required by the statute in connection with the issuance of a standing criminal protective order.
Moreover, the record reveals that the issuing court did not have before it—and, therefore, had not considered—the transcript from the April 13, 2012 sentencing hearing conducted by the court, Devlin, J. , which the defendant filed with this court. The sentencing transcript reflects the following. First, the prosecutor did not request or otherwise mention the issuance of a standing criminal protective order. Second, the court did not suggest that it was considering issuing a standing criminal protective order, such that it simply forgot to do so by the completion of the hearing. Third, the court addressed the victim's mother directly and gave her an opportunity to be heard. While the victim's mother expressed her hurt and frustration, she did not request the issuance of a standing criminal protective order. After hearing from the defendant's attorney and recognizing the defendant's right of allocution, the court went on to impose the sentence of fifteen years of incarceration, execution suspended after five years, followed by twenty-five years of probation, explaining, twice, that one of the special conditions of probation would be no contact with the victim.
The issuing court also did not have before it the transcript from the February 2, 2012 hearing in which the defendant entered his guilty plea, which the defendant filed with this court. That plea transcript reflects, inter alia, that the court, Devlin, J. , confirmed with the prosecutor that the victim's mother was aware of the proposed disposition and proceeded to hear from her.
The court addressed the victim's mother directly, thoughtfully explaining how it arrived at the proposed disposition. At the end of the court's explanation, the victim's mother stated: "If you think it's fair, Your Honor, I'm good with you." The court proceeded to canvass the defendant with respect to his guilty plea, and the plea was accepted. At no time did the court reference the possibility of issuing a standing criminal protective order.
Stated simply, a review of the plea and sentencing transcripts reveals that the sentencing court did not make any representations during the plea hearing or the sentencing hearing—to the victim's mother or anyone else—that a standing criminal protective order would issue. In the absence of some evidentiary showing that the sentencing court committed an oversight, in my view, the double hearsay on which the issuing court relied is insufficient as a matter of law to satisfy the statutory requirement that the court may issue a standing criminal protective order only " if the court is of the opinion that the history and character and the nature and circumstances of the criminal conduct of such offender indicate that a standing criminal protective order will best serve the interest of the victim and the public ...." (Emphasis added.) General Statutes § 53a-40e (a). On the basis of the foregoing, I conclude that the court abused its discretion in issuing the standing criminal protective order.
The majority concludes that, because the defendant unsuccessfully argues on appeal that the postjudgment issuance of the standing criminal protective order constituted a modification of the judgment of conviction, the defendant's first claim on appeal necessarily fails. The majority also concludes that the defendant "has not challenged the imposition of the contested order on the ground that the court failed to abide by the statutory standard." In doing so, the majority takes an overly myopic view of the defendant's claim on appeal, and I disagree with its determination that the defendant exclusively framed his first claim on appeal on the basis of the proposition that the issuance of the standing criminal protective order constituted a modification of the judgment. Threaded throughout the defendant's claim is his argument that the issuing court—which was different from the sentencing court, a distinction the importance of which the defendant emphasizes—abused its discretion under § 53a-40e by issuing a postjudgment standing criminal protective order without any change in circumstances. It is this argument with which I agree under the circumstances of this case, namely, a standing criminal protective order being issued by a court different from the sentencing court.
In light of the foregoing considerations, I respectfully dissent.
In the event our Supreme Court considers the issues raised by the defendant with respect to this claim, I would urge it to consider exercising its supervisory authority to provide guidance to trial courts in the context of a postjudgment motion for the issuance of a standing criminal protective order presented to a trial court that was not the sentencing court. See State v. Fernando A. , 294 Conn. 1, 4, 981 A.2d 427 (2009) (guidance provided concerning issuance and continuation of criminal protective order in family violence case pursuant to General Statutes § 54-63c (b) ).