Opinion
No. CV 04-0830839S
July 30, 2004
MEMORANDUM OF DECISION
Plaintiff Roy Dell pleaded guilty under the Alford doctrine to two counts of risk of injury to a minor, General Statutes § 53-21(a)(1) on October 11, 2001. On November 29, 2001, Dell was sentenced to two concurrent sentences of ten years, execution to be suspended after three years of confinement, followed by five years probation. One condition of his probation was that Dell was ordered "to be evaluated for, and if recommended by the evaluator and Probation, enrolled in and to successfully complete a sexual offender treatment program." At the time of his release on March 4, 2003, Dell signed a form entitled "Sex Offender Conditions of Probation." The first condition listed on said form states in part: "You will participate in any sex offender evaluation and recommendation treatment as directed by a Probation Officer." The form did not include a condition that required Dell to admit the acts pleaded to under the Alford doctrine.
The Connection, Inc. is a private corporation contracted by the State to provide specialized, community-based sex offender treatment and sexual abuse evaluation programs at various locations throughout the State. In early May 2003, William Hobson, a program leader at The Connection, Inc., informed Dell that he would be subject to unsuccessful discharge from the sexual offender treatment program if he refused to admit to the acts he pleaded guilty to under his plea agreement. His probation officer, Michael Doyle, subsequently informed him that if he failed to successfully complete the sex offender treatment program, his probation would be violated.
On June 26, 2003, Dell filed a Motion to Modify Conditions of Probation, requesting "among other relief a Court Order barring the Office of Adult Probation from imposing as a condition on Dell's probation that Dell admit the acts pleaded to under the Alford doctrine." A Memorandum of Decision was issued on August 18, 2003, Sullivan, J., denying the motion on the basis that the motion for relief was premature.
II A.
Dell now asks this court for a declaratory judgment that under the circumstances alleged, he cannot be subject to a forfeiture of his liberty for noncompliance with conditions of his probation that require him to admit guilt and successfully complete sex offender treatment. Dell also seeks prospective relief prohibiting the State from pursuing a violation of probation proceeding against him. In addition, Dell asks this court to vacate the pleas he entered under the Alford doctrine on October 11, 2001. Dell also seeks an injunction and award of compensatory and punitive damages for abuse and harassment caused by The Connection, Inc.
Specifically, Dell claims: (1) that procedures used at plea and sentencing by the State, which did not provide notice to Dell that his failure to admit acts pleaded to under Alford doctrine would subject him to loss of his conditional liberty, once on probation, constitute a denial of Dell's right to procedural due process; (2) that the Connection's conduct constitutes state action under the Fourteenth Amendment and its conduct is a reckless and callous indifference to Dell's right to procedural due process; (3) that the actions of both defendants violate Dell's right under the Connecticut constitution not to give evidence against himself; and, (4) that his petition for habeas corpus should issue on the basis that the conflict between the Alford plea and the condition of his probation negates the voluntary, knowing and intelligent nature of the plea.
B.
Before considering the merits of Dell's complaint, this court must determine whether it has jurisdiction to adjudicate the matter. "Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it." (Internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 128, 836 A.2d 414 (2003). Dell is concerned about his probation's potential revocation, and is attempting to seek redress of this criminal matter in a civil court. Generally, a superior court that hears a criminal matter and imposes probation on a convicted criminal as part of his sentence maintains sole and original jurisdiction over that matter. See State v. Carey, 222 Conn. 299, 305-07, 610 A.2d 1147 (1992). Moreover, "[b]ecause [r]evocation is a continuing consequence of the original conviction from which probation was granted . . . the subject matter jurisdiction over a probation revocation proceeding derives from the original presentment of the information." (Citation omitted; internal quotation marks omitted). Id., 306.
"The jurisdiction of the sentencing court terminates when the sentence is put into effect, and that court may no longer take any action affecting the sentence unless it has been expressly authorized to act . . . The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner." (Citation omitted; internal quotation marks omitted.) State v. Pagan, 75 Conn.App. 423, 429, 816 A.2d 635, cert. denied, 265 Conn. 901, 829 A.2d 420 (2003). Jurisdiction also continues "where the legislature has granted continuing jurisdiction after the commencement of a sentence." Monsam v. Dearington, 82 Conn.App. 451, 458, 844 A.2d 927 (2004). The issue here concerns a probation condition, and § 53a-30(c) states: "At any time during the period of probation or conditional discharge, after hearing and for good cause shown, the court may modify or enlarge the conditions, whether originally imposed by the court under this section or otherwise, and may extend the period, provided the original period with any extensions shall not exceed the periods authorized by Section 53a-29. The court shall cause a copy of any such order to be delivered to the defendant and to the probation officer, if any." In State v. Smith, 255 Conn. 830, 840, 769 A.2d 698 (2001), the court held that "[e]ven prior to the violation of probation hearing, if an individual on probation believes that the office of adult probation imposed an unreasonable condition, he may request a hearing pursuant to General Statutes § 53a-30(c)." Jurisdiction remains with the court that sentenced him.
C.
Dell argues that Pamela B. v. Ment, 244 Conn. 296, 709 A.2d 1089 (1998), supports his claim that this court has subject matter jurisdiction. In Pamela B., the Supreme Court was asked to consider the trial court's jurisdiction to issue declaratory and injunctive relief to an entire class of litigants against the Chief Court Administrator Aaron Ment. The court found that because the claim involved systemic constitutional violations, and because the plaintiffs lacked other courses of redress, the claims were justiciable. Id., 316-20. Dell's claims, however, are distinguishable. In Pamela B., the relief sought was for an entire class of plaintiffs related to systemic violations whereas in this case, the relief sought is specific to one plaintiff and one proceeding.
D.
Dell also seeks relief pursuant to the Writ of Habeas Corpus. The Supreme Court has, however, "repeatedly and emphatically stated that habeas corpus cannot be used as an alternative to a direct appeal . . . Where a claim could have been raised on direct appeal, but was not, there is ordinarily no basis . . . for allowing collateral attack to do service for an appeal." (Citations omitted; Internal quotation marks omitted.) Cajigas v. Warden, 179 Conn. 78, 81, 425 A.2d 571 (1979). This doctrine is commonly known as the deliberate bypass rule and it serves two important functions: "(1) it prevents piecemeal litigation; and (2) it prevents a prisoner from deliberately deferring his claims until a time when a new trial, if required, would be impossible." Valeriano v. Bronson, 209 Conn. 75, 79, 546 A.2d 1380 (1988).
Instead of presenting his claim to the sentencing court and utilizing any appeal process if necessary, he is seeking review through this action thus creating piecemeal litigation. "The general rule is that a petitioner must allege and prove that he did not deliberately bypass the ordinary appeal process." Smith v. Barbieri, 29 Conn.App. 817, 819, 618 A.2d 567, cert. denied, 225 Conn. 902, 621 A.2d 285 (1993). "The issue of deliberate bypass is one that is jurisdictional in nature . . . and, thus, presents a threshold question that must be resolved before we can consider the case on the merits." (Citations omitted.) Id., 819-20.
E.
The heart of Dell's claim is that procedures used at plea and sentencing did not provide notice that his failure to admit acts pleaded to under the Alford doctrine would constitute a probation violation while subjecting him to a loss of his conditional liberty, and thus denying his right to procedural due process. This discussion, therefore, would not be complete without mentioning the Supreme Court's recent ruling in State v. Faraday, 268 Conn. 174, 842 A.2d 567 (2004), a case with facts almost identical to this one.
Defendant Faraday pleaded guilty under the Alford doctrine to sexual assault in violation of § 53a-72a and risk of injury to a child in violation of § 53-21. See, Id., 177. The events occurred in 1991 and 1992, but Faraday pleaded guilty on July 31, 1998, ten months after § 53a-32a became effective on October 1, 1997. Faraday was sentenced to twelve years imprisonment, execution suspended, and five years probation. See Id., 177-78. In October 1999, Faraday was charged with violating two conditions of his probation, one of which was that Faraday had violated the condition of probation requiring sex offender treatment. See Id., 178. "Specifically, the trial court found that the defendant was discharged from such treatment because of his failure to admit guilt of the underlying charges." Id., 179. The trial court did not specifically cite § 53a-32a. See Id., 178. "Nothing in the record indicates that the defendant at anytime was aware of, or was told of, the existence of [§ 53a-32a]." (Internal quotation marks omitted.) Id., 194. The Faraday court held, however, "[t]here is no requirement . . . that the defendant be advised of every possible consequence of such a plea . . . Although a defendant must be aware of the direct consequences of a plea, the scope of direct consequences is very narrow . . . In Connecticut, the direct consequences of a defendant's plea include only the mandatory minimum and maximum possible sentences; Practice Book § [39-19(2) and (4)]; the maximum possible consecutive sentence; Practice Book § [39-19(4)]; the possibility of additional punishment imposed because of previous conviction(s); Practice Book § [39-19(4)]; and the fact that the particular offense does not permit a sentence to be suspended. Practice Book § [39-A(3)] . . . The failure to inform a defendant as to all possible indirect and collateral consequences does not render a plea unintelligent or involuntary in a constitutional sense." (Internal quotation marks omitted.) Id., 201-02. "When the court imposes probation, a defendant thereby accepts the possibility that the terms of probation may be modified or enlarged in the future pursuant to § 53a-30." (Internal quotation marks omitted.) Id., 202. Faraday settles the central question in Dell's complaint. The Connecticut Supreme Court further held that "the trial court was not required to notify the defendant, upon entering his plea, that a failure to acknowledge guilt could result in a violation of the condition of his probation requiring sex offender treatment." Id., 203. The court concluded "it was not incumbent upon the trial court also to list all the potential conduct that could result in a discharge from that program. Furthermore, because the office of adult probation is free to modify the terms of the defendant's probation at any time . . . it is unrealistic to expect the court to canvass a defendant regarding the conduct necessary to comply with those terms." (Citation omitted.) Id., 203.
The procedural posture of Faraday is equally instructive to our matter. In Faraday, the defendant was challenging the terms of his probation after a violation of probation hearing had been conducted. In our matter, Dell has sought to challenge a term of his probation before any action has been taken by his probation officer or the sentencing court. Of even greater significance, Dell seeks relief in another division of the Superior Court. This is inappropriate and for the foregoing reasons, the Defendants' motions to dismiss are hereby granted.
Berger, J.