Opinion
AC37005
06-07-2016
LEWIS v. COMMISSIONER OF CORRECTION
CONCURRENCE
, concurring. I agree with the conclusions and the analysis set forth in the majority opinion. I write separately only to explain further why I think that the present appeal was not rendered moot by the release of the petitioner, Prince Lewis, from prison during its pendency and by the transfer of his probation supervision to the state of New York. See footnote 5 of the majority opinion.
In response to the motion to dismiss this appeal as moot filed by the respondent, the Commissioner of Correction, the petitioner filed an opposition and a motion seeking an evidentiary hearing. Each contained an "offer of proof," in which the petitioner set forth facts he expected to prove at the proposed evidentiary hearing. In its opposition to the motion for an evidentiary hearing, the respondent stated that it was not disputed that "the petitioner is released from the custody of the respondent Commissioner of Correction and is on probation in New York state pursuant to the Interstate Compact for Adult Offender Supervision. See [General Statutes] § 54-133 et seq." Because the central facts regarding mootness are not disputed, I assume them for purposes of deciding whether the petitioner can be afforded practical relief. --------
As our Supreme Court noted in State v. Ovechka, 292 Conn. 533, 538 n.8, 975 A.2d 1 (2009), an appeal challenging a criminal conviction is not rendered moot by a defendant's release from incarceration because of the collateral consequences that attend a conviction, as well as the fact that the defendant in that case remained subject to a period of probation. Thus, our Supreme Court implicitly concluded that a successful criminal appeal that results in vacating the conviction renders the entire sentence, including any remaining probationary period, void. Applying that reasoning to this habeas case, the petitioner could still obtain practical relief from an adjudication of this appeal, despite having been released from prison, because he remains on probation. In the present case, if the petitioner successfully prevailed on his claim in this appeal that the state of Connecticut waived jurisdiction over him by failing to seek his reincarceration over many years, he would no longer be obligated to serve any portion of his sentence, including the period of probation.
The respondent contends that because the petitioner's probation is being supervised by the state of New York, any relationship between the parties has ended. Nevertheless, even though the petitioner's probation has been transferred to the state of New York, a favorable ruling in this appeal would benefit the petitioner by eliminating his obligation to serve probation anywhere and, if violated, to potentially serve the suspended portion of his sentence. Moreover, under the Interstate Compact for Adult Offender Supervision, the "sending state" typically reserves jurisdiction to conduct probation revocation proceedings if the probationer is alleged to have violated the terms of his probation, unless it is clear that the sending state has relinquished all jurisdiction. See, e.g., Scott v. Virginia, 54 Va. App. 142, 149-50, 676 S.E.2d 343 (2009). The respondent has not called our attention to any evidence that Connecticut has relinquished all jurisdiction over the petitioner-probationer. Thus, the fact that he is allegedly being supervised on probation by the state of New York has no bearing on whether he can obtain practical relief from adjudication of this appeal. Accordingly, because a successful appeal would have afforded the petitioner some practical relief, his appeal is not moot.