Opinion
No. H15-MV05-341234
August 7, 2006
MEMORANDUM OF DECISION RE MOTION TO MODIFY PROBATION
NATURE OF THE PROCEEDINGS
The office of Adult Probation has moved to modify the conditions of the defendant's probation imposed on April 5, 2006, pursuant to his conviction for Operating a Motor Vehicle Under the Influence, C.G.S. § 14-227a. The defendant was sentenced to the custody of the Commission of Corrections for six months, execution suspended after thirty days, and eighteen months probation. The following conditions of probation were imposed: (1) substance abuse evaluation, testing and/or treatment; (2) participate in the Victim Impact Panel; (3) do not operate a motor vehicle without a valid license, registration and/or insurance; (4) 150 hours of community service to be completed in the first fifteen months of his probation period.
The Office of Adult Probation seeks to add to said special conditions of probation the condition that "the offender will be required to review, sign, and abide by all sex offender conditions of probation, to include sex offender evaluation and any recommended treatment, polygraph examinations, and Abel screens as deemed necessary."
An evidentiary hearing on the motion was held on August 2, 2006, and the court heard argument thereafter.
For the reasons set forth below, the motion is hereby granted.
LAW
Section 53a-30(a) of the Connecticut General Statutes provides in relevant part that "[w]hen imposing [a] sentence of probation . . . the court may . . . order [that] the defendant. (17) satisfy any other conditions reasonably related to the defendant's rehabilitation." Although State v. Smith, 225 Conn. 830, 845 (2001), at least implies that a probation condition must be related to rehabilitating the defendant for the crime or criminal conduct which was the basis for the sentence of probation, the court in State v. Pieger, 240 Conn. 639 (1997), described appropriate conditions of probation as those which are reasonably related to the purposes of our probation statute.
The issue confronting the court is whether based upon the record and evidence presented, a condition of sex offender evaluation and treatment is reasonably related to the defendant's rehabilitation, and the purposes of our probation statute. Although C.G.S. 53a-30(a)(12) does not include § 14-227a as an enumerated offense for which express authority is given to the court to impose specialized sex offender treatment as a condition of probation, the court in State v. Cyr, 57 Conn.App. 743, cert. denied, 254 Conn. 905 (2000), rejected a claim that the court's authority to order sex offender treatment is limited to those crimes enumerated in § 53a-30(a)(12), holding that § 53a-30a(17) "gives the court, in its discretion, the authority to do what it deems reasonably necessary to rehabilitate the probationer and to protect prospective victims of such probationers." Id. at 748; State v. Roy D., 95 Conn.App. 686 (2006). "By allowing [a] trial court to impose `any other conditions reasonably related to [the defendant's] rehabilitation,' . . . the legislature authorized the court to impose any condition that would help to secure the defendant's reformation. This broad power is consistent with the general goals of probation." Pieger, supra at 646-47.
Courts have recognized the dual nature of the objectives of probation, i.e. rehabilitation of the probationer and the protection of prospective victims of such probationers. In other words, the legitimate needs of law enforcement must be evaluated along with a probationer's needs in evaluating appropriate conditions of probation.
As the court in Pieger noted:
[B]ecause probation is, first and foremost, a penal alternative to incarceration — its objectives are to foster the offender's reformation and to preserve the public's safety — a sentencing court must have the discretion to fashion those conditions of probation it deems necessary to ensure that the individual successfully completes the terms of probation . . . [I]n determining whether a condition of probation [is proper] . . . a reviewing court should evaluate the condition imposed under our Adult Probation Act in the following context: The conditions must be reasonably related to the purposes of the [Probation] Act. Consideration of three factors is required to determine whether a reasonable relationship exists: (1) the purposes sought to be served by probation; (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers; and (3) the legitimate needs of law enforcement. Pieger, supra, 647-48.
The defendant's probation officer, Christopher Pribyson, testified that supervisors at the probation department's Intake Assessment Referral Unit reviewed the defendant's file, including an in depth review of his criminal history. The review resulted in a determination that the defendant would be an appropriate probationer on a specialized sex offender officer's caseload. According to Pribyson, State's Exhibit One, "Judicial Branch Court Support Services Division Policy and Procedures," required that he file a motion to modify the defendant's conditions of probation and seek court intervention. That policy, contained in paragraph 3 entitled "Sex Offender Evaluation Procedures," states in subsection B as follows:
A probationer who has a prior conviction for a sex offense that occurred within the previous ten (10) years and which would be subject to registration may, subject to supervisory approval, be returned for an evaluation based on the overall circumstances.
It is undisputed both that the defendant has been previously convicted of a sex offense within the last 10 years, and that such conviction required a 10 year registration. The defendant's registration requirement does not end until 2009. In support of the motion to modify, Pribyson attached a report dated January 16, 2001 from "The Connection, Incorporated," described as a "Special Services Center for the Treatment of Problem Sexual Behavior." The report was originally forwarded to the defendant's parole supervisor as part of a prior parole board evaluation. The defendant was evaluated on January 12, 2001. He was seen by "The Connection" at the request of the parole board to determine his appropriateness for outpatient sex offender treatment. At that time, the defendant was serving a 3-year sentence for Arson Third Degree, Assault Third Degree, and Reckless Endangerment, but the report noted that "he had been arrested on three occasions for criminal sexually related behavior." In February of 1997, the defendant was convicted of Sexual Assault Fourth Degree, Assault Third Degree, and Unlawful Restraint First Degree. Pribyson further observed that alcohol was the common denominator in the defendant's criminal history, and in particular, fueled the conduct which resulted in his sexual assault conviction. The defendant's probation currently requires treatment for substance abuse.
The report contains a section entitled "Risk Assessment," and characterized the defendant's "dangerousness rating" as severe, and concluded that his "Recidivism/Sex Offense Relapse Risk, or Likelihood of Future Risk Potential" as high. Although he acknowledged an alcohol and drug problem, the defendant demonstrated little insight into what the report characterized as a "significant mental health problem."
Mr. Pribyson relied in large measure on this report, the defendant's past criminal history, as well as his status as a registered sex offender, in concluding that sex offender evaluation and treatment is appropriate and reasonably related to the defendant's rehabilitation.
While the defendant's claims of remoteness, and a lack of overt connection between sex offender treatment and the underlying crime of operating under the influence are relevant inquiries, the court is not persuaded that the requested modification is inappropriate. As noted previously, the defendant remains obligated to register as a sex offender until 2009. In enacting C.G.S. § 54-102s, Connecticut's "Meghan's Law," it was the legislature's intent to require sex offender registration as "[a] response to concerns regarding the harm to society caused by sex crimes and the relatively high rate of recidivism among sex offenders . . ." State v. Misiorski, 250 Conn. 280, 292 (1999). In Misiorski, the court held that if a probation officer determines that public safety will be advanced by community notification, such notification is not prohibited in cases where a probationer has not been convicted under a provision not enumerated in § 54-102s(a). Id. at 294.
Therefore, inasmuch as the defendant has been previously convicted of an offense that the legislature has determined requires a 10-year sex offender registration period, the legislature's intent in requiring said registration is reasonably seen as a determination that such individuals pose a particular risk of harm to the general public. The legislature implicitly concluded that the defendant's conviction of Sexual Assault Fourth Degree was significant enough to warrant his registration as a sex offender. Therefore, the registration requirement is not only an express recognition that a danger to public safety exists, but also a recognition that it exists to such a degree that the public is entitled to be kept informed of the defendant's whereabouts. According to the legislature, the legitimate needs of law enforcement and public safety require that particular attention be paid to the defendant. Connecticut General Statutes § 54-102s was enacted in response to the relatively high rate of recidivism among sex offenders. Since the legislature determined that certain crimes are significant enough to warrant such consequences, this court can reasonable conclude that a sex offender evaluation is warranted, as it is reasonably related to the goals of rehabilitation of the defendant, and the protection of the public.
As a result, the court is persuaded that the defendant's status as a current sex offender registrant, viewed within the context of a report submitted to the parole board characterizing the defendant as a high risk to re-offend, authorizes the court to impose an added condition of sex offender evaluation and treatment. Said condition is reasonably related to the purposes of probation. Although the defendant is on probation for operating under the influence, the court observes that probation is legitimately concerned about the nexus between the defendant's alcohol consumption and the conduct which resulted in his sexual assault conviction.
The court finds that the evidence and law support the conclusion that such a condition is reasonably necessary to rehabilitate the defendant and reasonably necessary to protect prospective victims.
Therefore, the request to modify the defendant's probation to include a requirement that he review, sign and abide by all sex offender conditions of probation, to include sex offender evaluation and any recommended treatment, polygraph examinations and Abel screens as deemed necessary by the Office of Adult Probation is granted.