Opinion
WWMCR010112799T
11-15-2017
State of Connecticut v. Carlos Alberto Rodriguez
UNPUBLISHED OPINION
MEMORANDUM OF DECISION: RE DEFENDANT'S MOTION TO DISMISS UNSERVED VIOLATION OF PROBATION WARRANT
Hon. John M. Newson, J.
The question presented here appears to be an issue of first impression: Does the court have jurisdiction to entertain a defendant's motion to dismiss a violation of probation warrant before that warrant has been served?
I. Procedural History
On or about August 30, 2002, the defendant was convicted of Sale of Narcotics in violation of General Statutes (Rev. to 1999) § 21a-277(a) and sentenced to 10 years, suspended after 4 years, followed by 5 years of probation. The defendant was released from the custody of the Department of Corrections on about November 3, 2006, beginning his 5-year probationary period. On or about March 31, 2008, while still serving that probation, the defendant was arrested by federal authorities for conspiracy to distribute cocaine and charged with violation of certain federal statutes. As a result of his arrest on the federal charges, the Connecticut Office of Adult Probation (hereinafter, " probation" or " adult probation") submitted a warrant charging him with violation of probation, which was properly signed by a judge of the superior court on April 24, 2008. On September 1, 2009, the defendant was convicted of the federal drug charges in the United States District Court in New Haven and sentenced to 15 years 8 months incarceration, followed by 8 years of supervised release. The Connecticut violation of probation warrant has never been served on the defendant and, despite requests from the Federal Bureau of Prisons beginning as far back as November 20, 2009, Adult Probation did not lodge a formal " detainer" against the defendant until April 27, 2017. The lodging of the formal detainer, according to the defendant, has significantly delayed his release from federal prison to home supervision, which the defendant alleges was scheduled to occur on September 16, 2017.
General Statutes (Rev. to 1999) § 21a-277. Sale or Possession with Intent to Sell Narcotics, provided in pertinent part:
On July 27, 2017, the defendant filed the present motion to dismiss and vacate the violation of probation warrant pursuant to Practice Book § § 41-8(2) and (3) and General Statutes § 54-193(b). According to the defendant, although he appeared numerous times in federal district court in New Haven, Connecticut, and was held in a federal detention facility in the neighboring State of Rhode Island from the time of his arrest by federal authorities 2008 until just recently, Adult Probation has failed to serve the violation of probation warrant on him. The defendant asserts that this delay is unreasonable and results from Adult Probation's failure to attempt to serve the warrant with proper " due diligence, " which violates his rights to due process. The defendant also claims that the 9-year delay exceeds the applicable statute of limitations.
Practice Book (Rev. to 2017) § 41-8. Motion to Dismiss, provides in pertinent part:
General Statutes (Rev. to 2017) § 54-193. Limitation of prosecution for certain violations or offenses, provides, in pertinent part:
II. Law and Discussion
A. Subject Matter Jurisdiction
The first question that must be addressed by the court is the matter of jurisdiction. " Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . Jurisdiction involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created . . . Article fifth, § 1 of the Connecticut constitution proclaims that '[t]he powers and jurisdiction of the courts shall be defined by law, ' and General Statutes § 51-164s provides that: '[t]he superior court shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute . . .'" (Citations omitted; internal quotation marks omitted.) State v. Carey, 222 Conn. 299, 304-05, 610 A.2d 1147 (1992). " The Superior Court's authority over criminal cases is established by the proper presentment of the information . . . which is essential to initiate a criminal proceeding." State v. Daly, 111 Conn.App. 397, 401-02, 960 A.2d 1040 (2008). A criminal proceeding is not initiated until the defendant has been formally presented before the court, notified of the charges, and the formal charging document, called the information here in Connecticut, has been filed with the court, which constitutes the " initiation of adversary judicial criminal proceedings . . ." State v. Pierre, 277 Conn. 42, 92, 890 A.2d 474 (2006) (addressing when a defendant's sixth amendment right to counsel attaches). " For, it is only then that the government has committed itself to prosecute, and only then that the adverse positions of [the] government and [the] defendant have solidified." Id., 93. Since the defendant in the present case has not been served or otherwise presented before the Superior Court on the violation of probation warrant, there is no criminal proceeding currently pending over which this court has jurisdiction. State v. Daly, supra, 111 Conn.App. 401-02.
The defendant argues that he may invoke the jurisdiction of the court pursuant to Practice Book § 36-6, which provides:
§ 36-6.--Cancellation of Warrant.
At the request of the prosecuting authority, any unserved arrest warrant shall be returned to a judicial authority for cancellation. A judicial authority also may direct that any unserved arrest warrant be returned for cancellation .(Emphasis added.) Specifically, the defendant argues that the second sentence of this section provides a mechanism by which a defendant may invoke the jurisdiction of the court to challenge an unserved warrant. The court, however, is not able to find any legal or statutory authority that would support such a position, nor has the defendant submitted any.
First, the plain language of § 36-6 does not support the defendant's position. The text of this section references the " prosecuting authority" in the first sentence and the " judicial authority" in the second, but makes no direct reference or other inference to defendants or defense counsel. It is reasonable to assume that some reference to defendants would have been included in the text if the intent was to grant them any standing to bring a motion under it. See State v. Panek, 166 Conn.App. 613, 625, 145 A.3d 924, cert. granted, 323 Conn. 911, 149 A.3d 980 (2016) (" If, after examining [the] text and considering [its] relationship [with other relevant sections], the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the [rule] shall not be considered"), and State v. Kish, 186 Conn. 757, 766, 443 A.2d 1274 (1982) (" Unless there is evidence to the contrary . . . itemization indicates that the legislature intended the list to be exclusive"). This reading of the text would also seem to be supported by the broad prosecutorial discretion vested with the state and the limited authority the court, or anyone else, has to interfere with that discretion. State v. Kinchen, 243 Conn. 690, 699-700, 707 A.2d 1255 (1998). " Consistently with this principle [of deference to the prosecutor's exercise of discretion], the court, [i]n the absence of statutory authority . . . has no power of its own to dismiss a criminal prosecution unless there is a fundamental legal defect in the information or indictment (such as want of jurisdiction or form of the information), or constitutional defect such as denial of the right to speedy trial." Id., 700-01. Given the limited scope of challenges allowed to the state's exercise of discretion, there is no reasonable reading of Practice Book § 36-6 that would appear to grant a defendant standing to attack an unserved violation of probation warrant, and the court will not read any such standing into it. See State v. Panek, supra, 166 Conn.App. 625.
Additionally, while Practice Book rules may codify and explain the jurisdiction of the Superior Court, they may not create or enlarge the court's jurisdiction. State v. Lawrence, 281 Conn. 147, 155, 913 A.2d 428 (2007). The statutes and Practice Book rules that provide authority for a defendant to seek dismissal of criminal charges, such as in Practice Book § 41-8 under which the defendant brings the present motion, refer to dismissal of the information, not to vacating or canceling warrants. For instance, General Statutes § 54-56, titled Dismissal of information by court, provides, in pertinent part: " All courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial." (Emphasis added.) The information, as discussed above, is part of the commencement of the formal prosecution, which does not occur until a defendant has been formally presented in court on charges. State v. Daly, supra, 111 Conn.App. 401-02. As the defendant in the present case has yet to be served and presented on the violation of probation warrant, the court lacks jurisdiction to entertain his claims. Id.
One could claim that the phrase " not sufficient evidence or cause to justify the bringing " of the information means that a defendant could challenge the " bringing" --the institution of--a criminal proceeding against them, as the defendant is attempting to do here. However, consistent with the court's opinion here, a review of case decisions reveals that this term appears to reference a time after a criminal proceeding has been formally commenced against a defendant and a defendant has made a challenge that the prosecution should never have commenced. State v. Oral H., 125 Conn.App. 276, 281-82, 7 A.3d 444 (2010) (motion to dismiss on claim that there was insufficient evidence or authority to support the filing of an amended information adding certain charges); State v. Carbone, 172 Conn. 242, 255, 374 A.2d 215 (1977) (motion to dismiss on claim that statutory revisions abated the charges for which the defendant was prosecuted); State v. Boisvert, No. CR990196364S, (May 5, 2000, Robinson, J.) 27 Conn. L. Rptr. 258, (motion to dismiss on basis that the evidence known at the time the defendant was arrested was insufficient to have warranted the defendant being charged with an offense).
The relevant Practice Book rules also reference " the information" when framing the scope of a defendant's authority to pursue a dismissal of a criminal prosecution. Practice Book § 41-8 Motion to Dismiss, provides: " The following defenses or objections . . . shall, if made prior to trial, be raised by a motion to dismiss
The defendant has also asserted a claim that the state has violated the 5-year statute of limitations set forth in General Statutes § 54-193(b) as a basis for asking the court to vacate the unserved warrant. The state must commence prosecution within the applicable statute of limitations. State v. Crawford, 202 Conn. 443, 448, 521 A.2d 1034 (1987). The issuance of an arrest warrant will toll the running of the statute of limitation, so long as it is " executed without unreasonable delay . . . A reasonable period of time is a question of fact that will depend on the circumstances of each case." Id., 451. The ultimate issue, however, is the same as above, which is that this court has no jurisdiction to entertain the defendant's claim until he has actually been served, presented, and formally charged on the outstanding warrant. State v. Daly, supra, 111 Conn.App. 401-02.
III. Conclusion
WHEREFORE, the court dismisses the defendant's motion for lack of subject matter jurisdiction.
(a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned . . ." (Emphasis added.)
The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information: (1) Defects in the institution of the prosecution including any grand jury proceedings; (2) Defects in the information including failure to charge an offense; (3) Statute of limitations . . .(Emphasis added.)
(b) No person may be prosecuted for any offense, other than an offense set forth in subsection (a) of this section, for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed.
the information . . ." (Emphasis added.) Likewise, section 41-10 Defects Not Requiring Dismissal, provides, in pertinent part, " No information shall be dismissed because of any defect or imperfection in, or omission of, any matter of form only . . ." (Emphasis added.)