Opinion
No. CR-10-224328
January 6, 2004
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO TERMINATE PROBATION
FACTS:
The facts do not appear to be greatly in dispute. On March 13, 1995, the defendant was arrested for Accessory to Sell Narcotics in file number CR10-224328. At some point the defendant made bond on that arrest and was subsequently arrested on a Violation of Probation on file number CR10-170540. While out on bond on both files, the defendant entered a guilty plea to the Accessory to Sell Narcotics and admitted to the Violation of Probation on August 11, 1995. The defendant failed to appear at the sentencing on October 10, 1995 and was ordered rearrested. However, the court sentenced the defendant in absentia on that date to an effective sentence of fifteen years suspended after seven years, followed by three years of probation. The court's sentence was fifteen years suspended after three years, followed by three years of probation on the Accessory to Sell Narcotics and a concurrent sentence of seven years in prison on the Violation of Probation. The defendant was subsequently picked up and taken into custody on May 31, 1996 and began serving the sentence that was imposed on October 10, 1995. On September 19, 1996, the defendant was convicted on the Failure to Appear that was outstanding and received one year consecutive to the fifteen years after seven that he was serving. On March 10, 2000, he was released to parole. On November 29, 2000, the defendant was returned to custody for a parole violation. On November 9, 2001, he was released back to supervised parole. On April 30, 2002, the defendant was declared an absconder from parole. He was returned to custody again on March 4, 2003, on the parole violation. The defendant maxed out and was discharged from the custody of the commissioner of correction on May 16, 2003.
The defendant testified that although he has no record or documents, he recalls that probation sent him a letter while he was incarcerated indicating that his probation began in May of 1999 and would end in April of 2002. When he was on parole, his understanding was that he was also on probation after May of 1999. Probation officer Elaine Berling testified that she had contact with the defendant for intake purposes in December of 2001 at the New London Police Department while he was on supervised parole. She did not have the defendant sign any conditions of probation because her department was unsure if he was on probation because of the State v. Outlaw, 60 Conn. App. 515 (2000) decision. She never actually supervised the defendant and Elaine Berling informed him of his uncertain status because of the new decision. Chief Probation Officer, Robert Coyne, testified concerning records in the defendant's probation file. The file reflected that a probation officer, Mark Lipman, had sent correspondence to the defendant while he was incarcerated in July of 2001 advising the defendant that he was to report to probation once he was released from prison. There was no indication that Mark Lipman ever did physically meet with the defendant. No conditions of probation were ever signed by the defendant and Mark Lipman. Probation was notified by corrections (exhibit #3) that the defendant was discharging from his custody with corrections on May 16, 2003. The defendant signed his conditions of probation on December 2, 2003. (Exhibit #1.) It was Coyne's opinion that Mark Lipman sent the defendant the letter concerning probation in July of 2001 since prior to the Outlaw decision a person could clearly be on probation even though incarcerated on another sentence or on parole.
ISSUE:
The defendant claims he is no longer on probation because it either commenced in April of 1999 while he was still incarcerated or it became effective at the latest in March of 2000 when he was first released on parole. Under either scenario, the defendant claims that his three-year period of probation would have expired by now.
HOLDING:
Whether someone can be on both probation and parole at the same time, or when probation commences when someone is still serving a sentence has been addressed in State v. Outlaw, 60 Conn. App. 515 (2000), aff'd, 256 Conn. 408 (2001), and State v. Strickland, 39 Conn. App. 722 (1995). Although the facts are not identical, this court finds that Outlaw is controlling. In Outlaw the defendant received a sentence of twenty years suspended after ten years, and three years of probation. While serving that sentence, the defendant in Outlaw was convicted of three additional offenses and was sentenced to an additional twenty-three months of incarceration to be served consecutively. After serving his prison sentence, the defendant was subsequently arrested on a violation of probation. Outlaw unsuccessfully argued that he was no longer on probation because his probation commenced when he completed the ten-year incarceration portion of his original split sentence. Although he was incarcerated on his consecutive prison sentence, Outlaw argued that his probation had already begun and was over by the time a Violation of Probation warrant issued. However, the court held in Outlaw that the probation did not commence until the defendant was released from imprisonment on all the sentences he was serving time for. The only difference between Outlaw and the case at hand is that here the defendant received a prison sentence to run concurrently with the split sentence he received on the same date. Almost a year later the defendant received a consecutive jail sentence. The factual differences do not change the proposition that Outlaw stands for.
Strickland is distinguishable from the facts at hand There the defendant was released from prison and was actually on probation when he was convicted of other offenses and sentenced to prison. Strickland held that one could be on both probation and incarcerated at the same time because once the defendant's probation commenced it could not be suspended or tolled. In Strickland the defendant was released from the custody of the Commissioner of Correction and was actively on probation when he was subsequently sentenced for separate convictions. The defendant in the case at hand was always under the jurisdiction of the Commissioner of Correction. This court holds that the defendant was not "released from such imprisonment" for purposes of General Statutes Sec. 53a-31(a) since he never was successfully discharged from parole. As a matter of fact, the defendant was reincarcerated on two separate occasions for parole violations. State v. Deptula, 34 Conn. App. 1 (1994). This court holds that until a defendant is discharged from the custody of the Commissioner of Correction, one's probation does not commence.
This court also disagrees with the defendant's additional claim that the Outlaw decision and the recalculation of when the defendant commenced probation somehow violates the ex post facto clause of the United States Constitution.
The defendant's Motion to Terminate Probation is hereby DENIED.
PATRICK J. CLIFFORD, JUDGE.