Opinion
Nos. CR 96-0094553, CR 97-0098839, CR 97-0098845
July 20, 2006
MEMORANDUM OF DECISION RE MOTION TO WITHDRAW PLEAS
On January 19, 2006, the Court held an evidentiary hearing on the Defendant's Motion to Withdraw Pleas of Nolo Contendere. The Court granted the Defendant's request for additional time to file a Memorandum in support of the Motion.
This written memorandum is presented under the provisions of § 11-19 of the Connecticut Practice Book.
I. FACTS
The following facts are found to be credible by the Court.
On January 5, 1998, the Defendant entered two pleas of nolo contendre to the charge of Risk of Injury to a Child in violation of C.G.S. § 53-21 and one plea of nolo contendre to the charge of illegal Sexual Contact of a Victim Under the Age of Sixteen in violation of C.G.S. § 53-21(2). Pursuant to the terms of a plea agreement, he was sentenced on March 26, 1998 to a total effective sentence of 8 years, execution suspended after 2 years with a period of 5 years probation. The Connecticut General Assembly in its 1995 legislative session passed Public Act 95-142 which made a number of changes to Connecticut's sexual assault laws including a requirement that anyone found guilty of C.G.S. § 53-21(2) be sentenced to not less than 10 years, nor more than 35 years of probation.
On March 24, 2000, the Defendant was released from the custody of the Connecticut Department of Corrections. On March 31, 2000, three arrest warrants were signed for the Defendant's arrest for Violation of Probation. The allegations contained in the warrants were based on the Defendant's failure to keep the Probation Department informed of his whereabouts and an overall unwillingness to cooperate with the conditions of his probation. He was served with the warrants on April 3, 2000. On May 9, 2001, the Defendant was found in violation of his probation and sentenced to serve the remaining six years of his sentence (Espinosa, J.).
The Defendant proceeded to file numerous claims of error with respect to his initial sentence. The Appellate Court in State v. Winer, 69 Conn.App. 738 (2002) found no abuse of discretion on the part of the trial court when the court denied the Defendant's motion to withdraw his plea. The Appellate Court did remand the case for re-sentencing under the provisions of Public Act 95-142 as it pertained to the count in CR 96-94553. This was done first on October 25, 2002 without the Defendant being present and again on October 29, 2004 with the Defendant and his attorney present. In this matter, the Defendant has raised four claims but has presented seven in support of his Motion to Withdraw Pleas.
II. LEGAL ANALYSIS
Clearly, the Defendant's original sentence was made in error. Since the enactment of Public Act 95-142, C.G.S. § 53a-29(e) mandates that a person found guilty of C.G.S. 53-21(2) shall receive a period of probation no less than 10 years nor more than 35 years. Now this Court must address the matter of remedy or relief available to the Defendant. Was there an injustice done? State v. Faraday, 268 Conn. 174 (2004). The Department of Probation determined that the Defendant was not in compliance with the conditions of his probation within a week of his release from the Department of Corrections. The Violation of Probation warrant even references his lack of cooperation with probation officers before his release from Corrections' custody. The "correct" period would have enhanced the possibility that he could be in violation by a factor of 2 times to 7 times the period he incorrectly received. Furthermore, this was cured by the directive of the Appellate Court in Weiner.
"An actual controversy must exist not only at the time of the appeal is taken, but also through the pendency of the appeal . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." Chimblo v. Monahan, 265 Conn. 650, 655 (2003). The Defendant will serve out his complete sentence. He will be released from the custody of the Commissioner of Corrections under the present schedule in 2007 and he will face no suspended time. He will not be under any terms of probation. There is no direct practical relief available to him in this process. The Court finds this conclusion dispositive of this matter and, therefore, concludes that it is not necessary to address the Defendant's remaining claims.
CONCLUSION
For the foregoing reasons, the Defendant's Motion to Withdraw Pleas of Nolo Contendere is denied.
SO ORDERED,