Opinion
No. 050341156
August 1, 2007
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
The defendant is charged with violation of his probation pursuant to General Statutes § 53a-32. The defendant moves for dismissal of the charge. The defendant claims: 1) In accordance with Practice Book § 41-8(4), Connecticut lacks personal jurisdiction over the defendant, and 2) In accordance with Practice Book § 41-8(5), there is insufficient evidence or cause to justify the bringing or continuing of the charge.
At oral argument the defendant retreated from a third claim that Connecticut's failure to respond to New York's offender violation report within ten business days implicated the defendant's due process rights.
FACTS
The defendant was adjudicated guilty on the charge of operation of a motor vehicle while under the influence of liquor or drugs or while having an elevated blood alcohol content (DUI), in violation of General Statutes § 14-227a. The sentence imposed by the court on September 21, 2005, was six months incarceration, execution suspended, eighteen months probation, and a fine. Among the standard conditions of probation was the requirement that the defendant not violate any criminal law of the United States this state or any other state or territory. The defendant's probationary period began September 21, 2005, and was scheduled to end March 21, 2007.
The defendant resided in the state of New York. The probation department in Connecticut completed a request for transfer of probation supervision to New York. New York approved the transfer of probation supervision and undertook the supervision. On December 30, 2006, the defendant was arrested in the area of Fishkill, New York and charged with operating a motor vehicle while under the influence of alcohol or drugs. In January 2007, New York sent an offender violation report to Connecticut. Connecticut issued a warrant charging the defendant with violation of probation. The affidavit in support of the warrant application claims that the defendant violated his probation by breaking a criminal law. When he learned that a warrant had issued in Connecticut, the defendant traveled to Connecticut and presented himself to be served with the warrant.
On April 20, 2007, the defendant pled guilty in New York to the reduced charge of driving while ability impaired under Section 1192.01 of the New York State Vehicle and Traffic Law. He paid a fine. The reduced charge to which the defendant pled is a traffic infraction under New York law.
DISCUSSION I. LACK OF PERSONAL JURISDICTION
Offenders who are subject to supervision under the Interstate Compact for Adult Offender Supervision (ICAOS), General Statutes § 54-133, have the same due process rights as other probationers. Conditional release on probation does not, however, afford the same absolute liberty rights of citizens who are not on probation. State v. Smith, 207 Conn. 152, 166, 540 A.2d 679 (1988). Probationers are dependent on observance of special probation restrictions. Id. Violation of such restrictions subjects the probationer to a return to confinement. The defendant invokes the ICAOS for his claim that he was denied due process. He argues that he was never given a required probable cause hearing in New York (the receiving state) prior to the service of the violation of probation warrant in Connecticut (the sending state).
The ICAOS is a uniform law allowing states to cooperate in tracking the location of offenders, transferring probation supervision in an orderly and efficient manner, and when necessary returning offenders to the originating jurisdiction. General Statutes § 54-133, Article I. After passage of the law in Connecticut, the ICAOS took effect here when the thirty-fifth state, Pennsylvania, enacted jurisdiction on June 19, 2002. The ICAOS creates an interstate commission, which promulgates rules and bylaws that are binding upon the compacting states. General Statutes § 54-133, Article XIII.
An offender who is residing in the receiving state is subject to arrest and detention without bond upon request of the sending state when the sending state intends to retake the offender. See e.g. State ex rel. Ohio Adult Parole Authority v. Conigljo, 82 Ohio App.3d 52, 610 N.E.2d 1196 (1993). The request for retaking may be based upon a violation of probation committed in the receiving state or in the sending state or elsewhere. When the sending state intends to revoke probation, the sending state may issue a warrant for the offender and request that the receiving state arrest and detain the offender pending retaking. The ICAOS rules address the circumstances for retaking where an offender has been charged with a subsequent criminal offense in the receiving state. The rules specify that the offender shall not be retaken by the sending state without the consent of the receiving state, or until criminal charges have been dismissed, or the offender has been released to supervision for the subsequent offense. ICAOS, Rule 5.101. When the sending state issues a warrant and requests the arrest and detention of the offender in the receiving state for violating the terms of probation supervision, the offender has certain due process rights. "An offender subject to retaking for violation of conditions of supervision that may result in a revocation shall be afforded the opportunity for a probable cause hearing in the receiving state consistent with due process requirements." ICAOS, Rule 5.108(a). The right to the probable cause hearing cannot be waived unless the waiver is accompanied by an admission by the offender to one or more significant violations of the terms or conditions of supervision. ICAOS, Rule 5.108(b).
The defendant claims that the warrant issued by Connecticut must be dismissed because he was retaken by the sending state without the benefit of a probable cause hearing in the receiving state. "Retaking" is defined by the rules as "the act of a sending state in physically removing an offender, or causing to have an offender removed, from a receiving state." ICAOS, Rule 1.101. As defined by the ICAOS rules, retaking did not occur in this case. Connecticut did not remove the defendant physically from New York nor did Connecticut cause him to be so removed. The defendant voluntarily presented himself in Connecticut to be served with the warrant. There was no need for the receiving state to take the defendant into custody upon a request from the sending state. Likewise, the sending state had no need to seek a physical removal of the defendant from the receiving state. When the defendant presented himself in Connecticut to be served with the warrant, it would have been the height of absurdity to require that he first return to New York for a probable cause hearing to determine whether he should be forcibly removed to Connecticut. The due process rights protected by ICAOS, Rule 5.108(a) do not apply to the circumstances of the defendant in this case. He has submitted himself voluntarily to the jurisdiction of the Connecticut courts.
II. INSUFFICIENT EVIDENCE OR CAUSE
The defendant states that he pled guilty in New York to a traffic infraction, not a criminal law. The defendant argues that only a conviction for a crime, not an infraction, can subject him to a charge of violation of probation. The defendant overlooks the well-established case law in Connecticut holding that the favorable disposition of an underlying criminal charge does not mandate a favorable disposition in a violation of probation proceeding. "[T]he purpose of a probation revocation hearing is to determine whether a defendant's conduct constituted an act sufficient to support a revocation of probation . . . rather than whether the defendant had, beyond a reasonable doubt, violated a criminal law." (Citation omitted; internal quotation marks omitted.) State v. Breckenridge, 66 Conn.App. 490, 500, 784 A.2d 1034, cert. denied, 259 Conn. 904, 789 A.2d 991 (2001). "It is well settled that even when the defendant is acquitted of the underlying crime leading to the probation revocation proceeding, probation may still be revoked." State v. Durant, 94 Conn.App. 219, 225, 892 A.2d 302 (2006), aff'd, 281 Conn. 548, 916 A.2d 2 (2007). "[Courts] have consistently expressed the conviction that the outcome of a criminal proceeding simply has no relevance whatsoever to an independent determination on the same facts made in a revocation of probation hearing . . . In a criminal trial, the state must prove its case beyond a reasonable doubt. In a probation revocation hearing, by contrast, a violation of probation need only be shown by a preponderance of the evidence. (Citation omitted.) State v. Gauthier, 73 Conn.App. 781, 794, 809 A.2d 1132 (2002), cert. denied, 262 Conn. 937, 815 A.2d 137 (2003). A conviction on a lesser charge or an acquittal has no bearing on the outcome of a probation violation hearing. See State v. Chambers, 61 Conn.App. 781, 791, 767 A.2d 1215, cert. denied, 256 Conn. 903, 772 A.2d 597 (2001).
New York chose to accept a guilty plea to an infraction instead of presenting proofs on the DUI charge beyond a reasonable doubt at trial. The standard of proof in a violation of probation proceeding is a preponderance of the evidence. In pursuing a violation of probation charge against the defendant, Connecticut is not forestalled by the defendant's proffer of a guilty plea to an infraction in New York and New York's decision to accept that infraction conviction. To succeed at a violation of probation hearing claiming a criminal act by the defendant in New York, Connecticut needs to prove the commission of a criminal act, but only by a preponderance of the evidence.
CONCLUSION
Because the defendant subjected himself willingly to the jurisdiction of Connecticut to receive the violation of probation warrant, there was no retaking by Connecticut. The ICAOS due process protections do not apply in this case. Connecticut has personal jurisdiction over the defendant to pursue the charge of violation of probation.
New York accepted the defendant's voluntary plea to a reduced charge, an infraction. The decision by New York to accept that plea rather than pursue a more serious charge does not prevent Connecticut from presenting its proofs in a violation of probation proceeding in this state. In pressing its warrant for violation of probation, Connecticut is not bound by findings made by a judge in another jurisdiction. The defendant has failed to demonstrate that his conviction for an infraction in New York shows an insufficiency of evidence available to Connecticut to prove a violation of probation.
The defendant's motion to dismiss is denied.