Opinion
FBTCR090241668T
08-28-2019
STATE of Connecticut v. Roberto RIVERA
UNPUBLISHED OPINION
OPINION
Joan K. Alexander, Judge
On August 26, 2011, the defendant, Roberto Rivera, was sentenced on multiple counts of sexual assault in the second degree, in violation of General Statutes § 53a-71(a)(1), and risk of injury to a minor, in violation of General Statutes § 53-21, to a total effective sentence of seventeen years execution suspended after eleven years to serve, followed by twenty-five years probation. As part of his probation conditions, the court ordered sex offender treatment. The defendant discharged from the jail portion of his sentence and began probation. Adult probation conducted a risk assessment of the defendant and determined that the defendant was in need of in-patient treatment as a sex offender. The only facility that offers in-patient care in Connecticut is the January Center, which is located on the grounds of the Corrigan-Radgowski Correctional facility in Uncasville, CT. On July 9, 2019, as a result of his placement at this facility, the defendant filed a motion to modify probation claiming that he is being detained and held against his will without being arrested, sentenced or having the benefit of due process and, thus, his constitutional rights are being violated both under the state and federal constitutions. The court heard testimony on July 17, 2019 and testimony and arguments on August 15, 2019. After a review of the evidence and the claims raised by counsel, the court denies the defendant’s motion to modify probation.
The January Center is the state’s only in-patient treatment program for sex offenders. While it is on the grounds of a department of corrections facility, it is not run by the department of corrections. It is program that is staffed by members of "The Connection, Inc." which contracts with the state to provide both in and out-patient treatment for sex offenders. The January Center is the most intensive treatment program offered and it has a total of twenty-four beds. Twelve beds are for probationers and twelve beds are for individuals on parole. While the treatment program is the same for all clients, the center separates the two groups of clients in terms of their lodging within the facility. The facility requires that all individuals stay within the center unless they have permission to leave for additional treatment or other appropriate reasons. While the facility is generally secure, a person in treatment would have the ability to leave without authorization simply by pushing an exit button at the door. The response from the staff, however, would be markedly different as to the two types of clients. In the case of an individual who had been assigned through corrections, the client would be considered an escapee and subject to a remand to corrections. In the case of an individual who had been assigned through probation, the probation officer would be notified, the circumstances would be explained, and then probation would determine whether or not a warrant for violation of probation would be sought. The staff would not stop a probationer from leaving the facility.
The original sentencing court, based upon the defendant’s convictions, appropriately imposed a probation condition which included sex offender treatment. On August 15, the court heard the testimony of the probation officer who assessed the risk level of the defendant. The court agrees with this assessment that the defendant is a high risk sex offender and meets the criteria for in-patient treatment.
The court finds that the defendant is not detained and held against his will without being arrested, sentenced or having the benefit of due process. The defendant has been sentenced. He was put on notice of the requirements of his probation. Probation conducted a standardized risk assessment and found that in-patient treatment was appropriate. While the defendant objects to being in treatment at a center that is located on correctional grounds, it is not operated by corrections and the defendant could leave the treatment center and not be charged with escape. While the defendant claims that this placement constitutes cruel and unusual punishment in violation of his constitutional rights, the court disagrees. First, he is not an inmate and he is not being held against his will. However, even if he were an inmate, the disagreement over treatment does not rise to the level of a constitutional violation of cruel and unusual punishment. See Faraday v. Commissioner of Correction, 288 Conn. 326, 343-45 (2008). "[As] long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an [e]ighth [a]mendment violation. Chance v. Armstrong, [143 F.3d 698, 703 (2d Cir. 1998)]." Faraday v. Commissioner of Correction, supra, 345.
In-patient treatment occurs as a result of a variety of probation conditions: for substance abuse, for mental health, and for sex offenders. There are rules in all in-patient facilities that are more restrictive than those in out-patient care, including limiting a person’s visits into the community. However, a probationer can choose not to follow the requirements. A probation officer would then decide whether or not the failure to follow the program rules is conduct which is a violation of probation. If so, a warrant would be submitted. The warrant would then be reviewed by a state’s attorney who would decide whether to initiate prosecution or not. Finally, a judge would need to issue a warrant based upon a review of the facts submitted in the warrant. If a warrant issued, the defendant is entitled to a hearing before the court on the violation of probation. The defendant’s claim in his motion that he does not receive the benefit of due process by this placement is without merit.
The court finds that based upon a review of the facts and relevant case law, the defendant’s motion to modify probation to remove treatment at the January Center is denied.