STATE v. JOSUE RODRIGUEZ, SC 19199

Judicial District of New Britain

†††† Criminal; Mootness; Whether, Despite Pending Habeas Action, Appellate Court Properly Deemed Challenge to Violation of Probation Finding Moot Where Defendant had Pleaded Guilty to Underlying Criminal Conduct.† The defendant was convicted of sale of narcotics, risk of injury to a child and burglary and sentenced to a suspended term of incarceration and five years probation.† The trial court found that the defendant had violated his probation by committing criminal mischief and by violating an order prohibiting him from contacting his former wife.† The court revoked his probation and sentenced him to a period of incarceration.† The defendant appealed, arguing that there was insufficient evidence for the court to have found that he violated his probation.† The state argued that the defendant's claim was moot because, on the day that the court found him in violation of his probation, he pleaded guilty to the underlying criminal conduct that formed the basis for the violation of probation finding.† The defendant argued that his claim was not moot because he had filed a pending habeas petition in which he sought relief from the underlying criminal convictions that formed the basis for the violation of probation finding.† The Appellate Court (130 Conn. App. 645) concluded that the defendantís claim that the evidence was insufficient to support a finding that he had violated his probation was moot and that the mootness question was controlled by State v. Milner, 130 Conn. App. 25-29 (2011), appeal dismissed, 310 Conn. 907 (2013).† In Milner, the Appellate Court held that when a defendant pleads guilty to, or is convicted of, a criminal charge that gave rise to a violation of probation finding and fails to pursue a timely direct appeal from that criminal conviction, there is no longer a live controversy over whether the defendant engaged in the criminal conduct at issue and any appeal from the violation of probation finding on that issue is moot.† Moreover, it held that a pending habeas action challenging the underlying conviction does not serve to revive the controversy such that mootness would be averted because a collateral attack on a conviction does not have the same effect as a direct appeal.† The Milner court determined that the significant consideration in determining whether an appeal from a violation of probation finding is moot due to a conviction on the underlying charge is whether the conviction is final, and it found that a conviction is final when no direct appeal is taken from the conviction or when any direct appeal is decided adversely to the defendant.† Here, the Appellate Court found that the defendant's challenge to the violation of probation finding was moot for the reasons set forth in Milner.† The Supreme Court granted the defendant certification to appeal and will decide whether the Appellate Court properly found that, despite the defendantís pending habeas action, his challenge to the violation of probation finding was rendered moot when he pleaded guilty to the underlying criminal conduct.†