In Re Earl B.
In Re Earl B.
Opinion of the Court
Opinion
The respondent, Earl B., appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, he claims that the sentencing court exceeded its statutory authority by imposing that portion of his agreed on sentence that banished him from New Haven County for forty-two months. Specifically, the respondent argues that the court, in accepting his plea agreement, exceeded its authority pursuant to General Statutes § 46b-140 (i)
The respondent and three co-conspirators carjacked a woman at gunpoint, forced her into the trunk of her car and drove to a secluded area where two of the co-conspirators raped and beat her nearly to death. The co-conspirators who committed the sexual assault were each tried as adults, convicted and sentenced to eighty-five years incarceration. See State v. Foreman, 288 Conn. 684, 690, 954 A.2d 135 (2008); State v. Sargeant, 288 Conn. 673, 678, 954 A.2d 839 (2008). As a result of those incidents, the respondent was charged with kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a, robbery in the first degree in violation of General Statutes § 53a-134, conspiracy to commit kidnapping in the first degree with a firearm in violation of General Statutes §§ 53a-92a and 53a-48, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134, sexual assault in the first degree in violation of General Statutes § 53a-70, assault in the first degree in violation of General Statutes § 53a-59, conspiracy to commit sexual assault in the first degree in violation of General Statutes §§ 53a-70 and 53a-48, and conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59. Being only thirteen years old when the crime was committed, the respondent could not be tried as an adult. The state negotiated a plea agreement with the respondent in which he pleaded guilty under the Alford doctrine
On September 23,2005, after the respondent had been convicted via the plea agreement as delinquent, he was committed, pursuant to an agreed on sentence, to the custody of the commissioner of children and families (commissioner) for a period not to exceed four years. Also, on that date, as part of the respondent’s agreed on sentence, the court issued a separate order for three and one-half years of banishment from New Haven County. The banishment order was set to expire on March 23, 2009. The court, also as part of the agreed upon sentence, ordered the department of children and families (department) to keep apprised the victim, the victim’s advocate and the state’s attorney’s office in Juvenile Court in New Haven of the respondent’s location if he was to be outside of the training school’s secured setting. The court noted that the state, in resolving the respondent’s disposition and coming to an agreed on sentence that included the banishment order, took into consideration many factors including the victim’s well-being and safety.
On April 2, 2008, the commissioner filed with the court a motion for review of the department’s permanency plan for the respondent.
On May 9,2008, the state
“The first element in the analysis pertains to the length of the challenged action. . . . The basis for this
Because the limits of a Juvenile Court’s authority are fixed by statute; see Dart v. Mecum, 19 Conn. Sup. 428, 432,116 A.2d 668 (1955); in addressing this first element of the Loisel test, we will examine applicable statutes governing the sentencing of juveniles in the circumstances present here. Cf. State v. Boyle, 287 Conn. 478, 487 n.3, 949 A.2d 460 (2008) (examination undertaken of statutes governing probationary periods in determining if action or effects not of inherently limited duration). The respondent was convicted of conspiracy to commit robbery in the first degree, a serious juvenile offense as defined by General Statutes (Rev. to 2003) § 46b-120 (12). Pursuant to General Statutes § 46b-141 (a) (2), the maximum commitment for a serious juvenile offense is four years. Also, pursuant to § 46b-140 (i), when a child is convicted of a serious juvenile offense “the court may set a minimum period of twelve months during which the child shall be placed in a residential facility operated by or under contract with said department . . . .” General Statutes § 46b-140 (i). Therefore, the plain language of the applicable statutes governing sentencing of serious juvenile offenders provides the court a window for the disposition of such a juvenile of between twelve months and four years.
The dissent, citing Earl B. v. Commissioner of Children & Families, supra, 288 Conn. 163, concludes that
The same reasoning does not apply to the present case. The banishment order was not a condition of the respondent’s four year commitment to the commissioner. It also was not a component of the treatment plan devised by the commissioner pursuant to § 17a-15 (a) or subject to review and modification every six
The appeal is dismissed.
In this opinion ALVORD, J., concurred.
General Statutes § 46b-140 (i) provides: “If the delinquent act for which the child is committed to the Department of Children and Families is a serious juvenile offense, the court may set a minimum period of twelve months during which the child shall be placed in a residential facility operated by or under contract with said department, as determined by the Commissioner of Children and Families. The setting of such minimum period shall be in the form of an order of the court included in the mittimus. For good cause shown in the form of an affidavit annexed thereto, the Department of Children and Families, the parent or guardian of the child or the child may petition the court for modification of any such order.”
See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
At the respondent’s dispositional hearing held on September 23, 2005, the victim addressed the court. “My life has been forcibly changed since the night of September 26, 2003. . . . My clock has been stopped since that night. There is not a day that I don’t think about what had happened to me that night. I’m often paralyzed by flashbacks. Everyday life reminds me of the attack. When I stop at [a] red light I get anxious because it reminds me of when I was screaming at—with guns pointed in my face. When I open the trunk, I remember the time that I was put in it, and I’m struck with the same feelings, thoughts and fears that I had the time I was in the trunk and asking for help to the police. ... I remember how they tried to snap my
General Statutes § 17a-15 provides in relevant part: “(a) The commissioner shall prepare and maintain a written plan for care, treatment and permanent placement of every child and youth under the commissioner’s supervision ....
“(b) The commissioner shall at least every six months, review the plan of each child and youth under the commissioner’s supervision for the purpose of determining whether such plan is appropriate and make any appropriate modifications to such plan.”
Meriden is located in New Haven County.
The motion provided that it was made by the state “acting through the [¡Juvenile [pjrosecutor.”
“Mootness implicates a court’s subject matter jurisdiction and, therefore, presents a question of law over which we exercise plenary review. . . . For a case to be justiciable, it is required, among other things, that there be an actual controversy between or among the parties to the dispute .... [T]he requirement of an actual controversy ... is premised upon the notion that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law. . . . Moreover, [a]n actual controversy must exist not only at the time the appeal is taken, but also throughout 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.” (Internal quotation marks omitted.) State v. Mapp, 118 Conn. App. 470, 475, 984 A.2d 108 (2009), cert. denied, 295 Conn. 903, 988 A.2d 879 (2010).
The respondent argues that the court exceeded its statutory authority in issuing the order of banishment. He argues that a banishment from a geographical location is beyond the power of a court when setting “a minimum period of twelve months during which the child shall be placed in a residential facility operated by or under contract with said department . . . .” General Statutes § 46b-140 (i). Moreover, he contends that this circumstance must be considered in analyzing the first element of the Loisel test. We disagree. Whether the court exceeded its statutory authority in issuing the banishment order in that it restricted the respondent from New Haven County has no bearing on the determination of whether “there exists a ‘functionally insurmountable time [constraint]’ Dutkiewicz v. Dutkiewicz, supra, 289 Conn. 367; or “the challenged action had an intrinsically limited lifespan.” Loisel v. Rowe, supra, 233 Conn. 383.
After the appeal was filed in Earl B., the department released him from the training school and transferred him to a residential treatment program in Pennsylvania. Earl B. v. Commissioner of Children & Families, supra, 288 Conn. 169.
Practice Book § 43-22 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”
We note that had the respondent challenged the validity of his banishment at the same time he challenged the conditions of his commitment; see Earl B. v. Commissioner of Children & Families, supra, 288 Conn. 163; his claim would likely not have become moot because Earl B. was decided on July 29, 2008, eight months before the banishment order expired.
Additionally, the forty-two month banishment order at issue in this case was more than twice as long as the eighteen month commitments in In re William D., 284 Conn. 305, 308, 933 A.2d 1147 (2007), and In re Steven M., supra, 264 Conn. 752. Further, the appeals in those cases became moot because the respondents in those cases became eighteen years of age during the pendency of their appeals and, as a result, were no longer subject to the jurisdiction of the department. See In re William D., supra, 309 n.5; In re Steven M., supra, 754. In contrast, the respondent in this case became eighteen years of age before filing his appeal; neither party argues that the enforcement of the banishment order was affected by his attaining the age of majority.
Although under the Loisel test an individual must meet each prong to satisfy its requirements, given the unique facts and circumstances of this case, we address the dissent’s analysis of the second prong of the test in its determination that the banishment order here was capable of repetition yet evades review. That prong requires that “there must be a reasonable likelihood that the question presented in the pending case will arise again
The dissent bases the conclusion that the order meets the first requirement under the second prong “not by reference to any anecdotal evidence of a raft of cases in which banishment orders have been issued, but rather on the apparent maintenance by the judicial branch of an outdated form which appears to contemplate the issuance of such an order.” That form, JD-JM-16 Rev. 9-2002, indicates that a child may be “[pjlaced out of said child’s . . . town of residence” for a period of time. Initially, we note that nowhere on the form does it state that such placement requires the exclusion of the child from his or her town of residence for the duration of the placement. Banishment, by its very nature, contemplates the exclusion of the individual banished from an area for a specified time period, as evidenced by the order in this case. See Black’s Law Dictionary (6th Ed. 1990) (“Banishment. A punishment inflicted upon criminals, by compelling them to leave a country for a specified period of time, or for life.”).
Moreover, the dissent’s assertion that the “continuing use of this outdated form provides an adequate basis for [it] to conclude that there is a reasonable likelihood that the legal efficacy of banishment orders in juvenile delinquency matters will likely arise in the future,” is undermined by the dearth of such juvenile cases both cited to by the dissent and found in our research. The dissent cites only to the docket from one unnamed case in which a trial judge issued a banishment order, as well as an unpublished trial court opinion from 1999 in which the court was confronted with a banishment order. The latter case concerned an adult habeas trial that involved a condition of probation that the respondent leave Connecticut and never return. “Loisel does not provide an exception to the mootness doctrine when it is merely possible that an issue could recur, but states instead that ‘there must be a reasonable likelihood that the question presented in the pending case will arise again in the future’ . . . .” (Citation omitted.) Carmona v. Commissioner of Correction, 110 Conn. App. 194, 199, 954 A2d 265 (2008). We conclude that the trial court’s use of JD-JM-16 Rev. 9-2002, that form’s continued use by our courts and the cases cited by the dissent fail to establish a reasonable likelihood that a banishment order such as the one at issue here will arise again in the future. Therefore, the second prong of Loisel is not met.
Dissenting Opinion
dissenting. Although I agree with the majority that this appeal is moot, I disagree with the majority’s conclusion that the issues raised by the respondent, Earl B., on appeal are not likely to evade future review. Contrary to the majority, I believe that the issues are likely to evade review. I also believe that the issues are capable of repetition, that the respondent is an appropriate surrogate for similarly situated serious juvenile offenders and that the issue before us involves a matter of significant public importance. Therefore, in spite of the mootness of the appeal, I would reach the underlying substantive issue of whether the court improperly denied the respondent’s motion to correct an illegal sentence. In light of the statutory scheme for serious juvenile offenders, I would reject the respondent’s claim regarding the length of residential treatment ordered by the court. Based on my review of the statutory scheme pertaining to serious juvenile offenders, however, I do not believe that the court had the authority to issue a freestanding banishment order, excluding the respondent from New Haven County. Accordingly, I would reverse the court’s decision denying the respondent’s motion to correct an illegal sentence as to its banishment order and remand this matter with direction to grant the motion vacating the unauthorized banishment order.
The record in this matter reveals that the date of birth of the respondent is July 21,1990, that the offense underlying his guilty plea took place on September 26,
The statutory scheme applicable to juvenile matters is set forth in chapter 815t of the General Statutes. The respondent fit the definition of a serious juvenile offender as set forth in General Statutes § 46b-120 because the underlying offense resulting in his plea, conspiracy to commit robbery in the first degree, is a class B felony. The sentencing parameters for delinquents, including serious juvenile offenders, is set forth in General Statutes §§ 46b-140 and 46b-141. Section 46b-140 provides in relevant part: “(f) If the court further finds that its probation services or other services available to the court are not adequate for such child, the court shall commit such child to the Department of Children and Families in accordance with the provisions of section 46b-141. . . .” This statute continues: “(i) If the delinquent act for which the child is committed to the Department of Children and Families is a serious juvenile offense, the court may set a minimum period of twelve months during which the child shall be placed in a residential facility operated by or under contract with said department, as determined by the
In the case of a child committed to the department, as in this instance, there are additional statutory requirements regarding the length of commitment and the requirement for periodic reviews by the court. Section 46b-141 (a) provides, in relevant part, that commitment of a serious juvenile offender to the department may be for a period “up to a maximum of four years at the discretion of the court, unless extended as hereinafter provided.” This statute further provides in relevant part: “The court shall hold a permanency hearing in accordance with subsection (d) of this section for each child convicted as delinquent for a serious juvenile offense . . . within twelve months of commitment to the Department of Children and Families and every twelve months thereafter if the child remains committed to the Department of Children and Families. Such hearing may include the submission of a motion to the court by the commissioner to either (1) modify such commitment, or (2) extend the commitment beyond
With the exception of the banishment order, the court and the department appear to have followed this statutory scheme in sentencing the respondent and in his subsequent course while committed to the department. Rather than placing the respondent on probation, the court committed the respondent to the department. The record reveals, as well, that the department initially placed the respondent at the Connecticut Juvenile Training Center, and, thereafter, he was transferred to a residential juvenile facility in Pennsylvania. At a permanency plan hearing on May 7, 2008, when the respondent was approximately seventeen years and ten months of age and pursuant to § 46b-141, the department recommended that the respondent be permitted to visit his uncle’s home in Meriden, which is located within New Haven County. Incident to this hearing, the court granted the respondent’s motion to modify the banishment order. Thereafter, however, the state’s attorney’s office filed a motion for reconsideration in which it argued that the court could not modify the original disposition without providing the state and the victim notice and an opportunity to be heard. Within the same time period, the respondent filed a motion to dismiss the state’s motion on the basis of standing, and the respondent moved to correct an illegal sentence in which he alleged that the court’s original banishment order exceeded the court’s statutory authority. In response, the court by memorandum of decision filed November 6, 2008, granted the respondent’s motion to dismiss on the ground that the state had no standing during a permanency plan hearing, but the court also denied the respondent’s motion to correct an illegal sentence.
Taking the Loisel requirements in reverse order, the last is the easiest to resolve, as our Supreme Court has stated that issues that implicate the rights of juveniles adjudicated as delinquent are of public importance. Earl B. v. Commissioner of Children & Families, 288 Conn. 163, 172, 952 A.2d 32 (2008).
Whether the issue is likely to evade review is, I recognize, a closer question. It is on this basis that the majority dismisses the appeal. Our Supreme Court has
In the present case, the provision of the statute regarding the placement of serious juvenile offenders requires a permanency review within twelve months and every twelve months thereafter. See General Statutes § 46b-141 (c). Thus, even though the order at hand purported to be for a period of forty-two months, it was subject to judicial review at a permanency placement hearing within twelve months of commitment, a shorter
Having reached the conclusion that the court’s order under scrutiny is capable of repetition, likely to evade review, involves significant issues of public policy and that the respondent is an apt surrogate for similarly situated individuals, I would assess the substance of the respondent’s claims. There are two. The respondent claims that, at sentencing, the court improperly committed him to the Connecticut Juvenile Training Center for a period not to exceed four years, a term greater than allowed by statute. I do not agree. The pertinent statute provides in relevant part: “If the delinquent act for which the child is committed to the Department of Children and Families is a serious juvenile offense, the court may set a minimum period of twelve months during which the child shall be placed in a residential facility operated by or under contract with said department, as determined by the Commissioner of Children
The respondent argues that this statutory language limits the period of time a child may be committed to a residential facility to twelve months. His argument is supported neither by the language of the statute nor the statute’s legislative history. As to the language, if the authorized time period is limited to twelve months, there would be no need for the term “minimum period” to be employed in the statute. Rather, the statute could simply give the court authority to commit a child to a period of twelve months. This view is bolstered by the legislative history, which reveals that, as part of revamping our juvenile justice system and creating a new residential facility in 1999, the General Assembly enacted this change in order to give the court the authority to set a minimum time of required residential treatment for serious juvenile offenders. Speaking in favor of the bill, one of its proponents, Representative Michael P. Lawlor, judiciary committee co-chairperson, commented: “And the point of the juvenile justice system in the first place is that these [kids’] lives are still salvageable. And if we’re going to spend the extraordinary amount of money which we spend per kid per year in a facility like Long Lane [School in Middletown],
The respondent also claims that the court’s order of banishment from New Haven County was beyond the court’s authority. I agree. Analysis of this claim requires a brief discussion of the antecedents to § 46b-140. Prior to October 1, 1995, § 46b-140 (e) (1), the predecessor to subsection (i), provided: “If the delinquent act for which the child is committed to the department of children and families is a serious juvenile offense, the court may set a period of time up to six months during which the department of children and families shall place such child out of his town of residence at the commencement of such child’s commitment.” General Statutes § 46b-140 (e) (1). Thus, the statute in effect prior to October 1, 1995, contemplated that a child could be excluded from his or her town of residence for a period up to six months following his or her commitment to the department. In 1995, the statute was amended; see Public Acts 1995, No. 95-225, § 22, effective October 1,1995; to delete reference to six months with the result that, as of October 1, 1995, the statute gave to the court the authority to order that a child committed to the department be excluded from his or her community for an indefinite period of time, presumably up to the full term of the child’s commitment.
Nowhere in § 46b-140 do I fmd authorization for the court to enter a freestanding order of banishment. Therefore, even if such an order was part of a plea agreement, it would constitute an illegal sentence if the court had no authority to issue that order just the same as if a court had sentenced a person to a period of time beyond the maximum prescribed by statute.
Although the court has the authority, pursuant to § 46b-140 (b) to place the child on probation and to establish conditions of probation, the respondent, in this instance, was committed to the department as an alternative to probation. Thus, we are not confronted in this instance with the question of whether banishment can be imposed as a reasonable condition of probation.
The respondent became eighteen years of age on July 21, 2008. As a consequence, he was no longer in the custody of the department on the
I note that Earl B. v. Commissioner of Children & Families, supra, 288 Conn. 163, involves the same juvenile offender as the case at hand, but raises different claims on appeal.
While this appeal was pending, the state filed a motion to dismiss on the basis of mootness. In return, the respondent furnished this court with the docket from one case in which a trial judge issued a banishment order. Additionally, there is an unpublished opinion, dated August 25, 1999, in which the trial court was confronted with a banishment order. Although the efficacy of the banishment order was not an issue for adjudication in that matter, the court noted that such orders elsewhere had generally been found to be unconstitutional. Burke v. Wegner, Superior Court, judicial district of New Haven, Docket Nos. CV-98-0413665S, CV-98-0414260 (August 25, 1999) (25 Conn. L. Rptr. 313).
In this instance, the fact that the trial court came to the conclusion that it did not have the authority to modify the banishment order is not an aid to determining whether such an order, made at sentencing, is likely to evade review. Such an order, if of any legal vitality, would by necessity have to be part of the court’s order of commitment because the court is limited by statute to either ordering certain services for a delinquent or committing the child to the department. See General Statutes § 46b-140 (f). The purpose of apermanency hearing is to determine whether the terms of a commitment to the department should be modified in the best interest of the child and the community. See General Statutes § 46b-141 (c). Our Supreme Court has opined that “the purpose of the comprehensive statutory treatment of ‘juvenile delinquents’ is clinical and rehabilitative, rather than retributive or punitive” and that “[t]he objective of juvenile court proceedings is to determin[e] the needs of the child and of society rather than adjudicate] criminal conduct.” (Internal quotation marks omitted.). In re Tyvonne M., 211 Conn. 151, 160, 558 A.2d 661 (1989). Although the heinous behavior giving rise to this respondent’s commitment stretches taut the notion of rehabilitation and concerns for a child’s interest, that is precisely the mandate that governs juvenile proceedings. It stands to reason, therefore, that at a permanency hearing for a child committed to the department, the court be in a position to modify all of the terms of a child’s disposition so as to fairly meet the needs of society and the juvenile offender.
Long Lane School, which was closed in 2003, was a juvenile facility that was maintained by the department. See In re Steven M., 68 Conn. App. 427, 429 n.4, 789 A.2d 1169 (2002), rev’d in part on other grounds, 264 Conn. 747, 826 A.2d 156 (2003).
That is not to suggest, however, that if a child is placed on probation, the court is powerless to make an order of exclusion as a condition of probation. In doing so, however, a court should be mindful that banishment has historically been viewed as a form of punishment. “Banishment was a weapon in the English legal arsenal for centuries . . . but it was always adjudged a harsh punishment even by men who were accustomed to brutality
Although the form utilized by the judicial branch purports to be current through 2002, it appears to me that the branch has not accommodated the form to the 1999 repeal and reenactment of § 46b-140.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.