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STATE OF CONNECTICUT v. JON SWEBILIUS
(AC 36924)
Alvord, Prescott and Schaller, Js.
Argued April 7—officially released July 7, 2015
(Appeal from Superior Court, judicial district of New
Haven at Meriden, Scarpellino, J. [judgment]; S. Moore,
J. [motion to dismiss])
Daniel M. Erwin, for the appellant (defendant).
Leon F. Dalbec, Jr., senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and James Dinnan, senior assistant
state’s attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Jon Swebilius, appeals
from the judgment of conviction, rendered following
his conditional plea of nolo contendere,1 of possession
of child pornography in the first degree in violation
of General Statutes § 53a-196d (a) (1).2 On appeal, the
defendant claims that the trial court improperly denied
his motion to dismiss because his prosecution was time
barred by the statute of limitations set forth in General
Statutes § 54-193 (b).3 He claims that the delay in execu-
tion of the warrant for his arrest was unreasonable
pursuant to State v. Crawford, 202 Conn. 443, 521 A.2d
1034 (1987). We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to the resolution of the defendant’s claim. On May
28, 2008, the Connecticut State Police executed a search
warrant at the Meriden Inn on room number 59, where
the defendant was residing. The search resulted in
police seizure of thirty-four computer related items,
which were transported to the state forensic laboratory
and submitted for forensic analysis. On April 2, 2013,
the police received a report containing the findings of
the forensic analysis. The report indicated that images
and videos appearing to depict child pornography had
been recovered from the items seized.4 On May 9, 2013,
police obtained a warrant for the defendant’s arrest for
possession of child pornography in the first degree in
violation of § 53a-196d. The charged offense had a five
year statute of limitations, expiring on May 28, 2013.5
The defendant testified that he became aware, at some
point after he believed the statute of limitations had
expired, that a warrant had been issued for his arrest.
He further testified that he had called the police and
‘‘told them that I discovered that I had been arrested
or that there was a warrant for me. And after conversa-
tion, I said I will be in, I don’t remember how many
days later, and that I would turn myself in, which I did.’’
The defendant turned himself into the Connecticut State
Police on June 10, 2013.
By motion filed October 10, 2013, the defendant
sought to dismiss the information, claiming that the
statute of limitations had not been tolled because the
state had failed to exercise due diligence in serving the
warrant. In his motion, he argued that he had been
available and had not taken elusive action during the
time in which the warrant should have been served,
and that nothing indicated that the state had made any
meaningful effort to serve the warrant.
On February 10, 2014, following an evidentiary hear-
ing, the court, S. Moore, J., denied the defendant’s
motion to dismiss. In its memorandum of decision, the
court found that the defendant, who lived at a home in
Meriden that he had purchased in 2008, had not been
elusive and had made no attempt to flee the state. The
court stated that ‘‘[t]herefore, the crux of the matter
lies in a consideration of the reasonableness of the State
Police’s actions in executing the warrant . . . .’’ The
court found that the arrest warrant had been issued on
May 9, 2013 and was served on June 10, 2013, resulting
in a thirty-one day period between issuance and ser-
vice.6 The court further found that the State Police had
made no attempt to serve the warrant before June 10,
2013, and only had served the warrant on June 10 ‘‘upon
the defendant surrendering himself at the police bar-
racks.’’ After discussing the relevant case law, the court
concluded that the time period of thirty-one days
between the issuance and the service of the warrant was
not unreasonable. The court noted that the standard
requires police to act reasonably and with due diligence
in serving the warrant, not that they ‘‘act immediately
upon receipt of a warrant.’’
Following the denial of his motion to dismiss, the
defendant, on May 19, 2014, was sentenced by the court,
Scarpellino, J., to ten years incarceration, execution
suspended after the mandatory minimum of five years,
and ten years of probation with conditions including
registration as a sex offender. This appeal followed.
Additional facts will be set forth as necessary.
The defendant claims that the court improperly
denied his motion to dismiss because his prosecution
was time barred by the statute of limitations set forth
in § 54-193 (b). The defendant argues that although the
arrest warrant was issued within the applicable limita-
tions period, the statute of limitations was not tolled
because the arrest warrant was executed with unrea-
sonable delay after the limitations period had expired.
We first set forth the applicable standard of review.
‘‘A motion to dismiss . . . properly attacks the jurisdic-
tion of the court, essentially asserting that the plaintiff
cannot as a matter of law and fact state a cause of
action that should be heard by the court. . . . [O]ur
review of the trial court’s ultimate legal conclusion and
resulting [denial] of the motion to dismiss will be de
novo. . . . Factual findings underlying the court’s deci-
sion, however, will not be disturbed unless they are
clearly erroneous. . . . The applicable standard of
review for the denial of a motion to dismiss, therefore,
generally turns on whether the appellant seeks to chal-
lenge the legal conclusions of the trial court or its fac-
tual determinations.’’ (Internal quotation marks
omitted.) State v. Derks, 155 Conn. App. 87, 91, 108 A.3d
1157, cert. denied, 315 Conn. 930, 110 A.3d 432 (2015).
We next turn to the relevant law. A statute of limita-
tions claim involving a delay in service of an arrest
warrant is analyzed pursuant to the framework set forth
by our Supreme Court in State v. Crawford, supra, 202
Conn. 443. In Crawford, the court stated that ‘‘[w]hen
an arrest warrant has been issued, and the prosecutorial
official has promptly delivered it to a proper officer for
service, he has done all he can under our existing law
to initiate prosecution and to set in motion the machin-
ery that will provide notice to the accused of the charges
against him. When the prosecutorial authority has done
everything possible within the period of limitation to
evidence and effectuate an intent to prosecute, the stat-
ute of limitations is tolled. . . . An accused should not
be rewarded, absent evidence of a lack of due diligence
on the part of the officer charged with executing the
warrant, for managing to avoid apprehension to a point
in time beyond the period of limitation.
‘‘We recognize, however, that some limit as to when
an arrest warrant must be executed after its issuance
is necessary in order to prevent the disadvantages to
an accused attending stale prosecutions, a primary pur-
pose of statutes of limitation. . . . Therefore, we
adopt, what we think is the sensible approach of the
[M]odel [P]enal [C]ode, and conclude that, in order to
toll the statute of limitations, an arrest warrant, when
issued within the time limitations of § 54-193 (b), must
be executed without unreasonable delay. . . . We do
not adopt a per se approach as to what period of time
to execute an arrest warrant is reasonable. A reasonable
period of time is a question of fact that will depend on
the circumstances of each case. If the facts indicate
that an accused consciously eluded the authorities, or
for other reasons was difficult to apprehend, these fac-
tors will be considered in determining what time is
reasonable. If, on the other hand, the accused did not
relocate or take evasive action to avoid apprehension,
failure to execute an arrest warrant for even a short
period of time might be unreasonable and fail to toll
the statute of limitations.’’ (Citations omitted; footnote
omitted.) Id., 450–51.
‘‘A statute of limitations claim is an affirmative
defense for which the burden rests with the defendant
to prove the elements of the defense by a preponder-
ance of the evidence.’’ State v. Woodtke, 130 Conn. App.
734, 740, 25 A.3d 699 (2011). ‘‘[O]nce a defendant puts
forth evidence to suggest that [he] was not elusive, was
available and was readily approachable, [however] the
burden shifts to the state to prove that the delay in
executing the warrant was not unreasonable.’’ State v.
Soldi, 92 Conn. App. 849, 857, 887 A.2d 436, cert. denied,
277 Conn. 913, 895 A.2d 792 (2006).
In the present case, the court found that the defen-
dant had satisfied his burden of demonstrating that he
was not elusive, was available and was readily
approachable, and the state does not challenge this
finding on appeal. Thus, the issue on appeal is whether
the state satisfied its burden of demonstrating that the
period of thirty-one days between issuance and service
of the warrant was reasonable.
Since our Supreme Court’s decision in Crawford, our
courts have consistently applied the unreasonable delay
standard to determine whether police exercised due
diligence in serving an arrest warrant, thereby satisfying
the statute of limitations, even though execution of the
warrant occurred beyond the date the limitations period
was to expire. Recently, in State v. Woodtke, supra, 130
Conn. App. 736, this court considered a period of two
years and ten months between issuance and service
of an arrest warrant for a misdemeanor offense. After
concluding that the defendant had satisfied her burden
of demonstrating that she had not been elusive, this
court considered whether the state had subsequently
met its burden to demonstrate that the delay was rea-
sonable. Id., 741. In concluding that it had not been
reasonable, the court took into account the police
department’s efforts to locate individuals with outstand-
ing warrants, which primarily consisted of checking
names during traffic stops and unrelated criminal inves-
tigations. Id., 744. The court held that despite ‘‘pressing
matters that [may have] demanded [the police depart-
ment’s] immediate attention during the period of delay,
this alone will not fulfill the state’s burden of showing
reasonableness of delay and due diligence.’’ Id. Simi-
larly, in State v. Soldi, supra, 92 Conn. App. 852, this
court considered a period of approximately five years
between issuance and service of a violation of probation
warrant. After concluding that the defendant had met
her burden of demonstrating that she had not been
elusive, the court held that the state had failed to meet
its burden, as it had offered no evidence to demonstrate
that the five year delay was reasonable.7 Id., 860.
In addition to Woodtke and Soldi, our courts have
considered other cases involving extended delays
amounting to years between the issuance and service
of warrants. Most recently, in State v. Derks, supra, 155
Conn. App. 89 n.2, this court considered a period of
approximately twelve years and eight months between
the issuance and service of the warrant. Despite the
lengthy delay, we concluded that the statute of limita-
tions had been satisfied because the defendant initially
had failed to meet his burden of demonstrating that he
had not been elusive due to the fact that he had abruptly
relocated to Colorado. Id., 94. Likewise, in Gonzalez
v. Commissioner of Correction, 122 Conn. App. 271,
285–86, 999 A.2d 781, cert. denied, 298 Conn. 913, 4
A.3d 831 (2010), the burden of proof never shifted to
the state to demonstrate that a more than five year
delay in the execution of the warrant was reasonable
where the petitioner had relocated to Puerto Rico
within days of learning of sexual abuse allegations
against him. Also, in Thompson v. Commissioner of
Correction, 91 Conn. App. 205, 213, 880 A.2d 965 (2005),
appeal dismissed, 280 Conn. 504, 909 A.2d 946 (2006),
this court considered a nine year delay between issu-
ance and execution of a warrant and determined that
the petitioner’s trial counsel had rendered ineffective
assistance by failing to file a motion to dismiss on
this ground.
Only on one occasion has this court been presented
with a time period as short as or shorter than the present
one. In State v. Kruelski, 41 Conn. App. 476, 487, 677
A.2d 951, cert. denied, 238 Conn. 903, 677 A.2d 1376
(1996), an arrest warrant was served upon the defen-
dant three days after its issuance and just one day
following the date upon which the statute of limitations
was set to expire. The court concluded ‘‘as a matter of
law, that this one day delay was not an unreasonable
delay vitiating the tolling of the statute of limitations.’’
Id. Notably absent from the majority opinion was a
discussion of the police department’s actions during
the three day period.8
The defendant argues in the present case that the
court improperly made a per se determination of rea-
sonableness in that it relied solely on the length of the
delay.9 He claims that this approach violated Crawford,
in which our Supreme Court declined to ‘‘adopt a per
se approach as to what period of time to execute an
arrest warrant is reasonable’’ and instead held that ‘‘[a]
reasonable period of time is a question of fact that will
depend on the circumstances of each case.’’ State v.
Crawford, supra, 202 Conn. 451.
In evaluating unreasonable delay and due diligence,
our courts have considered the state police’s actions
in serving the warrant. See, e.g., State v. Woodtke, supra,
130 Conn. App. 744. Each of the cases, however, have
involved much longer periods of delay, with the excep-
tion of State v. Kruelski, supra, 41 Conn. App. 487, in
which this court concluded as a matter of law that
a one day delay was not unreasonable. Accordingly,
although we recognize that Crawford provides that the
‘‘failure to execute an arrest warrant for even a short
period of time might be unreasonable’’; State v. Craw-
ford, supra, 202 Conn. 451; we do not read that sentence
as informing our decision in the present case.
The facts of the present case compel an analysis
similar to that of the majority in Kruelski rather than
the remainder of the cases addressing extended delays
of years. In the present case, after issuance of the war-
rant, the state police took no affirmative action during
the ensuing thirty-one day period to serve the warrant
prior to the June 10, 2013 service upon the defendant
when he surrendered himself as he had arranged at
the state police headquarters. This period of inaction,
however, was so brief that it does not require justifica-
tion. Being that the delay was so short, evidence on
behalf of the state as to the police department’s actions
within this window was not required. Accordingly, we
conclude that the court properly determined that the
thirty-one day period between the issuance and service
of the warrant in the present case did not amount to
unreasonable delay and properly denied the defendant’s
motion to dismiss.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant’s plea was conditioned on his right to appeal from the
denial of his motion to dismiss in accordance with General Statutes § 54-94a.
2
General Statutes § 53a-196d (a) provides in relevant part: ‘‘A person is
guilty of possessing child pornography in the first degree when such person
knowingly possesses (1) fifty or more visual depictions of child pornogra-
phy . . . .’’
3
General Statutes § 54-193 (b) provides: ‘‘No person may be prosecuted
for any offense, other than an offense set forth in subsection (a) of this
section, for which the punishment is or may be imprisonment in excess of one
year, except within five years next after the offense has been committed.’’
4
In the arrest warrant affidavit, it was averred that 119 images and 30
videos appearing to depict child pornography had been recovered.
5
See footnote 3 of this opinion.
6
In his appellate brief, the defendant also represents the time period
between the issuance and service of the warrant as thirty-one days. Although
the state in its brief calculates the period as thirty-two days, neither party
raises a challenge to the trial court’s determination.
7
See also State v. Ali, 233 Conn. 403, 416, 660 A.2d 337 (1995) (defendant
was entitled to have the jury instructed on his affirmative defense on the
basis of the statute of limitations, where two years had passed between
issuance and execution of the arrest warrant).
8
Although the defendant argues that in Kruelski ‘‘there was sufficient
evidence in the record upon which to conclude the state carried its burden,’’
the defendant also recognizes that ‘‘the [Kruelski] majority mentioned no
other facts than [the time between issuance and service of the warrant] in
reversing the trial court’s dismissal . . . .’’ Although evidence was pro-
duced, the majority reached its conclusion as a matter of law. State v.
Kruelski, supra, 41 Conn. App. 487. Accordingly, we read Kruelski as provid-
ing support for the proposition that a time period may be so brief that
consideration of the police actions during such period is not required. We
also note that the central issue in Kruelski was whether the issuance of
the warrant or the delivery of the warrant to a proper officer for service
constitutes the triggering event to determine whether the statute of limita-
tions was tolled. Id.
9
The defendant argues in his appellate brief that this court should not
consider one of the factual findings, which originated in the defendant’s
motion to dismiss, that the trial court included in its memorandum of deci-
sion as a fact upon which the parties agree. The challenged portion of the
court’s memorandum states that ‘‘on May 31, 2013, [during] a telephone call,
counsel for the defendant was informed that a warrant for the defendant’s
arrest had been issued.’’ The trial court also referenced the telephone call
by noting later in its memorandum of decision that the time period between
issuance and service of the warrant ‘‘could be seen’’ as little as twenty-
one days because the police inaction after the telephone call ‘‘might be
construed’’ as a courtesy to counsel to allow the defendant to turn himself
in on his own terms. (Emphasis added.) The court, however, clearly stated
that ‘‘[t]his court cannot find that a period of time as small as thirty-one
days would be considered unreasonable . . . .’’ Thus, although the court
referenced the twenty-one day period, it decided the case on the basis of
a thirty-one day period. We also reach our conclusion on the basis of a
thirty-one day period.
We note, however, as we did in the section of this opinion setting forth
the facts relevant to this appeal, that there was evidence presented at the
hearing, in the form of the defendant’s testimony, as to contact between
the defendant and the police prior to the service of the warrant. At the
hearing on the motion to dismiss, the defendant testified that at some point
after he believed the statute of limitations had lapsed, he made a phone
call to his attorney to inquire about return of the items seized by the police.
He testified that either during that phone call with his attorney or shortly
after he called the office, he learned that a warrant had been issued for his
arrest. He stated that he called the police and told them that he had learned
that a warrant had issued. He further testified: ‘‘And after conversation [with
the police], I said I will be in, I don’t remember how many days later, and
that I would turn myself in, which I did.’’