STATE OF CONNECTICUT v. SHAKEE S. GALBERTH
(AC 38633)
Sheldon, Beach and Mihalakos, Js.
Syllabus
The defendant appealed to this court following the trial court’s denial of
his motion to dismiss his violation of probation charge. In November,
2002, the defendant pleaded guilty to the sale of a narcotic substance,
and was sentenced to fifteen years of imprisonment, execution sus-
pended after six years, followed by three years of probation. In April,
2005, he was granted parole with a maximum release date in September,
2007, but, in April, 2006, while on parole, the defendant was arrested
for additional narcotics offenses. He pleaded guilty to the 2006 charges,
and was incarcerated from October, 2006, to July, 2012. In December,
2012, the defendant was again arrested and charged with four additional
counts of the sale of a narcotic substance. In January, 2013, a warrant
was issued for the defendant’s arrest on the ground that he had violated
his probation, and, the following month, he was arrested and charged
with violation of probation. Subsequently, the defendant filed a motion
to dismiss the violation of probation charge on the ground that he was
not legally on probation in 2013 when the violation of probation warrant
was executed, based on his arrest on the 2012 narcotics charges. The
trial court denied the defendant’s motion to dismiss, and after the defen-
dant’s plea of nolo contendere to the charge of violation of probation,
this appeal followed. Held:
1. The defendant could not prevail on his claim that the trial court did not
have subject matter jurisdiction over the probation violation proceeding
because he was not on probation at the time the warrant for his arrest
for violation of probation was executed or at the time of the subsequent
hearing on his motion to dismiss: the court’s jurisdiction over the proba-
tion revocation proceeding was derived from the defendant’s original
criminal proceeding in 2002, and the probationary period imposed as
part of the 2002 sentence was at issue before the court, and therefore
the trial court had jurisdiction over the defendant’s subsequent violation
of probation charge.
2. The defendant could not prevail on his claim that the trial court improperly
denied his motion to dismiss the violation of probation charge because
he had completed the three year probationary portion of his 2002 sen-
tence prior to his arrest on the 2012 narcotics charges, which formed
the basis of the arrest warrant for the violation of probation: pursuant
to statute (§ 53a-31 [a]), a defendant cannot be released from imprison-
ment for the purposes of commencing his probationary period until he
is no longer in the custody of the Commissioner of Correction, and a
defendant on parole is not functionally released from imprisonment,
and because the defendant here was in the continuous custody of the
Commissioner of Correction for an extended period of time due to his
incarceration for additional narcotics offenses committed in 2006 while
he was on parole, the defendant did not commence his probation until
he was released from custody in July, 2012, and, therefore, he did not
complete the probationary portion of his 2002 sentence prior to January,
2013, when the arrest warrant for the violation of probation was issued.
Argued May 25—officially released August 29, 2017
Procedural History
Information charging the defendant with violation of
probation, brought to the Superior Court in the judicial
district of Fairfield, geographical area number two,
where the court, Cradle, J., denied the defendant’s
motion to dismiss; thereafter, the defendant was pre-
sented to the court on a conditional plea of nolo conten-
dere; judgment of guilty in accordance with the plea,
from which the defendant appealed to this court.
Affirmed.
Edward G. McAnaney, assigned counsel, for the
appellant (defendant).
Harry Weller, senior assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, Jonathan M. Sousa, former special deputy assis-
tant state’s attorney, and Marc R. Durso, senior
assistant state’s attorney, for the appellee (state).
Opinion
MIHALAKOS, J. The defendant, Shakee S. Galberth,
appeals following the trial court’s denial of his motion
to dismiss his violation of probation charge. On appeal,
the defendant claims that the trial court (1) did not have
subject matter jurisdiction over the probation violation
proceeding, and (2) improperly denied his motion to
dismiss because his probationary period had expired.
We disagree with the defendant and, accordingly, affirm
the judgment of the trial court.
The following facts and procedural history are rele-
vant to our review. On November 20, 2002, the defen-
dant pleaded guilty to three counts of the sale of a
narcotic substance in violation of General Statutes
§ 21a-277 (a)1 and was sentenced to fifteen years of
imprisonment, execution suspended after six years, fol-
lowed by three years of probation (2002 sentence). On
April 29, 2005, he was granted parole with a maximum
release date of September 7, 2007.2 On April 18, 2006,
while on parole, the defendant was arrested for several
more narcotics offenses (2006 charges). He pleaded
guilty to the 2006 charges and was sentenced to an
additional eighty-one months of incarceration, to run
concurrently with the remainder of his 2002 sentence.
His probationary period from the 2002 sentence was
not addressed by the court. He was incarcerated from
October 2, 2006, to July 20, 2012. On July 24, 2012, he
signed the document containing the conditions of his
probation, and his probationary period began. Subse-
quently, on December 7, 2012, while on probation, the
defendant was arrested and charged with four counts
of the sale of a narcotic substance (2012 charges). On
January 29, 2013, the Office of Adult Probation, pursu-
ant to General Statutes § 53a-32,3 obtained a warrant
for the defendant’s arrest on the ground that he had
violated his probation. Thereafter, the defendant was
arrested and charged with violating his probation.
The defendant was arraigned on the December, 2012
charges on February 6, 2013, and on the violation of
probation charge on February 7, 2013. At his arraign-
ment on the violation of probation charge, a question
arose between the defendant and the state about
whether the defendant’s probation under the 2002 sen-
tence had terminated prior to his arrest on the 2012
charges. Thereafter, the defendant filed a motion to
dismiss the violation of probation charge on the ground
that he was not legally on probation at the time of
the execution of the violation of probation warrant on
January 29, 2013, which was based on the defendant’s
arrest on the 2012 narcotics charges. The defendant did
not challenge the trial court’s subject matter jurisdiction
at that time, and the trial court did not rule on jurisdic-
tional matters. Arguments were heard on November 4,
2013, and the trial court denied the motion to dismiss
in a written memorandum of decision. Subsequently,
the defendant entered a conditional plea of nolo conten-
dere on the violation of probation charge, reserving his
right to appeal from the denial of his motion to dismiss.
Upon agreement between the defendant and the state
that he would serve only one half of his remaining nine
years, the defendant was sentenced to four and one-
half years of imprisonment on July 3, 2014, to be served
concurrently with the sentence imposed for his 2012
narcotics charges. This appeal followed. Additional
facts will be set forth as necessary.
I
The defendant first claims that the trial court did
not have subject matter jurisdiction over the probation
violation proceeding because he was not on probation
at the time the warrant for his arrest for violation of
probation was executed or at the time of the hearing
on his motion to dismiss. Specifically, he argues that
his probationary period concluded no later than Novem-
ber 19, 2011, and therefore he was not on probation at
the time of the 2012 narcotics charges, which formed
the basis of his violation of probation. Accordingly, he
argues, the court lacked subject matter jurisdiction over
the probation violation proceeding. We disagree.
We first set forth our standard of review. ‘‘[B]ecause
[a] determination regarding a trial court’s subject matter
jurisdiction is a question of law, our review is plenary.’’
(Internal quotation marks omitted.) Arriaga v. Com-
missioner of Correction, 120 Conn. App. 258, 261, 990
A.2d 910 (2010), appeal dismissed, 303 Conn. 698, 36
A.3d 224 (2012). ‘‘Subject matter jurisdiction involves
the authority of a court to adjudicate the type of contro-
versy presented by the action before it. . . . A court
does not truly lack subject matter jurisdiction if it has
competence to entertain the action before it. . . . Once
it is determined that a tribunal has authority or compe-
tence to decide the class of cases to which the action
belongs, the issue of subject matter jurisdiction is
resolved in favor of entertaining the action. . . . It is
well established that, in determining whether a court
has subject matter jurisdiction, every presumption
favoring jurisdiction should be indulged.’’ (Citations
omitted; internal quotation marks omitted.) Amodio v.
Amodio, 247 Conn. 724, 727–28, 724 A.2d 1084 (1999).
‘‘Article fifth, § 1 of the Connecticut constitution pro-
claims that ‘[t]he powers and jurisdiction of the courts
shall be defined by law’ ’’; State v. Carey, 222 Conn.
299, 305, 610 A.2d 1147 (1992); and General Statutes
§ 51-164s provides in relevant part that ‘‘[t]he Superior
Court shall be the sole court of original jurisdiction for
all causes of action, except such actions over which
the courts of probate have original jurisdiction, as pro-
vided by statute. . . .’’ ‘‘Because [r]evocation is a con-
tinuing consequence of the original conviction from
which probation was granted . . . and the inherent
authority to convict and sentence a defendant flows
from the authority to adjudicate a criminal cause of
action, the subject matter jurisdiction over a probation
revocation proceeding derives from the original pre-
sentment of the information.’’ (Citation omitted; inter-
nal quotation marks omitted.) Id., 306.
In the present case, the trial court’s subject matter
jurisdiction derived from the defendant’s original crimi-
nal proceeding in 2002, in which he was convicted of
the sale of narcotics. As part of his 2002 sentence, a
probationary period was imposed, and it is this proba-
tionary period that is at issue. Therefore, the trial court
maintained subject matter jurisdiction over the defen-
dant’s subsequent violation of probation charge.
II
The defendant next claims that the trial court improp-
erly denied his motion to dismiss the violation of proba-
tion charge because his probationary period had
expired. Specifically, the defendant argues that he had
completed the probationary portion of his 2002 sen-
tence prior to his arrest on the 2012 charges, which
formed the basis of the arrest warrant for the violation
of probation, because his probation commenced follow-
ing his maximum release date of September 7, 2007, as
stipulated by the parties and after he was physically
released from prison, and terminated three years later,
on September 7, 2010. The state argues that, because
the defendant was charged in 2006 while on parole
for the 2002 sentence, the start of his probation was
delayed. Specifically, the state claims that the defen-
dant’s probationary period was delayed until he was
released from incarceration on July 20, 2012. The trial
court found that the defendant began his probation on
the 2002 sentence after he was released from custody
on July 20, 2012. We agree with the trial court.
At the outset, we must distinguish between the effects
of parole and probation on the status of the defendant.
Pursuant to General Statutes § 54-125a (a),4 a defendant
who received a definite sentence or total effective sen-
tence of more than two years may be approved to be
released on parole at the discretion of the Board of
Pardons and Paroles to serve out the remainder of his
custodial sentence in the community. If released on
parole, the defendant is not considered released from
custody or imprisonment. Section 54-125a (g) indicates
that ‘‘[a]ny person released on parole under this section
shall remain in the custody of the Commissioner of
Correction and be subject to supervision by personnel
of the Department of Correction during such person’s
period of parole.’’ (Emphasis added.)
‘‘The rights of an individual on [parole] are unique
in that they lie somewhere between those of a [proba-
tioner] and those of an incarcerated inmate . . . .
[S]upervision of the [parolee] continues to be vested
in the [D]epartment of [C]orrection, as it is for someone
who is incarcerated. . . . Conversely, a probationer is
subject to judicial control and the court has the freedom
to modify or enlarge the conditions of probation if nec-
essary. . . . Clearly the situations of a prisoner on
[parole] and a person on probation are different. The
legislature has set out separate schemes of treatment
with different consequences of not complying with the
established conditions. It is in keeping with these
schemes that a violation of probation cannot occur until
the probationary period has begun.’’ (Citations omitted;
internal quotation marks omitted.) State v. Deptula, 34
Conn. App. 1, 10, 639 A.2d 1049 (1994). In the present
case, when the defendant was physically released from
prison in 2005, he was on parole. Therefore, he was still
under the custody of the Commissioner of Correction at
the time of the 2006 charges. Consequently, his proba-
tionary period did not begin until he was released from
the custody of the Commissioner of Correction on July
20, 2012.
Having resolved the distinctions between probation
and parole, we now set forth our standard of review.
‘‘A trial court may continue or revoke the sentence of
probation or conditional discharge or modify or enlarge
the conditions, and, if such sentence is revoked, require
the defendant to serve the sentence imposed or impose
any lesser sentence. . . . In making this determination,
the trial court is vested with broad discretion. . . .
[H]owever, an issue of law must be determined before
any question of discretion is reached. The court’s legal
conclusion that the defendant was subject to a charge of
violation of probation is subject to our plenary review.’’
(Internal quotation marks omitted.) State v. Outlaw, 60
Conn. App. 515, 522, 760 A.2d 140 (2000), aff’d, 256
Conn. 408, 772 A.2d 1122 (2001).
Pursuant to General Statutes § 53a-31 (a), ‘‘[a] period
of probation or conditional discharge commences on
the day it is imposed, unless the defendant is impris-
oned, in which case it commences on the day the defen-
dant is released from such imprisonment.’’5 (Emphasis
added.) As previously determined by this court, ‘‘the
term release as used in . . . § 53a-31 includes physical
release from custody . . . and . . . probation com-
mences by operation of law on the date of the actual
release from imprisonment.’’ (Internal quotation marks
omitted.) State v. Outlaw, supra, 60 Conn. App. 521.
‘‘Although probation may continue during a period of
incarceration, it does not commence pursuant to § 53a-
31 (a) unless the defendant is released from imprison-
ment.’’ Id., 523–24.6
Our holding in Outlaw is controlling in the present
case. In Outlaw, the defendant was sentenced to a
period of twenty years of incarceration, execution sus-
pended after ten years, followed by three years of proba-
tion. Id., 517. The defendant was continuously
incarcerated from July 9, 1985, to August 6, 1996. Id.,
518. During his incarceration he was convicted of three
additional offenses for which ‘‘unrelated consecutive
sentences were imposed on [him] before he completed
the incarceration portion of his [first] sentence.’’
(Emphasis omitted.) Id., 518, 523.7 His probation would
have begun on February 3, 1995, but he was incarcer-
ated until August 6, 1996, on the additional offenses.
Id., 518, 520 and n.7. Because the defendant in Outlaw
was not released from custody until August 6, 1996,
after all his sentences had been served, this court held
that the defendant did not begin his probationary period
for the 1985 sentence until he was released from incar-
ceration in 1996. Id., 523–24.
Similarly, in the present case, the defendant was con-
tinuously in the custody of the Commissioner of Correc-
tion, whether incarcerated or on parole, until his release
in 2012. He was granted parole on April 29, 2005, and
would have remained in the custody of the Commis-
sioner of Correction while on parole until his maximum
release date of September 7, 2007. Had he successfully
completed his parole, the defendant would have then
begun his three years of probation on September 7,
2007. His arrest in 2006, however, interrupted his parole
because he was subsequently convicted and incarcer-
ated on the 2006 charges. Although the defendant was
no longer physically incarcerated beginning on April
29, 2005, he was not released from the custody of the
Commissioner of Correction, and, therefore, his proba-
tion did not commence. To hold that the defendant
could serve the entirety of his probationary period while
incarcerated would lead to results that would under-
mine the purposes of and distinctions between the pro-
bation and parole statuses.8
Because a defendant cannot be released from impris-
onment for the purposes of commencing his probation-
ary period under § 53a-31 (a) until he is no longer in
the custody of the Commissioner of Correction, and
our case law has determined that one on parole has
not functionally been ‘‘released from imprisonment,’’
we conclude that the defendant did not commence his
probation until he was released from custody on July
20, 2012. Accordingly, the trial court properly deter-
mined that the defendant was on probation at the time
that the arrest warrant for the violation of probation
was issued on January 29, 2013, and properly denied
the motion to dismiss.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 21a-277 (a) provides in relevant part: ‘‘Any person
who manufactures, distributes, sells, prescribes, dispenses, compounds,
transports with the intent to sell or dispense, possesses with the intent to
sell or dispense, offers, gives or administers to another person any controlled
substance which is a hallucinogenic substance other than marijuana, or a
narcotic substance . . . shall be imprisoned not more than fifteen years
. . . .’’
2
The parties stipulated to a maximum release date of September 7, 2007,
taking into account the sentence credit that the defendant received for time
served while on bond and awaiting disposition of the 2002 case.
3
General Statutes § 53a-32 (a) provides in relevant part: ‘‘At any time
during the period of probation . . . the court or any judge thereof may
issue a warrant for the arrest of a defendant for violation of any of the
conditions of probation . . . .’’
4
General Statutes § 54-125a (a) provides in relevant part: ‘‘A person con-
victed of one or more crimes who . . . received a definite sentence or total
effective sentence of more than two years, and who has been confined
under such sentence or sentences for not less than one-half of the total
effective sentence . . . may be allowed to go at large on parole . . . if (A)
it appears from all available information . . . that there is a reasonable
probability that such inmate will live and remain at liberty without violating
the law, and (B) such release is not incompatible with the welfare of society.’’
5
The defendant’s reliance on § 53a-31 (b) is misplaced. General Statutes
§ 53a-31 (b) provides in relevant part: ‘‘The issuance of a warrant or notice
to appear . . . for violation pursuant to section 53a-32 shall interrupt the
period of the sentence until a final determination as to the violation has
been made by the court.’’ The defendant claims that the 2006 arrest did not
toll the running of his period of probation. This court has held that ‘‘[p]ursu-
ant to . . . § 53a-31 (b), the running of the probationary period is tolled
where the revocation is commenced pursuant to the provisions of . . .
§ 53a-32.’’ (Emphasis omitted.) State v. Egan, 9 Conn. App. 59, 73, 514 A.2d
394, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986). In the present case,
the issue is not whether the defendant’s probationary period was tolled by
his 2006 arrest, but rather whether the probationary period began to run in
the first place. Because the defendant’s probationary period did not com-
mence until he was released from imprisonment in 2012, § 53a-31 (b) is inap-
plicable.
6
See State v. Strickland, 39 Conn. App. 722, 727, 667 A.2d 1282 (1995)
(holding that it was possible for defendant to be concurrently in custody
and on probation as result of separate convictions), cert. denied, 235 Conn.
941, 669 A.2d 577 (1996). Those facts, however, are not present in this case.
7
It is not pertinent for the purposes of this analysis that the defendant’s
2006 sentence ran concurrent to his 2002 sentence, as opposed to running
consecutively as in the Outlaw case. This court’s analyses in Outlaw and
McFarland indicate that whether the defendant is in the custody of the
Commissioner of Correction is the key consideration in determining whether
the defendant has been released for the purposes of § 53a-31 (a). See State
v. Outlaw, supra, 60 Conn. App. 523 (‘‘[t]he [McFarland] decision’s rationale
is that the defendant is not in the custody of the commissioner of correction
under either circumstance’’); see also State v. McFarland, 36 Conn. App.
440, 448, 651 A.2d 285 (1994) (‘‘[w]e hold that the term release as used in . . .
§ 53a-31 includes physical release from custody . . . and that probation
commences by operation of law on the date of the actual release from
imprisonment’’), cert. denied, 232 Conn. 916, 655 A.2d 259 (1995).
8
See State v. McFarland, 36 Conn. App. 440, 446, 651 A.2d 285 (1994)
(‘‘Although penal statutes such as § 53a-31 et seq. are to be strictly construed
in favor of the accused, such construction should not exclude common
sense so that absurdity results and the evident design of the legislature is
frustrated. . . . If two constructions of a statute are possible, we will adopt
the one that makes the statute effective and workable, not the one leading
to difficult and bizarre results.’’ [Citation omitted.]), cert. denied, 232 Conn.
916, 655 A.2d 259 (1995).