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STATE OF CONNECTICUT v. TYRONE
LAWRENCE KELLEY
(SC 19694)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa,
Robinson and D’Auria, Js.*
Syllabus
Pursuant to statute (§ 53a-31 [b]), ‘‘[t]he issuance of a warrant’’ for a proba-
tion violation pursuant to the statute (§ 53a-32) governing such violations
‘‘shall interrupt the period of the sentence until a final determination
as to the violation has been made by the court.’’
The defendant, who previously had been convicted of a narcotics offense
and sentenced to imprisonment followed by a period of probation,
appealed from the judgment of the trial court, which found him in
violation of his probation on the basis of his subsequent arrest for various
crimes. The defendant’s five year period of probation commenced after
his release from incarceration in 2008, and one of the conditions of
probation required that he not violate the criminal law of any state. In
October, 2009, the defendant was arrested and charged with various
drug offenses, and an arrest warrant was issued shortly thereafter in
December, 2009, for his alleged violation of probation. In 2011, while
the probation violation charge was pending, the defendant again was
arrested for his alleged commission of a robbery. The probation violation
charge was tried with the robbery charge in 2014, more than four years
after his arrest for violating probation and about eight months after his
five year term of probation was originally scheduled to expire. After
finding that the defendant had violated the conditions of his probation,
the trial court rendered judgment revoking his probation and sentencing
him to additional incarceration. On appeal to the Appellate Court, the
defendant claimed, inter alia, that the trial court lacked subject matter
jurisdiction to revoke his probation because it did not resolve the proba-
tion violation charge until after his original probation term was sched-
uled to expire. The Appellate Court concluded that the issuance of the
arrest warrant for the defendant’s violation of probation interrupted the
running of the defendant’s probation term pursuant to § 53a-31 (b) until
the trial court resolved the probation violation charge and that the trial
court thus had jurisdiction to revoke the defendant’s probation. The
defendant, on the granting of certification, appealed to this court. Held
that the Appellate Court correctly determined that the trial court had
subject matter jurisdiction when it revoked the defendant’s probation:
in accordance with the plain meaning of the text of § 53a-31 (b), the
issuance of the warrant for the defendant’s arrest for his probation
violation in 2009 triggered the interruption of the running of his probation
term until the trial court resolved the probation violation charge in 2014,
and, accordingly, the defendant’s five year probation term did not expire
in 2013, when it was originally scheduled to expire, and the trial court did
not lose jurisdiction to conduct a hearing and to revoke the defendant’s
probation in 2014; moreover, the defendant could not prevail on his
claim that the trial court’s failure to comply with the language in § 53a-
32 (c) providing that, unless good cause is shown, a probation violation
charge shall be disposed of or scheduled for a hearing not later than
120 days after the defendant is arraigned on such a charge meant that
the defendant’s probation term was not interrupted by the issuance of
the warrant for the defendant’s arrest, as the text of § 53a-31 (b) and
the legislative history of the 120 day limit in § 53a-32 (c) made it clear
that a failure to comply with the 120 day limit, even without a finding
of good cause, does not impact the interruption of a probation sentence
by the issuance of an arrest warrant under § 53a-31 (b).
Argued March 29—officially released September 5, 2017
Procedural History
Information charging the defendant with violation of
probation, brought to the Superior Court in the judicial
district of New Haven and tried to the court, Vitale,
J.; judgment revoking the defendant’s probation, from
which the defendant appealed to the Appellate Court,
Gruendel, Alvord and West, Js., which affirmed the trial
court’s judgment, and the defendant, on the granting
of certification, appealed to this court. Affirmed.
Robert E. Byron, assigned counsel, for the appel-
lant (defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Michael Dearington, former
state’s attorney, Maxine V. Wilensky, senior assistant
state’s attorney, and Lisamaria Proscino, former spe-
cial deputy assistant state’s attorney, for the appellee
(state).
Opinion
D’AURIA, J. In this certified appeal, we address
whether a trial court has subject matter jurisdiction
over a probation violation charge that is adjudicated
after the defendant’s probation sentence was originally
scheduled to expire. The trial court in the present case
found that the defendant, Tyrone Lawrence Kelley, had
violated his probation conditions and revoked his pro-
bation, but it did so after his probation sentence was
originally set to expire. The defendant claimed before
the Appellate Court that the trial court lacked subject
matter jurisdiction when it decided the violation charge.
The Appellate Court disagreed and affirmed the trial
court’s judgment. State v. Kelley, 164 Conn. App. 232,
242, 244, 137 A.3d 822 (2016). We conclude that the
defendant’s probation sentence had not expired at the
time the trial court decided the violation charge
because, pursuant to General Statutes § 53a-31 (b),1 the
running of his sentence had been interrupted while the
violation charge was pending. We therefore affirm the
judgment of the Appellate Court.
The record reveals the following facts relevant to this
appeal. The defendant was originally sentenced for a
narcotics conviction to nine years of incarceration, exe-
cution suspended after four years, followed by five
years of probation.2 After he completed his period of
incarceration, his probation began on September 19,
2008, and his sentence was originally scheduled to
expire in September, 2013. His probation conditions
included that he not violate the criminal law of any
state. Thirteen months into his five year probation term,
in October, 2009, the defendant was arrested and
charged with a variety of drug related offenses. As a
result, an arrest warrant was issued in December, 2009,
and he was later arrested and charged with violating
his probation conditions.
While the violation charge remained pending, the
defendant was arrested again for robbery in August,
2011.3 The defendant’s violation charge was tried at the
same time as his robbery charge, in May, 2014—more
than four years after his arrest for violation of proba-
tion, and about eight months after his probation sen-
tence was originally scheduled to expire. The precise
reason for the delay in trying the violation charge is
unclear from the record, although it appears that, at
some point, the parties agreed to try the violation charge
together with the defendant’s robbery charge.4
After trial, the trial court found that the defendant
had violated his probation conditions and concluded
that further probation would serve no beneficial pur-
pose. The trial court therefore rendered judgment
revoking the defendant’s probation and sentencing him
to the remaining five years of incarceration that were
suspended as part of his original sentence.
The defendant appealed from the judgment of the
trial court to the Appellate Court, claiming for the first
time that the trial court lacked subject matter jurisdic-
tion to revoke his probation.5 State v. Kelley, supra, 164
Conn. App. 236. He argued that the trial court did not
have jurisdiction because it did not resolve the violation
charge until after his original probation term was sched-
uled to expire. See id. The Appellate Court disagreed
that the sentence had expired. See id., 238. Consistent
with its prior cases, the Appellate Court concluded that,
pursuant to § 53a-31 (b), the issuance of a warrant for
the probation violation interrupted the running of the
probation sentence until the violation charge was adju-
dicated.6 See id., 237–38. The Appellate Court therefore
concluded that the defendant’s probation sentence had
not expired when the trial court decided the violation
charge and that the trial court therefore had subject
matter jurisdiction over the probation revocation pro-
ceeding. See id., 238, 242.
We granted certification to address the following
question: ‘‘Did the Appellate Court properly determine
that the trial court had subject matter jurisdiction over
the defendant’s violation of probation proceeding?’’
State v. Kelley, 321 Conn. 915, 136 A.3d 646 (2016).
Applying plenary review; see, e.g., State v. Fowlkes, 283
Conn. 735, 738, 930 A.2d 644 (2007); we agree with the
Appellate Court that the trial court had subject matter
jurisdiction when it revoked the defendant’s probation.
Even if we assume, as the defendant urges, that a trial
court loses jurisdiction over a violation of probation
proceeding once the sentence expires, we nevertheless
conclude that the defendant’s probation sentence in the
present case had not yet expired when the trial court
revoked his probation.7
‘‘Probation is the product of statute.’’ State v. Smith,
207 Conn. 152, 167, 540 A.2d 679 (1988). To determine
whether the defendant’s probation expired before his
revocation trial, we therefore look to the relevant proba-
tion statutes, mindful of the plain meaning rule codified
at General Statutes § 1-2z.
The statutes governing probation establish that the
timely issuance of an arrest warrant for a probation
violation interrupts the running of the sentence, and
the sentence remains interrupted until the court
resolves the violation charge. Specifically, under § 53a-
31 (a), when a defendant’s sentence of probation fol-
lows a period of incarceration, probation commences
on the day of the inmate’s release from incarceration
and generally continues until its scheduled expiration
under the terms of the original sentence imposed by
the trial court. The running of the probation sentence
may be ‘‘interrupt[ed],’’ however, under certain circum-
stances. General Statutes § 53a-31 (b). One such circum-
stance is when a probationer violates one of the
conditions of his probation and an arrest warrant is
issued for that violation under General Statutes § 53a-
32. In that circumstance, § 53a-32 (a) allows the proba-
tion officer to obtain an arrest warrant, which must be
obtained during the period of the defendant’s probation
sentence. Under § 53a-31 (b), the issuance of such a
warrant automatically triggers an ‘‘interrupt[ion]’’ of
the probation sentence, essentially tolling the sentence
until the violation charge is adjudicated. Section 53a-
31 (b) provides in relevant part that ‘‘[t]he issuance of
a warrant . . . 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 statute thus unambiguously provides that
the probation sentence is interrupted upon the timely
issuance of an arrest warrant, and the sentence remains
interrupted until the trial court resolves the violation
charge.
During the interruption, the defendant must comply
with the conditions of probation imposed by his original
sentence, even though he is not serving his probation
sentence while the violation charge is pending. General
Statutes § 53a-31 (c). At the violation hearing, if a viola-
tion of probation is established, the trial court has the
option of simply continuing the term of probation,
which would resume the running of the probation sen-
tence, or imposing other penalties, including a revoca-
tion of the defendant’s probation. General Statutes
§ 53a-32 (d).
In the present case, the defendant was released from
prison on September 19, 2008, and his probation com-
menced that same day. See General Statutes § 53a-31
(a). Given that the court originally sentenced him to five
years of probation, his probation would have expired
in September, 2013, as scheduled, if he had not been
arrested for any violations. In December, 2009, how-
ever, an arrest warrant was issued for his violation of
the probation condition prohibiting him from violating
the criminal law of any state. The defendant’s arrest
warrant was issued expressly for the defendant’s viola-
tion of § 53a-32. In accordance with the plain meaning
of § 53a-31 (b), the issuance of the warrant interrupted
the running of his sentence of probation after the defen-
dant had served just fifteen months of that sentence,
and it remained interrupted until the trial court resolved
the violation charge in May, 2014.
Given the valid interruption of the sentence from
December, 2009, until the trial court’s resolution of the
violation charge in May, 2014, the defendant’s probation
did not expire in September, 2013, as originally sched-
uled. In fact, more than three years still remained on his
probation sentence as of the resolution of the violation
charge in May, 2014. Because his probation had not
yet expired, the trial court did not lose subject matter
jurisdiction to conduct the probation violation hearing
and revoke the defendant’s probation in May, 2014.
Accordingly, the trial court’s revocation of probation
and institution of the defendant’s original suspended
sentence was proper, and we reject the defendant’s
argument that the trial court lacked subject matter juris-
diction over his probation violation proceeding.
The defendant agrees that § 53a-31 (b) allows for the
interruption of a probation sentence but nevertheless
argues that his probation sentence was not interrupted.
He contends that the interruption contemplated in
§ 53a-31 (b) applies only when the arrest warrant is
issued ‘‘pursuant to section 53a-32,’’ and § 53a-32 (c)
provides in relevant part that, ‘‘[u]nless good cause is
shown, a charge of violation of any of the conditions
of probation . . . shall be disposed of or scheduled for
a hearing not later than one hundred twenty days after
the defendant is arraigned on such charge.’’ The defen-
dant contends that, because the trial court did not com-
ply with the 120 day time limit, and otherwise did not
find good cause for delaying the hearing, the issuance
of the warrant was no longer pursuant to § 53a-32, and
his probation sentence was not interrupted under § 53a-
31 (b).8 We disagree.
The interruption under § 53a-31 (b) is triggered sim-
ply by the issuance of a warrant pursuant to § 53a-32,
regardless of how long it takes the trial court to resolve
the violation charge. See General Statutes § 53a-31 (b)
(‘‘[t]he issuance of a warrant . . . for violation pursu-
ant 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’’). Section 53a-31 (b) con-
tains no other conditions for triggering an interruption
of the sentence, and nothing in that section makes con-
tinued interruption contingent on compliance with the
120 day time limit in § 53a-32 (c). Although § 53a-32
contains numerous procedures for resolving a violation
charge, § 53a-31 (b) does not require compliance with
all of them to maintain the interruption of the defen-
dant’s sentence. Instead, by the terms of § 53a-31 (b),
the interruption commences when the warrant is
issued, and it continues until the trial court finally deter-
mines the violation charge, whenever that may be.
Whatever the consequence may be for failing to comply
with the 120 day time limit, it has no impact on the
interruption of the probation sentence.
Even if it were unclear whether the legislature
intended the 120 day limit in § 53a-32 (c) to impact the
interruption of the probation sentence, the legislative
history of the public act that established the 120 day
limit dispels any doubt about our conclusion.9
The 120 day limit was adopted as part of No. 08-102
of the 2008 Public Acts (P.A. 08-102), which amended
several of the probation statutes. The legislative history
surrounding P.A. 08-102, § 7, unequivocally demon-
strates that the legislature did not intend for a failure to
comply with the 120 day limit to carry any consequences
affecting the defendant’s probation sentence. During
the floor debate in the House of Representatives, Repre-
sentative Michael P. Lawlor explained the extent to
which noncompliance with the 120 day provision was
intended to have consequences. He stated, ‘‘this is basi-
cally a guideline, goal,’’ and, consequently, ‘‘there may
be circumstances . . . [that] require an extension of
time . . . .’’ (Emphasis added.) 51 H.R. Proc., Pt. 13,
2008 Sess., p. 4225. ‘‘There would be no right of the
defendant to have a hearing in [120] days under this
. . . .’’ (Emphasis added.) Id. ‘‘It is . . . advisory on
the court . . . .’’ (Emphasis added.) Id. He reiterated
that ‘‘[t]here may be circumstances [that] the court can
deal with on a case-by-case basis . . . [that require]
an extension of that period of time . . . .’’ Id., p. 4226.
One legislator, State Representative Arthur J. O’Neill,
asked directly about the consequences of a judge’s fail-
ure to dispose of the matter within 120 days: ‘‘[I]n the
event that a judge does not dispose of the matter within
120 days, and also at the same time fails to find good
cause for not disposing of it within that 120 days, is
there a penalty on anyone, and if so, what is it?’’ Id.
Representative Lawlor replied: ‘‘I guess the penalty is
. . . sooner or later the judge’s term is going to come
up for expiration, and [has] to come back before the
[l]egislature.’’ Id., p. 4227. ‘‘Individual judges are being
informed that this will be a part of their confirmation
process. If they are consistently late . . . then they will
be questioned on that extensively before the court.’’ Id.
‘‘So I think at the end of the day that is the real penalty.’’
Id., p. 4228.
The legislative history is thus devoid of any indication
that the legislature intended the 120 day limit to have
any consequences affecting the length of a defendant’s
probation.10 Trial judges should, of course, diligently
seek to comply with the time limitation or find on the
record good cause for delaying resolution of a violation
charge. We conclude, however, that exceeding the 120
day limit, even without a finding of good cause, does
not impact the interruption of a probation sentence
under § 53a-31 (b). We therefore reject the defendant’s
argument that a trial court’s failure to comply with this
time limit impacts the running of his probation
sentence.11
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
General Statutes § 53a-31 (b) provides in relevant part: ‘‘The issuance
of a warrant . . . 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. . . .’’
2
The defendant was convicted on one count of the sale of, or possession
with intent to sell, a hallucinogenic or narcotic substance, in violation of
General Statutes § 21a-277 (a).
3
The defendant was also arrested for robbery in June, 2013, and for home
invasion in October, 2013.
4
Although the defendant characterizes the delay as ‘‘unexplained,’’ it
appears he did not provide us with all of the trial court transcripts concerning
the violation charge, which might have revealed the cause of the delay.
Ordinarily, ‘‘[i]t is the responsibility of the appellant to provide an adequate
record for review.’’ Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646,
656 n.6, 954 A.2d 816 (2008), quoting Practice Book § 61-10 (a). The lack of
an explanation for the delay has no impact on our resolution of this appeal,
because, as we explain further in this opinion, the defendant cannot prevail
regardless of the reason for the delay.
5
Ordinarily, an unpreserved claim is unreviewable on appeal. The defen-
dant’s unpreserved claim was properly before the Appellate Court, however,
because it implicated subject matter jurisdiction, which may be challenged
at any time, including for the first time on appeal. See, e.g., State v. Velky,
263 Conn. 602, 605 n.4, 821 A.2d 752 (2003).
6
The Appellate Court has consistently concluded that, under § 53a-31 (b),
the issuance of an arrest warrant for a violation under General Statutes
§ 53a-32 essentially tolls the running of the sentence until the trial court
resolves the violation charge. See State v. Gibson, 114 Conn. App. 295, 318,
969 A.2d 784 (2009), rev’d in part on other grounds, 302 Conn. 653, 31 A.3d
346 (2011); State v. Johnson, 75 Conn. App. 643, 656–57, 817 A.2d 708 (2003);
State v. Klinger, 50 Conn. App. 216, 221–22, 718 A.2d 446 (1998); State v.
Yurch, 37 Conn. App. 72, 83, 654 A.2d 1246 (1995); State v. Egan, 9 Conn.
App. 59, 73, 514 A.2d 394 (1986); see also Black’s Law Dictionary (10th Ed.
2014) p. 1716 (defining verb ‘‘toll’’ as ‘‘to stop the running of; to abate’’). As
we explain in this opinion, we agree with the Appellate Court’s interpretation
of § 53a-31 (b).
7
The state contends that the issue in this case implicates the trial court’s
authority instead of its jurisdiction. See State v. Fowlkes, supra, 283 Conn.
746 (‘‘Although related, the court’s authority to act pursuant to a statute is
different from its subject matter jurisdiction. The power of the court to hear
and [to] determine, which is implicit in jurisdiction, is not to be confused
with the way in which that power must be exercised in order to comply
with the terms of the statute.’’ [Internal quotation marks omitted.]). Because
we conclude that the defendant cannot prevail even if the issue is one of
jurisdiction, we need not address this distinction.
8
The defendant’s argument differs somewhat from the argument he made
in the Appellate Court concerning the 120 day time limit and its impact on
the trial court’s subject matter jurisdiction. See State v. Kelley, supra, 164
Conn. App. 239–42. The state therefore argues that the defendant’s newly
cast argument is not properly preserved and that we should therefore decline
to address it. We conclude that, even if the defendant would ordinarily be
required to preserve these arguments by raising them in the trial court or
the Appellate Court, we must address them because they implicate the trial
court’s subject matter jurisdiction. See footnote 5 of this opinion.
9
The defendant suggests that, if § 53a-31 (b) is ambiguous about whether
a trial court must comply with the 120 day limit in § 53a-32 (c), then any
ambiguity should be resolved in the defendant’s favor under the rule of
lenity. We disagree. Although ‘‘[t]he touchstone of [the] rule of lenity is
statutory ambiguity,’’ it is also true that ‘‘courts do not apply the rule of
lenity unless a reasonable doubt persists about a statute’s intended scope
even after resort to the language and structure, legislative history, and
motivating policies of the statute.’’ (Emphasis in original; internal quotation
marks omitted.) State v. Lutters, 270 Conn. 198, 219, 853 A.2d 434 (2004).
As we explain in this opinion, we have no such doubt about the meaning
of the statutes at issue in the present case.
10
The defendant cites to State v. Kevalis, 313 Conn. 590,99 A.3d 196 (2014),
for the proposition that the revocation hearing ‘‘must’’ take place within
the 120 day timeframe. That case, however, focused on an accelerated
rehabilitation statute; see id., 600–601; and its cursory summary of § 53a-32
without any analysis of its provisions was dictum. See id., 602. Kevalis also
did not address the consequences, if any, of failing to comply with the 120
day time limit.
11
Because the defendant did not file all of the trial court transcripts
concerning the violation charge with this court; see footnote 4 of this opinion;
we do not know whether the trial court made a good cause finding on the
record in this case. Because we reject the defendant’s interpretation of
§§ 53a-31 (b) and 53a-32 (c), however, we do not consider the impact of an
inadequate record.