In re Juvenile Appeal (85-AB)

Shea, J.

This case arises out of an incident on January 17,1982, when a woman was abducted, raped and robbed by several youths in the North Haven area. The defendant was fifteen years old at the time of the offense and, therefore, a “child” whose offenses would ordinarily be treated as “juvenile matters.” General Statutes §§ 46b-120, 46b-121. The crimes of sexual assault in the first degree, kidnapping in the first degree, larceny in the second degree and robbery in the second degree resulting from the January 17,1982 incident were alleged as the basis for the charges of delinquency against the defendant. See General Statutes § 46b-145. An additional ground alleged was the defendant’s escape from custody at a juvenile detention facility in which he had been held prior to the incident. The court granted the motion of the state to transfer the case to the regular criminal docket pursuant to General Statutes § 46b-126.1 The defendant *305has appealed the transfer order, claiming error in the failure of the court to conduct a full evidentiary hearing to ascertain whether there was probable cause to believe that he had committed the offenses charged, one of the statutory prerequisites for such a transfer.2 *306We do not reach the issue raised because we have concluded that the transfer order appealed from was not a final judgment and that we, accordingly, lack jurisdiction.

In exercising its constitutional authority to define the jurisdiction of the courts, the legislature has generally limited this court to “[ajppeals from final judgments or actions of the superior court.” General Statutes §§ 51-197a, 52-263; see Conn. Const., amend. XX; Styles v. Tyler, 64 Conn. 432, 451-53, 30 A. 165 (1894); but see General Statutes § 52-265a; Laurel Park, Inc. v. Pac, 194 Conn. 677, 678-79 n.1, 485 A.2d 1272 (1984). “In a criminal case, the imposition of sentence is the final judgment of the court.” State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980). “Interlocutory rulings in criminal cases generally are not appeal-able.” State v. Spendolini, 189 Conn. 92, 93, 454 A.2d 720 (1983). Such rulings, if erroneous, may be the basis for relief only when an appeal is ultimately taken after final judgment has been rendered. Practice Book § 3000.

*307Since the prerequisite of imposition of sentence has not yet occurred, the transfer order in this case cannot be deemed a final judgment. State v. Parker, 194 Conn. 650, 652, 485 A.2d 139 (1984); State v. Grotton, supra, 293; State v. Moore, 158 Conn. 461, 463, 262 A.2d 166 (1969). The issue, therefore, is whether it falls within one of the narrowly defined exceptions to the general prohibition against appeals from interlocutory rulings. “An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983); State v. Bell, 179 Conn. 98, 99, 425 A.2d 574 (1979). The first alternative, termination of a separate and distinct proceeding, requires the order being appealed to be sever-able from the central cause to which it is related so that the main action can “proceed independent of the ancillary proceeding.” State v. Parker, supra, 654; Potter v. Appleby, 136 Conn. 641, 643, 73 A.2d 819 (1950). It is clear that the prosecution of the defendant could not go forward if we were to hold that the order transferring him from the juvenile to the criminal division of the Superior Court could properly be appealed. This order, therefore, fails to satisfy the first Curcio alternative for a “separate and distinct proceeding.”

The defendant relies principally upon the second Curcio alternative, claiming that the transfer order so concludes his statutory rights to treatment as a juvenile “that further proceedings cannot affect them.” He appears to recognize that, if the transfer order should ultimately be found erroneous upon appeal after sentence has been imposed, the case could be remanded for further proceedings in the juvenile division. He maintains, however, that the element of privacy afforded by a juvenile proceeding could not be restored *308by such a remand and also that incarceration of a juvenile in an adult prison while awaiting trial or pending appeal of a conviction as a nonjuvenile offender may result in irreparable harm.

Under circumstances similar to those presented here, initially we were persuaded to allow an appeal from the denial of an application for youthful offender treatment because of the deprivation of the statutory right to a private hearing that would be irreparably lost by the public trial held following denial of the application. State v. Bell, supra. Upon reconsideration, however, though we recognized that ‘‘[ojnce the defendant undergoes a public trial or is detained with the general jail population, his privacy cannot be restored by a subsequent private trial or by subsequent segregation detention,” we overruled our earlier decision, holding the denial of an application for youthful offender treatment not to be immediately appealable. State v. Longo, 192 Conn. 85, 91, 469 A.2d 1220 (1984). In the closely analogous situation where an application for accelerated rehabilitation is denied we have similarly dismissed an appeal from such an interlocutory order. State v. Spendolini, supra; see State v. Parker, supra. We have not viewed the youthful offender or the accelerated rehabilitation statutes, when applicable, as creating a “right not to be tried” that can be vindicated only by allowing interlocutory appeals from denials of applications for these special procedures. State v. Spendolini, supra, 96. Such a right has been recognized only where the right to protection against double jeopardy is involved, because that constitutional right not only protects against being twice punished but also “is a guarantee against being twice put to trial for the same offense.” (Emphasis in original.) Abney v. United States, 431 U.S. 651, 661, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977). Accordingly, we have entertained interlocutory appeals raising claims of infringement of the protection against dou*309ble jeopardy. State v. Aillon, 189 Conn. 416, 425, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983); State v. Seravalli, 189 Conn. 201, 206 n.6, 455 A.2d 852, cert. dismissed, 461 U.S. 920, 103 S. Ct. 2076, 77 L. Ed. 2d 291 (1983).

We have been disinclined, however, to extend the privilege of an interlocutory appeal in criminal cases beyond the double jeopardy circumstance. This reluctance stems principally from our concern that to allow such appeals would greatly delay the orderly progress of criminal prosecutions in the trial court, as vividly illustrated in the present instance where more than two years have elapsed while this appeal has been pending.3 “[T]he opportunity to appeal in such a situation might well serve the purpose of parties who desire for their own ends to postpone the final determination of the issues.” State v. Kemp, 124 Conn. 639, 647, 1 A.2d 761 (1938). It has been widely recognized that strict adherence to the final judgment rule is necessary in criminal cases because “the delays and disruptions attendant upon intermediate appeal are especially inimical to the effective and fair administration of the criminal law.” DiBella v. United States, 369 U.S. 121, 126, 82 S. Ct. 654, 7 L. Ed. 2d 614 (1962); see Abney v. United States, supra, 657; State v. Seravalli, supra, 204; State v. Powell, 186 Conn. 547, 551, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982). “The overarching principle involved in prosecution of crime is that justice be swift and sure. If the defendant is guilty then he should be brought to book and punished without delay and if he is innocent then the cloud of accusation should be removed as speedily as circumstances permit.” State v. Parker, supra, 656.

*310This concern for the expeditious disposition of criminal cases has unquestionably resulted in some diminution in the effectiveness of appellate remedies for infringements upon constitutional rights as well as statutory privileges. The fourth amendment protection against the use of unlawfully obtained evidence cannot be as fully implemented by reversal of a conviction on appeal following a trial as by suppressing such evidence before trial through an interlocutory appeal. This consideration has not induced any modification of the rule barring pretrial review in such cases. DiBella v. United States, supra, 131. Even where the claimed unconstitutional seizure could be wholly prevented by an interlocutory appeal we have adhered to the rule. State v. Grotton, supra, 293 (confining State v. Acquin, 177 Conn. 352, 416 A.2d 1209 (1979), “to its facts”). Nor have we deviated despite our realization that the protection afforded youthful offenders against publicity4 and confinement with older prisoners5 cannot be fully *311restored by our decree of further proceedings after a successful appeal from a conviction following an erroneous denial of an application pursuant to the statute. State v. Longo, supra, 91. Vindication at the appellate level can seldom regain all that has been lost by an erroneous determination of a cause in the trial court. This recognition of the imperfection of appellate remedies is inherent in the formulation of the second Curcio alternative for allowing an interlocutory appeal: “where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” (Emphasis added.) State v. Curcio, supra, 31. Certainly a remand setting aside the conviction of a person who *312is determined upon appeal to have been entitled to youthful offender or accelerated rehabilitation treatment does affect the rights of the parties, though it cannot wholly dissipate prior publicity or other harms which would not have been suffered if the erroneous ruling had not occurred. The additional effectiveness of the appellate remedy in implementing those rights which might be gained by allowing interlocutory appeals is far outweighed in our judgment by the substantial delay in the resolution of criminal cases which would likely follow.

The practical considerations which have led us to dismiss interlocutory appeals from the denial of applications for youthful offender treatment apply with virtually equal force to the transfer of this defendant from the juvenile division to the regular criminal session of the Superior Court. Although the consequences of a public trial and incarceration with the general prison population may be more serious for a youth below the age of sixteen, ordinarily treated as a juvenile, as compared to one who is seventeen and eligible for treatment as a youthful offender, the statutory criteria for a transfer order require the trial court to focus directly upon this potential for harm by requiring findings that “(2) the child is not amenable to treatment in any institution or state agency or other available facility designed for the care and treatment of children to which said court may effect placement of such child which is suitable for his care or treatment and (3) the sophistication, maturity and previous adjudications of the juvenile are such that the facilities used for regular criminal sessions of the superior court provide a more effective setting for the disposition of the case and the institutions to which said court may sentence a defendant sixteen years of age or over are more suitable for the care and treatment of such child.” General *313Statutes § 46b-126.6 No such review of the background of a seventeen year old is statutorily required before he may be incarcerated with other prisoners, though segregation is mandated once his motion for an investigation of his eligibility to be adjudged a youthful offender has been granted. General Statutes § 54-76h. We are not persuaded that the potential for harm to juvenile offenders from erroneous transfer orders is so much greater in kind or degree than that which a seventeen year old, improperly denied the benefits of youthful offender treatment, may suffer in awaiting redress on appeal from a final judgment that a different conclusion from that reached in State v. Longo, supra, as to the availability of an interlocutory appeal is warranted. The problem of delay which such an appeal entails is no less significant in the disposition of cases involving those below age sixteen than those above that age.

The defendant points to a refinement of the second Curdo alternative recently articulated in Longo: “In order to satisfy the second prong of the Curdo test the defendant must do more than show that the trial court’s decision threatens him with irreparable harm. The defendant must show that that decision threatens to abrogate a right that he or she then holds.” (Emphasis in original.) Id., 91. It is claimed here that under the statutory structure pertaining to persons under sixteen years of age accused of crime the defendant “holds” a right to be prosecuted only as a juvenile and that this right persists until his juvenile status has been *314abrogated by a transfer order pursuant to § 46b-126. In this respect it must be conceded that the situation of a juvenile is distinguishable from that of a seventeen year old charged with a crime, whose status as a “youthful offender” entitled to the special procedures available under General Statutes §§ 54-76b through 54-76o cannot be recognized “until a court accords the defendant that status.” State v. Longo, supra, 92. This distinction, however, has little bearing upon where the balance should be struck in fashioning effective appellate remedies for infractions of statutory or constitutional rights, whether characterized as existing or merely potential. “It is important that criminal proceedings not be diverted from their orderly progress to trial and judgment by holding out to the litigants an invitation to speculate about what interlocutory rulings this court may entertain.” State v. Longo, supra, 94 (Peters, J., concurring.) The deleterious impact upon the efficient administration of our criminal justice system from making interlocutory appeals more widely available would in no way be mitigated by the circumstance that the particular right involved, under the pertinent statutory structure, required the exercise of court discretion for its disaffirmance rather than for its recognition. To the extent that we may have indicated otherwise in Longo, that portion of the opinion is accordingly modified.

The appeal is dismissed.

In this opinion Peters, C. J., and Dannehy, J., concurred.

“[General Statutes (Rev. to 1981)] Sec. 46b-126. (Formerly Sec. 51-307) CHILD CHARGED WITH A CLASS A FELONY OR SERIOUS JUVENILE OFFENSE TRANSFERRED TO REGULAR CRIMINAL DOCKET, WHEN, (a) The Court shall hold a transfer hearing to determine whether it is appropriate to transfer and may transfer from the docket for juvenile matters to the regular criminal docket of the superior court any child referred for the commission of a class *305A felony, or for any serious juvenile offense if such child has previously been adjudicated a delinquent for a serious juvenile offense, provided such child has attained the age of fourteen at the time the alleged delinquent act was committed. If the child is or has been under the custody of the commissioner of children and youth services, the commissioner shall provide any relevant information concerning the amenability of the child to treatment for use at the transfer hearing. No such transfer shall be valid unless, prior thereto, the court has caused an investigation to be made as provided in section 46b-134 and has made written findings after a hearing, that there is probable cause to believe that (1) the child has committed the action for which he is charged; (2) the child is not amenable to treatment in any institution or state agency or other available facility designed for the care and treatment of children to which said court may effect placement of such child which is suitable for his care or treatment and (3) the sophistication, maturity and previous adjudications of the juvenile are such that the facilities used for regular criminal sessions of the superior court provide a more effective setting for the disposition of the case and the institutions to which said court may sentence a defendant sixteen years of age or over are more suitable for the care and treatment of such child. Upon the effectuation of the transfer, such child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age. If the action is dismissed or nolled or if such child is found innocent of the charge for which he was transferred, the child shall resume his status as a juvenile until he attains the age of sixteen.”

The trial court did hold an evidentiary hearing in determining whether the second and third criteria for a transfer under § 46b-126, amenability to treatment in a juvenile facility and “sophistication” warranting the “more effective setting” of the regular criminal session of the Superior Court, had been satisfied. In refusing such a full hearing in respect to the first criterion, probable cause to believe that the defendant had committed the acts charged, the trial court followed the procedure found to satisfy constitutional requirements for custodial detention. Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975). The court thus relied wholly on the affidavits attached to the arrest warrants in the absence of a preliminary showing by the defendant challenging any of the material statements in the affidavits. See Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). The court concluded that the provision of § 46b-126 requiring that the requisite findings with respect to the three criteria be made “after a hearing” meant, in respect to the determination of probable cause, that only a hearing satisfying constitutional requirements for sustaining an arrest was necessary. It was also held that General Statutes *306§ 46b-135 (a), which provides for the right of counsel as well as “rights of confrontation and cross-examination” upon “the commencement of any proceeding on behalf of a delinquent child,” was inapplicable to a transfer hearing.

The trial court did not have the benefit of the subsequent legislative history concerning a proposal in 1983 to substitute the word “proceeding” for the word “hearing” in § 46b-126. The bill proposing the substitution was amended on the floor of the General Assembly, where Representative Richard D. Tulisano explained the import of this action: “Mr. Speaker, the amendment reinstates the word ‘hearing’ rather than ‘proceeding’ in the file copy. After due consideration, going to the word ‘hearing’ has had lots of interpretations in court decisions and it really means the due process hearing rather than a proceeding. And, rather than leave that vague, on due consideration, we think it would be proper to do that.

“We also have made some other technical changes. We removed, however, the standard that was in there that said probable cause sufficient to support the issuance of a search warrant. And allowing a full hearing. It would require that the parties be before the court and not rely just on written testimony.” 26 H. R. Proe., Pt. 17, 1983 Sess., p. 6036. We have previously discussed the implication of such subsequent legislative action. See Lee v. Board of Education, 181 Conn. 69, 75, 434 A.2d 333 (1980).

The transfer order was entered on August 24,1982. The defendant was fifteen years of age at the time of the offenses, January 17,1982, and has reached the age of eighteen at the present time.

The confidentiality of juvenile records and proceedings established by General Statutes §§ 46b-122 and 46b-124 cannot eliminate the publicity that frequently attends the commission of serious juvenile offenses, such as those which are transferable to the regular criminal docket pursuant to §§ 46b-126 and 46b-127. By prohibiting disclosure of records and proceedings in juvenile matters, §§ 46b-122 and 46b-124 do, however, curtail the additional publicity that a public trial would generate. The existence of statutes intended to protect juveniles from publicity concerning their crimes does not prevent the press from disclosing any information which may have come into its possession. Near v. Minnesota, 283 U.S. 697, 718-20, 51 S. Ct. 625, 75 L. Ed. 1357 (1931). These statutes, therefore, do not completely prevent or abolish publicity in juvenile cases, but by restricting accessibility to juvenile records and proceedings may reduce the amount of publicity generated.

General Statutes (Rev. to 1981) § 46b-131 provides generally that a juvenile offender shall not be “confined in a community correctional center or lockup, or in any place where adults are or may be confined Although the protection afforded by such statutorily mandated segregation ceases upon effectuation of a transfer order pursuant to § 46b-126, it does not follow that a transferred juvenile offender must necessarily be held while awaiting trial in a nonjuvenile facility, such as an adult prison. The commissioner of correction upon acquiring custody of a transferred juvenile may transfer him “to any other appropriate state institution with *311the concurrence of the superintendent of such institution or to the department of children and youth services when the commissioner of correction finds that the welfare or health of the inmate requires it.” General Statutes § 18-87. The commissioner of children and youth services must find that the juvenile, whose consent to such a transfer is necessary, would benefit before agreeing to accept his custody. Id. It should also be noted that separate detention facilities for youths between the ages of sixteen and twenty-one years are maintained at Cheshire and Niantic, which are under the jurisdiction of the commissioner of correction who has full authority to transfer inmates thereto from other correctional facilities. General Statutes §§ 18-65a, 18-73, 18-82, 18-86. If these statutes are effectively implemented by the department of correction and the department of youth services, as we are entitled to assume, adequate protection is afforded to juveniles from the evils of confinement with adult offenders.

The concern of the dissenters that the right of a juvenile to segregation “will be lost irreparably” unless appeals from transfer orders are permitted does not take into account the responsibility of the commissioner of correction under § 18-87 to transfer to more appropriate detention facilities, such as those operated by the department of children and youth services, youths within his custody whose “welfare or health” require it. This responsibility is not diminished simply because the commissioner must be accorded a reasonable discretion in determining whether such a transfer is necessary. It would be incongruous to construe the “may transfer” phrase in § 18-87 to give the commissioner of correction an unbridled discretion not to make such a transfer once he has found that “the welfare or health of the inmate requires it.” Though the right to statutorily mandated segregation is suspended while a juvenile transferred to the regular criminal docket is awaiting trial, it cannot be assumed that the commissioner of correction will not select an appropriate facility for his confinement during that period in accordance with his statutory authority and duty.

We are aware of the existence of a substantial body of law created in other jurisdictions pertaining to the immediate appealability of juvenile transfers. We do not find these cases to be very helpful, however. “There is no discernable pattern in the procedures of the various States as to the reviewability of such orders, and because the matter depends so largely upon the varying provisions of the applicable statutes, nothing is to be gained by a detailed analysis of the authorities from other jurisdictions.” People v. Jilea, 43 Ill. 2d 145, 148, 251 N.E.2d 529 (1969).