Justia.com Opinion Summary: Defendant was adjudicated a youthful offender for committing the crime of criminal trespass in the second degree. The trial court sentenced Defendant to ninety days' incarceration and a period of probation of two years. As a condition of probation, Defendant was ordered to make restitution to the victims in the amount of $2,000. Defendant appealed, arguing that since there was no evidence or finding that he had personally caused damage, the trial court's order to pay restitution was improper. The appellate court reversed the sentence imposed and remanded with direction to vacate the restitution order. The Supreme Court reversed, holding that the trial court did not abuse its discretion because its order of restitution had a nexus to the crime of which Defendant was convicted and was, therefore, reasonably related to Defendant's rehabilitation.
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STATE OF CONNECTICUT v. SILAS S.*
(SC 18529)
Norcott, Palmer, Zarella, McLachlan, Eveleigh and Vertefeuille, Js.
Argued March 24—officially released July 19, 2011
Kevin T. Kane, chief state’s attorney, with whom, on
the brief, were John C. Smriga, state’s attorney, and
Tatiana A. Messina, assistant state’s attorney, for the
appellant (state).
Christopher Duby, special public defender, for the
appellee (defendant).
Opinion
NORCOTT, J. The sole issue in this certified appeal
is whether General Statutes § 53a-30 (a)1 authorized the
trial court to order the defendant, Silas S., who had
committed criminal trespass, to pay restitution to the
victims, the owners of the property upon which he
trespassed, despite the fact that he had not personally
profited from the trespass or caused any physical damage to the property. The state appeals, following our
grant of its petition for certification,2 from the judgment
of the Appellate Court reversing, in part, the judgment
of the trial court adjudicating the defendant a youthful
offender, and vacating the sentence imposed, namely,
that as a special condition of probation, the defendant
was required to make restitution to the victims in the
amount of $2000. State v. Silas S., 118 Conn. App. 236,
237–39, 928 A.2d 1105 (2009). On appeal, the state claims
that the Appellate Court improperly concluded that the
trial court’s imposition of restitution as a condition of
probation was an abuse of its discretion. Specifically,
the state contends that the imposition of restitution
properly served the rehabilitative purpose of forcing
the defendant to accept responsibility for his part in a
collective endeavor of criminal trespass wherein
twenty-two teenagers held an unsupervised, unauthorized party that resulted in significant damage to the
unoccupied house in which the party took place. Guided
by, inter alia, State v. Pieger, 240 Conn. 639, 692 A.2d
1273 (1997), we conclude that the trial court did not
abuse its discretion because its order of restitution had
a nexus to the crime of which the defendant was convicted and was, therefore, reasonably related to the
defendant’s rehabilitation. Accordingly, we reverse the
judgment of the Appellate Court.
The record and the opinion of the Appellate Court
reveal the following relevant facts and procedural history. ‘‘In 2008, the state filed an information charging
the defendant as a youthful offender for having committed the crime of criminal trespass in the second degree.
Following a trial before the court, the court, in an oral
decision, found that on February 3, 2007, the defendant
entered and remained unlawfully in an unoccupied
house in Fairfield, which was being readied for sale by
[the victims]. The court found that despite the defendant’s testimony that he did not know that the house
was unoccupied, he knew that he was neither licensed
nor privileged to enter and to remain on the property.
The court adjudicated the defendant a youthful offender
for committing the crime of criminal trespass in the
second degree.
‘‘Immediately after the court rendered its decision,
the prosecutor represented that the state had an interest
in seeking restitution for the victims’ damages. During
the trial, the state presented evidence that the defendant
and approximately twenty-one other persons, all of
whom were in their teens, entered the unoccupied
house at issue to attend a party that was held at the
property without the knowledge or consent of its owners. One of the [victims], Jeffrey Rutkowski, testified
that upon inspecting [the house] two days after the
party, he discovered that the house was littered with
trash, including beer cans, and that it had sustained
extensive, intentional property damage caused by the
partygoers. He testified that the cost to repair the damage exceeded $36,000. The court agreed to delay sentencing for the purpose of permitting the office of adult
probation to complete a restitution investigation. At the
sentencing hearing, the prosecutor represented that,
after receiving restitution from other individuals who
were present at the victims’ house, the victims still had
not been reimbursed for all of the damages caused at
the party on February 3, 2007. Accordingly, the state
requested that an order of restitution be made part of
the defendant’s sentence. In response, the defendant’s
attorney argued that there was no evidence adduced
at trial that the defendant had caused any of the victims’ damages.
‘‘In rendering its sentence, the court admonished the
defendant for attending the party at the victims’ house.
The court stated that the defendant had stood by, and
had done nothing, while the victims’ property was damaged by others. The court also stated that eighteen other
individuals who were present at the party had ‘paid
their fair share’ by making a restitution payment to the
victims. The court stated, ‘[Y]ou are responsible for
being there just as much as any of the other participants
that were there, whether or not you picked up a marker
and did the graffiti or whether or not you kicked out
the parts of the staircase.’3 Thereafter, the court sentenced the defendant to a term of incarceration of ninety
days, execution suspended,4 and a period of probation
of two years.5 Among several special conditions of probation the court ordered was that the defendant make
restitution to the victims in the amount of $2000.’’ State
v. Silas S., supra, 118 Conn. App. 237–39.
The defendant appealed from the trial court’s order
to pay restitution,6 claiming solely that, since there was
no evidence, nor any finding of the court that he had
personally caused any damage to the house, the order
to pay restitution was improper. Id., 239. The Appellate
Court, in a divided opinion, agreed, concluding that
there was no basis for the trial court’s restitution order
because that court did not state that there was any
other rehabilitative purpose for that condition, and that,
because there was no evidence that the defendant had
profited at the expense of the victims or that he had
caused any measurable loss to the victims, payment to
the victims could not have a legitimate rehabilitative
effect on the defendant. Id., 244. Accordingly, the Appellate Court reversed the trial court’s judgment only as
to the sentence imposed and remanded the case with
direction to vacate the special condition of probation
that the defendant make restitution to the victims and
for resentencing.7 Id., 245. This certified appeal followed. See footnote 2 of this opinion.
On appeal, the state contends that the Appellate
Court too narrowly construed a trial court’s discretion
to impose appropriate conditions of probation, including restitution, on a youthful offender. In response, the
defendant contends that the Appellate Court properly
vacated the order of restitution because the trial court
lacked the authority to order the defendant to pay restitution under a conviction of being a youthful offender,8
or, even if the trial court did have such authority, that
there was no factual basis to support the restitution
order. We agree with the state and conclude that the
Appellate Court improperly determined that the trial
court abused its discretion in ordering restitution.
To begin, we recognize that ‘‘[t]he success of probation as a correctional tool is in large part tied to the
flexibility within which it is permitted to operate.’’
(Internal quotation marks omitted.) State v. Misiorski,
250 Conn. 280, 287, 738 A.2d 595 (1999). We also note
that, ‘‘in administering the probation statute, the trial
judge has ‘an exceptional degree of flexibility’ in
determining whether to grant or revoke probation and
on what terms.’’ State v. Smith, 207 Conn. 152, 164, 540
A.2d 679 (1988), quoting Burns v. United States, 287
U.S. 216, 220, 53 S. Ct. 154, 77 L. Ed. 266 (1932).
‘‘On appeal, the standard of review of an order of
probation is whether the trial court abused its discretion. If it appears that the trial court reasonably was
satisfied that the terms of probation had a beneficial
purpose consistent with the defendant’s reformation
and rehabilitation, then the order must stand. . . . In
reviewing the issue of discretion, we do so according
it every reasonable presumption in favor of the trial
court’s ruling.’’ (Citation omitted; internal quotation
marks omitted.) State v. Pieger, supra, 240 Conn. 648.
Under § 53a-30 (a), a sentencing court may impose
a variety of conditions on a sentence of probation, all
of which are aimed at rehabilitating the defendant. See
footnote 1 of this opinion. ‘‘[B]ecause the legislature
enumerated restitution as a possible condition of a criminal defendant’s probation, it defies logic to conclude
that restitution is punitive as a matter of law.’’ State v.
Fowlkes, 283 Conn. 735, 743–44, 930 A.2d 644 (2007).
Rather, restitution ‘‘is an effective rehabilitative penalty
because it forces the defendant to confront, in concrete
terms, the harm his actions have caused. Such a penalty
will [a]ffect the defendant differently than a traditional
fine, paid to the [s]tate as an abstract and impersonal
entity . . . .’’ (Internal quotation marks omitted.) State
v. Pieger, supra, 240 Conn. 650, quoting People v. Carbajal, 10 Cal. 4th 1114, 1124, 899 P.2d 67, 43 Cal. Rptr.
2d 681 (1995). ‘‘Restitution simply serves the state’s
rehabilitative interest in having a defendant take
responsibility for his conduct through the act of making
the victim whole.’’ State v. Fowlkes, supra, 744.
Section 53a-30 (a) provides in relevant part: ‘‘When
imposing sentence of probation or conditional discharge, the court may, as a condition of the sentence,
order that the defendant . . . (4) make restitution of
the fruits of the defendant’s offense . . . .’’ As Judge
Foti emphasized in his dissenting opinion, however,
‘‘[§ 53a-30 (a) (4)] does not define ‘fruits . . . .’ ’’ State
v. Silas S., supra, 118 Conn. App. 247. In the absence of
such statutory guidance, the court ‘‘may appropriately
look to the meaning of the . . . [word] as commonly
expressed in the law and in dictionaries.’’ (Internal quotation marks omitted.) State v. Doriss, 84 Conn. App.
542, 549, 854 A.2d 48, cert. denied, 271 Conn. 922, 859
A.2d 581 (2004). Here, ‘‘ ‘[f]ruit’ can be defined as ‘the
outcome, consequence or result of some action.’ The
Standard Encyclopedic Dictionary (1966). This common use of the term is often so employed to describe
the product or end product of some action or omission.
Significantly, Roget’s International Thesaurus (4th Ed.
1977) lists ‘fruit’ as a synonym for ‘product.’ ’’ State v.
Doriss, supra, 549.
The Appellate Court majority, however, focused on
the fact that the defendant was convicted of criminal
trespass in the second degree for entering and
remaining in the victims’ home without permission, but
was not convicted of any crime requiring proof that he
caused property damage or loss to the victims. State v.
Silas S., supra, 118 Conn. App. 242. The Appellate Court
further emphasized that the state did not present any
evidence to support a finding that the defendant had
caused any damage to the victims or to their house in
concluding that there was no basis for the trial court’s
order to pay $2000 in restitution to the victims. Id.,
242–44. The Appellate Court also concluded that, since
the trial court did not state that there was any other
rehabilitative purpose for the restitution requirement,
and in the absence of any evidence that the defendant
profited at the expense of the victims, there was no
way any payment to the victims could have a legitimate
rehabilitative effect for the defendant. Id., 244. Finally,
the majority determined that the fruit of the defendant’s
offense was solely his unlawful presence in the victims’
house, and thus rejected Judge Foti’s dissenting position that the extensive damage to the victims’ house
was the fruit of the defendant’s offense because it was
undeniably ‘‘the outcome, consequence, result or end
product of [the defendant’s] criminal trespass.’’ (Internal quotation marks omitted.) Id., 245 n.5.
Having reviewed the record in this case, we agree
with Judge Foti’s well reasoned dissenting opinion and
conclude that the Appellate Court majority improperly
determined that the trial court had abused its discretion
in ordering the defendant to pay restitution to the victims. We have long held that probation ‘‘is not ordered
for the purpose of punishment for the wrong for which
there has been a conviction, or for general wrongdoing.
Its aim is reformatory and not punitive. It is to bring
one who has fallen into evil ways under oversight and
influences which may lead him to a better living. The
end sought is the good of the individual wrongdoer,
and not his punishment.’’ (Emphasis in original; internal
quotation marks omitted.) State v. Fowlkes, supra, 283
Conn. 743. Thus, in evaluating orders of restitution as
conditions of probation, we have stated that ‘‘as long
as the condition requiring monetary payment shares a
nexus with the defendant’s crime . . . it is reasonably
related to rehabilitation.’’ State v. Pieger, supra, 240
Conn. 651.
In Pieger, a defendant had struck and injured a pedestrian while driving his car, and thereafter left the scene
of the accident without stopping to render assistance.
Id., 641. Although the defendant was convicted of evasion of responsibility, and was not convicted of any
crime requiring proof that he had caused the pedestrian’s injuries; id., 649; we concluded that the trial court
had acted within its discretion in ordering that the
defendant make a $2500 charitable donation to the hospital that had treated the pedestrian. Id., 653. In Pieger,
we recognized that other jurisdictions have upheld conditions requiring monetary payments when those conditions shared a nexus with the defendant’s crime. See id.,
650–51, citing People v. Burleigh, 727 P.2d 873, 874–75
(Colo. App. 1986) (trial court properly imposed condition of probation that physician, convicted of unlawfully
dispensing controlled substance, donate $5000 to drug
treatment center); Hafner v. Leapley, 520 N.W.2d 252,
253–54 (S.D. 1994) (trial court could order defendant
convicted of sexual assault, as condition of probation,
to pay $5000 to county as compensation for county
victim assistant); State v. Brown, 174 Wis. 2d 550, 552–
53, 497 N.W.2d 463 (1993) (trial court reasonably
imposed condition that defendant convicted of sexual
assault pay $7000 tuition cost of sending victim to
another school because she was being harassed at current school as result of assault). Thus, a trial court
has the flexibility to order monetary payments as a
condition of probation notwithstanding the fact that
the defendant has not been convicted of a crime requiring proof that he has actually caused the specific harm
to which the payment is addressed.
Accordingly, we disagree with the defendant’s claim
in the present case that the Appellate Court properly
determined that the trial court’s restitution order was
an abuse of discretion because there was no evidence
presented at trial that the defendant had actually caused
any of the property damage. As Pieger makes clear,
restitution does not require factual liability or causation, and, therefore, in the present case, the trial court
was not imposing liability on the defendant for the
damages caused during the party. Instead, the trial court
relied on the fact that the defendant had attended a
party in a house where he knew he and the other attendees did not have permission to be—his criminal trespass—and during the course of the unsupervised and
unauthorized party, the house sustained over $36,000
in damage. Under the definition of ‘‘fruit’’ set forth in
State v. Doriss, supra, 84 Conn. App. 549, the damage
to the house in this case certainly was the outcome,
consequence, result, or end product of the collective
criminal trespass in which the defendant had participated and of which he was convicted. Put differently,
the damage plainly had a ‘‘nexus’’ to the offense. See
State v. Pieger, supra, 240 Conn. 651. Accordingly, under
§ 53a-30 (a) (4),9 the order of restitution was reasonably
related to the consequence of the defendant’s criminal
trespass, and well within the discretion of the trial court.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
affirm the judgment of the trial court.
In this opinion the other justices concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79-3, the names of the parties involved in this appeal
are not disclosed. The records and papers of this case shall be open for
inspection only to persons having a proper interest therein and upon order
of the Appellate Court.
1
General Statutes § 53a-30 (a) provides: ‘‘When imposing sentence of
probation or conditional discharge, the court may, as a condition of the
sentence, order that the defendant: (1) Work faithfully at a suitable employment or faithfully pursue a course of study or of vocational training that
will equip the defendant for suitable employment; (2) undergo medical or
psychiatric treatment and remain in a specified institution, when required
for that purpose; (3) support the defendant’s dependents and meet other
family obligations; (4) make restitution of the fruits of the defendant’s
offense or make restitution, in an amount the defendant can afford to pay
or provide in a suitable manner, for the loss or damage caused thereby
and the court may fix the amount thereof and the manner of performance;
(5) if a minor, (A) reside with the minor’s parents or in a suitable foster
home, (B) attend school, and (C) contribute to the minor’s own support in
any home or foster home; (6) post a bond or other security for the performance of any or all conditions imposed; (7) refrain from violating any
criminal law of the United States, this state or any other state; (8) if convicted
of a misdemeanor or a felony, other than a capital felony, a class A felony
or a violation of section 21a-278, 21a-278a, 53a-55, 53a-56, 53a-56b, 53a-57,
53a-58 or 53a-70b or any offense for which there is a mandatory minimum
sentence which may not be suspended or reduced by the court, and any
sentence of imprisonment is suspended, participate in an alternate incarceration program; (9) reside in a residential community center or halfway house
approved by the Commissioner of Correction, and contribute to the cost
incident to such residence; (10) participate in a program of community
service labor in accordance with section 53a-39c; (11) participate in a program of community service in accordance with section 51-181c; (12) if
convicted of a violation of subdivision (2) of subsection (a) of section 5321, section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b, undergo
specialized sexual offender treatment; (13) if convicted of a criminal offense
against a victim who is a minor, a nonviolent sexual offense or a sexually
violent offense, as defined in section 54-250, or of a felony that the court
finds was committed for a sexual purpose, as provided in section 54-254,
register such person’s identifying factors, as defined in section 54-250, with
the Commissioner of Public Safety when required pursuant to section 54251, 54-252 or 54-253, as the case may be; (14) be subject to electronic
monitoring, which may include the use of a global positioning system; (15)
if convicted of a violation of section 46a-58, 53-37a, 53a-181j, 53a-181k or 53a-
181l, participate in an anti-bias crime education program; (16) if convicted of
a violation of section 53-247, undergo psychiatric or psychological counseling
or participate in an animal cruelty prevention and education program provided such a program exists and is available to the defendant; or (17) satisfy
any other conditions reasonably related to the defendant’s rehabilitation.
The court shall cause a copy of any such order to be delivered to the
defendant and to the probation officer, if any.’’ (Emphasis added.)
2
We granted the state’s petition for certification to appeal limited to the
following issue: ‘‘Whether the Appellate Court correctly concluded that the
trial court’s imposition of restitution as a condition of probation was an
abuse of discretion?’’ State v. Silas S., 294 Conn. 931, 986 A.2d 1057 (2010).
3
‘‘At trial, the state had elicited evidence that one or more partygoers
had caused extensive damage to an interior staircase of the house and had
written on one or more interior walls of the house with a marker.’’ State v.
Silas S., supra, 118 Conn. App. 239 n.2.
4
The trial court imposed a sentence of a term of imprisonment and suspended the execution of that sentence in accordance with General Statutes
§ 54-76j (a), which provides in relevant part that ‘‘[t]he court, upon the
adjudication of any person as a youthful offender, may . . . (6) impose
sentence and suspend the execution of the sentence, entirely or after a
period set by the court . . . .’’
5
The trial court placed the defendant on probation for a period of two
years in accordance with General Statutes § 54-76j (b), which provides in
relevant part: ‘‘If execution of the sentence is suspended under subdivision
(6) of subsection (a) of this section, the defendant may be placed on probation or conditional discharge for a period not to exceed three years, provided,
at any time during the period of probation, after hearing and for good cause
shown, the court may extend the period as deemed appropriate by the
court. . . .’’
6
The defendant did not challenge on appeal the trial court’s judgment of
guilty of being a youthful offender, the suspended sentence and the sentence
of probation, or the specific dollar amount of the restitution.
7
In dissent, Judge Foti concluded that the damage to the house was the
fruit of the defendant’s criminal activity, which satisfied § 53a-30 (a) (4),
and that the condition that the defendant pay $2000 to the victims therefore
was not an abuse of the trial court’s discretion. See State v. Silas S., supra,
118 Conn. App. 248.
8
The defendant claims that, under the youthful offender statutory scheme,
the sentencing options that the trial court may impose on a youthful offender
are limited exclusively to those provided in General Statutes § 54-76j (a),
such that a trial court may not impose restitution as a condition of probation.
The defendant raises this issue as an alternative ground upon which the
trial court’s judgment may be affirmed pursuant to Practice Book § 84-11
(a), which provides in relevant part that, ‘‘[u]pon the granting of certification,
the appellee may present for review alternative grounds upon which the
judgment may be affirmed provided those grounds were raised and briefed
in the appellate court. . . .’’ (Emphasis added.) We note, however, that, in
his principal brief to the Appellate Court, the defendant initially conceded
that the trial court had the authority to impose restitution as a condition
of his probation, and, in that court, merely argued that the order of restitution
in this case did not have the requisite factual support. In his reply brief in the
Appellate Court, though, the defendant asserted that the statute authorizing
youthful offender punishments does not permit the imposition of an order
of restitution. Furthermore, in raising this claim in his reply brief, the defendant did so in only a single sentence, and without citation to the statute
itself or any supporting authority for his claim.
Generally, ‘‘[c]laims . . . are unreviewable when raised for the first time
in a reply brief. . . . Our practice requires an appellant to raise claims of
error in his original brief, so that the issue as framed by him can be fully
responded to by the appellee in its brief, and so that we can have the full
benefit of that written argument. Although the function of the appellant’s
reply brief is to respond to the arguments and authority presented in the
appellee’s brief, that function does not include raising an entirely new claim
of error.’’ (Citations omitted; internal quotation marks omitted.) Grimm v.
Grimm, 276 Conn. 377, 393 n.19, 886 A.2d 391 (2005), cert. denied, 547 U.S.
1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006). The defendant, by conceding
in his principal brief to the Appellate Court that a trial court has the authority
to order restitution as a condition of probation for a youthful offender, and
by failing to raise this challenge to the trial court’s authority until his reply
brief, therefore, did not properly raise the issue before that court. Accord-
ingly, we will not address that issue, pursuant to Practice Book § 84-11 (a),
in this certified appeal.
9
The state alternatively contends that, even if the damage to the house was
not the ‘‘fruit’’ of the defendant’s criminal trespass, the order of restitution as
a condition of the defendant’s probation is nonetheless authorized because
it is an ‘‘other [condition] reasonably related to the defendant’s rehabilitation’’—forcing the defendant to accept responsibility for his actions—under
§ 53a-30 (a) (17). Since we conclude that the damage to the house was, in
fact, the fruit of the defendant’s criminal trespass under § 53a-30 (a) (4),
we need not address the state’s alternative justification for the order of restitution.
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