State v. Marsala

S
***********************************************
    The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.

   All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.

   The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
         STATE OF CONNECTICUT v. MICHAEL
                    J. MARSALA
                     (AC 41994)
                   Bright, C. J., Moll and Alexander, Js.

                                  Syllabus

The defendant appealed to this court from the judgment of the trial court
   finding him in violation of his conditional discharge and revoking his
   conditional discharge. He claimed that the particular condition of his
   conditional discharge that prohibited him from soliciting on private
   property violated his rights to free speech, due process, and liberty
   guaranteed by the first, fifth, and fourteenth amendments to the United
   States constitution. Held that the defendant’s appeal was dismissed as
   moot, the defendant having failed to challenge all the bases for the trial
   court’s finding that he violated his conditional discharge; the court also
   found that the defendant violated a second condition of his conditional
   discharge, the condition that he stay away from the Connecticut Post
   Mall in Milford, and, as the defendant failed to challenge this independent
   basis for the court’s finding that he violated his conditional discharge,
   this court could not afford him any practical relief.
           Argued January 14—officially released May 11, 2021

                            Procedural History

   Information charging the defendant with violation of
conditional discharge, brought to the Superior Court in
the judicial district of Ansonia-Milford, geographical
area number twenty-two, and tried to the court, Brown,
J.; judgment revoking conditional discharge, from
which the defendant appealed to this court. Appeal
dismissed.
  Deren Manasevit, assigned counsel, for the appellant
(defendant).
   Timothy F. Costello, senior assistant state’s attorney,
with whom, on the brief, were Margaret E. Kelley,
state’s attorney, and Matthew Kalthoff, assistant state’s
attorney, for the appellee (state).
                         Opinion

   MOLL, J. The defendant, Michael J. Marsala, appeals
from the judgment of the trial court finding him in
violation of his conditional discharge under General
Statutes § 53a-32. On appeal, the defendant claims that
the particular condition of his conditional discharge
that prohibited him from soliciting on private property
impermissibly infringed upon his rights to free speech,
due process, and liberty, as guaranteed by the first,
fifth, and fourteenth amendments to the United States
constitution, respectively. We dismiss the defendant’s
appeal as moot because he has not challenged a sepa-
rate, independent condition of the conditional dis-
charge that he also was found to have violated.
   The following facts, as found by the trial court,
Brown, J., after an evidentiary hearing on the violation
of conditional discharge, and procedural history are
relevant to our resolution of this appeal. ‘‘After a jury
trial for one count of criminal trespass [in the] first
degree [of which the jury found the defendant guilty],
the court, Markle, J., on October 28, 2016, sentenced
the defendant to one year [of incarceration], execution
suspended after four months to serve, [followed by]
two years conditional discharge. The conditions were
placed on the record by the court. The defendant was
present in court at sentencing and was made aware of
all the conditions by the court. Those conditions were:
(1) [s]tay away from the Connecticut Post Mall, Milford,
Connecticut; (2) stay away from Milford Crossing, also
known as Walmart; (3) stay away from Milford Market-
place, also known as Whole Foods; [and] (4) no solicit-
ing on private property. . . .
  ‘‘On September 28, 2017, the defendant was arrested
by warrant and charged with violations of conditional
discharge. The state’s long form information allege[d]
violations on July 6, 2017 and July 24, 2017. At the hear-
ing with regard to the violations of conditional dis-
charge, the court heard testimony from Sergeant Joseph
Maida of the Stratford Police Department. He testified
that on July 6, 2017, he was dispatched to the Stop and
Shop parking lot to investigate a soliciting complaint.
Upon arrival he encountered the defendant who was
carrying a windshield washer, a fluid bottle, an opaque
jug, and a funnel. Upon being approached by Sergeant
Maida and the other officers, the defendant stated he
was homeless, he had no job, and this was how he
made his living. He stated [that] the defendant did not
deny that he was on the premises for the purpose of
asking people for money. Sergeant Maida testified that
Stop and Shop was and is private property. The defen-
dant was subsequently arrested for trespassing.
  ‘‘The court also heard testimony from Mr. Wilford
Castillo, employed by mall security for the Connecticut
Post Mall in Milford. He testified that on July 24, 2017,
he found the defendant in the Target department store
parking lot which is on the grounds of the mall. He
recognized the defendant as someone who had been
banned from the mall property. He approached the
defendant and reminded him of the ban.
  ‘‘The court also heard testimony from Officer Michael
Brennan of the Milford Police Department. He testified
that he observed the defendant on Stop and Shop prop-
erty, specifically East Town Road. He testified that the
defendant admitted he had previously been on mall
property and that he had been warned previously to
stay off mall property. The defendant was subsequently
arrested for criminal trespass.
   ‘‘[T]he defendant testified at trial; he admitted to still
asking people for money stating ‘I get by by the generos-
ity of people. I asked for money last night.’ When asked
whether he was asking for money at Stop and Shop on
the evening of July 24, 2017, he stated ‘no, never got
the chance to.’ The defendant testified that he could
not recall a condition imposed by the court, Markle, J.,
that he not solicit money. However, he then stated,
‘[e]verybody at the sentencing, including yourself, that
the most important thing to everyone was that I was
not to [solicit] at the Milford mall. . . .’
   ‘‘The court finds that the defendant was well aware
of the conditions of his release imposed by the court and
his October 28, 2016 sentencing hearing, specifically,
no soliciting on private property and stay away from
the Connecticut Post Mall. . . .
  ‘‘The court finds the testimony of Sergeant Maida,
Officer Brennan, and Mr. Castillo credible and reliable.’’
   On June 12, 2018, the court, Brown, J., found that
the state had proven by a preponderance of the evidence
that the defendant violated two conditions of his two
year conditional discharge by (1) failing to stay away
from the Connecticut Post Mall and (2) soliciting on
private property, specifically, at the Stop and Shop.
Thereafter, the court revoked the original sentence of
conditional discharge and sentenced the defendant to
eight months of incarceration. See General Statutes
§ 53a-32 (d). This appeal followed.
   On appeal, the defendant claims that the condition
of his conditional discharge that prohibited him from
soliciting on private property improperly infringed upon
his rights to free speech, due process, and liberty, as
guaranteed by the first, fifth, and fourteenth amend-
ments to the United States constitution, respectively.1
Absent from the defendant’s appellate brief, however,
is a challenge to the second condition of the conditional
discharge that he was found to have violated, namely,
the condition that he stay away from the Connecticut
Post Mall in Milford. The defendant’s failure to chal-
lenge this independent basis for the court’s finding that
he violated his conditional discharge renders his appeal
moot, as we cannot afford him any practical relief.
   ‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[this] court’s subject matter jurisdiction . . . . The
fundamental principles underpinning the mootness doc-
trine are well settled. We begin with the four part test
for justiciability . . . . Because courts are established
to resolve actual controversies, before a claimed con-
troversy is entitled to a resolution on the merits it must
be justiciable. Justiciability requires (1) that there be
an actual controversy between or among the parties to
the dispute . . . (2) that the interests of the parties be
adverse . . . (3) that the matter in controversy be
capable of being adjudicated by the judicial power . . .
and (4) that the determination of the controversy will
result in practical relief to the complainant. . . .
  ‘‘[I]t is not the province of appellate courts to decide
moot questions, disconnected from the granting of
actual relief or from the determination of which no
practical relief can follow. . . . In determining moot-
ness, the dispositive question is whether a successful
appeal would benefit the plaintiff or defendant in any
way. . . .
   ‘‘Where an appellant fails to challenge all bases for
a trial court’s adverse ruling on his claim, even if this
court were to agree with the appellant on the issues
that he does raise, we still would not be able to provide
[him] any relief in light of the binding adverse finding[s]
[not raised] with respect to those claims. . . . There-
fore, when an appellant challenges a trial court’s
adverse ruling, but does not challenge all independent
bases for that ruling, the appeal is moot.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) State v. Lester, 

324 Conn. 519

, 526–27, 

153
A.3d 647

(2017); see also State v. Lanagan, 119 Conn.
App. 53, 60–62, 

986 A.2d 1113

(2010) (affirming revoca-
tion of probation and imposition of new sentence upon
concluding that there was sufficient evidence for trial
court to find that defendant violated two conditions of
probation and, in light thereof, declining to address
defendant’s claim directed to court’s finding that she
violated third condition).
   Here, as a result of the defendant’s failure to challenge
all of the independent bases for the court’s finding him
in violation of his conditional discharge, we cannot
afford him any practical relief. Thus, we are compelled
to conclude that the defendant’s claim on appeal is
moot.
      The appeal is dismissed.
      In this opinion the other judges concurred.
  1
    In anticipation of an argument by the state that his appeal is moot
because he has completed serving his sentence, the defendant also argued
in his principal appellate brief that his appeal was not rendered moot by
the completion of his sentence because his claim satisfies the ‘‘capable of
repetition, yet evading review’’ exception to the mootness doctrine. See
Loisel v. Rowe, 

233 Conn. 370

, 378, 

660 A.2d 323

(1995). This exception,
when satisfied, applies to an appeal that has been rendered moot because
‘‘during the pendency of an appeal, events have occurred that preclude an
appellate court from granting any practical relief through its disposition of
the merits . . . .’’ (Emphasis added; internal quotation marks omitted.)

Id.
We do not

address the defendant’s argument regarding the ‘‘capable of
repetition, yet evading review’’ exception because we conclude that his
appeal is moot for a different reason, as explained herein.

Add comment

By

Recent Posts

Recent Comments