Opinion
No. WWM CR83-47790
March 19, 2010
This matter comes before the court on the state's petition for an order of continued commitment of the acquittee to the psychiatric security review board and on the acquittee's motions to dismiss the state's petition. For the following reasons, the acquittee's motions are denied and the state's petition is granted.
NATURE OF THE PROCEEDINGS
On March 22, 1985, the acquittee was committed to the custody of the commissioner of mental health for a period not to exceed twenty-five years after he was found not guilty by reason of mental disease or defect of two counts of kidnapping in the first degree, two counts of threatening and one count of carrying and sale of dangerous weapons. On July 1, 1985, in accordance with Gen. Stat. § 17a-602, the acquittee was transferred to the jurisdiction of the psychiatric security review board.
The acquittee was committed in accordance with Gen. Stat. § 53a-47, now repealed.
On October 23, 2003, the acquittee filed an application for discharge from the jurisdiction of the board and on February 10, 2004, the court, Foley, J., denied the application. On March 28, 2007, the acquittee filed a second application for discharge and September 4, 2008, the court, Swords, J., denied the application. On April 27, 2009, the state filed a petition for an order of continued commitment. Thereafter on February 16, 2010, the acquittee filed a motion to dismiss and on February 23, 2010, he filed a supplemental motion to dismiss.
On February 24, 2010, the court held a hearing on the state's petition and the acquittee's motions. Witnesses included the board's consulting psychiatrist, Kevin Trueblood, the acquittes's retained psychiatrist, Peter Zeman, the acquittee's character witness, Richard Corr and the acquittee. The court finds the testimony of Trueblood, Zeman and Corr to be highly credible and the testimony of the acquittee to be credible in part and not credible in part. The court has reviewed and considered the testimony, the exhibits and the parties' memoranda of law. After applying the law to the facts, judgment enters denying the motions to dismiss and granting the petition for an order of continued commitment.
DISCUSSION
General Statutes § 17a-593 sets out the procedure to be followed when the state seeks a continued commitment of an acquittee to the psychiatric security review board. ". . . [T]he state's attorney, at least one hundred thirty-five days prior to [the expiration of the term of commitment], may petition the court for an order of continued commitment of the acquittee." Gen. Stat. § 17a-593(c). "The court shall forward . . . any [such] petition . . . to the board. The board shall . . . file a report with the court, and send a copy thereof to the state's attorney and counsel for the acquittee, setting forth its findings and conclusions as to whether the acquittee is a person who should be discharged. The board may hold a hearing or take other action appropriate to assist it in preparing its report." Gen. Stat. § 17a-593(d). "Within ten days of receipt . . . of the board's report . . . either the state's attorney of counsel for the acquittee may file notice of intent to perform a separate examination of the acquittee. An examination conducted on behalf of the acquittee may be performed by a psychiatrist or psychologist of the acquittee's own choice . . ." Gen. Stat. § 17a-593(e).
"After receipt of the board's report and any separate examination reports, the court shall . . . commence a hearing on the . . . petition for continued commitment . . ." Gen. Stat. § 17a-593(f). At the hearing, the state bears "the burden of proving `by clear and convincing evidence that the acquittee is currently mentally ill and dangerous to himself or herself or others or gravely disabled.' State v. Metz, 230 Conn. 400, 425, 645 A.2d 965 (1994)." State v. Maskiell, 100 Conn.App. 507, 521, 918 A.2d 293, cert. denied, 282 Conn. 922, 925 A.2d 1104 (2007).
I.
On April 27, 2009, the state filed a petition for an order of continued commitment on the grounds that the acquittee remains mentally ill to the extent that his discharge would constitute a danger to himself or others. The defendant opposes the petition and avers that his discharge would not constitute such a danger.
Kevin Trueblood is a forensic psychiatrist who on numerous occasions since 2006 has been requested by the board and/or Connecticut Valley Hospital to evaluate the acquittee for the purpose of periodic hearings held by the board and for questions about the acquittee's privilege level at the hospital. Trueblood's testimony and the board's report to the court set forth the acquittee's prior history: Between 1977 and the time of the incident which resulted in his criminal commitment, the acquittee was hospitalized three times in psychiatric facilities. Thereafter, in December 1983, the acquittee hijacked a bus carrying forty-seven people including a child. He threatened the driver with a bomb and nerve gas and stated he had been asked by God to deliver a message. During and after this incident, the acquittee exhibited signs of delusional thinking and symptoms of psychosis. The acquittee was arrested, found not guilty by reason of mental disease or defect and committed to the commissioner of mental health for a period of twenty-five years. The acquittee was confined to the Whiting Forensic Institute for a period of time and then transferred to the Norwich State Hospital.
On January 17, 1986, the acquittee escaped from Norwich with a female peer and they traveled to South Carolina, to Texas and, finally, to Mexico. When located in Mexico in September 1986, the acquittee exhibited symptoms of psychosis. He was returned to Connecticut and upon admission to Whiting, was found to be grossly psychotic and experiencing auditory and visual hallucinations as well as grandiose and persecutory delusions. While at Whiting, he was thereafter involved in a violent incident which resulted in injuries to himself, staff and other patients.
In 1989, based on his clinical stability, the acquittee was transferred to Norwich. From 1990-92, he was granted a series of temporary leaves which were terminated when he rendered a positive drug screen for cocaine. After a time, temporary leaves were reinstated and in July 1995, he was granted a conditional leave. In June 1996, the acquittee began to exhibit symptoms of psychosis and admitted that he had stopped taking his antipsychotic medication. He was admitted to Connecticut Valley Hospital but refused some of his medications. A few days later, he escaped from the hospital and several days thereafter he was found on the Merritt Parkway and was returned to Whiting. At that time he was exhibiting psychotic and paranoid symptoms as well as delusional thinking. He became violent and was placed in four point restraints for six hours.
During the next several years, the acquittee remained at Whiting and was involved in a series of assaults. From 1996-2005, the acquittee's behavior at Whiting was characterized by chronic refusal to take medication, irritability, mood lability, grandiosity, paranoid ideation, rule breaking, physical altercations with peers and refusal to engage meaningfully in treatment.
In 2005, there was a reduction in the acquittee's aggression, an improvement in his participation in treatment and increased cooperation with his treatment team. Based on this, in mid-2006, the acquittee was transferred to Dutcher, a less secure facility on the hospital campus. Treatment records after the transfer show that the acquittee evidenced episodic irritability, mood instability, grandiosity, paranoid ideation and he refused to take his medication claiming he could control his behavior. Ultimately the treatment team convinced him to take a mood stabilizing medication but then he changed his mind and refused. A treatment impasse ensued and the acquittee was transferred to another unit. In the new unit, his psychiatrist noted mood lability and ongoing conflicts with peers. After working closely with the acquittee, the psychiatrist was able to convince him to take the mood stabilizing medication, trileptal. Even after starting trileptal, however, the acquittee had another altercation with a peer and was again transferred. In December 2009, he was transferred to yet another unit following problems with another patient.
Since the last hearing before the court in September 2008, Trueblood has seen improvement in the acquittee's insight into his illness and a positive response to his dialectical behavioral therapy at the hospital and to his day treatment at the Veterans Administration in West Haven. Since December 2009, the acquittee has not been prescribed any antipsychotic medication, but continues to be prescribed trileptal, 600 mg, twice per day. As in the past, and against medical advice, the acquittee persists in stopping and starting this medication as it suits him and the medical staff must expend considerable effort over the next several days to convince him to resume. While he is off trileptal, the acquittee begins to exhibit mood lability and is at heightened risk for behavioral dyscontrol and harming others. The acquittee's current diagnosis is schizoaffective disorder, bipolar type; cannabis abuse in a controlled environment and personality disorder, not otherwise specified, with antisocial and narcissistic traits.
According to Trueblood, the acquittee presents several risk factors which place him at substantial risk of injury to himself or others. These factors include a primary psychiatric disorder with three well documented psychotic episodes including one where he behaved violently and put himself and others in danger. The acquittee additionally has a significant history of substance abuse and his personality structure is such that he has difficulty following orders, difficulties in interpersonal relationships with both peers and authority figures and he puts his needs over all other persons' needs. He also has a history of noncompliance with medication, a history of escape and he has recently refused to take part in a psychological assessment. Based on the acquittee's history and his risk factors, Trueblood believes that without the supervision and support provided by the board, the acquittee will stop treatment, will stop taking his medication, will decompensate and will become delusional. In Trueblood's opinion, the acquittee thus presents a substantial risk of harm to himself or others.
Although Trueblood has not personally observed delusional thinking in the acquittee, he has seen him highly symptomatic.
In Trueblood's opinion, the acquittee will not take medication unless he absolutely has to.
Peter Zeman, the acquittee's retained psychiatrist, generally concurs with the acquittee's Axis I diagnosis of schizoaffective disorder, but believes that it is in remission. In Zeman's opinion the acquittee is not a danger to self or others so long as he engages in a regimen of therapy and treatment such as offered at the VA and so long as he avails himself of the services available in the community through a community mental health agency.
The acquittee testified that the therapy he has received at the VA has been helpful to him and that if discharged from the board, he will continue to engage in it. As to the need for medication, he believes medication is helpful to get someone through a psychotic episode or a crisis, but is otherwise not needed. Recently when asked by Trueblood whether the trileptal was benefitting him, the acquittee "smiled and said that `it's helping me to appear that I am cooperating with treatment, that I am going along with the treatment team.'" The acquittee freely admits that he does not allow periodic blood draws to monitor the effect of his present medication on his liver and kidneys. Although he recognizes that this refusal may jeopardize his health, he "does not comply because he has a choice not to." At the hearing, the acquittee summarized his attitude by stating "my choices are limited. When I do have the power to exercise my choices, I do it. Maybe you can say [that] it is to spite the fact that I have lost my ability to make my own choices."
In Trueblood's opinion, the acquittee's refusal is based at least in part on a lack of insight caused by his schizoaffective disorder and his personality disorder.
Before the court may grant a petition for continued commitment, it must find that the acquittee is currently mentally ill and dangerous to himself or others. In the present case, the evidence that the acquittee has a mental illness is uncontroverted. Trueblood testified that the acquittee has a diagnosis of schizoaffective disorder, bipolar type; cannabis abuse in a controlled environment and personality disorder, not otherwise specified, with antisocial and narcissistic traits. Zeman, the acquittee's own expert, generally agrees with the Axis I diagnosis but believes that his schizoaffective disorder is in remission. Mental illness includes "any mental illness in a state of remission when the illness, may with reasonable medical probability, become active." Gen. Stat. § 17a-580(7).
Zeman offered no opinion as to any personality disorder.
While there is general agreement that the acquittee has a mental illness, Trueblood and Zeman disagree as to whether the acquittee poses a danger to himself or others if released from the board. Trueblood believes that the features of the acquittee's psychiatric illness and his history of substance abuse, noncompliance with medication, escape, mood lability, intentional refusal to follow orders and difficulties in interpersonal relationships, necessitate the heightened structure and supervision afforded by a commitment to the board. Based on his long-time familiarity with the acquittee and his extensive review of the records, it is Trueblood's opinion that if discharged from the board, the acquittee will withdraw from therapy and will stop taking his prescribed medication thus putting him at substantial risk of injury to himself or others. According to Trueblood, the board's supervision and monitoring is different from that provided by the VA or a community organization and the acquittee requires this higher level of monitoring else he is at a substantial risk of harm to himself or others. Zeman does not dispute the acquittee's need for continued therapy and medication but believes that if the acquittee engaged in such treatment in the community, he would not constitute a danger to himself or others even without the supervision of the board. Significantly, Zeman was not asked, nor did he offer an opinion as to whether he believed the acquittee would engage in such treatment if released from the board.
At the hearing, the state and the acquittee stipulated that absent objection, Trueblood and Zeman would have testified the acquittee does not currently meet the standard for involuntary civil commitment. Such evidence is irrelevant in that the civil standard of dangerousness set forth in Gen. Stat. § 17a-495 does not apply to acquittees. State v. March, 265 Conn. 697, 708-09, 830 A.2d 212 (2003).
"Although psychiatric testimony as to the defendant's condition may form an important part of the trial court's ultimate determination, the court is not bound by this evidence . . . It may, in its discretion, accept all, part, or none of the experts' testimony . . . In reaching its difficult decision, the court may and should consider the entire record available to it, including the defendant's history of mental illness, his present and past diagnoses, his past violent behavior, the nature of the offense for which he was prosecuted, the need for continued medication and therapy, and the prospects for supervision if released . . ." (Citations omitted.) State v. Putnoki, 200 Conn. 208, 221, 510 A.2d 1329 (1986).
In the present case, the court has had the benefit of having heard the acquittee's testimony, as well as the expert testimony, and it has reviewed the board's report. Additionally the court heard the acquittee's testimony during the hearing on his application for discharge in September 2008. The acquittee's own words, along with his well documented history, make it abundantly clear to the court that the acquittee has, at best, limited insight into his illness, that he does not believe he needs to take medication despite its proven effectiveness and that he will not take prescribed medication without extensive persuasion. Moreover, his history reveals at least three prior psychotic episodes, substantial substance abuse, repeated refusals to comply with treatment recommendations, repeated instances of rule breaking and repeated instances of assaultive behavior. The court, therefore, finds not credible the acquittee's representation that if discharged from the board, he will voluntarily remain in treatment. The court further believes that if discharged from the board, the acquittee will not continue his prescribed medication. Based on the entire record, the court finds, by clear and convincing evidence, that the acquittee poses an imminent and substantial risk of harm to himself or others if he is discharged from the board.
No evidence was adduced at the hearing as to the necessary period of any continued commitment. In Trueblood's testimony before the board he recommended an additional year of commitment; the board has, however, recommended that the commitment be extended for three years.
The acquittee is currently housed at Connecticut Valley Hospital and the hospital has been trying since the fall of 2007 to transition the acquittee into the community. The acquittee's behavior toward his peers and his treatment teams as well as his chronic rule breaking have, however, slowed this process down. As recently as November 2009, the acquittee again broke hospital policy when he invited another person to the hospital for a sexual liaison on the hospital campus and in December 2009, he was transferred to a new unit following problems with another patient.
His behavior has caused his transfer to new units and new treatment teams necessitating the establishment of a therapeutic relationship with a new team.
Despite these setbacks, the temporary leave plan is now complete and is ready to be submitted for the board's approval. The plan contemplates that most of the acquittee's treatment would shift to the VA on a day treatment basis and that supervision of the acquittee would remain with the hospital. After three-six months and assuming ongoing clinical stability, the plan contemplates overnight visits in the community. After an additional three to six months and again assuming ongoing clinical stability, the hospital hopes to transition the acquittee to a conditional leave in which he would reside in the community in supervised housing provided by a community mental health agency.
All of these events are contingent upon the acquittee's ongoing clinical stability and the availability of CMHC supported housing in the community. Trueblood estimates the occurrence of these events will take a minimum of six months to a maximum of twelve months after the board approves the temporary leave. Thereafter, once the acquittee is conditionally released into the community, there will need to be a period of supervision and monitoring to ensure a smooth transition to living outside the hospital. Based on the acquittee's history over the past twenty-five years, the court finds unrealistic Trueblood's belief that these objectives can be accomplished within an additional one year of commitment.
The board has recommended a commitment of three years. "[U]nder the acquittee statutory scheme, the board has general and specific familiarity with all acquittees beginning with their initial commitment and, therefore, is better equipped than courts to monitor their commitment." State v. Long, 268 Conn. 508, 536, 847 A.2d 862, cert. denied, 543 U.S. 969, 125 S.Ct. 424 L.Ed.3d (2004). Moreover, in the present case the board specifically averred that its "report is based on the record, the law, and the [b]oard's specialized knowledge and familiarity with the acquittee." (Emphasis added.) Report to the Court at 1. The court finds the board's recommendation to be reasonable and appropriate under all of the circumstances. The court, therefore, adopts the board's recommendation and commits the acquittee to the board for an additional three years until March 21, 2013.
II.
The acquittee raises two claims in his motion to dismiss: (1) that Gen. Stat. § 17a-593(c) is facially unconstitutional in violation of the equal protection clause of the United States Constitution and (2) that § 17a-593(c) as applied to him violates the equal protection clause. In a supplemental motion to dismiss, the acquittee further claims that his plea of not guilty violated his due process rights. In response, the state posits that the Supreme Court's decision in State v. Long, supra, 268 Conn. 508 controls the acquittee's facial invalidity claim; that § 17a-593(c) has not been disparately applied to him; and that the court does not have jurisdiction to consider the due process claim. The court agrees with the state.
A.
The issue of whether § 17a-593(c) is facially invalid under the equal protection clause has been addressed and resolved in State v. Long, supra, 268 Conn. 508 and State v. Lindo, 110 Conn.App. 418, 955 A.2d 576, cert. denied, 289 Conn. 948, 960 A.2d 1038 (2008).
In State v. Long, supra, 268 Conn. 508, the acquittee argued before the trial court that § 17a-593(c) violated his right to equal protection in that it treated acquittees differently from mentally ill prisoners who are civilly committed after they are incarcerated. The trial court agreed that the two classes are similarly situated but are disparately treated and thus dismissed the state's petition for continued commitment. On appeal, the Supreme Court reversed holding that "[General Statutes] § 17a-593(c) neither affects a suspect group nor implicates a fundamental right for purposes of the federal equal protection clause, therefore, [it] must be analyzed under rational basis review. See, e.g., Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 366-67, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (holding statutes that discriminate on basis of physical or mental disability are subject to rational basis review) . . . Thus, we next turn to whether `there is a plausible policy reason for the classification . . .' (Internal quotation marks omitted.) State v. Moran, . . . 264 Conn. [593,] 607, [ 825 A.2d 111 (2003)]. In the present case, we have no difficulty in ascertaining two rational reasons for the disparate treatment in statutory recommitment procedures for acquittees as compared to civilly committed inmates.
"First, under the acquittee statutory scheme, the board has general and specific familiarity with all acquittees beginning with their initial commitment and, therefore, is better equipped than courts to monitor their commitment . . . By placing oversight of these individuals in a single administrative agency, such as the board, which is comprised of laypersons and experts in relevant areas, including psychiatry, psychology, probation and victim advocacy, the legislature could reasonably could have believed that the board, with its expertise and familiarity with the mental status of each acquittee, would be better equipped than a court to monitor the individuals' recommitment . . .
"Second, . . . the legislature could have determined that the likelihood of an erroneous commitment is reduced in the case of an acquittee because an acquittee initiates the commitment process himself by pleading and proving the mental illness that led to his commission of a crime." Id., at 535-37.
In State v. Lindo, supra, 110 Conn.App. 418, the trial court granted the state's petition of continued commitment for a period not to exceed five years. On appeal and undeterred by the Supreme Court's holding in Long, the acquittee argued that (1) he held dual status as a sentenced prisoner and as an acquittee, therefore, he was entitled to the more stringent procedural protections applicable when the state seeks to civilly commit mentally ill prisoners and (2) even if he was an acquittee, the court should analyze his equal protection claim under the intermediate scrutiny test. The Appellate Court disagreed as to both grounds, holding first, that Lindo's dual status was irrelevant and second, that so long as Lindo was an acquittee, rational basis review, not intermediate scrutiny, was the appropriate standard. Id. at 425. The acquittee's petition for certification was denied by the Supreme Court.
While committed to the board, Lindo was convicted of stabbing a staff member at Connecticut Valley Hospital and received a sentence concurrent to his commitment. Accordingly at the time of his recommitment hearing, he was both serving a sentence and serving a term of commitment.
It is axiomatic that this court, as a subordinate court is bound by the decisions of our Supreme and Appellate Courts. Accordingly, the acquittee's claims in the present case that § 17a-593(c) is facially unconstitutional and that this court should analyze this claim under the intermediate scrutiny test are foreclosed by Long and Lindo.
The acquittee next argues that § 17a-593(c) has been applied to him in an unconstitutional manner. General Statutes § 17a-593 sets out the procedure by which an acquittee may be recommitted to the board. The statute requires that the state initiate the process by petitioning the court for an order of continued commitment within 135 days prior to the expiration of the commitment and that the state's petition be forwarded to the board. Thereafter, the board is required to file a report with the court setting forth its findings and conclusions as to whether the acquittee should be discharged. The board is authorized to hold hearings or take other appropriate action to assist it in its decision.
After the receipt of the board's report, the court is required to hold a hearing on the state's petition. For purposes of the court hearing, the state and the acquittee are each permitted to hire their own experts to conduct independent examinations of the acquittee and the parties are permitted to submit these reports to the court. The court may consider all of the reports as well as any other evidence presented. The state bears the burden of proof. Finally, unless the court finds, by clear and convincing evidence, that the acquittee is currently mentally ill and a danger to himself or others, the court must deny the state's petition.
State v. Harris, 277 Conn. 378, 890 A.2d 559 (2006); State v. Warren, 100 Conn.App. 407, 919 A.2d 465 (2007).
State v. Metz, 230 Conn. 400, 645 A.2d 965 (1994).
State v. Metz, supra, 230 Conn. 400; State v. March, 265 Conn. 697, 830 A.2d 212 (2003); State v. Warren, supra, 100 Conn.App. 407.
In the present case, the records show that on April 27, 2009, the state filed a petition for continued commitment in accordance with § 17a-593(c). Thereafter, the board held hearings on July 24, 2009, December 11, 2009 and January 22, 2010. At the hearing, numerous witnesses testified and were cross examined by the acquittee's attorney. Additionally, the acquittee was permitted to present his own expert testimony. On February 3, 2010, the board issued its report to the court setting forth its findings and conclusions including its recommendation that the state's petition be granted. A hearing was held before the court on February 24, 2010. At the hearing, the acquittee was permitted to cross examine the state's witnesses and he presented witnesses on his own behalf. As set forth in part I of this opinion, supra, the court concluded the state had proved, by clear and convincing evidence, that the acquittee is currently mentally ill and a danger to himself or others. On that basis, the court granted the state's petition for an order of continued commitment.
In the present case, the acquittee was accorded all of the procedures required by both statute and case law. Indeed, the acquittee makes no claim that those procedures were not followed. Moreover, he has adduced no other evidence that the application of § 17a-593(c) to him has treated him differently than any other acquittee found to be mentally ill and a danger to himself or others. Thus the acquittee's claim fails.
B.
Finally the acquittee asserts that his not guilty plea violated his right to due process under the United States Constitution in that he was never advised his commitment could be continued beyond the period imposed by the court at the time of his original commitment because the acquittee has been committed for twenty-five years, he seeks a dismissal. The state counters that the court has no jurisdiction to hear this claim. The court agrees with the state.
The acquittee argues that because his release would come after he has already served twenty-five years, any reasonable retributive goal of sentencing has been satisfied and no criminal justice purpose could justify his continued confinement. See, DuPerry v. Kirk, 563 F.Sup.2d 370, 389 (D.Conn. 2008).
At the hearing on the motion to dismiss, the acquittee and the petitioner stipulated that (1) the acquittee's trial defense attorneys, Ramon Canning and Raymond Kelly, never advised the acquittee, and were unaware, that the acquittee could be committed beyond the term of his original commitment; and (2) the acquittee, if he had been permitted, would have testified that he was never advised he could be committed beyond the term of his original commitment.
The issue of whether a trial court retains jurisdiction to dismiss an underlying criminal matter once a defendant has been found not guilty by reason of mental disease or defect and has entered into his term of commitment appears to be one of first impression in Connecticut. While this precise issue may be one of first impression, the law in this area is well settled as to criminal cases in which a defendant is found guilty. The Supreme Court, in a series of cases over the past twenty-two years, has repeatedly held that in the absence of a legislative or constitutional grant of continuing jurisdiction, the trial court loses jurisdiction to modify its judgment once the defendant enters into his commitment to the commissioner of correction.
"The Superior Court is a constitutional court of general jurisdiction. State v. Carey, 222 Conn. 299, 305-06, 610 A.2d 1147 (1992). In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law. Cichy v. Kostyk, 143 Conn. 688, 690, 125 A.2d 483 (1956). It is well established that under the common law a trial court has the discretionary power to modify or vacate a criminal judgment before the sentence has been executed. State v. Walzer, 208 Conn. 420, 426-28, 545 A.2d 559 (1988); State v. Nardini, 187 Conn. 109, 123, 445 A.2d 304 (1982); State v. Pallotti, 119 Conn. 70, 74, 174 A. 74 (1934,); State v. Vaughan, 71 Conn. 457, 460-61, 42 A. 640 (1899). This is so because the court loses jurisdiction over the case when the defendant is committed to the custody of the commissioner of correction and begins serving the sentence. State v. Walzer, supra, [ 208 Conn.] 420." State v. Luzietti, 230 Conn. 427, 431-32, 646 A.2d 85 (1994). Applying these principles, the Court has held that a trial court lacks jurisdiction to consider a motion to withdraw a guilty plea after sentencing, State v. Reid, supra, 277 Conn. 764; that a trial court has no jurisdiction to enter a judgment of acquittal after a defendant had begun serving his sentence, State v. Luzietti, supra, 230 Conn. 427; that a trial court has no jurisdiction to vacate a judgment of conviction after a defendant began serving his sentence, State v. Das, 291 Conn. 356, 968 A.2d 367 (2009).
"[T]here are a limited number of circumstances in which the legislature expressly has conferred on the trial courts `continuing jurisdiction to act on their judgments after the commencement of sentence . . . See, e.g., General Statutes §§ 53a-29 through 53a-34 (permitting the trial court to modify terms of probation after sentence is imposed); General Statutes § 52-270 (granting jurisdiction to trial court to hear a petition for a new trial after execution of original sentence has commenced); General Statutes § 53a-39 (allowing the trial court to modify sentences of less than three years provided a hearing is held and good cause shown)' (Internal quotation marks omitted.) State v. Boulier, 49 Conn.App. 702, 705, 716 A.2d 134 (1998)." State v. Reid, 277 Conn. 774, 775, n. 13, 894 A.2d 963 (2006).
Recently in State v. Das, supra, 291 Conn. 356, the Supreme Court addressed and foreclosed the constitutional exception to a trial court's loss of jurisdiction which had been suggested by some prior cases. In Das, after the defendant had entered into his commitment to the commissioner of correction, he moved to withdraw his guilty plea on the grounds that he was not advised of the consequences of his plea and was therefore denied due process. The trial court dismissed the motion finding that it had no jurisdiction to hear the matter. The Supreme Court affirmed holding that ". . . once a defendant's sentence is executed, the trial court lacks jurisdiction to entertain any claims regarding the validity of that plea in the absence of a statute or rule of practice to the contrary . . ." State v. Das, supra, 291 Conn. 368. The Court then stated "[t]o the extent that cases such as State v. Martin, [ 197 Conn. 17, 495 A.2d 1985 (1985)], State v. Anonymous, (1980-9), [ 36 Conn.Sup. 578, 421 A.2d 557 (1980)]; State v. Falcon, [ 84 Conn.App. 84 (2004)]; State v. Perez, 85 Conn.App. 27, 37-38, 856 A.2d 452, cert. denied, 271 Conn. 933, 859 A.2d 931 (2004); and State v. Schaeffer, [ 5 Conn.App. 378, 498 A.2d 134 (1985)], suggest that there exists in our jurisprudence a constitutional violation exception to the trial court's lack of jurisdiction . . . after the sentence has been executed, those cases are hereby overruled." Id.
The only practical difference between a defendant convicted of a crime and a defendant found not guilty by reason of insanity is at the conclusion of the trial, the former enters into a commitment to the custody of the commissioner of correction while the latter enters into a commitment to the custody of the psychiatric security review board. In all other respects, the two defendants are accorded the same procedural and constitutional protections throughout the trial process including the right to an attorney, to a jury trial, to confront the witnesses against him, to have the state prove his guilt beyond a reasonable doubt and the right against self-incrimination. Additionally, each defendant is entitled to appeal the trial court's judgment and each may petition the Superior Court for a writ of habeas corpus.
Since July 1, 1985, all defendants found not guilty by reason of insanity have been committed to the custody of the board. The defendant in the present case was committed to the custody of the commissioner of mental health pursuant to Gen. Stat. § 53a-47, now repealed and was transferred to the custody of the board on July 1, 1985.
This court can discern no reason why the principles of Das should not be applied to the facts of the present case and will proceed to do so. In the wake of Das, it is beyond dispute that a legislative grant of authority is required to vest a trial court with continuing jurisdiction after a defendant enters upon his sentence. In cases involving a defendant found not guilty by reason of insanity, the legislature has granted the trial court continuing jurisdiction to consider only applications for discharge from commitment and petitions for continued commitment. Cf. Gen. Stat. § 17a-593(c). This court, therefore, lacks jurisdiction to set aside the judgment in the present case on the grounds that the acquittee's plea was constitutionally invalid.
Even if this court has the authority to consider the issue raised by the acquittee — that his plea of not guilty violated his due process rights — this claim would fail on the merits. The acquittee's claim rests solely on a federal District Court decision, DuPerry v. Kirk, 563 F.Sup.2d 370 (D.Conn. 2008), in which the court held DuPerry's due process rights were violated when a Connecticut trial court failed to canvass his plea of not guilty by reason of insanity in accordance with the dictates of Boykin v. Alabama, 395 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). This District Court decision, in turn, rests solely on two prior federal cases, Miller v. Angliker, 848 F.2d 1312 (2d Cir. 1988) and United States v. Brown, 428 F.2d 1100 (D.C. Cir. 1970).
At the time of this decision, the matter of DuPerry v. Kirk, supra, 563 F.Sup.2d 370 is on appeal before the Second Circuit Court of Appeals.
In Miller, the petitioner was charged with the murder of five Connecticut women. He pleaded not guilty and asserted a defense of mental disease or defect. The trial was a perfunctory proceeding in which both parties urged the court to accept the petitioner's defense. The trial court found the petitioner not guilty by reason of mental disease or defect and he was committed to the custody of the psychiatric security review board. In the federal District Court, the petitioner filed a petition for a writ of habeas corpus seeking his release on the grounds that the state had withheld exculpatory information in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The petition was denied and the petitioner appealed to the Second Circuit Court of Appeals.
The Court of Appeals reversed and granted the writ. The Court first analogized a plea of not guilty by reason of insanity to a plea of guilty stating that "[a] plea of not guilty by reason of insanity resembles the plea of guilty in several significant respects, as it waives important trial rights belonging to the defendant." Miller v. Angliker, supra, 848 F.2d 1319. The Court further reasoned that because of "the practical similarities between guilty pleas and pleas of not guilty by reason of insanity, "due process requires the state to disclose all material exculpatory information regardless of whether a defendant has pleaded guilty or has pleaded not guilty by reason of insanity. Since the state had withheld such information in Miller's case, his plea was not entered knowingly and voluntarily.
In United States v. Brown, the defendant stipulated to the facts charged in the indictment and then pleaded not guilty by reason of insanity. Notwithstanding his insanity defense, the defendant was convicted of the underlying crime. The defendant appealed claiming that his constitutional rights were violated when the trial court failed, under Rule 11 of the Federal Rules of Criminal Procedure, to canvass him to ensure that his stipulation of fact was made knowingly and voluntarily. The Court of Appeals held that the defendant's claim under Rule 11 was unavailing in that Rule 11 applies only to defendants who plead guilty. Notwithstanding this, the Court concluded that in all future cases, Rule 11's prophylactic protections should be extended to defendants who plead not guilty by reason of insanity since most if not all of the constitutional rights which Rule 11 seeks to protect are waived when a defendant enters into a stipulation as to the facts.
Rule 11, Fed.R.Crim.P. states, in pertinent part: ". . . The court may refuse to accept a plea of guilty, and shall not accept such a plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with an understanding of the nature of the charge and the consequences of the plea . . ."
"While we apply our ruling in this case, it will not be applied otherwise except in cases tried after this date." United States v. Brown, 428 F.2d 1100, 1102 (D.C. Cir. 1970).
Our Supreme Court had occasion to address Miller and Brown in DuPerry v. Solnit, 261 Conn. 309 (2002). DuPerry brought a petition for a writ of habeas corpus alleging that his plea of not guilty by reason of mental disease or defect was not knowing and voluntary in that it was accepted without compliance with the dictates of Boykin v. Alabama, supra, 395 U.S. 288, and that his confinement was, therefore, illegal. The trial court agreed and granted the petition. The respondent appealed arguing that the habeas court overstepped its authority inasmuch as its holding established a new constitutional rule in a collateral proceeding in contravention of the principles of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The petitioner countered that the applicability of the Boykin principle to a plea of not guilty by reason of mental disease or defect was well established by the decisions in Miller and Brown, thus the habeas court's ruling did not overstep its authority. The Supreme Court first soundly rejected the petitioner's claim that this rule was well established and, then questioned whether Miller and Brown had established any constitutional principle at all. The Court distinguished Miller on the ground that the sole issue in Miller was the applicability of Brady's discovery requirements to defendants who plead not guilty by reason of insanity. Moreover, the Court observed that the petitioner in Miller "never claimed, and the court never addressed whether, the petitioner had a due process right to be canvassed by the trial court as though he had pleaded guilty." Id., at 323.
As to Brown, the Court said that "the [C]ourt [of Appeals] did not expressly rest its holding on a constitutional footing. Rather the court extended the reach of a federal procedural rule pursuant to what appears to have been an exercise of its supervisory authority." Id., at 324. Accordingly, "neither [ Miller or Brown] established the principle that a trial court must, as a constitutional requirement, canvass a defendant who enters [a] plea [of not guilty by reason of insanity] to ensure that the plea is made knowingly and voluntarily." Id. at 323.
The Supreme Court next addressed the substance of the issue presented by the petitioner and concluded that "in the exercise of our supervisory authority over the administration of justice . . . in all future cases in which a defendant pleads not guilty by reason of mental disease or defect, and the state substantially agrees with the defendant's claim of mental disease or defect, with the result that the trial is not an adversarial proceeding, the trial court must canvass the defendant to ensure that his plea is made voluntarily and with a full understanding of the consequences. The scope of the canvass should be similar to that of the canvass prescribed by Practice Book § 39-19 for a defendant who pleads guilty. Specifically, the canvass must at a minimum, establish that . . . (7) any term of commitment imposed by the trial court may be extended, potentially for an indefinite duration, as a result of a civil commitment proceeding pursuant to General Statutes § 17a-593." Id. at 329.
It is significant to note what the Supreme Court in DuPerry v. Solnit did not hold. The Court did not hold that Prac. Bk. § 39-19 applies to defendants who plead not guilty by reason of mental disease or defect. Additionally and most significantly, the Court did not hold that due process requires that a plea of not guilty by reason of mental disease or defect be knowing and voluntary. In State v. Ouellette, 271 Conn. 740 (2004), the Court reiterated this by stating "we expressly declined [in DuPerry] to address whether . . . the principle of Boykin v. Alabama, . . . that due process requires a plea of guilty to be knowing and voluntary, applies equally to a plea of not guilty by reason of mental disease or defect." (Quotation marks omitted.) State v. Ouellette, supra, 271 Conn. 766-67, citing DuPerry v. Solnit, supra, 261 Conn. 326 n. 7.
Additionally, the Court reaffirmed that the canvass rule it had established in DuPerry v. Solnit was promulgated under the Court's supervisory authority and not as a new constitutional rule. The Court noted "as courts in a number of other jurisdictions also have recognized; e.g., Miller v. Angliker, 848 F.2d 1312, 1320 (2d Cir.), cert. denied, 488 U.S. 890, 109 S.Ct. 224, 102 L.Ed.2d 214 (1988); United States v. Brown, 428 F.2d 1100, 1102-03 (D.C. Cir. 1970); there are certain practical similarities between guilty pleas and pleas of not guilty by reason of mental disease or defect or by reason of insanity. We know of no court, however, that has required, as a matter of constitutional law, a Boykin-type canvass of a defendant who pleads not guilty by reason of mental disease or defect or by reason of insanity. Moreover, those courts that have required such a canvass have done so not as a matter of constitutional mandate but, rather, on the basis of prudential considerations; e.g., United States v. Brown, supra, 1103-04; State v. Shegrud, 131 Wis.2d 133, 138, 389 N.W.2d 7 (1986), cert. denied, 479 U.S. 1037, 107 S.Ct. 891, 93 L.Ed.2d 843 (1987); see People v. Vanley, 41 Cal.App.3d 846, 856, 116 Cal.Rptr. 446 (1974); Legrand v. United States, 570 A.2d 786, 792-94 (D.C.App. 1990) . . ." State v. Ouellette, supra, 271 Conn. 768.
Against this backdrop, the acquittee in the present case argues that this court should adopt the holding of the District Court in DuPerry v. Kirk, supra, 563 F.Sup.2d 370, that to be constitutionally valid, a plea of not guilty by reason of insanity must have been made knowingly and with a complete understanding of the consequences.
It is clear from a careful reading of the opinion in DuPerry v. Kirk that its holding rests solely on Miller and Brown. Notably the District Court stated " Brown is . . . persuasive on the issue of whether the constitutional principle that a guilty plea must be made knowingly and voluntarily applies equally to N[ot G[uilty by] R[eason of] I[nsanity] pleas . . . I conclude that [the petitioner's] N[ot] G[uilty by] R[eason of] I[nsanity] plea was the practical equivalent of a guilty plea because it operated as a waiver of his constitutional trial rights . . . and subjected him to the possibility of involuntary and indefinite confinement. Although he did not completely relieve the state of its burden of proof, like the petitioner in Miller, he lessened that burden considerably . . . To be constitutionally valid, DuPerry must have pled N[ot G[uilty by] R[eason of] I[nsanity] knowingly and with a complete understanding of the potential consequences. Because he did not, his N[ot G[uilty by] R[eason of] I[nsanity] plea is invalid . . ." DuPerry v. Kirk, supra, 563 F.Sup. 2d 388.
Neither our Supreme Court or our Appellate Court has ever held that a trial court's failure to ensure that a plea of not guilty by reason of mental disease or defect was knowing and voluntary offends the constitution. Additionally this court agrees with our Supreme Court that neither Miller or Brown established such a rule as a matter of constitutional law. This court, therefore, respectfully disagrees with the District Court's conclusion in DuPerry v. Kirk, supra, 563 F.Sup.2d 370, and declines to follow it. Accordingly, the court concludes that the acquittee's due process rights were not violated when prior to his plea of not guilty, he was not made aware that his commitment could be extended beyond its original term. The court dismisses the acquittee's supplemental motion to dismiss.
CONCLUSION
For the foregoing reasons, the state's petition for a continued commitment is granted and the acquittee is committed to the custody of the psychiatric security review board until March 21, 2013, the acquittee's motion to dismiss is denied and the acquittee's supplemental motion to dismiss is dismissed.