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STATE OF CONNECTICUT v. KOIL D. HOLDER

(AC 34983)

DiPentima, C. J., and Robinson and Mihalakos, Js.*

Argued November 13, 2013—officially released January 14, 2014

(Appeal from Superior Court, judicial district of New

London, geographical area number ten, McMahon, J.)

W. Theodore Koch III, assigned counsel, forthe appellant (defendant).

James A. Killen, senior assistant state’s attorney,

with whom, on the brief, were Michael L. Regan, state’s

attorney, and Mary Jean Kanabis, senior assistant

state’s attorney, for the appellee (state).
Opinion

DiPENTIMA, C. J. The defendant, Koil D. Holder,

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 court permitted him to represent himself without

conducting a proper canvass. We dismiss the appeal

as moot.

The following facts and procedural history are relevant to our discussion. On April 19, 2011, the defendant

was convicted of threatening in the second degree in

violation of General Statutes § 53a-62, and was sentenced to one year incarceration, execution suspended,

followed by one year conditional discharge. On February 21, 2012, the defendant was arrested and charged

with violation of conditional discharge under § 53a-32.

A hearing was held, and during the adjudicatory phase,

the defendant was not represented by counsel. The

state concedes that the court did not conduct a proper

canvass before it allowed the defendant to represent

himself. During the dispositional phase, however, the

defendant was represented by counsel. Having found

that the defendant violated his conditional discharge,

the court sentenced him to one year incarceration. This

appeal followed.

While this appeal was pending, the defendant pleaded

guilty, pursuant to the Alford doctrine,1

to criminal violation of a standing criminal protective order under

General Statutes § 53a-223a.2 The conduct underlying

the plea was the same conduct that served as the factual

basis for the charge of violation of conditional discharge.

On appeal, the defendant claims that the court failed

to comply with Practice Book § 44-3, and therefore, did

not find a voluntary and knowing waiver of his right to

counsel during the adjudicatory phase of the hearing.

We do not reach this claim, for there is a threshold

issue raised by the state that is dispositive of the appeal.

Specifically, the state argues that because the defendant

pleaded guilty to the conduct underlying the charge of

violation of conditional discharge, his claim is moot.

The defendant responds that his claim is not moot

because it is of constitutional magnitude. We agree with

the state.

‘‘Mootness is a question of justiciability that must be

determined as a threshold matter because it implicates

[this] court’s subject matter jurisdiction . . . . We

begin with the four part test forjusticiability established

in State v. Nardini, 187 Conn. 109, 445 A.2d 304 (1982).

. . . Because courts are established to resolve actual

controversies, before a claimed controversy 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 judicial power . . . and (4) that the

determination of the controversy will result in practical

relief to the complainant. . . .

‘‘The mootness doctrine is rooted in the first factor

of the Nardini test. . . . It is founded on the same

policy interests as the doctrine of standing, namely, to

assure the vigorous presentation of arguments concerning the matter at issue. . . . [T]he standing doctrine is

designed to ensure that courts and parties are not vexed

by suits brought to vindicate nonjusticiable interests

and that judicial decisions which may affect the rights

of others are forged in hot controversy, with each view

fairly and vigorously represented. . . . Indeed, we note

that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain

advisory judicial opinions on points of law. . . .

‘‘[A]n actual controversy must exist not only at the

time the appeal is taken, but also throughout the pendency of the appeal. . . . When, 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, a case has become

moot.’’ (Citations omitted; internal quotation marks

omitted.) State v. Preston, 286 Conn. 367, 373–74, 944

A.2d 276 (2008).

The question asked in this appeal has been answered

by our Supreme Court. In State v. McElveen, 261 Conn.

198, 218, 802 A.2d 74 (2002), the court stated: ‘‘[T]he

defendant is seeking review of the trial court’s determination that he violated probation by virtue of his criminal conduct on August 26, 1998. By admitting to that

very conduct by virtue of his guilty plea and the resultant judgment of conviction of attempted robbery in

the third degree . . . the defendant has eliminated the

controversy before the court. Accordingly, this appeal

is moot.’’ (Citation omitted.) The holding in McElveen

was reiterated in State v. Singleton, 274 Conn. 426, 439,

876 A.2d 1 (2005): ‘‘Where, subsequent to a finding of

violation of probation, a defendant is criminally convicted for the same conduct underlying the violation of

probation, his appeal from that judgment of violation

of probation is rendered moot because there is no

longer any live controversy about whether he engaged

in the conduct for which his probation was violated.’’3

Both McElveen and Singleton involved, as the defendant points out, challenges to findings of violation of

probation on insufficiency of evidence grounds and not

constitutional grounds. We see nothing in the language

of either case to limit their holdings to challenges of

insufficiency of evidence. Furthermore, the defendant

has provided no authority to support a different interpretation. A fair reading of McElveen and Singleton

reveals that the focus of inquiry is not on the type of
challenge raised but on the underlying conduct later

admitted. See State v. McElveen, supra, 261 Conn. 218;

State v. Singleton, supra, 274Conn. 439. Thus, the defendant’s conviction for the same conduct that served as

the factual basis for his charge of violation of conditional discharge ended the live controversy. See id.

Accordingly, we do not reach the merits of his claim

and conclude that this appeal is moot.

The appeal is dismissed.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1

‘‘Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.

2d 162 (1970), a criminal defendant is not required to admit his guilt . . .

but consents to being punished as if he were guilty to avoid the risk of

proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial

oxymoron in that the defendant does not admit guilt but acknowledges that

the state’s evidence against him is so strong that he is prepared to accept

the entry of a guilty plea nevertheless.’’ (Internal quotation marks omitted.)

State v. Pentland, 296 Conn. 305, 308 n.3, 994 A.2d 147 (2010).

2 The defendant did not appeal this conviction, and the time for filing an

appeal has expired.

3 We recognize that McElveen and Singleton arose from violations of

probation and not, as in this case, a violation of conditional discharge. For

purposes of this appeal, this is a distinction without a material difference.