State v. Brown

************************************************ The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of 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 Connecti- cut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the 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 an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************  State v. Brown STATE OF CONNECTICUT v. DONYAE BROWN (AC 48670) Clark, C. J., and Wilson and Pierson, Js. Syllabus The defendant appealed from the trial court’s judgment revoking his proba- tion and committing him to the custody of the Commissioner of Correction to serve the remaining six and one-half years of his previously suspended sentence of incarceration. He claimed that his due process right to fair notice of the charges against him was violated when the state filed a substitute long form information changing the basis for the violation of probation on the morning of the probation revocation hearing. Held: The defendant’s claim that his due process right to fair notice was violated was unavailing, as the record revealed that the defendant had notice of the claims alleged in the substitute information six days prior to the probation revocation hearing, and the defendant failed to make a specific showing of prejudice resulting from the changes made in the substitute information. Argued September 2—officially released November 3, 2026 Procedural History Substitute information charging the defendant with violation of probation, brought to the Superior Court in the judicial district of Stamford-Norwalk, geographical area number one, where the court, Hon. Gary J. White, judge trial referee, denied the defendant’s motion for a continuance; thereafter, the case was tried to the court, Hon. Gary J. White, judge trial referee; judgment revok- ing the defendant’s probation, from which the defendant appealed to this court. Affirmed. Robert L. O’Brien, assigned counsel, with whom, on the brief, was Christopher Y. Duby, assigned counsel, for the appellant (defendant). Lauren R. Williams, special deputy assistant state’s attorney, with whom, on the brief, were Paul J. Ferencek, state’s attorney, and Dina Urso, deputy assistant state’s attorney, for the appellee (state). Opinion CLARK, C. J. The defendant, Donyae Brown, appeals from the judgment of the trial court finding him in  State v. Brown violation of his probation pursuant to General Statutes § 53a-32 and sentencing him to serve six and one-half years of his suspended sentences for two prior convic- tions. On appeal, the defendant claims that his due pro- cess right to fair notice of the charges against him was violated when the state filed a substitute long form infor- mation changing the basis for the violation of probation on the morning of the probation revocation hearing. We disagree and, accordingly, affirm the judgment of the trial court. The following facts and procedural history are rel- evant to this appeal. On March 6, 2020, in Docket No. S01S-CR-XX-XXXXXXX-S, the defendant was convicted of risk of injury to a child in violation of General Statutes § 53-21, and failure to appear in the first degree in viola- tion of General Statutes § 53a-172. On the same date, in Docket No. S01S-CR-XX-XXXXXXX-S, the defendant was convicted of burglary in the first degree in violation of General Statutes § 53a-101, violation of a protective order in violation of General Statutes § 53a-223, and risk of injury to a child in violation of § 53-21. On September 29, 2020, in Docket No. S01S-CR-XX-XXXXXXX-S, the trial court, Hudock, J., sentenced the defendant to four years of incarceration, execution suspended after eigh- teen months, followed by four years of probation. On the same date, in Docket No. S01S-CR-XX-XXXXXXX-S, the trial court, Hudock, J., sentenced the defendant to four years of incarceration, execution suspended, followed by four years of probation, to be served consecutively to the sentence imposed in Docket No. S01S-CR-18- 0195364-S. The court imposed conditions of probation which included, inter alia, “[d]o not violate any criminal law of the United States, this state or any other state or territory . . . [s]ubmit to any medical and/or psychologi- cal evaluation, urinalysis, alcohol and/or drug testing, and/or counseling sessions required by the [c]ourt or the [p]robation [o]fficer . . . [and submit to] substance evaluation and treatment.”  State v. Brown On November 29, 2023, while serving probation pursu- ant to the sentences imposed on September 29, 2020, the defendant was arrested and charged with two counts of criminal violation of a restraining order in violation of General Statutes § 53a-223b, two counts of risk of injury to a child in violation of § 53-21, second degree unlaw- ful restraint in violation of General Statutes § 53a-96, interfering with an officer/resisting arrest in violation of General Statutes § 53a-167a, and failure to comply with a fingerprint request in violation of General Statutes § 29-17. On January 8, 2024, the defendant was arrested pursuant to a warrant charging him with violating his probation pursuant to § 53a-32. The warrant cited Payne v. Robinson, 10 Conn. App. 395, 402–403, 523 A.2d 917 (1987), aff’d, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988),1 and the defendant’s November 29, 2023 arrest as the basis for the violation of probation. On January 23, 2025, a violation of probation hearing was held before the court, Hon. Gary J. White, judge trial referee. On the morning of the hearing, the state filed a substitute long form information alleging that the defendant violated the conditions of his probation by failing to attend numerous substance abuse treat- ment sessions and testing positive for cocaine on three 1 In Payne v. Robinson, supra, 10 Conn. App. 403, this court explained that, “[i]n a probation violation proceeding, all that is required is enough to satisfy the court within its sound judicial discretion that the proba- tioner has not met the terms of his probation.” We further explained, citing to § 53a-32, that “no revocation of probation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence. . . . [E]ven though revocation is based upon felonious conduct, the constitution does not require that proof of such conduct be sufficient to sustain a criminal conviction.” (Citation omitted; internal quotation marks omitted.) Id., 402; see also State v. Benjamin, 299 Conn. 223, 236, 9 A.3d 338 (2010) (“a trial court may not find a violation of probation unless it finds that the predicate facts underlying the violation have been established by a preponderance of the evidence at the hearing—that is, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation” (internal quotation marks omitted)).  State v. Brown separate occasions. The substitute information did not reference the defendant’s November 29, 2023 arrest as a basis for violating his probation. At the outset of the hearing, defense counsel orally moved for a continuance of the hearing.2 First, he claimed that the state had disclosed the notes of the probation officer that it planned to call as a witness at the hearing just six days before the hearing and had provided him with the written conditions of the defendant’s proba- tion just four days before the hearing.3 Second, defense counsel stated that he “did not know [the state] was going forward on the technical violations until . . . last week.” He argued that a continuance was necessary to remedy the late disclosure of requested material and that “the issue ultimately turns on whether [he] had enough time to prepare.” The following exchange ensued: “The Court: Have you been in the file the entire time, Counsel? “[Defense Counsel]: I have been in the file since May. “The Court: Since May of 2024. “[Defense Counsel]: Correct, sir. 2 At the hearing, defense counsel also stated that he previously had filed a written motion for relief pursuant to Practice Book § 40-5 concerning the state’s alleged failure to provide timely discovery materials, along with a motion for a continuance of the probation revocation hearing. There are no such motions in the trial court record, however, and the parties do not rely on the content of any such motions in their briefs. Because it is unclear whether the defendant ever filed such motions, much less what the contents of those motions might have been, we focus our analysis on the oral request for a continuance that defense counsel made during the probation revocation hearing. 3 The prosecutor argued to the court that the state had no obligation to provide any of these materials to the defendant earlier than it did. Specifically, she claimed that, up until shortly before the time that she shared the materials with defense counsel, the materials had been in the sole possession of a third party, namely the Office of Adult Probation, which is a division of the Judicial Branch. As a result, she maintained that she had fulfilled her discovery obligations and that, had the defen- dant wished to obtain the materials sooner, he could have obtained them directly from the same source.  State v. Brown “The Court: Okay, and we’re obviously in 2025. The matter was scheduled for a hearing when? “[Defense Counsel]: November 14th, 2024. “The Court: November 14th of 2024, so it’s been sched- uled for a hearing for a couple of months. You’ve had the notes since—as far back as last Friday, [six days before the hearing], or if you want to be—since last Sunday [four days before the hearing]. You’ve had an opportu- nity to review them. You’re asking me for a continuance claiming that you haven’t had the notes long enough to be prepared. That appears to be what you’re saying. “[Defense Counsel]: And because the claims that they’re pursuing at this hearing changed on Friday. “The Court: Okay, so instead of pursuing claims under Payne v. Robinson— “[Defense Counsel]: Correct. “The Court: You’re pursuing, quote/unquote, techni- cal violations.” Thus, defense counsel acknowledged at the hearing that he was aware that the state was going forward on the technical violations six days prior to the hearing. He also acknowledged that he had received the notes, condi- tions of probation, and orders of probation and had an opportunity to review them at least four days before the hearing. After hearing from the prosecutor and defense counsel, the court denied the defendant’s motion for a continuance and proceeded with the probation revoca- tion hearing. During the evidentiary phase of the hearing,4 the state called Kimberly Lamothe to testify regarding the 4 “Our Supreme Court has recognized that revocation of probation hearings, pursuant to § 53a-32, are comprised of two distinct phases, each with a distinct purpose. . . . In the evidentiary phase, [a] factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. . . . In the dispositional phase, [i]f a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation  State v. Brown defendant’s alleged violation of probation. Lamothe testified that she has been the defendant’s probation officer since July 15, 2021, and outlined the pertinent conditions of the defendant’s probation. Lamothe fur- ther testified that the defendant failed to show up to his mandated substance abuse treatment provider on at least twenty-six occasions. In addition, she testified that the defendant tested positive for cocaine on February 16, May 19 and August 11, 2023. During cross-examination of Lamothe, defense counsel elicited testimony that the defendant was employed full- time and had missed some of his scheduled treatments because of his work schedule, which Lamothe, during direct examination, testified may be a permissible rea- son to miss appointments if communicated before the absence. Defense counsel further elicited testimony from Lamothe that she had been working with the defendant to get back into compliance with his probation condi- tions and that the defendant had expressed a desire not to miss further appointments, which Lamothe testified on direct examination was why she previously decided not to pursue the technical violations. The defendant did not testify and did not present any of his own witnesses during the evidentiary phase of the proceedings. After the close of evidence, the prosecutor argued that the defendant’s failure to attend his substance abuse treatment sessions alone was sufficient to support a find- ing that he had violated his probation. Defense counsel countered that he did not have enough time to prepare for the hearing in light of the substitute information, and that the defendant “was eager to be in compliance.” Following the violation of probation hearing, the court, Hon. Gary J. White, judge trial referee, found by a pre- ponderance of the evidence that, by failing to attend his probation ordered substance abuse treatment sessions and by testing positive for illegal drugs on at least three are no longer being served.” (Internal quotation marks omitted.) State v. Barnes, 116 Conn. App. 76, 80, 974 A.2d 815, cert. denied, 293 Conn. 925, 980 A.2d 913 (2009).  State v. Brown occasions, the defendant violated the terms of his proba- tion. The court revoked the defendant’s probation and sentenced him to six and one-half years of incarceration, which represented the balance of time remaining on the suspended consecutive sentences imposed for his two criminal convictions. Additional facts and procedural history will be set forth as necessary. The defendant’s sole claim on appeal is that he was deprived of his due process right to fair notice of the charges against him when the state filed a substitute long form information changing the charges against him on the day of his probation revocation hearing. The defen- dant argues that the short notice unfairly prejudiced his defense.5 We disagree. Whether the defendant was deprived of his due pro- cess right to fair notice of the charges underlying his revocation of probation hearing is a question of law over which our review is plenary. See State v. Reilly, 60 Conn. App. 716, 727, 760 A.2d 1001 (2000). “The abuse of discretion standard does not apply to constitutional . . . claims, which are reviewed de novo by the courts.” (Internal quotation marks omitted.) In re Shaquanna M., 61 Conn. App. 592, 600, 767 A.2d 155 (2001). “It is well established that the defendant is entitled to due process rights in a probation violation proceed- ing. Probation revocation proceedings fall within the protections guaranteed by the due process clause of the fourteenth amendment to the federal constitution . . . .” (Internal quotation marks omitted.) State v. Andaz, 181 Conn. App. 228, 232–33, 186 A.3d 66, cert. denied, 329 Conn. 901, 184 A.3d 1214 (2018). “The revocation proceeding must comport with the basic requirements of due process because termination of that privilege 5 The defendant requested review of this claim under State v. Gold- ing, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), to the extent any portion of his claim was unpreserved. The state does not contest the reviewability of the defendant’s claim. Because we conclude that the defendant’s claim was properly preserved, we need not undertake a Golding analysis. See Practice Book § 60-5.  State v. Brown results in a loss of liberty. . . . [T]he minimum due process requirements for revocation of [probation] include writ- ten notice of the claimed [probation] violation, disclosure to the [probationer] of the evidence against him, the opportunity to be heard in person and to present wit- nesses and documentary evidence, the right to confront and cross-examine adverse witnesses in most instances, a neutral hearing body, and a written statement as to the evidence for and reasons for [probation] violation.’’ (Internal quotation marks omitted.) State v. Tucker, 179 Conn. App. 270, 280, 178 A.3d 1103, cert. denied, 328 Conn. 917, 180 A.3d 963 (2018). “Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded . . . .” Applica- tion of Gault, 387 U.S. 1, 33, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967); see also State v. Carlos E., 158 Conn. App. 646, 652–53, 120 A.3d 1239, cert. denied, 319 Conn. 909, 125 A.3d 199 (2015). Although due process is required in revocation hearings, courts “have sought to preserve the flexible, informal nature of the revoca- tion hearing, which does not require the full panoply of procedural safeguards associated with a criminal trial.” Black v. Romano, 471 U.S. 606, 613, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985); see also State v. Andaz, supra, 232–33. A defendant “cannot be found in violation of probation on grounds other than those with which he is charged.” State v. Pierce, 64 Conn. App. 208, 215, 779 A.2d 233 (2001). In the present case, it is undisputed that the defen- dant received written notice of the charges against him when the state filed the substitute information prior to the hearing. The only relevant question, therefore, is whether, under the totality of the circumstances, notice was sufficient to comply with due process. As this court has recognized, “[i]t is beyond question that in a crimi- nal proceeding, the state may change the factual basis supporting a criminal count prior to trial. See Practice Book § 36-17. If substantive amendments are permis- sible prior to trial in a criminal proceeding, then surely  State v. Brown our legislature did not intend to prohibit them prior to a hearing in a probation revocation proceeding.” (Footnote omitted.) State v. Outlaw, 60 Conn. App. 515, 526, 760 A.2d 140 (2000), aff’d, 256 Conn. 408, 772 A.2d 1122 (2001); see also State v. Theoferlius D., 93 Conn. App. 88, 93, 888 A.2d 118 (2006), aff’d, 286 Conn. 353, 944 A.2d 288 (2008). “The language of . . . § 36-17 requires only that the substitute information be filed before the trial or hearing commences, which this court interprets broadly.” State v. Andaz, supra, 181 Conn. App. 234; see, e.g., State v. Van Eck, 69 Conn. App. 482, 490, 795 A.2d 582 (trial court did not err in permitting state to amend information to substitute new charge midtrial because it was clear defendant had actual notice of new charge), cert. denied, 260 Conn. 937, 802 A.2d 92 (2002), and cert. denied, 261 Conn. 915, 806 A.2d 1057 (2002); State v. Marsala, 44 Conn. App. 84, 89–90, 688 A.2d 336 (trial court did not err in permitting state’s amendment adding four new counts on day of trial), cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). Moreover, when faced with a claim that the amendment of an information “implicates the defendant’s constitu- tional right to fair notice of the charges against him,” the court considers whether the defendant suffered prejudice because of the amendment when determining whether a due process violation occurred. (Internal quotation marks omitted.) State v. Jordan, 132 Conn. App. 817, 826, 33 A.3d 307, cert. denied, 304 Conn. 909, 39 A.3d 1119 (2012); see also Practice Book § 36-17 (trial court may not allow amendment if “the substantive rights of the defendant would be prejudiced”). “On appeal, the defendant must provide a specific showing of prejudice in order to establish that he was denied the right of due process of law as a result of the state’s [amendment of] the information.” (Emphasis omitted; internal quota- tion marks omitted.) State v. Jordan, supra, 826. The burden is on the defendant to show that his substantive rights were prejudiced. Id.  State v. Brown “In determining whether the defendant’s rights were prejudiced, this court considers the totality of the circum- stances in deciding whether the defendant was surprised by the changes and whether the defense was hampered. . . . A bare assertion of prejudice is not sufficient to support a claim of prejudice. . . . The defendant must provide a specific showing of prejudice in order to establish that he was denied the right of due process of law.” (Internal quotation marks omitted.) State v. Van Eck, supra, 69 Conn. App. 491; see id., 491–92 (holding that midtrial amendment to information that substituted new charge did not prejudice defendant because defendant did not establish that he “was surprised or that the defense was hampered” as result of amendment); State v. Ryan, 53 Conn. App. 606, 621–22, 733 A.2d 273 (1999) (trial court did not err in permitting amendment to informa- tion because defendant failed to show how his defense would have changed in absence of amendment); State v. Marsala, supra, 44 Conn. App. 89–90 (trial court did not err in allowing state to add four new counts on day of trial because defendant’s trial strategy would not have changed and defendant received copy of police reports detailing additional charges well before trial). “In the prejudice analysis, the decisive question is whether the defendant was informed of the charges with sufficient precision to be able to prepare an adequate defense. . . . Ultimately, if the amendment has no effect on the defen- dant’s asserted defense, there is no prejudice.” (Internal quotation marks omitted.) State v. Carlos E., supra, 158 Conn. App. 652–53. Thus, “we must consider whether the defendant has established the existence of a due process violation by demonstrating that he suffered prejudice as a result of the amendment.” Id., 653. In the present case, both parties claim that this court’s decision in State v. Andaz, supra, 181 Conn. App. 228, supports their respective positions. In Andaz, the state filed a substitute long form information six days before the violation of probation hearing. Id., 230–31. The initial violation of probation warrant alleged that the defendant violated his probation by committing burglary  State v. Brown in the third degree, criminal trespass in the third degree, and larceny in the sixth degree. Id., 231. The substitute information alleged that the defendant violated his pro- bation by committing assault on a different day than the offenses alleged in the original information. Id. This court held that six days constituted fair notice6 because defense counsel received the substitute information six days before the hearing, did not seek a continuance and had the opportunity to review it with the defendant, and the substitute information was filed prior to the start of the hearing. Id., 234–35. As this court explained, “the defendant provides no case law, nor do we find any such authority, to support the proposition that six days does not constitute fair notice.” Id. Although the state in the present case did not file the substitute information until the morning of the viola- tion of probation hearing, the record reveals that the defendant had notice that the state intended to proceed on the basis of the violations of probation alleged in the substitute information six days prior to the probation revocation hearing. During the hearing, defense coun- sel stated to the court that the “claims that [the state is] pursuing at this hearing changed on Friday,” which defense counsel agreed was six days before the hearing. In addition, earlier in the hearing, defense counsel stated that he was unaware the prosecution “was going forward on technical violations until [his conversation with the prosecutor] last week.” (Emphasis added.) Thus, defense counsel’s statements at the probation revocation hearing clearly indicate that the defendant knew six days before the hearing that the state would be proceeding on the technical violations. Defense counsel also acknowledged that the defendant had an opportunity to review the discovery materials supporting those viola- tions in advance of the hearing. As this court explained in 6 The court also reasoned that, because the nature of the underlying condition of probation in both informations was the same, i.e., that the defendant not violate any criminal laws, the defendant had notice that the other arrest could be a basis for the violation for which he ultimately was charged. See State v. Andaz, supra, 181 Conn. App. 235.  State v. Brown Andaz, there is no authority “to support the proposition that [as a matter of law] six days does not constitute fair notice.” State v. Andaz, supra, 181 Conn. App. 234–35. Moreover, the defendant failed to make a specific show- ing of prejudice resulting from the changes made in the substitute information. When questioned by the trial court, defense counsel failed to point to anything specific that he would have done differently had he been given more notice. Instead, defense counsel argued that “the issue ultimately turns on whether [he] had enough time to prepare.” He did not provide any specific information to the court, however, about why he required the addi- tional time to prepare. The defendant did not claim at the hearing and does not argue on appeal that he required additional time to investigate any aspects of the viola- tions alleged in the substitute information. He does not claim, for instance, that additional time was required to identify and present additional witnesses or records, that he would have pursued any additional lines of question- ing, or that his trial strategy would have changed. In fact, during oral argument before this court, the defendant’s appellate counsel acknowledged that the defendant had failed to make such a claim before the trial court, stat- ing: “No, I don’t think [defense counsel] said specifically to the [trial] court what it was he was not able to do or what he was not prepared to do” because the substitute information was filed the day of the hearing.7 To prevail on his due process claim, the defendant was required to demonstrate that he was specifically preju- diced by the alleged violation. See State v. Jordan, supra, 132 Conn. App. 826. “[B]are assertion[s] of prejudice” 7 In his reply brief, the defendant argues that defense counsel’s cross- examination of Lamothe showed prejudice because all of defense counsel’s questions went to the issues addressed in the dispositional phase rather than to the initial question of whether he violated the conditions of his probation. The defendant fails, however, to identify what other lines of questioning counsel would have pursued had he received notice ear- lier. As explained previously, it is the defendant’s burden to “provide a specific showing of prejudice in order to establish that he was denied the right of due process of law.” (Internal quotation marks omitted.) State v. Van Eck, supra, 69 Conn. App. 491.  State v. Brown are insufficient to meet that burden. (Internal quota- tion marks omitted.) State v. Van Eck, supra, 69 Conn. App. 491. Because the defendant in this case failed to make a specific showing of prejudice, he has not met his burden. Consequently, we conclude that the defendant’s due process claim fails. The judgment is affirmed. In this opinion the other judges concurred.