State of Connecticut v. Eddie Alberto Perez (2011)

CORRECTED ¹ MEMORANDUM ORDER RE MOTION TO STRIKE

Upon reviewing all materials submitted by the parties in support of and in opposition to the motion of defendant Eddie Alberto Perez to strike the plaintiff State of Connecticut's complaint against him in this action, the Court hereby concludes, for the following reasons, that said motion must be DENIED:

1. This is an action by the plaintiff under General Statutes § 1–110a and § 1–110b to obtain an order from this Court revoking or reducing the plaintiff's municipal pension based upon his alleged conviction of crimes related to his former municipal office of Mayor of Hartford, Connecticut.

2. The defendant claims in his motion that the plaintiff's complaint fails to state a claim upon which relief can be granted because, although it alleges that he was “convicted” of several crimes related to his former municipal office, it assertedly fails to allege that any such conviction has become a final judgment as to which his appellate rights have either been waived or exhausted.

3. In support of his claim, the defendant argues that the term “convicted,” as used in General Statutes § 1–110a, must be construed to mean adjudged guilty of one or more crimes set aside.   If it were otherwise, he argues, a person erroneously found guilty in the trial court could be deprived of his pension, a valuable property interest, without due process of law.

4. The plaintiff disputes the defendant's claim, arguing principally that the word “convicted,” as used in the relevant statute, means found guilty of and sentenced for a crime in a court of competent jurisdiction, and thus made subject to a final, appealable judgment of conviction.   Although the continuing availability of an appeal from such a final judgment of conviction doubtless makes the judgment subject to being overturned or set aside, its appealability does not undermine its finality, but in fact is the result of its finality once sentence is imposed.

5. The Court agrees with the State that the term “convicted,” as used in modern Connecticut statutes and case law, means subjected to a final judgment of conviction by the imposition of sentence following a finding of guilty after plea or trial.   In State v. Couture, 151 Conn. 213, 219, 196 A.2d 113 (1963), our Supreme Court held, in a proceeding against a defendant claimed to have “operated” a motor vehicle under the influence of intoxicating liquor as a second offender, that the prior conviction element of his offense could not be satisfied by mere proof than the defendant had previously been charged with operating under the influence.   Instead, the Court noted, “To prove a conviction, it is necessary to show it by the record of a valid, subsisting final judgment.”  Id., at 219 (citing Card v. Foot, 57 Conn. 427, 432, 18 A.2d 713 (1889)).   Nothing in the Court's analysis suggested that anything more was required to prove a prior “conviction,” including the waiver or exhaustion of appellate rights as to the underlying conviction, for it had long been established in Connecticut that “final judgment” enters in a criminal case when the defendant is sentenced by the trial court.  State v. Vaughn, 71 Conn. 457, 42 A. 640 (1899);  State v. Lindsay, 109 Conn. 239, 243, 146 A. 290 (1929);  State v. Smith, 149 Conn. 487, 181 A.2d 446 (1962).

6. At common law in this State, moreover, it has long been held that a witness, although not disqualified from testifying on account of his prior felony convictions, may be impeached with evidence of such convictions as long as they have resulted in the imposition of sentences upon him, and thus become final judgments of the court.   Of special note in this context is that the pendency of an appeal from such a conviction, although provable by the party calling the witness in mitigation of its probative value for impeachment purposes, does not deprive the conviction of its finality or render evidence of it inadmissible.   See State v. Schroff, 3 Conn.App. 684, 689, 492 A.2d 190 (1985) (adopting the majority rule that a convictions is admissible at trial despite the pendency of an appeal from the judgment underlying it).   This rule remains codified to this day in § 6.7(d) of the Connecticut Code of Evidence.

7. Against this background, in the absence of any evidence suggesting that the term “conviction” was intended to mean something different in General Statutes § 1–110a than its common-law meaning of a final judgment resulting from the imposition of a sentence by the trial court after a finding of guilty, the Court concludes that the conviction allegation in the State's challenged complaint is sufficient to state a valid claim for revocation or reduction of the defendant's municipal pension under that statute.   That allegation if not rendered insufficient by its failure to plead that the defendant's right to appeal from his alleged convictions has either been waived or exhausted.

8. For all of the foregoing reasons, the defendant's motion to strike must be, and thus is hereby, DENIED.

IT IS SO ORDERED this 21st day of September 2011.

Michael, R. Sheldon, J.

FOOTNOTES

FN1. The heading on this Memorandum Order, as it was originally sent out to counsel, incorrectly inverted the names of the parties to this action.   This error was corrected before posting on the Internet..  FN1. The heading on this Memorandum Order, as it was originally sent out to counsel, incorrectly inverted the names of the parties to this action.   This error was corrected before posting on the Internet.

Sheldon, Michael R., J.