State v. Brown
State v. Brown
Opinion of the Court
Opinion
The defendant, Ronald Brown, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. The defendant claims that the court’s ruling was improper because the court, at the time of sentencing, exceeded its authority by imposing a total effective sentence that included a sixteen year term of special parole. We reverse the judgment of the trial court.
The following undisputed facts are relevant to the present appeal. In 2005, the state charged the defendant under docket number CR-05-0109070 with possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). In 2006, the state charged the defendant under docket number CR-06-0112604 with sale of narcotics in violation of General Statutes § 21a-278 (b).
On January 25, 2007, following plea negotiations between the state and the defendant, the defendant appeared before the court, Reynolds, J., and entered guilty pleas to the aforementioned pending charges. At
Thereafter, the court canvassed the defendant with regard to his guilty pleas. During the canvass, the court inquired as to the defendant’s understanding of the sentence to be imposed as follows:
“The Court: Your sentencing agreement with the state is for a total effective sentence of nine years to serve, five of which are a mandatory minimum.
“The Court: And then that’s to be followed by sixteen years of special parole. Do you understand that?
“The Defendant: Yes.”
Following the canvass, the court accepted the defendant’s pleas as having been freely, voluntarily and intelligently made with the effective assistance of counsel. The court found a factual basis for the pleas, and a finding of guilty entered on the three offenses.
On March 8, 2007, the defendant appeared before the court for sentencing. As he had at the January 25, 2007 hearing, the prosecutor set forth the terms of the plea agreement, and the defendant’s attorney stated his agreement with those terms. The court sentenced the defendant according to the plea agreement.
On September 22,2009, the defendant, as a self-represented party, filed a motion to correct an illegal sentence.
On July 12, 2010, the sentencing court held a hearing to consider the motion to correct. The defendant, now represented by counsel, argued that the court lacked
On appeal, the defendant reiterates his claim that the sixteen year term of special parole is illegal because it exceeds the ten year maximum period of special parole authorized by General Statutes § 54-125e (c).
In opposition, the state contends on appeal that the ten year limitation on a period of special parole under § 54-125e (c) applies to the sentence imposed for each offense or conviction, not to an aggregate sentence for multiple convictions. The state points out that were he not sentenced pursuant to a plea agreement, the defendant would have been subject to being tried separately and sentenced separately under the separate
“It is axiomatic that, in a criminal case, the jurisdiction of the sentencing court terminates once a defendant’s sentence has begun and a court may no longer take any action affecting a sentence unless it expressly has been authorized to act. . . . Providing such authorization to act, Practice Book § 43-22 states: The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.
“An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is inherently contradictory. . . . Sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but . . . imposed in a way which violates the defendant’s right ... to be addressed personally at sentencing and to speak in mitigation of punishment ... or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises . . . .” (Internal quotation marks omitted.) State v. Starks, 121 Conn. App. 581, 585-86, 997 A.2d 546 (2010). The claim here is that the defendant’s sentence was illegal. “We previously have noted that a defendant may challenge his or her criminal sentence on the ground that it is
A denial of a motion to correct an illegal sentence is reviewed under the abuse of discretion standard. State v. Carter, 122 Conn. App. 527, 532, 998 A.2d 1217 (2010), cert. denied, 300 Conn. 915, 13 A.3d 1104 (2011); State v. Starks, supra, 121 Conn. App. 586; State v. Henderson, 93 Conn. App. 61, 66, 888 A.2d 132, cert. denied, 277 Conn. 927, 895 A.2d 800 (2006). Of course, when the court is called upon to exercise its legal discretion, we must determine whether the trial court correctly interpreted and applied the law. See, e.g., State v. Rios, 110 Conn. App. 442, 448, 954 A.2d 901 (2008). Here, our review of the court’s exercise of discretion requires that we review the court’s interpretation of relevant statutory provisions. Insofar as the claim is that the sentence exceeds that authorized by statute, the claim presents an issue of statutory interpretation, which is an issue of law, and we afford it plenary review. See State v. Tabone, supra, 279 Conn. 534; State v. Garner, 270 Conn. 458, 478, 853 A.2d 478 (2004).
Because the legislature must delegate sentencing authority to the courts, we focus upon relevant statutory provisions. Our Supreme Court has acknowledged that although “the judicial branch is charged with the responsibility of adjudicating criminal charges and ultimately determining the sentence of incarceration, if any, to be imposed,” the courts do not have exclusive authority with regard to sentencing. Washington v. Commissioner of Correction, 287 Conn. 792, 828, 950 A.2d 1220 (2008). The Supreme Court has “acknowledged the legislature’s authority to define crimes and the appropriate penalties for them.” Id.; see also State v. Truppi, 182 Conn. 449, 467, 438 A.2d 712 (1980)
General Statutes § 53a-28 (b) provides that “when a person is convicted of an offense, the court shall impose one of the following sentences ... (9) a term of imprisonment and a period of special parole as provided in section 54-125e.” Section 54-125e (a) provides in relevant part: “Any person convicted of a crime committed on or after October 1, 1998, who received a definite sentence of more than two years followed by a period of special parole shall, at the expiration of the maximum term or terms of imprisonment imposed by the court, be automatically transferred to the jurisdiction of the chairperson of the Board of Pardons and Paroles . . . until the expiration of the period of special parole imposed by the court. The Department of Correction shall be responsible for the supervision of any person transferred to the jurisdiction of the chairperson of the Board of Pardons and Paroles under this section during such person’s period of special parole.”
Section 54-125e (c) provides: “The period of special parole shall be not less than one year or more than ten years, except that such period may be for more than ten years for aperson convicted of aviolation of subdivision (2) of section 53-21 of the general statutes in effect prior to October 1, 2000, subdivision (2) of subsection (a) of section 53-21 or section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b or sentenced as a persistent
“The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case .... When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case .... In seeking to determine that meaning . . . [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we look also for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter .... We recognize that terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise . . . .” (Internal quotation marks omitted.) State v. Leak, 297 Conn. 524, 532-33, 998 A.2d 1182 (2010).
It is not clear from a review of subsection (c) of § 54-125e whether the ten year limit on the “period of special parole” limits the special parole portion of the sentence imposed for individual offenses or whether it limits a defendant’s aggregate sentence that arises from his
In ascertaining the meaning of “period of special parole,” we consider other subsections of § 54-125e. An examination of subsection (a) sheds light on the statutory language at issue. Subsection (a) creates the scheme of postrelease supervision of persons sentenced to a period of special parole. It transfers jurisdiction over any person convicted of a crime committed on or after October 1, 1998, who received a definite sentence of more than two years followed by a period of special parole, from the commissioner of correction to the chairperson of the board of pardons and paroles, after which time supervision is to be undertaken by the department of correction. Subsection (a) provides that such automatic transfer of jurisdiction occurs “at the expiration of the maximum term or terms of imprisonment imposed by the court . . . .” General Statutes § 54-125e (a). Thereafter, such person shall “remain under the jurisdiction of said chairperson until the expiration of the period of special parole imposed by the court. . . .” General Statutes § 54-125e (a).
When interpreting a statute, this court is guided by the principle that a statute should not be read in such a manner as to render any portion of it superfluous. See State v. Christiano, 228 Conn. 456, 472, 637 A.2d 382, cert. denied, 513 U.S. 821, 115 S. Ct. 83, 130 L. Ed. 2d 36 (1994). Section 54-125e (a) provides in relevant part: “Any person convicted of a crime . . . who received a definite sentence of more than two years
Having interpreted relevant language in subsection (a), the proper application of the limit on the period of special parole that follows in subsection (c) becomes clear. The “period of special parole” that commences after the expiration of a person’s maximum term or terms of incarceration “shall not be less than one year or more than ten years” for a person, like the defendant, who has not been convicted of one of the enumerated exceptions set forth in subsection (c) for which a longer period of special parole may be imposed. Accordingly, we conclude that the court exceeded its sentencing
The state argues that several provisions reflect that a “period of special parole” refers to the special parole portion of a sentence imposed for a single applicable offense. The state refers to § 53a-28 (a) (“every person convicted of an offense shall be sentenced in accordance with this title”); § 53a-28 (b) (“when a person is convicted of an offense, the court shall impose one of the following sentences ... (9) a term of imprisonment and a period of special parole”); § 54-125e (c) (providing that period of special parole may exceed ten years for enumerated offenses)
Section 53a-31 (a) directs that periods of probation, regardless of when they are imposed, must run concurrently. Subsection (c) of § 54-125e provides that aperiod of special parole cannot exceed ten years in length unless the offender falls into one of the exceptions set forth in the statute. The legislature employed different means of limiting the authority of the sentencing court. We recognize the significant distinctions between probation and special parole and must leave such disparate limitations to the will of the legislature. Furthermore, contrary to the state’s argument, nothing in our analysis precludes a court from imposing consecutive sentences — that include a period of special parole — for multiple offenses. What a court cannot lawfully do, however,
Having concluded that the sentence imposed is illegal, we must consider an appropriate remedy. In so doing, we are mindful that the sentence reflected and followed a plea agreement between the state and the defendant. A review of the sentencing hearing reflects that the state and the defendant believed that the sixteen year period of special parole was lawful. A mutual mistake existed as to the legality of the sentence. The defendant requests that this court declare his sentences illegal and, in accordance with our interpretation of § 54-125e (c), “order a new sentencing in compliance with the relevant statutory provisions for special parole.” The defendant does not request an opportunity to withdraw his pleas. The state argues that, if a remand is necessary, the end result should not be a mere reduction of the period of special parole from sixteen years to ten years. The state asserts that such a resolution would be both inequitable and unfair, as it would benefit
We find guidance in decisions of our Supreme Court in which the court addressed related sentencing issues. In State v. Tabone, supra, 279 Conn. 527, the defendant, pursuant to a plea agreement, pleaded guilty under the Alford doctrine
Following that remand, the defendant in Tabone I was resentenced by the trial court, which imposed a total effective sentence of twenty years incarceration, execution suspended after ten years, with ten years probation. State v. Tabone, 292 Conn. 417, 419-20, 973 A.2d 74 (2009) (Tabone II). The defendant again appealed, arguing that the new sentence was illegal on
To a great extent, the state’s arguments concerning an appropriate remand mirror those advanced by Justice
The judgment is reversed and the case is remanded for resentencing according to law.
At the hearing, the defendant and the prosecutor waived any right to request the preparation of a presentence investigation report.
Additionally, the record reflects that, in accordance with the plea agreement, the court imposed a sentence of unconditional discharge with regard to the reckless driving count that was brought under docket number MV-05-0443087. The record also reflects that, in accordance with the plea agreement, the state entered a nolle prosequi with regard to several additional charges brought under several docket numbers, including docket numbers CR-05-0109070 and CR-06-0112604.
The defendant brought the motion pursuant to “Practice Book Rule 93-22,” a provision that does not exist. The court treated the motion as one properly filed pursuant to Practice Book § 43-22, which governs motions to correct an illegal sentence, and we, likewise, treat the defendant’s citation as a scrivener’s error.
The state does not rely upon a similar argument before this court. We note, nonetheless, that an illegal sentence cannot be given effect, even if the parties at the time of sentencing agreed upon its imposition. See, e.g., State v. Tabone, 292 Conn. 417, 430, 973 A.2d 74 (2009).
The court did not file a signed transcript of its oral decision denying the defendant’s motion, as is required by Practice Book § 64-1 (a). The defendant properly filed a statement under Practice Book § 64-1 (b), to no avail. The lack of a proper statement of decision, however, does not hamper our ability to review the claim raised in this appeal, as we are able readily to identify the ruling under consideration.
Additionally, the defendant argues in his brief to this court that the length of the term of special parole rendered the sentence imposed under each docket number illegal. It appears that this argument is based upon General Statutes § 54-128 (c). Specifically, the defendant asserts that because § 21a-277 (a) authorizes (for a first offense) a maximum term of imprisonment of fifteen years, the four year term of imprisonment imposed by the
We do not address this aspect of the defendant’s claim for two reasons. First, our resolution of this appeal renders it unnecessary to do so because we conclude that the sixteen year term of special parole cannot stand and remand the case for resentencing. Second, it would be inappropriate to review this aspect of the claim raised for the first time on appeal. “Our rules of practice confer the authority to correct an illegal sentence on the trial court, and that court is in a superior position to fashion an appropriate remedy for an illegal sentence. . . . Furthermore, the defendant has the right, at any time, to file a motion to correct an illegal sentence and raise [this] claim before the trial court.” (Citation omitted.) State v. Starks, 121 Conn. App. 581, 592, 997 A.2d 546 (2010). It is not appropriate to review an unpreserved claim of an illegal sentence for the first time on appeal. See id. (declining to review unpreserved claim of illegal sentence under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 [1989], or plain error doctrine embodied in Practice Book § 60-5).
Our Supreme Court has observed that, in enacting the special parole scheme, “the legislature intended to permit the imposition of special parole as a sentencing option which insures intense supervision of convicted felons after [they are] released to the community and allows the imposition of parole stipulations on the released inmate.” (Internal quotation marks omitted.) State v. Tabone, 292 Conn. 417, 434, 973 A.2d 74 (2009).
General Statutes § 54-125e (c) provides: “The period of special parole shall be not less than one year or more than ten years, except that such period may be for more than ten years for a person convicted of a violation of subdivision (2) of section 53-21 of the general statutes in effect prior to October 1, 2000, subdivision (2) of subsection (a) of section 53-21 or section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b or sentenced as a persistent dangerous felony offender pursuant to subsection (h) of section 53a-40 or as a persistent serious felony offender pursuant to subsection Q) of section 53a-40.”
As should be clear from our analysis, we conclude that a textual analysis of § 54-125e yields a plain and unambiguous meaning of the ten year limitation set forth in subsection (c). The dissenting opinion begins by undertaking a textual analysis of § 54-125e, one that properly considers its text as well as its relationship to several other statutory provisions that were addressed in the majority opinion. Following the textual analysis, the dissent concludes that the statute does not impose a ten year limit on an aggregate term of special parole. Thereafter, the dissent undertakes an analysis of legislative history and, in so doing, appears to rely upon the legislative history of a 2002 proposed revision to § 54-125e that did not become law.
For several reasons, we decline to rely upon this legislative material. First, § l-2z instructs that, in interpreting the meaning of a statute, legislative history is to be considered only when a textual analysis does not yield a clear and unambiguous interpretation. The dissent states that review of extratextual materials is appropriate because the majority opined that a review of subsection (c) of § 54-125e in isolation does not clarify the meaning of the ten year limitation codified therein and because the defendant argues that the statute is ambiguous. As stated previously, the majority concludes that a textual analysis of the statute as a whole adequately clarifies the meaning of the ten year limitation. There is no authority for the proposition that a review of extratextual material is warranted where an isolated portion of a statute adequately is clarified by an analysis of the statute as a whole. Furthermore, determining whether statutory language is ambiguous is a function of judicial analysis, not merely the assertions of a party. Second, our case law reflects that a review of extratextual material to ascertain statutory meaning is not without limit. When more than one interpretation of a statute is plausible, we may “look for interpretative guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) State v. Johnson, 301 Conn. 630, 650, 26 A.3d 59 (2011). The material discussed by the dissent, which relates to aproposed revision that did not become law, is not evidence of the legislative intent surrounding the enactment of the statutory language at issue, nor is it evidence of the circumstances surrounding its enactment. Finally, even if such material properly may be considered as part of the overall history of the statute, we are left to question the dissent’s reliance upon it. Although the proposed revision bears directly upon the issue before us, ultimately the legislature lacked the will to change the law. This court
Although it is not clear how the observation weighs into its analysis, the dissent observes that the majority’s decision “may affect other persons already serving consecutive special parole terms in excess of ten years.” Then, by way of example, the dissent discusses at length the specific sentence that was handed down by the trial court in State v. Eastwood, 83 Conn. App. 452, 850 A.2d 234 (2004), cert. denied, 286 Conn. 914, 945 A.2d 978 (2008). Our careful review of Eastwood reflects that the legality of the defendant’s sentence was an issue that neither was raised by the defendant on direct appeal nor considered by this court. Because this court, in affirming the judgment of conviction, did not make any holding related to the propriety of the defendant’s sentence, we deem Eastwood to be irrelevant to the issue before us. While we are bound by controlling precedent, our analysis of the legality of the defendant’s sentence in this appeal is not affected by the specter that other defendants may have been burdened with a sentence that, likewise, is illegal.
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
Although the defendant did raise a claim of error in this regard, the court nonetheless held that the defendant’s sentence for another crime, sexual assault in the third degree, likewise violated § 54-128 (c) and, thus, was illegal. State v. Tabone, supra, 279 Conn. 545.
“In State v. Raucci, supra, 21 Conn. App. 562, the Appellate Court recognized that a defendant who has appealed successfully from a multicount conviction and punishment, or who has prevailed on his motion to correct an illegal sentence, has voluntarily called into play the validity of the entire sentencing package, and, thus, the proper remedy is to vacate it in its entirety. The Appellate Court therefore adopted the aggregate package theory of resentencing, which recognizes that when a trial court imposes [a] sentence pursuant to a multicount conviction, its intent ordinarily is to structure the sentences on the various counts so as to arrive at a total effective sentence that it deems appropriate for both the crimes and the criminal. Id., 563. Essentially, the original sentencing court is viewed as having imposed individual sentences merely as component parts or building blocks of a larger total punishment for the aggregate convictions, and, thus, to invalidate any part of that package without allowing the court thereafter to review and revise the remaining valid convictions would frustrate the court’s sentencing intent. Id., 562. Accordingly, the Appellate Court concluded that the [resentencing] court’s power under these circumstances is limited by its original sentencing intent as expressed by the original total effective sentence, and, furthermore, that this power is permissive, not mandatory. Although the court may reconstruct the sentencing package to conform to its original intent, it is not required to do so. It may, therefore, simply eliminate the [illegal portion of the] sentence previously imposed . . . and leave the other sentences intact; or it may reconstruct the sentencing package so as to reach a total effective sentence that is less than the original sentence but more than that effected by the simple elimination of the [illegal portion of the original] sentence .... The guiding principle is that the court may resentence the defendant to achieve a rational, coherent [sentence] in light of the remaining convictions, as long as the revised total effective sentence does not exceed the original. Id., 563, quoting United States v. Bentley, 850 F.2d 327, 328 (7th Cir.), cert. denied, 488 U.S. 970, 109 S. Ct. 501, 102 L. Ed. 2d 537 (1988); see also State v. Miranda, supra, 260 Conn. 127-30 (adopting aggregate package theory of resentencing for reasons articulated in Raucci).” (Internal quotation marks omitted.) State v. Tabone, supra, 279 Conn. 544 n.19.
Cf. United, States v. Gibson, 356 F.3d 761, 767 (7th Cir. 2004) (court vacates illegal sentence, conviction, guilty plea and acceptance thereof after defendant seeks permission to void entire plea agreement because it led to imposition of illegal sentence); United States v. Greatwalker, 285 F.3d 727, 730-31 (8th Cir. 2002) (court vacates conviction following guilty plea and vacates illegal sentence after defendant seeks permission to withdraw plea because it led to imposition of illegal sentence).
Dissenting Opinion
dissenting. I disagree with the majority’s conclusion that the trial court improperly denied the motion to correct an illegal sentence filed by the defendant, Ronald Brown. I conclude, to the contrary, that the trial court properly denied the defendant’s motion because the sentence imposed was not illegal. I therefore respectfully dissent from the majority’s direction to remand the case for resentencing, and I would affirm the judgment of the sentencing court.
I agree with the majority that the outcome of this case is dependent on our interpretation of the General Statutes. In State v. Tabone, 292 Conn. 417, 431-32, 973 A.2d 74 (2009), our Supreme Court explained: “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory
General Statutes § 54-125e provides: “(a) Any person convicted of a crime committed on or after October 1, 1998, who received a definite sentence of more than two years followed by a period of special parole shall, at the expiration of the maximum term or terms of imprisonment imposed by the court, be automatically transferred to the jurisdiction of the chairperson of the [b]oard of [p]ardons and [p]aroles or, if such person has previously been released on parole pursuant to subsection (a) of section 54-125a or section 54-131a, remain under the jurisdiction of said chairperson until the expiration of the period of special parole imposed by the court. The [department of [correction shall be responsible for the supervision of any person transferred to the jurisdiction of the chairperson of the [b]oard of [p]ardons and [p]aroles under this section during such person’s period of special parole.
“(b) When sentencing a person to a period of special parole, the court may recommend that such person comply with any or all of the requirements of subsection (a) of section 53a-30. The court shall cause a copy of any such recommendation to be delivered to such person and to the [department of [correction. The [b]oard of [pjardons and [p]aroles may require that such person comply with the requirements of subsection (a) of section 53a-30 which the court recommended. Any person sentenced to a period of special parole shall also be
“(c) The period of special parole shall be not less than one year or more than ten years, except that such period may be for more than ten years for a person convicted of a violation of subdivision (2) of section 53-21 of the general statutes in effect prior to October 1, 2000, subdivision (2) of subsection (a) of section 53-21 or section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b or sentenced as a persistent dangerous felony offender pursuant to subsection (h) of section 53a-40 or as a persistent serious felony offender pursuant to subsection (j) of section 53a-40.
“(d) Whenever a parolee has, in the judgment of such parolee’s parole officer, violated the conditions of his or her special parole, the board shall cause the parolee to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing, the parolee shall be informed of the manner in which such parolee is alleged to have violated the conditions of such parolee’s special parole and shall be advised by the employee of the board conducting the hearing of such parolee’s due process rights.
“(e) If such violation is established, the board may: (1) Continue the period of special parole; (2) modify or enlarge the conditions of special parole; or (3) revoke the sentence of special parole.
“(f) If the board revokes special parole for a parolee, the chairperson may issue a mittimus for the commitment of such parolee to a correctional institution for any period not to exceed the unexpired portion of the period of special parole.
“(g) Whenever special parole has been revoked for a parolee, the board may, at any time during the unexpired portion of the period of special parole, allow the
In construing the meaning of this statute, the majority recognizes the principle of law that “a statute should not be read in such a manner as to render any portion of it superfluous.” It then proceeds to pay special attention to the words “ term or terms of imprisonment” in subsection (a) of § 54-125e to reach the conclusion that “the legislature has provided that a period of special parole commences not only in a situation in which a person has been sentenced to a single term of incarceration and special parole, but after a person has been sentenced to multiple terms of incarceration and special parole for more than one offense.” (Emphasis in original.) The emphasized language merely provides that, in a situation in which a person has been sentenced for multiple offenses to terms of incarceration and special parole, special parole begins after the expiration of the multiple terms of incarceration. The statutory reference to a “period of special parole” describes that period of time that follows the expiration of a person’s term of incarceration for each offense to which the defendant has pleaded or has been found to be guilty. Thus, I am not persuaded by the majority’s interpretation that limits the period of special parole to a maximum of ten years despite the number of offenses to which the defendant has pleaded or has been found to be guilty, and which, although attempting to read the statute in a manner that would not render any portion thereof superfluous, ignores the plain words that state: “Any person convicted of a crime committed on or after October 1,1998, who received a definite sentence of more than two years followed by a period of special parole shall, at the expiration of the maximum term or terms of imprisonment imposed by the court, be automatically transferred to the jurisdiction of the chairperson of the [b]oard of [p]ardons and [p]aroles
I agree with the state’s interpretation of § 54-125e and conclude that the legislature has not limited the authority of the sentencing court in the manner set forth by the majority. Following the legislative directive of § 1-2z that we consider the text of a statute in relation to other statutes; see State v. Tabone, supra, 292 Conn. 431-32; I find further support for the state’s interpretation of § 54-125e in other statutes. General Statutes § 54-128 (c) provides that “[t]he total length of the term of incarceration and term of special parole combined shall not exceed the maximum sentence of incarceration authorized for the offense for which the person was convicted.” (Emphasis added.) I conclude that this further supports the state’s position that the sentencing court is limited only by the maximum sentence on each offense.
Additionally, General Statutes § 53a-28, entitled “Authorized sentences,” provides in relevant part: “(a) Except as provided in section 17a-699 and chapter 420b, to the extent that the provisions of said section and chapter are inconsistent herewith, every person convicted of an offense shall be sentenced in accordance with this title, (b) Except as provided in section 53a-46a, when a person is convicted of an offense, the court shall impose one of the following sentences: (1) A term of imprisonment; or (2) a sentence authorized by section 18-65a or 18-73; or (3) a fine; or (4) a term of imprisonment and a fine; or (5) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a period of probation or a period of conditional
Furthermore, General Statutes § 53a-37 provides: “When multiple sentences of imprisonment are imposed on a person at the same time, or when a person who is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and to the undischarged term or terms in such manner as the court directs at the time of sentence. The court shall state whether the respective maxima and minima shall run concurrently or consecutively with respect to each other, and shall state in conclusion the effective sentence imposed. When a person is sentenced for two or more counts each constituting a separate offense, the court may order that the term of imprisonment for the second and subsequent counts be for a fixed number of years each. The court in such cases shall not set any minimum term of imprisonment except under the first count, and the fixed number of years imposed for the second and subsequent counts shall be added to the maximum term imposed by the court on the first count.”
Reviewing each of the statutes referenced herein in relation to each other, I conclude that the sentencing court may sentence a defendant to a term of imprisonment and special parole for each crime upon which he or she is convicted, provided each individual sentence
Under the rationale of the majority opinion, if the sentencing court were to order multiple sentences to run concurrently, and it ordered special parole on each sentence, the terms of special parole simply would merge into the largest term of special parole so long as it was ten years or less, unless one or more of the offenses were within the statutory exception permitting a longer term. I do not disagree with this interpretation for concurrent sentences. However, I disagree with the majority’s application of this principle to consecutive sentences. Although our statutes clearly permit the sentencing court to order consecutive sentences; see General Statutes § 53a-37; the majority concludes that consecutive sentences with special parole can be ordered only if the aggregate term of the special parole does not exceed ten years, except for certain enumerated crimes. If the aggregate term of special parole would exceed ten years, the majority concludes that the court is not permitted to order such a sentence. This would result, under the reasoning of the majority, in an illegal sentence. Although the majority reads these restrictions into § 54-125e, I can find no authority to support such a limitation on the sentencing court.
Additionally, the majority opines that “[i]t is not clear from a review of subsection (c) of § 54-125e whether the ten year limit on the ‘period of special parole’ limits the special parole portion of the sentence imposed for individual offenses or whether it limits a defendant’s aggregate sentence that arises from his conviction of multiple offenses for which special parole was imposed by the sentencing court.” For the purpose of argument, I assume that the majority and the defendant correctly have determined that § 54-125e is ambiguous, and I, thus, also examine applicable legislative history.
“The Committee on Judiciary reported through SEN. [ERIC D.] COLEMAN of the 2nd Dist., Chairperson of the Committee on the part of the Senate, that the bill ought to pass.
“AN ACT CONCERNING SPECIAL PAROLE.
“Be it enacted by the Senate and House of Representatives in General Assembly convened:
“Section 1. Section 54-125e of the general statutes, as amended by section 21 of public act 01-84, is repealed and the following is substituted in lieu thereof (Effective October 1, 2002):
“(a) Any person convicted of [a crime] one or more crimes committed on or after October 1, 1998, who received a definite sentence or aggregate sentence of more than two years followed by a period of special parole shall, at the expiration of the maximum term or terms of imprisonment imposed by the court, be transferred from the custody of the Commissioner of Correction to the jurisdiction of the [chairman] chairperson of the Board of Parole or, if such person has
“(b) Any person sentenced to a period of special parole shall be subject to such rules and conditions as may be established by the Board of Parole or its [chairman] chairperson pursuant to section 54-126.
“(c) The period of special parole shall be not less than one year nor more than ten years for any single crime, except that such period may be for more than ten years for a person convicted of a violation of subdivision (2) of section 53-21 of the general statutes in effect prior to October 1, 2000, subdivision (2) of subsection (a) of section 53-21, section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b or sentenced as a persistent dangerous felony offender pursuant to subsection (h) of section 53a-40 or as a persistent serious felony offender pursuant to subsection (j) of section 53a-40.”
When asked to explain the bill, Senator Coleman explained in relevant part: “Oftentimes an individual [may be] arrested for a single incident and there may be a number of charges that are lodged as a result of that incident. And a person may be convicted for multiple charges . . . [a]nd may be sentenced on those convictions. Under that circumstance it was very unclear under the way that the current statute has been written that that person could ever be eligible for a special parole because of the multiple convictions. This bill seeks to make it clear that such an individual would be able to earn special parole .... I can’t deny . . . that part of the rationale for that would be to alleviate the overcrowding in our prison system that currently exists. But also, I think there is some forward thinking in operation.” 45 S. Proc., Pt. 4, 2002 Sess., p. 1062,
Although 2002 Senate Bill No. 587 had unanimous support in the judiciary committee and had considerable support in the Senate, it, nonetheless, died in the House of Representatives. See 45 H.R. Proc., Pt. 6, 2002 Sess., pp. 1792-1811.
In this case, the defendant was sentenced on two different dockets after a global plea agreement. In docket number CR-06-0112604, he accepted an offer of five years incarceration, to be followed by ten years of special parole. In docket number CR-05-0109070, he accepted an offer of four years incarceration, to be followed by six years of special parole. The sentences, as agreed, were to ran consecutively, for a total effective
Additionally, I also note my disagreement with the remedy set forth by the majority in this case. Practice Book § 43-22 provides that the judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner. The majority vacates the defendant’s sentence and remands the matter for resentencing according to law. However, I conclude that it likely is impossible for
On the basis of the foregoing, I respectfully dissent and would affirm the judgment of the trial court.
It is possible that the decision of the majority in this case may affect other persons already serving consecutive special parole terms in excess of ten years. See, e.g., State v. Eastwood, 83 Conn. App. 452, 454, 454 n.1, 850 A.2d 234 (2004) (defendant sentenced to total effective term of nine years incarceration, followed by fifteen years of special parole), cert. denied, 286 Conn. 914, 945 A.2d 978 (2008). A review of the judgment file in the Eastwood case reveals the following sentence: On count one, criminal attempt to commit kidnapping in the second degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-94 (a), the court sentenced the defendant to three years incarceration, to be followed by five years special parole. On count two, criminal attempt to commit kidnapping in the second degree in
See history of 2002 Senate Bill No. 587 available at www.cgact.gov/asp/ cgabiUstatus/cgabiUstatus.asp?selBiUType=Bill&bill_num=587& which_year=2002&SUBMITl.x=12&SUBMITl.y=7
Deleted material is bracketed; new material is underlined.
I also note that there was some discussion among some members of the Senate that the special parole provisions of § 54-125e were meant only to apply to persons sentenced after being convicted of one crime and that special parole could not be given to someone convicted of more than one crime. See 45 S. Proc., Pt. 4, 2002 Sess., pp. 1061-74. This, however, did not appear to be the sentiment of the majority. See id.
Furthermore, as set forth in its footnote 2, the majority notes that the defendant received additional benefits from his plea agreement because the court imposed a sentence of unconditional discharge on the reckless driving count that was brought under MV-05-0443087, and the state entered a nolle prosequi with regard to several additional charges brought under several docket numbers, including docket numbers CR-05-0109070 and CR-06-0112604.
Reference
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- State of Connecticut v. Ronald Brown
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