State v. Boswell
State v. Boswell
Opinion of the Court
Opinion
The defendant, Zachery Martin Boswell, appeals from the judgment of the trial court denying his petition for destruction of records, pursuant to General Statutes § 54-142d, of his conviction of sexual assault in the second degree in violation of General Statutes (Rev. to 2001) § 53a-71 (a) (1). On appeal, the defendant claims that the court erred in failing to follow the mandatory command of § 54-142d to order destruction of records of an offense when that offense has been decriminalized. We agree and reverse in part the judgment of the trial court.
The following facts and procedural history are not in dispute. On October 29, 2004, the defendant pleaded guilty under the Alford doctrine
In 2007, the legislature amended § 53a-71 (a) (1), changing the difference in age from two years to three years, thereby legalizing consensual sex between a person older than sixteen and a person between the ages of thirteen and sixteen if the age difference between them was less than three years. Public Acts 2007, No. 07-143, § 1 (P.A. 07-143).
On March 24, 2011, while charges were pending in Superior Court against the defendant for violation of probation in connection with an arrest in July, 2010, the defendant filed a petition for destruction of the record of his October, 2004 statutory rape charge, pursuant to § 54-142d.
After hearing from the victim, the prosecution and the defendant, the court granted the motion to terminate probation, but denied the petition for destruction of the record. The court stated: “On the [petition] to decriminalize the offense, the court is going to deny
The defendant then made an oral motion for articulation regarding the denial of the petition for destruction of the record. The court articulated its decision in a written memorandum of decision dated July 19, 2011. In discussing the procedural history of the case, the court stated: “While the age difference between the defendant and [the] victim was two years and five months, thus providing a basis for the substituted sexual assault charge, the underlying facts of the case do not support the defendant’s claim that the sexual act was consensual. According to the statement provided by the victim in the arrest warrant, the defendant is alleged to have brandished a knife and made serious threats against the victim during the offense.”
The court went on to discuss the legal grounds supporting its decision to deny the petition for destruction, citing two statutes referred to as savings statutes: General Statutes §§ 1-1 (t) (general savings statute)
On appeal, the defendant claims that the court improperly applied the savings statutes to this case because they apply only to pending prosecutions, punishment proceedings or existing punishments where a statute has changed the punishment, and not to cases like the present one, in which the offense has been decriminalized and therefore, is not subject to punishment. The defendant also argues that the savings statutes do not apply because § 54-142d, which by its plain language makes erasure and destruction of records mandatory when the statute’s requirements have been met, was enacted long after and is more specific than both savings statutes.
The defendant also claims that the court improperly based its decision partly on the factual allegations in the arrest warrant for sexual assault in the first degree and risk of injury, notwithstanding that, as a result of the 2004 plea agreement, which the court accepted, those allegations were not proven or even, in the eyes of the law, charged.
The state concedes on appeal that neither State v. Graham, supra, 56 Conn. App. 507, nor either of the two savings statutes applies to the facts of this case. The state also concedes that the court was not permitted to rely on the underlying conduct alleged but instead was confined to considering the offense for which the defendant was convicted in evaluating the petition for destruction of the record. Finally, the state acknowledges that “§ 54-142d serves to benefit a person whose [P]enal [C]ode offense of conviction has been decriminalized . . . .”
The defendant argues that the state’s reading of § 54-142d ignores the plain and unambiguous meaning of
None of the facts in this case are in dispute. The sole issue is whether, under § 54-142d, offenses include only
Section 54-142d provides in relevant part: “Whenever any person has been convicted of an offense in any court in this state and such offense has been decriminalized subsequent to the date of such conviction, such person may file a petition with the superior court . . . for an order of erasure, and the Superior Court or records center of the Judicial Department shall direct all police
Public Act 07-143, § 1, provides in relevant part: “Section 53a-71 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2007): (a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than [two]
Section 54-142d uses the term “offense” to trigger its mandatory erasure and destruction provisions, but does not include a definition of “offense.” The Penal Code, however, does include a definition of “offense. ” General Statutes § 53a-24 (a) provides: “The term ‘offense’ means any crime or violation which constitutes a breach of any law of this state or any other state, federal law or local law or ordinance of a political subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction. The term ‘crime’ comprises felonies and misdemeanors. Every offense which is not a ‘crime’ is a ‘violation’. Conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense.”
Therefore, if an act constitutes a crime under the Penal Code, it is defined as an offense. Section 53a-71 (a) contains eleven subdivisions, all listing a distinct set of elements that defines the offense of sexual assault in the second degree, and all separated by the word “or. ” Each subdivision describes a crime without reference to
The state cites two cases for the proposition that because the legislature used the words “offense has been decriminalized”; (emphasis added); in drafting § 54-142d and did not, instead, use words such as “such conduct no longer constitutes a crime,” as, for example, in § 54-124a (j) (2) (A), it meant to include only those crimes grouped together under one name.
First, the state cites Plourde v. Liburdi, supra, 207 Conn. 416, for the proposition that the legislature’s use of different language in different statutes signifies a different meaning and different intent in each statute. The state relies on the following language from our Supreme Court’s opinion in that case: “[T]he use of different words [or the absence of repeatedly used words in the context of] the same [subject matter] must indicate a difference in legislative intention.” (Internal quotation marks omitted.) Id. The Supreme Court’s use of the words “in the context of the same subject matter,”
Second, the state cites to language in Connelly v. Doe, supra, 213 Conn. 72, about the legislature’s conveying its intent expressly. In Connelly, the issue was whether the legislature had given grand juries the power to investigate ongoing conduct or conduct that took place after the formation of the grand jury, based on whether the legislature used the past or present tense in the text of the governing statute. Id. That analysis does not apply to the question here.
To apply § 54-142d as the state suggests would allow a defendant whose crime is defined by only one set of elements to have the records of that crime erased and destroyed, but deny the same relief to a defendant whose crime shares the same name as others, but still meets the Penal Code definition of offense. Such a result
We conclude that had the legislature sought to exempt individual crimes from the statutory meaning of “offense” for the purpose of applying § 54-142d, it would have done so expressly. The court, therefore, improperly denied the defendant’s petition for destruction of the record.
The judgment is reversed only as to the denial of the defendant’s petition for destruction of the record of his decriminalized offense and the case is remanded with direction to grant the petition. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (allowing criminal defendant to plead guilty to offense without admitting factual allegations underlying charged offense).
General Statutes § 54-142d provides: “Whenever any person has been convicted of an offense in any court in this state and such offense has been decriminalized subsequent to the date of such conviction, such person may file a petition with the superior court at the location in which such conviction was effected, or with the superior court at the location having custody of the records of such conviction or with the records center of the Judicial Department if such conviction was in the Court of Common Pleas, Circuit Court, municipal court or by a trial justice, for an order of erasure, and the Superior Court or records center of the Judicial Department shall direct all police and court records and records of the state’s or prosecuting attorney pertaining to such case to be physically destroyed.”
General Statutes § 1-1 (t) provides: “The repeal of an. act shall not affect any punishment, penalty or forfeiture incurred before the repeal takes effect, or any suit, or prosecution, or proceeding pending at the time of the repeal, for an offense committed, or for the recovery of a penalty or forfeiture incurred under the act repealed.”
General Statutes § 54-194 provides: “The repeal of any statute defining or prescribing the punishment for any crime shall not affect any pending prosecution or any existing liability to prosecution and punishment therefor, unless expressly provided in the repealing statute that such repeal shall have that effect.”
See, e.g., 26 H.R. Proa, Pt. 2,1983 Sess., p. 687 (“[Representative Richard D.] Tulisano: [w]hat the bill does is erase criminal records for those individuals, allows them to have the records erased, if they were convicted of a crime which this General Assembly subsequently decided it had not been a crime”); id., p. 591 (“[Representative] Tulisano: Decriminalized, I think, is self-explanatory, and any dictionary definition would be used, and I don’t even think we need a legal dictionary .... It is criminal and we have decriminalized it. It’s self-explanatory, no longer a crime. The elements which made up the offense are no longer a crime in Connecticut. It is no longer an offense.”). Because we conclude that § 54-142d is unambiguous, we do not consider the legislative history.
Words in brackets represent material deleted or replaced by the new statute.
Despite its concession regarding underlying conduct, the state, during oral argument before this court argued that the defendant may not take advantage of distinctions between conduct in the old and new versions of the statute and still argue that the court improperly relied on the underlying conduct alleged in the arrest warrant. The defendant, however, pleaded guilty to and was convicted of only the conduct specified in § 53a-71 (a) (1), not the conduct alleged in the original information, which the state agreed to abandon as part of the plea deal.
Alternatively, the state argues that even if § 53a-71 need not be repealed in its entirety to fall within the definition of an offense that has been decriminalized, at least subsection (a) (1) of that statute would have to be repealed in order for the defendant’s offense to be decriminalized. The state argues that because sexual assault in the second degree in violation of § 53a-71 (a) (1) is still an offense, even though its elements have been changed, the offense for which the defendant was convicted has not been decriminalized. This argument ignores the fact that the conduct for which the defendant was convicted was defined as an offense by § 53a-24, but as a result of the legislature’s action in 2007, is no longer a crime and is therefore no longer an offense. Using the state’s preferred term, the legislature in P.A. 07-143, by its plain language, repealed, the subdivision under which the defendant was convicted and replaced it with a new subdivision that no longer governs the defendant’s conduct. It is an offense that has been decriminalized.
Reference
- Full Case Name
- STATE OF CONNECTICUT v. ZACHERY MARTIN BOSWELL
- Cited By
- 1 case
- Status
- Published