160 Conn.App. 851
Conn. App. Ct.2015Background
- In June 2011 the Kinnel brothers planned and executed an armed robbery, burglary and related sexual assaults; defendant Madera drove the offenders to and from the scene and waited in the car.
- Defendant was charged with multiple counts including conspiracy to commit first‑degree burglary, burglary, robbery and home invasion (some as an accessory). Jury convicted on conspiracy to commit burglary (count one), burglary as an accessory (count two), robbery as an accessory (count four), and home invasion as an accessory (count six); acquitted on two other counts.
- For each conviction the jury unanimously answered interrogatories finding a firearm had been used in commission of the crimes.
- Trial court imposed statutory five‑year mandatory consecutive sentence enhancements under Conn. Gen. Stat. § 53‑202k for each count; the total effective sentence was 25 years (execution suspended after 20) plus probation.
- On appeal Madera argued § 53‑202k could not be applied to (1) an unarmed coconspirator (conspiracy count) and (2) an unarmed accomplice who was not physically present and where the jury did not find he knew a firearm would be used (accessory counts).
- This court (appellate panel) vacated only the § 53‑202k enhancement on the conspiracy conviction (count one) based on State v. VanDeusen, and affirmed the enhancements on the accessory convictions in light of binding Supreme Court precedent (State v. Davis, reaffirmed in State v. Flemke and State v. Danforth); remanded for resentencing to correct the vacated enhancement and allow the trial court to restructure the aggregate sentence.
Issues
| Issue | State's Argument | Madera's Argument | Held |
|---|---|---|---|
| Whether § 53‑202k enhancement applies to an unarmed coconspirator (conspiracy count) | Enhancement may be applied via common‑law vicarious coconspirator liability distinct from Pinkerton | § 53‑202k does not apply to unarmed coconspirators; Patterson prohibits enhancing unarmed coconspirators | Enhancement vacated for conspiracy count; VanDeusen controls that § 53‑202k does not apply to unarmed coconspirators |
| Whether § 53‑202k enhancement applies to unarmed accessories not physically present when a firearm was used | § 53‑202k applies if defendant is an accessory and a firearm was used in commission of the felony, regardless of defendant being armed or present | § 53‑202k should be limited by Patterson or by § 1‑2z; an unarmed, nonpresent accessory should not receive enhancement absent proof he knew a firearm would be used | Enhancement affirmed for accessory convictions; Davis controls and was reaffirmed in Flemke and Danforth |
| Whether Davis should be overruled or limited by later statutory definitions (e.g., § 1‑2z) | Court should follow Davis and later cases; legislature’s silence implies acquiescence | Court should reconsider Davis in light of § 1‑2z and plain‑meaning rules | Court declined to overrule or limit Davis; Flemke and Danforth reaffirm Davis |
| Remedy after vacating one enhancement in a multicount sentence | Maintain remaining sentence structure unless resentencing required; trial court should be allowed to reconstruct original sentencing plan | Vacate only the erroneous enhancement without disturbing the rest of the sentence | Remand for resentencing so trial court may reconfigure sentence under aggregate‑package principles to effectuate original sentencing intent |
Key Cases Cited
- State v. VanDeusen, 160 Conn. App. 815 (Conn. App. 2015) (held § 53‑202k enhancement does not apply to unarmed coconspirators)
- State v. Patterson, 276 Conn. 452 (Conn. 2005) (Pinkerton‑type liability cannot be used to expand § 53‑202k to unarmed coconspirators)
- State v. Davis, 255 Conn. 782 (Conn. 2001) (§ 53‑202k applies to unarmed accomplices where a firearm was used in the commission of the felony)
- State v. Flemke, 315 Conn. 500 (Conn. 2015) (reaffirmed Davis; declined to limit or overrule it despite statutory changes)
- State v. Danforth, 315 Conn. 518 (Conn. 2015) (same result as Flemke; Davis binding)
- Pinkerton v. United States, 328 U.S. 640 (U.S. 1946) (established federal Pinkerton vicarious conspiracy liability doctrine)