*1 reaching trial. In testify not to at for the witness intends turn, solely Pommer, which, in conclusion, on relying its Foreshaw, majority has acceded solely on relied scope of Connecticut’s expansion in Pommer's beyond bounds. legislative statute its tampering witness Pommer, I my concerns with Notwithstanding reasonably could have case, jury that, believe in this allowable infer- the evidence and determined, from proceeding that a defendant believed ences, that the jury could and that the was “about to be instituted” in this instance that the defen- reasonably have inferred witness not to talk with the dant’s to the inducement not to well, attempt an to induce her police was, as that would testify proceeding” at trial —the “official reasonably have come jury his arrest. The could follow based on the court’s recitation to this conclusion as the court’s more proscriptions the statute’s as well and, par- on circumstantial evidence general charge jury reasonable infer- ticular, the to draw right I believe proven Because, case, facts. in this ences from drawn, reasonably from could that such inference appeal. I with the result of this I evidence, agree that, tampering unlike the evidence believe, however, mandatory nor an inference is neither situation, such every and that invariably appropriate circumstance, for a who if it should be criminal behavior likely person, to be arrested to ask a believes he is coercion, participate police threat or not to without such behavior should be criminalized investigation, plain and not limits of the stat- ignoring statute respectfully I concur. Accordingly, ute’s reach. v. RONALD BROWN STATE OF CONNECTICUT (AC 32597) Bishop, Bear, Espinosa Js.
Argued September 13, officially January 17, released Christopher Duby, special public defender, Y. for the appellant (defendant).
Timothy Costello, attorney, F. assistant state’s with *3 whom, brief, Cohen, on the were David I. state’s attor- supervisory M. ney, Vieux, and Suzanne assistant attorney, appellee state’s for the (state).
Opinion ESPINOSA, Brown, appeals J. The Ronald defendant, from of the trial judgment denying court his motion illegal to correct an sentence. The defendant claims improper that the ruling court’s because the authority sentencing, by at the time of exceeded its a total effective sentence that included a six- imposing year special parole. teen term of We the judg- reverse ment of the trial court. following undisputed
The facts are relevant to the present appeal. In 2005, charged state the defendant possession under docket number CR-05-0109070 with of narcotics with intent to sell in violation of General 2 In 2006, Statutes 1a-277 the state (a). charged defendant under docket number CR-06-0112604 with sale of narcotics violation of General Statutes 21a- (b). January 25, 2007, plea On following negotiations between the state defendant, and the the defendant appeared court, Reynolds, J., before the and entered pleas to the aforementioned At guilty pending charges. underly- facts summarized the time, prosecutor under- represented He that the conduct charges. ing narcotics with intent possession lying charge July and that the conduct 1, 2005, occurred on to sell occurred on charge the sale of narcotics underlying prosecutor following 2006. The set forth March pleas, the guilty In for the plea agreement: exchange narcotics be sentenced on the sale of defendant would a man- CR-06-0112604, number under docket charge, datory years, incarceration of five followed term of the defendant year special parole, a ten term of possession charge would be sentenced on CR- sell, under docket number narcotics with intent years, four to a term of incarceration of 05-0109070, parole, both followed a six term of consecutively. Additionally, sentences to run plea charge defendant’s as to exchange guilty for the separate under a brought reckless that was driving from conduct that occurred docket number and arose request would a sentence 12, 2005, on June the state prosecutor that, noted discharge. of unconditional the state would enter a part plea agreement, prosequi charges pending against nolle as to other *4 court attorney stated to the defendant. The defendant’s representations concerning the prosecutor’s that the his plea understanding were consistent with agreement that agreement.1 with canvassed the defendant Thereafter, the court the court pleas. canvass, guilty During to his regard of the sen- understanding the defendant’s inquired as to imposed to be as follows: tence with the state “The Your sentencing agreement Court: years serve, a effective sentence of nine is for total mandatory minimum. five of which are a any prosecutor right hearing, waived At the the defendant and the report. request preparation presentence investigation of a
“The Defendant: Yes. And then that’s to be followed sixteen “The Court: you that? special parole. Do understand “The Defendant: Yes.” accepted the defen- canvass, the court
Following voluntarily freely, been and intel- pleas having dant’s assistance of counsel. made with the effective ligently pleas, and a The court found a factual basis for the entered on the three offenses. finding guilty appeared before the 8, 2007, On March the defendant January 25, had at the sentencing. court for As he plea prosecutor set forth terms hearing, attorney stated his and the defendant’s agreement, The with those terms. court sentenced agreement plea agreement.2 defendant to the according defendant, self-repre- as a September 22,2009, On to correct an sen- party, illegal sented filed motion The of the motion was that the court gist illegally tence.3 him to a sixteen term of sentenced term issue, of the crimes at the maximum when, light years. authorized was ten court held a July 12, 2010, hearing On defendant, now to consider the motion to correct. by counsel, that the court lacked represented argued 2Additionally, that, plea the record reflects in accordance with the discharge agreement, of unconditional with the court driving brought regard docket number to the reckless count that was under plea that, The record also reflects in accordance with the MV-05-0443087. prosequi agreement, regard with to several addi the state entered nolle numbers, charges brought including docket tional under several docket numbers CR-05-0109070and CR-06-0112604. pursuant brought The defendant the motion to “Practice Book Rule 93- *5 22,” provision that does not exist. The court treated the motion as one 43-22, properly pursuant governs § motions to filed to Practice Book which sentence, we, likewise, illegal an treat the defendant’s citation correct as a scrivener’s error.
145 parole special him to a term of authority to sentence years. The that argued that exceeded ten defendant imposed the court consecutive sentences although numbers, under it was not authorized to two docket year special parole. term of The exceed a ten maximum any ambiguity regard defendant that with to the argued authority to him in the manner that it court’s sentence did should favor the defendant such that the court was required to reduce the term of from six- years. prosecutor teen ten The countered that to complain heard the defendant should not be about severity imposed because, at the expressed time his satisfaction with sentencing, he reached with the acceptance plea agreement correct, noting state.4 court denied the motion to The bargained that the defendant had for the sentence that special parole. term of The year included a sixteen proper court that opined the term because it resulted from consecutive sentences numbers.5 This imposed separate under docket appeal followed.
On reiterates his claim that the appeal, defendant parole it year special illegal sixteen term of is because year parole the ten maximum exceeds 54-125e The (c).6 authorized General Statutes § rely upon argument this The state does not a similar before court. We effect, note, nonetheless, illegal given even if sentence cannot be upon imposition. See, parties sentencing agreed e.g., at the time of its Tabone, 417, 430, (2009). Conn. 973 A.2d State transcript denying signed not file a of its oral decision court did motion, (a). required as is Practice 64-1 The defendant § defendant’s Book properly (b), Practice to no avail. The filed a statement under Book 64-1 decision, however, hamper ability proper not our lack of a statement of does readily identify appeal, as we to review the claim raised in this are able ruling under consideration. 6 Additionally, argues in his court the defendant brief to this that the length rendered under of the term the sentence appears upon illegal. argument each docket number It this based (c). Specifically, asserts that because General Statutes 54-128 defendant imprison (for offense) (a) term of § 21a-277 authorizes a first maximum years, imposed by imprisonment ment of fifteen the four term *6 (c) 54-125e us to conclude urges § defendant or, in the imposed the sentence expressly precludes the rule of alternative, provision ambiguous, that the inteipret must the statute his lenity applies and we judg- that we reverse the requests favor. The defendant declare the senten- correct, ment the motion to denying the case for imposed to be and remand illegal ces resentencing. appeal on that the opposition,
In
the state contends
a
under
year
ten
limitation on
each
applies
54-125e
to the sentence
(c)
§
conviction,
aggregate
or
not to an
sentence for
offense
points out that were
multiple convictions. The state
plea
pursuant
agreement,
he not sentenced
to
sepa-
subject
being
would have been
to
tried
defendant
separate
rately
separately
and sentenced
under
year
special parole exposed
him
court combined with the sixteen
term
imprisonment
punishment
that exceeded the
authorized
to a term of
Likewise,
(b)
the defendant asserts that because 21a-278
authorizes
statute.
twenty
imprisonment
years,
(for
offense) a maximum term of
a first
year
year
imprisonment
term of
five
term of
combined with the sixteen
exposed
imprisonment
him to a term of
that exceeded the
Although
punishment
statute.
the defendant did not raise this
authorized
court,
aspect
illegal
the defendant has
sentence claim before the trial
any theory upon which this court should consider the
failed to advance
claim;
any extraordinary
unpre-
level of review of the
he has not asked for
served claim.
aspect of the defendant’s claim for two reasons.
We do not address this
unnecessary
First,
appeal renders it
to do so because
our resolution of this
special parole cannot stand and
we conclude that the sixteen
term of
Second,
resentencing.
inappropriate
the case for
it would be
remand
appeal.
aspect
time on
“Our
review this
of the claim raised for
first
practice
authority
illegal
on
rules of
confer the
to correct an
sentence
position
appropriate
superior
to fashion an
trial
and that court is
remedy
Furthermore,
illegal
. . .
the defendant has the
for an
sentence.
any time,
illegal
right, at
to file a motion to correct an
sentence and raise
Starks,
(Citation omitted.) State v.
claim before the trial court.”
[this]
App. 581, 592,
appropriate
(2010).
“It is axiomatic a defen- sentencing tion of the court terminates once may has and a no longer dant’s sentence court begun any expressly unless it take action a sentence affecting . . . Providing been authorized to act. such autho- has judicial 43-22 act, rization to Practice Book states: The authority may any illegal at an sentence time correct or it correct a sentence disposition, or other illegal or other imposed illegal any disposition an manner made in an manner. illegal essentially
“An
sentence is
one which either
illegal
statutory
violates
limits,
exceeds the relevant
maximum
against
jeopardy,
ambigu-
a defendant’s
double
is
right
.
inherently contradictory.
is
.
.
Sentences
ous, or
being
have
imposed
illegal
manner
been defined
.
statutory
.
.
within the relevant
limits but
to
right
...
way
in a
which violates the defendant’s
speak
personally
at
be addressed
sen-
right
...
or his
to be
punishment
mitigation
or
by
on
information
judge relying
accurate
tenced
his
that the
solely
record,
right
in the
or
considerations
.”
. . .
keep
plea
promises
its
government
agreement
Starks,
State
v.
121
quotation
omitted.)
marks
(Internal
A.2d
The claim
App. 581, 585-86,
(2010).
997
546
Conn.
“We
was illegal.
is that the defendant’s sentence
here
may challenge
previously
noted that a defendant
have
on
that it
ground
her
his or
criminal
appeal
the issue on direct
illegal
raising
filing
pursuant
a motion
43-22 with the
[Practice Book]
judicial authority, namely,
quo-
the trial court.” (Internal
Tabone,
State
v.
omitted.)
527,
tation marks
279 Conn.
534,
A
denial of motion to correct an
sentence is
illegal
discretion standard. State
reviewed under the
abuse
Carter,
v.
App. 527, 532, 998
Conn.
A.2d 1217 (2010),
State
cert. denied,
915,
300 Conn.
General Statutes 53a-28 impose offense, the court shall is convicted of an a term of (9) sentences ... following one of the provided period special and a imprisonment in rele- provides 54-125e (a) in section 54-125e.” Section a crime committed “Any person convicted of part: vant who received a definite 1, 1998, after October on or by period two followed sentence of more than of the maximum shall, expiration at the imposed by the imprisonment term or terms of jurisdiction of the automatically transferred to the . . . of Pardons and Paroles chairperson of the Board period expiration until the of the Department of Correction imposed by the court. The any person supervision for the responsible shall be chairperson of the jurisdiction to the transferred during Paroles under this section Board of Pardons and parole.”7 person’s period such “The provides: 54-125e (c) Section year or more than ten not less than one parole shall be *9 may be for more than except that such years, subdivi- of aviolation of aperson ten convicted in effect of the statutes general of section 53-21 (2) sion of subsection 1, 2000, (2) to October subdivision prior 53a-70b, 53a-70, 53a-70a, 53-21 or section of section (a) persistent or sentenced as 53a-71, 53a-72a or 53a-72b that, enacting Supreme observed Our Court has permit imposition scheme, legislature intended to “the supervision option felons of convicted which insures intense as a community imposition of [they allows the to the and after released are] quotation (Internal parole stipulations marks omit inmate.” on the released (2009). Tabone, 417, 434, A.2d 74 ted.) v. State felony pursuant to subsection (h) offender
dangerous felony offender persistent section 53a-40 or as a serious pursuant to subsection of section 53a-40.” The reso (j) appeal requires interpret of this that we lution used in 54-125e phrase “period special parole” as § (c). statutory interpretation involves the process
“The
statutory
of the
of the
meaning
language
determination
applied
as
to the facts of the case .... When constru-
objective
fundamental
is to ascertain
ing statute, [o]ur
apparent
effect to the
intent of the
give
legislature.
...
In
in a
words,
determine,
other
we seek to
rea-
manner,
statutory
soned
meaning
language
....
In
applied
seeking
to the facts of
case
[the]
. . .
1-
meaning
determine
[General Statutes]
2z directs us first to consider the text of the statute itself
relationship
If,
and its
to other statutes.
after examining
text and
such
considering
relationship,
such
the mean-
plain
of such text is
and does
ing
unambiguous
yield
results,
not
absurd or unworkable
extratextual
evidence of the
of the statute shall not be
meaning
plain
considered.
. . . When a statute is not
and unam-
interpretive
we look also for
to the
biguous,
guidance
history and circumstances
its
legislative
surrounding
enactment,
legislative policy
designed
to the
it was
implement,
relationship
and to its
to existing legislation
principles governing
general
and common law
the same
subject matter .... We
in a
recognize
terms
stat-
ordinary
ute are to be
their
unless
assigned
meaning,
quotation
context dictates otherwise . . . .” (Internal
Leak,
marks
Conn.
omitted.)
524, 532-33,
State
It is not from a clear review subsection of 54- (c) “period 125e whether ten limit on the parole” special parole portion limits the imposed for individual offenses or whether it limits aggregate defendant’s sentence that arises from his *10 for which multiple conviction of offenses By imposed by terms, the court. its creates a between a class of subsection distinction (c) parole period special which the of shall offenders for years and ten in duration and another be between one period class of for which of offenders the years. distinction, upon This based the exceed ten type by defendant, of committed the does not offense clarify before us. the issue “period
In of of ascertaining meaning parole,” of we consider other subsections 54-125e. § An sheds (a) light examination of subsection on statutory at (a) issue. Subsection creates language persons postrelease supervision scheme of of sen- period special parole. jurisdic- tenced to a of It transfers a any person tion over convicted of crime committed 1, on or who received a definite 1998, after October by years period sentence more than two followed special parole, from commissioner correction pardons paroles, chairperson board of supervision be after which time is to undertaken provides that department (a) of correction. Subsection “at the jurisdiction such automatic transfer of occurs imprison- or terms of expiration of the maximum term by the . . . .” General Statutes ment court Thereafter, person shall “remain 54-125e such (a). chairperson expi- until the jurisdiction under the said special parole imposed by ration of the . (a). court. . .” General Statutes 54-125e court is interpreting statute, guided When this that a statute should not read such principle superfluous. it any portion to render manner as Christiano, 472, A.2d See State 456, Conn. 83, U.S. 115 S. Ct. 130 L. Ed. denied, 821, cert. provides in relevant (a) 2d 36 Section 54-125e (1994). . . who of a crime . part: “Any person convicted than received a sentence of more two definite *11 expi- parole shall, at the by period special a of followed terms of maximum term or imprisonment ration of the automatically transferred to be Par- of the Board of chairperson of the jurisdiction expiration period . of the Paroles . . until the dons and . . .” imposed by (Emphasis the court. special parole of supervision person of a By added.) providing chairperson of the of jurisdiction to the transferred person paroles and that said pardons the board of chairperson of the “until jurisdiction under the remains special parole imposed of expiration period of the period that a provided has court,” legislature only not in a situation of commences term of a single a has been sentenced to person which person after a has special parole, but incarceration terms of incarceration and multiple been sentenced to purposes For special parole for more than one offense. statutory analysis, language acknowledges our this of has been sentenced that, in a situation in which a spe- of incarceration and multiple offenses to terms parole” parole, “period special begins single cial maximum terms of incarcera- expiration after the conveys expired. Thus, have subsection (a) tion special parole” period describes that of time “period of expiration person’s of a maximum that follows the terms incarceration. interpreted relevant in subsection
Having language proper application period of the limit on the (a), in subsection becomes (c) that follows “period special parole” clear. The that commences maximum term person’s expiration after the terms of incarceration “shall not be less than one years” person, defendant, or more than ten for a like the not been convicted of one of the enumerated who has for which a exceptions (c) longer set forth subsection special parole may imposed. Accordingly, we conclude that the court exceeded its the defendant to serve authority insofar as it sentenced its parole. The court abused sixteen because it the motion to correct denying discretion authority the defendant to a lacked the to sentence years. that exceeded ten term of *12 provisions that several reflect that argues The state special parole “period special parole” a of refers to the imposed applicable a for a portion single of person 53a-28 (a) (“every offense. The state refers to § in accor- convicted of an offense shall be sentenced person a is dance with this 53a-28 title”); (b) (“when § impose an the court shall one of offense, convicted of imprison- sentences ... a term of following (9) 54-125e period special parole”); (c) ment and a of § may period special parole that of exceed ten (providing General Statutes years offenses)8 for enumerated and of the term of incarcera- (“[t]he length 54-128 total (c) § special parole tion and term of combined shall not incarceration author- exceed the maximum sentence of was con- person ized for the offense for which the has legislature We victed”). acknowledge in special parole suggested referred to the manner our This, however, does not detract from state. analysis. period A or term of offense, a and such punishment single as for per- of a period following expiration would arise imprisonment imposed by the son’s maximum term of revealed, however, interpretation court. What our has provides: (c) “The of § General Statutes 54-125e year years, except more than ten that such shall be not less than one person period may for a convicted of a violation be for more than ten prior (2) general of the statutes effect to of subdivision of section 53-21 1, 2000, (a) (2) or section subdivision of subsection of section 53-21 October 53a-71, persis 53a-70, 53a-70a, 53a-70b, or 53a-72b or sentenced as a 53a-72a felony pursuant (h) dangerous 53a- offender to subsection section tent felony pursuant Q) persistent to subsection 40 or as a serious offender 53a-40.” section has been con- person whether a regardless
is that
multiple offenses,
legisla-
of one offense or
victed
“period
special parole”
phrase
ture has used
in which a
of time
refer
to that duration
chairperson
jurisdiction
to the
transferred
supervision.9
paroles
pardons
board of
analysis
analysis, we conclude that a textual
As should be clear from our
year
meaning
yields plain
unambiguous
of the ten
limita
of 54-125e
opinion
by undertaking
dissenting
begins
(c).
tion set forth subsection
properly
analysis
54-125e,
considers its text as well
§of
one that
a textual
statutory provisions
relationship
addressed
that were
its
to several other
analysis,
majority opinion. Following the textual
the dissent concludes
in the
impose
aggregate term of
a ten
limit on an
the statute does not
analysis
parole. Thereafter,
legislative
the dissent undertakes
history
appears
rely upon
legislative
history and,
doing,
in so
proposed
that did not become law.
revision to 54-125e
rely upon
First,
reasons,
legislative
this
material.
several
we decline to
For
statute, legislative
that,
interpreting
meaning of a
§ l-2z instructs
analysis
yield
history
only
not
considered
when a textual
does
is to be
interpretation.
unambiguous
The dissent states that review of
clear and
*13
appropriate
majority opined
because the
that a
extratextual materials is
clarify meaning
(c)
in
does not
the
§
review of subsection
of 54-125e isolation
argues
year
the defendant
the ten
limitation codified therein
because
of
majority
ambiguous.
previously,
is
As stated
the
concludes
that the statute
analysis
adequately
a whole
clarifies the
that a textual
of the statute as
authority
proposition
meaning
limitation. There is no
for the
of the ten
portion
where an
review of extratextual material is warranted
isolated
that a
by
analysis
adequately
of the statute as a whole.
of a statute
is clarified
statutory language
ambiguous
Furthermore, determining whether
is a
judicial analysis,
merely
party. Second,
the assertions of a
function of
not
material to ascertain
our case law reflects that a review of extratextual
interpretation
statutory meaning is not without limit. When more than one
interpretative
plausible,
guidance to the
of a statute is
we
“look for
history
surrounding
enactment,
legis
legislative
and circumstances
its
to the
implement,
relationship
existing
policy
designed
and to its
to
lative
it was
to
subject
legislation
principles governing
general
and common law
same
Johnson,
(Internal quotation
omitted.)
.
matter
. . .”
marks
State
dissent,
630, 650,
(2011).
Conn.
Section directs that (a) 53a-31 they must run imposed, when are concur- regardless of rently. aperiod provides Subsection 54-125e (c) ten length cannot exceed exceptions set unless the offender falls into one of employed different legislature forth the statute. authority court. means limiting *14 pro- We distinctions between recognize significant such disparate bation and must leave special Furthermore, will of legislature. limitations to the analysis in our contrary nothing argument, to the state’s from consecutive senten- precludes imposing a court multi- period special parole ces—that include —for lawfully do, however, a court cannot ple offenses. What law, apply by proposed but must the law as is not bound revision of the written. it is
156 years exceed ten special parole period that a is order reject argument we the state’s Thus, in length. exceptions set forth fall under the who does not con- may sentenced under lawfully (c) in 54-125e period of aggregate that an sentences such secutive years.10 may exceed ten special parole is ille- that the sentence Having concluded remedy. In so appropriate an we must consider gal, reflected and mindful that the sentence we are doing, and the between the state plea agreement followed a reflects sentencing hearing A review of the defendant. believed that the six- state and the defendant that the A mutual parole was lawful. year period teen as to the of the sentence. legality mistake existed declare his sentences requests that this court defendant interpretation of in accordance with our and, illegal compliance in “order a new (c), 54-125e statutory provisions with the relevant request opportunity does not The defendant parole.” if a remand pleas. argues that, his The state to withdraw not be a mere reduc- necessary, the end result should is from sixteen tion of the years. The state asserts that such a resolution to ten inequitable unfair, as it would benefit would be both 10 analysis, weighs Although it not clear how the observation into its is “may persons majority’s other that the decision affect the dissent observes years.” already serving ten consecutive terms excess of specific by way example, length Then, the dissent discusses at sen Eastwood, by State that was handed down the trial court tence denied, App. 452, (2004), A.2d cert. 945 A.2d Conn. legality Our careful review of Eastwood reflects (2008). that the of the by was raised the defendant defendant’s sentence was an issue neither by affirming appeal considered this court. Because this on direct nor any propriety conviction, holding judgment related to the did not make sentence, we deem Eastwood to be irrelevant issue of the defendant’s analysis precedent, controlling our before us. While we are bound appeal legality in this is not affected of the defendant’s sentence specter have burdened with a sentence that other defendants been that, likewise, illegal.
157 way reflect any not in defendant but would preserve plea during negotiations reached agreement upon princi- bargain. Relying state’s benefit of the us to conclude that law, urges contract the state ples necessarily change The state asks us plea agreement. “unravels” the entire entirety and, by in their pleas to vacate the defendant’s to the trial list. implication, restore the cases Supreme Court We find in decisions of our guidance issues. addressed related which the court Tabone, supra, In State 527, defendant, v. 279 Conn. pleaded under the pursuant plea agreement, guilty to a 530. The trial Id., doctrine11 to several crimes. Alford effective term court sentenced the defendant to total by period spe years imprisonment ten followed years. Thereafter, ten Id. the defendant cial imposed with filed a motion to correct the sentence second crimes, sexual assault regard to one denied the defendant’s Id. The trial court degree. appealed judg defendant from that motion, and the with the Supreme Our Court Id., agreed ment. 532. “that the defendant’s defendant, concluding the total of the term length violates 54-128 because (c) and term of combined imprisonment author imprisonment maximum term of exceeds the 533. Id., in the second degree.”12 ized for sexual assault Supreme judgment Court reversed Our resentencing court “for the case to the trial remanded Raucci, App. 557, 21 in accordance with State v. Conn. A.2d 546 817, 215 Conn. 576 234, denied, 575 A.2d cert. Miranda, and State v. 93, 127-30, 260 Conn. (1990), Alford, 25, 37, S. Ct. 27 L. Ed. 400 U.S. See North Carolina (1970). 2d 162 regard, Although in this did raise a claim of error the defendant crime, another sentence for nonetheless held that the defendant’s court and, thus, (c) degree, likewise violated 54-128 assault in the third sexual Tabone, supra, illegal. 545. State v. *16 158 224, 123 S. Ct. 154 902, U.S. 506, denied, cert.
A.2d
Tabone, supra,
544.
State
v.
(2002).”13
L. Ed. 2d 175
I
in Tabone
remand,
the defendant
that
Following
imposed a
trial
which
by the
was resentenced
years incarceration,
twenty
effective sentence
total
with ten
years,
after ten
suspended
execution
Tabone,
417, 419-20, 973
probation. State
v.
292 Conn.
(Tabone
II).
again
The defendant
74 (2009)
A.2d
illegal
on
that the new sentence
appealed, arguing
Appellate
App. 562,
Raucci, supra,
Court
the
“In State v.
successfully
appealed
recognized
from a
who has
that a defendant
prevailed
punishment, who has
on his motion
or
multicount conviction
play
validity
sentence,
voluntarily
illegal
the
has
called into
to correct an
remedy
and, thus,
proper
sentencing package,
it
is to vacate
the entire
adopted
package
entirety.
Appellate
aggregate
The
Court therefore
in its
imposes
theory
resentencing,
recognizes
which
that when a trial court
ordinarily
conviction,
pursuant
its intent
is to
to a multicount
sentence
[a]
various
so as to arrive at
total
structure the sentences on the
counts
appropriate
crimes and the
that it deems
for both the
effective sentence
sentencing
Id.,
Essentially,
original
court is viewed as
criminal.
563.
merely
component parts
building
having
or
individual sentences
as
convictions, and, thus,
punishment
aggregate
larger
of a
total
for the
blocks
any part
package
allowing the court thereafter
to invalidate
of that
without
remaining
frustrate the
and revise the
valid convictions would
to review
Id.,
Appellate
sentencing
Accordingly, the
Court con
court’s
intent.
562.
power
[resentencing]
circumstances is
that the
court’s
under these
cluded
expressed by
original
original sentencing intent as
total
limited
its
sentence, and, furthermore,
power
permissive, not
that this
is
effective
may
package
mandatory.
Although
the court
reconstruct
may, therefore,
intent,
required
original
it is not
to do so. It
conform to its
portion
previously imposed
simply
[illegal
sentence
eliminate the
the]
may
intact;
it
reconstruct
sentenc
. . . and leave the other sentences
ing package
reach a
effective sentence that is less than the
so as to
total
simple
original
elimination of
sentence but more than that effected
principle
[illegal portion
original]
guiding
....
of the
rational,
coherent
that the court
resentence the defendant to achieve
convictions,
remaining
long
light
the revised total
as
[sentence]
Id.,
original.
563, quoting United
does not exceed the
effective sentence
970,
327,
(7th
denied,
Bentley,
Cir.),
cert.
488 U.S.
States v.
850 F.2d
Miranda, supra,
(1988);
v.
109 S. Ct.
To a the state’s great arguments concerning an appropriate remand by mirror those advanced Justice 14 United, Gibson, 761, (7th (court 2004) Cf. v. States 356 F.3d Cir. illegal sentence, conviction, plea acceptance guilty vacates and thereof after permission plea agreement defendant seeks to void entire because it led to imposition illegal sentence); Greatwalker, United States v. F.3d (8th 2002) (court plea following guilty 730-31 Cir. vacates conviction and illegal permission plea vacates sentence after defendant seeks to withdraw imposition illegal sentence). because it led to opinion in dissenting in his and concurring
Schaller See State heavily state. II, which cited Tabone J., (Schaller, 453-58 concur- Tabone, supra, Despite in those well part dissenting part). in ring we, as an intermediate court of arguments, reasoned majority’s resolution of the appeal, are bound case, present the defen- Like the defendant issue. I and Tabone II dant Tabone pursuant sentenced with state, reached one that plea agreement to a later held to be imposition to the a sentence led Supreme it In both our Court deemed illegal. appeals, for resentencing to remand case under appropriate not theory, to vacate the defen- aggregate package pleas. upon precedent, this we afford Relying dant’s present appeal. relief similar case is remanded judgment is reversed law. resentencing according J., concurred. opinion BISHOP, In this *18 majority’s I the J., dissenting. disagree with BEAR, improperly conclusion that the trial court denied the defen- illegal motion to correct an sentence filed the conclude, Brown. I dant, contrary, Ronald to the the motion properly the trial court denied defendant’s imposed was illegal. not I there- because the majority’s the respectfully fore dissent from direction and I affirm resentencing, to remand the case for would of judgment sentencing the the court. outcome of agree majority
I with the that the this dependent interpretation on our of the General case v. Tabone, Statutes. In State 417, 431-32, Supreme explained: our “When A.2d Court (2009), objective is statute, fundamental to construing [o]ur of give apparent ascertain and effect to the intent the words, determine, ... In other we to legislature. seek manner, statutory of the meaning in a reasoned the applied case, to the facts of language including [the] actually of question the whether the does language apply. In ... to determine that Gen seeking meaning, eral 1-2z Statutes directs us first to the text consider relationship of the statute itself and its to other statutes. If, after such text and rela examining considering such tionship, plain of such text is meaning unambig and yield uous does not results, and absurd or unworkable extratextual evidence of meaning of the statute shall quotation not be considered.” (Internal omitted.) marks provides: person General Statutes 54-125e “(a) Any of a convicted crime committed on or after October 1998, who received a definite sentence than of more two followed of period special parole shall, at the expiration of the maximum term or terms of imprisonment imposed by automatically jurisdiction transferred of the of chairperson [p]ardons [p]aroles or, person of if such [b]oard previously has been parole pursuant released on (a) subsection of 54-131a, section 54-125a or section jurisdiction remain under the of said chairperson until expiration of of period special parole imposed by the [department court. shall be [correction responsible supervision any for the person trans- jurisdiction chairperson ferred to [p]ardons [p]aroles under section this [b]oard person’s period during parole. such “(b) person When to a the court parole, recommend that such comply any requirements with or all of the of subsection (a) copy of section 53a-30. The court shall cause a *19 any per- such recommendation to be delivered to such son the [department and to of The [correction. [b]oard may of [pjardons [p]aroles require person that such comply requirements with the of of sec- subsection (a) person tion which Any 53a-30 the court recommended. period to a special parole sentenced of shall also be may subject rules and as be estab- to such conditions [pjardons [p]aroles or its [bjoard lished the pursuant chairperson to section 54-126. less period special parole shall be not
“(c) except such years, than one or more than ten for a period may be for more than ten of a of subdivision of section (2) convicted violation in effect to October general prior 53-21 of the statutes 53- 1, 2000, (a) subdivision of subsection section (2) or 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a 21 or section felony persistent a dangerous 53a-72b or sentenced as pursuant (h) offender subsection of section 53a-40 felony pursuant offender persistent or a serious (j) of section 53a-40. subsection parolee has, Whenever a in the of such “(d) judgment his the conditions of parolee’s officer, violated the special parole, parolee her the board shall cause or unnecessary delay for to be before it without brought At such charges. hearing, on the violation hearing informed of the manner in which such parolee shall be to have violated the conditions of parolee alleged special parole and shall be advised parolee’s such employee conducting hearing of the board process parolee’s rights. such due may: established, board “(e) If such violation is modify period parole; (2) (1) Continue special parole; or revoke (3) conditions enlarge special parole. the sentence of parolee, for a “(f) If the board revokes for the commit- chairperson issue mittimus for to a correctional institution parolee ment of such unexpired portion of the any period not to exceed special parole. period of has Whenever been revoked
“(g) may, any during at time the unex- parolee, the board special parole, allow pired portion *20 parolee again special to be released on parole without court order.” (Emphasis added.)
In the construing meaning statute, majority of this the principle of law that “a recognizes statute should not be read in a any portion such manner as to render of it superfluous.” proceeds pay special It then atten- “ tion to the words or imprisonment” term terms of of (a) subsection 54-125e to reach the conclusion that “the legislature provided has a period of parole only a commences not situation in which a person has been sentenced to a of single term incarcera- tion special parole, and but after a person has been multiple sentenced to spe- terms of incarceration and cial for more than one offense.” (Emphasis original.) emphasized merely language provides that, in situation in which a has been sentenced multiple spe- offenses to terms of incarceration and cial parole, special parole begins expiration after of multiple statutory terms of incarceration. The “period special parole” reference to a describes that period of expiration time that follows the of person’s term of incarceration for each offense to which the pleaded defendant has or guilty. has been found to be Thus, persuaded by I am majority’s interpreta- not tion that the period limits to a maxi- mum years of ten despite number offenses to pleaded which the defendant has or been has found to be guilty, which, although attempting read in a any statute manner that would not render portion superfluous, plain thereof words state: ignores “Any person convicted a crime committed on or 1,1998, after October who received a definite by period of more than two followed parole shall, expiration at the maximum term imprisonment imposed by terms of automatically jurisdiction transferred to the chairperson of the [p]ardons [p]aroles [b]oard *21 54-125e General Statutes added.) § . . . .” (Emphasis of “term or terms focusing While on the words (a). consider the majority legisla- the fails to imprisonment,” “a crime” and “a definite sen- import tive of the words also in the statute. tence,” used of 54-125e interpretation § I with the state’s agree the the has not limited legislature and conclude that in manner set authority sentencing of court legislative directive by majority. Following forth the text of a statute in relation of 1-2zthat we consider § Tabone, supra, statutes; to other see State interpreta find the state’s 431-32; support I further for statutes. General Statutes 54- § tion of 54-125e other § of provides length total of the term 128 (c) “[t]he term of combined shall incarceration and not maximum sentence of incarceration exceed the person for which the authorized the offense I that this fur (Emphasis added.) convicted.” conclude supports position ther the state’s that the only by court is the maximum sentence on limited each offense. 53a-28, Statutes entitled
Additionally, General part: sentences,” provides “(a) “Authorized relevant chapter 420b, 17a-699 and Except provided as section of said section and provisions to the extent chapter herewith, every person are inconsistent con- victed of an offense shall be sentenced in accordance title, Except provided as in section 53a- (b) with this offense, a the court 46a, when convicted of (1) sentences: A term impose following shall one by sec- or a sentence authorized imprisonment; (2) a or a 18-73; fine; tion or or term (3) (4) 18-65a imprisonment fine; (5) imprisonment, and a or a term of imprisonment with execution of such sentence of entirely by court, or a suspended, period after set or period probation period and a of conditional discharge; or a term of (6) imprisonment, with the exe- cution of such sentence of imprisonment suspended, entirely period or after a set and a fine period probation and a period or a of conditional or discharge; (7) fine and a sentence authorized section 18-65a or 18-73; or a sentence (8) of uncondi- (9) imprisonment a term tional discharge; provided in section 54- 125e.” (Emphasis added.)
Furthermore, General Statutes provides: 53a-37 multiple “When imprisonment sentences of are imposed *22 person on a at the same time, or when a who subject any to undischarged imprisonment term of previous at a time a court of this state is sentenced to additional term of imprisonment, sentence or imposed by sentences the court shall run either concurrently or consecutively with respect to each other and to the undischarged term or terms such manner as the court directs at the time of sentence. The court shall state whether the respective maxima and minima shall run concurrently consecutively or respect with to other, each and shall state in conclusion the effective imposed. When person is sen- tenced for two or more counts each sepa- constituting offense, rate may the court order that the term of imprisonment for the second and subsequent counts be years for a fixed number of each. The court such cases shall not any set minimum imprisonment term of except under the count, first and the fixed number of years imposed for the second and subsequent counts shall be added to the maximum imposed by term court on the first count.” each of
Reviewing the statutes referenced herein in relation to each I other, conclude that the sentencing court sentence a defendant to a term imprison- special parole ment and for each upon crime which he or she is convicted, provided each individual sentence sentence allowed not exceed the maximum
does authority has offense, and that the court consecutively, even if the run those sentences to order special parole years. exceeds ten term of aggregate 54-125e, 53a-28 and 54-128 (c), See General Statutes §§ 53a-37. if the majority opinion,
Under the rationale of
multiple sentences
were to order
sentencing court
concurrently,
special parole
on each
run
it ordered
simply
special parole
would
sentence,
terms
special parole
long
so
merge
largest
into the
term
less,
unless one or more of the
as it was ten
statutory exception permitting
were within the
offenses
interpretation
not
with
longer
disagree
term. I do
this
I
However,
with the
disagree
for concurrent sentences.
application
principle
this
to consecutive
majority’s
clearly
the sen-
Although
permit
sentences.
our statutes
sentences;
Gen-
court to order consecutive
see
tencing
53a-37;
majority
Statutes
concludes
eral
with
special parole
sentences
can
consecutive
only
term of
aggregate
ordered
if the
years, except for
enumer-
does not exceed ten
certain
crimes. If the
term of
aggregate
ated
*23
years,
majority
would exceed ten
the
concludes that
to
permitted
the court is not
order such
sentence.
result,
reasoning
majority,
This
under the
would
majority
reads these
illegal
Although
in
sentence.
the
authority
I
find
to
54-125e,
restrictions into
can
no
§
on
court.1
support
sentencing
such a limitation
the
1
majority
possible
the
in
case
affect
It is
that the decision of
this
parole
persons already serving
terms in excess
other
consecutive
Eastwood,
years. See,
452,
n.1,
e.g.,
App.
454,
State
of ten
83 Conn.
(2004) (defendant
nine
A.2d 234
sentenced to total effective term of
incarceration,
by
years
denied,
years
special parole),
followed
fifteen
cert.
914,
(2008).
judgment
A
in the
Additionally, majority opines is not clear “[i]t from review of subsection of 54-125e whether (c) § ‘period special parole’ the ten limit on the limits special parole portion imposed of the sentence individual offenses or whether it limits a defendant’s aggregate sentence that arises from his conviction of multiple offenses for which
by purpose court.” For the argument, majority correctly I assume that the and the defendant I, have determined that 54-125e is ambiguous, § thus, applicable history. also examine legislative (a) (2) (a), of §§ violation 53a-49 and 53a-94 the court sentenced the defen- years incarceration, by years special parole, dant to three to be followed five three, attempt to run consecutive to count one. On count criminal to commit kidnapping degree (a) (2) §§ the second violation of 53a-49 and 53a- (a), incarceration, court sentenced the defendant to three years special parole, be followed five to run consecutive to counts one through six, charge and two. On counts four each of which was a of risk iryury (Rev. 1999) (a) to child in violation of General Statutes 53-21 (1), 00-207, 6, as amended Public Acts No. the court sentenced *24 years incarceration, concurrently. the defendant to three run On the final to count, seven, interfering count in violation of with officer General Statutes year incarceration, 53a-167a, § the court sentenced the defendant to one years concurrently, also to run for a total effective sentence ofnine incarcera- by years tion, special parole. to be followed fifteen clarify does not history of 54-125e § legislative that statute. enacting legislature intent of the revision history proposed of a However, legislative my interpreta- support some provides to 54-125e Bill No. 587 2002, Senate 7, On March 54-125e. tion of § judiciary, which, on joint committee was referred to in a favorably on the bill 2002, reported on March by passed which then bill, vote.2 The unanimous thirty-three on a vote April 17, 2002, the Senate on be amended:3 54-125e three, provided SEN. Judiciary reported through on “The Committee Chairperson of Dist., the 2nd COLEMAN of [ERIC D.] that the bill part Senate, on the the Committee pass. ought PAROLE. CONCERNING SPECIAL
“AN ACT Represen- by and House “Be it enacted the Senate Assembly convened: tatives in General statutes, the general 1. 54-125e of “Section Section repealed public 01-84, act by section as amended in lieu thereof (Effective is substituted following and the 1, 2002): October or more one Any convicted of person
“(a) [a crime] who 1, 1998, crimes on or after October committed sentence aggregate received a definite two followed more than term of the maximum shall, expiration at the imprisonment or terms of custody of the Commissioner transferred from the chair- jurisdiction of Correction to the [chairman] if has or, of Parole such person of the Board www.cgact.gov/asp/ history Bill available at of 2002 Senate No. 587 See cgabiUstatus/cgabiUstatus.asp?selBiUType=Bill&bill_num=587& which_year=2002&SUBMITl.x=12&SUBMITl.y=7 bracketed; new material is underlined. Deleted material is *25 parole pursuant to subsec- been released on previously amended, 54-125a. as or section 54- of section (a) tion jurisdiction of said 131a, remain under the [chairman] expiration period special chairperson until the court. parole imposed period Any person sentenced to “(b) rules and conditions subject shall be to such by the Board of Parole or its may be established 54-126. chairperson pursuant to section [chairman] shall be not less “(c) years any single one nor more than ten than crime, period may that be for more than except such a violation of subdivi- person ten for a convicted of in effect of section 53-21 of the statutes (2) general sion 1, subdivision of subsection prior 2000, (2) to October 53a-70, 53a-70a, 53a-70b, 53-21, of section section (a) persistent as a 53a-71, 53a-72a or 53a-72b or sentenced felony pursuant (h) offender to subsection dangerous felony persistent serious offender section 53a-40 or as a 53a-40.” pursuant (j) to subsection of section Senator Coleman explain bill, When asked to “Oftentimes an individual explained part: in relevant may incident and there [may single arrested for be] are as a result of that charges lodged be a number of that multiple person may be convicted for incident. And sentenced on those convic- . . . charges [a]nd very it was unclear tions. Under that circumstance has written way that the current statute been under the for a eligible that could ever be that multiple convictions. This bill parole because of the individual would make it clear that such an seeks to . . . deny .... I can’t to earn be able alleviate for that would be to part of the rationale currently system that prison in our overcrowding thinking forward also, I think there is some exists. But Sess., p. 1062, Proc., 45 S. Pt. operation.” Eric When asked remarks of Senator D. Coleman. currently the law McKinney Senator P. whether John people multiple crimes could provided convicted *26 only special id., pp. parole; serve concurrent terms of explained: Coleman “Under the cur- 1066-67; Senator there is some interpretation thought rent statute special person parole, parole, that a could not be on it years. for than ten What this bill does to make more in particularly aggregate clear that the case of sentences person placed be a could on for years.” p. period exceeding Id., of time ten 1067. When questioned further, responded: Senator Coleman “The extremely intent bill is to it clear that of this make applicable parole is to individuals who’ve been crime”; id., sentenced for conviction on more than one p. 1069; purpose that “the main of the bill is to placed make it clear that could on years.”4 Id., of time ten exceeding p. 1074. 2002 Senate Bill No. 587 had unanimous
Although support judiciary and had in the committee consider- nonetheless, able in support Senate, it, died in the Representatives. Proc., House of 45 H.R. Pt. 6, See Sess., 1792-1811. pp.
In case, this defendant sentenced on two after a plea agreement. different dockets In global accepted docket he CR-06-0112604, number an offer years incarceration, by five years to be followed ten special parole. CR-05-0109070, In docket number he accepted years incarceration, an offer of four to be years special parole. sentences, followed six ran for a agreed, consecutively, were to total effective among 4 Ialso some note that there was discussion some members of the special parole provisions only Senate that of 54-125e were meant to apply persons being to after of one sentenced convicted crime and that given could not be to someone convicted of more than one This, Proc., Sess., pp. however, crime. See S. Pt. 1061-74. did not appear majority. sentiment of the See id. be the years incarceration, sentence of nine followed six years special parole. teen Had the defendant chosen to to a maxi go charges, exposed to trial on these he was twenty years mum sentence of incarceration the first years docket and fifteen incarceration the second exposure thirty-five years docket, for a total incarcera law, tion.5 Under our if the defendant were convicted trial, after court could have sentenced sentencing up thirty-five years incarceration, him to serve after the sentences on each of the two ordering charges consecutively. were the basis for to run However, majority’s under the the court reasoning, years prison, twenty- could not sentence him to nine six less than the maximum sentence for the *27 offenses, by years special followed sixteen parole, solely aggregate because the term of years. exceeded ten I do not that 54-125e limits agree § authority the the court such manner. 54-125e in relation to 54-128 53a-28 Considering (c), §§ 53a-37, I authority conclude that the court had the order the sentence, including separate defendant’s the periods special parole, consecutively. to run my I
Additionally, disagreement also note with the remedy majority set forth the in this case. Practice provides judicial authority may Book 43-22 that the any at time correct an sentence or other illegal illegal imposed or it correct a in an disposition, sentence illegal any disposition manner or other made an illegal majority manner. The vacates the defendant’s sentence and remands the matter for resentencing according likely impossible law. I that it is for However, conclude 5Furthermore, majority as set forth in its footnote the notes that the plea agreement defendant received additional benefits from his because the imposed discharge driving of unconditional on the reckless court sentence MV-05-0443087, brought count that was under and the state entered a nolle prosequi regard charges brought with additional under several to several numbers, including docket numbers CR-05-0109070 and CR-06- docket 0112604. in a manner imposed correct the sentence
the court to plea agreement. intent of the effectuates a reduction of opinion, requires majority Because differs arguably this case special parole, six year was one where what was at issue Tabone, from result This part agreement. state the benefit give does not present case with the it leave the trial court nor does bargain, of its The court accepted. it scope of the sentence terms probation to substitute permitted not 429-30; Tabone, supra, see State parole; comparable be a substitute prison time nor would more id. the sentence. See parole portion of for the this the court in only alternative for appears It of special defendant’s term would be to reduce the case case, In the defen- one third. this more than nine term of a only not received benefit dant exposed to a maximum incarceration, when he received an thirty-five years, but he also driving reckless on a count of discharge unconditional on several other prosequis and nolle in another docket opinion. of this See footnote 5 counts in other dockets. defen- rescript provide also would majority’s approxi- benefit of an the unforeseen additional dant special parole. reduction in his mate one-third if sentence as that, with the state I agree *28 is no sentence that legal case was there illegal, in this Thus, as approximate plea agreement. could I that the defendant’s requested by state, conclude rescinded, that each count encom- pleas should be plea agreement, including passed or covered discharge, should prosequis and the unconditional nolle remanded and that the matter should be be reinstated including, proceedings, the trial court for further J., id., (Schaller, See 453-56 to, but not limited trial. part). part dissenting concurring dissent respectfully I foregoing, On the basis of of the trial court. judgment and would affirm