242 Conn. 143 | Conn. | 1997
Opinion
The principal issue raised by this appeal is whether General Statutes § 53-202k,
The jury reasonably could have found the following facts. At approximately 1:30 p.m. on August 18,1994, the victim, Terry Coleman, and his fifteen year old cousin, Rashad Green-Younger, drove into the Meadow Gardens housing project in the city of Norwalk. As the victim was exiting his car, the defendant, whom the victim had met for the first time earlier that day, approached the car, pointed a gun at the victim’s temple, and stated, “This is a stickup, kid.” A struggle ensued, during which the defendant overpowered the victim, shot him in the back, and fled. Both Green-Younger and the victim, who suffered permanent injuries as a result of the shooting, positively identified the defendant as the assailant.
The jury thereafter convicted the defendant of first degree assault and commission of a class A, B or C felony with a firearm.
I
The defendant claims that his separate conviction under § 53-202k was improper because that statutory section is a sentence enhancement provision rather than a separate offense. Although the defendant concedes that the five year consecutive sentence imposed on him by the trial court pursuant to § 53-202k was proper, he maintains that his separate conviction under that statutory section must be vacated. We agree with the defendant.
Our analysis is governed by well established principles of statutory construction. “Statutory construction
Although the plain language of § 53-202k does not illuminate whether that statute is a sentence enhancement provision, the title of § 53-202k, “Commission of a class A, B, or C felony with a firearm: Five year nonsuspendable sentence” (emphasis added), suggests that the legislature’s overriding purpose in enacting § 53-202k was not to create a separate offense but, rather, to establish an enhanced penalty for persons who commit a class A, B or C felony with a firearm. Furthermore, unlike other provisions in which the legis
Our review of the relevant legislative history persuades us that § 53-202k was intended to serve as a sentence enhancement provision. Section 53-202k was enacted as part of a comprehensive legislative plan for dealing with assault weapons. See Public Acts 1993, No. 93-306 (P.A. 93-306), now codified at General Statutes §§ 53-202a through 53-202k. During the debate on P.A.
These comments strongly suggest that the legislature, in enacting § 53-202k, merely sought to establish an additional penalty for a person who commits a class A, B or C felony with a firearm. Moreover, nothing in the legislative history suggests that the legislature intended that § 53-202k constitute a separate offense independent of the commission of the underlying felony. Indeed, at oral argument, the state indicated that it was not
For these reasons, and in the absence of any indication to the contrary, we conclude that § 53-202k is a sentence enhancement provision and not a separate crime.
II
The defendant also claims that he was deprived of his due process right to a fair and impartial jury under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.
The defendant concedes that he neither filed a request to charge nor excepted to the jury instruction that he now maintains was improper. He therefore seeks review of his unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), wherein we held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.)
Although the record before us is adequate to review the defendant’s claim, the defendant has failed to meet the second prong of the Golding test because his claim of instructional impropriety is not one of constitutional magnitude. “Just as every claim of evidentiary error by the trial court is not truly constitutional in nature; see, e.g., id., 241; every claim of instructional error is not
The judgment is reversed in part and the case is remanded to the trial court with direction to vacate the defendant’s conviction under § 53-202k and to resentence the defendant to a total effective term of imprisonment of sixteen years in accordance with this opinion.
In this opinion the other justices concurred.
General Statutes § 53-202k provides: “Commission of a class A, B or C felony with a firearm: Five-year nonsuspendable sentence. Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”
General Statutes § 53a-59 provides in relevant part: “(a) A person is guilty of assault in the first degree when ... (3) under circumstances
“(b) Assault in the first degree is a class B felony . . .
The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).
The defendant also claims that the trial court improperly instructed the jury regarding the credibility of police officers. We decline to review this claim for the reasons set forth in part II of this opinion.
The defendant also had been charged with attempted murder and attempted robbery in the first degree. The jury, however, acquitted the defendant of those charges.
Because a felony conviction may carry with it “adverse collateral legal consequences”; (internal quotation marks omitted) State v. John, 210 Conn. 652, 694, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); see, e.g., Ball v. United States, 470 U.S. 856, 864-65, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985); the defendant is also entitled to have his separate conviction under § 53-202k vacated in light of our conclusion that § 53-202k is a sentence enhancement provision rather than a separate offense.
General Statutes § 53a-216 provides: “Criminal use of firearm or electronic defense weapon: Class D felony, (a) A person is guilty of criminal use of a firearm or electronic defense weapon when he commits any class A, B or C or unclassified felony as defined in section 53a-25 and in the commission of such felony he uses or threatens the use of a pistol, revolver, machine gun, shotgun, rifle or other firearm or electronic defense weapon. No person shall be convicted of criminal use of a firearm or electronic defense weapon and the underlying felony upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.
“(b) Criminal use of a firearm or electronic defense weapon is a class D felony for which five years of the sentence imposed may not be suspended or reduced by the court.” (Emphasis added.)
General Statutes § 53a-217 provides: “Criminal possession of a firearm or electronic defense weapon: Class D felony, (a) A person is guilty of criminal possession of a firearm or electronic defense weapon when he possesses a firearm or electronic defense weapon and has been convicted of a capital felony, a class A felony, except a conviction under section 53a-196a, a class B felony, except a conviction under section 53a-86, 53a-122 or 53a-196b, a class C felony, except a conviction under section 53a-87, 53a-152 or 53a-153, or a class D felony under sections 53a-60 to 53a-60c, inclusive, 53a-72a, 53a-72b, 53a-95, 53a-103, 53a-103a, 53a-114, 53a-136 or 53a-216. For the purposes of this section, ‘convicted’ means having a judgment of conviction entered by a court of competent jurisdiction.
“(b) Criminal possession of a firearm or electronic defense weapon is a class D felony, for which two years of the sentence imposed may not be suspended or reduced by the court.” (Emphasis added.)
At oral argument, the state indicated that it “[was] not wedded to [the] position that [§ 53-202k must] be treated as a separate offense,” and, further, that it had “no problem with respect to this court holding that § 53-2021< is nothing more than a penalty enhancement [provision].” The state also acknowledged the similarity between § 53-202k and our persistent felony offender statute, General Statutes § 53a-40, which does not create any separate crimes. See, e.g., State v. Sinclair, 184 Conn. 215, 216, 439 A.2d 945 (1981). As the state conceded, the only difference between § 53-202k and § 53a-40 is that the former requires proof of the commission of an offense, while the latter requires proof of a prior conviction.
It bears mention that the United States Supreme Court, in rejecting a constitutional challenge to a Pennsylvania sentencing provision comparable to § 53-202k; see 42 Pa. Cons. Stat. § 9712; noted that said statute “neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty . . . .” McMillan v. Pennsylvania, 477 U.S. 79, 87-88, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1985). We reach the same conclusion under the analogous provisions of § 53-202k.
The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .” This provision applies to the states under the due process clause of the fourteenth amend
Article first, § 8, of the Connecticut constitution provides in relevant part: "In all criminal prosecutions, the accused shall have a right. . . to a speedy, public trial by an impartial jury. No person shall be . . . deprived of . . . liberty . . . without due process of law . . . .”