210 Conn. 519 | Conn. | 1989
The defendant was found guilty of the crime of arson in the first degree in violation of General Statutes § SSa-lll.
On appeal to the Appellate Court, the defendant claimed, inter alia, that the trial court, Kelly, J., erred in determining that it had no discretion to release the defendant from incarceration pursuant to § 17-251. The Appellate Court concluded, however, that the trial court had no discretion to release the defendant because he was not otherwise eligible for release under the penal code. State v. Hanson, 12 Conn. App. 32, 45, 529 A.2d 720 (1987). This court granted the defendant’s petition for certification to determine whether the Appellate Court erred in affirming the judgment of the trial court. We reverse the decision of the Appellate Court and remand the case with direction.
Although the facts that the trial court could reasonably have found are set forth in State v. Hanson, supra, we summarize those facts pertinent to the issues in this appeal. The defendant was charged with two counts of attempted murder in violation of General Statutes §§ 53a-54a and 53a-49 and one count of arson in the first degree in violation of General Statutes § 53a-lll. He was tried to the court, Hale, J., and acquitted of the two counts of attempted murder, but found guilty of the count of arson in the first degree. During the
On January 7,1986, the defendant appeared before the trial court, pursuant to General Statutes § 17-251 and asked the court to enter an order transferring him to another institution, such as Connecticut Valley Hospital, or in the alternative to heed Judge Hale’s recommendation at sentencing and require him to serve some lesser portion of his fifteen year sentence. Judge Kelly, however, discharged the defendant from Whit
The sole issue raised on appeal is whether the Appellate Court erred in concluding that in a proceeding pursuant to § 17-251, the court may not modify the sentence previously imposed if modification is otherwise prohibited under the penal code.
Under § 17-251 (b), a hearing is held to determine whether a defendant who is confined to Whiting for psychiatric care under General Statutes §§ 17-244
The first ground relied upon by the Appellate Court was that the defendant’s conviction of a class A felony made him ineligible for conditional or unconditional release under General Statutes §§ 53a-28
The second ground relied upon by the Appellate Court was that General Statutes § 53a-39
We find our decision in Murray v. Lopes, 205 Conn. 27, 529 A.2d 1302 (1987), dispositive on the issue of the correct interpretation of the word “release” in § 17-251 (b). While Murray v. Lopes dealt with the application of statutory sentence reduction credit to individuals sentenced and confined at Whiting for custody, care and treatment pursuant to General Statutes § 17-245 (c), we noted that “the benefit of early release under § 17-251 is in addition to, not in lieu of, the statutory sentence reduction credit that automatically accrues to all prisoners,” and “the fact that there are two different statutory release systems does not compel the conclusion that they are inconsistent or conflict with each other.” (Emphasis added.) Murray v. Lopes, supra, 35-36. The possibility of release through sentence modification under § 53a-39 is distinct from the possibility of release under § 17-251 (b). Although both statutes operate similarly by giving the court discretion to order release, they are different mechanisms for release.
We acknowledge the Appellate Court’s concern that reading “release” under § 17-251 (b) independent of the penal code could result in the release of a defendant convicted and sentenced under the penal code from any further confinement after six months at Whiting. If, for instance, an individual were convicted and sentenced to a nonsuspendible sentence of ten years in the Connecticut correctional institution at Somers, that individual would not be eligible for sentence reduction and would serve the full ten year term. If that same individual had been found to be in need of custody, care and treatment under General Statutes §§ 17-244 and 17-245, early release from his previously imposed sentence of ten years would be possible upon his discharge from Whiting pursuant to § 17-251 (b). Furthermore, an individual found to be in need of observation and treatment in a mental hospital following sentencing and transferred to such a facility pursuant to General Statutes §§ 17-194d or 17-194e must be returned to the custody of the commissioner of correction to complete his sentence upon recovery and discharge from the mental hospital. General Statutes § 17-194f.
We go no further than to point out that revision and clarification of General Statutes § 17-251 by the legislature is necessary. As it stands, the statute appears to authorize the director of Whiting and the trial court to grant “parole” to a patient sentenced and committed by the court. If that option was ever truly available to the director or the trial court under the statutes relating to parole,
Cognizant of our responsibility to afford the defendant his right to equal protection, we believe a remand
There is error, the judgment of the Appellate Court is reversed and the case is remanded to that court with direction that it be returned to the original sentencing court for resentencing in accordance with this opinion.
In this opinion the other justices concurred.
“[General Statutes] Sec. 53a-lll. arson in the first degree: class a FELONY, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied; or (2) any other person is injured, either directly or indirectly; or (3) such fire or explosion was caused for the purpose of collecting insurance proceeds for the resultant loss; or (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury.
“(b) Arson in the first degree is a class A felony.”
“[General Statutes] Sec. 17-251. review of cases after periodic examinations, disposition of cases: further treatment, transfer, leave of absence, parole, (a) As soon as is practicable the director shall act upon the examination reports of his staff. Upon review of each report and upon consideration of what is for the benefit of the patient and for the benefit of society, the director shall determine that such patient: (1) Remain in the institute for further treatment or be transferred to some other facility under the control of the commissioner or (2), if such patient is under commitment, be granted a leave of absence or extended visit or (3), if such patient is under sentence and is eligible for parole, be granted a parole; or (4) has sufficiently improved to warrant his discharge from the institute provided if such person was sentenced and confined in the institute under section 17-245, he shall not be released except upon order of the court by which he was confined under said section, after notice to said court by the director.
“[General Statutes] Sec. 17-245. disposition of defendant after REPORT. . . .
“(c) If at such hearing the court finds the defendant is not in need of custody, care and treatment at the institute, it shall sentence him in accordance with the conviction or place him on probation. If the court finds that such person is in need of outpatient psychiatric treatment, it may place him on probation on condition that he receive such treatment. If the court finds such person to be mentally ill and dangerous to himself or others and to require custody, care and treatment at the institute, it shall sentence him in accordance with the conviction and order confinement in the institute for custody, care and treatment provided no court may order such confinement if the report does not recommend confinement at the institute. The defendant shall not be subject to custody, care and treatment under this part beyond the maximum period specified in the sentence.”
General Statutes§ 17-244 provides in part: “certain convicted persons TO BE EXAMINED. REPORT AND RECOMMENDATION, (a) Except as provided in section 17-255 any court prior to sentencing a person convicted of an offense for which the penalty may be imprisonment in the Connecticut Correctional Institution at Somers, or of a sex offense involving (1) physical force or violence, (2) disparity of age between an adult and a minor or (3) a sexual act of a compulsive or repetitive nature, may if it appears to the court that such person is mentally ill and dangerous to himself or others, upon its own motion or upon request of any of the persons enumerated in subsection (b) of this section and a subsequent finding that such request is justified, order the commissioner to conduct an examination of the convicted defendant by qualified personnel or the institute. Upon completion of such examination the examiner shall report in writing to the court. Such report shall indicate whether the convicted defendant should be committed to the diagnostic unit of the institute for additional examination or should be sentenced in accordance with the conviction. ...”
“[General Statutes] See. 53a-28. authorized sentences, (a) Except as provided in chapter 368p, to the extent that such chapter is inconsistent herewith, every person convicted of an offense shall be sentenced in accordance with this title.
“(b) Except as provided in sections 53a-45, 53a-46a, 53a-54b and 53a-92, 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 sections 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 discharge; or (6) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a fine and a period of probation, or a period of conditional discharge; or (7) a fine and a sentence authorized by section 18-65 or 18-73; or (8) a sentence of unconditional discharge.
“(c) A sentence to a period of probation or conditional discharge in accordance with sections 53a-29 to 53a-34, inclusive, shall be deemed a revocable disposition, in that such sentence shall be tentative to the extent that it may be altered or revoked in accordance with said sections but for all other purposes it shall be deemed to be a final judgment of conviction.”
General Statutes § 53a-29 provides in part: “probation and conditional discharge: criteria; periods, (a) The court may sentence a per
“(b) The court may impose a sentence of conditional discharge for an offense, other than a class A felony, if it is of the opinion that: (1) Present or extended institutional confinement of the defendant is not necessary for the protection of the public; and (2) probation supervision is not appropriate. . . .”
“[General Statutes] Sec. 53a-35a. imprisonment for ANY felony COMMITTED ON OR AFTER JULY 1, 1981: DEFINITE SENTENCES; TERMS AUTHORIZED. For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows: (1) For a capital felony, a term of life imprisonment without the possibility of release unless a sentence of death is imposed in accordance with section 53a-46a; (2) for class A felony of murder, a term not less than twenty-five years nor more than life; (3) for a class A felony other than murder, a term not less than ten years nor more than twenty-five years; (4) for a class B felony, a term not less than one year nor more than twenty years, except that for a conviction under section 53a-55a, 53a-59 (a) (1), 53a-59a, 53a-70a, 53a-94a, 53a-101 (a) (1) or 53a-134 (a) (2), the term shall be not less than five years nor more than twenty years; (5) for a class C felony, a term not less than one year nor more than ten years, except that for a conviction under section 53a-56a, the term shall be not less than three years nor more than ten years; (6) for a class D felony, a term not less than one year nor more than five years, except that for a conviction under section 53a-60b, the term shall be not less than two years nor more than five years, and for a conviction under section 53a-60c, the term shall be not less than three years nor more than five years; (7) for an unclassified felony, a term in accordance with the sentence specified in the section of the general statutes that defines the crime.”
Having ruled, in State v. Dupree, 196 Conn. 655, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985), that a sentencing court has authority to suspend a portion of a sentence for arson murder in violation of General Statutes § 53a-54d this court, in State v. O’Neill, 200 Conn. 268, 511 A.2d 321 (1986), found that the trial court’s failure to exercise discretion to consider a suspended sentence for first degree arson constituted a violation of the defendant’s right to equal protection under our federal and state constitutions because it resulted in a harsher penalty for a defendant who acted with less culpable intent and who caused a less serious result.
General Statutes § 53a-39 provides in part: “reduction of definite SENTENCE OF THREE YEARS OR LESS. DISCHARGE OF DEFENDANT. INTENSIVE probation. At any time during the period of a definite sentence of three years or less, the sentencing court or judge may, after hearing and for good cause shown, reduce the sentence, order the defendant discharged, or order the defendant discharged on probation or conditional discharge for a period not to exceed that to which he could have been originally sentenced. At any time during the period of a definite sentence of at least two years but not more than five years, the sentencing court or judge shall refer any application of a defendant seeking placement in the intensive probation program to the office of adult probation for assessment and recommendations and may, after hearing and for good cause shown, order the defendant discharged on intensive probation in accordance with subsection (b) of section 54-105 for a period of at least one year but not more than the unexpired portion of the sentence. . . .”
“[General Statutes] Sec. 17-194Í. discharge from hospital of inmates of correctional institutions. The provisions of section 17-192 shall apply to any person committed to such hospital pursuant to sections
“[General Statutes] Sec. 54-125. PAROLE. Any person confined for an indeterminate sentence, after having been in confinement under such sentence for not less than the minimum term, or, if sentenced for life, after having been in confinement under such sentence for not less than the minimum term imposed by the court, less such time as may have been earned under the provisions of section 18-7, may be allowed to go at large on parole in the discretion of the panel of the board of parole for the institution in
Public Acts 1980, No. 80-442, §§ 9 and 10 provide: “Sec. 9. Subsection (a) of section 53a-35 of the general statutes is repealed and the following is substituted in lieu thereof:
“(a) [A] FOR ANY FELONY COMMITTED PRIOR TO JULY 1,1981, THE sentence of imprisonment [for a felony] shall be an indeterminate sentence, except as provided in subsection (d). When such a sentence is imposed the court shall impose a maximum term in accordance with the provisions of subsection (b) and the minimum term shall be as provided in subsection (c) or (d).
“Sec. 10. (NEW) For any felony committed on or after July 1,1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court . . . .”
The defendant was sentenced on January 9, 1985, and our decision in State v. O’Neill, 200 Conn. 268, 511 A.2d 321 (1986), was released on June 24, 1986.