STATE OF CONNECTICUT v. DAVID E. LEE
(SC 19688)
Supreme Court of Connecticut
April 25, 2017
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js.
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Submitted on briefs April 4—officially released April 25, 2017
Bradford M. Buchta, assistant public defender, filed a brief for the appellant (defendant).
Sarah Hanna, assistant state‘s attorney, Matthew C. Gedansky, state‘s attorney, and Charles W. Johnson, assistant
Opinion
PER CURIAM. The sole issue in this certified appeal is whether, in light of this court‘s decision in State v. Wright, 320 Conn. 781, 135 A.3d 1 (2016), the proper remedy for the defendant‘s conviction of two counts of conspiracy arising from the same unlawful agreement is vacatur.1 The defendant, David E. Lee, was convicted of, inter alia, conspiracy to make a false statement in the second degree in violation of
A detailed recitation of the facts is found in the Appellate Court‘s decision; see State v. Lee, supra, 138 Conn. App. 424–25; and is not necessary for the resolution of the present appeal. The
The defendant appealed to the Appellate Court claim-ing that his convictions of conspiracy to make a false statement in the second degree and conspiracy to fabricate physical evidence arising from the same unlawful agreement violated the constitutional prohibition on double jeopardy.5 Id., 447–50. In his initial brief to the Appellate Court, the defendant sought merger of the two convictions as a remedy, pursuant to State v. Chicano, supra, 216 Conn. 724–25. State v. Lee, supra, 138 Conn. App. 447. The state agreed both with his claim of a violation of double jeopardy and his suggested remedy. Id. In his reply brief, however, the defendant claimed that pursuant to Rutledge v. United States, 517 U.S. 292, 307, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996), the proper remedy was to vacate his conspiracy to make a false statement in the second degree conviction, the less serious offense, and to remand his case to the trial court for resentencing. State v. Lee, supra, 447–48. The Appellate Court held that it was bound by Chicano to merge rather than to vacate the two conspiracy convictions. Id., 448. Accordingly, the Appellate Court reversed in part the judgment of the trial court in the false affidavit case and remanded the case to the trial court with direction to merge the defendant‘s conviction of conspiracy to make a false statement in the second degree into his conviction of conspiracy to fabricate physical evidence, to vacate the sentence on his conviction of conspiracy to make a false statement in the second degree, and to resentence the defendant on the conspiracy to fabricate physical evidence conviction. Id., 450. This appeal followed.
While the defendant‘s petition for certification to appeal from the Appellate Court‘s judgment was pending before this court, we first decided State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013), and then decided State v. Wright, supra, 320 Conn. 781. In Polanco, we held that vacatur was the proper remedy for a violation of double jeopardy arising from the conviction and sentencing of greater and lesser included offenses. State v. Polanco, supra, 248–49. In Wright, we extended the vacatur remedy identified in Polanco to instances where there is a violation of double jeopardy arising from convictions of multiple counts of conspiracy based upon a single unlawful agreement. State v. Wright, supra, 828–30.
In the present case, at the time that the Appellate Court decided the defendant‘s appeal, Chicano was binding authority on that court and mandated merger as the remedy for a double jeopardy violation arising from consecutive convictions. Thus, the Appellate Court properly applied that binding precedent and remanded the defendant‘s case to the trial court with direction to merge the two conspiracy convictions. In light of our subsequent decisions in Polanco and Wright, however, the defendant is entitled to have his conviction of conspiracy to make a false statement in the second degree vacated.
The judgment of the Appellate Court is reversed in part, and the case is remanded to that court with direction to reverse, in part, the judgment of the trial court, and to remand the case to that court with direction to vacate the defendant‘s conviction and sentence for conspiracy to make a false statement in the second degree and then to resentence the defendant on his remaining convictions under the aggregate package theory of sentencing.6