State v. McCleeseState v. McCleese
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Pursuant to Miller v. Alabama (567 U.S. 460) and State v. Riley (315 Conn. 637), the prohibition against cruel and usual punishments in the federal constitution precludes a court from sentencing a juvenile offender to life imprisonment, or its functional equivalent, without the possibility of parole, unless the juvenile offender’s age and the hallmarks of adolescence have been considered as mitigating factors in the sentencing determination.
Pursuant further to recent legislation (
The defendant, who had been convicted of the crimes of murder, conspiracy to commit murder, and assault in the first degree, appealed from the trial court’s dismissal of his motion to correct an illegal sentence. The defendant was seventeen years old when he committed the crimes and was sentenced to eighty-five years imprisonment without eligibility for parole. The sentencing court made no express reference to the defendant’s youth and the hallmarks of adolescence as mitigating factors when it sentenced him. After the defendant was sentenced, Miller and Riley were decided, and
- The trial court properly dismissed the defendant’s motion to correct an illegal sentence for lack of subject matter jurisdiction on the basis of mootness, as the parole eligibility afforded to the defendant under
P.A. 15-84 was an adequate remedy for a Miller violation, and, accordingly, the defendant could not prevail on his claim that he was entitled to be resentenced under the state constitution: upon review of the factors set forth in State v. Geisler (222 Conn. 672) for construing the scope and parameters of the Connecticut constitution, this court declined to conclude that those factors compelled a state constitutional rule beyond what the legislature required in P.A. 15-84 , because, although federal precedent requires special treatment of juveniles who are subject to harsh punishments, that precedent hinged on the severity of those punishments, and this court could not dismiss the mitigating effect that the parole eligibility afforded to juvenile offenders underP.A. 15-84 has in this context, and the relevant text of the state constitutional provisions at issue (art. I, §§ 8 and9 ), the constitutional history, Connecticut and sister state precedent, and public policy did not support any enhanced protection under the state constitution; moreover, this court determined, after considering, inter alia, the historical development of the punishment of juvenile offenders in Connecticut, recent legislative enactments, and the laws and practices of other jurisdictions, that the remedy of parole eligibility for a Miller violation does not categorically offend contemporary standards of decency, and this court, in the exercise of its independent judgment, concluded that such a remedy comported with the state constitution. - The defendant’s claims that
P.A. 15-84 is unconstitutional under the separation of powers doctrine embodied in article two of the Connecticut constitution and the due process clause of the fourteenth amendment to the United States constitution were unavailing: the legislature did not exceed its authority by affording the defendant parole eligibility pursuant toP.A. 15-84 , as the power of sentencing is shared by all three branches of state government, the power to impose or modify a judgment of conviction is not synonymous with the power of sentencing, andP.A. 15-84 did not alter the defendant’s judgment of conviction but, rather, retroactively modified the state’s sentencing scheme, which falls within the legislature’s power to prescribe and limit punishments for crimes and does not encroach on the judiciary’s power to impose or modify a sentence; moreover,P.A. 15-84 does not violate the separation of powers doctrine by impermissibly delegating sentencing power to the Board of Pardons and Paroles, as the board’s power at the parole stage is distinct from the judiciary’s sentencing power; furthermore, although this court determined that the defendant had inadequately briefed his claim thatP.A. 15-84 violates the due process clause of the fourteenth amendment, it nevertheless concluded, on the basis ofP.A. 15-84 as enacted, that any Miller violation had been negated by virtue of the fact that the defendant was afforded parole eligibility under that act. - The defendant could not prevail on his claim that
P.A. 15-84 violates his right to equal protection under the United States constitution on the ground that juveniles convicted of capital felony are entitled to resentencing underP.A. 15-84 whereas juveniles, such as the defendant, who are convicted of murder, are not: even if this court assumed that each group of juveniles that the defendant identifies are similarly situated, the legislature had a rational basis for treating them differently, as the manner in which mandatory sentences for capital felony and discretionary sentences for murder are imposed is distinct and, thus, might have warranted distinct remedies; moreover, the legislature reasonably could have determined that, because only 4 juveniles were serving mandatory life sentences for capital felony or arson murder, whereas approximately 270 juveniles were serving sentences of longer than ten years for other crimes, resentencing was simply a more feasible task for a smaller group in light of the judicial resources needed to conduct such proceedings, and the legislature potentially could have distinguished between actual life sentences for capital felony and those that are for the functional equivalent of life, including for murder, and determined that the latter, which offer the possibility of geriatric release, was worth granting to even the most culpable offenders, particularly at an advanced age when they would likely pose a much lesser threat to society but would cost the state much more to care for.
(One justice dissenting)
Argued October 15, 2018—officially released August 23, 2019*
Procedural History
Substitute information charging the defendant with the crimes of murder, conspiracy to commit murder, assault in the first degree and conspiracy to commit assault in the first degree, brought to the Superior Court in the judicial district of New Haven and tried to the jury before Harper, J.; verdict and judgment of guilty of murder, conspiracy to commit murder and assault in the first degree, from which the defendant appealed to the Appellate Court, Bishop, McLachlan and Dupont,
Adele V. Patterson, senior assistant public defender, with whom was Beth A. Merkin, public defender, for the appellant (defendant).
Melissa Patterson, deputy assistant state’s attorney, with whom, on the brief, were Patrick J. Griffin, state’s attorney, and Matthew A. Weiner and Lisa M. D’Angelo, assistant state’s attorneys, for the appellee (state).
Kim E. Rinehart filed a brief for the Connecticut Psychiatric Society as amicus curiae.
D’AURIA, J. Under the federal constitution’s prohibition of cruel and unusual punishments, a juvenile offender cannot serve a sentence of imprisonment for life, or its functional equivalent, without the possibility of parole, unless his age and the hallmarks of adolescence have been considered as mitigating factors. Miller v. Alabama, 567 U.S. 460, 476–77, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012); Casiano v. Commissioner of Correction, 317 Conn. 52, 60–61, 115 A.3d 1031 (2015), cert. denied sub nom. Semple v. Casiano, U.S. , 136 S. Ct. 1364, 194 L. Ed. 2d 376 (2016); State v. Riley, 315 Conn. 637, 641, 110 A.3d 1205 (2015), cert. denied, U.S. , 136 S. Ct. 1361, 194 L. Ed. 2d 376 (2016). The defendant, William McCleese, a juvenile offender, was originally serving a sentence of imprisonment for the functional equivalent of his life without the possibility of parole, in violation of this constitutional mandate. Because of subsequent legislation, however, he will be eligible for parole in or about 2033. This appeal requires us to decide whether the legislature may remedy the constitutional violation with parole eligibility. We conclude that it may and has done so.
The following undisputed facts and procedural history, as contained in the record and the Appellate Court’s decision in the defendant’s direct appeal, are relevant to this appeal. The defendant was seventeen years old when he and a partner shot and killed one victim and injured another. State v. McCleese, 94 Conn. App. 510, 512, 892 A.2d 343, cert. denied, 278 Conn. 908, 899 A.2d 36 (2006). In 2003, a jury found the defendant guilty of murder in violation of
The defendant received a total effective sentence of eighty-five years of imprisonment without eligibility for parole, including sixty years on the conviction of murder. Although the sentencing court, Harper, J., considered other mitigating evidence and mentioned the defendant’s youth several times, there is no express reference in the record that it specifically considered youth as a mitigating factor, which, at the time, was not a constitutional requirement. See Miller v. Alabama, supra, 567 U.S. 460. The Appellate Court affirmed his conviction on direct appeal; State v. McCleese, supra, 94 Conn. App. 521; and this court denied his petition for certification to appeal from the Appellate Court’s judgment. State v. McCleese, 278 Conn. 908, 899 A.2d 36 (2006).
Subsequently, decisions by the United States Supreme Court, decisions by this court, and enactments by our legislature resulted in changes to the sentencing
To comport with federal constitutional requirements, the legislature passed No. 15-84 of the 2015 Public Acts (
Following these developments, the defendant filed a motion to correct an illegal sentence. He asserted a Miller claim under the federal constitution and a similar claim under the state constitution.3 Initially, the trial court, Clifford, J., ruled in the defendant’s favor on his federal constitutional claim but reserved ruling on a remedy for the federal violation and on the merits of the state constitutional claim.
Three days after the trial court’s initial ruling on the motion to correct an illegal sentence, the United States Supreme Court held that Miller applied retroactively. Montgomery v. Louisiana, U.S. , 136 S. Ct. 718, 732, 193 L. Ed. 2d 599 (2016). In other words, a Miller violation existed if a juvenile offender was serving life without parole without the trial court’s having considered the Miller factors, even if the sentencing took place before Miller had been decided. Although this court in Casiano had already established that Miller applied retroactively, critically, Montgomery also made clear that “[Miller’s] retroactive effect . . . does not require [s]tates to relitigate sentences, let alone convictions,
Relying on Montgomery, the state filed a motion to reconsider the trial court’s ruling granting the defendant’s motion to correct an illegal sentence. After briefing and argument, the court granted the motion to reconsider, concluded that the defendant’s Miller claim was now moot under both the federal and state constitutions, and dismissed the motion to correct an illegal sentence. The defendant appealed from that decision to the Appellate Court. The defendant’s appeal was then transferred to this court. See
In this appeal, we must decide whether the trial court had subject matter jurisdiction over the defendant’s motion to correct an illegal sentence. Subject matter jurisdiction “involves the authority of the court to adjudicate the type of controversy presented by the action before it.” (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 533, 911 A.2d 712 (2006). The existence of jurisdiction is a question of law, and our review is plenary. Id., 532. A trial court generally has no authority to modify a sentence but retains limited subject matter jurisdiction to correct an illegal sentence or a sentence imposed in an illegal manner. State v. Delgado, 323 Conn. 801, 809, 151 A.3d 345 (2016).
In the present case, whether the defendant has made out a colorable claim depends on (1) whether the parole eligibility afforded by
I
The defendant first claims that the parole eligibility afforded by
This court has not yet addressed this issue. In State v. Geisler, 222 Conn. 672, 684–85, 610 A.2d 1225 (1992), “we identified six nonexclusive tools of analysis to be considered, to the extent applicable, whenever we are called on as a matter of first impression to define the scope and parameters of the state constitution: (1) persuasive relevant federal precedents; (2) historical insights into the intent of our constitutional forebears; (3) the operative constitutional text; (4) related Connecticut precedents; (5) persuasive precedents of other states; and (6) contemporary understandings of applicable economic and sociological norms, or, as otherwise described, relevant public policies. . . . These factors, [commonly referred to as the Geisler factors and] which we consider in turn, inform our application of the established state constitutional standards—standards that . . . derive from United States Supreme Court precedent concerning the eighth amendment—to the defendant’s claims in the present case.” (Citations omitted.) State v. Santiago, 318 Conn. 1, 17–18, 122 A.3d 1 (2015).
A
1
Federal Precedent
It is not critical to a proper Geisler analysis that we discuss the various factors in any particular order or even that we address each factor. See Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 408, 119 A.3d 462 (2015). Because the point of departure that the defendant advocates for requires an understanding of the federal jurisprudence on the sentencing of juveniles, we begin with a survey of those precedents.
Federal precedent requires special treatment of juveniles when especially harsh punishments are imposed. The cases justify this treatment, in part, by acknowledging that juveniles are less deserving of criminal punishment and are more capable of change than their adult counterparts. But federal case law also relies on the severity of the punishments at issue in these cases: death and life imprisonment without parole. Precisely because these punishments are irrevocable, they are “disproportionate for the vast majority of juvenile offenders . . . .” Montgomery v. Louisiana, supra, 136 S. Ct. 736. This rationale does not support similar special treatment of juveniles who are parole eligible, notwithstanding the length of the sentence imposed, because they are afforded the opportunity to “demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change.” Id.
The eighth amendment to the United States constitu
The United States Supreme Court’s juvenile sentencing cases have involved categorical proportionality challenges, as does the defendant’s claim in this appeal. Therefore, in this context, the court has weighed the characteristics of juvenile offenders against the severity of sentences of death or life imprisonment without parole.
On one hand, the court has considered “the unique aspects of adolescence . . . .” State v. Riley, supra, 315 Conn. 644–45. It repeatedly has recognized that “children are constitutionally different from adults for purposes of sentencing.” Miller v. Alabama, supra, 567 U.S. 471. Juvenile offenders have “diminished culpability and greater prospects for reform” than their adult counterparts because they are less mature, more vulnerable to external influences like peers, and have character traits that are not yet fully ingrained. Id. These observations “[rest] not only on common sense—on what ‘any parent knows‘—but on science and social science . . . .” Id., 473. And, none of them is crime specific. Id.
On the other hand, the court has considered the severity of the punishments imposed: death or life imprisonment without parole. Sentence severity is critical to a categorical proportionality analysis. Prior to Graham, categorical challenges had been applied only to the death penalty. Graham v. Florida, supra, 560 U.S. 59; see also Kennedy v. Louisiana, 554 U.S. 407, 438, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008) (nonhomicide offenders); Roper v. Simmons, 543 U.S. 551, 568, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (juvenile offenders); Atkins v. Virginia, 536 U.S. 304, 318, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) (offenders with limited intellectual functioning). For juvenile offenders, however, the court extended categorical challenges to apply to sentences of life imprisonment without parole in certain contexts.
Miller, in particular, justified the extension of the categorical approach for two reasons, both of which relate to the irrevocability of a life-without-parole punishment. First, the court stated that traditional penological justifications could not warrant a mandatory, irrevocable punishment for a juvenile. Id., 472. Most relevant here, if a sentencing court determines that an offender is incapable of change, then incapacitation and the impossibility of rehabilitation justify his permanent imprisonment. See id., 472–73. But, the court noted, this determination is fundamentally “at odds with a child’s capacity for change,” so it presents a contradiction when applied to juvenile offenders. Id., 473; see also id., 472–73 (“[d]eciding that a juvenile offender forever will be a danger to society would require mak[ing] a judgment that [he] is incorrigible—but incorrigibility is inconsistent with youth” [internal quotation marks omitted]).
Second, the court “liken[ed] life-without-parole sentences imposed on juveniles to the death penalty itself.” Id., 474. The two “share some characteristics . . . that are shared by no other sentences,” such as irrevocability by “[i]mprisoning an offender until he dies . . . .” (Internal quotation marks omitted.) Id., 474–75. The comparison is even more apt in the juvenile context: a life-without-parole sentence is “especially harsh” for juveniles “because [a juvenile offender] will almost inevitably serve more years and a greater percentage of his life in prison than an adult offender.” (Internal quotation marks omitted.) Id., 475. Moreover, life imprisonment without parole is the “harshest possible penalty” available for a juvenile, after Roper barred capital punishment for juveniles. Id., 479. Therefore, the court “treated [life imprisonment without parole] similarly to that most severe punishment” by adopting “a distinctive set of legal rules” that had been applied only in death penalty cases. Id., 475. These rules required individualized sentencing, thereby ensuring that the most severe punishments were not inevitable but were “reserved only for the most culpable [juvenile] defendants committing the most serious offenses.” Id., 476.
But when a juvenile is eligible for parole, the punishment is no longer irrevocable, and, therefore, these rationales no longer apply (or, at least, not nearly with as much force). The first reason collapses if state law permits a juvenile to become parole eligible because the punishment expressly acknowledges that the offender might one day change and reenter society. Similarly, the justification for individualized sentencing—the harsh-
Not only was Miller’s reasoning limited to sentences that do not include parole eligibility, but its holding was as well. Id., 479 (“[w]e therefore hold that the [e]ighth [a]mendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders“). In Montgomery, the court took the opportunity to reiterate that life-with-parole sentences were constitutional, as it expressly permitted states to remedy Miller violations with parole eligibility. “Allowing those offenders [sentenced in violation of Miller] to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence . . . . The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change.” Montgomery v. Louisiana, supra, 136 S. Ct. 736.
In sum, the United States Supreme Court’s juvenile sentencing cases rest as much on the diminished moral culpability and enhanced capacity for rehabilitation of a juvenile offender as on the irrevocability of a punishment of death or life imprisonment without parole. To dismiss the effect of parole eligibility—which makes a punishment less severe by affording the opportunity to demonstrate change—would undercut their reasoning entirely.
2
Connecticut Constitutional Text and History
Textually, article first, §§ 8 and 9, of the state constitution establish principles of due process and serve as the basis for Connecticut’s prohibition against cruel and unusual punishments but provide no insight into Miller. See State v. Santiago, supra, 318 Conn. 16 (“the constitution of Connecticut prohibits cruel and unusual punishments under the auspices of the dual due process provisions contained in article first, §§ 8 and 9“). The defendant does not contend, and we have not held, that the text of these provisions of Connecticut’s constitution itself, compared with the text of the federal constitution, suggests any enhanced protection under the state constitution. Moreover, although neither due process provision expressly differentiates between juveniles and adults, we draw no conclusion from the fact that “the framers of the 1818 constitution decided to embed these traditional [freedoms from cruel and unusual punishments] in our dual due process clauses . . . rather than in an express punishments clause.”
Neither does Connecticut’s constitutional history support the defendant’s argument. In the early 1800s, Connecticut accounted for the differences between juvenile and adult offenders, but in ways plainly distinguishable from Miller.
One seminal distinction was the availability of the infancy defense: an offender less than seven years of age was conclusively presumed incapable of committing a crime, whereas an offender between the ages of seven and fourteen was presumed incapable, but the presumption was rebuttable. Offenders older than fourteen were treated as adults. In re Tyvonne M., 211 Conn. 151, 156, 558 A.2d 661 (1989). Other distinctions were less formal. Legislative pardons for juveniles were inconsistent but not uncommon; N. Steenburg, Children and the Criminal Law in Connecticut, 1635–1855: Changing Perceptions of Childhood (2005) p. 189 (from 1810 to 1830, General Assembly granted nine of twenty petitions for clemency by juvenile offenders, which was a higher percentage than granted to adult offenders); see also A. Kean, “The History of the Criminal Liability of Children,” 53 Law. Q. Rev. 364, 364–66 (1937) (discussing common-law recognition in England as early as thirteenth century of lesser moral culpability of child offenders and development of tendency to pardon them); and juries even may have hesitated to find juveniles guilty during this era. See N. Steenburg, supra, p. 31 (“[t]he General Assembly heard reports that underage criminals were aware that juries did not want to send them to the state prison“). Eventually, juveniles began to receive special treatment in criminal proceedings beyond the infancy defense, such as the appointment of guardians. Id., pp. 23–24, 186–87. By 1843, the legislature had enacted a discretionary sentencing scheme allowing courts to send offenders under age seventeen to less harsh county facilities instead of the state run prisons mandated for adult offenders. Id., p. 200; see
But these protections did not always apply. The laws in place to protect juveniles at the time of ratification were inconsistently followed in practice. See, e.g., N. Steenburg, supra, p. 192 (“the use of . . . guardians was inconsistent and often ineffective“). And the most significant reforms—discretionary sentencing and a reform school—occurred well after the state constitution had been adopted. Even then, although the location where an offender would serve his sentence could be modified, the duration could not: “Because state sentencing guidelines did not specifically allow consideration of mitigating circumstances, many children served what appeared to be excessively harsh sentences . . .
Thus, although Connecticut historically acknowledged that juvenile offenders are different from their adult counterparts and developed measures to allow courts to account for the disparity, the measures Connecticut has used are distinguishable from the one required by Miller. In the early 1800s, juvenile status appeared to end at an offender’s fourteenth birthday. When protections were technically available, they were discretionary, inconsistently applied, or both. And when protections were actually invoked, most addressed criminal liability (e.g., the infancy defense) or criminal procedure (e.g., the appointment of guardians), but not criminal punishment. Even the state’s later sentence mitigation reforms were merely permissive and only allowed a court to change the location where a defendant would serve a sentence. Mandatory consideration of age and the hallmarks of adolescence prior to imposing certain punishments on juvenile offenders is a much more recent development. Therefore, Connecticut constitutional history does not support the defendant’s argument that only resentencing, and not parole eligibility, can remedy a Miller violation.
3
Connecticut Precedent
This court has not yet addressed Miller as a matter of substantive state law. Our prior decisions on the subject have been limited to procedural state law and federal law. We, therefore, consider these cases as persuasive precedent but conclude that they do not support a rule that requires resentencing for punishments that include parole eligibility.
Casiano is the only case in which we have addressed cruel and unusual punishment as it relates specifically to juveniles under state law, as opposed to federal law. In that case, we concluded that Miller was a watershed rule of criminal procedure, and, therefore, it applied retroactively to cases arising on collateral review. Casiano v. Commissioner of Correction, supra, 317 Conn. 69, 71. As the defendant notes, we stated broadly that
As a matter of federal law, this court expressly and recently has held that parole eligibility is an adequate remedy for a Miller violation. In State v. Delgado, supra, 323 Conn. 810, the defendant originally had been sentenced without consideration of the Miller factors to the functional equivalent of life imprisonment without parole. With the enactment of
This court also has stated more broadly that Miller does not apply to sentences that “lack the severity of the sentences at issue in Roper, Graham and Miller.” State v. Taylor G., 315 Conn. 734, 744–45, 110 A.3d 338 (2015). In Taylor G., we concluded that a juvenile offender’s mandatory total effective sentence of ten years of incarceration followed by three years of special parole did not violate Miller. The court emphasized that the punishment was “far less severe” than those at issue in the United States Supreme Court’s juvenile punishment cases because it was not “final and irrevocable . . . .” Id., 745. We stated: “Although the deprivation of [a juvenile’s] liberty for any amount of time, including a single year, is not insignificant, Roper, Graham and Miller cannot be read to mean that all mandatory deprivations of liberty are of potentially constitutional magnitude.” Id., 745.6
The defendant notes that this court has twice—in Riley and Casiano—interpreted Miller to apply to punishments that it does not expressly include. Although these cases reflect this court’s determination that the phrase “life imprisonment without parole” should be construed beyond its literal meaning, we have applied
In the first case, State v. Riley, supra, 315 Conn. 637, in which we reasoned that Miller “logically reaches beyond its core holding,” we concluded that it applied to discretionary sentences and to sentences for terms of years that were the “functional equivalent” of a sentence of life without parole. Id., 642, 654. But many of the reasons we cited for why Miller should apply to these types of punishments do not apply when the juvenile is parole eligible. For example, we relied on the fact that the defendant’s sentence of 100 years imprisonment with the possibility of parole after ninety-four years left him “no possibility of parole before his natural life expires” and ensured that he “would undoubtedly die in prison . . . .” Id., 640, 643 n.2, 660. Parole eligibility after thirty years under
Similarly, in Casiano, apart from the retroactivity holding described previously, we held that Miller applied to a sentence of fifty years imprisonment without the possibility of parole. Casiano v. Commissioner of Correction, supra, 317 Conn. 79. Although we stated that “the concept of ‘life’ in Miller and Graham [was] more [broad] than biological survival“; id., 78; we were ultimately concerned with “the sense of hopelessness” that accompanies a life-without-parole sentence, which “means that good behavior and character improvement are immaterial . . . .” (Internal quotation marks omitted.) Id., 78–79, quoting Graham v. Florida, supra, 560 U.S. 70. Conversely, parole eligibility offers hope and makes an offender’s future conduct relevant.7
Thus, Connecticut precedent indicates only that this court has been willing to interpret Miller beyond its literal meaning, but not so far as to require resentencing for punishments that include parole eligibility under
4
Sibling State Precedent
The defendant argues that sibling state comparisons are not helpful in our analysis because certain aspects of Connecticut’s juvenile punishment scheme—most notably, a parole system in which eligibility is based in part on the length of the sentence—are unique to this state. Although Connecticut’s parole system appears to be distinct in this respect, we note that our essential holding in Delgado that Miller does not require resentencing for a punishment that includes parole eligibility is consistent with other jurisdictions. See State v. Delgado, supra, 323 Conn. 811–12 n.7 (citing jurisdictions);
5
Public Policy
Nor does Connecticut’s public policy compel a conclusion that resentencing is the sole remedy for a Miller violation. “[O]ur legislature . . . has the primary responsibility for formulating the public policy of our state.” Doe v. Hartford Roman Catholic Diocesan Corp., supra, 317 Conn. 435. In both Riley and Casiano, this court declined to address issues related to the recent constitutional developments in juvenile punishment in deference to the legislature. See Casiano v. Commissioner of Correction, supra, 317 Conn. 79 (“we have every reason to expect that our decisions in Riley and in the present case will prompt our legislature to renew earlier efforts to address the implications of . . . Graham and Miller“); State v. Riley, supra, 315 Conn. 662 (“there is every reason to believe that the legislature will take definitive action regarding these issues“).
In response, the legislature passed
The defendant and amici cite abundant evidence of the differences between juveniles and adults, which they contend weighs in favor of requiring consideration of the Miller factors at sentencing, even retrospectively
Fourth, and finally, both a belated resentencing hearing and a parole hearing can provide a meaningful remedy to this newly declared constitutional violation, although neither is ideal. “Under Miller, bear in mind, the inquiry is whether the inmate was seen to be incorrigible when he was sentenced—not whether he has proven corrigible and so can safely be paroled today.” Montgomery v. Louisiana, supra, 136 S. Ct. 744 (Scalia, J., dissenting). As with any factual issue, the passage of time often makes this finding difficult. “For example, [if the defendant waived a presentence investigation report at his original sentencing], a resentencing court would be called on to determine, without the benefit of a presentence investigation conducted at the time of the defendant’s conviction, what the defendant’s character was . . . years ago when he was sentenced. Without such information, the court would likely need to principally rely upon the defendant’s subsequent rehabilitation or lack thereof since his sentencing. . . . Resentencing in such cases would be cumbersome and would in reality be more akin to a parole hearing.” State v. Williams-Bey, 167 Conn. App. 744, 778–79, 144 A.3d 467 (2016), modified in part on other grounds, 173 Conn. App. 64, 164 A.3d 31 (2017), aff’d, 333 Conn. 468, A.3d (2019). The same situation arises in the present case because the parties cannot locate the presentence investigation report authored for the defendant’s original sentencing in 2003. Although it is “not impossible“; Songster v. Beard, 201 F. Supp. 3d 639, 641 (E.D. Pa. 2016); even in cases in which only a few years have passed, “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” (Internal quotation marks omitted.) Graham v. Florida, supra, 560 U.S. 68. Asking sentencing judges to make this determination years after the
The parole board, under
These considerations highlight a truth about the retroactive application of Miller that appears to animate the dissent and its frustration with our decisions in this case and in Delgado—that no remedy will put the defendant in the same position he would have been in if his youth had been considered when he was sentenced. In the present case, the defendant was effectively sentenced to life imprisonment, and state law did not provide an opportunity for parole for such crimes. See footnote 17 of this opinion. A sentence of life without parole improperly denies the juvenile offender of “a chance to demonstrate growth and maturity” because the court’s judgment that he is “incorrigible” “was made at the outset,” before he had the opportunity to show any capacity for change. (Internal quotation marks omitted.) State v. Riley, supra, 315 Conn. 648, quoting Graham v. Florida, supra, 560 U.S. 73. Without the possibility of parole, the defendant was denied hope; Graham v. Florida, supra, 70; and had no incentive to “demonstrate growth and maturity” that he might use in support of a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” (Internal quotation marks omitted.) State v. Riley, supra, 648.
Neither the remedy this state provides (parole eligi-
We acknowledge that a defendant’s parole eligibility date under
Ultimately, we do not believe that we are better situated than the legislature to strike an appropriate balance among these competing policies, particularly in an area that is traditionally within the purview of the legislature and when we have called the legislature’s attention to these specific issues. Therefore, we do not conclude that the considerations identified by the defendant and the amici compel a particular constitu-
B
The preceding Geisler analysis informs our application of the substantive legal test under our state constitution. See State v. Santiago, supra, 318 Conn. 18–19 n.14. (“our consideration of the relevant Geisler factors is interwoven into our application of the legal framework that properly governs such challenges“). “[T]he constitution of Connecticut prohibits cruel and unusual punishments under the auspices of the dual due process provisions contained in article first, §§ 8 and 9.” Id., 16. In evaluating challenges under this prohibition, we apply the two part federal framework that we adopted in State v. Ross, 230 Conn. 183, 252, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995). State v. Santiago, supra, 19, 21. First, we consider “whether the punishment at issue comports with contemporary standards of decency.” Id., 21. Second, we also must exercise our independent judgment to determine whether the punishment is constitutional. Id., 22.
In the first part—evolving standards of decency—we look for consensus based on five objective criteria: “(1) the historical development of the punishment at issue; (2) legislative enactments; (3) the current practice of prosecutors and sentencing juries; (4) the laws and practices of other jurisdictions; and (5) the opinions and recommendations of professional associations.” Id., 52.
We conclude that it does not categorically offend contemporary standards of decency to remedy a Miller violation with parole eligibility. Historically, although Connecticut enacted some measures to permit courts to mitigate punishment of juvenile offenders, the specific protections used were distinguishable from the sentencing practice at issue, limited, and inconsistently applied. See part I A 2 of this opinion. Currently, the prospective only sentencing provisions in
In the second part of the federal framework—the exercise of independent judgment—we consider judicial precedents and “our own understanding of the rights secured by the constitution,” which encompasses “whether the penalty at issue promotes any of the penal goals that courts and commentators have recognized as
Our independent judgment does not compel a conclusion that a Miller violation may not be remedied by parole eligibility under
For the previously stated reasons, we conclude that parole eligibility afforded by
II
In State v. Delgado, supra, 323 Conn. 801, we held that in light of
A
In Delgado, the defendant originally was serving a sentence of sixty-five years in prison, ‘‘which is equivalent to life imprisonment,’’ and was not eligible for parole. State v. Delgado, supra, 323 Conn. 810. Because the sentencing court had not considered the Miller factors, the defendant filed a motion to correct an illegal sentence, asserting a Miller claim under the federal
This court disagreed. It reasoned that because of
We noted in Delgado that our reasoning was consistent with the analysis in Montgomery v. Louisiana, supra, 136 S. Ct. 736, which indicated that states ‘‘may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. . . . Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the
The dissent takes issue with our reliance on Delgado, which it contends improperly interpreted Montgomery by holding that Miller no longer applied once the defendant was granted parole eligibility. The dissent argues that this sidesteps the issue of whether parole eligibility is a sufficient cure for a federal Miller violation in light of this court’s holding in Casiano that the rule in Miller is a watershed rule of criminal procedure. The dissent essentially would have us overrule Delgado on this ground.14 The dissent argues further that Delgado is distinguishable on the ground that it ‘‘neither addresses nor answers the different question raised by defendant here, which is whether the availability of parole under
The defendant never has advanced any of the dissent’s arguments, however.15 Moreover, the arguments
Additionally, when no party has asked us to overrule precedent, we are particularly reluctant to address—much less disturb—a unanimous precedent of recent vintage; see, e.g., New England Estates, LLC v. Branford, 294 Conn. 817, 836 n.20, 988 A.2d 229 (2010) (declining to overrule precedent when not argued by parties); when the legislative response to Miller at issue was invited by this court; see State v. Casiano, supra, 317 Conn. 79 (‘‘we have every reason to expect that our decisions in Riley and in the present case will prompt our legislature to renew earlier efforts to address the implications of the Supreme Court’s decisions in Graham and Miller’’); and the precedent is consistent with the United States Supreme Court’s holding that parole eligibility is a sufficient remedy for a Miller violation. See Montgomery v. Louisiana, supra, 136 S. Ct. 736. We would reexamine such a precedent only when there is a ‘‘special justification . . . .’’ Sepega v. DeLaura, 326 Conn. 788, 799 n.5, 167 A.3d 916 (2017). The dissent’s views do not present such a justification.
B
With respect to the claims actually raised by the defendant, he requests that we overrule our holding in Delgado because, otherwise, in his view, it effectively renders
Our holding in Delgado, however, was not that
‘‘[B]ecause a validly enacted statute carries with it a strong presumption of constitutionality, those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt. . . . [W]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear.’’ (Internal quotation marks omitted.) Id., 809.
Article second of the constitution of Connecticut, as amended by article eighteen of the amendments, provides in relevant part: ‘‘The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another. . . .’’
In challenges to a statute’s constitutionality on the ground that it impermissibly infringes on the judicial authority in violation of separation of powers principles, ‘‘[a] statute will be held unconstitutional on [separation of powers] grounds [only] if: (1) it governs subject matter that not only falls within the judicial power, but also lies exclusively within judicial control; or (2) it significantly interferes with the orderly functioning of the Superior Court’s judicial role.’’ (Internal quotation marks omitted.) State v. Evans, supra, 329 Conn. 810.
1
The defendant first argues that the legislature impermissibly modified his sentence by providing him with parole eligibility. He argues that, insofar as the judiciary has the exclusive power to modify a judgment, it also has the exclusive power to modify a sentence because a sentence is ‘‘the pronouncement of judgment in criminal cases . . . .’’ This argument is unpersuasive for two reasons.
First, under our state’s law, the power of sentencing is a shared power. Although the judiciary exclusively has the power to render, open, vacate, or modify a judgment, we repeatedly have held that the power to sentence is shared by all three branches of government. See, e.g., Washington v. Commissioner of Correction, 287 Conn. 792, 828, 950 A.2d 1220 (2008) (‘‘[a]lthough the judiciary unquestionably has power over criminal sentencing . . . the judiciary does not have exclusive authority in that area’’ [emphasis in original; internal quotation marks omitted]); id. (legislature decides appropriate penalties, judiciary adjudicates and determines sentence, and executive manages parole system); State v. Campbell, 224 Conn. 168, 178, 617 A.2d 889 (1992) (‘‘sentencing is not within the exclusive control of the judiciary and . . . there is no constitutional requirement that courts be given discretion in imposing sentences’’), cert. denied, 508 U.S. 919, 113 S. Ct. 2365, 124 L. Ed. 2d 271 (1993). The judiciary may impose a specific sentence, but the legislature has the power to define crimes, prescribe punishments for crimes, impose mandatory minimum terms of imprisonment for certain crimes, preclude the probation or suspension of a sentence, and even pardon offenders. See State v. Darden, 171 Conn. 677, 679–80, 372 A.2d 99 (1976) (‘‘the constitution assigns to the legislature the power to
Second, the power to impose or modify a judgment of conviction is not synonymous with the power of sentencing. A judgment of conviction is defined as ‘‘[t]he written record of a criminal judgment, consisting of the plea, the verdict or findings, the adjudication, and the sentence.’’ Black’s Law Dictionary (10th Ed. 2014) p. 972. ‘‘Sentencing,’’ however, is defined as ‘‘[t]he judicial determination of the penalty for a crime.’’ Id., p. 1570; see id., p. 1569 (defining ‘‘sentence’’ as ‘‘the punishment imposed on a criminal wrongdoer’’).
The defendant counters that, although the legislature has the power to create the scheme of punishment, it cannot do so retroactively without violating the separation of powers doctrine because the change effectively modifies his sentence. But the fact that the legislature, in exercising its power to create and modify the state’s sentencing scheme, has affected a particular defendant’s sentence does not mean that it has impermissibly encroached upon the judiciary’s powers to impose or modify a sentence. It is well established that judicial and legislative powers necessarily overlap in many areas, including sentencing. See, e.g., State v. Campbell, supra, 224 Conn. 178 (‘‘[a]lthough the judiciary unquestionably has power over criminal sentencing . . . the judiciary does not have exclusive authority in that area’’).
The fact that certain governmental powers overlap
Nor was a strict separation of powers enshrined in the state constitution. Although delegates adopted the provision currently contained in article second, they rejected another provision that would have barred one branch of government from exercising the powers of another:20 ‘‘[T]he [1818 state constitutional] convention [did] not seem to have been interested either in a particularly stringent version of separation of powers or in a careful restriction of the powers of the legislature. The convention struck the provision that would have expressly prohibited the officers of each department from exercising powers properly classified as belonging to another. Such explicit provisions were common in constitutions of other states being written at this time. . . . Given [the] tradition of harmony between executive and legislative departments, it may be that the convention did not feel the necessity for a strict expression of separation of powers. . . . The 1818 Constitution thus established a government with a flexible separation of powers and a distinctly dominant legislative branch.’’ R. Kay, supra, 8 Conn. L. Rev. 7.
‘‘The Connecticut history with regard to separation of powers stands in marked contrast, therefore, to that of the federal [c]onstitution.’’ E. Peters, ‘‘Getting Away from the Federal Paradigm: Separation of Powers in State Courts,’’ 81 Minn. L. Rev. 1543, 1552 (1997). ‘‘Diverse [state] histories21 demonstrate that even though state constitutional provisions may textually resemble those found in the federal [c]onstitution, they may reflect distinct state identities that will result in differences in how courts apply and construe such texts. Far from being arbitrary departures from a superior federal model, these interpretations have the legitimacy of differences rooted in the past and adaptable for the future.’’ (Footnote added.) Id., 1553.
In the present circumstances, however, the original constitutional intrusion was not upon another branch, but upon the rights of individuals not to have cruel and unusual punishments imposed upon them. Those punishments, although judicially levied, were legislatively authorized or even, in some cases, mandated. It is hardly incongruous—or unconstitutional—then, for the legislature to be a part of the solution to the intrusion on individual liberty it caused. This seems particularly true when the United States Supreme Court has suggested this very remedy; see Montgomery v. Louisiana, supra, 136 S. Ct. 736; and when we have invited the legislature to take such action. See State v. Riley, supra, 315 Conn. 662; see also Casiano v. Commissioner of Correction, supra, 317 Conn. 79.
Accordingly, we conclude that
2
The defendant also argues that, in its quest to cure a Miller violation via the parole board’s future consideration of the Miller factors,
To reiterate, in Delgado, we held that after passage of
Instead, the board has the power to determine whether a parole eligible offender is entitled to parole. This is to ensure that defendants have ‘‘some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’’ Graham v. Florida, supra, 560 U.S. 75. In furtherance of this goal, the act requires the board to consider certain factors, including the offender’s age and circumstances at the time of the offense. But, although these factors echo the Miller factors, they are not identical.23 Even if they were, just because the constitution requires the Miller factors to be considered at sentencing going forward does not mean that the legislature may not also require that the board consider those factors at other times.
Therefore, we conclude that
C
In his reply brief, the defendant also claims that we should overrule Delgado because it renders
The defendant’s analysis of this claim consists of one short paragraph in his reply brief. He does not provide any case law or analysis beyond his single citation to Daugherty. Nor does he specify whether he is making a procedural or substantive due process claim. There is no reference to the interest balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 334–35, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), as required under a procedural due process claim that implicates a liberty interest; see State v. Anderson, 319 Conn. 288, 314–15, 127 A.3d 100 (2015); or to the rational basis test applied to a substantive due process claim that does not involve a fundamental right. See State v. Moran, 264 Conn. 593, 615, 825 A.2d 111 (2003).
Because the defendant has not briefed the analytic complexities of his due process claim, we deem it inadequately briefed. See, e.g., State v. Buhl, 321 Conn. 688, 726–29, 138 A.3d 868 (2016) (upholding determination that due process claim was inadequately briefed). Nevertheless, we emphasize that our holdings in Delgado and the present case are premised on
III
Finally, the defendant claims that
The defendant’s argument proceeds in three parts. First, he contends that, as a juvenile convicted of murder with a discretionary sixty year sentence, he is similarly situated to another type of juvenile offender—one who has been convicted of capital felony with a mandatory life sentence, but without an underlying sentence for murder (which is a lesser included offense of capital felony). See State v. Reynolds, 264 Conn. 1, 24 n.13, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004). Second, he argues that these groups are treated differently under
Even if we assume that the juvenile offenders the defendant identifies are similarly situated,27 the legislature had a rational basis for treating them differently. ‘‘If the statute does not touch upon either a fundamental right or a suspect class, its classification need only be rationally related to some legitimate government purpose in order to withstand an equal protection chal-
The manner in which mandatory sentences for capital felony and discretionary sentences for murder were imposed is distinct and, thus, they conceivably might have warranted distinct remedies. Specifically, a juvenile convicted of murder already had received an opportunity to make his case for leniency to a judge, whereas a juvenile convicted of capital felony had not. In this sense, offering resentencing only to the latter group would result in equal, not harsher, punishment, at least in a numerical sense—each group gets one chance to convince a judge to exercise discretion in its favor. Moreover, practical considerations potentially might have made drawing this distinction between the groups rational. Only 4 juveniles were serving mandatory life sentences for capital felony or arson murder, as compared to approximately 270 juveniles serving sentences of longer than ten years for other crimes.29 See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 2015 Sess., p. 1062, remarks of Sarah Eagan, Office of the Child Advocate (stating number of juveniles sentenced). Because of the judicial resources needed to conduct the proceedings, the legislature reasonably could have determined that resentencing was simply a more feasible task for a smaller group. We also note that the legislature potentially could have distinguished between actual life sentences (for capital felony) and those that are for the functional equivalent of life (for murder). Because the latter still offer the possibility of geriatric release, the legislature could have determined that this possibility was worth granting to even the most culpable offenders, particularly at an advanced age when they would likely pose a much lesser threat to society but would cost the state much more to care for. Any of these reasons suffice to pass constitutional muster.
For the previously discussed reasons, the defendant is not entitled to relief in connection with his equal protection claim.
The judgment is affirmed.
In this opinion ROBINSON, C. J., and PALMER,
* August 23, 2019, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.
1 We refer to the offender’s age and the hallmarks of adolescence as the Miller factors throughout this opinion. Specifically, a court must consider ‘‘immaturity, impetuosity, and failure to appreciate risks and consequences’’; the offender’s ‘‘family and home environment’’ and the offender’s inability to extricate himself from that environment; ‘‘the circumstances of the homicide offense, including the extent of [the offender’s] participation in the conduct and the way familial and peer pressures may have affected him’’; the offender’s ‘‘inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys’’; and ‘‘the possibility of rehabilitation . . . .’’ (Internal quotation marks omitted.) State v. Riley, supra, 315 Conn. 658, quoting Miller v. Alabama, supra, 567 U.S. 477–78.
2 Section 1 of No. 15-84 of the 2015 Public Acts, codified at
‘‘(2) The board shall apply the parole eligibility rules of this subsection only with respect to the sentence for a crime or crimes committed while a person was under eighteen years of age. . . .
‘‘(3) Whenever a person becomes eligible for parole release pursuant to this subsection, the board shall hold a hearing to determine such person’s suitability for parole release. . . .
‘‘(4) After such hearing, the board may allow such person to go at large on parole . . . if it appears . . . (C) such person has demonstrated substantial rehabilitation since the date such crime or crimes were committed considering such person’s character, background and history, as demonstrated by factors, including, but not limited to, such person’s correctional record, the age and circumstances of such person as of the date of the commission of the crime or crimes, whether such person has demonstrated remorse and increased maturity since the date of the commission of the crime or crimes, such person’s contributions to the welfare of other persons through service, such person’s efforts to overcome substance abuse, addiction, trauma, lack of education or obstacles that such person may have faced as a child or youth in the adult correctional system, the opportunities for rehabilitation in the adult correctional system and the overall degree of such person’s rehabilitation considering the nature and circumstances of the crime or crimes.
‘‘(5) After such hearing, the board shall articulate for the record its decision and the reasons for its decision. If the board determines that continued confinement is necessary, the board may reassess such person’s suitability for a new parole hearing at a later date to be determined at the discretion of the board, but not earlier than two years after the date of its decision. . . .’’
Section 2 of No. 15-84 of the 2015 Public Acts, codified at
‘‘(1) Consider, in addition to any other information relevant to sentencing, the defendant’s age at the time of the offense, the hallmark features of adolescence, and any scientific and psychological evidence showing the differences between a child’s brain development and an adult’s brain development; and
‘‘(2) Consider, if the court proposes to sentence the child to a lengthy sentence under which it is likely that the child will die while incarcerated, how the scientific and psychological evidence described in subdivision (1) of this subsection counsels against such a sentence.
‘‘(b) Notwithstanding the provisions of section 54-91a of the general statutes, no presentence investigation or report may be waived with respect to a child convicted of a class A or B felony. . . .
‘‘(d) The Court Support Services Division of the Judicial Branch shall compile reference materials relating to adolescent psychological and brain development to assist courts in sentencing children pursuant to this section.’’
3 ‘‘A Miller claim or Miller violation refers to the sentencing court’s obligation to consider a juvenile’s age and circumstances related to age at an individualized sentencing hearing as mitigating factors before imposing a sentence of life imprisonment [or its equivalent] without parole.’’ State v. Delgado, 323 Conn. 801, 806 n.5, 151 A.3d 345 (2016). The United States Supreme Court relied on similar reasoning to decide Graham v. Florida,
4 Practice Book § 43-22 provides: ‘‘The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.’’
5 Article second of the constitution of Connecticut, as amended by article eighteen of the amendments, provides in relevant part: ‘‘The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another. . . .’’
6 Our Appellate Court also has declined to apply Miller (or a state constitutional analogue) to sentences of less than imprisonment for life, or its functional equivalent, without parole. See State v. Rivera, 177 Conn. App. 242, 275, 172 A.3d 260 (2017) (mandatory minimum sentence of twenty-five years incarceration did not violate state constitution); Dumas v. Commissioner of Correction, 168 Conn. App. 130, 140–41, 145 A.3d 355 (sentence of thirty years incarceration did not violate federal constitution), cert. denied, 324 Conn. 901, 151 A.3d 1288 (2016); State v. Logan, 160 Conn. App. 282, 293, 125 A.3d 581 (2015) (sentence of thirty-one years incarceration did not violate federal constitution), cert. denied, 321 Conn. 906, 135 A.3d 279 (2016).
7 Although we ordered resentencing in Riley and Casiano, those decisions predated the enactment of
8 See Brief of Amici Curiae American Psychological Association et al., Miller v. Alabama, (U.S. 2012) (Nos. 10-9646 and 10-9647), 2012 WL 174239, *8 (‘‘[a]dolescents are less able to control their impulses; they weigh the risks and rewards of possible conduct differently; and they are less able to envision the future and apprehend the consequences of their actions’’); Brief of Amicus Curiae American Bar Association, Montgomery v. Louisiana, (U.S. 2016) (No. 14-280) p. 24 (‘‘[t]he states’ interest in finality, which underpins the general rule of [nonretroactivity], is particularly weak here’’); Brief of Amicus Curiae Former Juvenile Court Judges, Montgomery v. Louisiana, (U.S. 2016) (No. 14-280) pp. 5–6 (‘‘the criminal justice system is equipped to revisit the sentences of juvenile offenders pursuant to this [c]ourt’s decision in Miller, even when those offenders’ cases are no longer on direct review and even when a substantial amount of time has passed since the offense was committed’’).
9 See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 2015 Sess., p. 966, remarks of Senator John A. Kissel (‘‘I appreciate all your efforts in working with the leadership of this committee to help move this issue forward for the betterment of the people of the [s]tate of Connecticut but also making sure that public safety is of paramount and continues to remain as paramount importance for the citizens that we represent’’).
10 See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 2015 Sess., pp. 955–56, remarks of Attorney Robert Farr (‘‘[O]ne of my personal issues here was the treatment of the victim’s and the victim’s families. And I didn’t want to see them revictimized by having this great uncertainty. You can think in the [Riley] case where an individual was murdered and a sentence was imposed of 100 years. Nine years later they’re now back into court again at a resentencing. . . . And so what we tried to do is—as has been pointed out is give some certainty so that in the [Riley] case instead of having to worry about resentencing what would have happened is in [thirty] years, [twenty-one] years from now there will be a parole hearing . . . .’’).
11 See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 2015 Sess., p. 963, remarks of Professor Sarah Russell of Quinnipiac University School of Law (‘‘So different states—California and Delaware have decided people should go through a court system [t]o petition essentially the court for a resentencing rather than do it through a parole board . . . . So it really I think depends on the individual state [and] what structures they have in place. Some states don’t even have functioning parole boards and so are relying on their court systems for a second look.’’).
12 See footnote 23 of this opinion (comparing Miller factors and parole eligibility factors). The dissent incorrectly states that parole eligibility under
13 See footnote 8 of this opinion.
Notes
The defendant filed his initial brief prior to this court’s decision in Delgado. In it, he argued that parole eligibility under P.A. 15-84 did not remedy a Miller violation because the requirements of Miller could be satisfied only by resentencing. As to Montgomery, the defendant argued that it did not overrule this court’s holding in Casiano that Miller was a watershed rule of criminal procedure, and, as such, any violation could be corrected only by resentencing. The defendant asserted separation of powers and due process claims. After this court’s decision in Delgado was released, however, the defendant sought and received permission to file a supplemental brief, in which he conceded that Delgado precluded his federal Miller claim, although he maintained his separation of powers and due process claims, and asserted a new equal protection claim. Subsequently, in his reply brief, for the first time, the defendant argued that this court should reconsider and overrule Delgado, relying not on the reasoning used by the dissent but, rather, by arguing that Delgado violates the separation of powers doctrine embodied in article two of the state constitution, as amended by article eighteen of the amendments. In light of the fact that Delgado was released after the defendant filed his initial brief, we have addressed all of the claims that the defendant has raised not only in his supplemental brief but also in his reply brief, including his claim that Delgado should be overruled on the ground that it violates the separation of powers doctrine. We, however, do not address the dissent’s contention that Delgado should be overruled because it misinterprets Montgomery and misapplies Casiano. The claim raised by the defendant involves the separation of powers doctrine, whereas the dissent’s contention involves cruel and unusual punishment. Although both seek to overturn Delgado, we disagree with the dissent that these legal issues are intertwined or subsumed with the issues raised.
Although the trial court had discretion to determine the length of the defendant’s sentence, it did not have discretion to grant the defendant the possibility of parole. Thus, by providing the possibility of parole through the enactment of P.A. 15-84, the legislature did not usurp the trial court’s exercise of discretion to determine whether the defendant was parole eligible but, rather, modified the sentencing scheme responsible for the defendant’s unconstitutional sentence.
We note, however, that should the legislature amend or repeal P.A. 15-84, § 1, possible ex post facto issues might arise. See Petaway v. Commissioner of Correction, 160 Conn. App. 727, 733, 125 A.3d 1053 (2015) (if there is change in law affecting parole eligibility, such change violates ex post facto clause if change ‘‘extend[s] the length of [a defendant’s] incarceration or delay[s] the date of his first eligibility for parole consideration beyond the time periods in existence at the time of his criminal conduct’’), cert. dismissed, 324 Conn. 912, 153 A.3d 1288 (2017). Under those circumstances, criminal defendants possibly could file a motion to correct an illegal sentence or a petition for a writ of habeas corpus.
Rather, the defendant’s argument appears to be based on P.A. 15-84, § 7, codified at General Statutes (Supp. 2016) § 53a-54b, which provides in relevant part: ‘‘A person is guilty of [capital felony] who is convicted of any of the following and was eighteen years of age or older at the time of the offense . . . .’’ (Emphasis in language added by P.A. 15-84, § 7.) The legislature specified that the amendment was retroactively ‘‘applicable to any person convicted prior to, on or after’’ October 1, 2015, the effective date of P.A. 15-84, § 7. We note that, shortly after the legislature’s approval of P.A. 15-84, the court abolished the death penalty in State v. Santiago, supra, 318 Conn. 140.
We note one further issue with regard to the defendant’s argument that a capital felony offender will be ‘‘resentence[d] . . . .’’ A capital felony offender is not ‘‘resentenced’’ in the same way that the defendant claims he is entitled to be. Rather, a conviction and sentence for one crime (capital felony) are vacated and a sentence for a separate conviction (murder) is imposed. Conversely, the defendant wants to have a second sentencing for the same conviction (murder).