State v. TaboneState v. Tabone
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Lead Opinion
Opinion
This case returns to us for a second time to address the sentence of the defendant, John Tabone, following our decision in State v. Tabone, 279 Conn. 527, 544, 902 A.2d 1058 (2006), in which we remanded the case for resentencing after concluding that the defendant’s original sentence of ten years incarceration followed by ten years of special parole was illegal. The defendant appeals1 from the judgment of the trial court sentencing him on remand to a total effective sentence of twenty years incarceration, execution suspended after ten years, followed by ten years of probation for his conviction of sexual assault in the second degree in violation of
The record reflects the following procedural history that is relevant to this appeal, most of which was set forth by this court in State v. Tabone, supra, 279 Conn. 530-32. “On November 2, 2000, pursuant to a plea agreement, the defendant pleaded guilty under the Alford doctrine7 to sexual assault in the second degree . . . sexual assault in the third degree . . . and risk of injury to a child8 ....
“In June, 2004, the defendant filed a motion to correct his sentence for sexual assault in the second degree pursuant to
In the first appeal, the defendant renewed the claims he had raised before the trial court and also claimed that “his sentence violatefd] the double jeopardy clause of the fifth amendment to the United States constitution because it ‘constitutes cumulative multiple punishments exceeding what the legislature intended’ for the offense of sexual assault in the second degree.” Id. This court concluded that “the defendant’s sentence violates
On remand, the trial court first recognized that State v. Raucci, supra, 21 Conn. App. 557, and State v. Miranda, supra, 260 Conn. 93, were applicable to the defendant’s sentence, and therefore, this court had authorized it to impose a sentence closely approximating the defendant’s original sentence, which had included a period of
I
The defendant first claims that his new sentence is illegal because the ten year period of probation unconstitutionally enlarged his original sentence in violation of his due process rights under the federal and state constitutions. In support of this claim, he contends, inter alia, that, because the terms of incarceration following violations of probation and special parole are calculated differently, he could be exposed to a significantly longer period of incarceration from a probation violation than from a violation of special parole, thereby exceeding the confines of his original sentence.17 The state claims that its
A
We begin our analysis by setting forth the legal principles that govern the resolution of the defendant’s claim and the appropriate standard for our review. Our rules of practice permit “[t]he judicial authority [to] at any time correct an illegal sentence . . . .”
This court has held that, when a case involving multiple convictions is remanded for resentencing, the trial court is limited by the confines of the original sentence in accordance with the aggregate package theory set forth in State v. Raucci, supra, 21 Conn. App. 563, and later adopted by this court in State v. Miranda, supra, 260 Conn. 129-30. In Miranda, this court recognized that “ ‘the defendant, in appealing his conviction and punishment, has voluntarily called into play the validity of the entire sentencing package, and, thus, the proper remedy is to vacate it in its entirety. More significantly, the original sentencing court is viewed as having imposed individual sentences merely as component parts or building blocks of a larger total punishment for the aggregate convictions and, thus, to invalidate any part of that package without allowing the court thereafter to review and revise the remaining valid convictions would frustrate the court’s sentencing intent.’ ” State v. Miranda, supra, 129, quoting State v. Raucci, supra, 562. Accordingly, “the [resentencing] court’s power under these circumstances is limited by its original sentencing intent as expressed by the original total effective sentence .... It may, therefore, simply eliminate the sentence previously imposed for the vacated conviction, and leave the other sentences intact; or it may reconstruct the sentencing package so as to reach a total effective sentence that is less than the original sentence but more than that effected by the simple elimination of the sentence for the vacated conviction. The guiding principle is that the court may resentence the defendant to achieve a rational, coherent [sentence] in light of the remaining convictions, as long as the revised total effective sentence does not exceed the original.” (Internal quotation marks omitted.) State v. Miranda, supra, 129-30, quoting State v. Raucci, supra, 563. The
With these principles in mind, we turn to the question of whether the trial court’s substitution of a period of probation for the period of special parole originally imposed exceeds the original sentence. Pursuant to
The state claims that it has rectified this defect, however, by agreeing to limit its recommendation for incarceration, in the event of a violation of probation, to the remaining probationary period and points to the doctrine of the law of the case to shield the defendant from an enlargement of his sentence. This contention is unavailing. The principal flaw in the state’s argument is that, while the
B
Because we conclude that the defendant’s sentence is illegal, we once again remand the case for resentenc-ing in accordance with the aggregate package theory under State v. Raucci, supra, 21 Conn. App. 557, and State v. Miranda, supra, 260 Conn. 93. We are mindful, however, that at the resentencing hearing, the trial court stated that, due to the fact that this court’s previous determination that the defendant’s term of special parole was illegal and the fact that probation could expose the defendant to additional incarceration, it would be difficult for the trial court to construct a sentence that would closely approximate the defendant’s original sentence. Indeed, the state offered its agreement in order to address these difficulties. Because of the apparent confusion in State v. Tabone, supra, 279 Conn. 527, a problem likely to arise on remand, and to provide some guidance on this matter, we next address the appropriate means to resentence the defendant. See State v. Arroyo, 284 Conn. 597, 601 n.3, 935 A.2d 975 (2007) (addressing issues likely to arise on remand); State v. Randolph, 284 Conn. 328, 331 n.2, 931 A.2d 939 (2007) (same).
We note that the resolution of this question requires an analysis of the relevant sentencing statutes, to which we apply familiar principles of statutory construction. “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) State v. Tabone, supra, 279 Conn. 534-35. The construction of a statute presents a question of law,
Three statutes govern the sentence at issue in the present appeal. Because the defendant was convicted of risk of injury to a child and sexual assault in the second degree, both of which are class C felonies, and of sexual assault in the third degree, a class D felony, his sentences are controlled by § 53a-35a, which sets forth the sentencing parameters for those classes of felonies. See footnotes 2, 3 and 4 of this opinion. Under § 53a-35a, class C felonies are subject to a minimum prison sentence of one year and a maximum prison sentence of ten years, and class D felonies are subject to a minimum prison sentence of one year and a maximum prison sentence of five years. See footnote 12 of this opinion. Additionally,
As this court recognized in State v. Tabone, supra, 279 Conn. 543, the interaction of these three statutes results in the following conflict: “[T]he trial court was required to sentence the defendant to a minimum of one year of imprisonment under § 53a-35a (6), and to a minimum of ten years of special parole under
Although we did not state this point expressly in State v. Tabone, supra, 279 Conn. 544, a necessary corollary to this conclusion is that
That is not to say, however, that
As we noted in State v. Tabone, supra, 279 Conn. 540, the legislature intended to permit the imposition of special parole as “a sentencing option which ensures intense supervision of convicted felons after [they are] released to the community and allows the imposition of parole stipulations on the released inmate.” At the same time, the legislature intended to “prevent the trial court from sentencing a defendant to a term of imprisonment and to a period of special parole, the total combined length of which exceeds the maximum sentence of imprisonment for the offense for which the defendant was convicted.” Id., 541-42. It is clear, therefore, that the legislature intended that special parole, as a form of supervised release, should be available to trial courts, provided that its imposition, in combination with a term of incarceration, does not exceed the maximum statutory period of incarceration permitted by law. To effectuate the intent of the legislature and to resolve the conflict, therefore, and following the reasoning of this court in Tabone, the provision specifying a minimum period of ten years special parole must be rendered permissive, thereby allowing trial courts to impose a period of supervised release in combination with a term of incarceration.21
Furthermore, we note that the legislature, in apparent recognition of the confusion it had created upon enacting
In sum, we conclude that the ten year mandatory minimum for special parole under
II
Although our conclusion that the defendant’s sentence was enlarged unconstitutionally when probation was substituted for special parole is dispositive, we nonetheless address the defendant’s claim that the resentencing on his conviction for sexual assault in the third degree and risk of injury to a child violated the guarantee against double jeopardy under the United States and Connecticut constitutions because that issue is likely to arise on remand. State v. Arroyo, supra, 284 Conn. 601 n.3. Specifically, the defendant contends that the trial court originally had sentenced him on the crimes of sexual assault in the third degree and risk of injury to a child to serve five years incarceration, execution suspended, and five years of special parole, with each sentence to be served concurrently with each other and with the sentence of ten years incarceration on his conviction for sexual assault in the second degree. He claims that, because he began serving his sentence
In response, the state contends that, because the defendant’s successful challenge to his original sentence vacated all of the sentences against him, he has not suffered multiple punishments for the same offense. The state also asserts that, because the sentences on the conviction of sexual assault in the third degree and risk of injury to a child were part of a total sentencing package, the court on remand could reconstruct the entire sentencing package without violating double jeopardy. We agree with the state.
As a threshold matter, claims of double jeopardy involving multiple punishments present a question of law to which we afford plenary review. State v. Burnell, 290 Conn. 634, 642, 966 A.2d 168 (2009); State v. Culver, 97 Conn. App. 332, 336, 904 A.2d 283 (2006), cert. denied, 280 Conn. 935, 909 A.2d 961 (2006). “The fifth amendment to the United States constitution provides in relevant part: No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb .... The double jeopardy clause of the fifth amendment is made applicable to the states through the due process clause of the fourteenth amendment. . . .
“We have recognized that the [d]ouble [j]eopardy [c]lause consists of several protections: It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” (Citation omitted; internal quotation marks omitted.) State v. Bletsch, 281 Conn. 5, 27, 912 A.2d 992 (2007); see also, e.g., North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 798-99, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989). It is the third protection that is implicated in this appeal.
It is well established that resentencing a defendant does not trigger double jeopardy concerns when the original sentence was illegal or erroneous. State v. Langley, 156 Conn. 598, 601-602, 244 A.2d 366 (1968), cert. denied, 393 U.S. 1069, 89 S. Ct. 726, 21 L. Ed. 2d 712 (1969). Jeopardy does not attach until the avenues for challenging the validity of a sentence have been exhausted, and, therefore, “resentencing has repeatedly been held not to involve double jeopardy when the first sentence was, for some reason, erroneous or inconclusive. Mathes v. United States, 254 F.2d 938, 939 (9th Cir. [1958]); Robinson v. United States, 144 F.2d 392, 397 (6th Cir. [1944]), [affd, 324 U.S. 282, 65 S. Ct. 666, 89 L. Ed. 944 (1945)]; McCleary v. Hudspeth, 124 F.2d 445, 447 (10th Cir. [1942]), cert. denied, 316 U.S. 670, 62 S. Ct. 1043, 86 L. Ed. 1745 [1942]; 21 Am. Jur. 2d 232, Criminal Law, § 167 [1965]; see note, 97 A.L.R. 160, 162 [1935]. ‘Sentencing should not be a game in which a wrong move by the judge means immunity for the prisoner.’ King v. United States, 98 F.2d 291, 296 (D.C. Cir. [1938]).” State v. Langley, supra, 602.
In the specific context of a remand for resentencing when a defendant successfully challenges one portion of a sentencing “package,” the United States Supreme Court has held that a trial court may resentence a defendant on his conviction
In light of these principles, we conclude that the defendant’s resentencing for the crimes of sexual assault in the third degree and risk of injury to a child did not violate double jeopardy. The defendant has challenged only the legality of his sentences, not the validity of his conviction. Consequently, the trial court was free to refashion the entire sentence for each of the crimes within the confines of the original package without violating double jeopardy, as long as the entire sentence had not been fully served. The fact that certain component parts of the total sentence had “expired” is irrelevant. Moreover, the defendant’s sentences all had been vacated as a result of his successful challenges to them. See State v. Miranda, supra, 260 Conn. 129 (“the defendant, in appealing his conviction and punishment, has voluntarily called into play the validity of the entire sentencing package and, thus, the proper remedy is to vacate it in its entirety” [internal quotation marks omitted]). Resentencing, therefore, did nothing more than place the defendant in the same position he originally had occupied when he entered his guilty plea. United States v. Triestman, supra, 178 F.3d 631. We therefore reject the defendant’s double jeopardy claim.
The judgment is reversed and the case is remanded for resentencing according to law.
In this opinion NORCOTT and ZARELLA, Js., concurred.
Notes
The defendant appealed from the judgment of the trial court to the Appellate Court, and, upon the state’s motion, we transferred the appeal to this court pursuant to General Statutes! 51-199 (c) and
“(b) Sexual assault in the second degree is a class C felony for which nine months of the sentence imposed may not be suspended or reduced by the court.”
“(b) Sexual assault in the third degree is a class D felony.”
The fifth amendment to the United States constitution provides in relevant part: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a [g]rand [j]ury . . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . . .”
“Although the Connecticut constitution has no specific double jeopardy provision, we have held that the due process guarantees of article first, § 9, include protection against double jeopardy.” (Internal quotation marks omitted.) State v. Miranda, 260 Conn. 93, 119, 794 A.2d 506 (2002).
Article first, § 9, of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
“Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required to admit his guilt . . . but consents to being punished as if he were guilty to avoid the risk of proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.” (Internal quotation marks omitted.) State v. Fowlkes, 283 Conn. 735, 736 n.1, 930 A.2d 644 (2007).
The defendant was charged, in a substitute long form information, with engaging in multiple acts of sexual intercourse and indecent sexual contact on dates between January 1, 1999, and May 31, 1999, with a person under the age of thirteen years.
Specifically, the trial court required the defendant to: enroll in an outpatient sex offender treatment program; submit to polygraph examinations as deemed appropriate; be prohibited from contact with the victim or the victim’s family; be prohibited from living with or having any contact with minors under the age of sixteen years; and be prohibited from working or volunteering in any activity involving contact with any children under the age of sixteen years.
As this court noted in State v. Tabone, supra, 279 Conn. 532 n.10, both the defendant and the state had agreed during plea negotiations to a total effective sentence of ten years incarceration followed by ten years of special parole.
Pursuant to
Subsequent to our decision in State v. Tabone, supra, 279 Conn. 527, but prior to resentencing, the defendant filed a motion to correct an illegal sentence with respect to the conviction of risk of injury to a child on the ground that the five year period of special parole violated the requirement of
The agreement provides as follows: “As [sjtate’s [ajttomey for the [¡judicial [djistrict of Waterbury, I hereby agree that:
“(1) If [the defendant] is resentenced on this matter to a term or terms which include ten years of incarceration followed by ten years execution suspended and ten years of probation, in lieu of the ten years of incarceration and ten years of special parole found illegal by the court in State v. Tabone, [supra, 279 Conn. 527]; and
“(2) If [the defendant] is found guilty of a violation of such probation; then the state’s attorney’s office will seek a maximum sentence on the violation of probation which will not exceed the number of days that [the defendant] has remaining on his probation at the date of the violation rather than the full period of the suspended sentence.
“The object of this agreement is to fulfill the intentions of all involved in the original sentence agreement in a legal manner and it is my intent that current and future members of this [s]tate’s [a]ttomey’s office abide by this agreement.”
We note that the agreement is signed only by State’s Attorney Connelly, and not the defendant. In fact, the agreement does not designate a space for the defendant to sign.
The defendant also claims that his sentence was unconstitutionally enlarged because, pursuant to
The state contends that the defendant’s claim is not ripe for review because he has not violated probation, and may never do so, and thus has not experienced any negative consequences as a result of this new sentence. We reject this claim because, as we previously have noted, “[t]he judicial authority may at any time correct an illegal sentence . . . .”
We note that the trial court and the parties were fully aware of this possibility. Indeed, at the sentencing proceeding, the trial court noted: “Now, I understand that if [the defendant] violates on the last day of his probation, there could be ten years coming into play, which is not the bargain that we had way back .... Okay, the only way this can work is if the state’s attorney agreed that while [the defendant] was on probation, if in fact he violated probation — the maximum penalty the state could look at would be the remaining time that he has on probation.”
Because we conclude that the substitution of probation for special parole enlarges the defendant’s sentence beyond that specified under State v. Miranda, supra, 260 Conn. 129-30, we do not address the defendant’s claim that the sentence violates his due process rights because the failure to admit guilt during sex offender treatment automatically results in a violation of probation. We also express no opinion on the defendant’s second claim, that the agreement violates the separation of powers clause of the Connecticut constitution.
The dissent notes that in State v. Tabone, supra, 279 Conn. 537, we acknowledged that the plain language of
To be clear, we note that in the present case, we do not rely on subsequent legislative history to support our construction of the statutes. Were we to do so, we would note that this court has recognized that in the criminal context, the use of subsequent legislative history to discern legislative intent at the time of enactment must be viewed with skepticism because of fair notice concerns. State v. Cote, 286 Conn. 603, 624 n.14, 945 A.2d 412 (2008) (“ [w] e also note that, although we have on occasion looked to the subsequent history of a statute to determine legislative intent. . . such a practice would be inappropriate when construing a penal statute wherein the construction proposed by the state raises concerns of fair notice” [citation omitted]). In the present case, however, these concerns are not implicated; because the trial court is still bound by the original sentence, there is no issue of fair notice to the defendant, as he may not be sentenced beyond the sentence to which he originally had agreed. Cf. State v. Kozlowski, 199 Conn. 667, 682, 509 A.2d 20 (1986) (rejecting defendant’s fair notice claim for conflicting statutes, despite fact that defendant was sentenced to stiffer penalty, because penalties had been spelled out clearly in both relevant public acts).
The dissent contends that the trial court is limited, upon resentencing, to the original ten year period of incarceration because the special parole period originally imposed was part, of a sentence that this court found illegal in State v. Tabone, supra, 279 Conn. 544, in light of the conflict between
The aggregate package theory, adopted in State v. Miranda, supra, 260 Conn. 129-30, expressly authorizes the trial court to resentence the defendant on each of his convictions, provided that the new sentence does not exceed the original illegal sentence previously imposed. Under this theory, “the original sentencing court is viewed as having imposed individual sentences merely as component parts or building blocks of a larger total punishment for the aggregate convictions, and, thus, to invalidate any part of that package without allowing the court thereafter to review and revise the remaining valid convictions would frustrate the court’s sentencing intent. . . . Accordingly . . . the [resentencing] court’s power under these circumstances is limited by its original sentencing intent as expressed by the original total effective sentence, and, furthermore . . . this power is permissive, not mandatory. Although the court may reconstruct the sentencing package to conform to its original intent, it is not required to do so. It may, therefore, simply eliminate the sentence previously imposed for the vacated conviction, and leave the other sentences intact; or it may reconstruct the sentencing package so as to reach a total effective sentence that is less than the original sentence but more than that effected by the simple elimination of the sentence for the vacated conviction. The guiding principle is that the court may resentence the defendant to achieve a rational, coherent [sentence] in light of the remaining convictions, as long as the revised total effective sentence does not exceed the original. [State v. Raucci, supra, 21 Conn. App.] 563, quoting United States v. Bentley, 850 F.2d 327, 328 (7th Cir.), cert. denied, 488 U.S. 970, 109 S. Ct. 501, 102 L. Ed. 2d 537 (1988).” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Miranda, supra, 260 Conn. 129-30.
We further explained in Miranda that “[i]t is axiomatic that a trial court has wide discretion to tailor a just sentence in order to fit a particular defendant and his crimes, as long as the final sentence falls within the statutory limits. . . . This same wide sentencing discretion equally applies to a trial court’s restructuring of a sentencing plan for a defendant who has been convicted in a multiple count case and who faces a permissible range of punishment based on the individual counts. [W]hen a defendant is found guilty on a multicount indictment, there is a strong likelihood that the . . . court will craft a disposition in which the sentences on the various counts form part of an overall plan. When the conviction on one or more of the component counts is vacated, common sense dictates that the judge should be free to review the efficacy of what remains in light of the original plan, and to reconstruct the sentencing architecture . . . within applicable constitutional and statutory limits, if that appears necessary in order to ensure that the punishment still fits both crime and criminal.” (Internal quotation marks omitted.) Id., 130, quoting State v. Raucci, supra, 21 Conn. App. 563-64.
In light of these principles, it is clear that, on resentencing, the trial court must fashion a sentence that does not exceed the original sentence of ten years incarceration followed by ten years of special parole. The fact that a portion of the sentence was found to be illegal is irrelevant. So long as the new sentence does not exceed the original, the trial court is free to sentence the defendant at its discretion.
Concurrence Opinion
with whom VERTEFEUILLE, J., joins, concurring in part and dissenting in part. This case presents the question of what steps our law permits a court to take in an effort to reconcile criminal statutes that are in conflict to the extent that the statutory scheme is rendered unworkable.
I
It is beyond dispute that the statutory scheme regarding special parole was in a state of irreconcilable conflict at the time of the defendant’s alleged criminal conduct.3
In contrast to our well reasoned conclusion in State v. Tabone, supra, 279 Conn. 543-44, that an irreconcilable conflict exists between
First, we did not mention in Tabone that the trial court was free to sentence the defendant to fewer than ten years special parole irrespective of the plain and unambiguous language of
Second, it appears that the majority has now settled on the necessary corollary theory for interpreting Tabone because of what it perceives as the lack of other suitable remedies. This position overlooks the existence of several remedies, however imperfect they may be, that would be available to the trial court upon remand. See part II of this dissenting opinion. More importantly, however, I submit that the majority’s suggestion of a necessary corollary to our decision in Tabone should not be given effect in the absence of legal authority that would permit us to give
In addition, the majority refers to a future legislative act, wherein the legislature has since amended
Ordinarily, when faced with a similar statutory conundrum, we would look to various tools of statutory interpretation to give meaning to statutes that, on their surface, are in conflict. In Rivers v. New Britain, 288 Conn. 1, 950 A.2d 1247 (2008), for example, we relied on § l-2z, which permits the court to look to legislative history when the plain meaning of a statute yields “unworkable results . . . .’’In the present case, however, the scant legislative history on the special parole scheme yields no insight that would permit the court to give
In short, because our tools of statutory construction cannot resolve the conflict, and reference to future legislative history bears no relevance to the question before us, there is no legal authority to support the presumption against conflicting statutes. As a result, we cannot give effect to those provisions of
In addition to my concerns about the majority’s analysis in reaching its conclusion, I am concerned about the potential effects of this decision on the defendant. In short, we cannot give retroactive effect to an unquestionably novel construction of
The dispositive issue in determining whether the majority’s novel interpretation operates to the defendant’s disadvantage is whether the starting point for the due process analysis is ten years incarceration or ten years incarceration with an additional ten years special parole. That is, if we begin our analysis as to whether the new sentence increases the punishment for the crime from the original sentence of ten years imprisonment, with ten years special parole, then a sentence of ten years imprisonment,
The discussion in footnote 23 of the majority opinion reflects a misunderstanding of the due process question. As I recognize in this dissenting opinion, I agree that underrate v. Raucci, 21 Conn. App. 557, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990), and State v. Miranda, 260 Conn. 93, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002), the trial court is bound only by the original sentencing intent of a period of ten years of incarceration followed by a period of ten years postrelease supervision. That sentencing limit, however, does not speak to the specific question before us, namely, whether the ten year period of postrelease supervision can be fulfilled by a period of special parole, as opposed to other forms of postrelease supervision. As noted previously, the periods of special parole urged by the majority are not authorized by statute and, therefore, the majority’s proposed sentence results in an increase to the defendant’s punishment in light of a legal sentence inclusive of special parole which, because of the irreconcilable conflict, is simply ten years incarceration. In addition, because the majority has reached its remedy sua sponte, the parties did not have the opportunity to brief the issue of whether the proposed sentence violates the defendant’s right to due process.13
In sum, because the majority does not offer an independent legal basis to support the presumption against the enactment of conflicting statutes and, therefore, has not justified adequately its interpretation of
II
Because I agree with the majority that the defendant’s current sentence is illegal, I next set forth what I believe is the appropriate remedy in light of the unique circumstances of this case. In State v. Tabone, supra, 279 Conn. 544, we remanded the matter back to the trial court for resentencing in accordance with Raucci and Miranda. Embodied in that order was the concept that when a sentence imposed as a result of a plea bargain is illegal, the best remedy is to resentence the defendant to a new legal sentence that approximates, as closely as possible, but does not exceed, the original sentencing intent. See State v. Raucci, supra, 21 Conn. App. 563; see also United States v. VanDam, 493 F.3d 1194, 1206 (10th Cir. 2007) (“[w]hen . . . the defendant does not seek to withdraw his guilty plea, the less drastic remedy of resentencing appears to be most
In Santobello v. New York, 404 U.S. 257, 263, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971), the United States Supreme Court listed two potential remedies — specific performance or withdrawal of the plea — when a prosecutor has breached a promise that induced the defendant to make a plea agreement. See also State v. Littlejohn, 199 Conn. 631, 644, 508 A.2d 1376 (1986) (“fairness ordinarily impels the court, in its discretion, either to accord specific performance of the agreement or to permit the opportunity to withdraw the guilty plea”). In his concurring opinion, Justice Douglas stated that “[i]n choosing a remedy, however, a court ought to accord a defendant’s preference considerable, if not controlling, weight inasmuch as the fundamental rights flouted by a prosecutor’s breach of a plea bargain are those of the defendant, not of the [s]tate.” Santobello v. New York, supra, 267; see also State v. Rivers, 283 Conn. 713, 732, 931 A.2d 185 (2007). The present case, however, is distinguishable from Santobello and its progeny in two respects. First, we are not presented with the breach of a prosecutor’s promise. As in Santo-bello, the typical case involves a prosecutor who, for example, has promised to recommend a particular sentence, but later reneges and recommends a harsher sentence. See, e.g., Santobello v. New York, supra, 258-59. In the present case, neither party has breached the agreement. Rather, after two separate appeals, the defendant’s sentences have been held to be illegal as a matter of statutory and constitutional law. Second, unlike the typical defendant faced with an illegal sentence, the defendant in this case does not explicitly request the opportunity to withdraw his plea.14 Nor does the defendant seek specific performance. Rather, the defendant makes the extraordinary request that this court strike all periods of supervision from the plea agreement, resulting in a total effective sentence of ten years imprisonment.
I first address the defendant’s request to have this court strike the periods of supervision from the plea agreement, which would result in a total effective sentence of ten years imprisonment. I agree with the decisions from other jurisdictions that have declined to entertain a similar request because no law or public policy supports such a remedy, and doing so would deprive the state of the benefit of its bargain. In State ex rel. Gessler v. Mazzone, 212 W. Va. 368, 374, 572 S.E.2d 891 (2002), the West Virginia Supreme Court stated that when a “ ‘bargain’ [becomes] impossible, through mutual mistake regarding statutory realities . . . this [c]ourt cannot condone a resolution, as requested by the [petitioner, which would permit him to retain the benefit of his bargain by having six counts dismissed while serving no sentence for the crimes to which he desired to plead guilty. . . . The [petitioner cannot choose which portions are advantageous to him and implore this [c]ourt to apply only those certain portions. There is no equity in that result, no semblance of
I turn next to my conclusion that the only appropriate remedy under these unique circumstances is to order a rescission of the original plea agreement, thereby placing the parties in their original positions.16 State v. Garvin, 242 Conn. 296, 314, 699 A.2d 921 (1997) (“[t]he validity of plea bargains depends on contract principles”); Rojas v. State, 52 Md. App. 440, 447, 450 A.2d 490 (1982) (“rescission is a desirable remedy when either party to a plea agreement cannot compel the other party to perform its material promise”). My conclusion to rescind the legally inoperative plea agreement finds support from other jurisdictions faced with similar circumstances. See Chae v. People, 780 P.2d 481, 486 (Colo. 1989) (illegal sentence recommendation renders agreement invalid and requires guilty plea be vacated); People v. Caban, 318 Ill. App. 3d 1082, 1087-89, 743 N.E.2d 600 (2001) (proper remedy for legally unfulfillable sentence was rescission because illegal contract is void ab initio); State ex rel. Gessler v. Mazzone, supra, 212 W. Va. 374 (“[w]here a plea agreement cannot be discharged due to legal impossibility, the entire agreement must be set aside”).
Although I recognize that rescission of a plea agreement may result in a manifest injustice if the defendant already has testified or provided evidence to the police that would place him at a severe disadvantage in subsequent plea renegotiations; see State v. Rivers, supra, 283 Conn. 733-34; the defendant in the present case entered an Alford17 plea to the charges, and, as far as the record reveals, has not provided the police with information that may serve to his later disadvantage. Additionally, I concur with the other jurisdictions that have concluded that there is no double jeopardy bar to retrying the defendant on all of the original charges. “The principle that [the fifth
Under this remedy, of course, the defendant ultimately could receive a sentence harsher than the original sentence contemplated by the plea agreement. United States v. Palladino, 347 F.3d 29, 35 (2d Cir. 2003) (“what appears to be a ‘victory’ for [the] defendant in this case could ultimately result in a conviction on remand that carries a longer sentence than that initially imposed”); United States v. Greatwalker, supra, 285 F.3d 730 (“[The defendant’s] success in this appeal may be costly. Because the illegal sentence prevents both [the defendant] and the [government from being bound by the plea agreement, the [g]ovemment may reinstate the dropped charges and proceed to reprosecute the first-degree murder charge.”).18 Nonetheless, because there is no basis in law or policy to either strike the postincarceration supervision or to order the defendant to serve a sentence greater than that permitted by law, I conclude that rescission is the only appropriate remedy.
Accordingly, I respectfully dissent, and would reverse the judgment and remand the case with instructions that the trial court vacate the plea bargain and permit the defendant to plead anew.19
General Statutes § l-2z provides: “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”
I join in parts IA and II of the majority opinion.
We generally have applied the law in existence on the date of the offense. In re Daniel H., 237 Conn. 364, 377, 678 A.2d 462 (1996).
We recognized in State v. Tabone, supra, 279 Conn. 532 n.9, that
Neither the state nor the defendant sought the remedy set forth by the majority.
So clear was our decision that
To the extent that the majority relies on our decision in Tabone to justify its current interpretation of
Respectfully, I dispute the majority’s contention that fair notice is not at issue here. As the majority itself recognizes, but does not adhere to, “such a practice [is] inappropriate when construing a penal statute wherein the construction proposed by the [majority] raises concerns of fair notice.” State v. Cote, 286 Conn. 603, 624 n.14, 945 A.2d 412 (2008). The majority, however, provides only cursory analysis as to why such reliance does not raise the concerns of fair notice alluded to in Cote. That the trial court is bound by the limits of the defendant’s plea does not speak to the issue of wiiether the novel interpretation of a criminal statute contrary to its plain meaning raises issues of fair notice, a point that I will address subsequently.
State v. Kozlowski, 199 Conn. 667, 682, 509 A.2d 20 (1986), on which the majority relies, is inapposite. In that case, the public act at issue “clearly spelled out [the] increased penalties . . . .” Id. In the present case, the majority supplies
The subsequent amendment underscores the fact that the statute, at the time of the defendant’s conviction, required a ten year minimum sentence of special parole.
In State v. Quinet, 253 Conn. 392, 752 A.2d 490 (2000), we addressed a claim regarding a term of probation and the application of
Presumably, the majority relies on the fact that the legislature amended the statute in the subsequent legislative session. Reliance on the amount of intervening time, however, is a subjective consideration and improperly elevates that heretofore unannounced consideration above our well established requirement that the legislature has to evince a clear intent before we apply a change in the law retroactively. Mead v. Commissioner of Correction, 282 Conn. 317, 325, 920 A.2d 301 (2007) (“[t]he presumption that [a criminal statute] has only prospective effect can be overcome only by a clear and unequivocal expression of legislative intent that the statute shall apply retrospectively”). Silence in the text and silence in the legislative history do not evince a clear and unequivocal expression of legislative intent.
There also exists an irreconcilable conflict for a violation of
Although my research ultimately leads me to conclude that the majority’s remedy violates the defendant’s right to due process, I would have permitted the parties to file supplemental briefs on the issue.
The record reveals, however, that the defendant previously requested to withdraw his plea and that he had expressed interest in doing so again at the first resentencing hearing after Tabone.
I recognize, however, that a total effective sentence of ten years incarceration with no postrelease supervision is one of several possible results if the parties were to choose to enter into a second plea bargain or if the parties proceeded to trial.
In its brief, the state argues, in the alternate, that vacating the defendant’s plea is the proper remedy if the court finds that the state’s agreement is invalid.
North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
If the defendant either renegotiates a new plea bargain or goes to trial and is convicted, he must receive credit for time served. If, on the other hand, the defendant proceeds to trial and is acquitted, he may be able to pursue a civil remedy.
I recognize that rescission of the plea agreement may require the state to marshal stale evidence and, more importantly, may require the testimony of a traumatized victim long after the crime. Arevalo v. Farwell, United States District Court, Docket No. 3:04-cv-00568-ECR-VPC, 2008 WL 820194 (D. Nev. March 24, 2008) (court shied away from withdrawing plea, in part, because state would have to marshal previously traumatized victim of sexual offense years after attack). Although the state principally has argued that we should enforce the plea agreement, in taking the alternate position that a rescission is proper, I assume the state has taken into account the possibility that the victim may be called on to testify.