State v. Omar

209 Conn.App. 283

268 A.3d 726

STATE of Connecticut

v.Ben B. OMAR

AC 44263

Appellate Court of Connecticut.

Argued October 4, 2021

Officially released December 14, 2021

Gary A. Mastronardi, assigned counsel, for the appellant (defendant).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Maureen T. Platt, state's attorney, and Alexandra Arroyo, former special deputy assistant state's attorney, for the appellee (state).

Prescott, Moll and Flynn, Js.

FLYNN, J.

This is an appeal from the judgment of the trial court denying the amended motion to correct an illegal sentence filed by the defendant, Ben B. Omar, pursuant to Practice Book § 43-22. On appeal, the defendant claims that the court erred in concluding that certain amendments to Connecticut's special parole statute, embodied in No. 18-63, §§ 1 and 2, of the 2018 Public Acts (P.A. 18-63), which became effective on October 1, 2018, did not apply retroactively to render his 2016 modified sentence imposing special parole void.¹ We disagree and, accordingly, affirm the judgment of the trial court.

We conclude that when the legislature enacted P.A. 18-63, which changed the law by prohibiting special parole as a sentence for certain narcotics offenses, it did so prospectively, not retroactively. We also conclude that the silence in P.A. 18-63 regarding retroactivity is evidence of intent for prospective application only; see State v. Bischoff , 337 Conn. 739, 756, 258 A.3d 14 (2021) ; that prospective application creates neither an absurd nor an unworkable result; and that General Statutes §§ 54-194 and 1-1 (t) apply and, when read together, provide that the repeal of a statute prescribing the punishment for a crime shall not affect any liability for punishment incurred before the repeal is effective, unless a contrary legislative intent is expressed within an amendatory statute.

The following facts are pertinent to our resolution of this appeal. On April 22, 2010, the defendant was convicted, after a jury trial, of the following drug offenses, which occurred on March 25, 2009: in count one, possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes (Rev. to 2009) § 21a-278 (b);² in count two, sale of narcotics by a person who is not drug-dependent in violation of § 21a-278 (b); in count three, conspiracy to sell narcotics by a person who is not drug-dependent in violation of § 21a-278 (b) and General Statutes § 53a-48 (a) ; in count four, sale of a controlled substance within 1500 feet of a school in violation of General Statutes § 21a-278a (b) ; and in count five, possession of a controlled substance within 1500 feet of a school in violation of § 21a-278a (b). Under what was then the authority of State v. Chicano , 216 Conn. 699, 725, 584 A.2d 425 (1990) (overruled by State v. Polanco , 308 Conn. 242, 61 A.3d 1084 (2013) ), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991), the trial court merged the second count with the first count and the fifth count with the fourth count.³ On all charges, the defendant was sentenced to a total effective sentence of twenty-one years of incarceration, eight of which were mandatory, execution suspended after twelve years, followed by five years of probation.

On March 2, 2016, due to his cooperation in providing unsolicited information to the state that produced a guilty plea in the case of a person who had been charged in connection with a shooting, the defendant submitted an application for sentence modification. His cooperation resulted in a proceeding on that same date before the court, Fasano, J. , in which the defendant moved to modify his sentence, to which the state agreed. The new sentence modified his original sentence to a total effective sentence of eight years of incarceration followed by five years of special parole. It is the imposition of special parole that creates the principal issue in this appeal.

After the defendant's sentence was modified to include a term of special parole, our legislature enacted P.A. 18-63, effective October 1, 2018, which eliminated special parole as a punishment for certain drug offenses. Public Act 18-63 is titled "An Act Concerning Special Parole for High-Risk, Violent and Sexual Offenders" and contains three sections. Relevant to the present appeal are §§ 1 and 2 of P.A. 18-63,⁴ which amended General Statutes (Rev. to 2009) §§ 53a-28 (b) and 54-125e (b),⁵ respectively. Prior to the enactment of P.A. 18-63 and at the time of the defendant's sentence modification, § 53a-28 (b) (9) authorized a court to impose as a punishment "a term of imprisonment and a period of special parole as provided in section 54-125e." Section 1 of P.A. 18-63 amended that portion of § 53a-28 (b) (9) by adding in relevant part that "the court may not impose a period of special parole for convictions of offenses under chapter 420b." Sections 21a-278 and 21a-278a, two of the statutes under which the defendant was convicted, are included in chapter 420b of the General Statutes. Section 2 of P.A. 18-63 amended § 54-125e (b) by adding in relevant part that "the court may not impose a period of special parole unless the court determines, based on the nature and circumstances of the offense, the defendant's prior criminal record and the defendant's history of performance on probation or parole, that a period of special parole is necessary to ensure public safety." Public Act 18-63 lists an effective date of October 1, 2018.

The defendant, in a self-represented capacity, filed an amended motion to correct the March 2, 2016 sentence with the clerk on June 28, 2019. On November 25, 2019, his counsel filed a newly amended motion to correct his sentence.⁶ In effect, the motion asked that Judge Fasano's modification of the defendant's sentence be corrected to eliminate the term of special parole, which had been imposed three years earlier, in 2016, because P.A. 18-63, effective October 1, 2018, had eliminated special parole as a possible sentence for the kind of drug offenses for which the defendant had been convicted and sentenced. On January 6, 2020, the state filed an objection to the amended motion to correct.

On June 9, 2020, the court, Hon. Roland D. Fasano , judge trial referee, denied the defendant's amended motion to correct an illegal sentence and issued a memorandum of decision. The court stated in relevant part: "[T]here is no language in the modified statute nor in the case law to support the proposition that the modification of the special parole statute applies retroactively. Such an application would result in a multitude of cases returned for resentencing." This appeal followed. Additional facts and procedural history will be set forth as necessary.

We now turn to the principal issue to be decided in this appeal, namely, whether P.A. 18-63, §§ 1 and 2, should be applied retroactively to the defendant's March 2, 2016 sentence. We agree with the trial court that P.A. 18-63 does not apply retroactively.

We begin by setting forth the standard of review applicable to this claim. Ordinarily, claims that the trial court improperly denied a defendant's motion to correct an illegal sentence are reviewed pursuant to an abuse of discretion standard. State v. Fairchild , 155 Conn. App. 196, 210, 108 A.3d 1162, cert. denied, 316 Conn. 902, 111 A.3d 470 (2015). Nonetheless, a trial court's determination of whether a new statute is to be applied retroactively or only prospectively presents a question of law over which this court exercises plenary review. See State v. Bischoff , supra, 337 Conn. at 745, 258 A.3d 14, citing Walsh v. Jodoin , 283 Conn. 187, 195, 925 A.2d 1086 (2007).

The defendant, relying on State v. Nathaniel S. , 323 Conn. 290, 295, 146 A.3d 988 (2016), argues that the statutes amended by P.A. 18-63 are procedural in nature and, thus, that the amendments are intended to apply retroactively in the absence of a clear expression of legislative intent to the contrary. The state argues that the defendant's reliance on Nathaniel S. is misplaced. It argues that, because P.A. 18-63, §§ 1 and 2, repealed and replaced the imposition of a form of punishment for a criminal conviction, this court's retroactivity analysis is controlled by State v. Kalil , 314 Conn. 529, 107 A.3d 343 (2014), and State v. Bischoff , supra, 337 Conn. 739, 258 A.3d 14, along with our savings statutes, §§ 54-194 and 1-1 (t). The state contends that, because the legislature did not clearly and unequivocally express an intent for retroactive application of §§ 1 and 2 of P.A. 18-63, they should apply prospectively only. We agree with the state.

In State v. Nathaniel S. , supra, 323 Conn. at 292, 146 A.3d 988, our Supreme Court addressed the retroactivity of No. 15-183, § 1, of the 2015 Public Acts, which amended the juvenile transfer statute by increasing the age of a child from fourteen to fifteen whose case is subject to automatic transfer from the docket for juvenile matters to the regular criminal docket of the Superior Court. The defendant in Nathaniel S. was fourteen years old when he allegedly committed an offense that was subject to automatic transfer, and his case was transferred to the criminal docket in accordance with the statute in effect at that time. Id., at 292–93, 146 A.3d 988. The amendment, however, went into effect before his case was tried. Id. On appeal, our Supreme Court addressed whether the amendment applied retroactively, such that a child's case that already had been transferred to the criminal docket should be transferred back to the juvenile docket. Id.

Our Supreme Court stated: "Several rules of presumed legislative intent govern [a court's] retroactivity analysis. Pursuant to those rules, [a court's] first task is to determine whether a statute is substantive or procedural in nature." Id., at 294, 146 A.3d 988. The court added that "[p]rocedural statutes have been traditionally viewed as affecting...