State v. Riley

190 Conn.App. 1

209 A.3d 646

STATE of Connecticut

v.Ackeem RILEY

AC 40073

Appellate Court of Connecticut.

Argued December 12, 2018

Officially released May 14, 2019

Michael W. Brown, assigned counsel, for the appellant (defendant).

Melissa Patterson, assistant state's attorney, with whom, on the brief, were Gail P. Hardy state's attorney, and John F. Fahey, supervisory assistant state's attorney, for the appellee (state).

Keller, Elgo and Bright, Js.

KELLER, J.

The defendant, Ackeem Riley, appeals from the judgment of the trial court resentencing him following the decision of our Supreme Court, which reversed the judgment of this court and remanded the case to this court with direction to reverse the judgment of the trial court with respect to the defendant's original sentence and to remand the case to the trial court for a new sentencing proceeding. See State v. Riley , 315 Conn. 637, 663, 110 A.3d 1205 (2015), cert. denied, ––– U.S. ––––, 136 S.Ct. 1361, 194 L.Ed.2d 376 (2016). The defendant claims that the trial court (1) failed to disqualify itself from presiding over the resentencing proceeding, and (2) violated the rescript of Riley , ignored important constitutional principles, and failed to comply with applicable mandatory statutory requirements when it resentenced him to seventy years of incarceration. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts, as set forth by our Supreme Court, are relevant to this appeal. "In November, 2006, when the defendant was seventeen years old, he participated in a drive-by shooting into a crowd that left an innocent sixteen year old dead and two other innocent bystanders, ages thirteen and twenty-one, seriously injured. The defendant and his accomplice thought that someone responsible for a gang related shooting the previous week was at the scene. The defendant's identity as one of the perpetrators was corroborated by his involvement in an incident two months after the crimes at issue in which a firearm was discharged that matched the weapon used in the 2006 shootings. A jury convicted the defendant of one count of murder in violation of General Statutes §§ 53a-54a (a) and 53a-8, two counts of attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a (a), two counts of assault in the first degree in violation of General Statutes §§ 53a-59 (a) (5) and 53a-8, and one count of conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a). The murder conviction exposed the defendant to a potential sentence of twenty-five to sixty years imprisonment, with no possibility of parole. See General Statutes §§ 53a-35a (2), 53a-35b and 54-125a (b) (1) (E). The other convictions exposed him to sentences ranging from one year imprisonment to twenty years imprisonment." State v. Riley , supra, 315 Conn. at 641–42, 110 A.3d 1205. The trial court imposed a total effective sentence of 100 years of incarceration. Id., at 642, 110 A.3d 1205.

In his initial appeal to this court; State v. Riley , 140 Conn. App. 1, 58 A.3d 304 (2013), rev'd, 315 Conn. 637, 110 A.3d 1205 (2015), cert. denied, ––– U.S. ––––, 136 S.Ct. 1361, 194 L.Ed.2d 376 (2016) ; the defendant argued that his sentence and the procedure under which it was imposed violated his rights under the eighth and fourteenth amendments to the federal constitution. Id., at 4, 10 and n.7, 58 A.3d 304. In particular, the defendant argued that the United States Supreme Court's decision in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which held that the eighth amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders, rendered the manner in which his sentence was imposed unconstitutional.¹

State v. Riley , supra, at 9, 58 A.3d 304. This court rejected the defendant's contentions and affirmed the judgment of the trial court. Id., at 21, 58 A.3d 304.

On appeal to our Supreme Court, the defendant argued that this court's decision was incorrect as a matter of law and fact. State v. Riley , supra, 315 Conn. at 643–44, 110 A.3d 1205. For reasons set forth in greater detail in part II of this opinion, our Supreme Court agreed with the defendant and reversed this court's judgment and remanded the case to this court with direction to reverse the judgment of the trial court only with respect to the defendant's sentence, and to remand the case to the trial court for a new sentencing proceeding consistent with its opinion. Id., at 663, 110 A.3d 1205.

On remand to the trial court, the defendant filed a motion for recusal dated June 24, 2016. The basis for most of his arguments stemmed primarily from the fact that the resentencing judge, O'Keefe, J ., was the same judge who had presided over his trial and had imposed the original sentence. The defendant argued, for various reasons, that Practice Book § 1-22, General Statutes § 51-183c, rule 2.11 of the Code of Judicial Conduct, and the due process clause of the fourteenth amendment required recusal. On August 11, 2016, the court held a hearing on the motion for recusal and ultimately denied the motion after hearing the parties' arguments.

On November 2, 2016, the defendant appeared before the court for resentencing. At the hearing, the court addressed, among other things, the considerations set forth in our Supreme Court's decision in Riley and the relevant statutory provisions applicable to the defendant's sentencing. After a lengthy colloquy, the court resentenced the defendant to a total effective term of seventy years of incarceration, noting that he was eligible for parole. This appeal followed. Additional facts will be set forth as necessary.

I

On appeal, the defendant first claims that the trial court erred by not granting his motion for recusal. In his view, the court was required to recuse itself pursuant to § 51-183c, Practice Book § 1-22, rule 2.11 of the Code of Judicial Conduct, and the due process clauses of the fifth and fourteenth amendments to the United States constitution. The state argues, inter alia, that neither our rules of practice nor our statutes prohibited the court from presiding over the defendant's resentencing proceeding. For the reasons discussed herein, we agree with the state.

A

We begin by first addressing whether § 51-183c and Practice Book § 1-22 required the court to recuse itself on remand following the reversal of the defendant's original sentence.

As a preliminary matter, we set forth the applicable standard of review. Although our review of whether a court properly denied a motion for recusal is based on the abuse of discretion standard; see State v. Milner , 325 Conn. 1, 12, 155 A.3d 730 (2017) ; the claims in the present case require us to determine whether § 51-183c and Practice Book § 1-22 required recusal in this situation, which presents a question of statutory interpretation. Therefore, our review is plenary. See Patino v. Birken Mfg. Co. , 304 Conn. 679, 688, 41 A.3d 1013 (2012).

To begin, the defendant's argument that § 51-183c² required the court to recuse itself in this case is unpersuasive because it is easily foreclosed by our Supreme Court's decision in 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). In Miranda , our Supreme Court addressed a similar situation in which a defendant claimed that § 51-183c required that his case be "assigned to another trial judge for resentencing." Id., at 131, 794 A.2d 506. After our Supreme Court analyzed the statute in relation to other pertinent authorities, it concluded that "the legislature did not intend for § 51-183c to apply to a sentencing procedure." Id., at 132, 794 A.2d 506 ; see also Daley v. J.B. Hunt Transport, Inc. , 187 Conn. App. 587, 601 n.17, 203 A.3d 635 (2019) (explaining that sentencing hearing is proceeding "to which § 51-183c does not apply"). Although the defendant attempts to distinguish Miranda in various ways, none is persuasive.³ To say more on the matter would be supererogatory.

With that in mind, though, the defendant argues that Practice Book § 1-22 provides an independent basis for recusal separate from § 51-183c. In particular, he focuses on the specific language of the rule that provides that "[a] judicial authority shall, upon motion of either party or upon its own motion, be disqualified from acting in a matter if such judicial authority is disqualified from acting therein ... because the judicial authority previously tried the same matter and ... the judgment was reversed on appeal ." (Emphasis added.) Practice Book § 1-22 (a). He argues that because a sentence imposed in a criminal case constitutes the judgment of conviction, and because the defendant's sentence was in fact reversed, the trial court that originally tried and sentenced him was required, on remand, to recuse itself for the resentencing hearing.

Despite the defendant's contention, our decision in Barlow v. Commissioner of Correction , 166 Conn. App. 408, 422, 142 A.3d 290 (2016), appeal dismissed, 328 Conn. 610, 182 A.3d 78 (2018), undermines the defendant's claim. In Barlow , we addressed briefly the inter-play between the two provisions. The petitioner in that case claimed that the habeas court improperly denied his motion for recusal, in which he relied on § 51-183c, Practice Book § 1-22 (a), and rule 2.11 (a) of the Code of Judicial Conduct. Id., at 421, 142 A.3d 290. With respect to that claim, we stated that "[t]he mandate of § 51-183c, a subject of prior judicial interpretation, is plain and unambiguous. It provides in relevant part: ‘No judge of any court who tried a case without a jury ... in which the judgment is reversed by the Supreme Court, may again try the case....’ General Statutes § 51-183c." Barlow v. Commissioner of Correction , supra, at 422, 142 A.3d 290. Significant to the present case, we explained that "[o]ur rules of practice give effect...