State v. Smith

209 Conn.App. 296

268 A.3d 127

STATE of Connecticut

v.Dejon A. SMITH

AC 44156

Appellate Court of Connecticut.

Argued October 4, 2021

Officially released December 14, 2021

Emily H. Wagner, assistant public defender, for the appellant (defendant).

Thadius L. Bochain, deputy assistant state's attorney, with whom, on the brief, was Dawn Gallo, 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, Dejon A. Smith, 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 2013 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 May 14, 2013, the defendant was arrested in Torrington. The state charged him with, among other crimes, possession of narcotics with intent to sell in violation of General Statutes (Rev. to 2013) § 21a-277 (a). On October 8, 2013, the defendant pleaded guilty to that charge. On December 19, 2013, as part of a plea agreement, he was sentenced to an agreed upon sentence of five years to serve, followed by five years of special parole.

After the defendant was sentenced, our legislature enacted P.A. 18-63, 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. 18-63,² which amended General Statutes (Rev. to 2013) §§ 53a-28 (b) and 54-125e (b),³ respectively. Prior to the enactment of P.A. 18-63 and at the time the defendant committed the crimes for which he was convicted, § 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." Section 21a-277 (a), the statute under which the defendant was convicted, is 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.

On June 20, 2019, the defendant, in a self-represented capacity, filed a motion to correct an illegal sentence. On August 13, 2019, the court appointed a public defender to conduct a "sound basis" determination under State v. Casiano , 282 Conn. 614, 627, 922 A.2d 1065 (2007), regarding the defendant's motion. The public defender determined that there was a sound basis as to one of the issues raised in the defendant's motion and, on November 27, 2019, filed an amended motion to correct an illegal sentence on the defendant's behalf. In that motion, the defendant argued that he should be resentenced because P.A. 18-63 had eliminated special parole as a possible sentence for the drug offense for which he had been convicted and sentenced. On December 27, 2019, the state filed an objection to the amended motion to correct. On January 3, 2020, the parties appeared before the court, Danaher, J. , and agreed to have the matter considered on the papers.

On February 4, 2020, the court, Danaher, J. , denied the defendant's amended motion to correct an illegal sentence and issued a memorandum of decision. The court, relying in part on State v. Nathaniel S. , 323 Conn. 290, 146 A.3d 988 (2016), concluded that the statutes amended by P.A. 18-63, §§ 1 and 2, are substantive, rather than procedural, in nature and, thus, cannot be applied retroactively. The court also stated that "there [was] no need to attempt to resolve the retroactivity issue by analyzing the legislative history regarding P.A. 18-63."

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 agreed upon December 19, 2013 sentence. We agree with the trial court that P.A. 18-63 does not apply retroactively, but we reach our conclusion by applying the retroactivity analysis that our Supreme Court has applied in cases such as State v. Kalil , 314 Conn. 529, 107 A.3d 343 (2014), and State v. Bischoff , supra, 337 Conn. 739, 258 A.3d 14.

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 advances two distinct arguments as to why the legislature intended P.A. 18-63 to apply retroactively. He first argues that P.A. 18-63 is clarifying legislation and that the legislature "rewrote [ § 53a-28 (b) ] to comport with its original intent." Relying on the legislative history of P.A. 18-63, he contends that "the legislature took direct, corrective action to resolve the misuse or overuse of special parole as a sentencing tool by the judiciary ...." Thus, he contends, "[b]ecause the law was never intended to authorize special parole for nonviolent drug offenders, the defendant's sentence of special parole is not authorized by statute and is illegal." In other words, the defendant argues that courts were never permitted to impose sentences of special parole on nonviolent drug offenders and that "the law was being misapplied on a consistent basis by the judiciary ...." Alternatively, the defendant argues that if this court interprets P.A. 18-63 as a change in the law, as opposed to clarifying legislation, it is clear that the legislature intended that special parole not be imposed on any nonviolent drug offender. As part of this argument, he requests that, to the extent that State v. Kalil , supra, 314 Conn. 529, 107 A.3d 343, requires this court to apply a different interpretation, Kalil should be overruled.⁴ Because Kalil is binding on this court, we will not address this part of the defendant's argument.

The state argues that P.A. 18-63 is a change in the law, rather than clarifying legislation, and that § 53a-28 (b) (9) prescribes or defines a punishment. Thus, it argues that the savings clauses codified in §§ 54-194⁵ and 1-1 (t),⁶ which prohibit retroactivity in the absence of an express statement by the legislature, apply to the amended version of § 53a-28 (b) (9). The state further argues that this court need not analyze the legislative history of P.A. 18-63 to determine whether it is clarifying legislation. In his reply brief, the defendant counters that the doctrine of clarifications requires this court to first determine whether the legislation clarified an existing law or changed it. He contends that, "in making this initial determination, our courts look to the amendatory language as well as the legislative history and circumstances surrounding the amendment's enactment." He argues that "the reviewing court only conducts its retroactivity analysis as articulated in Kalil and Bischoff if it first determines that the amendment is a change in the law rather than a clarification." We agree with each of the state's arguments.

We first address the defendant's argument that P.A. 18-63 is clarifying legislation. Although a criminal statute is at issue in the present case, the defendant relies heavily on Middlebury v. Dept. of Environmental Protection , 283 Conn. 156, 927 A.2d 793 (2007), which is a civil case. He does so despite the existence of criminal case law and criminal savings statutes that specifically control how we must interpret amendatory legislation relating to the punishment for crimes. The defendant does not cite any criminal case in which this court or our Supreme Court has looked at the legislative history and circumstances surrounding the enactment of an amendment affecting the punishment for a crime before applying these savings statutes. "The savings statutes that govern amendments to criminal laws contemplate only prospective application.... Our courts have repeatedly held that these savings statute...