Casiano v. Commissioner of Correction ( 2015 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
CASIANO v. COMMISSIONER OF CORRECTION—FIRST DISSENT
ZARELLA, J., with whom ROBINSON, J., joins, dis-
senting. In Miller v. Alabama, U.S. , 132 S. Ct.
2455, 2469, 183 L. Ed. 2d 407 (2012), the United States
Supreme Court determined that the eighth amendment
to the federal constitution forbids a state sentencing
scheme for juvenile homicide offenders that mandates
life imprisonment without the possibility of parole1 but
did not consider whether the rule applies retroactively
to cases in which the defendant’s sentence became final
before Miller was decided. Since that time, however,
numerous jurisdictions have addressed that question
and have concluded unanimously that, to the extent
Miller articulated a new rule of criminal procedure, it
is not a watershed rule under Teague v. Lane, 489 U.S.
288, 311–13, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989)
(plurality opinion), and does not apply retroactively to
juvenile offenders in postconviction proceedings. The
majority disagrees, thus making Connecticut the only
jurisdiction in the nation to reach the contrary conclu-
sion. Moreover, the majority provides no explanation
as to why it believes that every other jurisdiction to
have considered the question has reached the wrong
result, even under a more liberal state retroactivity anal-
ysis than the analysis required under Teague. See part
II of this opinion. The majority also concludes that the
rule announced in Miller applies to the petitioner, Jason
Casiano, because it deems his fifty year sentence the
functional equivalent of life imprisonment without the
possibility of parole. The majority arrives at this conclu-
sion even though the sentences at issue in Miller
required the juvenile offenders in that case to spend
the remainder of their lives in prison, and despite the
fact that the Connecticut legislature has determined
that sixty years is the functional equivalent of life with-
out the possibility of parole under this state’s carefully
crafted sentencing scheme. See General Statutes § 53a-
35b. For the reasons that follow, I reject the majority’s
conclusions as legally unsupportable, and, accordingly,
I respectfully dissent.
I
I first consider the sentencing issue because this
court need not decide whether Miller applies retroac-
tively unless it determines initially that the petitioner’s
sentence is the functional equivalent of life without the
possibility of parole. On this issue, I agree with Justice
Espinosa2 that Miller applies to a sentencing scheme
that mandates life in prison without the expectation of
release, in part because that was the sentence imposed
on the two juvenile offenders in Miller. See Miller v.
Alabama, supra, 132 S. Ct. 2460. The court in Miller
also consistently described the issue as whether the
eighth amendment proscribes a sentence that requires
a juvenile homicide offender to spend the remainder
of his life in prison. See id., 2460, 2469. In addition, this
court recognized in State v. Riley, 315 Conn. 637, 110
A.3d 1205 (2015), that ‘‘Miller is replete with references
to . . . life without parole and like terms.’’ Id., 653.
Accordingly, the petitioner’s fifty year sentence, on its
face, is not within the purview of Miller because it is
a term of years under which the petitioner will be
released at the age of sixty-six, and, as a consequence,
he is not expected to spend the remainder of his life
in prison.
Insofar as the majority rejects this conclusion and
determines that the petitioner’s sentence is the func-
tional equivalent of life without the possibility of parole,
it acts in defiance of the legislature and this court’s
repeated recognition of the legislature’s definition of
‘‘life imprisonment’’ in Connecticut’s revised sentencing
scheme. Under § 53a-35b, ‘‘life imprisonment,’’ with two
exceptions, is defined as a ‘‘definite sentence of sixty
years . . . .’’3 The legislature enacted the provision in
19804 as part of its comprehensive revision of the state’s
criminal sentencing structure, which abolished indeter-
minate sentencing in favor of definite sentencing; Mead
v. Commissioner of Correction, 282 Conn. 317, 325, 920
A.2d 301 (2007); in part to create more uniformity and
consistency in the sentencing of similarly situated
offenders. See, e.g., 23 H.R. Proc., Pt. 14, 1980 Sess.,
p. 4340, remarks of Representative Christopher Shays;
Conn. Joint Standing Committee Hearings, Judiciary,
Pt. 5, 1980 Sess., pp. 1133–34, remarks of Edwin Sullivan
on behalf of New Haven Mayor Biagio DiLieto. As this
court explained in Castonguay v. Commissioner of
Correction, 300 Conn. 649, 16 A.3d 676 (2011), ‘‘[b]efore
July 1, 1981, all felonies, with limited exceptions, were
punishable by an indeterminate sentence of imprison-
ment. . . . Under this scheme, the trial court was
authorized to set both the minimum and maximum por-
tion of the sentence . . . [and] parole eligibility [was]
established at the minimum less any good time used to
reduce that minimum term. . . . The maximum term
for a class A felony was life imprisonment, which meant
the prisoner’s natural life. . . . In 1980, as part of the
legislature’s comprehensive revision of the state’s sen-
tencing structure abolishing indeterminate sentencing
and creating definite sentencing, the legislature enacted
No. 80-442 of the 1980 Public Acts (P.A. 80-442), which
became effective July 1, 1981 . . . . The legislature
also enacted new legislation . . . that provided that
. . . felonies committed on or after July 1, 1981, are
punishable by a definite sentence. Under this scheme,
sentencing courts were authorized to impose a flat or
exact term of years of imprisonment without a mini-
mum or maximum [term] . . . . For the crime of mur-
der, the legislature provided that the sentence is a def-
inite term of not less than twenty-five years nor more
than life . . . . The legislature also enacted new legis-
lation . . . defining imprisonment for life as a definite
sentence of sixty years.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) Id., 653–54.
Accordingly, the definition of a life sentence in § 53a-
35b was carefully chosen and has served as an integral
part of Connecticut’s criminal sentencing scheme for
more than thirty years.
Since the revised sentencing scheme was enacted,
this court has recognized repeatedly that life imprison-
ment, with two limited exceptions that do not apply in
the present case,5 means a term of sixty years. See, e.g.,
State v. Adams, 308 Conn. 263, 274, 63 A.3d 934 (2013);
Ostroski v. Commissioner of Correction, 301 Conn.
360, 360–61, 21 A.3d 444 (2011); Castonguay v. Com-
missioner of Correction, supra, 300 Conn. 654; State
v. Collins, 299 Conn. 567, 615, 10 A.3d 1005, cert. denied,
U.S. , 132 S. Ct. 314, 181 L. Ed. 2d 193 (2011);
State v. Courchesne, 296 Conn. 622, 746 n.84, 998 A.2d
1 (2010); Mead v. Commissioner of Correction, supra,
282 Conn. 325; State v. Stenner, 281 Conn. 742, 745 n.4,
917 A.2d 28, cert. denied, 552 U.S. 883, 128 S. Ct. 290,
169 L. Ed. 2d 139 (2007); State v. Azukas, 278 Conn.
267, 270 n.2, 897 A.2d 554 (2006); State v. Ross, 269 Conn.
213, 340 n.73, 849 A.2d 648 (2004); State v. Roseboro,
221 Conn. 430, 432 n.2, 604 A.2d 1286 (1992); State v.
Carpenter, 220 Conn. 169, 171, 595 A.2d 881 (1991),
cert. denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed.
2d 781 (1992); State v. Tucker, 219 Conn. 752, 759, 595
A.2d 832 (1991); State v. Weinberg, 215 Conn. 231, 233
n.2, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct.
430, 112 L. Ed. 2d 413 (1990); State v. Arnold, 201 Conn.
276, 277 n.1, 514 A.2d 330 (1986); State v. Hill, 196 Conn.
667, 668 n.2, 495 A.2d 699 (1985). Thus, even though
sixty years does not constitute an actual life sentence
under Miller for a convicted juvenile offender, Connect-
icut courts must, at the very least, comply with the
legislative determination that sixty years is the func-
tional equivalent of life in prison because this court
always has followed the principle that ‘‘[w]e defer to the
broad authority that legislatures possess in determining
the types and limits of punishment for crimes. Indeed,
[i]n examining the rationality of a legislative classifica-
tion, we are bound to defer to the judgment of the
legislature unless the classification is clearly irrational
and unreasonable.’’ (Emphasis added; internal quota-
tion marks omitted.) State v. Heinemann, 282 Conn.
281, 311, 920 A.2d 278 (2007).
The majority casts aside this well established statu-
tory authority and legal precedent, and, in effect, implic-
itly determines that § 53a-35b is unconstitutional as
applied to juvenile offenders in Connecticut, declaring
that, ‘‘although the legislature is free to create and
define Connecticut’s sentencing scheme . . . we are
not constrained by the legislature’s definition of life
imprisonment as a sixty year term. We are charged
with interpreting the eighth amendment to the federal
constitution in light of the . . . [c]ourt’s decision in
Miller. Whether Miller applies to sentences shorter than
the legislatively defined ‘life imprisonment’ of sixty
years is, therefore, a question for this court and not for
the legislature.’’ (Citation omitted.) Footnote 18 of the
majority opinion. The majority thus rejects the notion
that, ‘‘in order for a sentence to be deemed ‘life impris-
onment,’ it must continue until the literal end of one’s
life.’’ The majority instead concludes that ‘‘[t]he United
States Supreme Court viewed the concept of ‘life’ in
Miller and Graham [v. Florida, 560 U.S. 48, 130 S. Ct.
2011, 176 L. Ed. 2d 825 (2010)] more broadly than biolog-
ical survival’’ and that the court ‘‘implicitly endorsed
the notion that an individual is effectively incarcerated
for ‘life’ if he will have no opportunity to truly reenter
society or have any meaningful life outside of prison.’’
I disagree.
The majority’s analysis is fatally flawed because it
conflates the reasoning in Graham and Miller. Although
Graham and Miller are both eighth amendment cases,
they stand for different principles. The court in Graham
held that the eighth amendment forbids a sentence of
life imprisonment without the possibility of parole for
juvenile nonhomicide offenders, in part because, given
the lesser magnitude of nonhomicide crimes as com-
pared with homicides, juveniles convicted of the former
should be offered ‘‘some meaningful opportunity to
obtain release based on demonstrated maturity and
rehabilitation.’’ Graham v. Florida, supra, 560 U.S. 75.
The court explained that ‘‘defendants who do not kill,
intend to kill, or foresee that life will be taken are
categorically less deserving of the most serious forms
of punishment than are murderers. . . . There is a line
between homicide and other serious violent offenses
against the individual. . . . Serious nonhomicide
crimes may be devastating in their harm . . . but in
terms of moral depravity and of the injury to the person
and to the public . . . they cannot be compared to
murder in their severity and irrevocability.’’ (Citations
omitted; internal quotation marks omitted.) Id., 69. The
court ultimately determined that a categorical rule bar-
ring a sentence of life imprisonment without parole was
necessary to give ‘‘all juvenile nonhomicide offenders
a chance to demonstrate maturity and reform. The juve-
nile should not be deprived of the opportunity to
achieve maturity of judgment and self-recognition of
human worth and potential. . . . Life in prison without
the possibility of parole gives no chance for fulfillment
outside prison walls, no chance for reconciliation with
society, [and] no hope.’’ Id., 79.
In contrast, the court in Miller did not bar a sentence
of life imprisonment without the possibility of parole
for juvenile homicide offenders but held only that a
mandatory sentence of life without parole is prohibited
under the eighth amendment. Miller v. Alabama, supra,
132 S. Ct. 2469. Accordingly, the court in Miller was not
concerned with the opportunity of convicted juvenile
offenders to reenter society and conduct meaningful
lives, as the majority maintains, because it did not deem
a life sentence without parole for juvenile homicide
offenders per se unconstitutional. Rather, the court
focused on the sentencing process and the necessity
for the sentencing court to consider a juvenile offend-
er’s youth before deciding whether to impose such a
sentence. The court explained: ‘‘By removing youth
from the balance—by subjecting a juvenile to the same
life-without-parole sentence applicable to an adult—
these [mandatory] laws prohibit a sentencing authority
from assessing whether the law’s harshest term of
imprisonment proportionately punishes a juvenile
offender.’’ Id., 2466. In sum, the court’s concern in Gra-
ham that juvenile nonhomicide offenders be given the
opportunity to obtain parole in order to rejoin society
and lead a meaningful life was qualitatively different
from its concern in Miller that a sentence of life impris-
onment without parole be imposed on juvenile homi-
cide offenders only after their youth and its attendant
characteristics have been considered. Accordingly, it
cannot be said that Miller ‘‘implicitly endorsed’’ the
concept of life imprisonment as a lengthy term of years
that would deprive the juvenile offender of having any
meaningful life outside of prison. The opportunity for
juvenile offenders to have a meaningful life was relevant
only to Graham’s discussion of the opportunity for
parole in cases involving juvenile offenders who have
committed nonhomicide crimes.
I also disagree with the majority’s conclusion that
the petitioner in this case will have insufficient time to
lead a meaningful life upon his release from prison. It
is undisputed that juvenile homicide offenders subject
to lengthy sentences will not have the same opportuni-
ties to establish a career, marry, raise a family, vote,
or enjoy many other activities most law-abiding citizens
take for granted or highly value. Homicide is the most
serious crime, however, and society has determined
that those who murder must be severely punished for
this heinous offense. An offender nonetheless may cre-
ate a meaningful life outside of prison at any age if
sufficiently motivated, just as many law-abiding citizens
who live their entire lives outside of prison never create
what the majority might consider a meaningful life
because they are not sufficiently motivated.6 For all of
the foregoing reasons, I reject the majority’s conclusion
that fifty years is the functional equivalent of a life
sentence under Miller for juvenile homicide offenders
in Connecticut.
II
I next take issue with the majority’s conclusion that
Miller announced a watershed rule of criminal proce-
dure that applies retroactively under the framework
established in Teague. In Teague, a plurality of the court
identified ‘‘two exceptions to [the] general rule of non-
retroactivity for cases on collateral review. First, a new
rule should be applied retroactively if it places certain
kinds of primary, private individual conduct beyond the
power of the criminal law-making authority to pro-
scribe. . . . Second, a new rule should be applied ret-
roactively if it requires the observance of those pro-
cedures that . . . are implicit in the concept of ordered
liberty.’’ (Internal quotation marks omitted.) Thiersaint
v. Commissioner of Correction, 316 Conn. 89, 108 n.8,
A.3d (2015). The court explained in Teague that
the second exception is reserved for ‘‘watershed rules
of criminal procedure’’; Teague v. Lane, supra, 489 U.S.
311; that ‘‘implicate the fundamental fairness of the
trial’’; id., 312; and ‘‘without which the likelihood of an
accurate conviction is seriously diminished.’’ Id., 313.
The court added in Sawyer v. Smith, 497 U.S. 227, 110
S. Ct. 2822, 111 L. Ed. 2d 193 (1990), that it is ‘‘not
enough under Teague to say that a new rule is aimed
at improving the accuracy of trial. More is required. A
rule that qualifies under this exception must not only
improve accuracy, but also alter our understanding of
the bedrock procedural elements essential to the fair-
ness of a proceeding.’’ (Emphasis in original; internal
quotation marks omitted.) Id., 242; see also Whorton v.
Bockting, 549 U.S. 406, 420–21, 127 S. Ct. 1173, 167 L.
Ed. 2d 1 (2007) (stating that second Teague exception
‘‘cannot be met simply by showing that a new proce-
dural rule is based on a ‘bedrock’ right,’’ but, rather,
‘‘[the] new rule must itself constitute a previously unrec-
ognized bedrock procedural element that is essential
to the fairness of a proceeding’’ [emphasis omitted]).
In subsequent decisions, the United States Supreme
Court further noted that the class of rules to which the
second Teague exception applies is ‘‘extremely nar-
row’’; Schriro v. Summerlin, 542 U.S. 348, 352, 124 S.
Ct. 2519, 159 L. Ed. 2d 442 (2004); and that it had
‘‘rejected every claim that a new rule has satisfied the
requirements for watershed status.’’ Whorton v. Bockt-
ing, supra, 549 U.S. 418; see, e.g., Beard v. Banks, 542
U.S. 406, 420, 124 S. Ct. 2504, 159 L. Ed. 2d 494 (2004)
(rejecting retroactivity of rule announced in Mills v.
Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d
384 [1988]); Schriro v. Summerlin, supra, 358 (rejecting
retroactivity of rule announced in Ring v. Arizona, 536
U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 [2002]);
O’Dell v. Netherland, 521 U.S. 151, 166–67, 117 S. Ct.
1969, 138 L. Ed. 2d 351 (1997) (rejecting retroactivity
of rule announced in Simmons v. South Carolina, 512
U.S. 154, 114 S. Ct. 2187, 129 L. Ed. 2d 133 [1994]);
Gilmore v. Taylor, 508 U.S. 333, 344–46, 113 S. Ct. 2112,
124 L. Ed. 2d 306 (1993) (rejecting retroactivity of rule
announced in Falconer v. Lane, 905 F.2d 1129 [7th Cir.
1990]); Sawyer v. Smith, supra, 497 U.S. 242–45
(rejecting retroactivity of rule announced in Caldwell
v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed.
2d 231 [1985]).
In light of this precedent, it is not surprising that all
other federal and state jurisdictions that have consid-
ered the issue have concluded unanimously that the
rule announced in Miller is not a watershed rule of
criminal procedure that applies retroactively under the
second Teague exception.7 See, e.g., Martin v. Symmes,
782 F.3d 939, 943 (8th Cir. 2015); Johnson v. Ponton,
780 F.3d 219, 226 (4th Cir. 2015); In re Morgan, 713
F.3d 1365, 1367–68 (11th Cir. 2013); Craig v. Cain,
United States Circuit Court of Appeals, Docket No. 12-
30035 (5th Cir. January 4, 2013); Malvo v. Mathena,
United States District Court, Docket No. 2:13-CV-375
(E.D. Va. June 20, 2014); Ware v. King, United States
District Court, Docket No. 5:12-CV-147-DCB-MTP (S.D.
Miss. September 5, 2013); Ex parte Williams, So.
3d , (Ala. 2015); State v. Tate, 130 So. 3d 829,
841 (La. 2013), cert. denied, U.S. , 134 S. Ct.
2663, 189 L. Ed. 2d 214 (2014); People v. Carp, 496 Mich.
440, 475 n.10, 852 N.W.2d 801 (2014); Chambers v. State,
831 N.W.2d 311, 331 (Minn. 2013); Commonwealth v.
Cunningham, 622 Pa. 543, 558–59, 81 A.3d 1 (2013),
cert. denied, U.S. , 134 S. Ct. 2724, 189 L. Ed.
2d 763 (2014).8 At least one state court likewise has
determined that Miller is not retroactive under a more
liberal state retroactivity analysis than the analysis
required under Teague. See People v. Carp, supra, 495–
512 (Miller not entitled to retroactive application under
Michigan’s broader retroactivity standard).9
Courts have given many reasons why Miller is not a
watershed rule, including that (1) the rule does not
involve ‘‘ ‘sweeping’ changes’’ like those in Gideon v.
Wainwright, 372 U.S. 335, 343–44, 83 S. Ct. 792, 9 L.
Ed. 2d 799 (1963) (holding that indigent defendants
charged with felonies are constitutionally entitled to
appointed counsel), the case against which all other
watershed procedural rule arguments are generally
compared; Commonwealth v. Cunningham, supra, 622
Pa. 559; see, e.g., Craig v. Cain, supra, United States
Circuit Court of Appeals, Docket No. 12-30035; Wil-
liams v. State, supra, So. 3d ; State v. Tate,
supra, 130 So. 3d 839–40; accord People v. Carp, supra,
496 Mich. 475 n.10; Chambers v. State, supra, 831
N.W.2d 330; (2) the rule deals only with sentencing and
thus does not create an ‘‘impermissibly large risk of an
inaccurate conviction’’ or ‘‘alter our understanding of
the bedrock procedural elements essential to the fair-
ness of a proceeding’’; (internal quotation marks omit-
ted) State v. Tate, supra, 839; accord People v. Carp,
supra, 475 n.10; Chambers v. State, supra, 330; and (3)
‘‘the Miller [c]ourt’s review of its precedents demon-
strates that its holding was not a watershed develop-
ment . . . [because] [t]he [c]ourt’s cases have long
established that sentencing juries must be able to give
meaningful consideration and effect to all mitigating
evidence . . . .’’ (Internal quotation marks omitted.)
Chambers v. State, supra, 330; see also Craig v.
Cain, supra.
The majority nonetheless concludes in a spare and
thinly reasoned analysis that Miller is a watershed rule
that applies retroactively under Connecticut law
because it is ‘‘central to an accurate determination that
the sentence imposed is a proportionate one’’ and
because ‘‘our understanding of the bedrock procedural
element of individualized sentencing was altered when
the [United States Supreme] [C]ourt . . . require[d]
consideration of new factors for a class of offenders
. . . .’’10 The majority further concludes that the peti-
tioner’s sentence in this case ‘‘falls within the ambit’’
of the rule in Miller because it was imposed ‘‘without
consideration of [Miller’s] mitigating factors . . . .’’
Text accompanying footnote 13 of the majority opinion.
The majority’s legal analysis, however, is unconvincing,
and its factual conclusion that the trial court in the
present case did not consider Miller’s mitigating factors
when it sentenced the petitioner is unsupported by the
record. Accordingly, I would join every other jurisdic-
tion that has considered the issue and conclude that
the rule announced in Miller is not a watershed rule
that applies retroactively under Teague.
With respect to the element of accuracy, the court
in Sawyer observed that, ‘‘because the second [Teague]
exception is directed only at new rules essential to
the accuracy and fairness of the criminal process, it is
unlikely that many such components of basic due pro-
cess have yet to emerge.’’ (Emphasis added; internal
quotation marks omitted.) Sawyer v. Smith, supra, 497
U.S. 243. ‘‘All of [the] [e]ighth [a]mendment jurispru-
dence concerning capital sentencing is directed toward
the enhancement of reliability and accuracy in some
sense. Indeed, [the petitioner in Sawyer] has not sug-
gested any [e]ighth [a]mendment rule that would not
be sufficiently fundamental to qualify for the proposed
definition of the exception, and at oral argument . . .
counsel was unable to provide a single example.’’ (Inter-
nal quotation marks omitted.) Id. The court in Sawyer
thus concluded that the new procedural rule at issue
in that case was not a watershed rule of criminal proce-
dure but ‘‘an additional measure of protection against
error . . . . The . . . rule was designed as an
enhancement of the accuracy of capital sentencing, a
protection of systemic value for state and federal courts
charged with reviewing capital proceedings. But given
that it was added to an existing guarantee of due process
protection against fundamental unfairness, we cannot
say this systemic rule enhancing reliability is an ‘abso-
lute prerequisite to fundamental fairness’ . . . of the
type that may come within Teague’s second exception.’’
(Citations omitted.) Id., 244.
In Connecticut as well, the rule in Miller is not a rule
‘‘without which the likelihood of an accurate [sentence
for a juvenile offender] is seriously diminished,’’ as
required under Teague’s second exception. Teague v.
Lane, supra, 489 U.S. 313. The rule merely enhances
the accuracy of the sentence because substantial due
process protections against fundamental unfairness
already exist in Connecticut for juvenile and other
offenders. See, e.g., General Statutes § 54-91b (defen-
dant or defense counsel may request record of prior
convictions and presentence investigation report before
sentencing date); Practice Book § 43-5 (defense counsel
shall be notified of, and permitted to attend, interview of
defendant for preparation of presentence investigation
report to assist defendant in answering inquiries and
to protect defendant’s rights); Practice Book § 43-10 (1)
and (3) (during sentencing hearing, court shall afford
defendant opportunity to speak on his own behalf, pre-
sent mitigating evidence, and contest evidence on
which court relied for sentencing); Practice Book § 43-
14 (allowing defense counsel to raise with sentencing
court inaccuracies in presentence investigation report).
These protections have long allowed defendants to
freely raise the issue of their juvenile status before and
during the sentencing hearing. Moreover, courts always
have been acutely aware of a juvenile offender’s status,
given the daily presence of most defendants at trial and
the sentencing hearing.
I also disagree with the majority that the rule in Miller
‘‘alter[s] our understanding of the bedrock procedural
elements essential to the fairness of a [juvenile sentenc-
ing] proceeding’’ under Connecticut law. (Internal quo-
tation marks omitted.) Rather, as previously suggested,
the rule in Miller represents an incremental step in the
continuing evolution of rules and procedures created
to afford juvenile offenders in Connecticut adequate
due process protections and to ensure that the sentenc-
ing process will not be fundamentally unfair.
One of the most important tools used by sentencing
courts to provide these protections is the presentence
investigation report (PSI). General Statutes § 54-91a (a)
provides in relevant part: ‘‘No defendant convicted of
a crime, other than a capital felony . . . or murder
with special circumstances . . . the punishment for
which may include imprisonment for more than one
year, may be sentenced, or the defendant’s case other-
wise disposed of, until a written report of investigation
by a probation officer has been presented to and consid-
ered by the court . . . .’’ Subsection (c) further pro-
vides in relevant part: ‘‘Whenever an investigation is
required, the probation officer shall promptly inquire
into the circumstances of the offense, the attitude of
the complainant or victim, or of the immediate family
where possible in cases of homicide, and the criminal
record, social history and present condition of the
defendant. Such investigation shall include an inquiry
into any damages suffered by the victim, including medi-
cal expenses, loss of earnings and property loss. All
local and state police agencies shall furnish to the pro-
bation officer such criminal records as the probation
officer may request. When in the opinion of the court
or the investigating authority it is desirable, such
investigation shall include a physical and mental
examination of the defendant. . . .’’ (Emphasis
added.) General Statutes § 54-91a (c); see also General
Statutes § 54-91b.
The rules of practice implement the statutory man-
date of a PSI for defendants convicted of a crime for
which the punishment may include imprisonment for
more than one year. See Practice Book §§ 43-3 and 43-
4. The rules additionally provide that defense counsel
shall be permitted to participate in the preparation of
the PSI; Practice Book § 43-5; and that copies thereof
‘‘shall be provided . . . to the defendant or his or her
counsel in sufficient time for them to prepare ade-
quately for the sentencing hearing . . . .’’ Practice
Book § 43-7. At the sentencing hearing, the court ‘‘shall
afford the parties an opportunity to be heard and, in
its discretion, to present evidence on any matter rele-
vant to the disposition, and to explain or controvert
the presentence investigation report . . . . When the
judicial authority finds that any significant information
contained in the presentence report . . . is inaccurate,
it shall order the office of adult probation to amend all
copies of any such report in its possession and in the
clerk’s file, and to provide both parties with an amend-
ment containing the corrected information.’’ Practice
Book § 43-10 (1). The court also ‘‘shall allow the defen-
dant a reasonable opportunity to make a personal state-
ment in his or her own behalf and to present any
information in mitigation of the sentence.’’ Practice
Book § 43-10 (3). Defense counsel is expected to be
familiar with the contents of the PSI and any accompa-
nying reports; Practice Book § 43-13; and ‘‘shall bring
to the attention of the judicial authority any inaccuracy
. . . of which he or she is aware or which the defendant
claims to exist.’’ Practice Book § 43-14.
The policies and procedures that the Court Support
Services Division developed prior to the decision in
Miller to guide the preparation of PSIs further required
a ‘‘face sheet’’ containing basic demographic data
describing the offender and the offense, information
regarding the offender’s version of the facts relating to
the offense, the victim’s attitude, the offender’s personal
history, the offender’s criminal record, if any, and
‘‘[o]ther [i]nformation’’ deemed relevant.11 Court Sup-
port Services Division, Policy and Procedures for Pre-
sentence Investigation (December 7, 2007) Policy No.
4.31, pp. 5, 10. With respect to the offender’s personal
history, the guidelines required ‘‘detailed information’’
concerning the offender’s family background, relation-
ships, children, employment, education or vocational
training, financial status, housing, physical and mental
health, substance abuse, and other relevant matters.
Id., p. 10. The guidelines also stipulated that the PSI
must ‘‘emphasize the five years prior to the report’s
completion’’; id.; which, in the case of juvenile offend-
ers, meant their preadolescent and early adolescent
years. The guidelines added that ‘‘[i]ssues that predate
the five-year time frame will be presented if they repre-
sent significant experiences in the offender’s life or
are determined essential to establishing a pattern of
behavior.’’ Id. Accordingly, PSIs prepared prior to Miller
provided sentencing courts in Connecticut with exactly
the type of information that addressed Miller’s concerns
regarding juvenile offenders.
We know this is true because the court in Miller
clearly indicated, by example, the information it wanted
judicial authorities to consider before sentencing juve-
nile offenders to life in prison without the possibility
of parole. Although the court made the general observa-
tion that ‘‘children are constitutionally different from
adults for purposes of sentencing’’ because of their (1)
‘‘lack of maturity and an undeveloped sense of responsi-
bility, leading to recklessness, impulsivity, and heedless
risk-taking,’’ (2) vulnerability ‘‘to negative influences
and outside pressures, including from their family and
peers,’’ and (3) ‘‘limited contro[l] over their own envi-
ronment and lack [of] the ability to extricate themselves
from horrific, crime-producing settings’’; (internal quo-
tation marks omitted) Miller v. Alabama, supra, 132 S.
Ct. 2464; it also stated that sentencing authorities should
seek evidence of these characteristics by considering
the offender’s role in the offense, family history, educa-
tional and behavioral background, and, when appro-
priate, past violations of the law. See id., 2467–68.
The court gave three specific examples of such evi-
dence. The court first observed that, in Eddings v. Okla-
homa, 455 U.S. 104, 105–106, 102 S. Ct. 869, 71 L. Ed.
2d 1 (1982), it had invalidated the death sentence of a
sixteen year old defendant who had shot a police officer
at close range and killed him ‘‘because the judge did not
consider evidence of his neglectful and violent family
background (including his mother’s drug abuse and his
father’s physical abuse) and his emotional disturbance.
[The court] found that evidence particularly relevant—
more so than it would have been in the case of an adult
offender. . . . [J]ust as the chronological age of a
minor is itself a relevant mitigating factor of great
weight, so must the background and mental and emo-
tional development of a youthful defendant be duly
considered in assessing his culpability.’’ (Citation omit-
ted; internal quotation marks omitted.) Miller v. Ala-
bama, supra, 132 S. Ct. 2467.
The court next discussed the relevant characteristics
of the two fourteen year old offenders whose sentences
were at issue in Miller. With respect to the first offender,
the court examined the circumstances of the crime and
noted that he did not fire the bullet that killed the victim,
the state did not argue that he had intended to kill the
victim, and his conviction was based on an aiding and
abetting theory. Id., 2468. The court further noted that
the offender first learned on the way to the scene of
the crime that his friend was carrying a gun and that
his age could have affected his calculation of the risk
that his friend’s behavior posed, as well as his unwilling-
ness to walk away at that point, both of which related
to his culpability for the offense. See id. The court added
that the offender’s family background and immersion
in violence should have been considered, as well as the
fact that his mother and grandmother previously had
shot other persons. Id.
With respect to the second juvenile offender, the
court observed that, although he had committed a
vicious murder, he did so while under the influence of
drugs and alcohol he had consumed with the adult
victim. Id., 2469. In addition, ‘‘if ever a pathological
background might have contributed to a [fourteen year
old’s] commission of a crime, it [was] here.’’ Id. The
court stated that the offender’s ‘‘stepfather physically
abused him; his alcoholic and drug-addicted mother
neglected him; he had been in and out of foster care
as a result; and he had tried to kill himself four times,
the first when he should have been in kindergarten.
. . . Nonetheless, [his] past criminal history was lim-
ited—two instances of truancy and one of second-
degree criminal mischief. . . . That [he] deserved
severe punishment for killing [the victim] is beyond
question. But once again, a sentencer needed to exam-
ine all these circumstances before concluding that life
without any possibility of parole was the appropriate
penalty.’’ (Citations omitted; internal quotation marks
omitted.) Id.
I emphasize that a comparison of the information
discussed in Miller with the information required in
Connecticut PSIs before Miller demonstrates that PSIs
were required to address almost all of the factors the
rule in Miller requires sentencing authorities to con-
sider because the past history and personal circum-
stances of a juvenile offender are necessarily descrip-
tive of the offender’s youth. Nowhere is this better illus-
trated than in the present case. The petitioner’s PSI,
which the trial court reviewed and the prosecutor and
defense counsel read and accepted without objection
or exception prior to sentencing, contained nearly all
of the information required under Miller. The nine page
report began by describing the petitioner’s pivotal role
in committing the offense, which included his recruit-
ment of a cousin and a friend to aid him and another
cousin in the robbery of a Subway restaurant in the
town of North Haven. The report also stated it was the
petitioner, and not his cousins or friend, who vaulted
over the counter, confronted the victim, shot the victim
in the face when he refused to open a storage room
door, and shot the victim two more times as he tried
to escape.
In a four page description of the petitioner’s personal
history, the report further explained that the petitioner,
the youngest of three children, was raised in a stable
home and that his parents, who had been married for
more than twenty-five years at the time of the petition-
er’s crime, ‘‘appear[ed] to be hardworking, caring peo-
ple who made every effort to provide a healthy envi-
ronment for their children.’’ The father related that,
because he had met his wife in an orphanage in New
York, ‘‘it was extremely important to him that they
raise their own children and ‘raise them right.’ ’’ The
petitioner agreed that his father wanted the children
‘‘ ‘to do better’ ’’ and stated that his parents were strict,
especially his father. The petitioner denied that his
father was abusive, although he indicated that his father
had occasionally ‘‘ ‘whipped’ ’’ him.
Both parents were employed, the father as a bus
driver and truck driver, and the mother as a certified
nurse’s aide and rehabilitation technician. The petition-
er’s older brother was a respiratory therapist and the
married father of two children, and his sister was a
college student, the mother of two children, and
employed as a physical therapy assistant. The petitioner
had a three year old child and continued to maintain a
relationship with the child’s mother.
The petitioner’s father stated that the petitioner had
‘‘posed steady discipline problems for as long as he
[could] remember. . . . [I]n spite of their efforts to
control his behavior . . . by the time the [petitioner]
came to Connecticut [from Florida, where he had lived
for the previous ten years], he was simply ‘out of con-
trol.’ He related that the [petitioner] fled Florida weeks
before [committing the murder], after reportedly hold-
ing up a drug dealer which netted him and his cousin
. . . [more than $8000].’’
The petitioner’s mother added that the petitioner
‘‘had difficulty in school and was always running away
when he didn’t like the rules at home, but that he [was]
a ‘good hearted kid,’ especially kind to children and the
elderly. The [petitioner’s] mother . . . [had] difficulty
grasping the notion that he took someone’s life . . . .’’
The petitioner’s father described ‘‘an ongoing struggle
to enlist the aid of Florida’s [h]uman [r]esource and
[c]riminal [j]ustice agencies in controlling the [petition-
er’s] behavior. He related that the [petitioner] refused
to stay in school beginning in adolescence and at one
point, he or [the petitioner’s mother was] required to
attend with him. They did so until the impracticality of
the situation threatened their jobs. The [petitioner’s]
father stated that [the petitioner] refused to abide by
a curfew and when they simply could no longer handle
him, they appealed to the [Fort] Myers Police Depart-
ment, hoping to incarcerate him for his own safety,’’ but
the parents were told that the police could do nothing.
The petitioner’s father also reported that, whenever
the petitioner ‘‘was apprehended because of various
criminal allegations, because of his age . . . ‘[the
authorities] always let him go.’ [The father] recalled
one police officer telling him ‘ ‘‘[h]e is a rude, filthy-
mouthed, nasty kid, who knows the system. He knows
you have to come get him and we have to let him go.’’ ’
Indications are, however, that the [petitioner’s] best
behavior occurred in his parents’ home. His father indi-
cated that he never stole from there and was not violent
or disrespectful. In response to their efforts at disci-
pline, he ran away and did so frequently.’’
With respect to the petitioner’s educational back-
ground, the report noted that, at the age of ten, while
in the third grade, the petitioner ‘‘was referred for psy-
chological testing after evidencing an array of behav-
ioral problems in the classroom. These included
[underachievement] in academics, poor group partici-
pation, defiance, fighting, severely poor concentration
and a gross lack of effort.’’ The petitioner, however,
responded well to one-on-one intervention to address
his study skills, behavior and various learning problems.
In middle school, the petitioner’s academic perfor-
mance declined even further. By seventh grade, he was
failing in his classes, engaging in fights and vandalism,
and attending school even less frequently. The school
that he was attending decided, after retaining him for
several years, that further retention was counterproduc-
tive, in part because of his physical size. The petitioner’s
return to school was conditioned on his completion of
an adolescent treatment program for drugs and alcohol,
but, after two months of sporadic cooperation and bel-
ligerency, he ‘‘ran away from the program.’’ The peti-
tioner subsequently attended, for a few months each,
the Southwest Florida Marine Institute, where he did
very well, Fort Myers High School, and a vocational
technical high school, where he studied hotel manage-
ment and achieved passing and sometimes higher
grades.
The petitioner held several part-time jobs in Florida
during his middle teenage years but admitted that he
used alcohol and marijuana beginning at the age of
fourteen and subsequently used cocaine. His case man-
ager at the drug treatment program he briefly attended
stated that, in her view, the petitioner’s ‘‘ ‘biggest prob-
lem was giving into his friend[s] and giving into peer
pressure.’ ’’ She also stated that the petitioner was
‘‘respectful, bright and motivated ‘when he stayed off
drugs’ ’’ and was ‘‘ ‘a loving father and devoted son.’ ’’
After noting that the petitioner’s ‘‘parents were
unequivocally supportive and cooperative with efforts
from ‘helping agencies,’ ’’ the report summarized the
authoring probation officer’s findings as follows: ‘‘The
[petitioner’s] difficulties in relating to others and func-
tioning appropriately are recorded as early as the third
grade. [F]earful for his future, the [petitioner’s] parents
maneuvered through a maze of social service and crimi-
nal justice agencies in an attempt to control him. Before
he left Florida, just weeks before the [murder], his
father admitted that in spite of their efforts, he was
simply ‘out of control.’ His lifetime of rebellion and
defiance then culminated in this hideous act, which
took the life of a young man only doing his job as a
counter clerk. [The petitioner] provided warning signs
that he was capable of violence and had no regard
for anyone, but himself. Unfortunately, the system was
unable to put a stop to his behavior before this victim
was viciously murdered.’’ The report concludes with a
copy of the petitioner’s juvenile record, which shows
prior arrests in Florida for petit theft, grand larceny,
and burglary when the petitioner was fourteen years
old, and assault and battery when the petitioner was
sixteen years old.
During the sentencing hearing, the prosecutor made
the petitioner’s personal history a key element of his
argument that the petitioner’s sentence should be harsh.
The prosecutor noted that the petitioner had been ‘‘born
into a caring, stable family. His parents, his siblings
have gone onto peaceful and successful lives. His par-
ents tried to instill in him the best qualities that they
apparently accomplished with their other children, and,
yet, he apparently ignored them. Very often, the court
has before it people with broken families, with violence
in their background, family violence in their back-
ground, with lack of educational opportunity, with all
kinds of marks that . . . their role in society has not
been the best, that they’re not offered the same benefits
as some members of society. None of that is true of
this person. And that makes it all the more appropriate
that he be isolated from society for the longest amount
of time that is appropriate given the circumstances.
This was an execution. It appears to have been pre-
planned. One of the letters says that [the petitioner]
brought along an audience for his preplanned execu-
tion, and I think that may be accurate. There is no doubt
that this individual . . . has made, essentially, no con-
tribution to society, that he is violent, that he is incorrigi-
ble, and that he should be incarcerated . . . .’’
In light of this argument, defense counsel made only
the following limited response: ‘‘[U]nfortunately, there’s
very little I can say under the circumstances except to
empathize with the victim’s family and to say that I,
personally, deeply regret their loss. Other than that, I’d
simply ask the court to impose the court’s indicated
sentence . . . .’’ The petitioner also made a few brief
remarks, including an apology to the victim’s family
and expressions of gratitude to his own family for their
support. The trial court ultimately imposed a total effec-
tive sentence of fifty years imprisonment, ten years less
than a life sentence under Connecticut law; see General
Statutes § 53a-35b (defining ‘‘[a] sentence of life impris-
onment’’ generally as ‘‘a definite sentence of sixty
years’’); and clearly less than a life sentence under
Miller, which would have been imprisonment for the
remainder of the petitioner’s natural life. See Miller v.
Alabama, supra, 132 S. Ct. 2460.
In view of the requirement of a PSI and the preceding
example of how a PSI is prepared and used by attorneys
and the court during a sentencing hearing, it is simply
not possible to conclude that the rule established in
Miller ‘‘alter[s] our understanding of the bedrock proce-
dural elements essential to the fairness of a proceeding’’
under Connecticut law. (Emphasis in original; internal
quotation marks omitted.) Sawyer v. Smith, supra, 497
U.S. 242. Indeed, to the extent any further evidence is
required to support this conclusion, it may be found in
the procedural guidelines for PSIs that became effective
on August 15, 2013, following the decision in Miller.
See generally Court Support Services Division, Policy
and Procedures for Presentence Investigation Report
(August 15, 2013) Policy No. 4.31, pp. 1–22.12
Although the newly adopted guidelines are more
detailed than the guidelines they replaced, most of the
changes intended to address the concerns in Miller are
refinements, rather than major revisions or additions,
to the previous guidelines. For example, the post-Miller
guidelines specify that the following information shall
be provided for an offender under the age of eighteen:
the age of the offender at the time of the offense; id.,
pp. 10–11; the level of the offender’s participation in
the offense; id.; the degree of familial influence or pres-
sure on the offender; id., p. 14; the offender’s intellectual
capacity; id., p. 15; the community environment in
which the offender is residing; id., p. 16; the ability of
the offender to leave it; id.; and, finally, the offender’s
level of maturity, degree of impetuosity and ability to
appreciate the risks and consequences of his or her
own behavior.13 Id., p. 17. The only new information
required by the post-Miller guidelines relates to the
offender’s ability to navigate the criminal justice system
and to participate meaningfully in defending against
the charges, the offender’s capacity for rehabilitation
within and outside the prison environment, and scien-
tific and psychological evidence showing differences in
the brain development of a person under the age of
eighteen and an adult. Id., pp. 17–18. This court recog-
nized in Riley, however, that trial courts in Connecticut
should consider evidence that Roper v. Simmons, 543
U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), Graham
v. Florida, supra, 560 U.S. 48, and Miller v. Alabama,
supra, 132 S. Ct. 2455, credited as authoritative with
respect to the last two factors until the Court Support
Services Division provides further guidance. State v.
Riley, supra, 315 Conn. 659.
Nevertheless, the majority concludes, in the absence
of any evidence in the record, that PSIs prepared before
the decision in Miller, including in the present case,
were deficient because they did not examine ‘‘scientific
and psychological evidence demonstrating the lesser
culpability of juveniles and their greater capacity for
reform.’’ Footnote 13 of the majority opinion. The
majority, however, fails to recognize that the petition-
er’s PSI referred to, and the court in the present case
considered, evidence that Miller credited as authorita-
tive with respect to those factors, despite the lack of
guidance from the Court Support Services Division.
In Roper, Graham and Miller, the court observed
that scientific evidence and sociological studies had
identified three general differences between juvenile
offenders and adults that sentencing courts should con-
sider in determining a juvenile offender’s culpability
and potential for reform. Miller v. Alabama, supra, 132
S. Ct. 2464–65; Graham v. Florida, supra, 560 U.S.
68–69; Roper v. Simmons, supra, 543 U.S. 569–70. These
are a juvenile’s (1) propensity to act impetuously and
irresponsibly, (2) susceptibility to negative influences
and outside pressures, including peer pressure, and (3)
unformed character and transitory personality traits.
Roper v. Simmons, supra, 569–70. In Miller, the court
elaborated that sentencing courts may consider these
‘‘hallmark features,’’ identified by scientific and socio-
logical studies, by taking into account the offender’s
family and home environment, the circumstances of the
offense, including the extent of the offender’s participa-
tion and the effect of familial or peer pressure on his or
her conduct, and the possibility of rehabilitation when
suggested by the circumstances. Miller v. Alabama,
supra, 2468. It then considered these factors in the
context of the two defendants in that case and con-
cluded, with respect to the first defendant, that, ‘‘[a]t
the least, a sentencer should look at such facts before
depriving a [juvenile] of any prospect of release from
prison’’; id., 2469; and, with respect to the second defen-
dant, that, ‘‘once again, a sentencer needed to examine
all these circumstances before concluding that life with-
out any possibility of parole was the appropriate pen-
alty.’’ Id.
In the present case, all of the factors described in
Miller were addressed in the petitioner’s PSI, which
provided a detailed description of the petitioner’s cen-
tral role in the crime, his ‘‘lifetime of rebellion and
defiance,’’ and multiple attempts by his family, the edu-
cational system and law enforcement to address and
control his behavior. The PSI thus took into account
the petitioner’s culpability and potential for reform, and
indicated that he was highly culpable, given the nature
of his participation in the homicide, and that his poten-
tial for reform was low, given his consistent, out of
control behavior beginning as early as the third grade
and continuing thereafter. We must presume that sen-
tencing courts consider the information in the PSI
because of the statutory mandate in § 54-91a (a) that
‘‘[n]o defendant convicted of a crime, other than a capi-
tal felony . . . or murder with special circumstances
. . . the punishment for which may include imprison-
ment for more than one year, may be sentenced, or the
defendant’s case otherwise disposed of, until a written
report of investigation by a probation officer has been
presented to and considered by the court . . . .’’
(Emphasis added.) Indeed, if the majority deems this
type of investigation and analysis insufficient under
Miller, then the court’s statement in Riley that sentenc-
ing authorities in Connecticut should consider evidence
that Roper, Graham and Miller credited as authoritative
with respect to the last two factors until the Court
Support Services Division provides further guidance
would be rendered meaningless. Additionally, any sen-
tence of fifty years or more without the possibility of
parole imposed on a juvenile offender will now be sub-
ject to review, regardless of the contents of the PSI and
the sentencing court’s on the record consideration of
the offender’s juvenile status.14
For the foregoing reasons, I respectfully dissent.
1
Although the General Assembly refers to life imprisonment without the
possibility of release; see, e.g., General Statutes § 53a-35b; we use the term
life without the possibility of parole in accordance with the United States
Supreme Court’s use of that term in Miller. The terms are synonymous.
2
Justice Espinosa also has issued a dissenting opinion in the present case.
3
General Statutes § 53a-35b provides: ‘‘A sentence of life imprisonment
means a definite sentence of sixty years, unless the sentence is life imprison-
ment without the possibility of release, imposed pursuant to subparagraph
(A) or (B) of subdivision (1) of section 53a-35a, in which case the sentence
shall be imprisonment for the remainder of the defendant’s natural life.’’
4
See Public Acts 1980, No. 80-442, § 11.
5
The two exceptions are life imprisonment for a capital felony committed
prior to April 25, 2012, under the version of General Statutes § 53a-54b in
effect prior to April 25, 2012, and life imprisonment for the class A felony
of murder with special circumstances committed on or after April 25, 2012,
under the version of § 53a-54b in effect on or after April 25, 2012, both of
which involve life imprisonment without the possibility of release unless,
in the case of a capital felony committed prior to April 25, 2012, a sentence
of death is imposed. See General Statutes § 53a-35a (1).
6
To the extent the majority relies on statistics from the Centers for Disease
Control and Prevention to calculate the petitioner’s life expectancy following
his release from prison, I note that different agencies have reached different
conclusions. Compare E. Arias, Centers for Disease Control and Prevention,
National Vital Statistics Reports (January 6, 2014) p. 11 (calculating life
expectancy of male at birth as seventy-six years), available at http://
www.cdc.gov/nchs/data/nvsr/nvsr62/nvsr62_07.pdf (last visited May 19,
2015), with United States Social Security Administration, Retirement & Survi-
vors Benefits: Life Expectancy Calculator, available at http://www.ssa.gov/
cgi-bin/longevity.cgi (last visited May 19, 2015) (calculating life expectancy
of male at birth as approximately eighty-three years). Life expectancy calcu-
lations also vary depending on the age that is used as the basis for the
calculation. See E. Arias, supra, pp. 11–12 (calculating life expectancy of
male at birth as seventy-six years, at age thirty-seven as seventy-eight years,
and at age sixty-six as approximately eighty-four years); United States Social
Security Administration, supra (calculating life expectancy of male at birth
as approximately eighty-three years, at age thirty-six as approximately
eighty-two years, and at age sixty-seven as approximately eighty-five years).
Accordingly, the majority’s conclusion that the defendant would have only
a few more years to live following his release from prison at the age of
sixty-six is highly speculative.
7
An intermediate appellate court in Illinois appears to be the only court
that has concluded that Miller constitutes a watershed rule under Teague’s
second exception. See People v. Williams, 982 N.E.2d 181, 196–77 (Ill. App.
2012), appeal denied, 23 N.E.3d 1206 (Ill. 2015). The reasoning in Williams,
however, was subsequently rejected by the Illinois Supreme Court in People
v. Davis, 6 N.E.3d 709, 721–22 (Ill. 2014), which determined that Miller
applies retroactively because it constitutes a new substantive rule.
8
To the extent other courts have held that the rule in Miller applies
retroactively, they have done so only on the ground that it is a new substan-
tive rule under Teague’s first exception. See, e.g., Hill v. Snyder, United
States District Court, Docket No. 10-14568 (E.D. Mich. January 30, 2013);
People v. Davis, 6 N.E.3d 709, 722 (Ill. 2014); State v. Ragland, 836 N.W.2d
107, 117 (Iowa 2013); Diatchenko v. District Attorney, 466 Mass. 655, 666,
1 N.E.3d 270 (2013); Jones v. State, 122 So. 3d 698, 703 (Miss. 2013); State
v. Mantich, 287 Neb. 320, 342, 842 N.W.2d 716, cert. denied, U.S. ,
135 S. Ct. 67, 190 L. Ed. 2d 229 (2014); Petition of State of New Hampshire,
166 N.H. 659, 670–71, 103 A.3d 227 (2014), petition for cert. filed sub nom.
New Hampshire v. Soto, 83 U.S.L.W. 3558 (U.S. November 26, 2014) (No.
14-639); Aiken v. Byars, 410 S.C. 534, 540, 765 S.E.2d 572 (2014), petition
for cert. filed, 83 U.S.L.W. 3703 (U.S. February 9, 2015) (No. 14-1021); Ex
parte Maxwell, 424 S.W.3d 66, 75 (Tex. Crim. App. 2014); State v. Mares,
335 P.3d 487, 508 (Wyo. 2014). The Florida Supreme Court also recently
held that Miller applied retroactively on substantive grounds under its own
more liberal retroactivity test, which provides that a change in the law does
not apply retroactively in Florida ‘‘unless the change: (a) emanates from
[the Florida Supreme Court] or the United States Supreme Court, (b) is
constitutional in nature, and (c) constitutes a development of fundamental
significance.’’ (Internal quotation marks omitted.) Falcon v. State, Florida
Supreme Court, Docket No. SC13-865 (Fla. March 19, 2015). After concluding
that the first two prongs of the test had been met, the court determined
that the rule in Miller constituted a development of fundamental significance
because it ‘‘announce[d] a new substantive bar to mandatory life sentences
without the possibility of parole for all juveniles and proclaim[ed] that
the [e]ighth [a]mendment forbids such mandatory sentencing schemes.’’
(Emphasis added.) Id. The Florida Supreme Court thus concluded that the
rule in Miller was retroactive under Florida’s retroactivity standard for
the same reason a new rule may be deemed retroactive under the first
Teague exception.
9
Although Michigan applies the test established in Teague, it also applies
a state retroactivity analysis derived from the three step test set forth in
Linkletter v. Walker, 381 U.S. 618, 629, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965);
see People v. Carp, supra, 496 Mich. 497; which has since been replaced in
most other jurisdictions by Teague because it has led to inconsistent results.
See Thiersaint v. Commissioner of Correction, supra, 316 Conn. 123 n.19.
Applying the state retroactivity analysis in Michigan, which requires consid-
eration of (1) the purpose of the new rule, (2) the extent of reliance on the
old rule, and (3) the effect of the retroactive application of the new rule on
the administration of justice; People v. Carp, supra, 497; the Michigan
Supreme Court explained that ‘‘Teague provides a floor for when a new
rule of criminal procedure must be applied retroactively, with a state none-
theless free to adopt its own broader test for requiring the retroactive
application of a new federal or state constitutional rule.’’ Id., 496. The court
then described Michigan’s ‘‘predisposition against the retroactive application
of new rules of criminal procedure’’ and stated that ‘‘only the extraordinary
new rule of criminal procedure will be applied retroactively under Michigan’s
test when retroactivity is not already mandated under Teague . . . .’’ Id.,
497. Relying on the foregoing three factors, the court ultimately concluded
that the rule announced in Miller did not satisfy Michigan’s retroactivity
test. Id., 511–12.
10
To emphasize why the rule announced in Miller should be given retroac-
tive effect as a watershed rule of criminal procedure, the majority concludes
its analysis with a passage from Hill v. Snyder, United States District Court,
Docket No. 10-14568 (E.D. Mich. January 30, 2013): ‘‘[I]f ever there was a
legal rule that should—as a matter of law and morality—be given retroactive
effect, it is the rule announced in Miller. To hold otherwise would allow
the state to impose unconstitutional punishment on some persons but not
others, an intolerable miscarriage of justice.’’ (Internal quotation marks
omitted.) Id. The court’s pronouncement in Hill, however, has no relevance
in the present case because, apparently, unbeknownst to the majority, the
court characterized the rule in Miller as a substantive rule in the context
of a direct appeal in a civil action, and not as a watershed procedural rule
in the context of collateral review in a criminal action. The court in Hill
stated in a footnote, however, that it also ‘‘would find Miller retroactive on
collateral review, because it is a new substantive rule, which ‘generally
applies retroactively.’ ’’ (Emphasis added.) Id. The majority thus leads the
reader to believe, incorrectly, that the court in Hill agrees that Miller applies
retroactively in collateral review cases because it is a watershed rule of
criminal procedure.
11
Following the decision in Miller, the Court Support Services Division
updated its guidelines to require more specific information regarding juvenile
offenders. See generally Court Support Services Division, Policy and Proce-
dures for Presentence Investigation and Report (August 15, 2013) Policy
No. 4.31, pp. 10–20.
12
See footnote 11 of this opinion.
13
These factors correspond to information required by the prior proce-
dural guidelines that would have been contained in the PSI face sheet and
the offender’s personal history, including details regarding the offense, the
offender’s family background, relationships, children, education or voca-
tional training, employment, financial status, housing, physical and mental
health, and substance abuse, with emphasis on the five years preceding
completion of the PSI, and any personal issues before that time that represent
significant experiences in the offender’s life or are deemed to be essential
to establishing a pattern of behavior. Court Support Services Division, Policy
and Procedures for Presentence Investigation (December 7, 2007) Policy
No. 4.31, pp. 5, 10. For this reason, most of the factors in the post-Miller
guidelines were discussed in the petitioner’s PSI.
14
The majority’s assertion that PSIs prepared for juvenile offenders before
Miller were deficient because the forms used did not include a field for the
offender’s age at the time of the offense is a classic example of elevating
form over substance. As the majority itself concedes, the offender’s age
could be calculated quite easily from other information in the PSI, including
the date of the offense and the offender’s date of birth. I also categorically
reject the majority’s assertion that PSIs prepared before Miller were deficient
because they did not require the probation officer to examine the Miller
factors from the standpoint of the offender’s juvenile status. All of the
information in the PSIs of juvenile offenders before Miller was descriptive
of the offender’s juvenile character and history, and, therefore, such informa-
tion could not be understood through any other lens but that of the offender’s
juvenile status.
Insofar as the majority suggests that the PSI in the petitioner’s case was
deficient because it was submitted to the court two months after he entered
his conditional plea of nolo contendere and tentatively agreed to a fifty year
sentence, and because the court did not refer to the petitioner’s age in its
on the record comments at the sentencing hearing, the majority overlooks the
well established principle that, ‘‘once the trial court order[s] the presentence
investigation, the trial court’s acceptance of the . . . plea agreement neces-
sarily [becomes] contingent upon the results of the [PSI]. Otherwise, the
[PSI] would be little more than a nullity, and our law makes clear that [PSIs]
are to play a significant role in [a court’s determination of] a fair sentence.
Simply put, any plea agreement must be contingent upon its acceptance by
the court after [the court’s] review of the [PSI].’’ (Internal quotation marks
omitted.) State v. Thomas, 296 Conn. 375, 389, 995 A.2d 65 (2010). Accord-
ingly, the majority’s suggestion that the trial court imposed the petitioner’s
sentence without considering the PSI and the petitioner’s juvenile status
reflects a misunderstanding of the statutory directives; see General Statutes
§ 54-91a (a); and the practices that govern the decisions of sentencing courts.