State v. Jason B. ( 2016 )

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STATE OF CONNECTICUT v. JASON B.*
(SC 19446)
Rogers, C. J., and Palmer, Zarella, Eveleigh and McDonald, Js.
Argued September 18, 2015—officially released January 19, 2016
Mark Rademacher, assistant public defender, for the
appellant-cross appellee (defendant).
Adam E. Mattei, assistant state’s attorney, with
whom, on the brief, was John C. Smriga, state’s attor-
ney, for the appellee-cross appellant (state).
Opinion
PALMER, J. The defendant, Jason B., appeals1 and
the state cross appeals from the the trial court’s granting
in part of the defendant’s motion to correct an allegedly
illegal sentence and its subsequent resentencing of the
defendant. The state claims that the trial court incor-
rectly concluded that General Statutes (Rev. to 2005)
§ 53a-70 (b) (3),2 which provides that ‘‘[a]ny person
found guilty [of sexual assault in the first degree] shall
be sentenced to a term of imprisonment and a period
of special parole pursuant to subsection (b) of section
53a-28 which together constitute a sentence of at least
ten years,’’ required the court to sentence the defendant
to a period of special parole for his conviction of first
degree sexual assault. The state maintains that § 53a-
70 (b) (3) requires only that any period of special parole
that may be imposed shall, along with the accompa-
nying term of imprisonment, constitute a total sentence
of not less than ten years. The defendant claims that
the trial court correctly determined that § 53a-70 (b)
(3) requires that he be sentenced to a period of special
parole but incorrectly concluded that the period of spe-
cial parole need not be deducted from the defendant’s
original total effective sentence. We agree with the
state.
The following procedural history is relevant to our
analysis of the parties’ claims. In 2006, following a jury
trial, the defendant was found guilty of unlawful
restraint in the first degree in violation of General Stat-
utes § 53a-95 (a), a class D felony; see General Statutes
§ 53a-95 (b); and sexual assault in the first degree in
violation of § 53a-70 (a) (1), a class B felony. See General
Statutes (Rev. to 2005) § 53a-70 (b) (1). In accordance
with the jury verdict, the defendant was sentenced to
five years of incarceration for his conviction of unlawful
restraint and to a consecutive term of twenty years of
incarceration, execution suspended after ten years, and
thirty-five years of probation, for his conviction of first
degree sexual assault. Accordingly, the total effective
sentence for his conviction of both offenses was twenty-
five years of incarceration, execution suspended after
fifteen years, and thirty-five years of probation.
The defendant appealed from the judgment of convic-
tion to the Appellate Court, which affirmed. See State
v. Jason B., 111 Conn. App. 359, 360, 368, 958 A.2d 1266
(2008), cert. denied, 290 Conn. 904, 962 A.2d 794 (2009).
Subsequently, the defendant filed a motion to correct
an allegedly illegal sentence, in which he argued that
his sentence for first degree sexual assault was illegal
because § 53a-70 (b) (3), as interpreted by this court
in State v. Victor O., 301 Conn. 163, 193, 20 A.3d 669,
cert. denied, U.S. , 132 S. Ct. 583, 181 L. Ed.
2d 429 (2011), requires that persons convicted of that
offense be sentenced to a term of imprisonment and a
period of special parole. The defendant further claimed
that, because a new sentence cannot exceed the original
total effective sentence imposed; see State v. Raucci,
21 Conn. App. 557, 563, 575 A.2d 234, cert. denied, 215
Conn. 817, 576 A.2d 546 (1990); and because parole is
deemed to be an extension of the original period of
incarceration; see State v. Tabone, 292 Conn. 417, 429–
30, 973 A.2d 74 (2009); the trial court was required to
deduct the period of special parole mandated by § 53a-
70 (b) (3) from his original total effective prison sen-
tence, thereby leaving him with fourteen rather than
fifteen years to serve.
The trial court agreed with the defendant that, under
§ 53a-70 (b) (3), he was entitled to be resentenced to
a term of imprisonment and a period of special parole.
The court disagreed, however, that the period of special
parole must be deducted from his total effective sen-
tence so as to avoid an unlawful expansion of the origi-
nal sentence. The court concluded, rather, that, pursu-
ant to the aggregate package theory of sentencing, its
role in resentencing the defendant was to ensure that
the corrected sentence reflected the intent of the origi-
nal sentencing court to the greatest extent possible.
Toward that end, and noting that the intent of the origi-
nal sentencing court was to sentence the defendant
to thirty-five years of probation, the longest period of
supervised release authorized by law, the court sen-
tenced the defendant to five years of imprisonment for
his conviction of unlawful restraint and to a consecutive
term of ten years of imprisonment and ten years of
special parole for his conviction of first degree sex-
ual assault.
On appeal, the state claims that the trial court incor-
rectly determined that, under § 53a-70 (b) (3), it was
required to resentence the defendant to a period of
special parole for his conviction of first degree sexual
assault. The defendant claims that the trial court cor-
rectly interpreted § 53a-70 (b) (3) but incorrectly con-
cluded that it was not required to deduct the period
of special parole from the defendant’s original total
effective sentence. The defendant cannot prevail on his
claim in light of our decision today in the companion
case of State v. Victor O., 320 Conn. 239, A.3d
(2016), in which we addressed and rejected a claim
that General Statutes (Rev. to 2001) § 53a-70 (b) (3), as
amended by Public Acts 2002, No. 02-138, § 5,3 requires
that persons convicted of first degree sexual assault be
sentenced to a term of imprisonment and a period of
special parole. As we explained in that case, contrary
to the defendant’s contention in the present case, this
court did not decide the issue of statutory interpretation
presented by this appeal in State v. Victor O., supra,
301 Conn. 193. State v. Victor O., supra, 320 Conn.
247. As we further explained, application of established
tools of statutory interpretation to § 53a-70 (b) (3) com-
pels the conclusion that that provision does not man-
date that persons convicted of first degree sexual
assault be sentenced to a period of imprisonment and
special parole; rather, it provides that, if the sentencing
court elects to impose such a sentence, then the total
combined period of imprisonment and special parole
must add up to at least ten years.4 Id., 258.
The trial court’s partial granting of the defendant’s
motion to correct an illegal sentence and its resentenc-
ing of the defendant are reversed and the case is
remanded with direction to deny the defendant’s
motion.
In this opinion the other justices concurred.
* In accordance with the policy of protecting the privacy interests of
victims of sexual assault, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
The defendant appealed to the Appellate Court from the trial court’s
decision with respect to the defendant’s motion to correct an allegedly
illegal sentence and with respect to resentencing, and we transferred the
appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1.
2
Hereinafter, all references to § 53a-70 are to the 2005 revision unless
otherwise noted.
3
The 2002 version of § 53a-70 (b) (3) is identical to the 2005 revision of
that statute, the latter of which is applicable to the defendant in the present
case based on the date on which he committed the conduct that led to his
conviction of first degree sexual assault.
4
In light of our conclusion that the trial court was not required to resen-
tence the defendant to a term of imprisonment and a period of special
parole, it is unnecessary for us to address the defendant’s claim that the
trial court should have deducted the period of special parole from his original
total effective sentence in order to avoid an unlawful expansion of his
original sentence.