State v. P ( 2017 )

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STATE OF CONNECTICUT v. HIRAL PATEL
(SC 160420)
The petition of the defendant, filed March 23, 2017,
for review of the trial court order revoking bail pending
sentencing, having been presented to the court, it is
hereby ordered granted but the relief requested is
denied.
November 14, 2017
PER CURIAM. Article first, § 8, of the Connecticut
constitution provides that ‘‘[i]n all criminal prosecu-
tions, the accused shall have a right . . . to be released
on bail upon sufficient security, except in capital
offenses, where the proof is evident or the presumption
great . . . .’’ The principal issue before this court is
whether the constitutional right to bail is extinguished
when a defendant has been found guilty of a criminal
offense or whether it continues until the defendant has
been sentenced for that offense.
The defendant, Hiral Patel, was released pretrial on
a $1 million bond, which the court increased to $1.5
million following the jury’s verdict finding him guilty
of murder in violation of General Statutes § 53a-54a,
and other offenses, pending sentencing. Six weeks later,
pursuant to the state’s request, the court revoked the
defendant’s bail, solely on the ground that it lacked
authority to release him under General Statutes § 54-
63f.1 The defendant now seeks review of that order.2
He contends that our state constitution affords him a
right to bail until sentence is imposed, and, accordingly,
to the extent that § 54-63f bars the release of persons
who have been convicted of homicide offenses pending
sentencing, it is unconstitutional. In light of the signifi-
cance of the issue and the constraints of page limita-
tions for petitions for review; see Practice Book § 66-
2 (b); we asked the parties to file supplemental briefs
elaborating upon this issue, as well as a potential juris-
dictional obstacle to review. We conclude that we have
jurisdiction over the petition and grant review but con-
clude that the right to bail under article first, § 8, of the
Connecticut constitution is extinguished upon convic-
tion, i.e., a finding of guilt, accepted by the court.
I
We begin with the state’s contention that there are
two jurisdictional impediments to our review of the
merits of the petition. First, the state contends that
General Statutes § 54-63g and Practice Book § 78a-1,
which the defendant has invoked as the basis for this
court’s jurisdiction, do not apply to postconviction bail
orders. Section 54-63g provides in relevant part: ‘‘Any
accused person or the state, aggrieved by an order of
the Superior Court concerning release, may petition the
Appellate Court for review of such order. . . .’’ Practice
Book § 78a-1 provides nearly identical language. The
state contends that neither provision applies because,
following the jury’s verdict, the defendant is no longer
‘‘accused’’ but, instead, is ‘‘convicted.’’ We disagree.
Although ‘‘accused’’ is a term historically and most
commonly understood to mean a person charged with
a crime; see, e.g., The Random House Dictionary of
the English Language (1966); Webster’s New Twentieth
Century Dictionary (1964); it also has occasionally been
given a more generic meaning, simply referring to a
criminal defendant. See, e.g., Black’s Law Dictionary
(4th Ed. 1968) (‘‘‘[a]ccused’ is the generic name for the
defendant in a criminal case, and is more appropriate
than either ‘prisoner’ or ‘defendant’ ’’); The American
Heritage Dictionary of the English Language (1969)
(defining ‘‘accused’’ as ‘‘[t]he generic term for the defen-
dant or defendants in a criminal case’’).3 The legislature
has, on other occasions, used the term in its broader
sense by prescribing postconviction rights and proce-
dures for an ‘‘accused’’; see, e.g., General Statutes §§ 54-
96 and 54-151; including in the context of posting of
bond to secure release pending appeal. See, e.g., Gen-
eral Statutes § 53-305. This court likewise has used the
term in accordance with its broader meaning. See, e.g.,
Consiglio v. Warden, 153 Conn. 673, 676, 220 A.2d 269
(1966) (referring to right of ‘‘counsel for the accused’’
to point out facts and circumstances bearing on ‘‘the
extent of the punishment to be imposed’’ at sentencing
phase); State v. Palko, 122 Conn. 529, 533, 535, 537–38,
191 A. 320 (discussing arguments raised on appeal by
‘‘the accused’’), aff’d, 302 U.S. 319, 58 S. Ct. 149, 82 L.
Ed. 288 (1937).
We are persuaded that this broader meaning was
intended in § 54-63g and the corresponding rule of prac-
tice. The text and history of the 1967 public act enacting
§ 54-63g suggest that ‘‘accused’’ and like terms were
used in the public act simply to distinguish formally
charged persons for whom release decisions continued
to rest with the court from ‘‘arrested’’ persons for whom
the newly created bail commission determined appro-
priate conditions of release.4 See Public Acts 1967, No.
549 (P.A. 549) (‘‘An Act Concerning Bail Procedures for
Arrested Persons’’); P.A. 549, § 1 (providing definition
for ‘‘ ‘arrested person’ ’’ and ‘‘ ‘bail commissioner,’ ’’ but
not ‘‘accused’’); see also State v. McCahill, 261 Conn.
492, 507, 811 A.2d 667 (2002) (providing legislative his-
tory of P.A. 549). In State v. McCahill, supra, 510, this
court reviewed an order relating to postconviction
release under § 54-63g.5 The official commentary to the
rule of practice, which incorporated the statutory lan-
guage in 2006, sanctions the procedure in that case. See
W. Horton & K. Bartschi, Connecticut Practice Series:
Connecticut Rules of Appellate Procedure (2009 Ed.)
§ 78a-1, p. 291. Finally, we observe that application of
the more narrow meaning of ‘‘accused’’ either would
result in disparate rights of review as between a defen-
dant and the state, as no limiting language applies to
the state, or, if deemed to similarly limit rights, would
deprive the state of a mechanism to challenge a trial
court’s postconviction order releasing a defendant. By
according ‘‘accused’’ its more generic meaning, we
avoid both untenable results. Therefore, the defendant
properly sought review under § 54-63g and Practice
Book § 78a-1.
The second potential jurisdictional hurdle arises from
the fact that the trial court imposed sentence on the
defendant while the present petition was pending
before this court and the requested supplemental briefs
had not yet been filed. Such an intervening act generally
would render the petition moot, as we no longer can
afford the defendant practical relief on the constitu-
tional claim that he has advanced. See State v. McEl-
veen, 261 Conn. 198, 204–205, 802 A.2d 74 (2002)
(explaining necessity of practical relief to avoid moot-
ness). Nonetheless, we are persuaded that the petition
falls within the ‘‘ ‘capable of repetition, yet evading
review’ ’’ exception to the mootness doctrine; see Loisel
v. Rowe, 233 Conn. 370, 382–83, 660 A.2d 323 (1995);
that permits us to retain jurisdiction. Cf. State v. Wassil-
lie, 606 P.2d 1279, 1280 (Alaska 1980) (applying same
exception under similar circumstances); Kraft v. State,
156 So. 3d 1116, 1117 (Fla. App. 2015) (same); Saunders
v. Hornecker, 344 P.3d 771, 775 (Wyo. 2015) (applying
same exception to different constitutional challenge to
bail order).
The purported denial of the constitutional right to
bail pending sentencing for persons convicted of certain
violent offenses satisfies each of the three conditions
required to invoke this exception. See Loisel v. Rowe,
supra, 233 Conn. 382 (prescribing three conditions).
Given the specific class of offenders to which such a
purported right could apply and the infringement of
liberty should such a right be denied, it is self-evident
that the second and third conditions have been met.
See id. (‘‘Second, there must be a reasonable likelihood
that the question presented in the pending case will
arise again in the future, and that it will affect . . . a
reasonably identifiable group for whom [the defendant]
can be said to act as surrogate. Third, the question must
have some public importance.’’). The state does not
contend otherwise.
Insofar as the state argues that the first condition of
this exception has not been met—that ‘‘the challenged
action, or the effect of the challenged action, by its very
nature [is] of a limited duration so that there is a strong
likelihood that the substantial majority of cases raising
a question about its validity will become moot before
appellate litigation can be concluded’’; id.;—we dis-
agree. By the state’s own calculations, the current aver-
age period between conviction and sentencing is two
to three months. Up to twenty days of this period may
lapse between the trial court’s order and the state’s
filing of an opposition to a petition for review; see
Practice Book §§ 66-6 and 78a-1; leaving approximately
forty to seventy days before sentencing typically would
render the petition moot. Cf. Goodson v. State, 228
Conn. 106, 116, 635 A.2d 285 (1993) (‘‘collective bar-
gaining agreements, generally having a two to three
year lifespan, are likely to expire before a midterm
dispute can be fully litigated’’).
The state contends, however, that if we conclude that
review of postconviction orders is available under the
statute and rule of practice previously discussed, then
the expedited review available under those provisions
will avoid mootness in most cases. See General Statutes
§ 54-63g (‘‘[a]ny such petition shall have precedence
over any other matter before said Appellate Court and
any hearing shall be heard expeditiously’’); Practice
Book § 78a-1 (imposing similar requirements). Again,
we disagree.
Although we have indicated that availability of expe-
dited review can be ‘‘a significant factor’’ in assessing
whether an issue is so time limited as to render most
such cases raising that issue moot before they can be
resolved; In re Emma F., 315 Conn. 414, 427, 107 A.3d
947 (2015); we have not held that such a procedure
would be per se dispositive. See id. (concluding that
expedited review was significant factor when trial
court’s order contained no durational constraint and
action mooting appeal arose solely because trial court
took unusual action of vacating order being chal-
lenged). Expedited review undoubtedly would prevent
typical bail decisions from being rendered moot. How-
ever, there is a strong likelihood that a petition raising
the more complex and far-reaching constitutional issue
that is presently before us would not be resolved to its
ultimate conclusion before sentence is imposed in its
ordinary course. Cf. State v. McCahill, supra, 261 Conn.
493, 497–98 (appeal of trial court’s August 9, 2001 bail
decision, transferred from Appellate Court to Supreme
Court to be considered with victim’s writ of error,
decided on August 20, 2002); State v. Ayala, 222 Conn.
331, 332, 336–37, 610 A.2d 1162 (1992) (trial court’s June
20, 1991 bail revocation decision denied by Appellate
Court on September 5, 1991, and reversed by this court
on June 9, 1992); State v. Shelton, 166 Conn. 677, 319
A.2d 110 (1974) (trial court’s March 18, 1974 order dis-
missed on April 24, 1974); State v. Dellacamera, 110
Conn. App. 653, 656–57, 955 A.2d 613 (2008) (resolution
of trial court’s July 12, 2007 ruling on October 24, 2007).
As one federal court noted, ‘‘[b]ecause of the short
period between conviction and sentencing, most of the
postconviction cases on bail have arisen under the stat-
utory section dealing with detention on appeal . . . .’’6
United States v. Strong, 775 F.2d 504, 508 (3d Cir. 1985).
Therefore, we have jurisdiction to consider the merits
of the petition for review.
II
The defendant contends that the constitutional right
to bail under article first, § 8, of the Connecticut consti-
tution extends beyond a determination of guilt to sen-
tencing. He advances alternative arguments based on
the 1965 amendment to article first, which excised the
phrase ‘‘before conviction’’ from the provision for the
right to bail that had existed since 1818. See Conn.
Const. (1818), art. 1, § 9. His principal argument, relying
on the conventional meaning of conviction, is that the
constitution of 1965 expanded the right to bail to include
the postverdict, presentence period. His fallback posi-
tion, relying on an alternative meaning of conviction,
is that the right to bail has always encompassed this
period. We are persuaded that the weight of authority
does not support either argument.
Although this court has referred to the constitutional
right to bail under article first, § 8, in a manner sug-
gesting that it is a pretrial right; see, e.g., State v. Ayala,
supra, 222 Conn. 343 (citing ‘‘constitutional right to
bail pending trial’’); id., 359–60 (Berdon, J., dissenting)
(‘‘[t]he framers of our state constitution placed a high
priority on the right to be free pending a determination
of guilt’’); we have never undertaken the necessary tex-
tual and historical examination to reach an informed
conclusion.7 See State v. Barton, 219 Conn. 529, 538–40,
594 A.2d 917(1991) (declining to rely on earlier decision
that failed to engage in historical analysis); see also id.,
538 n.4. Therefore, we now undertake such an examina-
tion, informed by settled factors that guide this process.
See State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225
(1992) (deeming following factors relevant to construc-
tion of our state constitution: [1] text of operative con-
stitutional provision; [2] holdings and dicta of this court
and Appellate Court; [3] persuasive and relevant federal
precedent; [4] persuasive sister state decisions; [5] his-
tory of operative constitutional provision, including his-
torical constitutional setting and debates of framers;
and [6] contemporary economic and sociological con-
siderations, including relevant public policies).
Article first, § 8, of our state constitution prescribes
various rights a defendant is to be afforded in criminal
proceedings. As we previously indicated, it provides in
relevant part as to the right at issue in the present case:
‘‘In all criminal prosecutions, the accused shall have a
right . . . to be released on bail upon sufficient secu-
rity, except in capital offenses, where the proof is evi-
dent or the presumption great . . . .’’ Conn. Const., art.
1, § 8. The provision in its current form was adopted
in 1965.
Nothing in the text of this provision necessarily limits
the right to bail to exclude the period between a verdict
or plea of guilt and sentencing. The term ‘‘criminal pros-
ecutions’’ can include the sentencing phase of the pro-
ceedings. See Black’s Law Dictionary, supra (defining
criminal prosecution as ‘‘[a]n action or proceeding insti-
tuted in a proper court on behalf of the public, for the
purpose of securing the conviction and punishment of
one accused of crime’’); see also Conn. Const., art. 1,
§ 8, as amended by articles seventeen and nineteen of
the amendments (providing rights to victims ‘‘[i]n all
criminal prosecutions,’’ including right to make state-
ment at sentencing); Betterman v. Montana, U.S.
, 136 S. Ct. 1609, 1617, 194 L. Ed. 2d 723 (2016)
(noting that ‘‘[t]he course of a criminal prosecution is
composed of discrete segments,’’ and referring to one
such segment as that between conviction and sentenc-
ing). The term ‘‘accused,’’ as we explained in part I of
this opinion, is not always limited to persons charged
with, but not yet found guilty of, a criminal offense.
See id., 1614, 1615 n.4 (applying meaning of term as
understood by founders as person charged with crime,
in light of other factors supporting that meaning in
context of speedy ‘‘trial’’ right, but recognizing that term
may have different meaning in context of other rights
afforded under sixth amendment). A broader meaning
of the term must apply in connection with some of the
rights prescribed in article first, § 8, as they have been
recognized to extend to sentencing. See, e.g., State v.
Colon, 272 Conn. 106, 322–24, 864 A.2d 666 (2004)
(examining ‘‘right to be heard’’ in sentencing phase as
right to counsel), cert. denied, 546 U.S. 848, 126 S. Ct.
102, 163 L. Ed. 2d 116 (2005); State v. Wall, 40 Conn.
App. 643, 659, 673 A.2d 530 (examining right to speedy
trial in sentencing), cert. denied, 237 Conn. 924, 677
A.2d 950 (1996).8 Nonetheless, it is clear that not all of
the rights provided under article first, § 8, extend that
far, as others are clearly pretrial rights, i.e., the right to
be informed of the nature and cause of the accusation.
As this court previously has noted, ‘‘[t]o comprehend
the true import of the right to bail under our constitu-
tion, it is helpful to consider the historical record of
the period before and at the time of the adoption of
the provision. See State v. Barton, 219 Conn. 529, 538–39
n.4, 541 n.8, 594 A.2d 917 (1991); State v. Lamme, 216
Conn. 172, 178–81, 579 A.2d 484 (1990).’’ State v. Ayala,
supra, 222 Conn. 349.
To fairly address the question of the temporal scope
of the constitutional right to bail, we trace this right
back to its preconstitutional origin. From 1672 until the
adoption of our first written constitution in 1818, there
existed a statutory right to release, secured by bail or
otherwise, until the defendant was sentenced. See id.,
350 (citing 1672 legislative enactment, and substantially
similar subsequent enactments, ‘‘declaring that ‘no
mans person shall be Restrained or Imprisoned by any
Authority whatsoever, before the Law hath sentenced
him thereunto if he can put in sufficient security, bayl
or mainprize for his appearance and good behaviour
in the mean time, unless it be in Crimes Capital, and
Contempt in open Court, or in such cases where some
express Law doth allow it’ ’’ [emphasis altered]). A
nearly identical provision was incorporated in the 1750
and 1808 revisions of Connecticut’s declaration of
rights. See Public Statute Laws of the State of Connecti-
cut (1808), tit. I, § 4, ann. (7), p. 24.
The provision of such rights must be treated as signifi-
cant given this court’s previous acknowledgement ‘‘that
‘[t]he constitution adopted in 1818 did not create a
government but gave to that which had already been
established the sanction of the people and, in very gen-
eral language, formulated its framework.’ Dowe v. Egan,
133 Conn. 112, 119, 48 A.2d 735 (1946); see also C.
Collier, [‘‘The Connecticut Declaration of Rights Before
the Constitution of 1818: A Victim of Revolutionary
Redefinition,’’ 15 Conn. L. Rev. 87, 96 (1982)] (‘the sub-
stance of the ancient statutory and common law protec-
tions continued unchanged’ following the adoption of
the Bill of Rights in 1818).’’ State v. Ayala, supra, 222
Conn. 351.
In light of this presumption, it is important to point
out that, despite such laws, the court initially appeared
to equate the right to bail with the period preceding a
determination of guilt. See Dickinson v. Kingsbury, 2
Day (Conn.) 1, 6 (1805) (‘‘The personal liberty of the
subject is to be favored, as far as is practicable and
safe, until conviction. Bail for his appearance at the
court, in which his guilt or innocence is to be tried, is,
at once, the mode of favoring that liberty, and securing
the appearance for trial.’’); see also State v. Beach, 2
Kirby (Conn.) 20, 21 (Super. 1786) (‘‘[t]here had been
some doubts with the [c]ourt formerly whether the
[c]ourt had right to bail after conviction and before
judgement—but it was now settled—and the [c]ourt
admitted bail to be taken’’). This equivalency finds some
support in a statute that existed concurrently with the
bail provision in the 1808 revision of the declaration of
rights, which indicated that bail was a pretrial right.
See Public Statute Laws of the State of Connecticut
(1808), tit. XVI, ch. II, § 1, p. 69 (‘‘all prisoners detained
in jail for trial, for an offense not capital, shall be entitled
to bail’’).
There also may be a practical explanation for such
an equivalency. There is some evidence suggesting that
it was common during this period for there to be no
or little delay between the verdict or the plea and sen-
tencing.9 See 2 Z. Swift, A System of the Laws of the
State of Connecticut (1796) p. 403 (‘‘[i]f the verdict is
‘guilty,’ he is then said to be convicted of the crime
wherof he stands indicted or informed against, and the
court are to pronounce the judgment of the law’’); see
also 1 J. Chitty, A Practical Treatise on the Criminal
Law (1819) p. 570 (‘‘[t]he sentence . . . is usually given
immediately after the conviction, but the court may
adjourn to another day and then give judgment’’ [foot-
note omitted]). It must be remembered that, during the
preconstitutional period, no presentence investigation
was conducted; see footnote 9 of this opinion; specific
penalties were prescribed for many offenses under our
earliest penal laws; see generally L. Gibbon, ‘‘The Crimi-
nal Codes of Connecticut,’’ 6 J. Crim. L. & Criminology
177 (May, 1915 to March, 1916); see also N. Gertner,
‘‘A Short History of American Sentencing: Too Little
Law, Too Much Law, or Just Right,’’ 100 J. Crim. L. &
Criminology 691, 694 (2010); and bail was also ordered
in civil cases, as private prosecutions were not uncom-
mon. See Public Statute Laws of the State of Connecti-
cut (1808) tit. XVI, ch. I (‘‘An Act concerning Bail, in
civil and criminal Cases’’).
The 1818 constitution must be viewed in light of this
ambiguous history as to the significance of the period
between the verdict (or the plea) and sentencing. The
1818 constitutional provision for the right to bail no
longer referred expressly to sentencing. Instead, it pro-
vides in relevant part: ‘‘All prisoners shall, before convic-
tion, be bailable, by sufficient sureties, except for
capital offences, where the proof is evident, or the pre-
sumption great . . . .’’ (Emphasis added.) Conn. Const.
(1818), art. I, § 14.
Authorities of the period preceding and following the
adoption of the 1818 constitution recognized that the
predominant meaning of ‘‘conviction’’ is the finding of
the defendant’s guilt (whether by verdict or plea), with
the term’s secondary meaning including the pronounce-
ment of sentence. See Quintard v. Knoedler, 53 Conn.
485, 487, 2 A. 752 (1885) (citing definitions of conviction
from various treatises and law dictionaries, as well as
case law from neighboring Commonwealth of Massa-
chusetts). Thus, this court has recognized that ‘‘[i]n a
large majority of instances where it is used, [conviction]
manifestly refers to a finding of the party guilty by
verdict or plea of guilty, and not to a sentence in addi-
tion.’’ Id., 488. In reliance on this longstanding presump-
tive meaning, in the period following 1818, other courts
routinely concluded that the primary meaning of convic-
tion applied, unless there was clear evidence of intent
to apply the secondary meaning. See, e.g., Ex parte
Brown, 68 Cal. 176, 178–82, 8 P. 829 (1885); State v.
Barnes, 24 Fla. 153, 157–62, 4 So. 560 (1888); Hamilton
v. Auditor, 53 Ky. (14 B. Mon.) 230, 185–86 (1853); Blair
v. Commonwealth, 66 Va. (25 Gratt) 850, 852–59 (1874).
The historical record lacks persuasive evidence of
an intention to apply the secondary meaning, despite
the provision for bail until sentencing in the declaration
of rights. Penal statutes in effect before and after the
adoption of the 1818 constitution commonly distin-
guished between conviction and punishment. See Pub-
lic Statute Laws of the State of Connecticut (1808) tit.
LXVI, ch. 3, pp. 297–300; General Statutes (1821 Rev.)
tit. 22. Early case law similarly made such a distinction.
See State v. Beach, supra, 2 Kirby (Conn.) 21. Indeed,
in an 1899 case, this court necessarily presumed that
the primary meaning applied when stating that ‘‘[t]he
power to admit to bail after conviction is not a statutory
but a common-law, power; the constitutional provision
does not apply . . . .’’ State v. Vaughan, 71 Conn. 457,
460, 42 A. 640 (1899). Thereafter, the court distinguished
‘‘conviction’’ from ‘‘sentence’’ and ‘‘judgment.’’ See id.
(The common-law power to grant bail ‘‘continues after
conviction and after judgment, so long as the prisoner
is in the custody of the court, but in most cases ceases
when he is taken in execution . . . . [W]hen the courts
exercise the common-law power, they may admit to
bail, after conviction and after sentence, and until the
accused is in execution.’’ [Citations omitted.]). Indeed,
a more recent Mississippi case similarly interpreted its
constitutional provision providing bail ‘‘before convic-
tion’’ to mean before the adjudication of guilt and not to
continue thereafter pending sentencing.10 See Frontier
Ins. Co. v. State, 741 So. 2d 1021, 1026 (Miss. App. 1999)
(constitutional guarantee of bail ‘‘ ‘before conviction’ ’’
evidences that conviction ‘‘itself marks the demarcation
line regarding bail and not conviction and sentencing’’).
It also is significant that the constitutional right to
bail has been deemed a correlative of the right to a
presumption of innocence.11 See State v. Menillo, 159
Conn. 264, 269, 268 A.2d 667 (1970) (‘‘[postconviction]
bail is entirely disassociated from the preconviction
presumption of innocence . . . and should be granted
with great caution’’); see also Ex parte Voll, 41 Cal. 29,
32 (1871) (‘‘We are of [the] opinion that the [c]onstitu-
tion, in declaring bail to be a matter of right, contem-
plated only those cases in which the guilt of the party
had not been already judicially ascertained; cases in
which the prisoner as yet stood upon his plea of not
guilty, supported with all the presumptions of inno-
cence with which the law delights to surround him. But
when his trial has been had, and his plea proven false,
the law will not stultify itself by presuming him other
than that it has itself adjudged him to be.’’); State v.
Flowers, 330 A.2d 146, 148 (Del. 1974) (‘‘Once a defen-
dant has been adjudicated guilty by judge or jury, the
reasons for granting bail—unhampered preparation of
defense and postponement of punishment until convic-
tion . . . vanish. They are swept away by the convic-
tion as surely as is the presumption of innocence.’’
[Citation omitted.]); cf. Stack v. Boyle, 342 U.S. 1, 4, 72
S. Ct. 1, 96 L. Ed. 3 (1951) (‘‘This traditional right to
freedom before conviction permits the unhampered
preparation of a defense, and serves to prevent the
infliction of punishment prior to conviction. . . .
Unless this right to bail before trial is preserved, the
presumption of innocence, secured only after centuries
of struggle, would lose its meaning.’’ [Citation omit-
ted.]); United States v. Madoff, 316 Fed. Appx. 58, 59
(2d Cir. 2009) (‘‘Post-conviction, a defendant no longer
has a substantive constitutional [due process] right to
bail pending sentencing. . . . As the district court
observed, the defendant is no longer entitled to the
presumption of innocence.’’ [Citations omitted; internal
quotation marks omitted.]); United States v. Abuhamra,
389 F.3d 309, 318–19 (2d Cir. 2004) (‘‘[O]nce a jury found
[the defendant] guilty beyond a reasonable doubt of
multiple felonies, his reasonable expectation of contin-
ued freedom from government detention was signifi-
cantly reduced from that of the average law-abiding
citizen, or that of a pre-trial defendant. In the pre-trial
context, a defendant’s liberty interest can implicate sub-
stantive as well as procedural rights, specifically, the
proscription against punitive detention before trial.
. . . But once a defendant is afforded the considerable
process and constitutional protections of a jury trial and
found guilty beyond a reasonable doubt, the substantive
interest in avoiding punitive detention essentially disap-
pears, and any continued expectation of liberty pending
formal sentencing depends largely on statute.’’ [Citation
omitted; footnote omitted.]). As these cases reflect,
once a defendant is properly found guilty of a crime,
whether by verdict or plea, that presumption vanishes.
At the same time, the incentive to flee appreciably
increases.
Therefore, we conclude that in the period preceding
1965, at which time the constitutional provision for bail
was amended, there was no constitutional right to bail
between conviction (whether by verdict or plea) and
sentence.
The question remains whether the 1965 amendment
expanded the temporal scope of this right. For the rea-
sons that follow, we conclude that it did not.
At the 1965 constitutional convention, a resolution
was proposed to amend article first of the Connecticut
constitution of 1818 by, among other things, eliminating
the separate provision for the right to bail in article
first, § 14, and to incorporate that right into the section
with the other rights then provided in article first, § 9
(what is now article first, § 8). See Conn. Constitutional
Convention Resolution No. 168 (July 28, 1965). The
record is scant regarding these changes. See W. Horton,
The Connecticut State Constitution: A Reference Guide
(1993) p. 52. The limited record, however, does reflect
that a proposed draft of what is now article first, § 8,
provided in relevant part: ‘‘In all criminal prosecutions,
the accused shall have a right . . . to be released on
bail, before conviction, upon sufficient security, except
in capital offenses, where bail may be provided at the
discretion of the court . . . .’’ Conn. Constitutional
Convention Resolution No. 168, supra, § 10, pp. 2–3.
The task of revising what is now article first, § 8, was
referred to a committee comprised of three judges,
including former Supreme Court Chief Justice Raymond
E. Baldwin. See Conn. Constitutional Convention, Con-
stitutional Committee Hearings, Resolutions and Rules
(September 27, 1965) pp. 3, 6. Chief Justice Baldwin
later moved to adopt a substitute resolution that elimi-
nated the phrase ‘‘before conviction,’’ and returned to
the original language relating to bail for capital offenses,
which motion the committee unanimously passed. See
id., p. 9 (September 30, 1965). With one exception
expressly noted, the changes to what is now article
first, § 8, were described for the record as nonsubstan-
tive. See Journal of the Constitutional Convention of
Connecticut (1965) p. 206 (‘‘In the revised [a]rticle
[f]irst, an accused in a criminal prosecution is given
the right ‘to be informed of’ the charge against him
[rather than having to ‘demand’ to know the charge];
otherwise he retains essentially the same rights as here-
tofore. Language is modernized and improved in a few
instances but without substantive changes.’’).
This history supports the conclusion that the consti-
tutional right to bail was not expanded in 1965.
Expanding the right to release following conviction
undoubtedly would have been properly characterized
as substantive. We can presume that the importance of
the proper characterization of the nature of the amend-
ment would not have escaped the attention of experi-
enced jurists.
In the absence of any explanation, we cannot be
certain why the ‘‘before conviction’’ language was not
carried forward, as its inclusion would make clearer
the temporal scope of the right. However, we note that
no other right in the prior § 9, now § 8, of article first,
had any similar temporal limitation. We presume that
the drafters determined that the presumptive meaning
of ‘‘accused,’’ in light of the association between the
right to bail and the presumption of innocence, would
establish the requisite limitation. Cf. Betterman v. Mon-
tana, supra, 136 S. Ct. 1614–15 (relying on these fac-
tors). We observe that courts in other jurisdictions with
constitutional provisions imposing no textual limitation
on the right to bail (except capital offenses) have con-
cluded that their constitutions do not afford a right to
bail after the defendant is deemed to be convicted of
a crime.12 See State v. Wassillie, supra, 606 P.2d 1282–83;
Ex parte Brown, supra, 68 Cal. 177; Ex parte Voll, supra,
41 Cal. 32; Romeo v. Downer, 69 Colo. 281, 282, 193 P.
559 (1920); State v. Flowers, supra, 330 A.2d 148–49;
Commonwealth v. Fowler, 451 Pa. 505, 509–10, 304 A.2d
124 (1973); Izadi v. State, Docket No. 63672, 2014 WL
2625539, *1 (Nev. June 11, 2014); Priest v. Pearce, 314
Or. 411, 420–23, 840 P.2d 65 (1992) (Fadeley, J., concur-
ring). Although we are aware of two jurisdictions that
had reached a contrary conclusion; see Ex parte
McDaniel, 86 Fla. 145, 149, 150, 97 So. 317 (1923) (right
to bail continues until conviction, which means adjudi-
cation of guilt and not simply verdict by jury); New
Orleans v. Lacoste, 169 La. 717, 718, 125 So. 865 (1930)
(‘‘[u]nder section 12, art. 1, of the Constitution of 1921,
all persons charged with crime are entitled to bail with
sufficient sureties, whether before or after conviction
and sentence, except in the two instances designated
in the constitutional provision referred to’’); both states’
constitutions were subsequently amended either to
make clear that this right does not continue until sen-
tencing or otherwise limit the scope of this right. See
Kraft v. State, supra, 156 So. 3d 1117–18 (‘‘there is no
constitutional ‘right to bail after a verdict of guilty has
been rendered’ ’’ but ‘‘a trial court has discretion to
consider releasing a defendant on bail following convic-
tion and pending sentencing’’); La. Const., art. I, § 18
(providing right to bail in period ‘‘[a]fter conviction and
before sentencing’’ only if maximum potential sentence
is five years or less).
Despite the weight of authority to the contrary, the
defendant relies on the fact that a conviction may be set
aside before sentencing. See State v. Vaughan, supra,
71 Conn. 458 (‘‘[a]fter a verdict of ‘guilty’ accepted by
the court, the judgment may still be in favor of the
accused, or, if against him, the sentence may be such
that the judgment for that reason is erroneous’’). The
defendant’s point only takes him so far. Should the trial
court grant such relief, a defendant would no longer
stand ‘‘convicted,’’ would be entitled to a presumption
of innocence anew, and would be constitutionally enti-
tled to bail. Conversely, should the trial court deny the
motion for a new trial or to set aside the verdict before
sentencing, a defendant would be identically situated
to the defendant when he filed his petition in the pre-
sent case.
The defendant also points to various statutes related
to bail procedures that he contends are consistent with
his interpretation of article first, § 8, as affording the
right to bail through sentencing.13 However, even if we
accept the defendant’s view of these provisions, they
would reflect a legislative understanding of the scope of
the constitutional right that is in tension with a different
legislative understanding of that right reflected in the
statute at issue in the present case, § 53-64f. This court
has recognized that there are circumstances under
which ‘‘[a] practical construction placed upon a consti-
tutional provision immediately after its adoption and
consistently and repeatedly followed . . . for over a
century thereafter is most persuasive.’’ Snyder v. New-
town, 147 Conn. 374, 386, 161 A.2d 770 (1960), appeal
dismissed, 365 U.S. 299, 81 S. Ct. 692, 5 L. Ed. 2d 688
(1961); Cahill v. Leopold, 141 Conn. 1, 14, 103 A.2d 818
(1954) (same); see also Board of Water Commissioners
v. Curtis, 87 Conn. 506, 510–11, 89 A. 189 (1913) (‘‘[I]f
there was a practical construction of the provision given
by the General Assemblies of the years immediately
following 1818, in the forms which their legislation
assumed, such contemporaneous construction would
also furnish substantial aid to interpretation. This would
be peculiarly so in the present instance, since during
those years a considerable number of the members
of the constitutional convention were members of the
General Assembly, and among them were not a few
who have held high place in public position and esteem
as lawyers and judges.’’). Those conditions are not met
with respect to the statutes cited by the defendant,
especially insofar as he places significant weight on an
amendment to one of those statutes adopted twenty-
seven years after the 1965 constitution was ratified.
The petition for review is granted but the relief
requested is denied.
1
General Statutes § 54-63f authorizes the release of an individual pending
sentence or appeal, but excludes persons who have been convicted of murder
in violation of General Statutes §§ 53a-54a, 53a-54b, 53a-54c or 53a-54d.
Following the verdict in the defendant’s case, the state did not argue that
the statute barred his release but instead asked the court to increase the
bond by $4 million pending sentencing. The court increased the defendant’s
bond only by $500,000, but imposed conditions on release.
2
The petition for review was filed in the Appellate Court pursuant to
General Statutes § 54-63g and Practice Book § 78a-1, and was thereafter
transferred to this court pursuant to Practice Book § 65-3.
3
We cite to dictionaries from the 1960s because, as we later explain, § 54-
63g was enacted during that period. Nonetheless, both meanings recited
continue to the present day.
4
The act amended a provision applicable to any person ‘‘charged with
the commission of a criminal offense,’’ a term similar to ‘‘accused,’’ making
it an offense for any such person released pending appearance in court to
wilfully fail to appear when legally called according to his promise to appear.
See Public Acts 1967, No. 549. There is no doubt that this penalty was
intended to apply to released persons failing to appear postconviction, pend-
ing sentencing. Cf. State v. Garvin, 242 Conn. 296, 298 n.1, 300–301, 699 A.2d
921 (1997) (addressing convictions for failure to appear pending sentencing
under General Statutes § 53a-172, which similarly applies to persons released
‘‘while charged with the commission of’’ felony).
5
In McCahill, this court concluded that § 54-63f violated separation of
powers insofar as it prevented the trial court’s exercise of its inherent
common-law discretionary authority to grant postconviction release with
regard to certain nonhomicide offenses, but opined in dicta: ‘‘[W]e discern
no interference with the Superior Court’s role when the legislature enacted
[No. 98-51 of the 1998 Public Acts], to prevent release for those who have
been convicted of some of the most serious crimes, because the term of
incarceration normally levied for such crimes would likely exceed the period
of time that it would take for resolution of the defendant’s appeal.’’ State
v. McCahill, supra, 261 Conn. 519. In the present petition, the defendant
does not argue that the statute violates separation of powers by interfering
with the trial court’s common-law discretion to release him on bail pend-
ing sentencing.
6
The federal constitution contains no counterpart to the right to bail
under article first, § 8, of the Connecticut constitution and that matter has
been controlled by statute since enactment of the Judiciary Act of 1789, 1
Stat. 73, 91. See Stack v. Boyle, 342 U.S. 1, 4, 72 S. Ct. 1, 96 L. Ed. 3 (1951).
Nonetheless, the federal courts also consider bail rights through the lens
of substantive due process. See, e.g., United States v. Madoff, 316 Fed.
Appx. 58, 59 (2d Cir. 2009); United States v. Abuhamra, 389 F.3d 309, 318–19
(2d Cir. 2004).
7
The parties argue about the persuasiveness of dicta in State v. Menillo,
159 Conn. 264, 268 A.2d 667 (1970). The state relies on the following language:
‘‘It must not be overlooked that we are concerned here only with preconvic-
tion bail. We are not at all concerned with postconviction bail and a stay
of execution of sentence during the pendency of an appeal. Such bail is
entirely disassociated from the preconviction presumption of innocence, is
not authorized by any constitutional requirement but only under [General
Statutes (Rev. to 1968)] § 54-63f . . . .’’ Id., 269. The defendant points to
the following additional statement: ‘‘The fundamental purpose of bail is to
ensure the presence of an accused throughout all proceedings, including
final judgment.’’ Id.; see State v. Ayala, supra, 222 Conn. 339 (‘‘[i]n a criminal
proceeding, there is no final judgment until the imposition of a sentence’’).
We observe that these statements were made in connection with the question
of bail pending appeal, after sentence has been rendered, and in the absence
of constitutional analysis. Therefore, we do not view them as particularly
persuasive as to the matter presently before us.
8
We observe that State v. Wall, supra, 40 Conn. App. 643, appears to be
in tension with Betterman v. Montana, supra, 136 S. Ct. 1609. Nonetheless,
any such concern does not compel an interpretation of ‘‘accused’’ in article
first, § 8, as limited to persons charged but not found guilty.
9
Until the late eighteenth century, new trials were granted exclusively
by the General Assembly. See Magill v. Lyman, 6 Conn. 59, 63 (1825); 1 Z.
Swift, A Digest of the Laws of the State of Connecticut (1822) p. 786. Even
thereafter, the settled practice until the early 1800s was to require a motion
for a new trial to be made to the court within forty-eight hours after the
verdict, and a motion to set aside the verdict to be made within twenty-
four hours after the verdict. See Stone v. Stevens, 12 Conn. 218, 231–32
(1837); see also State v. Macri, 7 Conn. Supp. 112, 113 (1939). Because
motions for a new trial on the ground that the verdict was against the
evidence were decided by this court, ‘‘[t]he motion for a new trial might be
allowed either before or after judgment. By our early practice it did not
suspend judgment, but judgment was first rendered and then the motion
allowed. Execution only was stayed.’’ State v. Vaughan, 71 Conn. 457, 459,
42 A. 640 (1899).
Presentence investigation reports, the primary cause of delay between a
determination of guilt and sentencing, were not mandated until 1955. See
General Statutes (Cum. Supp. 1955) § 3337d.
10
We observe that two other provisions in our constitution refer to ‘‘convic-
tion.’’ Article fourth, § 13, of the Connecticut constitution gives the governor
the ‘‘power to grant reprieves after conviction, in all cases except those of
impeachment, until the end of the next session of the general assembly,
and no longer.’’ Article ninth, § 4, of the Connecticut constitution provides
in relevant part that ‘‘[no] conviction of treason, or attainder, shall work
corruption of blood, or forfeiture.’’ We hesitate to construe these provisions
when neither is implicated in the present case, and the parties’ briefs do
not acknowledge these provisions, let alone examine their meaning in light
of the historical record to determine whether the primary or second meaning
of conviction applies. We admit the possibility that conviction has a different
meaning in each of these provisions, as the former operates to stay execution
of a sentence; see Palka v. Walker, 124 Conn. 121, 125, 198 A. 265 (1938);
whereas the latter could apply to punishments imposed by the court in the
penalty phase of a criminal prosecution as well as punishments that arise
by operation of law as a consequence of a conviction.
11
We acknowledge that defendants charged with capital offenses are simi-
larly entitled to a presumption of innocence; see Herrera v. Collins, 506
U.S. 390, 399, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993); and yet pretrial release
on bail is constitutionally barred for such offenders when there is proof of
guilt well below the beyond a reasonable doubt burden necessary to over-
come that presumption. See State v. Menillo, 159 Conn. 264, 270, 268 A.2d
667 (1970) (approving of constitutional standard for decision not to grant
bail in capital case prior to conviction ‘‘when the circumstances disclosed
indicate a fair likelihood that the defendant is in danger of a jury verdict
[of guilt of the capital offense]’’). The fact that the right to bail is not
wholly correlative of this presumption does not negate the strong correlation
between these rights generally.
12
Several of the cases cited by the state for this proposition do not neces-
sarily support it, and these cases demonstrate the ambiguity in the term
‘‘postconviction’’ or ‘‘after conviction.’’ The court in each of these cases
held that its state constitution does not afford a right to bail after conviction,
but cited that proposition in connection with the question of bail postsen-
tencing, pending appeal. See Jones v. Grimes, 219 Ga. 585, 586, 134 S.E.2d
790 (1964); Braden v. Lady, 276 S.W.2d 664, 666 (Ky. 1955); State v. Tucker,
57 N.D. 508, 222 N.W. 651 (1928); Kordelski v. Cook, 621 P.2d 1176, 1179
(Okla. 1980); State v. Smith, 84 Wash. 2d 498, 499, 527 P.2d 674 (1974) (en
banc). In light of the dual meanings for the term conviction and the context
of the issue raised, we cannot presume, as the state suggests, that the courts
in these cases necessarily used that term to mean the determination of guilt
and not the judgment of conviction.
13
In apparent order of importance, the defendant cites to General Statutes
§ 54-66a (‘‘[a]ny bail bond posted in any criminal proceeding in this state
shall be automatically terminated and released whenever the defendant . . .
is sentenced by the court and a stay of such sentence, if any, is lifted’’),
General Statutes § 54-53 (‘‘[e]ach person detained in a community correc-
tional center pursuant to the issuance of a bench warrant of arrest or for
arraignment, sentencing or trial for an offense not punishable by death shall
be entitled to bail and shall be released from such institution upon entering
into a recognizance, with sufficient surety, or upon posting cash bail as
provided in section 54-66, for the detained person’s appearance before the
court having cognizance of the offense, to be taken by any person designated
by the Commissioner of Correction at the institution where the person is
detained’’), and General Statutes § 54-53a (a) (‘‘[n]o person who has not
made bail may be detained in a community correctional center pursuant to
the issuance of a bench warrant of arrest or for arraignment, sentencing or
trial for an offense not punishable by death, for longer than forty-five days,
unless at the expiration of the forty-five days he is presented to the court
having cognizance of the offense’’). With respect to § 54-66a, the defendant
emphasizes the significance of a 1992 public act; Public Acts 1992, No.
92-139; that amended that statute to substitute the word ‘‘sentenced’’ for
‘‘convicted’’ and statements of support for that amendment from a represen-
tative of the Judicial Branch insofar as the prior revision of that statute
amended the previous year ‘‘could be interpreted as providing that no bond
would be in effect from the time of such finding of guilt, until the imposition
of sentence.’’ Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1,
1992 Sess., p. 251.