State v. Lee , 325 Conn. 339 ( 2017 )

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STATE OF CONNECTICUT v. DAVID E. LEE
(SC 19688)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and
Vertefeuille, Js.
Submitted on briefs April 4—officially released April 25, 2017
Bradf. M. Buchta, assistant public defender, filed
a brief for the appellant (defendant).
Sarah Hanna, assistant state’s attorney, Matthew C.
Gedansky, state’s attorney, and Charles W. Johnson,
assistant state’s attorney, filed a brief for the appel-
lee (state).
Opinion
PER CURIAM. The sole issue in this certified appeal
is whether, in light of this court’s decision in State v.
Wright, 320 Conn. 781, 135 A.3d 1 (2016), the proper
remedy for the defendant’s conviction of two counts
of conspiracy arising from the same unlawful agreement
is vacatur.1 The defendant, David E. Lee, was convicted
of, inter alia, conspiracy to make a false statement in
the second degree in violation of General Statutes
§§ 53a-157b (a) and 53a-48 (a), and conspiracy to fabri-
cate physical evidence in violation of General Statutes
§§ 53a-155 (a) (2) and 53a-48 (a), arising from a single
unlawful agreement.2 The Appellate Court held that the
defendant’s conviction of both conspiracy counts on
the basis of a single unlawful agreement violated the
constitutional prohibition against double jeopardy3 and,
relying on this court’s decision in State v. Chicano, 216
Conn. 699, 724–25, 584 A.2d 425 (1990), cert. denied,
501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991),
remanded the case to the trial court with direction to
merge the conspiracy to make a false statement in the
second degree conviction into the conspiracy to fabri-
cate physical evidence conviction, to vacate the sen-
tence on the conviction of conspiracy to make a false
statement in the second degree, and to resentence the
defendant. State v. Lee, 138 Conn. App. 420, 450, 454,
52 A.3d 736 (2012). While the defendant’s petition for
certification to appeal was pending before this court,
we held in State v. Wright, supra, 828–30, that the proper
remedy when a defendant is convicted of two counts
of conspiracy arising from the same unlawful agreement
in violation of double jeopardy is vacatur rather than
merger. Both the defendant and the state now claim
that pursuant to Wright, the defendant is entitled to
have his conspiracy to make a false statement in the
second degree conviction vacated. We agree.
A detailed recitation of the facts is found in the Appel-
late Court’s decision; see State v. Lee, supra, 138 Conn.
App. 424–25; and is not necessary for the resolution of
the present appeal. The defendant was charged in two
separate informations for offenses related to a motor
vehicle accident and to the creation of a false affidavit
to avoid prosecution for the charges arising from the
motor vehicle accident, including two conspiracy
counts. He was tried before a jury on the motor vehicle
and the false affidavit cases in a consolidated trial. After
the state withdrew a charge of conspiracy to commit
forgery in the third degree, the jury found him guilty
of all remaining counts in both cases, including the two
conspiracy counts at issue here.4 Subsequently, the trial
court sentenced the defendant to a total effective sen-
tence of eight years and thirty days of incarceration,
execution suspended after three years and ten months,
followed by three years of probation.
The defendant appealed to the Appellate Court claim-
ing that his convictions of conspiracy to make a false
statement in the second degree and conspiracy to fabri-
cate physical evidence arising from the same unlawful
agreement violated the constitutional prohibition on
double jeopardy.5 Id., 447–50. In his initial brief to the
Appellate Court, the defendant sought merger of the
two convictions as a remedy, pursuant to State v. Chi-
cano, supra, 216 Conn. 724–25. State v. Lee, supra, 138
Conn. App. 447. The state agreed both with his claim
of a violation of double jeopardy and his suggested
remedy. Id. In his reply brief, however, the defendant
claimed that pursuant to Rutledge v. United States, 517
U.S. 292, 307, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996),
the proper remedy was to vacate his conspiracy to make
a false statement in the second degree conviction, the
less serious offense, and to remand his case to the trial
court for resentencing. State v. Lee, supra, 447–48. The
Appellate Court held that it was bound by Chicano to
merge rather than to vacate the two conspiracy convic-
tions. Id., 448. Accordingly, the Appellate Court
reversed in part the judgment of the trial court in the
false affidavit case and remanded the case to the trial
court with direction to merge the defendant’s convic-
tion of conspiracy to make a false statement in the
second degree into his conviction of conspiracy to fabri-
cate physical evidence, to vacate the sentence on his
conviction of conspiracy to make a false statement in
the second degree, and to resentence the defendant on
the conspiracy to fabricate physical evidence convic-
tion. Id., 450. This appeal followed.
While the defendant’s petition for certification to
appeal from the Appellate Court’s judgment was pend-
ing before this court, we first decided State v. Polanco,
308 Conn. 242, 61 A.3d 1084 (2013), and then decided
State v. Wright, supra, 320 Conn. 781. In Polanco, we
held that vacatur was the proper remedy for a violation
of double jeopardy arising from the conviction and sen-
tencing of greater and lesser included offenses. State
v. Polanco, supra, 248–49. In Wright, we extended the
vacatur remedy identified in Polanco to instances where
there is a violation of double jeopardy arising from
convictions of multiple counts of conspiracy based
upon a single unlawful agreement. State v. Wright,
supra, 828–30.
In the present case, at the time that the Appellate
Court decided the defendant’s appeal, Chicano was
binding authority on that court and mandated merger
as the remedy for a double jeopardy violation arising
from consecutive convictions. Thus, the Appellate
Court properly applied that binding precedent and
remanded the defendant’s case to the trial court with
direction to merge the two conspiracy convictions. In
light of our subsequent decisions in Polanco and Wright,
however, the defendant is entitled to have his convic-
tion of conspiracy to make a false statement in the
second degree vacated.
The judgment of the Appellate Court is reversed in
part, and the case is remanded to that court with direc-
tion to reverse, in part, the judgment of the trial court,
and to remand the case to that court with direction
to vacate the defendant’s conviction and sentence for
conspiracy to make a false statement in the second
degree and then to resentence the defendant on his
remaining convictions under the aggregate package the-
ory of sentencing.6
1
This court granted the defendant’s petition for certification to appeal
on the following question: ‘‘In light of our decision in State v. Wright, [supra,
320 Conn. 781], did the Appellate Court correctly determine that the proper
remand to the trial court was a merger of the conspiracy counts, instead
of a vacatur of one of the two conspiracy counts?’’ State v. Lee, 321 Conn.
911, 136 A.3d 644 (2016). Because this court had not yet decided Wright
and the binding authority at the time of the Appellate Court’s decision
required merger rather than vacatur, the issue before this court, more prop-
erly rephrased, is whether, in light of this court’s decision in State v. Wright,
supra, 781, the proper remedy for the defendant’s conviction of two counts
of conspiracy arising from the same unlawful agreement is vacatur. See
State v. Ouellette, 295 Conn. 173, 184, 989 A.2d 1048 (2010) (court may
reframe certified question to more accurately reflect issue).
2
The defendant was also convicted of multiple other counts, including
some related to the operation of a motor vehicle, which are not the subject
of this appeal. See also footnote 4 of this opinion.
3
‘‘The double jeopardy clause of the fifth amendment to the United States
constitution provides: [N]or shall any person be subject for the same offense
to be twice put in jeopardy of life or limb . . . . This constitutional provision
is applicable to the states through the due process clause of the fourteenth
amendment.’’ (Internal quotation marks omitted.) State v. Padua, 273 Conn.
138, 172 n.39, 869 A.2d 192 (2005).
4
The defendant then pleaded nolo contendere under a part B information
to a charge of being a persistent offender with respect to operating a motor
vehicle while under the influence.
5
The defendant also raised multiple other challenges to his convictions
that were rejected by the Appellate Court and are not the subject of this
certified appeal.
6
State v. Wade, 297 Conn. 262, 268–70, 998 A.2d 1114 (2010) (trial court
must fashion new sentence on remaining counts to implement its original
sentencing intent).