State v. McCleese ( 2019 )

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STATE OF CONNECTICUT v. WILLIAM MCCLEESE
(SC 20081)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
Pursuant to Miller v. Alabama (567 U.S. 460) and State v. Riley (315 Conn.
637), the prohibition against cruel and usual punishments in the federal
constitution precludes a court from sentencing a juvenile offender to
life imprisonment, or its functional equivalent, without the possibility
of parole, unless the juvenile offender’s age and the hallmarks of adoles-
cence have been considered as mitigating factors in the sentencing deter-
mination.
Pursuant further to recent legislation (P.A. 15-84, § 1), a person convicted
of a crime or crimes committed while such person was under eighteen
years of age who received a total effective sentence of more than ten
years prior to or after the effective date of the act becomes eligible for
parole after serving 60 percent of his or her sentence, or in the case of
sentences of more than fifty years imprisonment, after serving thirty
years.
The defendant, who had been convicted of the crimes of murder, conspiracy
to commit murder, and assault in the first degree, appealed from the
trial court’s dismissal of his motion to correct an illegal sentence. The
defendant was seventeen years old when he committed the crimes and
was sentenced to eighty-five years imprisonment without eligibility for
parole. The sentencing court made no express reference to the defen-
dant’s youth and the hallmarks of adolescence as mitigating factors
when it sentenced him. After the defendant was sentenced, Miller and
Riley were decided, and P.A. 15-84 was enacted. The defendant claimed
before the court deciding his motion to correct that, under the federal
and state constitutions, his sentence was imposed in an illegal manner
because the sentencing court made no express reference to his youth
and the hallmarks of adolescence as mitigating factors. The defendant
also claimed that the retroactive parole eligibility that he was afforded
by P.A. 15-84 did not constitute a remedy for a Miller violation under the
Connecticut constitution, and, thus, he was entitled to be resentenced
in accordance with the dictates of Miller and Riley. The court ultimately
dismissed the defendant’s motion to correct as moot after the United
States Supreme Court determined in Montgomery v. Louisiana (136 S.
Ct. 718) that Miller applied retroactively but that, under the federal
constitution, a Miller violation could be remedied by extending eligibility
for parole to a juvenile offender, which remedy had already been
afforded to the defendant by virtue of the passage of P.A. 15-84. On
appeal, the defendant claimed that the parole eligibility afforded by
P.A. 15-84 did not remedy the Miller violation under the Connecticut
constitution, P.A. 15-84 is unconstitutional under the separation of pow-
ers doctrine embodied in article two of the state constitution and under
the due process clause of the fourteenth amendment to the federal
constitution, and P.A. 15-84 violates the defendant’s right to equal protec-
tion under the federal constitution. Held:
1. The trial court properly dismissed the defendant’s motion to correct an
illegal sentence for lack of subject matter jurisdiction on the basis of
mootness, as the parole eligibility afforded to the defendant under P.A.
15-84 was an adequate remedy for a Miller violation, and, accordingly,
the defendant could not prevail on his claim that he was entitled to be
resentenced under the state constitution: upon review of the factors set
forth in State v. Geisler (222 Conn. 672) for construing the scope and
parameters of the Connecticut constitution, this court declined to con-
clude that those factors compelled a state constitutional rule beyond
what the legislature required in P.A. 15-84, because, although federal
precedent requires special treatment of juveniles who are subject to
harsh punishments, that precedent hinged on the severity of those pun-
ishments, and this court could not dismiss the mitigating effect that the
parole eligibility afforded to juvenile offenders under P.A. 15-84 has in
this context, and the relevant text of the state constitutional provisions
at issue (art. I, §§ 8 and 9), the constitutional history, Connecticut and
sister state precedent, and public policy did not support any enhanced
protection under the state constitution; moreover, this court determined,
after considering, inter alia, the historical development of the punish-
ment of juvenile offenders in Connecticut, recent legislative enactments,
and the laws and practices of other jurisdictions, that the remedy of
parole eligibility for a Miller violation does not categorically offend
contemporary standards of decency, and this court, in the exercise of
its independent judgment, concluded that such a remedy comported
with the state constitution.
2. The defendant’s claims that P.A. 15-84 is unconstitutional under the separa-
tion of powers doctrine embodied in article two of the Connecticut
constitution and the due process clause of the fourteenth amendment
to the United States constitution were unavailing: the legislature did
not exceed its authority by affording the defendant parole eligibility
pursuant to P.A. 15-84, as the power of sentencing is shared by all three
branches of state government, the power to impose or modify a judgment
of conviction is not synonymous with the power of sentencing, and P.A.
15-84 did not alter the defendant’s judgment of conviction but, rather,
retroactively modified the state’s sentencing scheme, which falls within
the legislature’s power to prescribe and limit punishments for crimes
and does not encroach on the judiciary’s power to impose or modify a
sentence; moreover, P.A. 15-84 does not violate the separation of powers
doctrine by impermissibly delegating sentencing power to the Board of
Pardons and Paroles, as the board’s power at the parole stage is distinct
from the judiciary’s sentencing power; furthermore, although this court
determined that the defendant had inadequately briefed his claim that
P.A. 15-84 violates the due process clause of the fourteenth amendment,
it nevertheless concluded, on the basis of P.A. 15-84 as enacted, that
any Miller violation had been negated by virtue of the fact that the
defendant was afforded parole eligibility under that act.
3. The defendant could not prevail on his claim that P.A. 15-84 violates his
right to equal protection under the United States constitution on the
ground that juveniles convicted of capital felony are entitled to resen-
tencing under P.A. 15-84 whereas juveniles, such as the defendant, who
are convicted of murder, are not: even if this court assumed that each
group of juveniles that the defendant identifies are similarly situated,
the legislature had a rational basis for treating them differently, as the
manner in which mandatory sentences for capital felony and discretion-
ary sentences for murder are imposed is distinct and, thus, might have
warranted distinct remedies; moreover, the legislature reasonably could
have determined that, because only 4 juveniles were serving mandatory
life sentences for capital felony or arson murder, whereas approximately
270 juveniles were serving sentences of longer than ten years for other
crimes, resentencing was simply a more feasible task for a smaller group
in light of the judicial resources needed to conduct such proceedings,
and the legislature potentially could have distinguished between actual
life sentences for capital felony and those that are for the functional
equivalent of life, including for murder, and determined that the latter,
which offer the possibility of geriatric release, was worth granting to
even the most culpable offenders, particularly at an advanced age when
they would likely pose a much lesser threat to society but would cost
the state much more to care for.
(One justice concurring separately; one justice dissenting)
Argued October 15, 2018—officially released August 23, 2019*
Procedural History
Substitute information charging the defendant with
the crimes of murder, conspiracy to commit murder,
assault in the first degree and conspiracy to commit
assault in the first degree, brought to the Superior Court
in the judicial district of New Haven and tried to the
jury before Harper, J.; verdict and judgment of guilty
of murder, conspiracy to commit murder and assault
in the first degree, from which the defendant appealed
to the Appellate Court, Bishop, McLachlan and Dupont,
Js., which affirmed the trial court’s judgment; there-
after, the court, Clifford, J., dismissed the defendant’s
motion to correct an illegal sentence, and the defendant
appealed. Affirmed.
Adele V. Patterson, senior assistant public defender,
with whom was Beth A. Merkin, public defender, for
the appellant (defendant).
Melissa Patterson, deputy assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Matthew A. Weiner and Lisa M. D’Angelo,
assistant state’s attorneys, for the appellee (state).
Kim E. Rinehart filed a brief for the Connecticut
Psychiatric Society as amicus curiae.
Opinion
D’AURIA, J. Under the federal constitution’s prohi-
bition of cruel and unusual punishments, a juvenile
offender cannot serve a sentence of imprisonment for
life, or its functional equivalent, without the possibility
of parole, unless his age and the hallmarks of adoles-
cence have been considered as mitigating factors.
Miller v. Alabama, 567 U.S. 460, 476–77, 132 S. Ct. 2455,
183 L. Ed. 2d 407 (2012); Casiano v. Commissioner of
Correction, 317 Conn. 52, 60–61, 115 A.3d 1031 (2015),
cert. denied sub nom. Semple v. Casiano, U.S. ,
136 S. Ct. 1364, 194 L. Ed. 2d 376 (2016); State v. Riley,
315 Conn. 637, 641, 110 A.3d 1205 (2015), cert. denied,
U.S. , 136 S. Ct. 1361, 194 L. Ed. 2d 376 (2016).
The defendant, William McCleese, a juvenile offender,
was originally serving a sentence of imprisonment for
the functional equivalent of his life without the possibil-
ity of parole, in violation of this constitutional mandate.
Because of subsequent legislation, however, he will be
eligible for parole in or about 2033. This appeal requires
us to decide whether the legislature may remedy the
constitutional violation with parole eligibility. We con-
clude that it may and has done so.
The following undisputed facts and procedural his-
tory, as contained in the record and the Appellate
Court’s decision in the defendant’s direct appeal, are
relevant to this appeal. The defendant was seventeen
years old when he and a partner shot and killed one
victim and injured another. State v. McCleese, 94 Conn.
App. 510, 512, 892 A.2d 343, cert. denied, 278 Conn. 908,
899 A.2d 36 (2006). In 2003, a jury found the defendant
guilty of murder in violation of General Statutes § 53a-
54a (a), conspiracy to commit murder in violation of
§ 53a-54a (a) and General Statutes § 53a-48 (a), and
assault in the first degree in violation of General Stat-
utes § 53a-59 (a) (5). Id., 511.
The defendant received a total effective sentence of
eighty-five years of imprisonment without eligibility for
parole, including sixty years on the conviction of mur-
der. Although the sentencing court, Harper, J., consid-
ered other mitigating evidence and mentioned the
defendant’s youth several times, there is no express
reference in the record that it specifically considered
youth as a mitigating factor, which, at the time, was
not a constitutional requirement. See Miller v. Alabama,
supra, 567 U.S. 460. The Appellate Court affirmed his
conviction on direct appeal; State v. McCleese, supra,
94 Conn. App. 521; and this court denied his petition
for certification to appeal from the Appellate Court’s
judgment. State v. McCleese, 278 Conn. 908, 899 A.2d
36 (2006).
Subsequently, decisions by the United States
Supreme Court, decisions by this court, and enactments
by our legislature resulted in changes to the sentencing
scheme for juvenile offenders. Those changes will be
set forth more fully in this opinion, but a brief summary
helps to understand the procedural posture of this case.
Specifically, the United States Supreme Court in Miller
held that the eighth amendment’s prohibition on cruel
and unusual punishments is violated when a juvenile
offender serves a mandatory sentence of life imprison-
ment without the possibility of parole because it renders
‘‘youth (and all that accompanies it) irrelevant to impo-
sition of that harshest prison sentence’’ and ‘‘poses too
great a risk of disproportionate punishment.’’ Miller v.
Alabama, supra, 567 U.S. 479. Thus, an offender’s age
and the hallmarks of adolescence must be considered
as mitigating factors before a juvenile can serve this
particular sentence.1 This court has interpreted Miller
to apply not only to mandatory sentences for the literal
life of the offender, but also to discretionary sentences
and sentences that result in imprisonment for the ‘‘func-
tional equivalent’’ of an offender’s life. State v. Riley,
supra, 315 Conn. 642, 654; see also Casiano v. Commis-
sioner of Correction, supra, 317 Conn. 72. We also have
ruled that Miller applies not only prospectively, but
retroactively, and also to challenges to sentences on
collateral review. Casiano v. Commissioner of Correc-
tion, supra, 71.
To comport with federal constitutional requirements,
the legislature passed No. 15-84 of the 2015 Public Acts
(P.A. 15-84).2 In relevant part, the act retroactively pro-
vided parole eligibility to juvenile offenders sentenced
to more than ten years in prison. See P.A. 15-84, § 1.
As a result, the defendant is no longer serving a sentence
without the possibility of parole—he will be parole eligi-
ble after serving thirty years, when he is about fifty
years old.
Following these developments, the defendant filed
a motion to correct an illegal sentence. He asserted a
Miller claim under the federal constitution and a similar
claim under the state constitution.3 Initially, the trial
court, Clifford, J., ruled in the defendant’s favor on his
federal constitutional claim but reserved ruling on a
remedy for the federal violation and on the merits of
the state constitutional claim.
Three days after the trial court’s initial ruling on the
motion to correct an illegal sentence, the United States
Supreme Court held that Miller applied retroactively.
Montgomery v. Louisiana, U.S. , 136 S. Ct. 718,
732, 193 L. Ed. 2d 599 (2016). In other words, a Miller
violation existed if a juvenile offender was serving life
without parole without the trial court’s having consid-
ered the Miller factors, even if the sentencing took place
before Miller had been decided. Although this court in
Casiano had already established that Miller applied
retroactively, critically, Montgomery also made clear
that ‘‘[Miller’s] retroactive effect . . . does not require
[s]tates to relitigate sentences, let alone convictions,
in every case [in which] a juvenile offender received
mandatory life without parole. A [s]tate may remedy a
Miller violation by permitting juvenile homicide offend-
ers to be considered for parole, rather than by resen-
tencing them.’’ Id., 736.
Relying on Montgomery, the state filed a motion to
reconsider the trial court’s ruling granting the defen-
dant’s motion to correct an illegal sentence. After brief-
ing and argument, the court granted the motion to
reconsider, concluded that the defendant’s Miller claim
was now moot under both the federal and state constitu-
tions, and dismissed the motion to correct an illegal
sentence. The defendant appealed from that decision
to the Appellate Court. The defendant’s appeal was then
transferred to this court. See Practice Book § 65-2.
In this appeal, we must decide whether the trial court
had subject matter jurisdiction over the defendant’s
motion to correct an illegal sentence. Subject matter
jurisdiction ‘‘involves the authority of the court to adju-
dicate the type of controversy presented by the action
before it.’’ (Internal quotation marks omitted.) Ajadi v.
Commissioner of Correction, 280 Conn. 514, 533, 911
A.2d 712 (2006). The existence of jurisdiction is a ques-
tion of law, and our review is plenary. Id., 532. A trial
court generally has no authority to modify a sentence
but retains limited subject matter jurisdiction to correct
an illegal sentence or a sentence imposed in an illegal
manner. State v. Delgado, 323 Conn. 801, 809, 151 A.3d
345 (2016). Practice Book § 43-224 codifies this com-
mon-law rule. Id. Therefore, we must decide ‘‘whether
the defendant has raised a colorable claim within the
scope of Practice Book § 43-22 . . . . In the absence
of a colorable claim requiring correction, the trial court
has no jurisdiction . . . .’’ (Citation omitted.) Id., 810.
In the present case, whether the defendant has made
out a colorable claim depends on (1) whether the parole
eligibility afforded by P.A. 15-84 adequately remedies
an unconstitutional sentence under the state constitu-
tion, (2) whether, consistent with separation of powers
principles embodied in the Connecticut constitution,5
the legislature may remedy an unconstitutional sen-
tence that was imposed by the judiciary, and (3)
whether P.A. 15-84 violates the defendant’s right to
equal protection. We hold that the defendant has not
made out a colorable claim and that the trial court
lacked jurisdiction over his motion.
I
The defendant first claims that the parole eligibility
afforded by P.A. 15-84, § 1, does not remedy a Miller
violation under the Connecticut constitution. Specifi-
cally, he argues that a juvenile sentenced to fifty years
or more without consideration of the Miller factors
must be resentenced in accordance with Miller, regard-
less of whether he is eligible for parole. We disagree
and conclude that parole eligibility under P.A. 15-84,
§ 1, is an adequate remedy for a Miller violation under
our state constitution just as it is under the federal con-
stitution.
This court has not yet addressed this issue. In State
v. Geisler, 222 Conn. 672, 684–85, 610 A.2d 1225 (1992),
‘‘we identified six nonexclusive tools of analysis to be
considered, to the extent applicable, whenever we are
called on as a matter of first impression to define the
scope and parameters of the state constitution: (1) per-
suasive relevant federal precedents; (2) historical
insights into the intent of our constitutional forebears;
(3) the operative constitutional text; (4) related Con-
necticut precedents; (5) persuasive precedents of other
states; and (6) contemporary understandings of applica-
ble economic and sociological norms, or, as otherwise
described, relevant public policies. . . . These factors,
[commonly referred to as the Geisler factors and] which
we consider in turn, inform our application of the estab-
lished state constitutional standards—standards that
. . . derive from United States Supreme Court prece-
dent concerning the eighth amendment—to the defen-
dant’s claims in the present case.’’ (Citations omitted.)
State v. Santiago, 318 Conn. 1, 17–18, 122 A.3d 1 (2015).
A
1
Federal Precedent
It is not critical to a proper Geisler analysis that we
discuss the various factors in any particular order or
even that we address each factor. See Doe v. Hartford
Roman Catholic Diocesan Corp., 317 Conn. 357, 408,
119 A.3d 462 (2015). Because the point of departure
that the defendant advocates for requires an under-
standing of the federal jurisprudence on the sentencing
of juveniles, we begin with a survey of those precedents.
Federal precedent requires special treatment of juve-
niles when especially harsh punishments are imposed.
The cases justify this treatment, in part, by acknowledg-
ing that juveniles are less deserving of criminal punish-
ment and are more capable of change than their adult
counterparts. But federal case law also relies on the
severity of the punishments at issue in these cases:
death and life imprisonment without parole. Precisely
because these punishments are irrevocable, they are
‘‘disproportionate for the vast majority of juvenile
offenders . . . .’’ Montgomery v. Louisiana, supra, 136
S. Ct. 736. This rationale does not support similar spe-
cial treatment of juveniles who are parole eligible, not-
withstanding the length of the sentence imposed,
because they are afforded the opportunity to ‘‘demon-
strate the truth of Miller’s central intuition—that chil-
dren who commit even heinous crimes are capable of
change.’’ Id.
The eighth amendment to the United States constitu-
tion provides: ‘‘Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual pun-
ishments inflicted.’’ U.S. Const., amend. VIII. The cruel
and unusual punishments clause has been understood
to bar ‘‘(1) inherently barbaric punishments; (2) exces-
sive and disproportionate punishments; and (3) arbi-
trary or discriminatory punishments.’’ State v. Santiago,
supra, 318 Conn. 19. ‘‘For the most part, however, the
[United States Supreme] Court’s precedents consider
punishments challenged . . . as disproportionate to
the crime. The concept of proportionality is central to
the [e]ighth [a]mendment.’’ Graham v. Florida, 560 U.S.
48, 59, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). There
are two types of proportionality challenges: (1) ‘‘chal-
lenges to the length of term-of-years sentences given
all the circumstances in a particular case,’’ and (2) cate-
gorical challenges balancing ‘‘the nature of the offense
. . . [or] the characteristics of the offender’’ against a
particular type of sentence. Id., 60.
The United States Supreme Court’s juvenile sentenc-
ing cases have involved categorical proportionality
challenges, as does the defendant’s claim in this appeal.
Therefore, in this context, the court has weighed the
characteristics of juvenile offenders against the severity
of sentences of death or life imprisonment without
parole.
On one hand, the court has considered ‘‘the unique
aspects of adolescence . . . .’’ State v. Riley, supra,
315 Conn. 644–45. It repeatedly has recognized that
‘‘children are constitutionally different from adults for
purposes of sentencing.’’ Miller v. Alabama, supra, 567
U.S. 471. Juvenile offenders have ‘‘diminished culpabil-
ity and greater prospects for reform’’ than their adult
counterparts because they are less mature, more vulner-
able to external influences like peers, and have char-
acter traits that are not yet fully ingrained. Id. These
observations ‘‘[rest] not only on common sense—on
what ‘any parent knows’—but on science and social
science . . . .’’ Id. And, none of them is crime specific.
Id., 473.
On the other hand, the court has considered the sever-
ity of the punishments imposed: death or life imprison-
ment without parole. Sentence severity is critical to a
categorical proportionality analysis. Prior to Graham,
categorical challenges had been applied only to the
death penalty. Graham v. Florida, supra, 560 U.S. 59;
see also Kennedy v. Louisiana, 554 U.S. 407, 438, 128
S. Ct. 2641, 171 L. Ed. 2d 525 (2008) (nonhomicide
offenders); Roper v. Simmons, 543 U.S. 551, 568, 125
S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (juvenile offenders);
Atkins v. Virginia, 536 U.S. 304, 318, 122 S. Ct. 2242, 153
L. Ed. 2d 335 (2002) (offenders with limited intellectual
functioning). For juvenile offenders, however, the court
extended categorical challenges to apply to sentences
of life imprisonment without parole in certain contexts.
Graham v. Florida, supra, 61. It first banned all senten-
ces of life without parole for juvenile nonhomicide
offenders; id., 82; and then the mandatory imposition
of sentences of life without parole for juvenile homicide
offenders. Miller v. Alabama, supra, 567 U.S. 465.
Miller, in particular, justified the extension of the
categorical approach for two reasons, both of which
relate to the irrevocability of a life-without-parole pun-
ishment. First, the court stated that traditional peno-
logical justifications could not warrant a mandatory,
irrevocable punishment for a juvenile. Id., 472. Most
relevant here, if a sentencing court determines that an
offender is incapable of change, then incapacitation and
the impossibility of rehabilitation justify his permanent
imprisonment. See id., 472–73. But, the court noted,
this determination is fundamentally ‘‘at odds with a
child’s capacity for change,’’ so it presents a contradic-
tion when applied to juvenile offenders. Id., 473; see
also id., 472–73 (‘‘[d]eciding that a juvenile offender
forever will be a danger to society would require mak-
[ing] a judgment that [he] is incorrigible—but incorrigi-
bility is inconsistent with youth’’ [internal quotation
marks omitted]).
Second, the court ‘‘liken[ed] life-without-parole sen-
tences imposed on juveniles to the death penalty itself.’’
Id., 474. The two ‘‘share some characteristics . . . that
are shared by no other sentences,’’ such as irrevoca-
bility by ‘‘[i]mprisoning an offender until he dies . . . .’’
(Internal quotation marks omitted.) Id., 474–75. The
comparison is even more apt in the juvenile context:
a life-without-parole sentence is ‘‘especially harsh’’ for
juveniles ‘‘because [a juvenile offender] will almost
inevitably serve more years and a greater percent-
age of his life in prison than an adult offender.’’ (Inter-
nal quotation marks omitted.) Id., 475. Moreover, life
imprisonment without parole is the ‘‘harshest possible
penalty’’ available for a juvenile, after Roper barred
capital punishment for juveniles. Id., 479. Therefore,
the court ‘‘treated [life imprisonment without parole]
similarly to that most severe punishment’’ by adopting
‘‘a distinctive set of legal rules’’ that had been applied
only in death penalty cases. Id., 475. These rules
required individualized sentencing, thereby ensuring
that the most severe punishments were not inevitable
but were ‘‘reserved only for the most culpable [juvenile]
defendants committing the most serious offenses.’’
Id., 476.
But when a juvenile is eligible for parole, the punish-
ment is no longer irrevocable, and, therefore, these
rationales no longer apply (or, at least, not nearly with
as much force). The first reason collapses if state law
permits a juvenile to become parole eligible because the
punishment expressly acknowledges that the offender
might one day change and reenter society. Similarly, the
justification for individualized sentencing—the harsh-
ness of a life sentence without parole, which will often
mean a much longer period of incarceration than an
adult will have with the same sentence—weakens con-
siderably when state law provides an offender the
chance for early release. A punishment with the possi-
bility of parole is surely less harsh than one without it.
Not only was Miller’s reasoning limited to senten-
ces that do not include parole eligibility, but its holding
was as well. Id., 479 (‘‘[w]e therefore hold that the
[e]ighth [a]mendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for
juvenile offenders’’). In Montgomery, the court took the
opportunity to reiterate that life-with-parole sentences
were constitutional, as it expressly permitted states to
remedy Miller violations with parole eligibility. ‘‘Allow-
ing those offenders [sentenced in violation of Miller]
to be considered for parole ensures that juveniles whose
crimes reflected only transient immaturity—and who
have since matured—will not be forced to serve a dis-
proportionate sentence . . . . The opportunity for
release will be afforded to those who demonstrate the
truth of Miller’s central intuition—that children who
commit even heinous crimes are capable of change.’’
Montgomery v. Louisiana, supra, 136 S. Ct. 736.
In sum, the United States Supreme Court’s juvenile
sentencing cases rest as much on the diminished moral
culpability and enhanced capacity for rehabilitation of
a juvenile offender as on the irrevocability of a punish-
ment of death or life imprisonment without parole. To
dismiss the effect of parole eligibility—which makes a
punishment less severe by affording the opportunity to
demonstrate change—would undercut their reasoning
entirely.
2
Connecticut Constitutional Text and History
Textually, article first, §§ 8 and 9, of the state constitu-
tion establish principles of due process and serve as
the basis for Connecticut’s prohibition against cruel
and unusual punishments but provide no insight into
Miller. See State v. Santiago, supra, 318 Conn. 16 (‘‘the
constitution of Connecticut prohibits cruel and unusual
punishments under the auspices of the dual due process
provisions contained in article first, §§ 8 and 9’’). The
defendant does not contend, and we have not held, that
the text of these provisions of Connecticut’s consti-
tution itself, compared with the text of the federal con-
stitution, suggests any enhanced protection under the
state constitution. Moreover, although neither due pro-
cess provision expressly differentiates between juve-
niles and adults, we draw no conclusion from the fact
that ‘‘the framers of the 1818 constitution decided to
embed these traditional [freedoms from cruel and
unusual punishments] in our dual due process clauses
. . . rather than in an express punishments clause.’’
(Citation omitted.) Id., 39.
Neither does Connecticut’s constitutional history
support the defendant’s argument. In the early 1800s,
Connecticut accounted for the differences between
juvenile and adult offenders, but in ways plainly distin-
guishable from Miller.
One seminal distinction was the availability of the
infancy defense: an offender less than seven years of age
was conclusively presumed incapable of committing a
crime, whereas an offender between the ages of seven
and fourteen was presumed incapable, but the presump-
tion was rebuttable. Offenders older than fourteen were
treated as adults. In re Tyvonne M., 211 Conn. 151, 156,
558 A.2d 661 (1989). Other distinctions were less formal.
Legislative pardons for juveniles were inconsistent but
not uncommon; N. Steenburg, Children and the Crimi-
nal Law in Connecticut, 1635–1855: Changing Percep-
tions of Childhood (2005) p. 189 (from 1810 to 1830,
General Assembly granted nine of twenty petitions for
clemency by juvenile offenders, which was a higher
percentage than granted to adult offenders); see also
A. Kean, ‘‘The History of the Criminal Liability of Chil-
dren,’’ 53 Law. Q. Rev. 364, 364–66 (1937) (discuss-
ing common-law recognition in England as early as
thirteenth century of lesser moral culpability of child
offenders and development of tendency to pardon
them); and juries even may have hesitated to find juve-
niles guilty during this era. See N. Steenburg, supra, p.
31 (‘‘[t]he General Assembly heard reports that under-
age criminals were aware that juries did not want to
send them to the state prison’’). Eventually, juveniles
began to receive special treatment in criminal proceed-
ings beyond the infancy defense, such as the appoint-
ment of guardians. Id., pp. 23–24, 186–87. By 1843, the
legislature had enacted a discretionary sentencing
scheme allowing courts to send offenders under age
seventeen to less harsh county facilities instead of the
state run prisons mandated for adult offenders. Id., p.
200; see Public Acts 1843, c. 21. And, in 1851, it estab-
lished a separate reform school to house offenders
under age sixteen. N. Steenburg, supra, pp. 204–205;
see Public Acts 1851, c. 46.
But these protections did not always apply. The laws
in place to protect juveniles at the time of ratification
were inconsistently followed in practice. See, e.g., N.
Steenburg, supra, p. 192 (‘‘the use of . . . guardians
was inconsistent and often ineffective’’). And the most
significant reforms—discretionary sentencing and a
reform school—occurred well after the state constitu-
tion had been adopted. Even then, although the location
where an offender would serve his sentence could be
modified, the duration could not: ‘‘Because state sen-
tencing guidelines did not specifically allow consider-
ation of mitigating circumstances, many children served
what appeared to be excessively harsh sentences . . .
for crimes of youthful disobedience or heedlessness.
Judges often had no choice in assigning jail or prison
sentences because the General Assembly mandated
specific sentences for many crimes.’’ Id., pp. 31–32.
This meant juveniles often received the same criminal
punishments as adults, including life imprisonment at
the state’s most notorious prison, Newgate, and even
death. See W. Bailey, Children Before the Courts in
Connecticut (1918) p. 19 (‘‘it was legally possible for a
boy barely over [seven] years of age to be committed
to Newgate for life’’); 2 Z. Swift, A System of the Laws
of the State of Connecticut (1796) p. 368 (‘‘[a] boy of
eight years of age, has been executed for burning two
barns’’); V. Streib & L. Sametz, ‘‘Executing Female Juve-
niles,’’ 22 Conn. L. Rev. 3, 13–15 (1989) (describing
execution of twelve year old girl in 1786).
Thus, although Connecticut historically acknowl-
edged that juvenile offenders are different from their
adult counterparts and developed measures to allow
courts to account for the disparity, the measures Con-
necticut has used are distinguishable from the one
required by Miller. In the early 1800s, juvenile status
appeared to end at an offender’s fourteenth birthday.
When protections were technically available, they were
discretionary, inconsistently applied, or both. And when
protections were actually invoked, most addressed
criminal liability (e.g., the infancy defense) or criminal
procedure (e.g., the appointment of guardians), but not
criminal punishment. Even the state’s later sentence
mitigation reforms were merely permissive and only
allowed a court to change the location where a defen-
dant would serve a sentence. Mandatory consideration
of age and the hallmarks of adolescence prior to impos-
ing certain punishments on juvenile offenders is a much
more recent development. Therefore, Connecticut con-
stitutional history does not support the defendant’s
argument that only resentencing, and not parole eligibil-
ity, can remedy a Miller violation.
3
Connecticut Precedent
This court has not yet addressed Miller as a matter
of substantive state law. Our prior decisions on the
subject have been limited to procedural state law and
federal law. We, therefore, consider these cases as per-
suasive precedent but conclude that they do not support
a rule that requires resentencing for punishments that
include parole eligibility.
Casiano is the only case in which we have addressed
cruel and unusual punishment as it relates specifically
to juveniles under state law, as opposed to federal law.
In that case, we concluded that Miller was a watershed
rule of criminal procedure, and, therefore, it applied
retroactively to cases arising on collateral review. Casi-
ano v. Commissioner of Correction, supra, 317 Conn.
69, 71. As the defendant notes, we stated broadly that
consideration of the Miller factors in sentencing was
‘‘implicit in the concept of ordered liberty’’ and ‘‘central
to an accurate determination that the sentence imposed
is a proportionate one.’’ (Internal quotation marks omit-
ted.) Id., 69. But our interpretation of Miller was clearly
more limited. We recognized that Miller ‘‘set forth a
presumption that a juvenile offender would not receive
a life sentence without parole’’; id., 70; and repeatedly
recognized that the rule was limited to that ‘‘particular
punishment.’’ Id., 71.
As a matter of federal law, this court expressly and
recently has held that parole eligibility is an adequate
remedy for a Miller violation. In State v. Delgado, supra,
323 Conn. 810, the defendant originally had been sen-
tenced without consideration of the Miller factors to
the functional equivalent of life imprisonment without
parole. With the enactment of P.A. 15-84, § 1, however,
he became parole eligible. Id. We held that this remedied
the constitutional violation: ‘‘[U]nder Miller, a sentenc-
ing court’s obligation to consider youth related mitigat-
ing factors is limited to cases in which the court imposes
a sentence of life, or its equivalent, without parole. . . .
As a result [of P.A. 15-84, § 1], the defendant’s sentence
no longer falls within the purview of Miller, Riley and
Casiano, which require consideration of youth related
mitigating factors only if the sentencing court imposes
a sentence of life without parole. . . . Miller simply
does not apply when a juvenile’s sentence provides an
opportunity for parole . . . .’’ (Citations omitted;
emphasis altered.) Id., 811; see also part II of this
opinion.
This court also has stated more broadly that Miller
does not apply to sentences that ‘‘lack the severity of
the sentences at issue in Roper, Graham and Miller.’’
State v. Taylor G., 315 Conn. 734, 744–45, 110 A.3d
338 (2015). In Taylor G., we concluded that a juvenile
offender’s mandatory total effective sentence of ten
years of incarceration followed by three years of special
parole did not violate Miller. The court emphasized that
the punishment was ‘‘far less severe’’ than those at
issue in the United States Supreme Court’s juvenile
punishment cases because it was not ‘‘final and irrevo-
cable . . . .’’ Id. We stated: ‘‘Although the deprivation
of [a juvenile’s] liberty for any amount of time, including
a single year, is not insignificant, Roper, Graham and
Miller cannot be read to mean that all mandatory depri-
vations of liberty are of potentially constitutional magni-
tude.’’ Id., 745.6
The defendant notes that this court has twice—in
Riley and Casiano—interpreted Miller to apply to pun-
ishments that it does not expressly include. Although
these cases reflect this court’s determination that the
phrase ‘‘life imprisonment without parole’’ should be
construed beyond its literal meaning, we have applied
Miller only to punishments that have a substantially
similar practical effect. Thus, the punishments at issue
in Riley and Casiano are distinguishable from punish-
ments that include parole eligibility under P.A. 15-84, § 1.
In the first case, State v. Riley, supra, 315 Conn. 637,
in which we reasoned that Miller ‘‘logically reaches
beyond its core holding,’’ we concluded that it applied
to discretionary sentences and to sentences for terms
of years that were the ‘‘functional equivalent’’ of a sen-
tence of life without parole. Id., 642, 654. But many of
the reasons we cited for why Miller should apply to
these types of punishments do not apply when the juve-
nile is parole eligible. For example, we relied on the
fact that the defendant’s sentence of 100 years imprison-
ment with the possibility of parole after ninety-four
years left him ‘‘no possibility of parole before his natural
life expires’’ and ensured that he ‘‘would undoubtedly
die in prison . . . .’’ Id., 640, 643 n.2, 660. Parole eligibil-
ity after thirty years under P.A. 15-84, § 1, however,
contemplates release when most juvenile offenders will
be in their late forties, thereby offering a realistic oppor-
tunity for a life outside of prison.
Similarly, in Casiano, apart from the retroactiv-
ity holding described previously, we held that Miller
applied to a sentence of fifty years imprisonment with-
out the possibility of parole. Casiano v. Commissioner
of Correction, supra, 317 Conn. 79. Although we stated
that ‘‘the concept of ‘life’ in Miller and Graham [was]
more [broad] than biological survival’’; id., 78; we were
ultimately concerned with ‘‘the sense of hopelessness’’
that accompanies a life-without-parole sentence, which
‘‘means that good behavior and character improvement
are immaterial . . . .’’ (Internal quotation marks omit-
ted.) Id., 78–79, quoting Graham v. Florida, supra, 560
U.S. 70. Conversely, parole eligibility offers hope and
makes an offender’s future conduct relevant.7
Thus, Connecticut precedent indicates only that this
court has been willing to interpret Miller beyond its
literal meaning, but not so far as to require resentencing
for punishments that include parole eligibility under
P.A. 15-84, § 1.
4
Sibling State Precedent
The defendant argues that sibling state comparisons
are not helpful in our analysis because certain aspects
of Connecticut’s juvenile punishment scheme—most
notably, a parole system in which eligibility is based in
part on the length of the sentence—are unique to this
state. Although Connecticut’s parole system appears to
be distinct in this respect, we note that our essential
holding in Delgado that Miller does not require resen-
tencing for a punishment that includes parole eligibility
is consistent with other jurisdictions. See State v. Del-
gado, supra, 323 Conn. 811–12 n.7 (citing jurisdictions);
see also, e.g., Talbert v. State, No. 64486, 2016 WL
562778, *1 (Nev. February 10, 2016) (parole eligibility
‘‘within [offender’s] lifetime’’); State v. Charles, 892
N.W.2d 915, 920–21 (S.D.) (parole eligibility at age
sixty), cert. denied, U.S. , 138 S. Ct. 407, 199 L.
Ed. 2d 299 (2017). Similarly, other jurisdictions have
held that their state constitutions do not require a court
to consider the Miller factors before imposing a punish-
ment that includes parole eligibility. E.g., State v.
Propps, 897 N.W.2d 91, 102 (Iowa 2017) (punishment
including ‘‘realistic and meaningful’’ parole eligibility);
Diatchenko v. District Attorney, 466 Mass. 655, 673, 1
N.E.3d 270 (2013) (life imprisonment with possibility of
parole after thirty-one years); State v. Vang, 847 N.W.2d
248, 262–63 (Minn. 2014) (life imprisonment with possi-
bility of early release after thirty years).
5
Public Policy
Nor does Connecticut’s public policy compel a con-
clusion that resentencing is the sole remedy for a Miller
violation. ‘‘[O]ur legislature . . . has the primary
responsibility for formulating the public policy of our
state.’’ Doe v. Hartford Roman Catholic Diocesan
Corp., supra, 317 Conn. 435. In both Riley and Casiano,
this court declined to address issues related to the
recent constitutional developments in juvenile punish-
ment in deference to the legislature. See Casiano v.
Commissioner of Correction, supra, 317 Conn. 79 (‘‘we
have every reason to expect that our decisions in Riley
and in the present case will prompt our legislature to
renew earlier efforts to address the implications of . . .
Graham and Miller’’); State v. Riley, supra, 315 Conn.
662 (‘‘there is every reason to believe that the legislature
will take definitive action regarding these issues’’).
In response, the legislature passed P.A. 15-84. See
Proposed Senate Bill No. 796, 2015 Sess. (‘‘Statement of
Purpose: [t]o comply with the decisions of the Supreme
Court of the United States in Miller v. Alabama [supra,
567 U.S. 460] and Graham v. Florida [supra, 560 U.S.
48]’’). Section 2 of P.A. 15-84, in relevant part, requires
a court to consider the Miller factors when imposing
certain sentences upon juvenile offenders. The legisla-
ture determined, however, that this requirement would
not be retroactive. See State v. Delgado, supra, 323
Conn. 814 and n.9. Therefore, it does not apply to the
defendant. Section 1 of P.A. 15-84, however, does apply
to him and does provide a remedy. As set forth pre-
viously, the legislature provided retroactive parole eligi-
bility to juvenile offenders sentenced to more than ten
years in prison.
The defendant and amici cite abundant evidence of
the differences between juveniles and adults, which
they contend weighs in favor of requiring consideration
of the Miller factors at sentencing, even retrospectively
and in addition to parole eligibility.8 We are not per-
suaded. First, our legislature considered this perspec-
tive alongside other evidence that weighed against a
broader application of P.A. 15-84, § 2, such as public
safety,9 the impact on victims,10 and feasibility.11 Second,
more broadly, we have recognized that certain policy
based aspects of criminal punishment are best left to
the legislature. See, e.g., State v. Bell, 303 Conn. 246,
267, 33 A.3d 167 (2011) (‘‘to the extent that the economic
costs of incarceration are a factor in determining an
appropriate sentence, they are to be considered not by
the sentencing authority but by the legislature when it
is enacting sentencing provisions’’); see also part II B of
this opinion. Third, legislatures from other jurisdictions
also have chosen to remedy Miller violations with
parole eligibility. E.g., Cal. Penal Code § 3051 (b) (4)
(Deering Supp. 2018); Nev. Rev. Stat. §§ 176.025 and
213.12135 (2017); Tex. Penal Code Ann. § 12.31 (a)
(West 2013); Wyo. Stat. Ann. § 6-10-301 (c) (2013).
Fourth, and finally, both a belated resentencing hear-
ing and a parole hearing can provide a meaningful rem-
edy to this newly declared constitutional violation,
although neither is ideal. ‘‘Under Miller, bear in mind,
the inquiry is whether the inmate was seen to be incorri-
gible when he was sentenced—not whether he has
proven corrigible and so can safely be paroled today.’’
Montgomery v. Louisiana, supra, 136 S. Ct. 744 (Scalia,
J., dissenting). As with any factual issue, the passage
of time often makes this finding difficult. ‘‘For example,
[if the defendant waived a presentence investigation
report at his original sentencing], a resentencing court
would be called on to determine, without the benefit
of a presentence investigation conducted at the time
of the defendant’s conviction, what the defendant’s
character was . . . years ago when he was sentenced.
Without such information, the court would likely need
to principally rely upon the defendant’s subsequent
rehabilitation or lack thereof since his sentencing. . . .
Resentencing in such cases would be cumbersome and
would in reality be more akin to a parole hearing.’’ State
v. Williams-Bey, 167 Conn. App. 744, 778–79, 144 A.3d
467 (2016), modified in part on other grounds, 173 Conn.
App. 64, 164 A.3d 31 (2017), aff’d, 333 Conn. 468,
A.3d (2019). The same situation arises in the present
case because the parties cannot locate the presentence
investigation report authored for the defendant’s origi-
nal sentencing in 2003. Although it is ‘‘not impossible’’;
Songster v. Beard, 201 F. Supp. 3d 639, 641 (E.D. Pa.
2016); even in cases in which only a few years have
passed, ‘‘[i]t is difficult even for expert psychologists
to differentiate between the juvenile offender whose
crime reflects unfortunate yet transient immaturity, and
the rare juvenile offender whose crime reflects irrepara-
ble corruption.’’ (Internal quotation marks omitted.)
Graham v. Florida, supra, 560 U.S. 68. Asking sentenc-
ing judges to make this determination years after the
fact might, in these cases, be asking too much.
The parole board, under P.A. 15-84, § 1, on the other
hand, bases its decisions on more recent evidence and
more ascertainable outcomes. Although parole and
resentencing hearings share many of the same charac-
teristics—e.g., the right to counsel, the offender’s right
to make a statement and present evidence, each victim’s
right to make a statement, the availability of expert
testimony—the parole board relies more on evidence of
actual rehabilitation and focuses more on the offender’s
ability to succeed outside of prison at the most relevant
moment, just before he will, potentially, be released.
For example, it considers the probability that he will
‘‘remain at liberty without violating the law,’’ the contin-
uing ‘‘benefits to [the offender] and society that would
result from [the offender’s] release,’’ and the offender’s
‘‘substantial rehabilitation . . . .’’ P.A. 15-84, § 1,
codified at General Statutes (Supp. 2016) § 54-125a (f)
(4). It does not overlook the value of the Miller fac-
tors, though. Alongside these forward-looking factors
described previously, the board also considers a juve-
nile offender’s ‘‘age and circumstances . . . as of the
date of the commission of the crime,’’ ‘‘remorse and
increased maturity since the date of the commission of
the crime,’’ and ‘‘efforts to overcome . . . obstacles
that such person may have faced as a child . . . .’’
General Statutes (Supp. 2016) § 54-125a (f) (4).12 It con-
siders not whether a juvenile is capable of change in
the distant future but, rather, from the best possible
vantage point, whether he has actually changed.
These considerations highlight a truth about the ret-
roactive application of Miller that appears to animate
the dissent and its frustration with our decisions in
this case and in Delgado—that no remedy will put the
defendant in the same position he would have been in
if his youth had been considered when he was sen-
tenced. In the present case, the defendant was effec-
tively sentenced to life imprisonment, and state law did
not provide an opportunity for parole for such crimes.
See footnote 17 of this opinion. A sentence of life with-
out parole improperly denies the juvenile offender
of ‘‘a chance to demonstrate growth and maturity’’
because the court’s judgment that he is ‘‘incorrigible’’
‘‘was made at the outset,’’ before he had the opportunity
to show any capacity for change. (Internal quotation
marks omitted.) State v. Riley, supra, 315 Conn. 648,
quoting Graham v. Florida, supra, 560 U.S. 73. Without
the possibility of parole, the defendant was denied hope;
Graham v. Florida, supra, 70; and had no incentive to
‘‘demonstrate growth and maturity’’ that he might use in
support of a ‘‘meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.’’
(Internal quotation marks omitted.) State v. Riley,
supra, 648.
Neither the remedy this state provides (parole eligi-
bility), which Montgomery has held to be constitution-
ally sufficient, nor the dissent’s proposed remedy of
resentencing can reinstate to the defendant the opportu-
nities for demonstrated growth that he lost during those
years. That is not to say that resentencing is not a
meaningful, practical, and constitutionally sufficient
remedy. All we are saying is that parole eligibility also
is a meaningful, practical, and constitutionally sufficient
remedy in light of the fact that no remedy can travel
back in time and provide the defendant with a Miller
compliant sentencing hearing at the time of his original
sentencing. No one has lost their courage, shrugged
their shoulders, or not tried to remedy the constitutional
violation at issue. Rather, the legislature, this court in
Delgado, and the United States Supreme Court in Mont-
gomery recognized that remedying this violation is not
as simple as recalculating a sentence on the basis of
retroactive changes to sentencing guidelines or vacating
a sentence enhancement that has been deemed uncon-
stitutionally vague, analogies that the dissent finds apt.
Unlike those circumstances, the remedy of resentenc-
ing in this case is an incomplete remedy. The legislature
chose to rectify this problem by providing juvenile
defendants with the possibility of parole, a meaningful
remedy consistent with Miller that ‘‘ensures that juve-
niles whose crime reflected only transient immaturity—
and who have since matured—will not be forced to
serve a disproportionate sentence.’’ Montgomery v. Lou-
isiana, supra, 136 S. Ct. 736.
We acknowledge that a defendant’s parole eligibility
date under P.A. 15-84, § 1, is determined by the length
of his original sentence, which, in some cases, was
imposed without consideration of the Miller factors.
See P.A. 15-84, § 1, codified at General Statutes (Supp.
2016) § 54-125a (f) (1) (juvenile offender parole eligible
[A] ‘‘if such person is serving a sentence of [between
ten and fifty years] . . . after serving sixty per cent of
the sentence or twelve years, whichever is greater, or
[B] if such person is serving a sentence of more than
fifty years . . . after serving thirty years’’). But this
alone does not completely nullify the significance of
parole eligibility under P.A. 15-84, § 1. See Graham v.
Florida, supra, 560 U.S. 75 (‘‘[a] [s]tate is not required
to guarantee eventual freedom to a juvenile offender’’).
It still offers a meaningful opportunity to ‘‘demonstrate
the truth of Miller’s central intuition—that children who
commit even heinous crimes are capable of change.’’
Montgomery v. Louisiana, supra, 136 S. Ct. 736.
Ultimately, we do not believe that we are better situ-
ated than the legislature to strike an appropriate bal-
ance among these competing policies, particularly in
an area that is traditionally within the purview of the
legislature and when we have called the legislature’s
attention to these specific issues. Therefore, we do not
conclude that the considerations identified by the
defendant and the amici compel a particular constitu-
tional rule beyond what the legislature requires.
B
The preceding Geisler analysis informs our applica-
tion of the substantive legal test under our state consti-
tution. See State v. Santiago, supra, 318 Conn. 18–19
n.14. (‘‘our consideration of the relevant Geisler factors
is interwoven into our application of the legal frame-
work that properly governs such challenges’’). ‘‘[T]he
constitution of Connecticut prohibits cruel and unusual
punishments under the auspices of the dual due process
provisions contained in article first, §§ 8 and 9.’’ Id.,
16. In evaluating challenges under this prohibition, we
apply the two part federal framework that we adopted
in State v. Ross, 230 Conn. 183, 252, 646 A.2d 1318
(1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130
L. Ed. 2d 1095 (1995). State v. Santiago, supra, 19, 21.
First, we consider ‘‘whether the punishment at issue
comports with contemporary standards of decency.’’
Id., 21. Second, we also must exercise our independent
judgment to determine whether the punishment is con-
stitutional. Id., 22.
In the first part—evolving standards of decency—we
look for consensus based on five objective criteria: ‘‘(1)
the historical development of the punishment at issue;
(2) legislative enactments; (3) the current practice of
prosecutors and sentencing juries; (4) the laws and
practices of other jurisdictions; and (5) the opinions and
recommendations of professional associations.’’ Id., 52.
We conclude that it does not categorically offend
contemporary standards of decency to remedy a Miller
violation with parole eligibility. Historically, although
Connecticut enacted some measures to permit courts to
mitigate punishment of juvenile offenders, the specific
protections used were distinguishable from the sentenc-
ing practice at issue, limited, and inconsistently applied.
See part I A 2 of this opinion. Currently, the prospective-
only sentencing provisions in P.A. 15-84, § 2, reflect the
reasoned judgment of the legislature, which is a reliable
indicator of our public policy. This approach to Miller
violations is also in accord with that of other jurisdic-
tions. Finally, although a consensus of professional
associations13 agrees that the Miller factors are relevant
in determining a juvenile offender’s culpability and
capacity for rehabilitation, we note that P.A. 15-84, § 2,
instructs a parole board to consider similar factors,
as well as any additional evidence put forth by the
offender, in determining whether the offender is enti-
tled to early release.
In the second part of the federal framework—the
exercise of independent judgment—we consider judi-
cial precedents and ‘‘our own understanding of the
rights secured by the constitution,’’ which encompasses
‘‘whether the penalty at issue promotes any of the penal
goals that courts and commentators have recognized as
legitimate: deterrence, retribution, incapacitation, and
rehabilitation.’’ State v. Santiago, supra, 318 Conn. 22.
Although ‘‘this court cannot abdicate its nondelegable
responsibility for the adjudication of constitutional
rights’’ by giving unwarranted deference to the legisla-
ture, ‘‘we should exercise our authority with great
restraint . . . .’’ (Internal quotation marks omitted.)
Id., 42, quoting State v. Ross, supra, 230 Conn. 249.
Our independent judgment does not compel a conclu-
sion that a Miller violation may not be remedied by
parole eligibility under P.A. 15-84, § 1. Like the federal
constitution, our state constitution secures the right
to proportionality in the punishment of juveniles. In
analyzing proportionality, the characteristics of the
offender must be balanced against the severity of the
punishment. Thus, in juvenile sentencing cases, courts
have emphasized the severity of the sentences at issue
—death and life without parole—as much as the dimin-
ished culpability and greater capacity for reform of
juvenile offenders. Moreover, as distinguished from sen-
tences of death and life without parole, sentences con-
templating early release do not necessarily negate all
penological justification. Incapacitation and rehabilita-
tion may continue to justify sentences with parole eligi-
bility because they account for the fact that juveniles
can change.
For the previously stated reasons, we conclude that
parole eligibility afforded by P.A. 15-84, § 1, is an ade-
quate remedy for a Miller violation under the Connecti-
cut constitution.
II
In State v. Delgado, supra, 323 Conn. 801, we held that
in light of P.A. 15-84, which provided juvenile offenders
with the possibility of parole, Miller no longer applied
because it did not apply to juvenile offenders who are
serving a sentence of life imprisonment, or its equiva-
lent, as long as those offenders have the possibility
of parole. Id., 811; see also State v. Boyd, 323 Conn.
816, 151 A.3d 355 (2016) (companion case to Delgado
decided on same grounds). The defendant claims that
this court should overrule Delgado because it renders
P.A. 15-84, § 1, unconstitutional under the separation
of powers doctrine embodied in the state constitution
and under the due process clause of the federal constitu-
tion. See footnote 15 of this opinion. Addressing these
arguments now, we are not persuaded by them.
A
In Delgado, the defendant originally was serving a
sentence of sixty-five years in prison, ‘‘which is equiva-
lent to life imprisonment,’’ and was not eligible for
parole. State v. Delgado, supra, 323 Conn. 810. Because
the sentencing court had not considered the Miller fac-
tors, the defendant filed a motion to correct an illegal
sentence, asserting a Miller claim under the federal
constitution. Id., 803–805. In that motion, he claimed
he was entitled to resentencing, despite the subsequent
passage of P.A. 15-84, § 1, which afforded him the possi-
bility of parole. Id., 803–804.
This court disagreed. It reasoned that because of P.A.
15-84, § 1, the defendant ‘‘can no longer claim that he
is serving a sentence of life imprisonment, or its equiva-
lent, without parole. The eighth amendment, as inter-
preted by Miller, does not prohibit a court from impos-
ing a sentence of life imprisonment with the opportunity
for parole for a juvenile homicide offender, nor does it
require the court to consider the mitigating factors of
youth before imposing such a sentence. . . . Rather,
under Miller, a sentencing court’s obligation to consider
youth related mitigating factors is limited to cases in
which the court imposes a sentence of life, or its equiva-
lent, without parole. . . . As a result, the defendant’s
sentence no longer falls within the purview of Miller,
Riley and Casiano, which require consideration of
youth related mitigating factors only if the sentencing
court imposes a sentence of life without parole. . . .
Miller simply does not apply when a juvenile’s sentence
provides an opportunity for parole . . . .’’ (Citations
omitted; emphasis altered.) Id., 810–11.
We noted in Delgado that our reasoning was consis-
tent with the analysis in Montgomery v. Louisiana,
supra, 136 S. Ct. 736, which indicated that states ‘‘may
remedy a Miller violation by permitting juvenile homi-
cide offenders to be considered for parole, rather than
by resentencing them. . . . Allowing those offenders
to be considered for parole ensures that juveniles whose
crimes reflected only transient immaturity—and who
have since matured—will not be forced to serve a dis-
proportionate sentence in violation of the [e]ighth
[a]mendment.’’ (Citation omitted.) Id.
The dissent takes issue with our reliance on Delgado,
which it contends improperly interpreted Montgomery
by holding that Miller no longer applied once the defen-
dant was granted parole eligibility. The dissent argues
that this sidesteps the issue of whether parole eligibility
is a sufficient cure for a federal Miller violation in light
of this court’s holding in Casiano that the rule in Miller
is a watershed rule of criminal procedure. The dissent
essentially would have us overrule Delgado on this
ground.14 The dissent argues further that Delgado is
distinguishable on the ground that it ‘‘neither addresses
nor answers the different question raised by defendant
here, which is whether the availability of parole under
P.A. 15-84 cures a constitutional violation that this court
[in Casiano] has deemed to be a ‘watershed’ rule—that
is, a rule essential to the fundamental fairness of the
judicial proceeding, central to an accurate determina-
tion of a proportionate sentence, and implicit in the
very idea of ordered liberty—as a matter of state post-
conviction, remedial law.’’ (Emphasis omitted.)
The defendant never has advanced any of the dis-
sent’s arguments, however.15 Moreover, the arguments
the dissent raises not only implicate whether Delgado
should be overruled, but also call into question the
continued vitality of Casiano and the proper application
of the framework set forth in Teague v. Lane, 489 U.S.
288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), after
the United States Supreme Court subsequently held in
Montgomery that the rule in Miller was a matter of
‘‘substantive’’ law.16 Montgomery v. Louisiana, supra,
136 S. Ct. 736. Because the parties do not address these
issues, and in light of the unique nature of Casiano—
the only case to hold that Miller is a watershed rule of
criminal procedure, a unique designation in of itself,
and a linchpin of the dissent’s analysis—this court has
been provided with little guidance on how to address
these issues. It is precisely for this reason that we do
not decide cases based on issues not raised by the
parties. See, e.g., State v. Connor, 321 Conn. 350, 362,
138 A.3d 265 (2016).
Additionally, when no party has asked us to overrule
precedent, we are particularly reluctant to address—
much less disturb—a unanimous precedent of recent
vintage; see, e.g., New England Estates, LLC v. Bran-
ford, 294 Conn. 817, 836 n.20, 988 A.2d 229 (2010)
(declining to overrule precedent when not argued
by parties); when the legislative response to Miller at
issue was invited by this court; see State v. Casiano,
supra, 317 Conn. 79 (‘‘we have every reason to expect
that our decisions in Riley and in the present case
will prompt our legislature to renew earlier efforts to
address the implications of the Supreme Court’s deci-
sions in Graham and Miller’’); and the precedent is
consistent with the United States Supreme Court’s hold-
ing that parole eligibility is a sufficient remedy for a
Miller violation. See Montgomery v. Louisiana, supra,
136 S. Ct. 736. We would reexamine such a precedent
only when there is a ‘‘special justification . . . .’’ Sep-
ega v. DeLaura, 326 Conn. 788, 799 n.5, 167 A.3d 916
(2017). The dissent’s views do not present such a justifi-
cation.
B
With respect to the claims actually raised by the
defendant, he requests that we overrule our holding in
Delgado because, otherwise, in his view, it effectively
renders P.A. 15-84, § 1, unconstitutional by violating
the separation of powers doctrine embodied in article
second of the Connecticut constitution, as amended by
article eighteen of the amendments. See footnote 5 of
this opinion. According to the defendant, Delgado holds
that his unconstitutional punishment is cured by P.A.
15-84, § 1, because it provides him with a future parole
hearing, at which a panel of the Board of Pardons and
Paroles will consider the Miller factors. He argues that
the legislature overstepped and encroached upon the
power of the judiciary by changing the defendant’s sen-
tence to include the possibility of parole and by delegat-
ing resentencing power to the board because sentencing
is solely within the power of the judiciary.
Our holding in Delgado, however, was not that P.A.
15-84, § 1, cures a Miller violation. Rather, more accu-
rately, parole eligibility under P.A. 15-84, § 1, negates
a Miller violation because the sentence no longer falls
within the purview of Miller. Resentencing would
undoubtedly cure a Miller violation. See State v. Del-
gado, supra, 323 Conn. 810–11. But, although a particu-
lar defendant’s sentence is not actually changed per
court order, P.A. 15-84, § 1, has the legal effect of alter-
ing the defendant’s punishment so that he no longer
will serve life, or its equivalent, in prison without the
possibility of parole. And, as we said in Delgado, if a
defendant has the possibility of parole, there is no Miller
violation. Id. Thus, resentencing is not required. Id. A
punishment that includes parole eligibility ‘‘no longer
falls within the purview of Miller . . . . Miller simply
does not apply when a juvenile’s sentence provides an
opportunity for parole . . . .’’ (Citations omitted.) Id.,
811. As we have more recently stated, ‘‘we understand
Delgado to be, in essence, a mootness decision . . . .’’
State v. Evans, 329 Conn. 770, 788 n.16, 189 A.3d 1184
(2018), cert. denied, U.S. , 139 S. Ct. 1304, 203
L. Ed. 2d 425 (2019). It is with this understanding that we
address the defendant’s separation of powers argument,
which does not persuade us.
‘‘[B]ecause a validly enacted statute carries with it
a strong presumption of constitutionality, those who
challenge its constitutionality must sustain the heavy
burden of proving its unconstitutionality beyond a rea-
sonable doubt. . . . [W]hen a question of constitution-
ality is raised, courts must approach it with caution,
examine it with care, and sustain the legislation unless
its invalidity is clear.’’ (Internal quotation marks omit-
ted.) Id., 809.
Article second of the constitution of Connecticut,
as amended by article eighteen of the amendments,
provides in relevant part: ‘‘The powers of government
shall be divided into three distinct departments, and
each of them confided to a separate magistracy, to wit,
those which are legislative, to one; those which are
executive, to another; and those which are judicial, to
another. . . .’’ Conn. Const., amend XVIII. ‘‘[T]he pri-
mary purpose of [the separation of powers] doctrine is
to prevent commingling of different powers of govern-
ment in the same hands. . . . The constitution
achieves this purpose by prescribing limitations and
duties for each branch that are essential to each
branch’s independence and performance of assigned
powers.’’ (Internal quotation marks omitted.) State v.
Evans, supra, 329 Conn. 810. Nevertheless, ‘‘[t]he rule
of separation of governmental powers cannot always
be rigidly applied.’’ (Internal quotation marks omitted.)
Adams v. Rubinow, 157 Conn. 150, 155, 251 A.2d 49
(1968). Our state government is not ‘‘divided in any
such way that all acts of the nature of the functions
of one department can never be exercised by another
department; such a division is impracticable, and if
carried out would result in the paralysis of govern-
ment.’’ In re Application of Clark, 65 Conn. 17, 38, 31
A. 522 (1894).
In challenges to a statute’s constitutionality on the
ground that it impermissibly infringes on the judicial
authority in violation of separation of powers princi-
ples, ‘‘[a] statute will be held unconstitutional on [sepa-
ration of powers] grounds [only] if: (1) it governs
subject matter that not only falls within the judicial
power, but also lies exclusively within judicial control;
or (2) it significantly interferes with the orderly func-
tioning of the Superior Court’s judicial role.’’ (Internal
quotation marks omitted.) State v. Evans, supra, 329
Conn. 810.
1
The defendant first argues that the legislature imper-
missibly modified his sentence by providing him with
parole eligibility. He argues that, insofar as the judiciary
has the exclusive power to modify a judgment, it also
has the exclusive power to modify a sentence because a
sentence is ‘‘the pronouncement of judgment in criminal
cases . . . .’’ This argument is unpersuasive for two
reasons.
First, under our state’s law, the power of sentencing
is a shared power. Although the judiciary exclusively
has the power to render, open, vacate, or modify a
judgment, we repeatedly have held that the power to
sentence is shared by all three branches of government.
See, e.g., Washington v. Commissioner of Correction,
287 Conn. 792, 828, 950 A.2d 1220 (2008) (‘‘[a]lthough
the judiciary unquestionably has power over criminal
sentencing . . . the judiciary does not have exclusive
authority in that area’’ [emphasis in original; internal
quotation marks omitted]); id. (legislature decides
appropriate penalties, judiciary adjudicates and deter-
mines sentence, and executive manages parole system);
State v. Campbell, 224 Conn. 168, 178, 617 A.2d 889
(1992) (‘‘sentencing is not within the exclusive control
of the judiciary and . . . there is no constitutional
requirement that courts be given discretion in imposing
sentences’’), cert. denied, 508 U.S. 919, 113 S. Ct. 2365,
124 L. Ed. 2d 271 (1993). The judiciary may impose a
specific sentence, but the legislature has the power to
define crimes, prescribe punishments for crimes,
impose mandatory minimum terms of imprisonment for
certain crimes, preclude the probation or suspension
of a sentence, and even pardon offenders. See State v.
Darden, 171 Conn. 677, 679–80, 372 A.2d 99 (1976) (‘‘the
constitution assigns to the legislature the power to
enact laws defining crimes and fixing the degree and
method of punishment and to the judiciary the power
to try offenses under these laws and impose punishment
within the limits and according to the methods therein
provided’’); State v. Morrison, 39 Conn. App. 632, 634,
665 A.2d 1372 (‘‘Prescribing punishments for crimes
. . . is . . . a function of the legislature. . . . The
judiciary’s power to impose specific types of sentences
is therefore defined by the legislature.’’ [Citations omit-
ted; internal quotation marks omitted.]), cert. denied,
235 Conn. 939, 668 A.2d 376 (1995); see also McLaughlin
v. Bronson, 206 Conn. 267, 271, 537 A.2d 1004 (1988)
(‘‘Ordinarily, the pardoning power resides in the execu-
tive. . . . In Connecticut, the pardoning power is
vested in the legislature . . . .’’ [Citations omitted.]).
It is the legislature that defines the parameters of a
sentencing scheme, including whether it permits parole
eligibility.17 See Mead v. Commissioner of Correction,
282 Conn. 317, 324, 920 A.2d 301 (2007) (‘‘eligibility for
parole [is] a part of the state’s sentencing scheme’’).
That is what the legislature did in enacting P.A. 15-
84, § 1.18
Second, the power to impose or modify a judgment
of conviction is not synonymous with the power of sen-
tencing. A judgment of conviction is defined as ‘‘[t]he
written record of a criminal judgment, consisting of the
plea, the verdict or findings, the adjudication, and the
sentence.’’ Black’s Law Dictionary (10th Ed. 2014) p.
972. ‘‘Sentencing,’’ however, is defined as ‘‘[t]he judicial
determination of the penalty for a crime.’’ Id., p. 1570;
see id., p. 1569 (defining ‘‘sentence’’ as ‘‘the punishment
imposed on a criminal wrongdoer’’). Public Act 15-84,
§ 1, does not alter the defendant’s judgment of con-
viction. He remains convicted of murder, conspiracy
to commit murder, and assault in the first degree. In
enacting P.A. 15-84, § 1, the legislature retroactively
modified the sentencing scheme (although not any par-
ticular sentence), which is included in its power to
prescribe and limit punishments for crimes.19
The defendant counters that, although the legislature
has the power to create the scheme of punishment, it
cannot do so retroactively without violating the separa-
tion of powers doctrine because the change effectively
modifies his sentence. But the fact that the legislature,
in exercising its power to create and modify the state’s
sentencing scheme, has affected a particular defen-
dant’s sentence does not mean that it has impermissibly
encroached upon the judiciary’s powers to impose or
modify a sentence. It is well established that judicial and
legislative powers necessarily overlap in many areas,
including sentencing. See, e.g., State v. Campbell, supra,
224 Conn. 178 (‘‘[a]lthough the judiciary unquestionably
has power over criminal sentencing . . . the judiciary
does not have exclusive authority in that area’’).
The fact that certain governmental powers overlap
is not only necessary to ensure the smooth and effect-
ive operation of government; see In re Application of
Clark, supra, 65 Conn. 38 (rigid application of separa-
tion of powers doctrine would ‘‘result in the paralysis
of government’’); but also is a product of the historical
evolution of Connecticut’s governmental system, which
established a ‘‘tradition of harmony’’ among the sepa-
rate branches of government that the separate branches
of the federal governmental system did not have. R.
Kay, ‘‘The Rule-Making Authority and Separation of
Powers in Connecticut,’’ 8 Conn. L. Rev. 1, 7 (1975). As
it relates to the Judicial Branch, this tradition might be
explained in part by the fact that, before the constitution
of 1818, Connecticut did not have a separate judicial
system. Rather, the executive and legislative branches
shared judicial power, with the governor sitting on the
five judge panel of the Superior Court and the General
Assembly having the power of final review over deci-
sions. W. Horton, The History of the Connecticut
Supreme Court (West 2008) pp. 9–12.
Nor was a strict separation of powers enshrined in
the state constitution. Although delegates adopted the
provision currently contained in article second, they
rejected another provision that would have barred one
branch of government from exercising the powers of
another:20 ‘‘[T]he [1818 state constitutional] convention
[did] not seem to have been interested either in a partic-
ularly stringent version of separation of powers or in
a careful restriction of the powers of the legislature.
The convention struck the provision that would have
expressly prohibited the officers of each department
from exercising powers properly classified as belonging
to another. Such explicit provisions were common in
constitutions of other states being written at this time.
. . . Given [the] tradition of harmony between execu-
tive and legislative departments, it may be that the con-
vention did not feel the necessity for a strict expression
of separation of powers. . . . The 1818 Constitution
thus established a government with a flexible separa-
tion of powers and a distinctly dominant legislative
branch.’’ R. Kay, supra, 8 Conn. L. Rev. 7.
‘‘The Connecticut history with regard to separation
of powers stands in marked contrast, therefore, to that
of the federal [c]onstitution.’’ E. Peters, ‘‘Getting Away
from the Federal Paradigm: Separation of Powers
in State Courts,’’ 81 Minn. L. Rev. 1543, 1552 (1997).
‘‘Diverse [state] histories21 demonstrate that even though
state constitutional provisions may textually resemble
those found in the federal [c]onstitution, they may reflect
distinct state identities that will result in differences
in how courts apply and construe such texts. Far from
being arbitrary departures from a superior federal
model, these interpretations have the legitimacy of
differences rooted in the past and adaptable for the
future.’’ (Footnote added.) Id., 1553.
This is not to say that one branch cannot unconstitu-
tionally intrude upon the authority of another branch,
or has not done so. This court is appropriately vigilant
in guarding against such intrusions. See, e.g., State v.
McCahill, 261 Conn. 492, 512, 811 A.2d 667 (2002) (legis-
lative intrusion on judiciary); Savage v. Aronson, 214
Conn. 256, 269, 571 A.2d 696 (1990) (executive intrusion
on judiciary); Stolberg v. Caldwell, 175 Conn. 586, 604,
402 A.2d 763 (1978) (executive intrusion on legislature),
appeal dismissed sub nom. Stolberg v. Davidson, 454
U.S. 958, 102 S. Ct. 496, 70 L. Ed. 2d 374 (1981); see
also Spiotti v. Wolcott, 326 Conn. 190, 201–202, 163 A.3d
46 (2017) (‘‘[w]hen we construe a statute . . . our only
responsibility is to determine what the legislature,
within constitutional limits, intended to do’’ [internal
quotation marks omitted]).
In the present circumstances, however, the original
constitutional intrusion was not upon another branch,
but upon the rights of individuals not to have cruel
and unusual punishments imposed upon them. Those
punishments, although judicially levied, were legisla-
tively authorized or even, in some cases, mandated. It
is hardly incongruous—or unconstitutional—then, for
the legislature to be a part of the solution to the intru-
sion on individual liberty it caused. This seems particu-
larly true when the United States Supreme Court has
suggested this very remedy; see Montgomery v. Louisi-
ana, supra, 136 S. Ct. 736; and when we have invited
the legislature to take such action. See State v. Riley,
supra, 315 Conn. 662; see also Casiano v. Commis-
sioner of Correction, supra, 317 Conn. 79.
Accordingly, we conclude that P.A. 15-84, § 1, is not
unconstitutional because the legislature did not improp-
erly exceed its authority by providing the defendant
with the possibility of parole.22
2
The defendant also argues that, in its quest to cure
a Miller violation via the parole board’s future consider-
ation of the Miller factors, P.A. 15-84, § 1, violates the
separation of powers doctrine by impermissibly dele-
gating sentencing authority to the board. This argument
is premised on a misreading of Delgado and the act.
To reiterate, in Delgado, we held that after passage
of P.A. 15-84, § 1, if a sentence includes parole eligibility,
it ‘‘no longer falls within the purview of Miller . . . .
Miller simply does not apply . . . .’’ (Citations omit-
ted.) State v. Delgado, 323 Conn. 811. Thus, as men-
tioned before, we did not hold in Delgado that P.A. 15-
84, § 1, cures a Miller violation. Rather, more accurately,
parole eligibility under P.A. 15-84, § 1, negates a Miller
violation. As a result, because the defendant is parole
eligible under the act, he is not entitled to have the
Miller factors considered, and, thus, there is no need
for resentencing. Therefore, the board’s power at the
parole stage is distinct from the judiciary’s sentenc-
ing power.
Instead, the board has the power to determine
whether a parole eligible offender is entitled to parole.
This is to ensure that defendants have ‘‘some meaning-
ful opportunity to obtain release based on demonstrated
maturity and rehabilitation.’’ Graham v. Florida, supra,
560 U.S. 75. In furtherance of this goal, the act requires
the board to consider certain factors, including the
offender’s age and circumstances at the time of the
offense. But, although these factors echo the Miller
factors, they are not identical.23 Even if they were, just
because the constitution requires the Miller factors to
be considered at sentencing going forward does not
mean that the legislature may not also require that the
board consider those factors at other times.
Therefore, we conclude that P.A. 15-84, § 1, does not
violate the separation of powers doctrine by improperly
delegating sentencing power to the board.
C
In his reply brief, the defendant also claims that we
should overrule Delgado because it renders P.A. 15-84,
§ 1, unconstitutional by violating federal due process
requirements. Specifically, he argues that, because the
legislature has the power to change or repeal P.A. 15-
84, § 1, in the future, he is deprived of due process in
light of the rule that ‘‘ ‘[s]entences in criminal cases
should reveal with fair certainty the intent of the court
and exclude any serious misapprehensions by those
who must execute them.’ United States v. Daugherty,
269 U.S. 360, 363, 46 S. Ct. 156, 70 L. Ed. 309 (1926).’’
He argues that his sentence is not fairly certain if the
legislature has the power to continually change it.
The defendant’s analysis of this claim consists of one
short paragraph in his reply brief. He does not provide
any case law or analysis beyond his single citation to
Daugherty. Nor does he specify whether he is making
a procedural or substantive due process claim. There
is no reference to the interest balancing test set forth
in Mathews v. Eldridge, 424 U.S. 319, 334–35, 96 S. Ct.
893, 47 L. Ed. 2d 18 (1976), as required under a proce-
dural due process claim that implicates a liberty inter-
est; see State v. Anderson, 319 Conn. 288, 314–15, 127
A.3d 100 (2015); or to the rational basis test applied to
a substantive due process claim that does not involve
a fundamental right. See State v. Moran, 264 Conn. 593,
615, 825 A.2d 111 (2003).
Because the defendant has not briefed the analytic
complexities of his due process claim, we deem it inade-
quately briefed. See, e.g., State v. Buhl, 321 Conn. 688,
726–29, 138 A.3d 868 (2016) (upholding determination
that due process claim was inadequately briefed). Nev-
ertheless, we emphasize that our holdings in Delgado
and the present case are premised on P.A. 15-84, § 1,
as enacted. It is on the basis of this legislation that we
hold that any Miller violation has been negated and
that there are no separation of powers violations. See
also footnote 22 of this opinion.
III
Finally, the defendant claims that P.A. 15-84, § 1, vio-
lates his right to equal protection under the federal
constitution.24 He argues that, as a juvenile convicted
of murder, he is entitled to resentencing because, pursu-
ant to P.A. 15-84, § 6, a juvenile convicted of capital
felony, in violation of General Statutes § 53a-54b,25 is
entitled to resentencing. See footnote 26 of this opinion.
We are not persuaded.
The defendant’s argument proceeds in three parts.
First, he contends that, as a juvenile convicted of mur-
der with a discretionary sixty year sentence, he is simi-
larly situated to another type of juvenile offender—
one who has been convicted of capital felony with a
mandatory life sentence, but without an underlying sen-
tence for murder (which is a lesser included offense of
capital felony). See State v. Reynolds, 264 Conn. 1, 24
n.13, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908,
124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004). Second, he
argues that these groups are treated differently under
P.A. 15-84. Under § 1 of the act, a juvenile murderer is
parole eligible, but under § 6,26 he contends, a juvenile
capital felony offender’s conviction may be vacated.
Therefore, because the capital felony offender then
lacks a conviction (and sentence), his conviction for
murder is revived, he receives a new sentencing pro-
ceeding for murder, and he becomes parole eligible as
a result of § 1. In other words, the murderer receives
only a parole hearing, whereas the capital felony
offender receives both a second sentencing and a parole
hearing. Third, he argues that this scheme is irrational
because, regardless of the length of the resulting sen-
tence, permitting a second sentencing proceeding and
parole eligibility constitutes a less severe punishment
than parole eligibility alone. Because capital felony is
a crime that is more severe than murder, the defendant
contends, no rational basis can support denying a juve-
nile convicted of murder the second sentencing pro-
ceeding that is provided to a juvenile convicted of
capital felony. See State v. Moran, supra, 264 Conn. 614
(‘‘it [is] impossible to conceive of a rational basis to
support treating the less serious crime more severely
than the more serious crime’’). We disagree that the
statutory scheme is irrational.
Even if we assume that the juvenile offenders the
defendant identifies are similarly situated,27 the legisla-
ture had a rational basis for treating them differently.
‘‘If the statute does not touch upon either a fundamental
right or a suspect class, its classification need only
be rationally related to some legitimate government
purpose in order to withstand an equal protection chal-
lenge.’’ (Internal quotation marks omitted.) Perez v.
Commissioner of Correction, 326 Conn. 357, 383, 163
A.3d 597 (2017). Under rational basis review, ‘‘[i]t is
irrelevant whether the conceivable basis for the chal-
lenged distinction actually motivated the legislature.
. . . [The law] must be upheld . . . if there is any rea-
sonably conceivable state of facts that could provide a
rational basis for the classification.’’ (Citation omitted;
internal quotation marks omitted.) Keane v. Fischetti,
300 Conn. 395, 406, 13 A.3d 1089 (2011). ‘‘[T]he [statu-
tory scheme] is presumed constitutional . . . and [t]he
burden is on the one attacking the legislative arrange-
ment to negative every conceivable basis which might
support it . . . .’’ (Internal quotation marks omitted.)
State v. Moran, supra, 264 Conn. 606.28
The manner in which mandatory sentences for capital
felony and discretionary sentences for murder were
imposed is distinct and, thus, they conceivably might
have warranted distinct remedies. Specifically, a juve-
nile convicted of murder already had received an oppor-
tunity to make his case for leniency to a judge, whereas
a juvenile convicted of capital felony had not. In this
sense, offering resentencing only to the latter group
would result in equal, not harsher, punishment, at least
in a numerical sense—each group gets one chance to
convince a judge to exercise discretion in its favor.
Moreover, practical considerations potentially might
have made drawing this distinction between the groups
rational. Only 4 juveniles were serving mandatory life
sentences for capital felony or arson murder, as com-
pared to approximately 270 juveniles serving sentences
of longer than ten years for other crimes.29 See Conn.
Joint Standing Committee Hearings, Judiciary, Pt. 2,
2015 Sess., p. 1062, remarks of Sarah Eagan, Office of
the Child Advocate (stating number of juveniles sen-
tenced). Because of the judicial resources needed to
conduct the proceedings, the legislature reasonably
could have determined that resentencing was simply a
more feasible task for a smaller group. We also note
that the legislature potentially could have distinguished
between actual life sentences (for capital felony) and
those that are for the functional equivalent of life (for
murder). Because the latter still offer the possibility of
geriatric release, the legislature could have determined
that this possibility was worth granting to even the most
culpable offenders, particularly at an advanced age
when they would likely pose a much lesser threat to
society but would cost the state much more to care
for. Any of these reasons suffice to pass constitutional
muster.
For the previously discussed reasons, the defendant
is not entitled to relief in connection with his equal
protection claim.
The judgment is affirmed.
In this opinion ROBINSON, C. J., and PALMER,
McDONALD, MULLINS and KAHN, Js., concurred.
* August 23, 2019, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
We refer to the offender’s age and the hallmarks of adolescence as the
Miller factors throughout this opinion. Specifically, a court must consider
‘‘immaturity, impetuosity, and failure to appreciate risks and consequences’’;
the offender’s ‘‘family and home environment’’ and the offender’s inability to
extricate himself from that environment; ‘‘the circumstances of the homicide
offense, including the extent of [the offender’s] participation in the conduct
and the way familial and peer pressures may have affected him’’; the offend-
er’s ‘‘inability to deal with police officers or prosecutors (including on a
plea agreement) or his incapacity to assist his own attorneys’’; and ‘‘the
possibility of rehabilitation . . . .’’ (Internal quotation marks omitted.) State
v. Riley, supra, 315 Conn. 658, quoting Miller v. Alabama, supra, 567 U.S.
477–78.
2
Section 1 of No. 15-84 of the 2015 Public Acts, codified at General Statutes
(Supp. 2016) § 54-125a, provides in relevant part: ‘‘(f) (1) . . . [A] person
convicted of one or more crimes committed while such person was under
eighteen years of age, who is incarcerated on or after October 1, 2015, and
who received a definite sentence or total effective sentence of more than
ten years for such crime or crimes prior to, on or after October 1, 2015,
may be allowed to go at large on parole in the discretion of the panel of
the Board of Pardons and Paroles for the institution in which such person
is confined, provided (A) if such person is serving a sentence of fifty years
or less, such person shall be eligible for parole after serving sixty per cent
of the sentence or twelve years, whichever is greater, or (B) if such person
is serving a sentence of more than fifty years, such person shall be eligible
for parole after serving thirty years. . . .
‘‘(2) The board shall apply the parole eligibility rules of this subsection
only with respect to the sentence for a crime or crimes committed while a
person was under eighteen years of age. . . .
‘‘(3) Whenever a person becomes eligible for parole release pursuant to
this subsection, the board shall hold a hearing to determine such person’s
suitability for parole release. . . .
‘‘(4) After such hearing, the board may allow such person to go at large on
parole . . . if it appears . . . (C) such person has demonstrated substantial
rehabilitation since the date such crime or crimes were committed consider-
ing such person’s character, background and history, as demonstrated by
factors, including, but not limited to, such person’s correctional record, the
age and circumstances of such person as of the date of the commission of
the crime or crimes, whether such person has demonstrated remorse and
increased maturity since the date of the commission of the crime or crimes,
such person’s contributions to the welfare of other persons through service,
such person’s efforts to overcome substance abuse, addiction, trauma, lack
of education or obstacles that such person may have faced as a child or
youth in the adult correctional system, the opportunities for rehabilitation
in the adult correctional system and the overall degree of such person’s
rehabilitation considering the nature and circumstances of the crime or
crimes.
‘‘(5) After such hearing, the board shall articulate for the record its decision
and the reasons for its decision. If the board determines that continued
confinement is necessary, the board may reassess such person’s suitability
for a new parole hearing at a later date to be determined at the discretion
of the board, but not earlier than two years after the date of its decision. . . .’’
Section 2 of No. 15-84 of the 2015 Public Acts, codified at General Statutes
(Supp. 2016) § 54-91g, provides in relevant part: ‘‘(a) If the case of a child
. . . is transferred to the regular criminal docket of the Superior Court . . .
and the child is convicted of a class A or B felony pursuant to such transfer,
at the time of sentencing, the court shall:
‘‘(1) Consider, in addition to any other information relevant to sentencing,
the defendant’s age at the time of the offense, the hallmark features of
adolescence, and any scientific and psychological evidence showing the
differences between a child’s brain development and an adult’s brain devel-
opment; and
‘‘(2) Consider, if the court proposes to sentence the child to a lengthy
sentence under which it is likely that the child will die while incarcerated,
how the scientific and psychological evidence described in subdivision (1)
of this subsection counsels against such a sentence.
‘‘(b) Notwithstanding the provisions of section 54-91a of the general stat-
utes, no presentence investigation or report may be waived with respect to
a child convicted of a class A or B felony. . . .
‘‘(d) The Court Support Services Division of the Judicial Branch shall
compile reference materials relating to adolescent psychological and brain
development to assist courts in sentencing children pursuant to this section.’’
3
‘‘A Miller claim or Miller violation refers to the sentencing court’s obliga-
tion to consider a juvenile’s age and circumstances related to age at an
individualized sentencing hearing as mitigating factors before imposing a
sentence of life imprisonment [or its equivalent] without parole.’’ State v.
Delgado, 323 Conn. 801, 806 n.5, 151 A.3d 345 (2016). The United States
Supreme Court relied on similar reasoning to decide Graham v. Florida,
560 U.S. 48, 75, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). ‘‘A Graham claim
or Graham violation refers to the sentencing court’s obligation to provide
a meaningful opportunity for parole to a juvenile [nonhomicide offender]
who is sentenced to life imprisonment [or its equivalent, regardless of parole
eligibility].’’ State v. Delgado, supra, 806 n.5.
4
Practice Book § 43-22 provides: ‘‘The judicial authority may at any time
correct an illegal sentence or other illegal disposition, or it may correct a
sentence imposed in an illegal manner or any other disposition made in an
illegal manner.’’
5
Article second of the constitution of Connecticut, as amended by article
eighteen of the amendments, provides in relevant part: ‘‘The powers of
government shall be divided into three distinct departments, and each of
them confided to a separate magistracy, to wit, those which are legislative,
to one; those which are executive, to another; and those which are judicial,
to another. . . .’’
6
Our Appellate Court also has declined to apply Miller (or a state constitu-
tional analogue) to sentences of less than imprisonment for life, or its
functional equivalent, without parole. See State v. Rivera, 177 Conn. App.
242, 275, 172 A.3d 260 (2017) (mandatory minimum sentence of twenty-five
years incarceration did not violate state constitution); Dumas v. Commis-
sioner of Correction, 168 Conn. App. 130, 140–41, 145 A.3d 355 (sentence
of thirty years incarceration did not violate federal constitution), cert. denied,
324 Conn. 901, 151 A.3d 1288 (2016); State v. Logan, 160 Conn. App. 282,
293, 125 A.3d 581 (2015) (sentence of thirty-one years incarceration did not
violate federal constitution), cert. denied, 321 Conn. 906, 135 A.3d 279 (2016).
7
Although we ordered resentencing in Riley and Casiano, those decisions
predated the enactment of P.A. 15-84. Therefore, courts lacked a mechanism
to grant parole eligibility for those defendants at the time. See State v.
Delgado, supra, 323 Conn. 815–16.
8
See Brief of Amici Curiae American Psychological Association et al.,
Miller v. Alabama, (U.S. 2012) (Nos. 10-9646 and 10-9647), 2012 WL 174239,
*8 (‘‘[a]dolescents are less able to control their impulses; they weigh the
risks and rewards of possible conduct differently; and they are less able to
envision the future and apprehend the consequences of their actions’’); Brief
of Amicus Curiae American Bar Association, Montgomery v. Louisiana,
(U.S. 2016) (No. 14-280) p. 24 (‘‘[t]he states’ interest in finality, which
underpins the general rule of [nonretroactivity], is particularly weak here’’);
Brief of Amicus Curiae Former Juvenile Court Judges, Montgomery v. Loui-
siana, (U.S. 2016) (No. 14-280) pp. 5–6 (‘‘the criminal justice system is
equipped to revisit the sentences of juvenile offenders pursuant to this
[c]ourt’s decision in Miller, even when those offenders’ cases are no longer
on direct review and even when a substantial amount of time has passed
since the offense was committed’’).
9
See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 2015
Sess., p. 966, remarks of Senator John A. Kissel (‘‘I appreciate all your efforts
in working with the leadership of this committee to help move this issue
forward for the betterment of the people of the [s]tate of Connecticut but
also making sure that public safety is of paramount and continues to remain
as paramount importance for the citizens that we represent’’).
10
See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 2015
Sess., pp. 955–56, remarks of Attorney Robert Farr (‘‘[O]ne of my personal
issues here was the treatment of the victim’s and the victim’s families. And
I didn’t want to see them revictimized by having this great uncertainty. You
can think in the [Riley] case where an individual was murdered and a
sentence was imposed of 100 years. Nine years later they’re now back into
court again at a resentencing. . . . And so what we tried to do is—as has
been pointed out is give some certainty so that in the [Riley] case instead
of having to worry about resentencing what would have happened is in
[thirty] years, [twenty-one] years from now there will be a parole hearing
. . . .’’).
11
See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 2015
Sess., p. 963, remarks of Professor Sarah Russell of Quinnipiac University
School of Law (‘‘So different states—California and Delaware have decided
people should go through a court system [t]o petition essentially the court
for a resentencing rather than do it through a parole board . . . . So it
really I think depends on the individual state [and] what structures they
have in place. Some states don’t even have functioning parole boards and
so are relying on their court systems for a second look.’’).
12
See footnote 23 of this opinion (comparing Miller factors and parole
eligibility factors). The dissent incorrectly states that parole eligibility under
P.A. 15-84 does not require the board to give any special weight to the Miller
factors and the diminished culpability of juvenile offenders but, rather, only
permits the board to consider the Miller factors in determining rehabilitation.
Public Act 15-84, § 1, requires the board to consider whether an inmate has
demonstrated substantial rehabilitation, considering factors such as ‘‘the
age and circumstances of such person as of the date of the commission of
the crime . . . .’’ (Emphasis added.) The fact that the defendant’s age at
the time of the crime is a factor in determining whether he has demonstrated
substantial rehabilitation shows that this factor is not only ‘‘ ‘future
focused,’ ’’ as the dissent contends, but also considers whether he had
diminished capacity because of his age at the time of the crime. Just because
his age at the time of the crime may be considered for rehabilitative purposes
does not mean it cannot also be considered for culpability purposes. If there
is any doubt about this, let us clear it up: the board should, for culpability
purposes, consider the defendant’s age and circumstances as of the date of
the commission of the crime. This is in line with the parole board’s stated
policy of giving ‘‘great weight to the diminished culpabilities of juveniles as
compared to adults, the hallmark features of youth, and any subsequent
growth and maturity that has been displayed when considering an offender
for suitability.’’ State of Connecticut Board of Pardons and Paroles, Annual
Report 2016–2017 (2017), available at https://portal.ct.gov/-/media/BOPP/
Legacy-Files/BoPPAnnualReport20162017forDASDigestpdf.pdf (last visited
August 23, 2019).
13
See footnote 8 of this opinion.
14
The dissent, itself, never uses the words ‘‘overrule’’ or ‘‘wrongly decided’’
in relation to Delgado. Instead, it contends that ‘‘the majority’s reliance’’ on
Delgado is erroneous. Nevertheless, overruling Delgado must be the dissent’s
argument, although that can be divined only from what the dissent goes on
to say is ‘‘mistake[n]’’ about Delgado.
15
To be clear, the defendant never has argued that Delgado should be
overruled or distinguished because either (1) Delgado misinterprets Mont-
gomery by holding that parole eligibility negates any Miller violation rather
than cures an existing violation, or (2) parole eligibility under P.A. 15-84
fails to cure a Miller violation under the federal constitution as a matter of
state postconviction remedial law in light of Casiano.
The defendant filed his initial brief prior to this court’s decision in Delgado.
In it, he argued that parole eligibility under P.A. 15-84 did not remedy a
Miller violation because the requirements of Miller could be satisfied only
by resentencing. As to Montgomery, the defendant argued that it did not
overrule this court’s holding in Casiano that Miller was a watershed rule
of criminal procedure, and, as such, any violation could be corrected only
by resentencing. The defendant asserted separation of powers and due
process claims. After this court’s decision in Delgado was released, however,
the defendant sought and received permission to file a supplemental brief,
in which he conceded that Delgado precluded his federal Miller claim,
although he maintained his separation of powers and due process claims,
and asserted a new equal protection claim. Subsequently, in his reply brief,
for the first time, the defendant argued that this court should reconsider
and overrule Delgado, relying not on the reasoning used by the dissent but,
rather, by arguing that Delgado violates the separation of powers doctrine
embodied in article two of the state constitution, as amended by article
eighteen of the amendments. In light of the fact that Delgado was released
after the defendant filed his initial brief, we have addressed all of the claims
that the defendant has raised not only in his supplemental brief but also in
his reply brief, including his claim that Delgado should be overruled on the
ground that it violates the separation of powers doctrine. We, however, do
not address the dissent’s contention that Delgado should be overruled
because it misinterprets Montgomery and misapplies Casiano. The claim
raised by the defendant involves the separation of powers doctrine, whereas
the dissent’s contention involves cruel and unusual punishment. Although
both seek to overturn Delgado, we disagree with the dissent that these legal
issues are intertwined or subsumed with the issues raised.
16
The retroactivity outcome is the same regardless of whether it is a
substantive or watershed procedural rule. As the dissent correctly points
out, the framework set forth in Teague for determining whether a federal
constitutional rule applies retroactively may be applied in a ‘‘more expan-
sive’’ manner by a state than by the United States Supreme Court ‘‘where
a particular state interest is better served by a broader retroactivity ruling.’’
(Internal quotation marks omitted.) Casiano v. Commissioner of Correction,
supra, 317 Conn. 64. This court in Casiano, however, did not necessarily
apply the Teague framework more liberally than the court in Montgomery
did. Both courts determined that the rule in Miller was retroactive but on
different grounds. Surely, the United States Supreme Court’s interpretation
of its own precedent—as a substantive or procedural watershed—would
be helpful even to a state’s application of the Teague framework.
17
As a matter of fact, the reason that the defendant’s original sentence
violated Miller was because General Statutes § 54-125a (b) (1) denied the
defendant the possibility of parole. See General Statutes (Rev. to 2001) § 54-
125a (b) (1) (‘‘[n]o person convicted of any of the following offenses, which
was committed on or after July 1, 1981, shall be eligible for parole: . . .
murder, as provided in section 53a-54a’’).
Although the trial court had discretion to determine the length of the
defendant’s sentence, it did not have discretion to grant the defendant the
possibility of parole. Thus, by providing the possibility of parole through
the enactment of P.A. 15-84, the legislature did not usurp the trial court’s
exercise of discretion to determine whether the defendant was parole eligible
but, rather, modified the sentencing scheme responsible for the defendant’s
unconstitutional sentence.
18
The legislature did not change the length of the defendant’s sentence
but, rather, provided him with the possibility of parole. The defendant con-
ceded at oral argument—and thus we assume without deciding—that if, post-
Miller, all defendants must be resentenced, it is possible that a particular
defendant could be sentenced to a longer period of incarceration than he
originally received. P.A. 15-84, § 1, on the other hand, ensures that juvenile
defendants with a sentence of more than ten years of incarceration, who
did not have the benefit of Miller at the time of sentencing, would have
their sentences mitigated, and potentially spend less time incarcerated, by
providing the possibility of parole. See State v. Campbell, supra, 224 Conn.
178 (‘‘it [is] proper to construe broadly a remedial statute designed to curb
the ill effects stemming from wide judicial discretion in sentencing prisoners
for similar offenses’’ [internal quotation marks omitted]).
19
Our analysis accords with other jurisdictions that have held that the
legislature does not intrude on the realm of the judiciary by retroactively
changing a sentencing scheme to create more lenient penalty provisions.
See State ex rel. Esteen v. State, 239 So. 3d 233, 237 (La. 2018) (‘‘[T]he
legislature exercised its exclusive authority to determine the length of pun-
ishment for crimes classified as felonies, and further declared those more
lenient penalties shall be applied retroactively to those already sentenced.
Nothing in the constitution prohibits the legislature from enacting more
lenient penalty provisions and declaring they be applied retroactively in the
interest of fairness in sentencing.’’); see also State v. Vera, 235 Ariz. 571,
576–77, 334 P.3d 754 (App. 2014) (legislature did not violate separation of
powers by providing defendant with possibility of parole after sentencing),
review denied, Arizona Supreme Court (March 17, 2015), cert. denied,
U.S. , 136 S. Ct. 121, 193 L. Ed. 2d 95 (2015).
20
The rejected provision provides: ‘‘No person or collection of persons,
being of one of those departments, shall exercise any power properly belong-
ing to either of the others, except in the instances herein after expressly
directed or permitted.’’ Journal of the Proceedings of the Convention of
Delegates Convened at Hartford, August 26, 1818 (1901) p. 78; see Norwalk
Street Railway Co.’s Appeal, 69 Conn. 576, 604, 37 A. 1080 (1897) (Baldwin,
J., dissenting).
21
For example, unlike Connecticut, ‘‘Massachusetts had a . . . colonial
heritage, colored by numerous perceived injustices at the hands of various
royal mandates. Not surprisingly, revolutionary political leaders drafting the
Massachusetts Constitution of 1780 provided expressly for the separation
of powers. Other states, including Maryland, New Hampshire, North Caro-
lina, and Virginia, did likewise.’’ (Footnotes omitted.) E. Peters, supra, 81
Minn. L. Rev. 1552–53; see also, e.g., Mass. Const., pt. 1, art. XXX (‘‘[i]n the
government of this commonwealth, the legislative department shall never
exercise the executive and judicial powers, or either of them: the executive
shall never exercise the legislative and judicial powers, or either of them:
the judicial shall never exercise the legislative and executive powers, or
either of them’’).
22
Rather than implicating separation of powers issues, by retroactively
modifying the sentencing scheme, P.A. 15-84, § 1, presents the possibility
of an ex post facto issue. However, because P.A. 15-84, § 1, does not increase
the length of time that the defendant will be incarcerated but, rather, provides
for the possibility that he will be released on parole sooner than the expira-
tion of his sentence, P.A. 15-84, § 1, does not present any ex post facto
concerns. See Johnson v. Commissioner of Correction, 258 Conn. 804, 818,
786 A.2d 1091 (2002) (‘‘[T]he primary focus of an ex post facto claim is the
probability of increased punishment. . . . [T]he new law [must] [create] a
genuine risk that [an individual] will be incarcerated longer under that new
law than under the old law.’’); see also Perez v. Commissioner of Correction,
326 Conn. 357, 377, 163 A.3d 597 (2017) (amendments to parole eligibility
statute did not give rise to ex post facto issue because ‘‘the challenged
parole hearing provision does not increase the petitioner’s overall sentence,
alter his initial parole eligibility date, or change the standard used by the
[B]oard [of Pardons and Paroles] to determine parole suitability’’).
We note, however, that should the legislature amend or repeal P.A. 15-
84, § 1, possible ex post facto issues might arise. See Petaway v. Commis-
sioner of Correction, 160 Conn. App. 727, 733, 125 A.3d 1053 (2015) (if there
is change in law affecting parole eligibility, such change violates ex post
facto clause if change ‘‘extend[s] the length of [a defendant’s] incarceration
or delay[s] the date of his first eligibility for parole consideration beyond
the time periods in existence at the time of his criminal conduct’’), cert.
dismissed, 324 Conn. 912, 153 A.3d 1288 (2017). Under those circumstances,
criminal defendants possibly could file a motion to correct an illegal sentence
or a petition for a writ of habeas corpus.
23
Compare footnote 1 of this opinion (reciting Miller factors), with P.A.
15-84, § 1, codified at General Statutes (Supp. 2016) § 54-125a (f) (4) (‘‘the
board may allow such person to go at large on parole . . . if it appears
. . . [C] such person has demonstrated substantial rehabilitation since the
date such crime or crimes were committed considering such person’s charac-
ter, background and history, as demonstrated by factors, including, but not
limited to, such person’s correctional record, the age and circumstances of
such person as of the date of the commission of the crime or crimes, whether
such person has demonstrated remorse and increased maturity since the
date of the commission of the crime or crimes, such person’s contributions
to the welfare of other persons through service, such person’s efforts to
overcome substance abuse, addiction, trauma, lack of education or obstacles
that such person may have faced as a child or youth in the adult correctional
system, the opportunities for rehabilitation in the adult correctional system
and the overall degree of such person’s rehabilitation considering the nature
and circumstances of the crime or crimes’’).
24
The defendant’s constitutional claim was not raised before the trial
court. To the extent that the record supports it, we nonetheless review it
under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as
modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). The
defendant also cites the Connecticut constitution as a basis for his equal
protection claim but provides no separate discussion. Therefore, we limit
our analysis to the federal constitution. See, e.g., Perez v. Commissioner
of Correction, 326 Conn. 357, 382 and n.10, 163 A.3d 597 (2017).
25
Section 53a-54b was amended by No. 12-5, § 1, of the 2012 Public Acts
to substitute ‘‘murder with special circumstances’’ for ‘‘capital felony.’’ State
v. Medina, 170 Conn. App. 609, 610 n.1, 155 A.3d 285, cert. denied, 325
Conn. 914, 159 A.3d 231 (2017). We refer to § 53a-54 as ‘‘capital felony’’ for
convenience and because that is the nomenclature employed by the parties
and the trial court.
26
Section 6 of P.A. 15-84 applies only to sentencing—not convictions—
and, therefore, does not appear to support the defendant’s argument. Public
Act No. 15-84, § 6, codified at General Statutes (Supp. 2016) § 53a-46a (a),
provides in relevant part: ‘‘A person shall be subjected to the penalty of
death for a capital felony committed prior to April 25, 2012, under the
provisions of section 53a-54b, as amended by this act, in effect prior to April
25, 2012, only if (1) a hearing is held in accordance with the provisions of
this section, and (2) such person was eighteen years of age or older at the
time the offense was committed.’’
Rather, the defendant’s argument appears to be based on P.A. 15-84,
§ 7, codified at General Statutes (Supp. 2016) § 53a-54b, which provides in
relevant part: ‘‘A person is guilty of [capital felony] who is convicted of any
of the following and was eighteen years of age or older at the time of the
offense . . . .’’ (Emphasis in language added by P.A. 15-84, § 7.) The legisla-
ture specified that the amendment was retroactively ‘‘applicable to any
person convicted prior to, on or after’’ October 1, 2015, the effective date
of P.A. 15-84, § 7. We note that, shortly after the legislature’s approval of
P.A. 15-84, the court abolished the death penalty in State v. Santiago, supra,
318 Conn. 140.
27
The defendant argues that the classes of juvenile offenders he identifies
are similarly situated because murder is a lesser included offense of capital
felony. The state points out, however, that they are distinguishable because
one sentence is discretionary and the other is mandatory. Although perhaps
a sufficient distinction, we nonetheless assume, without deciding, that the
offenders are similarly situated for equal protection purposes.
We note one further issue with regard to the defendant’s argument that
a capital felony offender will be ‘‘resentence[d] . . . .’’ A capital felony
offender is not ‘‘resentenced’’ in the same way that the defendant claims
he is entitled to be. Rather, a conviction and sentence for one crime (capital
felony) are vacated and a sentence for a separate conviction (murder) is
imposed. Conversely, the defendant wants to have a second sentencing for
the same conviction (murder).
28
The defendant argues that intermediate scrutiny applies to his claim
because it involves ‘‘a significant interference with liberty . . . .’’ (Internal
quotation marks omitted.) Kerrigan v. Commissioner of Public Health, 289
Conn. 135, 161, 957 A.2d 407 (2008). We have rejected similar arguments
before and have applied rational basis scrutiny to claims involving interfer-
ence with liberty as a result of criminal punishment. E.g., State v. Higgins,
265 Conn. 35, 66, 826 A.2d 1126 (2003); State v. Wright, 246 Conn. 132,
140–41, 716 A.2d 870 (1998).
29
Although his assertion is not in the record, the defendant claims that
forty juvenile offenders were serving sentences of more than fifty years as
of November, 2014. Testimony before the Judiciary Committee regarding
juvenile sentencing shows that, as of March 4, 2015, ‘‘[a]pproximately [fifty]
people [were] serving [a] sentence of [fifty] years or more for crimes commit-
ted under [the] age [of eighteen], most without the chance of parole.’’
(Emphasis omitted.) Conn. Joint Standing Committee Hearings, Judiciary,
Pt. 2, 2015 Sess., p. 1062, remarks of Sarah Eagan, Office of the Child
Advocate.