State v. Henry ( 2023 )

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STATE OF CONNECTICUT v. BRENDAN L. HENRY
(AC 45097)
Alvord, Prescott and Elgo, Js.
Syllabus
The defendant, who had been convicted, on a plea of guilty, of two counts
of criminal possession of a firearm, ammunition, or an electronic defense
weapon, appealed to this court from the judgment of the trial court
denying his motion to correct an illegal sentence. The underlying crimes
were committed on April 22, 2018, and the defendant was sentenced
on December 20, 2018, to a term of incarceration followed by a period
of special parole. In 2018, the legislature enacted No. 18-63, § 2, of the
2018 Public Acts (P.A. 18-63), which amended subsection (b) of the
special parole statute ((Rev. to 2017) § 54-125e), to require a trial court,
when sentencing a person, to determine, based on various factors,
whether a period of special parole was necessary to ensure public safety.
Public Act 18-63 became effective on October 1, 2018. The defendant
alleged that, because P.A. 18-63 became effective prior to his sentencing,
(Rev. to 2017) § 54-125e (b) (1), as amended by § 2 of P.A. 18-63, applied
to his sentence of special parole and that the court should vacate the
special parole portion of his original sentence and replace it with a
period of probation. The trial court denied the defendant’s motion to
correct, concluding that, despite the context and extenuating circum-
stances provided by the defense, the sentencing court had remained of
the opinion that special parole was warranted. The trial court indepen-
dently concluded that the imposition of special parole was warranted
on the basis of the defendant’s 2018 convictions and his prior convic-
tions, which implicated public safety. On the defendant’s appeal to this
court, held that the trial court properly denied the defendant’s motion
to correct an illegal sentence: the defendant was convicted of crimes
occurring several months before P.A. 18-63 became effective, and,
because this court previously has determined that P.A. 18-63 did not
apply retroactively, the imposition of special parole at the defendant’s
sentencing was governed by the statute in effect on the date he commit-
ted his crimes, (Rev. to 2017) § 54-125e, which did not require the sen-
tencing court to make any findings with respect to public safety.
Argued September 6, 2022—officially released January 10, 2023
Procedural History
Substitute information charging the defendant with
two counts of the crime of criminal possession of a
firearm, ammunition, or an electronic defense weapon,
and with one count each of the crimes of possession of
a controlled substance, illegal possession of an assault
weapon, possession of a weapon in a motor vehicle,
and use of drug paraphernalia, brought to the Superior
Court in the judicial district of New Britain, where the
defendant was presented to the court, Alexander, J.,
on a plea of guilty to both counts of the crime of criminal
possession of a firearm, ammunition, or an electronic
defense weapon; judgment of guilty in accordance with
the plea; thereafter, the state entered a nolle prosequi
as to the remaining charges; subsequently, the court,
D’Addabbo, J., denied the defendant’s motion to correct
an illegal sentence, and the defendant appealed to this
court. Affirmed.
Gary A. Mastronardi, for the appellant (defendant).
Timothy F. Costello, senior assistant state’s attorney,
with whom, on the brief, were Christian M. Watson,
state’s attorney, Brian W. Preleski, former state’s attor-
ney, and Katherine E. Donoghue, former assistant
state’s attorney, for the appellee (state).
Opinion
ELGO, J. The defendant, Brendan L. Henry, appeals
from the judgment of the trial court denying his motion
to correct an illegal sentence. On appeal, the defendant
argues that the court improperly denied his motion
to correct because his sentence imposing a period of
special parole violated General Statutes (Rev. to 2017)
§ 54-125e (b) (1),1 as amended by No. 18-63 of the 2018
Public Acts (P.A. 18-63).2 In response, the state argues
that the court properly denied the defendant’s motion
to correct because that statutory provision does not
apply retroactively to the defendant’s crimes.3 We agree
with the state and, therefore, affirm the judgment of
the trial court.
The following facts and procedural history are rele-
vant to this appeal. On April 22, 2018, on the basis of
information obtained from a confidential informant that
the defendant, a convicted felon, had a firearm in the
backseat of his vehicle, the police stopped the defen-
dant and conducted a search of his vehicle. Upon
searching the defendant’s vehicle, the police found a
small amount of cocaine, hypodermic needles, and a
rifle. The defendant subsequently informed the police
that he was storing additional firearms and ammunition
in the garage of his home, which were recovered after
the police executed a search warrant at the defendant’s
garage. Due to his two prior felony convictions for forg-
ery, it is undisputed that the defendant was prohibited
from possessing these firearms pursuant to General
Statutes (Rev. to 2017) § 53a-217.4 The state thereafter
charged the defendant with two counts of criminal pos-
session of a firearm, ammunition, or an electronic
defense weapon in violation of General Statutes (Rev. to
2017) § 53a-217, one count of possession of a controlled
substance in violation of General Statutes (Rev. to 2017)
§ 21a-279 (a) (1), one count of illegal possession of an
assault weapon in violation of General Statutes § 53-
202c, one count of possession of a weapon in a motor
vehicle in violation of General Statutes (Rev. to 2017)
§ 29-38, and one count of use of drug paraphernalia
in violation of General Statutes (Rev. to 2017) § 21a-
267 (a).
On December 20, 2018, the defendant entered guilty
pleas to both criminal weapon possession counts, and
the state entered a nolle prosequi on the remaining
charges. The defendant was sentenced to a total effec-
tive term of two and one-half years of incarceration
followed by seven years of special parole.
On July 8, 2021, the defendant filed a motion to cor-
rect an illegal sentence pursuant to Practice Book § 43-
22,5 in which he asked the court to vacate the special
parole portion of his original sentence and replace it
with a period of probation. In his motion, the defendant
acknowledged that a period of special parole is an
authorized sentencing option under General Statutes
(Rev. to 2017) § 53a-28 (b) (9)6 but argued that it must
be implemented in accordance with § 54-125e (b) (1).
The defendant claimed that, because § 54-125e (b) (1)
went into effect on October 1, 2018, two months prior
to his sentencing on December 20, 2018, the sentencing
court was required to make a finding that (1) the nature
and circumstances surrounding the defendant’s
offense, (2) his criminal history, and (3) his perfor-
mance on probation or parole made special parole nec-
essary to ensure public safety. Relying on that revised
statutory language, the defendant argued that the sen-
tencing court did not consider these factors in the con-
text of public safety and, therefore, failed to make the
finding necessary to impose special parole. The defen-
dant argued further that ‘‘[t]he nature of his conviction
[was] possession of a firearm where he was not legally
permitted to possess one due to a prior felony convic-
tion. Moreover, the circumstances of the offense were
not aggravating or violent, and there was no identifiable
victim to the offense. Further, the defendant’s prior
convictions are not a result of violent behavior.’’ Thus,
the defendant maintained that the nature and circum-
stance of this offense and his criminal history did not
warrant a period of special parole.
On July 29, 2021, the court conducted a hearing on
the defendant’s motion to correct. During arguments
on the motion, defense counsel relied on his written
motion with a clarification, made after a conversation
with the state’s attorney, that the sentencing court had
considered ‘‘the nature of [the defendant’s] criminal
conduct as well as [his] prior criminal record and lack
of probation supervision being appropriate in this case’’
and concluded, based on those considerations, that
‘‘special parole best serves the interest of the justice
system and the sentencing requirements.’’ Nevertheless,
defense counsel maintained that the sentencing court’s
finding was not sufficiently supported by the facts in
the record. The state opposed the defendant’s motion
on the ground that the sentencing court made the requi-
site findings under § 54-125e (b) (1).
After considering the arguments, the court issued
a memorandum of decision denying the defendant’s
motion to correct. First, the court found that the sen-
tencing court had afforded the defendant an opportu-
nity to provide it with context regarding the defendant’s
criminal history and that defense counsel had articu-
lated the underlying circumstances of the subject
crimes after the sentencing court had explained the
details of the proposed sentence, including the period
of special parole. Despite the context and extenuating
circumstances provided by the defense, the court found
that the sentencing court remained of the opinion that
special parole was warranted. Second, the court ‘‘inde-
pendently conclud[ed]’’ that the imposition of special
parole was warranted. The court found that ‘‘the defen-
dant’s 2018 convictions coupled with his prior convic-
tions evidenced his disregard for law and order; thus,
rendering him more dangerous than a typical law-abid-
ing citizen. Moreover, the court is unpersuaded by the
defendant’s unduly narrow definition of ‘public safety,’
essentially equating it with protection of the public from
acts of literal violence. Rather, in the context of a state’s
police power, ‘public safety’ has a much broader defini-
tion; namely, ‘[t]he welfare and protection of the general
public, usu[ally] expressed as a government responsibil-
ity.’ ’’ For these reasons, the court denied the defen-
dant’s motion to correct. From that judgment, the defen-
dant now appeals.
On appeal, the defendant claims that the court
improperly denied his motion to correct an illegal sen-
tence because the sentencing court imposed a period
of special parole in an illegal manner when it failed to
find on the record, in accordance with § 54-125e (b)
(1), that a period of special parole was necessary to
ensure public safety. The state argues in response that
§ 54-125e (b) (1) did not take effect until after the date
the defendant committed the crimes for which he was
convicted and does not apply retroactively; thus, the
sentencing court was not required to make a public
safety finding before imposing a period of special
parole. We agree with the state.
We first set forth the applicable standard of review.
‘‘Ordinarily, claims that the trial court improperly
denied a defendant’s motion to correct an illegal sen-
tence are reviewed pursuant to an abuse of discretion
standard. . . . Nonetheless, a trial court’s determina-
tion of whether a new statute is to be applied retroac-
tively or only prospectively presents a question of law
over which this court exercises plenary review.’’ (Inter-
nal quotation marks omitted.) State v. Gonzalez, 214
Conn. App. 511, 517, 281 A.3d 501, cert. denied, 345
Conn. 967, A.3d (2022).
The defendant’s claim is controlled by this court’s
decision in State v. Omar, 209 Conn. App. 283, 268 A.3d
726 (2021), cert. denied, 342 Conn. 906, 270 A.3d 691(2022). In Omar, the defendant claimed that the trial
court improperly denied his motion to correct an illegal
sentence when it concluded that ‘‘certain amendments
to Connecticut’s special parole statute, embodied in
. . . §§ 1 and 2 of [P.A. 18-63], which became effective
on October 1, 2018, did not apply retroactively to render
his 2016 modified sentence imposing special parole
void.’’ Id., 285. To resolve the defendant’s claim, this
court evaluated the plain language of P.A. 18-63 and
the applicable saving statutes: General Statutes §§ 54-
1947 and 1-1 (t).8 Id., 292. This court determined that
‘‘when the legislature enacted P.A. 18-63, which
changed the law by prohibiting special parole as a sen-
tence for certain narcotics offenses, it did so prospec-
tively, not retroactively. We also conclude that the
silence in P.A. 18-63 regarding retroactivity is evidence
of intent for prospective application only; see State v.
Bischoff, 337 Conn. 739, 756, 258 A.3d 14 (2021); that
prospective application creates neither an absurd nor
an unworkable result; and that . . . §§ 54-194 and 1-1
(t) apply and, when read together, provide that the
repeal of a statute prescribing the punishment for a
crime shall not affect any liability for punishment
incurred before the repeal is effective, unless a contrary
legislative intent is expressed within an amendatory
statute.’’ State v. Omar, supra, 285–86; see also State v.
Smith, 209 Conn. App. 296, 268 A.3d 127 (2021) (decided
same day and on same grounds as Omar), cert. denied,
342 Conn. 905, 270 A.3d 691 (2022). This court thus
ultimately concluded that ‘‘the plain language of P.A.
18-63, §§ 1 and 2, clearly and unambiguously prohibits
retroactive application and that this interpretation does
not lead to an absurd or unworkable result, especially
when viewed in context of the related savings statutes,
§§ 54-194 and 1-1 (t).’’ State v. Omar, supra, 296.
More recently, in State v. Gonzalez, supra, 214 Conn.
App. 524, we specifically clarified that this court’s hold-
ing in Omar and Smith that P.A. 18-63 does not apply
retroactively also encompasses § 2 of that public act,
which contains the statutory language at issue in the
present case. See footnote 2 of this opinion. Therefore,
§ 54-125e (b) (1) does not apply retroactively.
Additionally, we note that, ‘‘[i]n criminal cases, to
determine whether a change in the law applies to a
defendant, we generally have applied the law in exis-
tence on the date of the offense, regardless of its proce-
dural or substantive nature.’’ (Emphasis added; internal
quotation marks omitted.) State v. Graham, 56 Conn.
App. 507, 510, 743 A.2d 1158 (2000). In the present case,
the parties do not dispute on appeal that April 22, 2018,
the date on which the defendant committed the crimes
of which he was convicted, is the applicable date for
this retroactivity analysis.9
The defendant ultimately was convicted of crimes
occurring on April 22, 2018, several months before § 54-
125e (b) (1) became effective. Because § 54-125e (b) (1)
does not apply retroactively, the imposition of special
parole at the defendant’s sentencing was governed by
General Statutes (Rev. to 2017) § 54-125e (b), which
did not require the sentencing court to make any find-
ings with respect to public safety.10 In light of the forego-
ing, we conclude that the court properly denied the
defendant’s motion to correct.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We note that, although the current statutory language of General Statutes
§ 54-125e (b) (1) mirrors the version on which the defendant relies, the
effective date of enactment is relevant for the purposes of this appeal for
the reasons set forth throughout this opinion. As such, hereinafter, unless
otherwise indicated, all references in this opinion to § 54-125e (b) (1) refer
to the 2017 revision of the statute, as amended by No. 18-63 of the 2018
Public Acts (P.A. 18-63), which became effective October 1, 2018. Pursuant
to General Statutes § 54-125e (b) (1), ‘‘[w]hen sentencing a person, the court
may not impose a period of special parole unless the court determines,
based on the nature and circumstances of the offense, the defendant’s prior
criminal record and the defendant’s history of performance on probation
or parole, that a period of special parole is necessary to ensure public safety.’’
2
Public Act 18-63 provides in relevant part:
‘‘Section 1. Subsection (b) of section 53a-28 of the general statutes is
repealed and the following is substituted in lieu thereof (Effective October
1, 2018):
‘‘(b) Except as provided in section 53a-46a, when a person is convicted
of an offense, the court shall impose one of the following sentences . . .
(9) a term of imprisonment and a period of special parole as provided in
section 54-125e, as amended by this act, except that the court may not impose
a period of special parole for convictions of offenses under chapter 420b.
‘‘Sec. 2. Subsection (b) of section 54-125e of the general statutes is repealed
and the following is substituted in lieu thereof (Effective October 1, 2018):
‘‘(b) (1) When sentencing a person, the court may not impose a period
of special parole unless the court determines, based on the nature and
circumstances of the offense, the defendant’s prior criminal record and the
defendant’s history of performance on probation or parole, that a period
of special parole is necessary to ensure public safety. . . .’’ (Emphasis
in original.)
3
The state raised several other substantive arguments in its appellate
brief in response to the defendant’s claim. Because we conclude that its
argument on retroactivity is dispositive, we need not address those additional
contentions. We, therefore, express no view of the propriety of the court’s
determination that the imposition of a period of special parole was ‘‘neces-
sary to ensure public safety.’’
4
General Statutes (Rev. to 2017) § 53a-217 provides in relevant part: ‘‘(a)
A person is guilty of criminal possession of a firearm, ammunition or an
electronic defense weapon when such person possesses a firearm, ammuni-
tion or an electronic defense weapon and (1) has been convicted of a felony
committed prior to, on or after October 1, 2013 . . . .’’
5
Pursuant to Practice Book § 43-22, ‘‘[t]he 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.’’
6
General Statutes (Rev. to 2017) § 53a-28 (b) (9) provides in relevant part:
‘‘(b) Except as provided in section 53a-46a, when a person is convicted of
an offense, the court shall impose one of the following sentences . . . (9)
a term of imprisonment and a period of special parole as provided in section
54-125e.’’ For the statutory language in effect beginning October 1, 2018,
see footnote 2 of this opinion.
7
General Statutes § 54-194 provides: ‘‘The repeal of any statute defining
or prescribing the punishment for any crime shall not affect any pending
prosecution or any existing liability to prosecution and punishment therefor,
unless expressly provided in the repealing statute that such repeal shall
have that effect.’’
8
General Statutes § 1-1 (t) provides: ‘‘The repeal of an act shall not affect
any punishment, penalty or forfeiture incurred before the repeal takes effect,
or any suit, or prosecution, or proceeding pending at the time of the repeal,
for an offense committed, or for the recovery of a penalty or forfeiture
incurred under the act repealed.’’
9
The record indicates that, contrary to the defendant’s position on appeal,
defense counsel stated during oral argument on the motion to correct that
his claim does not require retroactive application of § 54-125e (b) (1) because
the sentencing on December 20, 2018, took place after the statute went into
effect on October 1, 2018. At that time, the prosecutor did not dispute that
the statute was applicable to the defendant and neither the parties nor the
court further addressed the issue of retroactivity.
In the defendant’s appellate reply brief, he claims that, during oral argu-
ment on the motion to correct, the state waived any claim that § 54-125e
(b) (1) does not apply retroactively. In putting forth this argument, the
defendant acknowledges that, but for this alleged waiver, ‘‘the statute, as
amended as of October 1, 2018, clearly did not apply retroactively to the
defendant’s sentencing in this case because the date of the defendant’s
offenses, which is always the focal point of retroactivity analysis, was April
22, 2018, and that, on that date, [General Statutes (Rev. to 2017)] § 54-125e
did not require a court to determine that a period of special parole was
necessary to ensure public safety before imposing a term of special parole.’’
(Internal quotation marks omitted.) Therefore, the defendant concedes that
the date of the offense, which was prior to the effective date of § 54-125e
(b) (1), is controlling of the retroactivity issue on appeal.
Moreover, on appeal, the defendant cites no authority for the proposition
that the applicability or retroactivity of a statute can be waived by a party.
Therefore, we find the defendant’s argument on waiver unpersuasive.
10
General Statutes (Rev. to 2017) § 54-125e (b) provides: ‘‘When sentencing
a person to a period of special parole, the court may recommend that such
person comply with any or all of the requirements of subsection (a) of
section 53a-30. The court shall cause a copy of any such recommendation
to be delivered to such person and to the Department of Correction. The
Board of Pardons and Paroles may require that such person comply with
the requirements of subsection (a) of section 53a-30 which the court recom-
mended. Any person sentenced to a period of special parole shall also be
subject to such rules and conditions as may be established by the Board
of Pardons and Paroles or its chairperson pursuant to section 54-126.’’