State v. Sanchez ( 2019 )

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STATE OF CONNECTICUT v. LIVORIO SANCHEZ
(AC 39193)
STATE OF CONNECTICUT v.
MICHAEL A. FERNANDES
(AC 39194)
STATE OF CONNECTICUT v.
FRANCISCO RODRIGUEZ
(AC 39196)
STATE OF CONNECTICUT v. FRANK SLAUGHTER
(AC 39198)
STATE OF CONNECTICUT v. MICHAEL
ANTHONY THIGPEN
(AC 39199)
Keller, Bright and Bishop, Js.
Syllabus
The defendants, who previously had been convicted under informations in
five separate cases of various crimes, including sale of narcotics by a
person who is not drug-dependent and possession of narcotics with
intent to sell by a person who is not drug-dependent in violation of
statute ([Rev. to 2013] § 21a-278 [b]), appealed to this court from the
judgments of the trial court dismissing their motions to correct an illegal
sentence for lack of subject matter jurisdiction. The defendants claimed
that because their lack of drug dependency was a fact that would result
in a mandatory minimum sentence that would expose each defendant
to a higher maximum sentence, their sentences were illegal because the
lack of drug dependency was an element that the state was required to
plead and prove beyond a reasonable doubt, which it failed to do. In
making that argument, the defendants relied on Apprendi v. New Jersey
(530 U.S. 466), which requires the state to charge and to prove to the
fact finder beyond a reasonable doubt any factor, other than a prior
conviction, that increases the maximum penalty for a crime, and Alleyne
v. United States (570 U.S. 99), which extended the protections of Appre-
ndi to mandatory minimum sentences. During the pendency of these
appeals, our Supreme Court decided State v. Evans (329 Conn. 770),
the factual and procedural history of which closely mirrored that under-
lying the present cases, and in which the court held that drug dependency
is an affirmative defense that must be proven by the defendant, rather
than an element that must be proven by the state, and, thus, that the
sentencing of a defendant under § 21a-278 (b) without a finding or
admission that the defendant is not drug-dependent does not implicate
Alleyne, which concerned the facts that must be proven by the state in
order to trigger the mandatory minimum sentence for a crime. Following
the release of Evans, the parties submitted supplemental briefs regarding
its impact on their appeals. Held that Evans controlled the disposition
of the defendants’ appeals and, in light of that decision, the defendants’
motions to correct no longer presented colorable claims of an illegal
sentence: although it was improper for the trial court to have dismissed
the defendants’ motions to correct an illegal sentence for lack of subject
matter jurisdiction because, at the time the trial court adjudicated the
motions to correct before Evans was decided, they presented colorable
claims of an illegal sentence, in light of Evans, it was clear that the
defendants’ claims of an illegal sentence would now fail on the merits,
as our Supreme Court has now squarely rejected claims identical to
those made by the defendants in the present cases, and, therefore, they
no longer presented colorable issues; accordingly, in light of Evans, a
trial court now faced with similar claims as the ones raised by the
defendants in the present cases would not have subject matter jurisdic-
tion to decide them, and, therefore, the judgements dismissing the
motions to correct were affirmed.
Argued January 29—officially released June 11, 2019
Procedural History
Information, in the first case, charging the defendant
with the crime of sale of narcotics by a person who is not
drug-dependent, and information, in the second case,
charging the defendant with the crimes of possession
of narcotics with intent to sell by a person who is not
drug-dependent and interfering with a police officer,
and information, in the third case, charging the defen-
dant with the crimes of possession of narcotics with
the intent to sell by a person who is not drug-dependent,
possession of narcotics with the intent to sell within
1500 feet of a school, carrying a pistol without a permit,
and criminal possession of a firearm by a felon, and
information, in the fourth case, charging the defendant
with the crimes of sale of narcotics by a person who
is not drug-dependent and possession of narcotics with
the intent to sell by a person who is not drug-dependent,
and information, in the fifth case, charging the defen-
dant with the crimes of sale of narcotics by a person
who is not drug-dependent and possession of narcotics,
brought to the Superior Court in the judicial district of
Fairfield, where the defendants in the first, second and
fourth cases were presented to the court, Arnold, J.,
on pleas of guilty, and the defendants in the third and
fifth cases were presented to the court, Iannotti, J., on
pleas of guilty; judgments of guilty; thereafter, the court,
E. Richards, J., dismissed the defendants’ motions to
correct illegal sentences, and the defendants filed sepa-
rate appeals to this court. Affirmed.
Daniel M. Erwin, assigned counsel, with whom were
Temmy Ann Miller, assigned counsel, and, on the
briefs, Nicholas Marolda, assigned counsel, for the
appellants (defendants).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the briefs, were John C. Smriga, state’s attor-
ney, Marc R. Durso, senior assistant state’s attorney,
Nicholas J. Bove, Jr., senior assistant state’s attorney,
Michael A. DeJoseph, Jr., senior assistant state’s attor-
ney, Richard Palombo, Jr., former senior assistant
state’s attorney, and Yamini Menon, former special
deputy assistant state’s attorney, for the appellee
(state).
Opinion
BISHOP, J. These appeals all stem from the same
legal root with factual differences not pertinent to the
common legal issues they present. In each case, the
defendant was convicted, following a plea of guilty,
of, inter alia, sale of narcotics and/or possession of
narcotics with the intent to sell by a person who is not
drug-dependent, in violation of General Statutes (Rev.
to 2013) § 21a-278 (b),1 and was sentenced to a term of
incarceration that included the statutorily mandated
minimum sentence of five years. In each instance, the
court made no finding, nor did the defendant admit,
that he was not drug-dependent. Each defendant subse-
quently filed a motion to correct an illegal sentence,
alleging, in essence, that his sentence was illegal
because, under Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Alleyne
v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed.
2d 314 (2013), the state was required to plead and prove
his lack of drug dependency beyond a reasonable doubt
given that it is a fact that would result in a mandatory
minimum sentence that would expose the defendant to
a higher maximum sentence. The trial court dismissed
each motion for lack of subject matter jurisdiction, and
the defendants appealed to this court. We conclude
that, in light of our Supreme Court’s recent decision in
State v. Evans, 329 Conn. 770, 189 A.3d 1184 (2018),
cert. denied, U.S. , 139 S. Ct. 1304, L. Ed.
2d (2019), the defendants’ motions to correct no
longer present colorable claims of an illegal sentence,
and, accordingly, we affirm the trial court’s dismissals
of their motions.
The records in these appeals reveal the following
undisputed facts and procedural history. On March 12,
2013, the defendant Livorio Sanchez was convicted,
following a plea of guilty, of sale of narcotics by a
person who is not drug-dependent in violation of § 21a-
278 (b). During the plea canvass, the prosecutor recited
the facts underlying the alleged sale of heroin by San-
chez, but he made no representation as to whether
Sanchez was drug-dependent. Similarly, during the
questioning of Sanchez by the court, Arnold, J., there
was no discussion of drug dependency. Sanchez was
subsequently sentenced on May 15, 2013, in accordance
with an agreed upon disposition, to a term of incarcera-
tion of twelve years, execution suspended after eight
years, followed by three years of probation. As a condi-
tion of his probation, the court ordered that he undergo
‘‘substance abuse evaluation and treatment including
random urinalysis . . . .’’ During the sentencing hear-
ing, however, there was no discussion by the court,
counsel, or Sanchez of the issue of drug dependency,
nor did the court make explicit that the defendant’s
period of incarceration included a mandatory minimum
period of five years pursuant to § 21a-278 (b).
On April 12, 2012, the defendant Michael A. Fernan-
des was convicted, following a plea of guilty, of posses-
sion of narcotics with intent to sell by a person who is
not drug-dependent in violation of § 21a-278 (b).2 During
a colloquy with defense counsel prior to canvassing
Fernandes, the court, Arnold, J., noted, and defense
counsel agreed, that the narcotics charge included a
mandatory minimum sentence of five years of incarcer-
ation. During the canvass itself, although the court
asked Fernandes if his counsel had advised him of the
elements of the charge to which he was pleading guilty
and the mandatory minimum penalties that he could
receive, there was no mention by the court or counsel
of drug dependency. Having waived the requirement
of a presentence investigation report, Fernandes was
immediately sentenced, pursuant to an agreed upon
disposition, to a term of incarceration of ten years,
execution suspended after five years, followed by a
period of three years of probation. In reciting Fernan-
des’ sentence, the court stated that the five year period
of incarceration was the mandatory minimum sentence
required by the statute.
On February 27, 2012, the defendant Francisco Rodri-
guez was convicted, following a plea of guilty, of posses-
sion of narcotics with the intent to sell by a person
who is not drug-dependent in violation of § 21a-278 (b).3
In response to a question from the court, Iannotti, J.,
at the outset of its canvass, Rodriguez confirmed that
his counsel had explained the maximum and mandatory
minimum sentences to which his plea could expose
him. Rodriguez also acknowledged during the canvass
that by pleading guilty, he was giving up a number
of enumerated rights, including the right to present
defenses on his behalf at trial. Throughout the proceed-
ing, there was no mention by the court, counsel, or
Rodriguez of the issue of drug dependency. Having
waived the requirement of a presentence investigation
report, Rodriguez was immediately sentenced, pursuant
to an agreed upon disposition, to a total effective term
of incarceration of ten years, five of which reflected
the mandatory minimum sentence under § 21a-278 (b).
On September 9, 2013, the defendant Frank Slaughter
was convicted, following a plea of guilty, of one count
of sale of narcotics by a person who is not drug-depen-
dent in violation of § 21a-278 (b) and two counts of
possession of narcotics with the intent to sell by a
person who is not drug-dependent also in violation of
§ 21a-278 (b). As part of a plea agreement, the other
charges then pending against Slaughter were nolled by
the state. At the beginning of the canvass, the state
informed the court, Arnold, J., that all three counts
required a mandatory minimum sentence of five years,
and, in response to questioning from the court, Slaugh-
ter initially stated that he was unaware that the agreed
disposition included a mandatory minimum period of
incarceration of five years. After a brief colloquy, how-
ever, Slaughter stated to the court that he understood
that the sentence to be imposed would carry a minimum
term of five years of incarceration.
The record further reflects that before the court sen-
tenced Slaughter, but after the court had stated the
sentences to be imposed, Slaughter interjected as fol-
lows: ‘‘[A]s long as I’ve been coming in and out of
the courthouse, I’ve been drug-dependent. I been drug-
dependent. Now that I’m being charged with a drug-
dependent case, how is that . . . .’’ At this juncture, the
court pointed out to Slaughter the number of charges
initially confronting him and the fact that, if he was
convicted after trial, he could face ‘‘close to eighty years’
worth of exposure.’’ The court continued to inform
Slaughter that it would accept his guilty pleas only
if they were made voluntarily, and it offered him the
opportunity either to withdraw his pleas or to proceed
with the sentencing. Slaughter responded, ‘‘[p]roceed.’’
After confirming Slaughter’s response, the court found
that his guilty pleas were knowingly and voluntarily
made and found him guilty as to all three counts.
Because Slaughter waived the requirement of a presen-
tence investigation report, the court proceeded immedi-
ately to sentence him, pursuant to an agreed upon
disposition, to twelve years of incarceration for each
count, execution suspended after seven years, five of
which were mandatory, followed by a five year period
of probation. As a condition of his probation, the court
ordered that Slaughter undergo ‘‘substance abuse evalu-
ation and treatment as deemed appropriate by the
Department of Adult Probation.’’ Other than Slaughter’s
statement that he was drug-dependent, there was no
discussion by the court or counsel regarding the rela-
tionship between drug dependency and the criminal
charges to which Slaughter pleaded guilty. Notably,
when Slaughter raised the issue of his drug dependency,
there was no discussion by the court or counsel as to
whether such a claim could be a defense to any of
the charges.
On July 26, 2011, the defendant Michael Anthony
Thigpen was convicted, following a plea of guilty, of
sale of narcotics by a person who is not drug-dependent
in violation of § 21a-278 (b).4 During the canvass, Thig-
pen confirmed with the court, Iannotti, J., that his
counsel had discussed with him the elements of the
offenses to which he was pleading guilty, as well as the
maximum and mandatory minimum sentences to which
his guilty pleas would expose him. Thigpen also
acknowledged that he was giving up his right to present
defenses by pleading guilty. There was no discussion
by the court, counsel, or Thigpen of the issue of drug
dependency. On September 22, 2011, pursuant to an
agreed upon disposition, Thigpen was sentenced to a
term of incarceration of fifteen years, execution sus-
pended after eight years, five of which were mandatory,
to be followed by three years of probation. As condi-
tions of his probation, the court ordered him to undergo
substance abuse evaluation and treatment, as deemed
necessary, and to attend ‘‘ten weekly [Narcotics Anony-
mous] meetings.’’ When asked if he wanted to speak
prior to being sentenced, Thigpen indicated to the court
that he had a heart condition for which he required
medication and treatment. At no time during this hear-
ing was the issue of drug dependency raised or dis-
cussed by the court, counsel, or Thigpen.5
On August 22, 2014, the defendants filed the opera-
tive, amended motions to correct their allegedly illegal
sentences pursuant to Practice Book § 43-22;6 although
each was filed separately, the motions were identical
in substance. The defendants claimed, inter alia, that
their sentences were illegal because, under Apprendi
v. New Jersey, supra, 530 U.S. 466, and Alleyne v. United
States, supra, 570 U.S. 99, the sentences ‘‘exceed[ed]
the relevant statutory maximum limits’’ and ‘‘the fact
triggering the mandatory minimum sentence was not
found by a proper fact finder or admitted by the defen-
dant . . . .’’7 The state opposed the defendants’
motions to correct, arguing, inter alia, that the court
lacked subject matter jurisdiction because the motions
attacked the validity of the defendants’ guilty pleas
rather than the sentences imposed.
The court, E. Richards, J., heard the motions together
in one proceeding on January 29, 2015.8 On May 6, 2015,
the court issued a memorandum of decision dismissing
the motions to correct. Following its comprehensive
review of the factual record and the relevant federal
and Connecticut appellate decisional law, the court con-
cluded that the defendants were, in essence, attacking
their convictions and not their sentences and, for that
reason, the court dismissed their motions for lack of
subject matter jurisdiction. The defendants appealed to
this court, arguing that the trial court misconstrued
their motions to correct and that, properly construed,
they alleged cognizable claims of an illegal sentence
under Apprendi and Alleyne.9
On April 13, 2017, after the defendants had briefed
their claims but before oral argument was scheduled,
this court issued orders staying each appeal pending
our Supreme Court’s decisions in State v. Evans, supra,
329 Conn. 770, and State v. Allan, 329 Conn. 815, 190
A.3d 874 (2018), cert. denied, U.S. , 139 S. Ct.
1233, 203 L. Ed. 2d 247 (2019), the factual and proce-
dural history of which closely mirror that underlying
the present cases. Following the release of those deci-
sions, the parties submitted supplemental briefs regard-
ing the impact of the decisions on the present cases.10
Because Evans controls our disposition of the defen-
dants’ appeals, we begin with a discussion of that
decision.11
The defendant in Evans was convicted, following a
plea of guilty, of sale of narcotics by a person who is
not drug-dependent in violation of § 21a-278 (b). State
v. Evans, supra, 329 Conn. 774. The issue of drug depen-
dency was not discussed by the court, counsel, or the
defendant during the plea hearing. Id. After being sen-
tenced to five years of imprisonment with five years of
special parole, the defendant filed a motion to correct
an illegal sentence. Id., 775. Just as in the present cases,
the defendant in Evans claimed in his motion to correct
that his sentence was illegal because, inter alia, under
Alleyne and Apprendi, the sentence ‘‘exceed[ed] the
relevant statutory limits’’ and ‘‘the fact triggering the
mandatory minimum [sentence] was not found by a
proper [fact finder] or admitted by the defendant
. . . .’’ (Internal quotation marks omitted.) Id.
The trial court in Evans denied the defendant’s
motion to correct on the merits. Id., 776. The trial court
began by ‘‘observing that, in State v. Ray, [290 Conn.
602, 623–26, 966 A.2d 148 (2009)], [our Supreme Court]
had concluded that Apprendi, which requires that the
state charge, and prove to the fact finder beyond a
reasonable doubt, any factor, other than a prior convic-
tion, that increases the maximum penalty for a crime;
see Apprendi v. New Jersey, supra, 474–97; did not
apply to proof of drug dependency under § 21a-278 (b)
because such proof constitutes an affirmative defense
under that statute. The trial court then rejected the
defendant’s argument that Ray is no longer good law
under Alleyne, which extended the rule set forth in
Apprendi to facts that increase a statutory minimum
sentence. See Alleyne v. United States, supra, [570 U.S.]
103. After rejecting the defendant’s other challenges to
his sentence, the trial court rendered judgment denying
the motion to correct an illegal sentence.’’ (Footnotes
omitted.) State v. Evans, supra, 329 Conn. 775–76.
On appeal to our Supreme Court,12 the defendant
claimed, inter alia, that the court should overrule its
interpretation of § 21a-278 (b) in Ray because the
United States Supreme Court’s subsequent decision in
Alleyne v. United States, supra, 570 U.S. 99, requires
the state to plead and prove beyond a reasonable doubt
those facts, such as lack of drug dependency under
§ 21a-278 (b), that trigger mandatory minimum senten-
ces. State v. Evans, supra, 329 Conn. 791. The state
disagreed with the merits of the defendant’s claims and
further contended that the trial court should have dis-
missed the defendant’s motion to correct for lack of
subject matter jurisdiction. Id., 776.
The court first addressed the state’s challenge to the
trial court’s subject matter jurisdiction. The state
argued, inter alia, that the defendant’s motion to correct
did not challenge the sentencing phase of the proceed-
ing but, rather, the underlying conviction. Id., 778; see
also State v. Lawrence, 281 Conn. 147, 158, 913 A.2d
428 (2007) (‘‘[A] challenge to the legality of a sentence
focuses not on what transpired during the trial or on
the underlying conviction. In order for the court to have
jurisdiction over a motion to correct an illegal sentence
after the sentence has been executed, the sentencing
proceeding, and not the trial leading to the conviction,
must be the subject of the attack.’’ [Emphasis added.]).
The court disagreed. It began by noting that ‘‘[t]he
state’s jurisdictional challenge require[d] [it] to consider
whether the defendant ha[d] raised a colorable claim
within the scope of Practice Book § 43-22 that would,
if the merits of the claim were reached and decided in
the defendant’s favor, require correction of a sentence.
. . . A colorable claim is one that is superficially well
founded but that may ultimately be deemed invalid.
. . . [This] jurisdictional inquiry is guided by the plausi-
bility that the defendant’s claim is a challenge to his
sentence, rather than its ultimate legal correctness.’’
(Citations omitted; internal quotation marks omitted.)
State v. Evans, supra, 783–84.
Turning to the defendant’s claims, the court in Evans
noted that he was not asking it ‘‘to disturb his conviction
under § 21a-278 (b), or otherwise claim[ing] that he
was convicted under the wrong statute. Instead, the
defendant [was seeking] resentencing, claiming that
§ 21a-278 (b) merely enhances the penalty available
under [General Statutes (Rev. to 2013)] § 21a-277 (a)13
when those statutes are read with the judicial gloss
rendered necessary by the United States Supreme
Court’s decisions in Alleyne v. United States, supra, 570
U.S. 99, and Apprendi v. New Jersey, supra, 530 U.S.
466.’’ (Footnote added.) Id., 785. ‘‘Given the otherwise
identical statutory language of §§ 21a-277 (a) and 21a-
278 (b), and the lack of any case law from [our Supreme
Court] squarely rejecting the defendant’s proffered
interpretation of § 21a-278 (b) as merely providing a
penalty enhancement in view of the [United States]
Supreme Court’s decision in Alleyne, which extended
the protections of Apprendi to mandatory minimum
sentences . . . [the court] conclude[d] that the defen-
dant’s interpretation of the narcotics statutory scheme
[was] sufficiently plausible to render it colorable for
the purpose of jurisdiction over his motion.’’ (Citation
omitted.) Id., 786.
The court then turned to the defendant’s claim that
Ray should be overruled in light of Alleyne. Id., 791.
The court began with a review of its decision in Ray
interpreting § 21a-278 (b), which provides in relevant
part that ‘‘[a]ny person who . . . sells . . . to another
person any narcotic substance . . . and who is not, at
the time of such action, a drug-dependent person, for
a first offense shall be imprisoned not less than five
years or more than twenty years . . . .’’ General Stat-
utes (Rev. to 2013) § 21a-278 (b). ‘‘[I]n Ray, [the court]
declined the defendant’s invitation to follow the analy-
sis of Justice Berdon’s dissent in [State v. Hart, 221
Conn. 595, 615–22, 605 A.2d 1366 (1992) (Berdon, J.
dissenting)], which interpreted § 21a-278 (b) to be effec-
tively . . . an aggravated form of § 21a-277 and con-
cluded that, therefore, the ‘not . . . a drug-dependent
person’ language in § 21a-278 (b) constitutes an aggra-
vating factor that must be treated as an element and
must be proven by the state.’’ (Footnote omitted; inter-
nal quotation marks omitted.) State v. Evans, supra,
329 Conn. 794–95. ‘‘Applying the principles of [United
States Supreme Court case law leading to Apprendi,
including Patterson v. New York, 432 U.S. 197, 210, 97
S. Ct. 2319, 53 L. Ed. 2d 281 (1977), the court in Ray
further concluded] that placing the burden on the defen-
dant to prove by a preponderance of the evidence a
fact—drug dependency—that affects the severity of his
punishment under § 21a-278 (b) is not unconstitu-
tional.’’ (Internal quotation marks omitted.) State v.
Evans, supra, 797.
With this review of Ray in mind, the court then turned
to the defendant’s claim that the United States Supreme
Court’s decision in Alleyne required it to overrule Ray.
The defendant argued that ‘‘lack of drug dependency
has the effect of increasing punishment ‘above what is
otherwise legally prescribed’; Alleyne v. United States,
supra, [570 U.S.] 108; by the otherwise identical § 21a-
277 (a) and, therefore, is an element of the offense
to be proven by the state. Accordingly, the defendant
argue[d] that the imposition of a mandatory minimum
sentence was improper because the state did not prove,
nor did the defendant admit, a lack of drug depen-
dency.’’ State v. Evans, supra, 329 Conn. 798.
After reviewing Alleyne and related federal prece-
dent, the court in Evans held that ‘‘State v. Ray, supra,
290 Conn. 602, remains good law in the wake of Alleyne.
Although Alleyne extended Apprendi to mandatory
minimum sentences, Alleyne did not disturb those por-
tions of Apprendi that reaffirmed Patterson v. New
York, supra, 432 U.S. 208–10, which upheld the states’
prerogative to utilize affirmative defenses to mitigate
or eliminate criminal liability without running afoul of
due process. Moreover, Alleyne did nothing to disturb
long-standing Supreme Court precedent holding that
whether a sentencing factor is, in essence, an element
requiring the state to plead and prove it beyond a rea-
sonable doubt, or an affirmative defense, the pleading
and proof of which may be allocated to the defendant,
is a matter of state law for ‘authoritative’ determination
by state courts interpreting state statutes . . . .’’ (Cita-
tion omitted; emphasis in original.) State v. Evans,
supra, 329 Conn. 802–803. Accordingly, after rejecting
the defendant’s remaining claims, the court affirmed
the trial court’s denial of his motion to correct an illegal
sentence. Id., 815.
In sum, the court in Evans cemented its prior holding
in Ray that drug dependency is an affirmative defense
to § 21a-278 (b) that must be proven by the defendant,
and, thus, it held that the sentencing of a defendant
under § 21a-278 (b) without a finding or admission that
the defendant is not drug-dependent does not implicate
Alleyne, which deals with facts that must be proven by
the state in order to trigger the mandatory minimum
sentence for a crime.
In the present cases, the defendants argued before
the trial court that Ray is no longer good law in light
of Alleyne and that not being drug-dependent therefore
constitutes an element of § 21a-278 (b) that must be
proven by the state. In view of Evans, it is clear that
the defendants’ claims of an illegal sentence would fail
on the merits. The trial court in the present cases, how-
ever, did not dispose of the defendants’ motions to
correct on the merits; it dismissed them for lack of
subject matter jurisdiction.
The court’s jurisdictional holding in Evans leads us
to conclude that the trial court’s dismissals in the cases
at hand were improper because, at the time the trial
court adjudicated the defendants’ motions—pre-
Evans—they presented colorable claims of an illegal
sentence. See id., 786–88. In our view, however, the
defendants’ claims have since lost their hue. One of the
primary reasons underlying the court’s conclusion in
Evans regarding jurisdiction was the fact that there had
been a ‘‘lack of any case law from [our Supreme Court]
squarely rejecting the defendant’s proffered interpreta-
tion of § 21a-278 (b) as merely providing a penalty
enhancement in view of the [United States] Supreme
Court’s decision in Alleyne . . . .’’ Id., 786. Because
our Supreme Court has now squarely rejected claims
identical to those made by the defendants in the present
cases, they no longer present colorable issues. Accord-
ingly, although it was error, at the time, for the trial
court to have dismissed the defendants’ motions for
lack of subject matter jurisdiction, in light of Evans, a
trial court faced with such claims today would not have
subject matter jurisdiction to decide them. We therefore
affirm the trial court’s dismissals, as it would serve no
beneficial purpose to remand the cases with direction
to dismiss the motions pursuant to Evans.14
The judgments are affirmed.
In this opinion the other judges concurred.
1
The defendants were convicted at different times between 2011 and
2013. During this period of time, the language of § 21a-278 remained
unchanged. For the sake of convenience, all references to § 21a-278 in this
opinion are to the 2013 revision of the statute.
General Statutes (Rev. to 2013) § 21a-278 (b) provides: ‘‘Any person who
manufactures, distributes, sells, prescribes, dispenses, compounds, trans-
ports with the intent to sell or dispense, possesses with the intent to sell
or dispense, offers, gives or administers to another person any narcotic
substance, hallucinogenic substance other than marijuana, amphetamine-
type substance, or one kilogram or more of a cannabis-type substance,
except as authorized in this chapter, and who is not, at the time of such
action, a drug-dependent person, for a first offense shall be imprisoned not
less than five years or more than twenty years; and for each subsequent
offense shall be imprisoned not less than ten years or more than twenty-
five years. The execution of the mandatory minimum sentence imposed by
the provisions of this subsection shall not be suspended, except the court
may suspend the execution of such mandatory minimum sentence if at the
time of the commission of the offense (1) such person was under the age
of eighteen years, or (2) such person’s mental capacity was significantly
impaired, but not so impaired as to constitute a defense to prosecution.’’
2
Fernandes also was convicted, on a plea of guilty, of interfering with a
police officer in violation of General Statutes § 53a-167a.
3
Rodriguez also was convicted, on a plea of guilty, of possession of
narcotics with the intent to sell within 1500 feet of a school in violation of
General Statutes (Rev. to 2011) § 21a-278a (b), carrying a pistol without a
permit in violation of General Statutes § 29-35 (a), and criminal possession
of a firearm by a felon in violation of General Statutes (Supp. 2012) § 53a-
217. Rodriguez admitted, as well, to a violation of probation.
4
In addition, upon his own admission, Thigpen was found to have violated
his probation. He also was convicted, on a plea of guilty, of possession of
narcotics in violation of General Statutes (Rev. to 2011) § 21a-279 (a).
5
In light of the state of Connecticut’s ‘‘Second Chance Society’’ initiatives
and an attendant increased awareness of the central role drug dependency
plays in criminal conduct, we believe that it would be appropriate for a trial
court, while canvassing a defendant on a plea of guilty to a violation of
§ 21-278 (b), to ensure that the defendant understands that drug dependency
is an affirmative defense to the charge and that a guilty plea constitutes a
waiver of that defense, and to ensure that any such waiver is made knowingly
and voluntarily. We make this suggestion in view of the fact that a guilty
plea to this offense may, at least for the mandatory minimum period of
incarceration, disqualify a defendant from participation in any intensive
residential community based drug treatment program.
6
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.’’
7
In their motions to correct, the defendants also claimed that their senten-
ces were illegal or imposed in an illegal manner because (1) the court relied
on ‘‘an inaccurate understanding’’ of the relevant facts and legal principles,
(2) the court was ‘‘unaware of the available sentencing range [due to an
erroneous belief] that it was required to impose the mandatory minimum
sentence,’’ and (3) the sentences violated the rule of lenity and the require-
ment of article first, § 9, of the Connecticut constitution that no person
shall be confined unless clearly warranted by law. In subsequently filed
memoranda of law in support of the motions, the defendants additionally
claimed that their sentences were illegal and imposed in an illegal manner
because they violated the defendants’ state and federal constitutional rights
to equal protection of the laws and due process, in that there is no rational
basis for punishing the same behavior with differing punishments under
two separate statutes. The trial court determined that it lacked subject
matter jurisdiction to decide these claims as well. The defendants do not
challenge this determination on appeal, and we therefore do not address
them further.
8
In conjunction with these motions, the court also heard a similar motion
to correct filed by Albert Nalewajk. Nalewajk appealed from the same memo-
randum of decision giving rise to the present appeals. On February 6, 2019,
while Nalewajk’s appeal was pending, his counsel filed a suggestion of death
indicating that Nalewajk had died. Consequently, this court dismissed the
appeal as moot. See State v. Nalewajk, 190 Conn. App. , A.3d
(2019).
9
While these appeals were pending and before the date of oral argument,
we sent a notice to counsel in each appeal informing them that, at oral
argument, they should be prepared to address the following additional issues
at oral argument: ‘‘Is any defendant’s case moot because: (1) he has fully
served the incarceration part of his sentence; or (2) he has fully served the
mandatory minimum portion of his incarceration sentence?’’ On the basis
of representations made by counsel at oral argument, we are not able to
conclude that any of the appeals at hand are moot for either of the reasons
set forth in our notice to counsel.
10
On November 16, 2018, this court issued the following order in each of
the appeals at hand: ‘‘It is hereby ordered that the stay of the appeal is
lifted. The parties are also hereby ordered to file memoranda of no more
than ten pages on or before December 17, 2018, addressing the impact of
State v. Evans, [supra, 329 Conn. 770] and State v. Allan, [supra, 329 Conn.
815], on the appeal.’’ The state and the defendants timely complied with
this order.
11
Allan is the companion case to Evans and is factually and procedurally
similar to it. See State v. Allan, supra, 329 Conn. 816, 819. We therefore do
not separately discuss Allan.
12
The court in Evans had granted the defendant’s motion to transfer his
appeal from the Appellate Court to our Supreme Court, pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-2. State v. Evans, supra, 329
Conn. 773 n.2.
13
For the reasons stated in footnote 1 of this opinion, we refer to the
2013 revision of § 21a-277, which provides: ‘‘Any person who manufactures,
distributes, sells, prescribes, dispenses, compounds, transports with the
intent to sell or dispense, possesses with the intent to sell or dispense,
offers, gives or administers to another person any controlled substance
which is a hallucinogenic substance other than marijuana, or a narcotic
substance, except as authorized in this chapter, for a first offense, shall be
imprisoned not more than fifteen years and may be fined not more than
fifty thousand dollars or be both fined and imprisoned; and for a second
offense shall be imprisoned not more than thirty years and may be fined
not more than one hundred thousand dollars, or be both fined and impris-
oned; and for each subsequent offense, shall be imprisoned not more than
thirty years and may be fined not more than two hundred fifty thousand
dollars, or be both fined and imprisoned.’’
14
It is well accepted that ‘‘[w]hen a trial court reaches a correct outcome,
but on grounds that cannot be sustained, [this court has] repeatedly upheld
the court’s judgment if there are other grounds to support it.’’ (Internal
quotation marks omitted.) Lederle v. Spivey, 151 Conn. App. 813, 818, 96
A.3d 1259, cert. denied, 314 Conn. 932, 102 A.3d 84 (2014).