State v. Palmenta ( 2016 )

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STATE OF CONNECTICUT v. SCOTT PALMENTA
(AC 37891)
DiPentima, C. J., and Mullins and Jongbloed, Js.
Argued May 12—officially released September 6, 2016
(Appeal from Superior Court, judicial district of
Litchfield, geographical area number eighteen,
Ginnochio, J.)
David B. Bachman, assigned counsel, for the appel-
late (defendant).
Toni M. Smith-Rosario, senior assistant state’s attor-
ney, with whom, on the brief, were David S. Shepack,
state’s attorney, and Dawn Gallo, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
JONGBLOED, J. The defendant, Scott Palmenta,
appeals from the judgment of the trial court denying
his motion to correct an illegal sentence. On appeal,
the defendant claims that he falls within the exemption
set forth in General Statutes § 53a-40 (c), and, therefore,
the court improperly sentenced him as a persistent seri-
ous felony offender. We disagree with the defendant
and, accordingly, affirm the judgment of the trial court.
The following undisputed facts and procedural his-
tory, as set forth in the court’s memorandum of deci-
sion, are relevant to this appeal. ‘‘On May 8, 2009, in
Docket No. CR-07-124076-S, the defendant [pleaded]
guilty to burglary in the second degree in violation of
General Statutes § 53a-102 (a) (2); attempt [to commit]
larceny in the third degree in violation of General Stat-
utes §§ 53a-124 (a) (2) and 53a-49; and criminal mischief
in the second degree in violation of General Statutes
§ 53a-116 (a) (1). The defendant also admitted to being
a persistent [serious] felony offender in violation of
General Statutes § 53a-40 (c) and § 53a-40 (j).1
‘‘On May 8, 2009, in Docket No. CR-07-125614-S, the
defendant [pleaded] guilty to burglary in the third
degree in violation of General Statutes § 53a-103; iden-
tity theft in the third degree in violation of General
Statutes § 53a-129d; and larceny in the fifth degree in
violation of General Statutes § 53a-125. The defendant
also admitted to being a persistent [serious] felony
offender in violation of General Statutes § 53a-40 (c)
and § 53a-40 (j). On August 7, 2009, the defendant was
sentenced to a total effective sentence of thirty years,
execution suspended after ten years of incarceration,
followed by five years of probation.’’2
On March 20, 2014, the defendant filed a motion to
correct an illegal sentence pursuant to Practice Book
§ 43-22. In that motion, the defendant argued that the
court improperly enhanced his sentence on the charge
of burglary in the second degree after finding him to
be a persistent serious felony offender. He argued that
his sentence was illegal because his admission that he
was a persistent serious felony offender was not know-
ing, intelligent and voluntary. He further argued that
the sentencing court had no factual or legal basis for
its finding that he should be sentenced as a persistent
serious felony offender. Specifically, the defendant con-
tended that he fell within the exemption set forth in
§ 53a-40 (c), and, therefore, could not be considered a
persistent serious felony offender. The state filed an
objection to the motion. Following a hearing, the trial
court denied the defendant’s motion by memorandum
of decision dated August 21, 2014.3 The defendant then
filed the present appeal in which he claims that the
court improperly denied his motion to correct an illegal
sentence. Specifically, he argues that he falls within the
exemption set forth in § 53a-40 (c) and, therefore, the
court improperly sentenced him as a persistent serious
felony offender.4
Before commencing our review of the defendant’s
claim, we first set forth the applicable standard of
review. ‘‘[A] claim that the trial court improperly denied
a defendant’s motion to correct an illegal sentence is
[typically] reviewed pursuant to the abuse of discretion
standard. . . . In the present case, however, the defen-
dant’s motion to correct an illegal sentence raises a
question of statutory construction. Issues of statutory
construction raise questions of law, over which we exer-
cise plenary review. . . . The process of statutory
interpretation involves the determination of the mean-
ing of the statutory language as applied to the facts of
the case, including the question of whether the language
does so apply. . . .
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . The test to deter-
mine ambiguity is whether the statute, when read in
context, is susceptible to more than one reasonable
interpretation.’’ (Citations omitted; internal quotation
marks omitted.) State v. Adams, 308 Conn. 263, 269–70,
63 A.3d 934 (2013).
Section 53a-40 (c) provides: ‘‘A persistent serious fel-
ony offender is a person who (1) stands convicted of
a felony, and (2) has been, prior to the commission of
the present felony, convicted of and imprisoned under
an imposed term of more than one year or of death, in
this state or in any other state or in a federal correctional
institution, for a crime. This subsection shall not apply
where the present conviction is for a crime enumerated
in subdivision (1) of subsection (a) of this section and
the prior conviction was for a crime other than those
enumerated in subsection (a) of this section.’’5 (Empha-
sis added.)
The issue to be resolved in this appeal is whether
the word ‘‘and’’ in the exemption contained in § 53a-40
(c) should be interpreted conjunctively or disjunctively.
The defendant contends that he had no prior conviction
for crimes enumerated in § 53a-40 (a) (1) and, therefore,
satisfied the second condition required for the exemp-
tion contained in § 53a-40 (c). He concedes, however,
that because the present conviction was for crimes
other than those enumerated in § 53a-40 (a) (1), he did
not satisfy the first portion of the exemption. According
to the defendant, because the word ‘‘and’’ in the exemp-
tion can be construed conjunctively or disjunctively, it
is ambiguous; we, therefore, should apply the rule of
lenity and narrowly construe the exemption in his favor
by adopting a disjunctive construction. In response,
the state argues that the court properly construed the
exemption contained in § 53a-40 (c) and, therefore,
properly denied the defendant’s motion to correct an
illegal sentence. We agree with the state.
‘‘Our Supreme Court has held that the term ‘and’ may
be construed to mean ‘or,’ especially if construing ‘and’
in the conjunctive would lead to an illogical or unrea-
sonable result.’’ Kayla M. v. Greene, 163 Conn. App.
493, 502, 136 A.3d 1 (2016). In support of his argument
that ‘‘and’’ should be construed disjunctively in § 53a-
40 (c), the defendant relies on Bania v. New Hartford,
138 Conn. 172, 83 A.2d 165 (1951) and Commission on
Hospitals & Healthcare v. Lakoff, 214 Conn. 321, 572
A.2d 316 (1990). In Bania, our Supreme Court con-
strued the word ‘‘and’’ disjunctively in a statute that
prohibited Sunday sales of liquor but further provided
that ‘‘any town may . . . allow the sale of alcoholic
liquor on Sunday between the hours of twelve o’clock
noon and nine o’clock in the evening in hotels, restau-
rants and clubs.’’ (Emphasis added.) Bania v. New
Hartford, supra,173. In Lakoff, our Supreme Court con-
strued disjunctively the word ‘‘and’’ in the phrase ‘‘pre-
vention, diagnosis and treatment’’ in General Statutes
(Rev. to 1987) § 19a-145 so that an entity performing
only one of the three functions would meet the defini-
tion of a ‘‘health care facility or institution.’’ Commis-
sion on Hospitals & Healthcare v. Lakoff, supra, 328;6
see also Kayla M. v. Greene, supra, 503 (construing
‘‘and’’ disjunctively in General Statutes § 46b-16a [a] so
that ‘‘an applicant for a civil protection order on the
basis of stalking is required to prove only that there
are reasonable grounds to believe that a defendant
stalked and will continue to stalk, as described in [Gen-
eral Statutes] §§ 53a-181c, 53a-181d or 53a-181e.’’
[emphasis in original]).
Unlike the statutes at issue in the previously cited
cases, § 53a-40 (c) addresses two preconditions that
must be fulfilled before a defendant is entitled to the
exemption. State v. Bell, 283 Conn. 748, 931 A.2d 198
(2007), is instructive on this point. In Bell, our Supreme
Court considered whether General Statutes (Rev. to
2007) § 53a-40 (h) was unconstitutional because it
allowed for a finding by the trial court, rather than the
jury, that imposing extended incarceration would best
serve the public interest. Id., 784–85. As part of its
analysis of this claim, the court stated: ‘‘In examining
the text of the statute, we note at the outset that, by
its use of the conjunctive ‘and,’ the statute appears to
impose two preconditions for an enhanced sentence to
be imposed in lieu of the lesser sentence prescribed
for the offense for which the defendant stands con-
victed: (1) the jury’s determination that the defendant
is a persistent offender; and (2) the court’s determina-
tion that the defendant’s history and character and the
nature and circumstances of his criminal conduct indi-
cate that extended incarceration will best serve the
public interest. See Penn v. Irizarry, 220 Conn. 682,
687, 600 A.2d 1024 (1991) (‘[t]he use of the conjunctive,
‘‘and,’’ indicates that both conditions must be fulfilled
before a new primary [election] may be ordered [pursu-
ant to General Statutes § 9-329a]’); Nicotra Wieler
Investment Management, Inc. v. Grower, 207 Conn.
441, 455, 541 A.2d 1226 (1988) (‘we find significance
in the use of the word ‘‘and’’ between the two stated
conditions’)’’ State v. Bell, supra, 283 Conn. 796.
Similarly, § 53a-40 (c) appears to impose two precon-
ditions to qualify for the exemption from persistent
serious felony offender status: (1) the present convic-
tion must be for a crime enumerated in subdivision (1)
of subsection (a) of § 53a-40, and (2) the prior convic-
tion must be for a crime other than those enumerated
in subsection (a) of § 53a-40. Pursuant to the plain lan-
guage of the statute, the exemption does not apply to
the defendant because he was not convicted of a crime
enumerated in § 53a-40 (a) (1).
Even if we were to conclude, however, that the statu-
tory language is ambiguous, the legislative intent does
not support the defendant’s interpretation of the exemp-
tion contained in § 53a-40. The 1971 commission com-
ment to § 53a-40 provides in relevant part: ‘‘This section
creates a new scheme for sentencing relating to recidi-
vists. It singles out three types of recidivists for special
treatment: (1) persistent dangerous felony offender; (2)
persistent felony offender; and (3) persistent larceny
offender. . . . A persistent felony offender . . . is one
who stands convicted of a felony and who has at least
once before been convicted of a felony and imprisoned
therefor for more than one year. The consequence of
being found to be a persistent felony offender is that
the court may, in its discretion, impose the sentence
authorized for the next more serious degree of felony.
Thus, a person convicted of a class C felony who has a
prior felony conviction and imprisonment on his record
may be sentenced as a class B felon. The purpose of
the last section of subsection (b) [presently subsection
(c)] is to make clear, however, that this escalation to
the next higher degree does not apply where the present
conviction is for one of the dangerous felonies listed
in subsection (a) (1), since the authorized maximum
sentences for those offenses are already high, and it
would otherwise be possible to reach a life sentence
under subsection (b) where the requirements of subsec-
tion (a) had not been met.’’ (Emphasis added.) Commis-
sion to Revise the Criminal Statutes, Penal Code
Comments, Conn. Gen. Stat. Ann. § 53a-40 (West 2012)
commission comment, p. 661. Because the defendant
has not been convicted of any of the felonies listed in
§ 53a-40 (a) (1) (A), application of the exemption to
the defendant would frustrate the stated purpose of
the statute.
Finally, we disagree with the defendant’s contention
that a conjunctive reading of the word ‘‘and’’ will lead to
an illogical result and create disharmony in the statute’s
hierarchical structure. In rejecting this argument, the
trial court stated: ‘‘Interpreting the word ‘and’ in the
disjunctive would frustrate the legislative intent of the
statute and create a bizarre result in that it would
exempt large classes of repeat felony offenders from
persistent serious felony offender status based on
whether they meet one precondition or the other. In
adopting the defendant’s interpretation, a defendant’s
prior conviction of a crime other than, e.g., manslaugh-
ter, arson, kidnapping, etc., would automatically pre-
vent the court from imposing a sentence enhancement
on a defendant’s present conviction. In addition, a
defendant would be exempt if his or her present convic-
tion is for a crime enumerated in subdivision (1) of
subsection (a). Therefore, a defendant presently con-
victed of, e.g., arson, would automatically be exempt
from sentence enhancement, even if the defendant has
a prior conviction of arson. Such results would directly
contradict the statute’s purpose in allowing our sentenc-
ing courts to impose a more severe penalty for particu-
lar present convictions based upon a defendant’s prior
conviction(s).’’ (Emphasis in original.) We equally are
persuaded that a disjunctive reading of the exemption
contained in § 53a-40 would lead to a bizarre and irratio-
nal result. See State v. Burns, 236 Conn. 18, 27, 670
A.2d 851 (1996) (presumption that legislature intends
to accomplish reasonable and rational result rather than
difficult and possibly bizarre result).
On the basis of the foregoing, we conclude that the
court correctly construed the word ‘‘and’’ in a conjunc-
tive manner in § 53a-40 (c). The plain language of the
statute, as well as the commission comment and the
case law interpreting another portion of the same stat-
ute, support this interpretation. In light of this conclu-
sion, the defendant cannot prevail on his claim that the
court improperly denied his motion to correct an illegal
sentence and that the rule of lenity requires that the
exemption be read disjunctively. ‘‘[T]he touchstone of
this rule of lenity is statutory ambiguity. . . . [W]e . . .
[reserve] lenity for those situations in which a reason-
able doubt persists about a statute’s intended scope
even after resort to the language and structure, legisla-
tive history, and motivating policies of the statute. . . .
Because we conclude that, after full resort to the pro-
cess of statutory construction, there is no reasonable
doubt as to the meaning of the statute, we need not
resort to the rule of lenity.’’ (Citations omitted; empha-
sis in original; internal quotation marks omitted.) State
v. Ledbetter, 240 Conn. 317, 331, n.12, 692 A.2d 713
(1997).
The judgment is affirmed.
In this opinion the other judges concurred.
1
As amended by No. 15-2 of the 2015 Public Acts, subsection (j) of § 53a-
40 became subsection (k).
2
The court’s memorandum of decision provides: ‘‘[I]n Docket No. CR-07-
124076-S, the defendant was sentenced on the count of burglary in the
second degree, to twenty years, execution suspended after ten years of
incarceration, followed by five years of probation; on the count of larceny
in the third degree, to five years to serve, concurrent; and on the count of
criminal mischief in the second degree, to one year to serve, concurrent.
In Docket No. CR-07-125614-S, the defendant was sentenced on the count of
burglary in the third degree, to ten years, execution suspended, consecutive,
followed by five years of probation; on the count of identity theft in the
second degree, to five years to serve, concurrent; and on the count of larceny
in the fifth degree, to six months to serve, concurrent.’’
3
On January 23, 2015, the court issued an amended memorandum of
decision correcting the docket numbers in the heading of the decision.
4
The defendant frames his argument by claiming that the court violated
his right to due process of law under the United States and Connecticut
constitutions because he lacked fair warning that he could be sentenced as
a persistent serious felony offender. The defendant, however, did not raise
a claim of lack of fair warning in his motion to correct an illegal sentence.
He relied solely on his statutory construction claim. At oral argument before
this court, the defendant indicated that he was not pursuing a separate
claim regarding lack of fair warning. Rather, the fair warning claim was
intended to undergird his argument that, because § 53a-40 is ambiguous,
the rule of lenity requires that the exemption be narrowly construed in
his favor. We, therefore, restrict our analysis to the statutory construction
argument raised in the trial court and properly raised on appeal.
5
General Statutes § 53a-40 (a) provides in relevant part: ‘‘A persistent
dangerous felony offender is a person who: (1) (A) Stands convicted of
manslaughter, arson, kidnapping, robbery in the first or second degree,
assault in the first degree, home invasion, burglary in the first degree or
burglary in the second degree with a firearm, and (B) has been, prior to
the commission of the present crime, convicted of and imprisoned under
a sentence to a term of imprisonment of more than one year or of death,
in this state or in any other state or in a federal correctional institution, for
any of the following crimes: (i) The crimes enumerated in subparagraph
(A) of this subdivision or an attempt to commit any of said crimes; or (ii)
murder, sexual assault in the first or third degree, aggravated sexual assault
in the first degree or sexual assault in the third degree with a firearm, or
an attempt to commit any of said crimes; or (iii) prior to October 1, 1975,
any of the crimes enumerated in section 53a-72, 53a-75 or 53a-78 of the
general statutes, revision of 1958, revised to 1975, or prior to October 1,
1971, in this state, assault with intent to kill under section 54-117, or any
of the crimes enumerated in sections 53-9, 53-10, 53-11, 53-12 to 53-16,
inclusive, 53-19, 53-21, 53-69, 53-78 to 53-80, inclusive, 53-82, 53-83, 53-86,
53-238 and 53-239 of the general statutes, revision of 1958, revised to 1968,
or any predecessor statutes in this state, or an attempt to commit any of
said crimes; or (iv) in any other state, any crimes the essential elements
of which are substantially the same as any of the crimes enumerated in
subparagraph (A) of this subdivision or this subparagraph . . . .’’
6
The court in Lakoff also noted that the legislature recently had amended
§ 19a-145 so that the statute would read ‘‘prevention, diagnosis or treatment.’’
(Emphasis added.) Commission on Hospitals & Healthcare v. Lakoff, supra,
214 Conn. 330.