State v. Spielberg ( 2016 )

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STATE OF CONNECTICUT v. MAX SPIELBERG
(SC 19627)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued September 16—officially released December 20, 2016
David B. Rozwaski, assigned counsel, for the appel-
lant (defendant).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, was Stephen J. Sedensky III,
state’s attorney, for the appellee (state).
Opinion
ESPINOSA, J. In this appeal, we are asked to decide
whether the defendant, Max Spielberg, is entitled to
erasure of the records of his conviction of possession
of less than four ounces of marijuana in violation of
General Statutes (Rev. to 2009) § 21a-279 (c), despite
the lack of any factual record as to the amount of
marijuana he possessed at the time of his arrest. The
defendant appeals from the judgment of the trial court
denying his petition for an order of erasure.1 He con-
tends that because possession of less than one-half
ounce of marijuana has been decriminalized; see Public
Acts 2011, No. 11-71, § 2 (P.A. 11-71); the trial court
improperly concluded that he was not entitled to era-
sure of the records of this conviction pursuant to Gen-
eral Statutes § 54-142d.2 Because this court’s decision
in State v. Menditto, 315 Conn. 861, 110 A.3d 410 (2015),
clarified Connecticut case law while this appeal was
pending, the judgment of the trial court is reversed
and the case is remanded to that court to conduct an
evidentiary hearing on the defendant’s petition for an
order of erasure.
The record reveals the following undisputed facts.
On August 18, 2010, officers from the Community Condi-
tions Unit of the Danbury Police Department visited
the defendant’s residence because he was on probation
and had failed to inform the Office of Adult Probation
of his new address within the requisite period of time
after he had moved. The officers detected a strong odor
of marijuana throughout the residence and asked the
defendant if he had any marijuana on his person or in
the residence. He indicated that there was marijuana
both on his person and in the residence. In the defen-
dant’s pockets, the officers found $44 and eight clear
plastic bags containing marijuana. Elsewhere in the res-
idence, the officers found additional marijuana, drug
paraphernalia, cultivation supplies, and $380. Located
near some of the drugs, drug paraphernalia, and cultiva-
tion supplies were toys and clothing that belonged to
the defendant’s four year old son who visited and slept
at the residence. The defendant indicated that his son
had left the residence moments prior to the officers’
arrival.
The defendant was arrested and subsequently, on
April 1, 2011, pleaded guilty to possession of less than
four ounces of marijuana in violation of General Stat-
utes (Rev. to 2009) § 21a-279 (c),3 possession of mari-
juana within 1500 feet of a school in violation of General
Statutes (Rev. to 2009) § 21a-279 (d), and risk of injury
to a child in violation of General Statutes (Rev. to 2009)
§ 53-21 (a) (1).4 He received a total effective sentence
of five years and one day of incarceration followed by
seven years of special parole.
On July 1, 2011, P.A. 11-71 became effective, reducing
the penalty for possessing less than one-half ounce of
marijuana from a potential term of imprisonment and/
or a large fine to a fine of between $150 and $500. See
General Statutes § 21a-279a. The enactment of P.A. 11-
71 raised the question of whether the legislature had
‘‘decriminalized’’ the possession of small amounts of
marijuana, thus entitling some defendants who had
been convicted of possession of less than four ounces
of marijuana in violation of § 21a-279 (c), prior to 2011,
to erasure of their records by virtue of § 54-142d.5
The trial court considered this claim in State v. Men-
ditto, Superior Court, judicial district of Tolland,
Docket No. CR-09-0095007-S (January 25, 2012) (53
Conn. L. Rptr. 415). In that case, Nicholas Menditto was
arrested for possession of approximately 0.15 and 0.01
ounces of marijuana on two occasions in 2009, and
subsequently pleaded guilty to two counts of possession
of less than four ounces of marijuana in violation of
General Statutes (Rev. to 2009) § 21a-279 (c). Id., 416.
After the legislature amended § 21a-279 through P.A.
11-71, Menditto filed petitions for erasure pursuant to
§ 54-142d, arguing that § 54-142d applied to his convic-
tions because P.A. 11-71 decriminalized the possession
of less than one-half ounce of marijuana. Id. The trial
court concluded that P.A. 11-71 did not ‘‘decriminalize’’
the possession of less than one-half ounce of marijuana
for purposes of § 54-142d because those convictions
remained violations and, therefore, the defendant was
not entitled to erasure. Id., 417–18. The Appellate Court
agreed and affirmed the judgments of the trial court.
State v. Menditto, 147 Conn. App. 232, 246, 80 A.3d
923 (2013).
Pursuing a similar argument as Menditto, the defen-
dant in the present case filed a petition for erasure
pursuant to § 54-142d on March 5, 2013. Consistent with
the trial court’s decision in State v. Menditto, supra, 53
Conn. L. Rptr. 415, the trial court in the present case
denied the defendant’s petition for erasure and subse-
quently denied the defendant’s motion for reconsidera-
tion. This appeal followed.
While this appeal was pending, the effect of P.A.
11-71 was clarified when this court decided State v.
Menditto, supra, 315 Conn. 861. In that case, we
reversed the Appellate Court in part and concluded that
P.A. 11-71 decriminalized the possession of less than
one-half ounce of marijuana and, therefore, the records
of Menditto’s convictions were entitled to erasure pur-
suant to § 54-142d. Id., 872–76.
In contrast to State v. Menditto, supra, 315 Conn.
861, however, in which there was a factual record of
the amount of marijuana Menditto possessed at the
time of his arrests, no such record exists in the present
case. Under the current state of the law, the amount
of marijuana that the defendant possessed—specifically
whether he possessed less than one-half ounce of mari-
juana—is key to the determination of whether he is
entitled to erasure pursuant to § 54-142d. The record
in the present case merely reveals that the defendant
pleaded guilty to possession of less than four ounces
of marijuana. Because P.A. 11-71 only decriminalized
the possession of less than one-half ounce of marijuana,
and this court does not find facts, factual findings by the
trial court as to the amount of marijuana the defendant
possessed are necessary to a determination of whether
he is entitled to erasure of the records relating to his
conviction.
The state contends that this court should affirm the
denial of the defendant’s petition for erasure because
his conviction of possession of less than four ounces
of marijuana was the basis for his conviction under
the same docket number of possession of a controlled
substance within 1500 feet of a school and risk of injury
to a child. In order for the defendant to be entitled to
erasure pursuant to § 54-142d of the records pertaining
to any one offense of which he was convicted, the state
contends that the records of the companion charges
for which he was convicted under that same docket
number also must be entitled to erasure because such
a requirement is present in General Statutes § 54-142a,
a related erasure statute. We disagree.
Specifically, the state relies on § 54-142a (g), which
is an exception to the general rules of erasure set forth
in § 54-142a. Section 54-142a provides for the erasure
of records in certain circumstances, including: the
records of the police, the court, and the state’s attorney
when a person is acquitted or the charges are dismissed;
General Statutes § 54-142a (a); when criminal charges
are nolled; General Statutes § 54-142a (c); or when a
person is pardoned. General Statutes § 54-142a (d). Sec-
tion 54-142a (g), however, provides that the provisions
of § 54-142a (a), (c) and (d) do not apply to ‘‘any infor-
mation or indictment containing more than one count
. . . when the criminal case is disposed of unless and
until all counts are entitled to erasure in accordance
with the provisions of this section . . . .’’ (Emphasis
added.) The state, in effect, asks this court to read the
language of § 54-142a (g) into § 54-142d, the statute
pertaining to the destruction of the records of decrimi-
nalized offenses. We decline to do so because the legis-
lature clearly intended to treat these statutes
differently.
It is a well settled tenet of statutory construction
that ‘‘[w]hen a statute, with reference to one subject
contains a given provision, the omission of such provi-
sion from a similar statute concerning a related subject
. . . is significant to show that a different intention
existed. . . . That tenet of statutory construction is
well grounded because [t]he General Assembly is
always presumed to know all the existing statutes and
the effect that its action or [nonaction] will have upon
any one of them.’’ (Internal quotation marks omitted.)
State v. Heredia, 310 Conn. 742, 761, 81 A.3d 1163
(2013).
It is undisputed that the limitation contained in § 54-
142a (g) is omitted from § 54-142d, a statute that, similar
to § 54-142a, also concerns the erasure of criminal
records. This omission is evidence that the legislature
intended to treat the erasure of records pertaining to
charges that have been dismissed or nolled and records
of people who have been acquitted or pardoned, differ-
ently than records pertaining to decriminalized
offenses. The legislature’s differential treatment, more-
over, seems intentional given the legislature’s subse-
quent amendments to § 54-142a (g). The legislature
enacted § 54-142a (g) in 1975, and § 54-142d in 1983. In
the forty-one years since its enactment, § 54-142a (g)
has been amended no less than six times.6 In 1993, the
legislature made the first amendment to § 54-142a (g)
since its enactment of § 54-142d; Public Acts 1993, No.
93-142, § 3; but did not reference decriminalized
offenses or § 54-142d. In 1995, the legislature further
amended § 54-142a (g). See Public Acts 1995, No. 95-
133, § 1. Yet again, it made no mention of decriminalized
offenses or § 54-142d. The legislature amended § 54-
142a (g) three more times, in 1999, 2002, and 2008, and
failed to reference decriminalized offenses or § 54-142d
in these amendments.7 Moreover, in the thirty-three
years since the enactment of § 54-142d, the legislature
has never added restrictive language similar to § 54-
142a (g). If the legislature intended that the limitation
of § 54-142a (g) apply to the erasure of decriminalized
offenses, it could have amended it to include the records
of decriminalized offenses entitled to erasure under
§ 54-142d, or amended § 54-142d by adding a subsection
similar to § 54-142a (g). It did not do so. We, therefore,
decline to adopt the state’s contention that, because
the defendant’s conviction of possession of less than
four ounces of marijuana was the basis for the other
charges of which he was convicted, he is not entitled
to erasure.
The judgment denying the petition for an order of
erasure is reversed and the case is remanded with direc-
tion to conduct an evidentiary hearing to determine
whether the defendant possessed less than one-half
ounce of marijuana and the record of that conviction
is therefore entitled to erasure under § 54-142d.
In this opinion the other justices concurred.
1
The defendant appealed from the judgment of the trial court to the
Appellate Court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
2
The defendant also argues that this court should use its supervisory
authority to vacate his conviction of the other two charges to which he
pleaded guilty under the same docket number, possession of a controlled
substance within 1500 feet of a school in violation of General Statutes (Rev.
to 2009) § 21a-279 (d) and risk of injury to a child in violation of General
Statutes (Rev. to 2009) § 53-21 (a) (1). We disagree. The present case does
not present extraordinary circumstances sufficient for this court to exercise
its supervisory authority. See State v. Edwards, 314 Conn. 465, 498, 102
A.3d 52 (2014); State v. Lockhart, 298 Conn. 537, 576, 4 A.3d 1176 (2010).
3
At the time of the defendant’s plea, General Statutes (Rev. to 2009) § 21a-
279 (c) provided in relevant part: ‘‘Any person . . . who possesses or has
under his control less than four ounces of a cannabis-type substance, except
as authorized in this chapter, for a first offense, may be fined not more than
one thousand dollars or be imprisoned not more than one year, or be both
fined and imprisoned; and for a subsequent offense, may be fined not more
than three thousand dollars or be imprisoned not more than five years, or
be both fined and imprisoned.’’
4
In addition to the offenses to which the defendant pleaded guilty, he
also had been charged with an additional count of possession of a controlled
substance within 1500 feet of a school in violation of General Statutes (Rev.
to 2009) § 21a-279 (d), two counts of possession of a controlled substance
with intent to sell within 1500 feet of a school in violation of General Statutes
§ 21a-278a (b), two counts of possession of drug paraphernalia within 1500
feet of a school in violation of General Statutes (Rev. to 2009) § 21a-267
(c), possession of a controlled substance with intent to sell in violation
General Statutes § 21a-277 (b), and use of drug paraphernalia in violation
of General Statutes (Rev. to 2009) § 21a-267 (a). The state entered a nolle
prosequi for each of the remaining charges.
At the time of his arrest the defendant was on probation for a 2006
conviction of criminal attempt to sell a hallucinogenic substance in violation
of General Statutes § 21-277 (a). As a result, he was also charged with
violation of probation in violation of General Statutes (Rev. to 2009) § 53a-
32 under a different docket number. The defendant pleaded guilty to violation
of probation on January 19, 2011.
5
General Statutes § 54-142d provides in relevant part: ‘‘Whenever any
person has been convicted of an offense in any court in this state and such
offense has been decriminalized subsequent to the date of such conviction,
such person may file a petition with the [S]uperior [C]ourt . . . for an order
of erasure, and the Superior Court . . . shall direct all police and court
records and records of the state’s or prosecuting attorney pertaining to such
case to be physically destroyed.’’
6
Section 54-142a (g) was first amended in 1981. Public Acts 1981, No. 81-
218, § 1. The legislature did not reference decriminalized offenses in that
amendment; that amendment, however, predated the enactment of § 54-142d.
7
See Public Acts 1999, No. 99-215, § 18; Public Acts 2002, No. 02-132, § 60;
Public Acts 2008, No. 08-151, § 1.