State v. Henderson , 173 Conn. App. 119 ( 2017 )

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STATE OF CONNECTICUT v. MITCHELL
HENDERSON
(AC 38381)
Keller, Prescott and Harper, Js.
Argued January 9—officially released May 16, 2017
(Appeal from Superior Court, judicial district of
Hartford, Espinosa, J. [judgment]; Alexander, J. [motion
to correct illegal sentence].)
Moira L. Buckley, assigned counsel, for the appel-
lant (defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Anne F. Mahoney and Gail
P. Hardy, state’s attorneys, for the appellee (state).
Opinion
HARPER, J. The defendant, Mitchell Henderson,
appeals from the judgment of the trial court denying
his motion to correct an illegal sentence. The defendant
was sentenced to a total effective term of forty-five
years imprisonment, suspended after thirty-five years,
with five years probation, following his conviction of
robbery in the first degree, as enhanced for being a
persistent dangerous felony offender, pursuant to Gen-
eral Statutes (Rev. to 1991) § 53a-40 (a),1 and attempt to
escape from custody, as enhanced for being a persistent
serious felony offender, pursuant to § 53a-40 (b). On
appeal, the defendant claims that the court improperly
denied his motion to correct an illegal sentence because
his classification as a persistent dangerous felony
offender and a persistent serious felony offender, and
his subsequent enhanced sentence violated the multiple
punishment prohibition of the double jeopardy clause.
Alternatively, he claims that punishment under both
persistent offender provisions runs contrary to the legis-
lature’s intent. We affirm the judgment of the court.
In State v. Henderson, 37 Conn. App. 733, 658 A.2d
585, cert. denied, 234 Conn. 912, 660 A.2d 355 (1995),
this court set forth the following facts and procedural
history underlying the defendant’s criminal conviction:
‘‘On the afternoon of January 17, 1992, the victim, Vict-
orene Hazel, and her companion, Codella Webley,
crossed Baltimore Street in Hartford after leaving the
Shawmut Bank. When the two women reached the cor-
ner of Baltimore Street and Homestead Avenue, they
were approached by the defendant who demanded that
Hazel hand over her purse to him. The defendant was
standing in front of Hazel, at a distance of one and one-
half to two feet. Her view of the defendant was clear
and unobstructed. After Hazel refused to turn over her
purse, the defendant pulled out a knife, grabbed her by
the shirt and hit her. When he grabbed Hazel, who had
a heart condition, she experienced pain in her chest.
The defendant threatened to kill her if she did not give
him the purse. When he swung the knife, she freed
herself from his grasp and ran in the direction of the
Shawmut Bank with the defendant chasing her. Hazel’s
purse fell off her shoulder as she was running and
the defendant picked it up. Hazel entered the bank
screaming that she had been robbed and needed help.
When Webley reached the bank, she noticed that Hazel
was breathing heavily, holding her chest and saying,
‘My heart, my heart.’
‘‘At approximately the same time, Howard Fraser and
his cousin, Earl Forrest, were driving on Homestead
Avenue when they stopped to look up a telephone num-
ber. As Forrest was looking for the number, Fraser
noticed from a distance of five to seven yards the victim
struggling with her assailant. As he and Forrest were
about to drive off, he saw the defendant grab the purse
from Hazel. When the victim began to scream, Fraser
realized that she was being robbed. Fraser watched
the defendant run up Baltimore Street and enter onto
private residential property. Fraser realized that the
defendant would have to exit on Kent Street, the street
parallel to Baltimore Street. Fraser and Forrest drove
to Kent Street in anticipation of seeing the defendant.
They saw him running down Kent Street toward Albany
Avenue with a purse under one arm. Fraser opened the
passenger door as they drove up next to the defendant.
Forrest told the defendant that they were the police
and ordered him not to move. Fraser then jumped out
the passenger door and grabbed the defendant. When
the defendant resisted, Forrest joined Fraser in an
attempt to subdue the defendant. Both Fraser and For-
rest repeatedly called for help as they were struggling
with the defendant. The defendant struck Fraser during
the struggle, and Fraser suffered a wrist injury from
striking the defendant.
‘‘Officer Douglas Frederick of the Hartford police
department arrived approximately five minutes after
the struggle had begun and saw the defendant holding
the victim’s purse. While the defendant was struggling
with Forrest and Fraser, the victim’s purse fell and its
contents scattered onto the street. Frederick’s attempt
to handcuff the defendant was unsuccessful because
he continued to resist fiercely. Frederick radioed for
assistance and, finally, with the help of other police
officers, managed to get the defendant into the police
cruiser. Frederick then informed the defendant that he
was under arrest.
‘‘At trial, Fraser identified the defendant in court as
the man he had caught running down Kent Street with
the victim’s purse and who had earlier robbed Hazel
on Homestead Avenue.
‘‘After Hazel and Webley left the bank, a man in a
truck informed them that the robber had been appre-
hended on Kent Street. The man drove both women to
Kent Street. After getting out of the truck, Hazel and
Webley saw the defendant sitting in the police cruiser.
Frederick had put the victim’s purse on top of the
cruiser for safekeeping while he was trying to restrain
the defendant. Frederick noticed two women running
down Kent Street toward his cruiser and he heard Hazel
yelling, ‘That’s him, he robbed me.’ Frederick asked
both Hazel and Webley to make sure that the man in
the cruiser was indeed the robber. Without any diffi-
culty, both women positively identified the defendant
as the robber. The weather was clear and there was
adequate sunlight to enable the women to make the
identification. Although Frederick was able to recover
the purse, his search of the defendant did not produce
a knife.
‘‘After telling the defendant that he was under arrest
and placing him in the police cruiser, Frederick trans-
ported him from the scene. The defendant yelled
obscenities and threatened to kill the officer. As Freder-
ick drove down Kent Street toward Albany Avenue, the
defendant became increasingly violent. The defendant
kicked out the rear window of the cruiser and attempted
to climb out while the cruiser was in motion. The defen-
dant was able to get his upper torso out of the rear
window. Frederick stopped the car and radioed for
assistance and an ambulance. Frederick then pulled the
defendant out of the cruiser and sat on him until help
arrived. When the ambulance arrived, the defendant
was put in a body bag and transported to St. Francis
Hospital. The defendant was treated for several cuts
he had sustained while attempting to climb out of the
rear window of the cruiser.’’ Id., 736–39.
The defendant subsequently was charged and, follow-
ing a jury trial, convicted of robbery in the first degree
in violation of General Statutes § 53a-134 (a) (3), and
attempt to escape from custody in violation of General
Statutes §§ 53a-171 and 53a-49. In addition to the sub-
stantive criminal offenses, the defendant was also
charged in two part B informations as a persistent dan-
gerous felony offender pursuant to § 53a-40 (a) regard-
ing his conviction of robbery in the first degree and as
a persistent serious felony offender pursuant to § 53a-
40 (b) and (g) regarding his conviction of attempted
escape. The defendant pleaded guilty to both persistent
felony offender charges under the Alford doctrine.2 On
December 14, 1993, the court imposed an enhanced
total effective sentence of forty-five years imprison-
ment, execution suspended after thirty-five years, and
five years of probation. With respect to the defendant’s
conviction as a persistent dangerous felony offender,
the court sentenced the defendant, pursuant to § 53a-
40 (f), to twenty-five years imprisonment. With respect
to the defendant’s conviction as a persistent serious
felony offender, the court sentenced the defendant, pur-
suant to § 53a-40 (g), to twenty years imprisonment,
execution suspended after ten years, followed by five
years of probation, consecutive to his robbery sentence.
In 1995, this court affirmed the defendant’s conviction
on direct appeal. Id., 736.
On September 11, 2014, the defendant filed a motion
to correct an illegal sentence. In support of his motion,
the defendant claimed that his sentence was illegal
because it violated the multiple punishment provision
of the double jeopardy clause, and that his enhanced
sentence runs contrary to the legislative intent of § 53a-
40. The court denied the defendant’s motion to correct
an illegal sentence and issued a supporting memoran-
dum of decision.
In its memorandum of decision, the court concluded
that the defendant’s classification as a persistent dan-
gerous felony offender and a persistent serious felony
offender pursuant to § 53a-40 (a) and (b), respectively,
and his subsequent enhanced sentence pursuant to
§ 53a-40 (f) and (g) did not violate the double jeopardy
clause’s prohibition against multiple punishments for
the same offense, and that his conviction did not run
contrary to the legislature’s intent. With respect to the
defendant’s double jeopardy argument, the court rea-
soned that the defendant’s two persistent felony
offender sentence enhancements did not arise from the
same transaction because the enhancements were not
substantive criminal offenses, but simply a harsher pen-
alty imposed for his conviction of robbery in the first
degree and attempt to escape from custody. In rejecting
the defendant’s claim that his enhanced sentence runs
contrary to the legislature’s intent, the court observed
that the plain language of the relevant persistent felony
offender provisions did not support the defendant’s
claim that his classification as a persistent dangerous
felony offender under § 53a-40 (a) precluded his classifi-
cation as a persistent serious felony offender under
§ 53a-40 (b), or vice versa.
On appeal, the defendant claims that the court
improperly denied his motion to correct an illegal sen-
tence in two respects: (1) his sentence violates the
double jeopardy clause’s prohibition against multiple
punishments for the same offense; and (2) his sentence
runs contrary to the legislature’s intent. We address
each of these arguments in turn.
I
The defendant asserts that the court improperly
denied his motion to correct an illegal sentence because
his classifications, and resulting enhanced sentence,
as both a persistent dangerous felony offender and a
persistent serious felony offender, violate the double
jeopardy clause’s prohibition against multiple punish-
ments for the same offense. Specifically, he argues that
the two persistent felony offender classifications arose
out of the same occurrences because they were both
based on his prior felony convictions. Further, he con-
tends that § 53a-40 (a) and (b) are the same offense
under Blockburger v. United States, 284 U.S. 299, 304,
52 S. Ct. 180, 76 L. Ed. 306 (1932), because § 53a-40 (b)
does not require proof of any fact that § 53a-40 (a) does
not also require. In response, the state argues that the
defendant misapplies the Blockburger test because it
is the elements of the underlying substantive charges of
which he was convicted that are relevant in determining
whether a double jeopardy violation exists, rather than
the elements of the persistent felony offender charges
which serve as the bases of the enhancement require-
ments of the persistent felony offender provisions, and
the charges against the defendant arose from separate
transactions. We agree with the state.
As a preliminary matter, we review the trial court’s
authority to correct an illegal sentence. Our Supreme
Court ‘‘has held that the jurisdiction of the sentencing
court terminates once a defendant’s sentence has
begun, and, therefore, that court may no longer take
any action affecting a defendant’s sentence unless it
expressly has been authorized to act. State v. Walzer,
208 Conn. 420, 424–25, 545 A.2d 559 (1988); see also
State v. Mollo, 63 Conn. App. 487, 490, 776 A.2d 1176,
cert. denied, 257 Conn. 904, 777 A.2d 194 (2001); State
v. Tuszynski, 23 Conn. App. 201, 206, 579 A.2d 1100(1990). Practice Book § 43-22, which provides the trial
court with such authority, provides that [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. An illegal sentence is essen-
tially one which either exceeds the relevant statutory
maximum limits, violates a defendant’s right against
double jeopardy, is ambiguous, or is internally contra-
dictory. State v. McNellis, 15 Conn. App. 416, 443–44,
546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441(1988). We previously have noted that a defendant may
challenge his or her criminal sentence on the ground
that it is illegal by raising the issue on direct appeal or
by filing a motion pursuant to § 43-22 with the judicial
authority, namely, the trial court. See Copeland v. War-
den, 225 Conn. 46, 47 n.2, 621 A.2d 1311 (1993).’’ (Inter-
nal quotation marks omitted.) State v. Tabone, 279
Conn. 527, 533–34, 902 A.2d 1058 (2006).
‘‘Ordinarily, a claim that the trial court improperly
denied a defendant’s motion to correct an illegal sen-
tence is reviewed pursuant to the abuse of discretion
standard.’’ Id., 534. In the present case, however, the
defendant’s double jeopardy claim presents a question
of law, over which we exercise plenary review. See
State v. Burnell, 290 Conn. 634, 642, 966 A.2d 168 (2009);
State v. Tabone, supra, 279 Conn. 534.
‘‘The double jeopardy clause of the fifth amendment
to the United States constitution provides: [N]or shall
any person be subject for the same offense to be twice
put in jeopardy of life or limb. The double jeopardy
clause [applies] to the states through the due process
clause of the fourteenth amendment. . . . This consti-
tutional guarantee prohibits not only multiple trials for
the same offense, but also multiple punishments for
the same offense in a single trial. . . . Although the
Connecticut constitution does not include a double
jeopardy provision, the due process guarantee of article
first, § 9, of our state constitution encompasses protec-
tion against double jeopardy. . . .
‘‘Double jeopardy analysis in the context of a single
trial is a two-step process. First, the charges must arise
out of the same act or transaction. Second, it must be
determined whether the charged crimes are the same
offense. Multiple punishments are forbidden only if
both conditions are met. . . . Traditionally we have
applied the Blockburger test to determine whether two
statutes criminalize the same offense, thus placing a
defendant prosecuted under both statutes in double
jeopardy: [W]here the same act or transaction consti-
tutes a violation of two distinct statutory provisions,
the test to be applied to determine whether there are
two offenses or only one, is whether each provision
requires proof of a fact which the other does not.
Blockburger v. United States [supra, 284 U.S. 304]. This
test is a technical one and examines only the statutes,
charging instruments, and bill of particulars as opposed
to the evidence presented at trial.’’ (Internal quotation
marks omitted.) State v. Bernacki, 307 Conn. 1, 9, 52
A.3d 605 (2012), cert. denied, U.S. , 133 S. Ct.
1804, 185 L. Ed. 2d 811 (2013). However, ‘‘we are not
limited to a review of the state’s information in order
to determine whether the defendant’s crimes arose from
the same act or transaction.’’ State v. Morales, 164 Conn.
App. 143, 152, 136 A.3d 278, cert. denied, 321 Conn. 916,
136 A.3d 1275 (2016). ‘‘[R]ather, we are permitted to
look at the evidence presented at trial.’’ Id.A
We turn first to whether the charges of which the
defendant was convicted arose out of the same act or
transaction. The defendant argues that his classification
as a persistent dangerous felony offender and as a per-
sistent serious felony offender arose from the same
circumstances because his same, prior felony convic-
tion served as the basis for both classifications and the
resulting enhanced sentence. Although it is true that
the defendant’s same, prior felony conviction gave rise
to both of his persistent felony offender classifications,
he is mistaken that his prior conviction is the relevant
‘‘act or transaction’’ under a double jeopardy analysis.
Our Supreme Court previously observed that ‘‘[a] per-
son accused of being a persistent dangerous felony
offender is not charged with a crime separate from
the substantive crime which forms the first part of the
indictment against him. . . . The only function of the
separate judicial proceeding on the defendant’s status
as a persistent dangerous felon is to permit an enhanced
sentence for conviction of the underlying substantive
crime.’’ (Internal quotation marks omitted.) State v.
Jones-Richards, 271 Conn. 115, 121, 855 A.2d 979(2004); see also State v. Velasco, 253 Conn. 210, 224,
751 A.2d 800 (2000) (‘‘§ 53a-40 constitutes a sentence
enhancement provision, and not an independent crimi-
nal offense’’); cf. Graham v. West Virginia, 224 U.S.
616, 628, 32 S. Ct. 583, 56 L. Ed. 917 (1912) (recidivist
information ‘‘is not an information of an offence . . .
but of a fact, namely, that the prisoner has already
been convicted of an offence’’ [internal quotation marks
omitted]). In light of the foregoing, the proper inquiry
in determining whether the defendant’s charges arose
under the same transaction or occurrence is to examine
the underlying facts supporting the defendant’s convic-
tion of robbery in the first degree and attempt to escape
from custody. See State v. Morales, supra, 164 Conn.
App. 152–53.
This court on direct appeal described two separate
phases of the defendant’s conduct that gave rise to his
conviction. State v. Henderson, supra, 37 Conn. App.
736. With respect to the defendant’s conviction of rob-
bery in the first degree, this court noted that the defen-
dant demanded that the victim hand over her purse,
pulled out a knife, and retrieved the purse as the victim
fled. Id. With respect to the defendant’s conduct sup-
porting his conviction of attempt to escape from cus-
tody, this court noted that following the robbery, the
defendant took several steps in an effort to avoid arrest.
Id., 737. In particular, the defendant initially resisted
one police officer’s attempt to restrain him, and his
actions required the effort of several police officers to
eventually arrest him. Id., 738. Further, the defendant,
while restrained in the police car, kicked out the rear
window and attempted to climb out. Id.It is clear that the conviction of robbery in the first
degree and attempt to escape from custody did not
arise from the same act or transaction. The defendant’s
conduct relating to his conviction of robbery in the first
degree is temporally and substantively distinct from his
conduct relating to his conviction of attempt to escape
from custody. Thus, the defendant has failed to prove
that his charges arose from the same act or transaction.
B
Moreover, even if we were to conclude that the
charges arose from the same act or transaction, the
defendant’s double jeopardy claim fails to satisfy the
second prong of our inquiry because robbery in the
first degree and attempt to escape from custody are
not the same offenses.3
To satisfy the elements of robbery in the first degree
pursuant to § 53a-134 (a) (3), the state was required
to prove that the defendant committed the crime of
robbery, as defined in General Statutes § 53a-133, and
‘‘use[d] or threaten[ed] the use of a dangerous instru-
ment.’’ General Statutes § 53a-134 (a) (3). ‘‘To prove
that a defendant is guilty of robbery, the state must
prove that the defendant had the specific intent to com-
mit a larceny and that the larceny was committed
through the use or threatened use of force. . . . [T]he
intent element of robbery relates to the commission of
the larceny and not to the use or threatened use of
physical force. . . . Additionally, the specific intent
required to prove an attempted robbery is no different
from the specific intent required to commit a robbery,
as [i]t is plain from a reading of General Statutes § 53a-
49 (a) that the intent required for attempt liability is the
intent required for the commission of the substantive
crime.’’ (Citations omitted; internal quotation marks
omitted.) State v. Jordan, 135 Conn. App. 635, 655–56,
42 A.3d 457 (2012), rev’d in part on other grounds, 314
Conn. 354, 102 A.3d 1 (2014). On the other hand, to
satisfy the elements of attempt to escape from custody,
the state was required to show that the accused was
(1) in lawful custody, (2) charged with a felony, and (3)
took a substantial step in a course of conduct planned to
result in escape from such custody. See General Stat-
utes §§ 53a-49 (a) (2) and 53a-171.
After review of the elements of the offenses of which
the defendant was convicted, it is clear that his convic-
tion of robbery in the first degree is a ‘‘conceptually
separate and distinct offense’’; State v. Santiago, 145
Conn. App. 374, 382, 74 A.3d 571, cert. denied, 310 Conn.
942, 79 A.3d 893 (2013); from his conviction of attempt
to escape from custody. The offenses do not share any
similar elements, and both require proof of facts that
the other does not. See id., 382–84. Thus, the defendant’s
conviction cannot constitute the same offense under
Blockburger.
Accordingly, we conclude that the defendant’s felony
offender classifications and the resulting enhanced sen-
tences do not violate the double jeopardy clause’s prohi-
bition against multiple punishments for the same
offense because the offenses of which the defendant
was convicted did not arise out of the same act or
transaction and do not constitute the same offense.
II
The defendant also claims that the court improperly
denied his motion to correct an illegal sentence because
our legislature did not intend to simultaneously punish
an individual as both a persistent dangerous felony
offender and as a persistent serious felony offender.
The state contends the opposite. Specifically, the state
argues that the plain language and the legislative history
of the relevant persistent felony offender provisions do
not limit the application of sentence enhancements to
one offense when the defendant stands convicted of
multiple qualifying offenses. We agree with the state.
The following legal principles guide our discussion.
‘‘When the conclusion reached under Blockburger is
that the two crimes do not constitute the same offense,
the burden remains on the defendant to demonstrate
a clear legislative intent to the contrary. See State v.
Miranda, 260 Conn. 93, 127, 794 A.2d 506, cert. denied,
537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002);
State v. Snook, [210 Conn. 244, 264, 555 A.2d 390, cert.
denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603(1989)] . . . State v. Gonzales, N.M. 337, 342, 940 P.2d
185 (App. 1997) (burden does not shift away from defen-
dant once it is determined that defendant’s claim fails
Blockburger test).’’ (Citation omitted; footnote omit-
ted.) State v. Alvaro F., 291 Conn. 1, 12–13, 966 A.2d
712, cert. denied, 558 U.S. 882, 130 S. Ct. 200, 175 L.
Ed. 2d 140 (2009).
‘‘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. . . . When a statute is
not plain and unambiguous, we also look for interpre-
tive guidance to the legislative history and circum-
stances surrounding its enactment, to the legislative
policy it was designed to implement, and to its relation-
ship to existing legislation and common law principles
governing the same general subject matter . . . .’’
(Internal quotation marks omitted.) State v. Tabone,
supra, 279 Conn. 534–35. ‘‘It also is well established
that, [i]n cases in which more than one [statutory provi-
sion] is involved, we presume that the legislature
intended [those provisions] to be read together to create
a harmonious body of law . . . and we construe the
[provisions], if possible, to avoid conflict between
them.’’ (Internal quotation marks omitted.) State v. Vic-
tor O., 320 Conn. 239, 248, 128 A.3d 940 (2016).
We begin our analysis by first considering the text
of the relevant persistent felony offender provisions.
As we previously explained, the applicable provisions
of the persistent felony offender statute, § 53a-40, pro-
vide in relevant part: ‘‘(a) A persistent dangerous felony
offender is a person who (1) stands convicted of man-
slaughter, arson, kidnapping, sexual assault in the first
or third degree, sexual assault in the third degree with
a firearm, robbery in the first or second degree, or
assault in the first degree; and (2) 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: (A) The crimes enumer-
ated in subdivision (1), the crime of murder, or an
attempt to commit any of said crimes or murder . . . .
‘‘(b) A persistent serious felony 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 subsec-
tion (a) and the prior conviction was for a crime other
than those enumerated in subsection (a) of this section.
. . .’’ (Emphasis added.)
After review of the plain language of these provisions,
it is clear that the language does not align with the
defendant’s argument that the legislature intended only
one recidivist enhancement to apply to the conviction
of multiple current charges. Instead, the relevant sub-
sections permit a sentence enhancement as a persistent
felony offender once certain conditions are met. Both of
the substantive criminal charges of which the defendant
was convicted satisfy those requirements, and nothing
therein suggests that the conviction of only one of those
charges is subject to an enhanced sentence.
It is important to remember that the defendant’s sen-
tence was enhanced as a persistent dangerous felony
offender and as a serious felony offender on the basis
of two distinct underlying criminal offenses. The defen-
dant’s conviction of robbery in the first degree and
attempt to escape from custody independently satisfy
the requirements of the relevant provisions, and the
conviction on each charge was subject to an enhanced
sentence. If, for instance, the defendant was convicted
solely of robbery in the first degree, and the state sought
to enhance that sentence under § 53a-40 (b), the defen-
dant’s argument may have merit. That particular subsec-
tion expressly precludes an enhancement of a sentence
on a conviction of robbery in the first degree. Under
the circumstances of the present case, however, the
sentence on the defendant’s conviction of robbery in
the first degree was enhanced pursuant to § 53a-40 (a),
and his sentence on the conviction of attempt to escape
from custody was enhanced pursuant to § 53a-40 (b).
Thus, the defendant’s status as a persistent felony
offender and the resulting sentence enhancements
therefrom, does not run contrary to the plain language
of the relevant persistent felony offender provisions.
Ordinarily, our analysis would end once ‘‘the meaning
of [the relevant provision] is plain and unambiguous
and does not yield absurd or unworkable results . . . .’’
(Internal quotation marks omitted.) State v. Tabone,
supra, 279 Conn. 535. The defendant, however,
expressly bases his argument—which is that the legisla-
ture intended for one recidivist enhancement to apply
to only one conviction when the defendant stands con-
victed of multiple current charges—on (1) a comment
regarding the interpretation of the persistent felony
offender statute by the Commission to Revise the Crimi-
nal Statutes, and (2) our Supreme Court’s holding in
State v. Ledbetter, 240 Conn. 317, 692 A.2d 713 (1997).
We address each in turn.
A
First, the defendant argues that the comment by the
Commission to Revise the Criminal Statutes regarding
§ 53a-40 supports his argument. The commission’s com-
ment states in relevant part: ‘‘This section creates a
new scheme of sentencing relating to recidivists. It sin-
gles out three types of recidivists for special treatment:
(1) persistent dangerous felony offender; (2) persistent
serious felony offender; and (3) persistent larceny
offender.
‘‘The purpose of the definition of persistent danger-
ous felony offender is to identify those persons who
have shown themselves to be repeatedly physical dan-
gerous to others. The essential elements of the defini-
tion of a persistent dangerous felony offender are: (1)
a present conviction of the dangerous felonies listed in
subsection (a) (1); and (2) at least one prior dangerous
felony conviction and imprisonment therefor for more
than one year. See prior section 54-121 for the compara-
ble provisions. The consequence of being found to be
a persistent dangerous felony offender is that the court
may . . . impose a life sentence as for a class A felony.
Whether to do so is a matter left to the discretion of
the court.
‘‘A persistent [serious] felony offender (as opposed
to a persistent dangerous felony offender) is one who
stands convicted of a felony and who has at least once
before been convicted of a felony and imprisoned there-
for for more than one year. The consequence of being
found to be a persistent [serious] 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) is to make clear . . .
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 subsection (a) had not been met.’’ Com-
mission to Revise the Criminal Statutes, Penal Code
Comments, Conn. Gen. Stat. Ann. § 53a-40 (West 2012),
commission comment, p. 661.
The defendant takes issue with the final sentence of
the commission’s comment, which provides that ‘‘the
last section of subsection (b) 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 subsection (a) had not been met.’’ Id.
The defendant argues that his conviction of robbery in
the first degree, an offense listed in subsection (a) (1)
of § 53a-40, precludes a sentence enhancement under
subsection (b) of § 53a-40. This argument is without
merit.
The commission’s comment simply clarifies that sub-
section (b) limits the sentence for certain enumerated
offenses, those described in subsection (a) (1), from
being enhanced under subsection (b) because those
enumerated offenses already carry a harsh punishment.
On the other hand, subsection (a) provides that the
sentence for those serious offenses, excluded under
subsection (b), are still subject to an enhancement
under subsection (a). When these provisions are read
together, it is clear that certain enumerated offenses
may only be subject to an enhanced sentence under
subsection (a), whereas the remaining offense may be
subject to an enhanced sentence under subsection (b).
In sum, the commission’s comment clarifies that the
enumerated offenses in subsection (a) (1) may be sub-
ject to an enhanced sentence only when the prior felony
was similarly as serious.
The defendant’s sentence was properly enhanced
with respect to his conviction of robbery in the first
degree because his conviction of prior felony charges
was similarly as serious pursuant to subsection (a).
Further, the defendant’s sentence with respect to his
conviction of attempt to escape from custody was prop-
erly enhanced under subsection (b) because that
offense was not enumerated in subsection (a) (1), and
the remaining conditions were satisfied. In sum, the
commission’s comment does not support the defen-
dant’s argument that the legislature intended to enhance
one present conviction only when the defendant stands
convicted of multiple current charges.
B
Second, the defendant contends that the underlying
reasoning and policy considerations in our Supreme
Court’s decision in State v. Ledbetter, supra, 240 Conn.
327, should be extrapolated to the present case. Specifi-
cally, the defendant argues that our Supreme Court’s
decision in Ledbetter suggests that the legislature did
not intend for more than one recidivist enhancement
to apply to the conviction of multiple current charges
because he was not afforded the opportunity to reform.
We disagree with the defendant for several reasons.
The primary issue our Supreme Court considered
in Ledbetter was whether § 53a-40 (d)4 ‘‘applies to a
defendant who, prior to the commission of a third fel-
ony, entered simultaneous guilty pleas to two separate
felonies.’’ Id., 319. Our Supreme Court held that § 53a-
40 (d) ‘‘precludes the use of two felony convictions
rendered simultaneously as the basis for a conviction
as a persistent felony offender.’’ Id., 328.
After reviewing the plain language of the statute, and
the relevant legislative history, our Supreme Court con-
cluded that § 53a-40 (d) is part of a ‘‘statutory scheme
that defines, and provides sentencing guidelines for,
the habitual offender categories recognized in Connecti-
cut’’; id., 332–33; and that ‘‘the words of this statute,
together with its legislative history, make clear that the
legislature intended this section to apply only to those
repeat offenders who, despite having been given the
opportunity to reform, not once but twice, nevertheless
persist in a career of crime.’’ Id., 339. Our Supreme Court
relied on the notion of ‘‘sequentiality’’; id.; meaning that
before the persistent offender provisions applied, the
scheme requires ‘‘a strict sequence of offense, convic-
tion [and] punishment for each prior felony conviction.’’
Id., 339–40. In support of its conclusion, our Supreme
Court reasoned that the simultaneous conviction of two
offenses, which otherwise qualify under the persistent
felony offender provisions, would not afford the
accused the opportunity to reform his conduct. Id., 339.
Thus, a sentence enhancement as a persistent felony
offender without a conviction of two separate charges
runs contrary to the legislature’s intent behind § 53a-
40 (d). Id., 328.
The most obvious reason why our Supreme Court’s
decision in Ledbetter is inapposite to the present case
is that an entirely separate subsection of § 53a-40 was
at issue, subsection (d). Unlike the situation in Ledbet-
ter, the provisions at issue before us, § 53a-40 (a) and
(b), subsection (d) contains distinct language indicating
that the accused must ‘‘at separate times prior to the
commission of the present felony, [have] been twice
convicted of a felony other than a class D felony.’’ Gen-
eral Statutes § 53a-40 (d). Our Supreme Court observed
that this language, in conjunction with the legislative
history, indicates that the present felony, that is, the
felony subject to enhancement, cannot be construed as
‘‘separate’’ from the commission of the present felony
under § 53a-40 (d) (2). State v. Ledbetter, supra, 240
Conn. 339–40. In the present case, the underlying policy
consideration, which is that the defendant’s conviction
of the charges be in sequence, is not an issue.
The basis for the defendant’s persistent felony
offender sentence enhancements was not his present
conviction of robbery in the first degree and attempt
to escape from custody, but his prior felony convictions.
Unlike the situation in Ledbetter, the sequence of the
defendant’s convictions is not an issue because the
defendant, prior to the present case, had been convicted
of and imprisoned for several other felony offenses.
Those prior felony convictions gave rise to his classifi-
cation as a persistent felony offender, which, in turn,
enhanced the sentences on his more recent conviction
of robbery in the first degree and attempt to escape
from custody. The state in Ledbetter attempted to rely
on the defendant’s conviction of multiple current
charges as the basis for a sentence enhancement as a
persistent felony offender and sought to enhance his
sentence on the conviction of those offenses. Thus, the
sequence of the defendant’s offenses in Ledbetter was
problematic because he was not charged, convicted,
and sentenced at a prior time. That issue simply is not
present here on the basis of the defendant’s history of
felony convictions.
The specific persistent felony offender provisions at
issue here each required that the defendant be con-
victed once prior to his conviction of the current
charges. Specifically, subsection (a) of § 53a-40 pro-
vides in relevant part that the enhancement provision
may apply when the defendant ‘‘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 certain crimes. General Statutes § 53a-40 (a). Sec-
tion 53a-40 (b) provides in relevant part that the
enhancement provision may apply when the defendant
‘‘has been, prior to the commission of the present fel-
ony, 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 institu-
tion, for a crime. . . .’’ Thus, subsections (a) and (b)
are clearly distinct from subsection (d), which requires
two predicate convictions.
Furthermore, another underlying policy consider-
ation noted in Ledbetter, which is that the legislature
intended to punish recidivists under § 53a-40 (d) who
had two opportunities to reform their conduct, but nev-
ertheless pursued a career of crime, is adhered to in
the case before us. It is clear from the record that the
defendant had ample opportunity to reform his criminal
conduct, as he had several felony convictions prior to
the most recent conviction of robbery in the first degree
and attempt to escape from custody. Had the defendant
in Ledbetter been convicted as a persistent felony
offender, on the basis of multiple current charges, he
would have been denied that opportunity. In the present
case, the defendant clearly had that opportunity to
reform, but did not. Accordingly, we conclude that the
court did not improperly deny the motion to correct
an illegal sentence on these grounds.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes (Rev. to 1991) § 53a-40 provides in relevant part: ‘‘(a)
A persistent dangerous felony offender is a person who (1) stands convicted
of manslaughter, arson, kidnapping, sexual assault in the first or third degree,
sexual assault in the third degree with a firearm, robbery in the first or
second degree, or assault in the first degree; and (2) 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: (A) The crimes enumerated in subdivision
(1), the crime of murder, or an attempt to commit any of said crimes or
murder . . . .
‘‘(b) A persistent serious felony 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) and the prior conviction was for a crime other than those
enumerated in subsection (a). . . .
‘‘(f) When any person has been found to be a persistent dangerous felony
offender, and the court is of the opinion that his history and character and
the nature and circumstances of his criminal conduct indicate that extended
incarceration and lifetime supervision will best serve the public interest,
the court, in lieu of imposing the sentence of imprisonment authorized by
section 53a-35a for the crime of which such person presently stands con-
victed . . . may impose the sentence of imprisonment authorized by said
section for a class A felony.
‘‘(g) When any person has been found to be a persistent serious felony
offender, and the court is of the opinion that his history and character and
the nature and circumstances of his criminal conduct indicate that extended
incarceration will best serve the public interest, the court in lieu of imposing
the sentence of imprisonment authorized by section 53a-35a for the crime
of which such person presently stands convicted . . . may impose the sen-
tence of imprisonment authorized by said section for the next more serious
degree of felony. . . .’’
Hereinafter, all references to § 53a-40 are to the 1991 revision of the
statute unless otherwise noted.
2
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
3
As we noted in part I A of this opinion, the relevant inquiry in a double
jeopardy claim involves examination of the substantive criminal offenses,
i.e., robbery and attempted escape, not the persistent felony offender
enhancement provisions.
4
General Statutes (Rev. to 1991) § 53a-40 (d) provides in relevant part:
‘‘A persistent felony offender is a person who (1) stands convicted of a
felony other than a class D felony; and (2) has, at separate times prior to
the commission of the present felony, been twice convicted of a felony
other than a class D felony.’’