State v. Jackson ( 2014 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. HERBERT L. JACKSON
(AC 35749)
Beach, Keller and Flynn, Js.
Argued September 10—officially released November 11, 2014
(Appeal from Superior Court, judicial district of New
Haven, Licari, J. [judgment]; Clifford, J. [motion to
correct].)
Katharine S. Goodbody, assigned counsel, for the
appellant (defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Roger S. Dobris, senior assistant
state’s attorney, for the appellee (state).
Opinion
BEACH, J. The defendant, Herbert L. Jackson,
appeals from the judgment of the trial court denying
his motion to correct an illegal sentence. The defendant
claims on appeal that the court erred in declining to
apply an amendment to the applicable sentencing stat-
ute retroactively. We disagree, and accordingly, affirm
the judgment of the trial court.
The following factual and procedural history is rele-
vant to our analysis. The defendant was found guilty
on March 22, 2001, following a jury trial, of three crimes:
conspiracy to commit burglary in the first degree in
violation of General Statutes §§ 53a-48 (a) and 53a-101;
conspiracy to commit robbery in the second degree in
violation of General Statutes §§ 53a-48 (a) and 53a-135;
and aggravated sexual assault in the first degree in
violation of General Statutes § 53a-70a (4). The convic-
tion of all three charges arose out of an incident that
occurred on January 8, 1996. On June 8, 2001, the defen-
dant was sentenced to a total effective term of thirty-
five years imprisonment: fifteen years for the two con-
spiracy counts, which were merged by the court, and
twenty years, to be served consecutively, for the convic-
tion of aggravated sexual assault in the first degree.
State v. Jackson, 75 Conn. App. 578, 583, 816 A.2d 742
(2003), cert. denied, 291 Conn. 907, 969 A.2d 172 (2009).
We affirmed the judgment of conviction. Id., 580.
At the time the crimes were committed, General Stat-
utes (Rev. to 1995) § 53a-70a (b) provided: ‘‘Aggravated
sexual assault in the first degree is a class B felony and
any person found guilty under this section shall be
sentenced to a term of imprisonment of which five
years of the sentence imposed may not be suspended
or reduced by the court.’’ Aggravated sexual assault in
the first degree, as a class B felony, was punishable by
imprisonment for not less than five years nor more than
twenty years. General Statutes (Rev. to 1995) § 53a-35a
(5). On October 1, 1999, after the commission of the
crimes and prior to the trial and sentencing, No. 99-2,
§ 50, of the 1999 Public Acts (P.A. 99-2) went into effect.
Public Acts, Spec. Sess., June, 1999, No. 99-2, § 72. Pub-
lic Act 99-2, § 50, amended § 53a-70a (b) such that, fol-
lowing conviction of aggravated sexual assault in the
first degree, a period of special parole was required to
be imposed as part of the sentence, such that the total
of the imprisonment and the special parole was to con-
stitute twenty years.1 Spec. Sess. P.A. 99-2, § 50.
The defendant was sentenced under the law as it
existed at the time of the commission of the crimes,
January 8, 1996. His sentence of twenty years on the
charge of aggravated sexual assault in the first degree,
then, included no period of special parole. On Novem-
ber 9, 2012, the then self-represented defendant filed a
motion to correct an illegal sentence. Subsequently, the
court appointed an attorney, who brought a motion to
correct an illegal sentence on April 3, 2013. The court
found that it had jurisdiction to hear and to decide the
motion to correct, but denied the motion after a hearing
on the merits on April 4, 2013.2 This appeal followed.
The defendant claims that he should have been sen-
tenced under § 53a-70a (b), as amended by P.A. 99-2,
because the legislature intended retroactive applica-
tion.3 We disagree.
Whether a statute is to be applied retroactively is a
question of statutory construction. See State v. Quinet,
253 Conn. 392, 413, 752 A.2d 490 (2000). ‘‘Issues of
statutory construction raise questions of law, over
which we exercise plenary review.’’ (Internal quotation
marks omitted.) State v. Boysaw, 99 Conn. App. 358,
362, 913 A.2d 1112 (2007). ‘‘We will not give retrospec-
tive effect to a criminal statute absent a clear legislative
expression of such intent.’’ State v. Quinet, supra, 414.
‘‘When the meaning of a statute initially may be deter-
mined from the text of the statute and its relationship
to other statutes . . . extratextual evidence of the
meaning of the statute shall not be considered. . . .
When the meaning of a provision cannot be gleaned
from examining the text of the statute and other related
statutes without yielding an absurd or unworkable
result, extratextual evidence may be consulted. . . .
Thus . . . every case of statutory interpretation . . .
requires a threshold determination as to whether the
provision under consideration is plain and unambigu-
ous. This threshold determination then governs
whether extratextual sources can be used as an inter-
pretive tool.’’ (Citations omitted.) Carmel Hollow Asso-
ciates Ltd. Partnership v. Bethlehem, 269 Conn. 120,
129–30 n.16, 848 A.2d 451 (2004). ‘‘[T]he fact that . . .
relevant statutory provisions are silent . . . does not
mean that they are ambiguous. . . . [O]ur case law is
clear that ambiguity exists only if the statutory language
at issue is susceptible to more than one plausible inter-
pretation.’’ (Citations omitted; internal quotation marks
omitted.) State v. Orr, 291 Conn. 642, 653–54, 969 A.2d
750 (2009).
The savings statutes that govern amendments4 to
criminal laws contemplate only prospective applica-
tion. ‘‘The repeal of an act shall not affect any punish-
ment, penalty or forfeiture incurred before the repeal
takes effect, or any suit, or prosecution, or proceeding
pending at the time of the repeal, for an offense commit-
ted, or for the recovery of a penalty or forfeiture
incurred under the act repealed.’’ General Statutes § 1-
1 (t). ‘‘The repeal of any statute defining or prescribing
the punishment for any crime shall not affect any pend-
ing prosecution or any existing liability to prosecution
and punishment therefor, unless expressly provided in
the repealing statute that such repeal shall have that
effect.’’ General Statutes § 54-194. ‘‘It is obvious from
the clear, unambiguous, plain language of the savings
statutes that the legislature intended that [defendants]
be prosecuted and sentenced in accordance with and
pursuant to the statutes in effect at the time of the
commission of the crime. Our courts have repeatedly
held that these savings statutes preserve all prior
offenses and liability therefor so that when a crime is
committed and the statute violated is later amended or
repealed, defendants remain liable under the revision
of the statute existing at the time of the commission
of the crime.’’ State v. Graham, 56 Conn. App. 507, 511,
743 A.2d 1158 (2000).
In this case, the language of P.A. 99-2, § 72, plainly
states that § 50, which amended § 53a-70a, took effect
on October 1, 1999. Spec. Sess. P.A. 99-2, § 72. There
is no language to suggest that the statute was to have
been applied retroactively. Spec. Sess. P.A. 99-2, § 72.
Because the public act is clear and unambiguous, there
is no need to search further for the legislature’s intent.
The defendant was correctly sentenced under the stat-
ute in effect at the time of the crime, and no period of
special parole was required. Accordingly, the trial court
properly denied the defendant’s motion to correct an
illegal sentence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The amendment added a clause to the end of § 53a-70a (b): ‘‘Aggravated
sexual assault in the first degree is a class B felony and any person found
guilty under this section shall be sentenced to a term of imprisonment of
which five years of the sentence imposed may not be suspended or reduced
by the court and a period of special parole pursuant to subsection (b)
of section 53a-28 which together constitute a sentence of twenty years.’’
(Emphasis added.) Spec. Sess. P.A. 99-2, § 50.
2
The state agrees, as do we, that the court had jurisdiction. The defendant
claims that the sentencing court should have applied § 53a-70a (b), as
amended by P.A. 99-2. This claim presents a question as to which sentencing
statute was applicable and is reviewable by means of a motion to correct.
State v. Lawrence, 281 Conn. 147, 157, 913 A.2d 428 (2007).
3
The defendant also argues that the trial court should have applied the
amelioration doctrine, which, he claims, would result in the retroactive
application of § 53a-70a (b), as amended by P.A. 99-2. As we said in State
v. Graham, 56 Conn. App. 507, 511–12, 743 A.2d 1158 (2000): ‘‘The defendant’s
request that this court adopt an ‘amelioration doctrine,’ whereby amend-
ments to statutes that lessen their penalties are applied retroactively is, in
essence, asking this court to intervene in the legislative process to nullify
by judicial fiat the legislature’s savings statutes. This we will not do. Since
the legislature has enacted the general rule that defendants must be prose-
cuted and punished under the statute in effect at the time of the offense,
and because it failed to override that rule with any specific amendment,
the court properly sentenced the defendant under the version . . . that was
in effect at the time of his offense.’’ We are bound by Graham and decline
to speculate as to its theoretical application here.
4
Literally, the typical language of amendments repeals the preexisting
statutes. The amendment in question, P.A. 99-2, § 50, provides that § 53a-
70a (b) was ‘‘repealed and the following . . . substituted in lieu thereof
. . . .’’ See General Statutes § 2-18 (requiring that section of statute be set
forth fully, any matter to be omitted placed in brackets, and any new matter
to be underscored).