State v. Bischoff , 189 Conn. App. 119 ( 2019 )

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STATE OF CONNECTICUT v. HAJI
JHMALAH BISCHOFF
(AC 41367)
DiPentima, C. J., and Lavine and Harper, Js.
Syllabus
The defendant, who had been convicted of the crimes of possession of
narcotics ([Rev. to 2013] § 21a-279) and possession of less than four
ounces of a cannabis-type substance, appealed to this court from the
judgment of the trial court dismissing his motion to correct an illegal
sentence. In his direct appeal to this court, the defendant claimed that
he was entitled to be resentenced as a result of a legislative amendment
to the crime of possession of narcotics because in 2015, subsequent to
his conviction, the legislature retroactively reclassified the violation of
§ 21a-279, for a first offense, as a class A misdemeanor, which carries
a maximum sentence of one year of incarceration. This court considered
and rejected the defendant’s claim, and the defendant’s petition for
certification to appeal from that decision to our Supreme Court was
denied. In his motion to correct an illegal sentence, the defendant
claimed that the legislature had intended for the 2015 amendment to
apply retroactively, and that the sentence imposed for his violation of
§ 21a-279 was illegal because it exceeded the maximum sentence
allowed under the 2015 amendment. Held that there was no merit to
the defendant’s claim that the 2015 amendment applied retroactively:
this court has determined previously that the 2015 amendment to § 21a-
279 does not apply retroactively, our Supreme Court previously has
rejected the applicability in Connecticut of the amelioration doctrine,
which the defendant claimed applied and which provides that amend-
ments that reduce a statutory penalty for a criminal offense are applied
retroactively, and the defendant’s request that this court overrule that
precedent was unavailing, as it is axiomatic that, as an intermediate
appellate court, this court is bound by Supreme Court precedent and
is unable to modify it, nor can this court overrule a decision made by
another panel of this court in the absence of en banc consideration;
accordingly, the trial court should have rendered judgment denying
rather than dismissing the defendant’s motion to correct an illegal
sentence.
Argued March 6—officially released April 2, 2019
Procedural History
Substitute information charging the defendant with
two counts each of the crimes of possession of narcotics
with intent to sell by a person who is not drug-depen-
dent, possession of narcotics with intent to sell and
possession of narcotics, and with the crime of posses-
sion of less than four ounces of a cannabis-type sub-
stance, brought to the Superior Court in the judicial
district of Fairfield, geographical area number two, and
tried to the jury before Dennis, J.; verdict and judgment
of guilty of possession of less than four ounces of a
cannabis-type substance and of two counts of posses-
sion of narcotics, from which the defendant appealed
to this court, which affirmed the judgment; thereafter,
the Supreme Court denied the defendant’s petition for
certification to appeal; subsequently, the court, Doyle,
J., dismissed the defendant’s motion to correct an illegal
sentence, and the defendant appealed to this court.
Improper form of judgment; judgment directed.
James B. Streeto, senior assistant public defender,
with whom, on the brief, was Emily H. Wagner, assis-
tant public defender, for the appellant (defendant).
Jennifer F. Miller, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Craig P. Nowak, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
PER CURIAM. The defendant, Haji Jhmalah Bischoff,
appeals from the judgment of the trial court dismissing
his motion to correct an illegal sentence. After
reviewing the record and the parties’ briefs, we con-
clude that the defendant’s claim is barred by appellate
precedent. We further conclude that the form of the
judgment is improper, and, accordingly, we reverse the
judgment dismissing the defendant’s motion to correct
an illegal sentence and remand the case to the trial
court with direction to render judgment denying the
defendant’s motion.
The defendant was convicted of possession of heroin
in violation of General Statutes (Rev. to 2013) § 21a-
279 (a), possession of cocaine in violation of § 21a-
279 (a), and possession of less than four ounces of
a cannabis-type substance (marijuana) in violation of
General Statutes (Rev. to 2013) § 21a-279 (c). State v.
Bischoff, 182 Conn. App. 563, 569, 190 A.3d 137, cert.
denied, 330 Conn. 912, 193 A.3d 48 (2018). The trial
court merged the conviction of possession of heroin
and possession of cocaine into a single conviction of
possession of narcotics in violation of § 21a-279 (a), and
sentenced the defendant to seven years incarceration,
execution suspended after five years, and three years
of probation. Id. On the defendant’s conviction of pos-
session of less than four ounces of marijuana, the court
sentenced the defendant to a concurrent term of one
year incarceration. Id.
In his direct appeal, this court considered and
rejected the defendant’s claim that he was entitled to
be resentenced as a result of the legislative amendment
to the crime of possession of narcotics. Specifically,
we stated: ‘‘The defendant finally claims that he is enti-
tled to resentencing on his conviction of possession
of narcotics because the legislature has retroactively
reclassified the violation of § 21a-279, for a first offense,
as a class A misdemeanor, which carries a maximum
sentence of one year of incarceration. See Public Acts,
Spec. Sess., June, 2015, No. 15-2, § 1. The defendant
concedes, as he must, that this court’s holding in State
v. Moore, 180 Conn. App. 116, 124, [182 A.3d 696, cert.
denied, 329 Conn. 905, 185 A.3d 595] (2018), in which
this court held that the 2015 amendment to § 21a-279
(a), which took effect October 1, 2015, does not apply
retroactively and is dispositive of his claim. The defen-
dant’s claim that he is entitled to be resentenced must
therefore fail.’’ State v. Bischoff, supra, 182 Conn. App.
579–80. This court released the decision in the defen-
dant’s direct appeal on June 12, 2018. Id., 563. On Sep-
tember 20, 2018, our Supreme Court denied the
defendant’s petition for certification to appeal. State v.
Bischoff, 330 Conn. 912, 193 A.3d 48 (2018).
On May 11, 2017, the defendant filed the present
motion to correct an illegal sentence. He argued that
the legislature had intended the 2015 amendment to
apply retroactively. According to the defendant, the
sentence imposed for his violation of § 21a-279 (a) was
illegal because it exceeded the maximum sentence
allowed under the 2015 amendment.
On December 22, 2017, the trial court issued a memo-
randum of decision dismissing the motion to correct
an illegal sentence. It concluded that, in the absence
of any language indicating that the amendment was to
be applied retroactively to crimes committed prior to
its effective date, the general rule in Connecticut is that
courts apply the law in effect at the time of the offense.
It also rejected the defendant’s argument as to the ame-
lioration doctrine, which provides that amendments
that reduce a statutory penalty for a criminal offense
are applied retroactively. Specifically, the trial court
stated: ‘‘[B]oth our Supreme and Appellate Courts have
rejected application of the amelioration doctrine based
on the plain language of the savings statutes.’’ See Gen-
eral Statutes §§ 54-194 and 1-1 (t).
In his principal appellate brief, the defendant
acknowledges that the present case is controlled by
State v. Moore, supra, 180 Conn. App. 116, and State v.
Kalil, 314 Conn. 529, 107 A.3d 343 (2014). In Moore,
this court rejected a claim that the 2015 amendment to
§ 21a-279 (a) applied retroactively. State v. Moore,
supra, 120–25. Specifically, we concluded that the 2015
amendment contained no language indicating a retroac-
tive application and that the absence of such language
was informative as to the legislature’s intent. Id., 123–24.
‘‘Thus, if the legislature had intended the 2015 amend-
ment to apply retroactively, it could have used clear
and unequivocal language indicating such intent. It did
not do so. A prospective only application of the statute
is consistent with our precedent and the legislature’s
enactment of the savings statutes . . . and, therefore,
the statutory language is not susceptible to more than
one plausible interpretation.’’ (Citation omitted.) Id.,
123; see also State v. Bischoff, supra, 182 Conn. App.
579–80. Additionally, in accordance with State v. Kalil,
supra, 314 Conn. 552–53, this court rejected the applica-
bility of the amelioration doctrine in Connecticut. State
v. Moore, supra, 124.
In the present appeal, the defendant expressly asks
us to overrule State v. Kalil, supra, 314 Conn. 529,
State v. Moore, supra, 180 Conn. App. 116, and State
v. Bischoff, supra, 182 Conn. App. 563. We reject this
invitation. First, ‘‘[i]t is axiomatic that, [a]s an intermedi-
ate appellate court, we are bound by Supreme Court
precedent and are unable to modify it . . . . [W]e are
not at liberty to overrule or discard the decisions of
our Supreme Court but are bound by them. . . . [I]t is
not within our province to reevaluate or replace those
decisions.’’ (Internal quotation marks omitted.) State v.
Montanez, 185 Conn. App. 589, 605 n.5, 197 A.3d 959
(2018); see also State v. Corver, 182 Conn. App. 622,
638 n.9, 190 A.3d 941, cert. denied, 330 Conn. 916, 193
A.3d 1211 (2018). Second, ‘‘[i]t is this court’s policy that
we cannot overrule a decision made by another panel
of this court absent en banc consideration.’’ State v.
Joseph B., 187 Conn. App. 106, 124 n.13, A.3d
(2019); State v. Carlos P., 171 Conn. App. 530, 545 n.12,
157 A.3d 723, cert. denied, 325 Conn. 912, 158 A.3d 321
(2017); see also State v. Houghtaling, 326 Conn. 330,
343, 163 A.3d 563 (2017) (Appellate Court panel appro-
priately recognized it was bound by that court’s own
precedent), cert. denied, U.S. , 138 S. Ct. 1593,
200 L. Ed. 2d 776 (2018). For these reasons,1 we con-
clude that the defendant’s appeal has no merit.
The form of the judgment is improper, the judgment
dismissing the defendant’s motion to correct an illegal
sentence is reversed and the case is remanded with
direction to render judgment denying the defendant’s
motion.
1
Due in part to the timing of the ultimate resolution of the defendant’s
direct appeal and the filing of the motion to correct an illegal sentence, the
state claimed, for the first time on appeal, that the defendant’s claim is
barred by res judicata. While we have considered a res judicata defense
under similar circumstances; see State v. Martin M., 143 Conn. App. 140,
150–57, 70 A.3d 135, cert. denied, 309 Conn. 919, 70 A.3d 41 (2013); State
v. Osuch, 124 Conn. App. 572, 580–84, 5 A.3d 976, cert. denied, 299 Conn.
918, 10 A.3d 1052 (2010); we decline to travel that path in the present case.