State v. Smith ( 2021 )

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STATE OF CONNECTICUT v. DEJON A. SMITH
(AC 44156)
Prescott, Moll and Flynn, Js.
Syllabus
The defendant, who previously had been convicted on a plea of guilty of
the crime of possession of narcotics with intent to sell, appealed to this
court following the trial court’s denial of his motion to correct an illegal
sentence. In 2013, as part of his plea agreement, the defendant was
sentenced to five years of incarceration, followed by five years of special
parole. In 2018, our legislature enacted a public act (P.A. 18-63), which
amended certain statutes (§§ 53a-28 (b) and 54-125e (b)) to eliminate
special parole as a punishment for certain drug related offenses, includ-
ing that for which the defendant had been convicted and sentenced,
and to require the trial court to make certain determinations prior to
the imposition of a period of special parole. Thereafter, the defendant
filed a motion to correct an illegal sentence. The defendant argued that
he should be resentenced because P.A. 18-63 eliminated special parole
as a possible punishment for the offense for which he had been sen-
tenced. The state filed an objection to the motion. The trial court denied
the motion, stating that §§ 53a-28 (b) and 54-125e (b) were substantive,
rather than procedural, in nature and, as such, the amendments required
by P.A. 18-63 did not apply retroactively. Held that the trial court properly
denied the defendant’s motion to correct an illegal sentence: contrary
to the defendant’s claim, this court’s retroactivity analysis was not con-
trolled by the doctrine of clarifications because P.A. 18-63 was a change
in the law, rather than clarifying legislation, as the legislature did not
incorporate into the act an explicit statement of its intent to clarify
§§ 53a-28 (b) and 54-125e (b), the prior language of those statutes was
already clear, and, through the enactment of P.A. 18-63, the legislature
added language to change such statutes by narrowing their application,
and, accordingly, this court was not required to consider the legislative
history of the act in determining the legislature’s intent with regard to
retroactivity; moreover, pursuant to State v. Omar (209 Conn. App. 283),
because P.A. 18-63 repealed and replaced the imposition of a form of
punishment for a criminal conviction, this court’s retroactivity analysis
was instead controlled by State v. Bischoff (337 Conn. 739), State v.
Kalil (314 Conn. 529), and the savings statutes (§§ 54-194 and 1-1 (t)),
and, interpreted in accordance therewith, P.A. 18-63 clearly and unambig-
uously prohibited retroactive application of the amendments to §§ 53a-
28 (b) and 54-125e (b), and such an interpretation did not lead to an
absurd or unworkable result.
Argued October 4—officially released December 14, 2021
Procedural History
Information charging the defendant with the crimes
of possession of narcotics with intent to sell, possession
of drug paraphernalia, and illegal operation of a motor
vehicle while under suspension, brought to the Superior
Court in the judicial district of Litchfield, geographical
area number eighteen, where the defendant was pre-
sented to the court, Ginocchio, J., on a plea of guilty
to possession of narcotics with intent to sell; thereafter,
the state entered a nolle prosequi as to each of the
remaining charges; judgment of guilty; subsequently,
the court, Danaher, J., denied the defendant’s amended
motion to correct an illegal sentence, and the defendant
appealed to this court. Affirmed.
Emily H. Wagner, assistant public defender, for the
appellant (defendant).
Thadius L. Bochain, deputy assistant state’s attor-
ney, with whom, on the brief, was Dawn Gallo, state’s
attorney, for the appellee (state).
Opinion
FLYNN, J. This is an appeal from the judgment of
the trial court denying the amended motion to correct
an illegal sentence filed by the defendant, Dejon A.
Smith, pursuant to Practice Book § 43-22. On appeal,
the defendant claims that the court erred in concluding
that certain amendments to Connecticut’s special
parole statute, embodied in No. 18-63, §§ 1 and 2, of
the 2018 Public Acts (P.A. 18-63), which became effec-
tive on October 1, 2018, did not apply retroactively to
render his 2013 sentence imposing special parole void.1
We disagree and, accordingly, affirm the judgment of
the trial court.
We conclude that, when the legislature enacted P.A.
18-63, which changed the law by prohibiting special
parole as a sentence for certain narcotics offenses, it
did so prospectively, not retroactively. We also con-
clude that the silence in P.A. 18-63 regarding retroactiv-
ity is evidence of intent for prospective application only;
see State v. Bischoff, 337 Conn. 739, 756, 258 A.3d 14(2021); that prospective application creates neither an
absurd nor an unworkable result; and that General Stat-
utes §§ 54-194 and 1-1 (t) apply and, when read together,
provide that the repeal of a statute prescribing the pun-
ishment for a crime shall not affect any liability for
punishment incurred before the repeal is effective,
unless a contrary legislative intent is expressed within
an amendatory statute.
The following facts are pertinent to our resolution
of this appeal. On May 14, 2013, the defendant was
arrested in Torrington. The state charged him with,
among other crimes, possession of narcotics with intent
to sell in violation of General Statutes (Rev. to 2013)
§ 21a-277 (a). On October 8, 2013, the defendant pleaded
guilty to that charge. On December 19, 2013, as part of
a plea agreement, he was sentenced to an agreed upon
sentence of five years to serve, followed by five years
of special parole.
After the defendant was sentenced, our legislature
enacted P.A. 18-63, which eliminated special parole as
a punishment for certain drug offenses. Public Act 18-
63 is titled ‘‘An Act Concerning Special Parole for High-
Risk, Violent and Sexual Offenders’’ and contains three
sections. Relevant to the present appeal are §§ 1 and 2
of P.A. 18-63,2 which amended General Statutes (Rev.
to 2013) §§ 53a-28 (b) and 54-125e (b),3 respectively.
Prior to the enactment of P.A. 18-63 and at the time
the defendant committed the crimes for which he was
convicted, § 53a-28 (b) (9) authorized a court to impose
as a punishment ‘‘a term of imprisonment and a period
of special parole as provided in section 54-125e.’’ Sec-
tion 1 of P.A. 18-63 amended that portion of § 53a-28
(b) (9) by adding in relevant part that ‘‘the court may
not impose a period of special parole for convictions
of offenses under chapter 420b.’’ Section 21a-277 (a),
the statute under which the defendant was convicted,
is included in chapter 420b of the General Statutes.
Section 2 of P.A. 18-63 amended § 54-125e (b) by adding
in relevant part that ‘‘the court may not impose a period
of special parole unless the court determines, based
on the nature and circumstances of the offense, the
defendant’s prior criminal record and the defendant’s
history of performance on probation or parole, that a
period of special parole is necessary to ensure public
safety.’’ Public Act 18-63 lists an effective date of Octo-
ber 1, 2018.
On June 20, 2019, the defendant, in a self-represented
capacity, filed a motion to correct an illegal sentence.
On August 13, 2019, the court appointed a public
defender to conduct a ‘‘sound basis’’ determination
under State v. Casiano, 282 Conn. 614, 627, 922 A.2d
1065 (2007), regarding the defendant’s motion. The pub-
lic defender determined that there was a sound basis
as to one of the issues raised in the defendant’s motion
and, on November 27, 2019, filed an amended motion
to correct an illegal sentence on the defendant’s behalf.
In that motion, the defendant argued that he should be
resentenced because P.A. 18-63 had eliminated special
parole as a possible sentence for the drug offense for
which he had been convicted and sentenced. On Decem-
ber 27, 2019, the state filed an objection to the amended
motion to correct. On January 3, 2020, the parties
appeared before the court, Danaher, J., and agreed to
have the matter considered on the papers.
On February 4, 2020, the court, Danaher, J., denied
the defendant’s amended motion to correct an illegal
sentence and issued a memorandum of decision. The
court, relying in part on State v. Nathaniel S., 323 Conn.
290, 146 A.3d 988 (2016), concluded that the statutes
amended by P.A. 18-63, §§ 1 and 2, are substantive,
rather than procedural, in nature and, thus, cannot be
applied retroactively. The court also stated that ‘‘there
[was] no need to attempt to resolve the retroactivity
issue by analyzing the legislative history regarding P.A.
18-63.’’
We now turn to the principal issue to be decided in
this appeal, namely, whether P.A. 18-63, §§ 1 and 2,
should be applied retroactively to the defendant’s
agreed upon December 19, 2013 sentence. We agree
with the trial court that P.A. 18-63 does not apply retro-
actively, but we reach our conclusion by applying the
retroactivity analysis that our Supreme Court has
applied in cases such as State v. Kalil, 314 Conn. 529,
107 A.3d 343 (2014), and State v. Bischoff, supra, 337
Conn. 739.
We begin by setting forth the standard of review
applicable to this claim. Ordinarily, claims that the trial
court improperly denied a defendant’s motion to correct
an illegal sentence are reviewed pursuant to an abuse
of discretion standard. State v. Fairchild, 155 Conn.
App. 196, 210, 108 A.3d 1162, cert. denied, 316 Conn.
902, 111 A.3d 470 (2015). Nonetheless, a trial court’s
determination of whether a new statute is to be applied
retroactively or only prospectively presents a question
of law over which this court exercises plenary review.
See State v. Bischoff, supra, 337 Conn. 745, citing Walsh
v. Jodoin, 283 Conn. 187, 195, 925 A.2d 1086 (2007).
The defendant advances two distinct arguments as
to why the legislature intended P.A. 18-63 to apply retro-
actively. He first argues that P.A. 18-63 is clarifying
legislation and that the legislature ‘‘rewrote [§ 53a-28
(b)] to comport with its original intent.’’ Relying on the
legislative history of P.A. 18-63, he contends that ‘‘the
legislature took direct, corrective action to resolve the
misuse or overuse of special parole as a sentencing tool
by the judiciary . . . .’’ Thus, he contends, ‘‘[b]ecause
the law was never intended to authorize special parole
for nonviolent drug offenders, the defendant’s sentence
of special parole is not authorized by statute and is
illegal.’’ In other words, the defendant argues that courts
were never permitted to impose sentences of special
parole on nonviolent drug offenders and that ‘‘the law
was being misapplied on a consistent basis by the judi-
ciary . . . .’’ Alternatively, the defendant argues that if
this court interprets P.A. 18-63 as a change in the law,
as opposed to clarifying legislation, it is clear that the
legislature intended that special parole not be imposed
on any nonviolent drug offender. As part of this argu-
ment, he requests that, to the extent that State v. Kalil,
supra, 314 Conn. 529, requires this court to apply a
different interpretation, Kalil should be overruled.4
Because Kalil is binding on this court, we will not
address this part of the defendant’s argument.
The state argues that P.A. 18-63 is a change in the
law, rather than clarifying legislation, and that § 53a-28
(b) (9) prescribes or defines a punishment. Thus, it
argues that the savings clauses codified in §§ 54-1945
and 1-1 (t),6 which prohibit retroactivity in the absence
of an express statement by the legislature, apply to the
amended version of § 53a-28 (b) (9). The state further
argues that this court need not analyze the legislative
history of P.A. 18-63 to determine whether it is clarifying
legislation. In his reply brief, the defendant counters
that the doctrine of clarifications requires this court
to first determine whether the legislation clarified an
existing law or changed it. He contends that, ‘‘in making
this initial determination, our courts look to the amen-
datory language as well as the legislative history and
circumstances surrounding the amendment’s enact-
ment.’’ He argues that ‘‘the reviewing court only con-
ducts its retroactivity analysis as articulated in Kalil
and Bischoff if it first determines that the amendment
is a change in the law rather than a clarification.’’ We
agree with each of the state’s arguments.
We first address the defendant’s argument that P.A.
18-63 is clarifying legislation. Although a criminal stat-
ute is at issue in the present case, the defendant relies
heavily on Middlebury v. Dept. of Environmental Pro-
tection, 283 Conn. 156, 927 A.2d 793 (2007), which is a
civil case. He does so despite the existence of criminal
case law and criminal savings statutes that specifically
control how we must interpret amendatory legislation
relating to the punishment for crimes. The defendant
does not cite any criminal case in which this court or
our Supreme Court has looked at the legislative history
and circumstances surrounding the enactment of an
amendment affecting the punishment for a crime before
applying these savings statutes. ‘‘The savings statutes
that govern amendments to criminal laws contemplate
only prospective application. . . . 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.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) State v. Jackson,
153 Conn. App. 639, 644–45, 103 A.3d 166 (2014), cert.
denied, 315 Conn. 912, 106 A.3d 305 (2015). The defen-
dant requests that we look beyond the plain language
of P.A. 18-63 to ascertain the intent of the legislature
regarding retroactivity, which is precisely what our
criminal savings statutes and General Statutes § 1-2z7
prohibit.
The defendant argues that the ‘‘original intent’’ of
special parole ‘‘was to provide close monitoring for
postrelease inmates and quick reincarceration for dan-
gerous and violent offenders who posed an especially
high risk to public safety.’’ He contends that, over time,
courts increasingly imposed special parole on nonvio-
lent offenders beyond what the legislature intended.
He argues that, ‘‘once the inappropriate use of special
parole was brought to light, the legislature reacted by
passing P.A. 18-63, which was designed, principally, to
realign authorized sentences under § 53a-28 with the
original intent of § 54-125e . . . . Nonviolent drug
crimes were never intended to fall within its ambit.’’
(Emphasis added.) In support of this argument, he cites
the legislative history of both P.A. 18-63 and No. 98-234
of the 1998 Public Acts, which is the act that created
special parole as a form of punishment.
We disagree with the defendant that we should con-
sult the legislative history of P.A. 18-63 to determine
the legislature’s intent regarding retroactivity.8 Our prin-
ciples of statutory interpretation are well established.
‘‘We will not give retrospective effect to a criminal stat-
ute absent a clear legislative expression of such intent.’’
(Internal quotation marks omitted.) State v. Moore, 180
Conn. App. 116, 122, 182 A.3d 696, cert. denied, 329
Conn. 905, 185 A.3d 595 (2018). ‘‘[P]ursuant to § 1-2z,
[the court is] to go through the following initial steps:
first, consider the language of the statute at issue,
including its relationship to other statutes, as applied
to the facts of the case; second, if after the completion
of step one, [the court] conclude[s] that, as so applied,
there is but one likely or plausible meaning of the statu-
tory language, [the court] stop[s] there; but third, if
after the completion of step one, [the court] conclude[s]
that, as applied to the facts of the case, there is more
than one likely or plausible meaning of the statute, [the
court] may consult other sources, beyond the statutory
language, to ascertain the meaning of the statute.’’
(Internal quotation marks omitted.) State v. Prazeres,
97 Conn. App. 591, 594–95, 905 A.2d 719 (2006).
‘‘[T]he legislature knows how to make a statute apply
retroactively when it intends to do so.’’ State v. Moore,
supra, 180 Conn. App. 123. ‘‘Courts cannot, by construc-
tion, read into legislation provisions not clearly stated.’’
Thornton Real Estate, Inc. v. Lobdell, 184 Conn. 228,
230, 439 A.2d 946 (1981). Furthermore, criminal statutes
are to be strictly construed; State v. Smith, 194 Conn.
213, 221–22 n.7, 479 A.2d 814 (1984); and ‘‘[w]e must
look at the law as drafted, not at its purported aim. [I]n
the interpretation of statutes, the intent of the legisla-
ture is to be found not in what it meant to say, but in
what it did say. . . . A legislative intention not
expressed in some appropriate manner has no legal
existence.’’ (Citations omitted; internal quotation marks
omitted.) Id., 222.
In the present case, the legislature did not incorporate
into the title or text of P.A. 18-63 an explicit statement
of its intent to clarify §§ 53a-28 (b) and 54-125e (b). See
Greenwich Hospital v. Gavin, 265 Conn. 511, 519, 829
A.2d 810 (2003). The defendant does not point to any
ambiguities in the amendatory language of P.A. 18-63
that lead us to question the legislature’s intent regarding
clarification. Public Act 18-63 did not, for example,
change the definition of a word or phrase that was
subject to multiple interpretations. Rather, in enacting
P.A. 18-63, the legislature eliminated a punishment that
the plain language of §§ 53a-28 (b) and 54-125e explicitly
allowed courts to impose on nonviolent drug offenders
prior to its enactment.
Although some members of the legislature in 1998
might have intended that special parole be imposed
only on violent offenders who posed a threat to public
safety, the legislature included no language of that
intent in the statutes governing special parole. The legis-
lature in 2018 recognized that those statutes permitted
courts to impose periods of special parole on nonviolent
drug offenders and chose to amend the statutes. The
2018 amendments changed the statutory scheme by (1)
adding a clause to § 53a-28 (b) (9), which established
that any person convicted of a crime under chapter
420b could no longer be exposed to a punishment that
previously was permissible, and (2) adding new lan-
guage to § 54-125e (b) that requires courts, when sen-
tencing a person, to make a determination that imposing
a period of special parole is necessary to ensure public
safety. Put differently, the language in the prior versions
of these statutes was already clear prior to the amend-
ments, and the legislature added language to change
them by narrowing their application. For the foregoing
reasons, we conclude that the doctrine of clarifications
does not guide our retroactivity analysis in the pres-
ent case.
We addressed the retroactivity of P.A. 18-63 in State
v. Omar, 209 Conn. App. 283, A.3d (2021), also
released today. In Omar, the defendant was convicted
of nonviolent drug offenses included in chapter 420b
of our General Statutes. Id., 288. In 2016, his sentence
was modified to include a period of special parole. Id.,
287. In 2019, he filed a motion to correct an illegal
sentence in which he argued that P.A. 18-63 should
be applied retroactively and requested that the court
eliminate the term of special parole that it had imposed
three years earlier. Id., 288–89.
In Omar, the state advanced a similar argument as
it does in the present case, namely, ‘‘that, because P.A.
18-63, §§ 1 and 2, repealed and replaced the imposition
of a form of punishment for a criminal conviction, this
court’s retroactivity analysis is controlled by State v.
Kalil, [supra, 314 Conn. 529], and State v. Bischoff,
supra, 337 Conn. 739, along with our savings statutes,
§§ 54-194 and 1-1 (t).’’ State v. Omar, supra, 209 Conn.
App. 290. After applying the applicable principles of
statutory interpretation, we held that ‘‘the plain lan-
guage of P.A. 18-63, §§ 1 and 2, clearly and unambigu-
ously prohibits retroactive application and that this
interpretation does not lead to an absurd or unworkable
result, especially when viewed in context of the related
savings statutes, §§ 54-194 and 1-1 (t).’’ Id., 296. We see
no reason to repeat the analysis set forth in State v.
Omar, supra, 283.9 For the reasons set forth therein,
we conclude that the trial court properly denied the
defendant’s amended motion to correct an illegal sen-
tence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In State v. Omar, 209 Conn. App. 283, A.3d (2021), which was
released on the same date as this opinion, the defendant makes the same
claim.
2
Public Act 18-63 provides in relevant part: ‘‘Be it enacted by the Senate
and House of Representatives in General Assembly convened:
‘‘Section 1. Subsection (b) of section 53a-28 of the general statutes is
repealed and the following is substituted in lieu thereof (Effective October
1, 2018):
‘‘(b) Except as provided in section 53a-46a, when a person is convicted
of an offense, the court shall impose one of the following sentences . . .
(9) a term of imprisonment and a period of special parole as provided in
section 54-125e, as amended by this act, except that the court may not
impose a period of special parole for convictions of offenses under chap-
ter 420b.
‘‘Sec. 2. Subsection (b) of section 54-125e of the general statutes is repealed
and the following is substituted in lieu thereof (Effective October 1, 2018):
(b) (1) When sentencing a person, the court may not impose a period
of special parole unless the court determines, based on the nature and
circumstances of the offense, the defendant’s prior criminal record and
the defendant’s history of performance on probation or parole, that a period
of special parole is necessary to ensure public safety. . . .’’ (Emphasis
in original.)
3
Unless we state otherwise, our references in this opinion to §§ 53a-28
(b) and 54-125e are to the 2013 revisions of those statutes.
4
In his brief to this court, the defendant acknowledges that Kalil is binding
on this court. He claims that this section of his brief ‘‘is written with the
[Connecticut] Supreme Court as its intended audience and is included in
order to preserve the issue for future review by the Supreme Court.’’
5
General Statutes § 54-194 provides: ‘‘The repeal of any statute defining
or prescribing the punishment for any crime shall not affect any pending
prosecution or any existing liability to prosecution and punishment therefor,
unless expressly provided in the repealing statute that such repeal shall
have that effect.’’
6
General Statutes § 1-1 (t) provides: ‘‘The repeal of an act shall not affect
any punishment, 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 committed, or for the recovery of a penalty or forfeiture
incurred under the act repealed.’’
7
General Statutes § 1-2z provides: ‘‘The meaning of a statute shall, in the
first instance, be ascertained from 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.’’
8
At oral argument before this court, the defendant reiterated his argument
that we must look beyond the plain language of P.A. 18-63 to ascertain the
legislature’s intent when it created special parole in 1998. His appellate
counsel stated: ‘‘[T]he original legislation was intended to exclude offenses
like drug offenses that are not considered high risk violent sexual offenses,
but that . . . wasn’t clear in its original state.’’ His counsel later stated: ‘‘I
do not see an ambiguity in the original legislation . . . I see silence and
the Supreme Court has said numerous times that if the amendatory language
is silent as to whether or not it clarifies, the court looks beyond that language
to the legislative history.’’
By acknowledging that the original legislation was unambiguous, defense
counsel contradicted the argument that P.A. 18-63 clarified the special parole
statutes. In other words, if the original legislation was subject only to one
interpretation, then there existed no language in the original statutes for
the amendments to clarify. Thus, any amendments to those statutes would
change their meaning.
9
In Omar, the defendant, relying on State v. Nathaniel S., supra, 323
Conn. 295, argued that the statutes amended by P.A. 18-63 are procedural
in nature and, thus, that the amendments are intended to apply retroactively
in the absence of a clear expression of legislative intent to the contrary.
State v. Omar, supra, 209 Conn. App. 290. In the present case, the defendant
argues that P.A. 18-63 should be applied retroactively because it is clarifying
legislation. These arguments rely on two separate retroactivity analyses.
Thus, it was necessary for us to analyze the defendant’s clarification argu-
ment in its entirety prior to addressing our decision in Omar.