State v. Rivera , 177 Conn. App. 242 ( 2017 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears 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 reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. JOSE RIVERA
(AC 40218)
DiPentima, C. J., and Mullins and Pellegrino, Js.
Syllabus
The defendant, who previously had been convicted of, inter alia, the crime
of murder and sentenced to a mandatory minimum term of twenty-five
years of incarceration without the possibility of parole stemming from
his role in a shooting when he was seventeen years old, appealed to
this court, claiming that the trial court improperly dismissed his motion
to correct an illegal sentence for lack of subject matter jurisdiction. The
defendant claimed that his sentence was unconstitutional under the
eighth amendment to the United States constitution, as interpreted by
Miller v. Alabama (567 U.S. 460), which requires a sentencing court to
consider a juvenile offender’s youth and attendant characteristics as
mitigating factors prior to sentencing a juvenile homicide offender to
life without the possibility of parole or its functional equivalent. He also
claimed that his mandatory minimum sentence of twenty-five years
violated article first, §§ 8 and 9, of the state constitution, in that it
prevented the court from sentencing a juvenile on a charge of murder
to less than twenty-five years of incarceration upon due consideration
to the factors outlined in Miller. During the pendency of the defendant’s
appeal, No. 15-84, § 1, of the 2015 Public Acts (P.A. 15-84, now codified
at § 54-125a [f]) was enacted, pursuant to which the defendant became
eligible for parole. Also, after this appeal was filed, our Supreme Court
decided State v. Delgado (323 Conn. 801), in which it held that the eighth
amendment to the United States constitution, as interpreted by Miller,
does not prohibit a court from imposing a sentence of life imprisonment
with the opportunity for parole for a juvenile homicide offender, or
require the court to consider the mitigating factors of youth before
imposing such a sentence, and that an allegation that the court failed
to consider youth related factors before imposing a sentence of life with
parole was not sufficient to establish a jurisdictional basis for correcting
a sentence. Held:
1. The trial court properly dismissed the defendant’s motion to correct an
illegal sentence for lack of subject matter jurisdiction; although the
defendant initially was sentenced as a juvenile to twenty-five years of
incarceration without the possibility of parole for a homicide offense,
he is now eligible for parole pursuant to § 54-125a (f), and, therefore,
pursuant to Delgado, because the sentencing court was not required to
consider the mitigating factors of youth before imposing such a sentence,
the defendant’s motion to correct failed to state a colorable claim that
his sentence of twenty-five years of incarceration was illegal or imposed
in an illegal manner, and the trial court lacked subject matter jurisdiction
to consider the merits of the motion to correct.
2. The defendant could not prevail on his claim that a mandatory minimum
sentence of twenty-five years of incarceration without the possibility
of parole imposed on a juvenile homicide offender was unconstitutional
under article first, §§ 8 and 9, of our state constitution, as the factors
set forth in State v. Geisler (222 Conn. 672) to be considered in defining
the scope and parameters of the state constitution did not support the
defendant’s state constitutional claim: the mandatory minimum sentence
of twenty-five years of incarceration imposed on a juvenile offender did
not constitute cruel and unusual punishment under federal precedent,
as it was not excessive and disproportionate or arbitrary or discrimina-
tory, the sentencing court was not required to consider the youth related
mitigating factors under Miller, as those factors apply only to life senten-
ces without the possibility of parole or their functional equivalent and
the defendant was eligible for parole, the historical considerations under-
lying this state’s constitutional history provided no direction in determin-
ing whether the defendant’s sentence was prohibited under article first,
§§ 8 and 9, of the state constitution, the text of which did not give
juveniles any specific special status or protections, recent decisions by
this state’s appellate courts weighed against the defendant’s claim, as
did persuasive precedent from our sister states, and § 54-125a (f), which
confers special protection on juveniles who were under the age of
eighteen at the time they committed their offenses, reflects current
sociological and economic norms as to youth related sentencing consid-
erations, which also weighed against the defendant; accordingly, the
mandatory minimum sentence of twenty-five years of incarceration
imposed on the defendant, as a juvenile homicide offender, did not
violate the state constitution.
3. This court declined to reach the merits of the defendant’s unpreserved
claim that the trial court committed constitutional error when it improp-
erly accepted his waiver, through counsel, of his right to a presentence
investigation report without canvassing him prior to permitting the
waiver, this court having previously concluded that review of an unpre-
served claim pursuant to State v. Golding (213 Conn. 233) is not war-
ranted where, as here, the defendant, on appeal, raises a challenge to
the legality of his sentence that was not presented in his underlying
motion to correct an illegal sentence.
Argued May 15—officially released October 17, 2017
Procedural History
Substitute information charging the defendant with
the crimes of murder and conspiracy to commit murder,
brought to the Superior Court in the judicial district of
Hartford, where the defendant was presented to the
court, Clifford, J., on a plea of guilty; judgment of guilty;
thereafter, the court, Alexander, J., dismissed the
defendant’s motion to correct an illegal sentence, and
the defendant appealed to this court. Affirmed.
W. Theodore Koch III, assigned counsel, for the appel-
lant (defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, Melissa E. Patterson, assistant state’s attor-
ney, and Thomas R. Garcia, former senior assistant
state’s attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Jose Rivera,
appeals from the judgment of the trial court dismissing
his motion to correct an illegal sentence. We are asked
to determine whether our state constitution affords
greater protection to juvenile homicide offenders than
that provided under the federal constitution. On appeal,
the defendant claims that (1) the court erred in dismiss-
ing the motion to correct an illegal sentence on the
ground that it lacked subject matter jurisdiction, (2)
the court erred in dismissing the motion to correct
an illegal sentence because the mandatory minimum
sentence of twenty-five years of incarceration without
the possibility of parole imposed on a juvenile homicide
offender is unconstitutional under article first, §§ 8 and
9, of the Connecticut constitution, as it prevented the
court from sentencing juveniles to less than twenty-five
years of incarceration upon due consideration of the
Miller factors1 and (3) the court committed constitu-
tional error when it accepted the defendant’s waiver,
through counsel, without a canvass, of his right to a
presentence investigation report. We disagree with the
defendant and, accordingly, affirm the judgment of the
trial court dismissing the motion to correct an illegal
sentence.
The following facts and procedural history are rele-
vant to the present appeal. On April 5, 1997, the defen-
dant and an accomplice participated in a shooting that
resulted in the death of Harry Morales. The defendant
was seventeen years old at the time of the shooting.
On June 3, 1999, when the defendant was nineteen
years old, he pleaded guilty to murder in violation of
General Statutes § 53a-54a and conspiracy to commit
murder in violation of General Statutes §§ 53a-48 (a)
and 53a-54a. He also pleaded guilty under a different
docket number to assault in the first degree in violation
of General Statutes § 53a-59 (a) (1).2 The court, Clifford,
J., sentenced the defendant to the mandatory minimum
of twenty-five years of incarceration on the charge of
murder, twenty years of incarceration on the charge of
conspiracy to commit murder and ten years of incarcer-
ation, five of which were the mandatory minimum, on
the charge of assault in the first degree, with all senten-
ces to be served concurrently. The total effective sen-
tence imposed by the court was twenty-five years of
incarceration. At the time the defendant was sentenced,
he was not eligible for parole pursuant to General Stat-
utes § 54-125a (b) (1), which provides in relevant part
that ‘‘[n]o person convicted of [murder], which was
committed on or after July 1, 1981, shall be eligible for
parole . . . .’’3
On October 1, 2014, the defendant filed a motion to
correct an illegal sentence pursuant to Practice Book
§ 43-22.4 In his motion, the defendant claimed that his
sentence of twenty-five years of incarceration was
imposed in an illegal manner because it violated the
eighth amendment to the United States constitution as
interpreted by Miller v. Alabama, 567 U.S. 460, 132 S.
Ct. 2455, 183 L. Ed. 2d 407 (2012),5 and Graham v.
Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825
(2010).6 Oral argument was heard on October 16, 2014.
On February 11, 2015, the trial court, Alexander, J.,
issued a memorandum of decision dismissing the defen-
dant’s motion to correct an illegal sentence because it
lacked subject matter jurisdiction over the motion. This
appeal followed.
After the appeal was filed and briefed, our Supreme
Court issued decisions in State v. Delgado, 323 Conn.
801, 151 A.3d 345 (2016), and State v. Boyd, 323 Conn.
816, 151 A.3d 355 (2016). The parties were asked to be
prepared to address at oral argument the impact of
Delgado and Boyd on the present appeal.7
I
The defendant first claims that the trial court erred
in dismissing the motion to correct an illegal sentence
on the ground that it lacked subject matter jurisdiction.
We conclude that our Supreme Court’s holding in State
v. Delgado, supra, 323 Conn. 801, is dispositive of the
defendant’s claim, and, accordingly, we agree with the
trial court’s dismissal of the defendant’s motion to
correct.
We begin by setting forth our well established stan-
dard of review and legal principles that govern our
resolution of this claim. ‘‘We apply plenary review in
addressing this question of law. . . . The subject mat-
ter jurisdiction requirement may not be waived by any
party, and also may be raised by a party, or by the court
sua sponte, at any stage of the proceedings, including
on appeal. . . . At issue is whether the defendant has
raised a colorable claim within the scope of Practice
Book § 43-22 that would, if the merits of the claim were
reached and decided in the defendant’s favor, require
correction of a sentence. . . . In the absence of a color-
able claim requiring correction, the trial court has no
jurisdiction to modify the sentence.’’ (Citations omitted;
internal quotation marks omitted.) Id., 810.
In Delgado, the defendant, who was sentenced in
1996 to sixty-five years of incarceration without the
possibility of parole for crimes he committed at the age
of sixteen, appealed from the judgment of the trial court
dismissing his motion to correct an illegal sentence.
The issue before the Supreme Court was whether the
sentencing court had failed to consider youth related
mitigating factors and imposed the equivalent of a life
sentence without the possibility of parole in violation of
the eighth amendment. Id., 802–804, 809. Our Supreme
Court first noted that ‘‘[f]ollowing the enactment of No.
15-84 of the 2015 Public Acts (P.A. 15-84), now codified
in part in General Statutes § 54-125a (f) . . . the defen-
dant is now eligible for parole and can no longer claim
that he is serving a sentence of life imprisonment, or
its equivalent, without parole.’’8 State v. Delgado, supra,
323 Conn. 810.
The court next explained that ‘‘[t]he eighth amend-
ment [to the United States constitution], as interpreted
by Miller, does not prohibit a court from imposing a
sentence of life imprisonment with the opportunity for
parole for a juvenile homicide offender, nor does it
require the court to consider the mitigating factors of
youth before imposing such a sentence. . . . Rather,
under Miller, a sentencing court’s obligation to consider
youth related mitigating factors is limited to cases in
which the court imposes a sentence of life, or its equiva-
lent, without parole.’’ (Citation omitted; emphasis
altered.) Id., 810–11. The court went on to state that
‘‘[b]ecause Miller and [State v. Riley, 315 Conn. 637,
110 A.3d 1205 (2015), cert. denied, U.S. , 136 S.
Ct. 1361, 194 L. Ed. 2d 376 (2016)], do not require a
trial court to consider any particular mitigating factors
associated with a juvenile’s young age before imposing
a sentence that includes an opportunity for parole, the
defendant can no longer allege, after the passage of
P.A. 15-84, that his sentence was imposed in an illegal
manner on the ground that the trial court failed to take
these factors into account. Such an allegation is an
essential predicate to the trial court’s jurisdiction to
correct the sentence. An allegation that the court failed
to consider youth related factors before imposing a
sentence of life with parole is not sufficient to establish
a jurisdictional basis for correcting a sentence. . . .
We therefore conclude that the defendant has not raised
a colorable claim of invalidity that, if decided in his
favor, would require resentencing.’’ (Citations omitted;
emphasis in original.) Id., 812–13.
As in Delgado, although the defendant here initially
was sentenced as a juvenile to twenty-five years of
incarceration without the possibility of parole for a
homicide offense, he is now eligible for parole pursuant
to § 54-125a (f). As explained in Delgado, the sentencing
court was not required to consider the mitigating factors
of youth before imposing such a sentence. Because the
defendant’s motion to correct fails to state a colorable
claim that his sentence of twenty-five years of incarcera-
tion was illegal or imposed in an illegal manner, the
trial court does not have subject matter jurisdiction to
consider the merits of the motion. See State v. McClean,
173 Conn. App. 62, 64, 164 A.3d 35 (2017) (concluding:
‘‘[u]pon reconsideration, we are constrained by Delgado
to conclude that the trial court properly dismissed the
defendant’s motion to correct an illegal sentence and
that its judgment should be affirmed’’); State v. Martin,
172 Conn. App. 904, 158 A.3d 448 (2017) (same); see
also State v. Parker, 173 Conn. App. 901, 159 A.3d 1203
(2017) (same). The court, therefore, properly dismissed
the motion to correct an illegal sentence. See State v.
Ellis, 174 Conn. App. 14, 17–18, 164 A.3d 829 (2017)
(‘‘Following the enactment of P.A. 15-84 . . . the
defendant is now eligible for parole and can no longer
claim that he is serving a sentence of life imprisonment,
or its equivalent, without parole. The eighth amend-
ment, as interpreted by Miller, does not prohibit a court
from imposing a sentence of life imprisonment with
the opportunity for parole for a juvenile homicide
offender, nor does it require the court to consider the
mitigating factors of youth before imposing such a sen-
tence. . . . [Thus] the court properly dismissed the
defendant’s motion to correct an illegal sentence.’’
[Citations omitted; emphasis in original; internal quota-
tion marks omitted.]).9
II
The defendant’s second claim is that the court erred
in dismissing his motion to correct an illegal sentence
because a mandatory minimum sentence of twenty-five
years of incarceration without the possibility of parole
imposed on a juvenile homicide offender is unconstitu-
tional under article first, §§ 8 and 9, of the Connecticut
constitution, as it bars the court from sentencing juve-
niles to less than twenty-five years of incarceration
upon due consideration of the Miller mitigating factors
of youth. The state responds by arguing that because
Miller did not apply to the sentencing procedures in this
case, there was no violation of the state constitution.
We agree with the state.
The following standard of review and applicable legal
principles are relevant to this claim. ‘‘Our review of the
defendant’s constitutional claims is plenary.’’ State v.
Williams-Bey, 167 Conn. App. 744, 763–64, 144 A.3d
467 (2016), modified in part on other grounds after
reconsideration, 173 Conn. App. 64, 164 A.3d 31, cert.
granted on other grounds, 326 Conn. 920, A.3d
(2017);10 see also State v. Taylor G., 315 Conn. 734, 741,
110 A.3d 338 (2015) (challenge to ‘‘[t]he constitutional-
ity of a statute presents a question of law over which
our review is plenary’’ [internal quotation marks omit-
ted]). ‘‘It is well established that federal constitutional
law establishes a minimum national standard for the
exercise of individual rights and does not inhibit state
governments from affording higher levels of protection
for such rights. . . . In several cases, our Supreme
Court has concluded that the state constitution provides
broader protection of individual rights than does the
federal constitution. . . . It is by now well established
that the constitution of Connecticut prohibits cruel and
unusual punishments under the auspices of the dual
due process provisions contained in article first, §§ 8
and 9. Those due process protections take as their hall-
mark principles of fundamental fairness rooted in our
state’s unique common law, statutory, and constitu-
tional traditions. . . . Although neither provision of
the state constitution expressly references cruel or
unusual punishments, it is settled constitutional doc-
trine that both of our due process clauses prohibit gov-
ernmental infliction of cruel and unusual punishments.’’
(Citations omitted; internal quotation marks omitted.)
State v. Williams-Bey, supra, 768–69, quoting State v.
Santiago, 318 Conn. 1, 16–17, 122 A.3d 1, reconsidera-
tion denied, 319 Conn. 912, 124 A.3d 496, stay denied,
319 Conn. 935, 125 A.3d 520 (2015). We must determine
whether the Connecticut constitution prohibits, as cruel
and unusual, the imposition on a juvenile of the manda-
tory minimum sentence of twenty-five years of incarcer-
ation for the charge of murder. We conclude that it
does not.
‘‘In ascertaining the contours of the protections
afforded under our state constitution, we utilize a
multifactor approach that we first adopted in State v.
Geisler, 222 Conn. 672, 684–85, 610 A.2d 1225 (1992).’’
State v. Santiago, 319 Conn. 935, 937 n.3, 125 A.3d 520
(2015). ‘‘In State v. Geisler, [supra, 672], we identified
six nonexclusive tools of analysis to be considered, to
the extent applicable, whenever we are called on as
a matter of first impression to define the scope and
parameters of the state constitution: (1) persuasive rele-
vant federal precedents; (2) historical insights into the
intent of our constitutional forebears; (3) the operative
constitutional text; (4) related Connecticut precedents;
(5) persuasive precedents of other states; and (6) con-
temporary understandings of applicable economic and
sociological norms, or, as otherwise described, relevant
public policies. . . . These factors, which we consider
in turn, inform our application of the established state
constitutional standards—standards that, as we explain
hereinafter, derive from United States Supreme Court
precedent concerning the eighth amendment—to the
defendant’s claims in the present case.’’ (Citations omit-
ted.) State v. Santiago, supra, 318 Conn. 17–18.
A
Federal Precedent
As to the first Geisler factor, the mandatory minimum
sentence of twenty-five years of incarceration imposed
on a juvenile homicide offender does not constitute a
cruel and unusual punishment under federal precedent.
‘‘The eighth amendment to the federal constitution
establishes the minimum standards for what constitutes
impermissibly cruel and unusual punishment. . . .
Specifically, the United States Supreme Court has indi-
cated that at least three types of punishment may be
deemed unconstitutionally cruel: (1) inherently bar-
baric punishments; (2) excessive and disproportionate
punishments; and (3) arbitrary or discriminatory pun-
ishments.’’ (Citation omitted; footnote omitted.) Id.,
18–19.
1
 Inherently Barbaric Punishments
The first type of punishment that the United States
Supreme Court has recognized as violating the eighth
amendment includes the imposition of an inherently
barbaric punishment. The prohibition against an inher-
ently barbaric punishment ‘‘is directed toward mani-
festly and unnecessarily cruel punishments, such as
torture and other wanton infliction of physical pain.’’
Id., 20; see also Graham v. Florida, supra, 560 U.S. 59.
In the present case, the defendant does not argue
that the imposition of a mandatory minimum sentence
of twenty-five years of incarceration on a juvenile was
an inherently barbaric punishment. We therefore pro-
ceed to determine whether his sentence constitutes an
excessive and disproportionate punishment and/or an
arbitrary or discriminatory punishment
2
Excessive and Disproportionate Punishments
The second type of punishment that the United States
Supreme Court has recognized as violating the eighth
amendment is one that is excessive and disproportion-
ate. Specifically, ‘‘the eighth amendment mandates that
punishment be proportioned and graduated to the
offense of conviction.’’ State v. Santiago, supra, 318
Conn. 20. ‘‘Although the unique aspects of adolescence
had long been recognized in the [United States]
Supreme Court’s jurisprudence, it was not until the
trilogy of Roper [v. Simmons, 543 U.S. 551, 125 S. Ct.
1183, 161 L. Ed. 2d 1 (2005)], Graham, and Miller that
the court held that youth and its attendant characteris-
tics have constitutional significance for purposes of
assessing proportionate punishment under the eighth
amendment.’’ (Footnote omitted.) State v. Riley, supra,
315 Conn. 644–45.
In Roper v. Simmons, supra, 543 U.S. 578, the United
States Supreme Court held that the eighth and four-
teenth amendments prohibit the imposition of the death
penalty on juvenile offenders. As our Supreme Court
explained in Riley: ‘‘Because of a juvenile’s diminished
culpability, the court [in Roper] concluded that the two
penological justifications for the death penalty, retribu-
tion and deterrence, applied with lesser force to them
than to adults. . . . The court suggested that, [t]o the
extent the juvenile death penalty might have residual
deterrent effect, it is worth noting that the punishment
of life imprisonment without the possibility of parole
is itself a severe sanction, in particular for a young
person.’’ (Citation omitted; internal quotation marks
omitted.) State v. Riley, supra, 315 Conn. 646.
In Graham v. Florida, supra, 560 U.S. 82, the court
held that the eighth amendment prohibits the sentence
of life without the possibility of parole for juvenile non-
homicide offenders. The court reasoned that the juve-
nile nonhomicide offender has a ‘‘twice diminished
moral culpability’’ when compared to an adult homicide
offender. Id., 69. The court in Graham further noted:
‘‘What the [s]tate must do, however, is give defendants
like [Terrance Jamar] Graham some meaningful oppor-
tunity to obtain release based on demonstrated maturity
and rehabilitation. . . . The [e]ighth [a]mendment
does not foreclose the possibility that persons con-
victed of nonhomicide crimes committed before adult-
hood will remain behind bars for life. It does forbid
[s]tates from making the judgment at the outset that
those offenders never will be fit to reenter society.’’
Id., 75.
‘‘[I]n Miller v. Alabama, [supra, 567 U.S. 469–70],
the court held that the eighth amendment prohibits
mandatory sentencing schemes that mandate life in
prison without the possibility of parole for juvenile
homicide offenders, although a sentence of life impris-
onment without the possibility of parole may be
deemed appropriate following consideration of the
child’s age related characteristics and the circum-
stances of the crime.’’ (Emphasis added; internal quota-
tion marks omitted.) Dumas v. Commissioner of
Correction, 168 Conn. App. 130, 136, 145 A.3d 355, cert.
denied, 324 Conn. 901, 151 A.3d 1288 (2016). The court
in Miller ‘‘summarized its holding as follows: [T]he
[e]ighth [a]mendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for
juvenile offenders. . . . By making youth (and all that
accompanies it) irrelevant to imposition of that harshest
prison sentence, such a scheme poses too great a risk
of disproportionate punishment.’’ (Internal quotation
marks omitted.) State v. Riley, supra, 315 Conn. 652.
Most recently, the court determined in Montgomery
v. Louisiana, U.S. , 136 S. Ct. 718, 193 L. Ed.
2d 599 (2016), ‘‘that Miller applies retroactively upon
collateral review to all juvenile offenders serving man-
datory life without parole sentences because Miller
announced a substantive rule of constitutional law.
. . . The court also recognized that the substantive rule
in Miller had procedural components regarding the fac-
tors that the judicial authority must consider. It stated
that Miller requires [the judicial authority] to consider a
juvenile offender’s youth and attendant characteristics
before determining that life without parole is a propor-
tionate sentence. . . . The court noted that [t]he foun-
dation stone for Miller’s analysis was [the] Court’s line
of precedent holding certain punishments dispropor-
tionate when applied to juveniles. . . . The court reit-
erated that because of children’s decreased culpability
and greater ability to reform, Miller recognized that the
distinctive attributes of youth diminish the penological
justifications for imposing life without parole on juve-
nile offenders. . . . Miller, then, did more than require
[the judicial authority] to consider a juvenile offender’s
youth before imposing life without parole; it established
that the penological justifications for life without parole
collapse in light of the distinctive attributes of youth.’’
(Citations omitted; internal quotation marks omitted.)
State v. Williams-Bey, supra, 167 Conn. App. 757–58.
‘‘The United States Supreme Court, however, also
recognized in Montgomery the practical limitations in
remedying sentences that violated Miller upon its retro-
active application. Juvenile offenders whose sentences
violate Miller upon retroactive application did not have
the opportunity to demonstrate the mitigating factors
of youth at the time of sentencing. The court empha-
sized that this violation of Miller could be remedied
by affording those juvenile offenders parole eligibility,
thus providing, in the context of Graham, a meaning-
ful opportunity for release . . . . The court also
emphasized that [g]iving Miller retroactive effect . . .
does not require States to relitigate sentences, let alone
convictions, in every case where a juvenile offender
received mandatory life without parole. A State may
remedy a Miller violation by permitting juvenile homi-
cide offenders to be considered for parole, rather than
by resentencing them. See, e.g., Wyo. Stat. Ann. § 6-10-
301 (c) (2013) (juvenile homicide offenders eligible for
parole after [twenty-five] years). Allowing those offend-
ers to be considered for parole ensures that juveniles
whose crimes reflected only transient immaturity—and
who have since matured—will not be forced to serve
a disproportionate sentence in violation of the Eighth
Amendment.’’ (Citation omitted; emphasis altered;
internal quotation marks omitted.) State v. Williams-
Bey, supra, 167 Conn. App. 758–59. Moreover, the court
in Montgomery further concluded that juveniles sen-
tenced to life in prison without parole ‘‘must be given
the opportunity to show their crime did not reflect
irreparable corruption; and, if it did not, their hope
for some years of life outside prison walls must be
restored.’’ Montgomery v. Louisiana, supra, 136 S.
Ct. 736–37.
‘‘These federal cases recognized that [t]he concept
of proportionality is central to the Eighth Amendment.
Embodied in the Constitution’s ban on cruel and
unusual punishments is the precept of justice that pun-
ishment for crime should be graduated and propor-
tioned to [the] offense.’’ (Internal quotation marks
omitted.) Dumas v. Commissioner of Correction,
supra, 168 Conn. App. 136.
In the present case, the defendant relies on Roper,
Graham and Miller to support his claim that a manda-
tory minimum sentence of twenty-five years of incarcer-
ation imposed on a juvenile homicide offender is cruel
under the eighth amendment to the United States consti-
tution. The defendant further contends that the manda-
tory minimum sentence of twenty-five years of
incarceration amounts to a life sentence under Miller.
Applying the recent federal precedent to the present
case, we are convinced that the mandatory minimum
sentence imposed on the defendant does not rise to the
level of a cruel and unusual punishment pursuant to
Roper, Graham, Miller and Montgomery. Distinguish-
able from these federal cases, here, the defendant’s
sentence does not amount to a life sentence, or its
functional equivalent, without the possibility for parole.
Rather, in the present case, the defendant is parole
eligible pursuant to § 54-125a (f). Specifically, although
at the time of sentencing, the crime of which the defen-
dant was convicted made him ineligible for parole, in
light of the subsequent passage of P.A 15-84 the defen-
dant is parole eligible. Following Montgomery, the
opportunity for parole eligibility ‘‘ensures that juveniles
whose crimes reflected only transient immaturity—and
who have since matured—will not be forced to serve
a disproportionate sentence in violation of the Eighth
Amendment.’’ Montgomery v. Louisiana, supra, 136 S.
Ct. 736. We emphasize that Miller applies only to life
sentences, or its functional equivalent, without the pos-
sibility of parole.
After reviewing the foregoing federal precedent, we
conclude that the Miller mitigating factors of youth did
not apply to the defendant’s sentence of twenty-five
years of incarceration. Because the defendant is parole
eligible, the defendant is not serving a sentence of life
imprisonment, nor its functional equivalent, without the
possibility of parole. Therefore, as Miller applies only
to life sentences, or their functional equivalent, without
the possibility of parole, the sentencing court here was
not required to consider the Miller youth related miti-
gating factors.
Accordingly, in relying on the foregoing federal prece-
dent, we are convinced that the mandatory minimum
sentence of twenty-five years with the possibility of
parole imposed on a juvenile homicide offender does
not constitute an excessive and disproportionate pun-
ishment under the circumstances of this case.
3
Arbitrary or Discriminatory Punishments
The third type of punishment that the United States
Supreme Court has recognized as cruel and unusual
under the eighth amendment is a punishment that is
‘‘imposed in an arbitrary and unpredictable fashion
. . . .’’ (Internal quotation marks omitted.) State v. San-
tiago, supra, 318 Conn. 23. The defendant contends that
a determination that his mandatory minimum sentence
was unconstitutional, will lead to the elimination of
racial discrimination. To support his assertion the
defendant relies upon statistical data compiled per-
taining to all juvenile offenders serving life without
parole in Connecticut. We are not persuaded by the
defendant’s argument.
In particular, the United States Supreme Court pre-
viously has rejected a similar argument involving racial
bias that impermissibly tainted sentencing decisions,
in the context of capital punishment. In McCleskey v.
Kemp, 481 U.S. 279, 319, 107 S. Ct. 1756, 95 L. Ed. 2d
262 (1987), the court noted: ‘‘The Constitution does
not require that a State eliminate any demonstrable
disparity that correlates with a potentially irrelevant
factor in order to operate a criminal justice system
. . . .’’ The court explained that the legislatures are
‘‘better qualified to weigh and evaluate the results of
statistical studies in terms of their own local conditions
and with a flexibility of approach that is not available
to the courts . . . .’’ (Citation omitted; internal quota-
tion marks omitted.) Id. The court further noted that
‘‘[i]t is not the responsibility—or indeed even the right—
of this Court to determine the appropriate punishment
for particular crimes. It is the legislatures, the elected
representatives of the people, that are constituted to
respond to the will and consequently the moral values
of the people.’’ (Internal quotation marks omitted.) Id.
After our review of the foregoing legal principles, we
conclude that the imposition of a mandatory minimum
sentence of twenty-five years of incarceration imposed
on a juvenile homicide offender is not an arbitrary or
discriminatory punishment.
Therefore, under the federal precedent, the manda-
tory minimum sentence of twenty-five years of incarcer-
ation with the possibility of parole11 imposed on a
juvenile homicide offender does not fall within the three
types of punishments that the United States Supreme
Court has determined to constitute a cruel and unusual
punishment in violation of the eighth amendment.
Accordingly, the first Geisler factor does not support
the defendant’s claim.
B
State Constitutional History
The second Geisler factor, the historical approach,
in theory, is neutral. In his brief, the defendant acknowl-
edges that Connecticut is a progressive state. He further
explains that at common law, children older than the
age of fourteen were treated as adults, which led to
the creation of juvenile courts because people were
‘‘appalled by adult procedures and penalties, and by
the fact that children could be given long prison senten-
ces and mixed in jails with hardened criminals.’’ (Inter-
nal quotation marks omitted.) He then discusses the
trilogy of the United States Supreme Court cases of
Roper, Graham and Miller, followed by our Supreme
Court’s decisions in Riley and Casiano v. Commis-
sioner of Correction, 317 Conn. 52, 115 A.3d 1031 (2015),
cert. denied sub nom. Semple v. Casiano, U.S. ,
136 S. Ct. 1364, 194 L. Ed. 2d 376 (2016), and explains
that these decisions reflect our evolving standards of
decency in the prohibition against cruel and unusual
punishment.
In turn, the state, citing State v. Jose C., Superior
Court, judicial district of New Haven, Docket No. CR-
6421185 (March 21, 1996) (16 Conn. L. Rptr. 419, 425),
aff’d sub nom. State v. Angel C., 245 Conn. 93, 715 A.2d
652 (1998), points out that ‘‘[a]t the time of the adoption
of its 1818 constitution, Connecticut followed the com-
mon law and treated fourteen and fifteen year olds as
adults when charged with a felony offense. It was not
until 1921 that Connecticut established by statute a
juvenile justice system.’’ (Internal quotation marks
omitted.) State v. Williams-Bey, supra, 167 Conn. App.
777. These historical considerations provide no direc-
tion in answering the specific question of whether the
mandatory minimum sentence of twenty-five years of
incarceration imposed upon a juvenile for a homicide
offense is prohibited under article first, §§ 8 and 9, of
the Connecticut constitution. This Geisler factor is,
therefore, neutral.
C
Constitutional Text
In regard to the third Geisler factor, we conclude
that the relevant constitutional textual approach is neu-
tral. ‘‘It is by now well established that the constitution
of Connecticut prohibits cruel and unusual punish-
ments under the auspices of the dual due process provi-
sions contained in article first, §§ 8 and 9. Those due
process protections take as their hallmark principles
of fundamental fairness rooted in our state’s unique
common law, statutory, and constitutional traditions.
Although neither provision of the state constitution
expressly references cruel or unusual punishments, it
is settled constitutional doctrine that both of our due
process clauses prohibit governmental infliction of
cruel and unusual punishments.’’ State v. Santiago,
supra, 318 Conn. 16–17. Notably, ‘‘[a]rticle first, §§ 8 and
9, of the Connecticut constitution [does] not contain
any language specifically applying to juveniles.’’ State
v. Williams-Bey, supra, 167 Conn. App. 769. In other
words, the text of these constitutional provisions does
not give juveniles any specific special status or protec-
tions. Id. Rather, the text of the Connecticut constitu-
tion makes no differentiation between juveniles and
adults. See id. Thus, the third Geisler factor is neutral.
D
Connecticut Precedents
The fourth Geisler factor, the relevant Connecticut
precedents, weighs against the defendant’s claim. ‘‘Spe-
cifically, we recognized that, under the state constitu-
tion, whether a challenged punishment is cruel and
unusual is to be judged according to the evolving stan-
dards of human decency . . . and that those standards
are reflected not only in constitutional and legislative
text, but also in our history and in the teachings of the
federal courts.’’ (Citations omitted; internal quotation
marks omitted.) State v. Santiago, supra, 318 Conn. 42.
The most recent and relevant Connecticut precedents
on juvenile sentencing are set forth in State v. Delgado,
supra, 323 Conn. 810–11; Casiano v. Commissioner of
Correction, supra, 317 Conn. 62; State v. Taylor G.,
supra, 315 Conn. 738; State v. Riley, supra, 315 Conn.
652; and State v. Logan, 160 Conn. App. 282, 291–93,
125 A.3d 581 (2015), cert. denied, 321 Conn. 906, 135
A.3d 279 (2016).
As discussed in part I of this opinion, our Supreme
Court in Delgado concluded that once our state legisla-
ture affords a juvenile homicide offender the opportu-
nity for parole, Miller no longer applies. See State v.
Delgado, supra, 323 Conn. 810–11. Specifically, the
court noted: ‘‘Following the enactment of P.A. 15-84,
however, the defendant is now eligible for parole and
can no longer claim that he is serving a sentence of life
imprisonment, or its equivalent, without parole. The
eighth amendment as interpreted by Miller, does not
prohibit a court from imposing a sentence of life impris-
onment with the opportunity for parole on a juvenile
homicide offender, nor does it require the court to con-
sider the mitigating factors of youth before imposing
such a sentence. . . . Rather, under Miller, a sentenc-
ing court’s obligation to consider youth related mitigat-
ing factors is limited to cases in which the court imposes
a sentence of life, or its [functional] equivalent, without
parole.’’ (Citation omitted; emphasis in original.) Id. The
court further concluded: ‘‘This conclusion is consistent
with the law in other jurisdictions that have considered
this issue and have concluded that Miller simply does
not apply when a juvenile’s sentence provides an oppor-
tunity for parole; that is, a sentencing court has no
constitutionally founded obligation to consider any spe-
cific youth related factors under such circumstances.’’12
Id., 811.
‘‘In State v. Taylor G., [supra, 315 Conn. 738, 741],
the defendant was fourteen and fifteen years old when
he committed nonhomicide offenses for which the trial
court imposed a total effective sentence of ten years
imprisonment followed by three years of special parole.
Our Supreme Court concluded that the ten and five
year mandatory minimum sentences [that the defendant
would serve concurrently], under which the defendant
is likely to be released before he reaches the age of
thirty, do not approach what the [United States
Supreme Court] described in Roper, Graham and Miller
as the two harshest penalties. . . . The court reasoned
that [a]lthough the deprivation of liberty for any amount
of time, including a single year, is not insignificant,
Roper, Graham and Miller cannot be read to mean that
all mandatory deprivations of liberty are of potentially
constitutional magnitude, and that the defendant will
be able to work toward his rehabilitation and look for-
ward to release at a relatively young age.’’ (Emphasis
omitted; internal quotation marks omitted.) Dumas v.
Commissioner of Correction, supra, 168 Conn. App.
137.
In State v. Riley, supra, 315 Conn. 653, our Supreme
Court characterized Miller as ‘‘impacting two aspects
of sentencing: (1) that a lesser sentence than life without
parole must be available for a juvenile offender; and
(2) that the sentencer must consider age related evi-
dence as mitigation when deciding whether to irrevoca-
bly sentence juvenile offenders to a [term of life
imprisonment, or its equivalent, without parole].’’ Id.
Our Supreme Court ‘‘therefore concluded that the dic-
tates set forth in Miller may be violated even when the
sentencing authority has discretion to impose a lesser
sentence than life without parole if it fails to give due
weight to evidence that Miller deemed constitutionally
significant before determining that such a severe pun-
ishment is appropriate. . . . Because the record in
Riley [did] not clearly reflect that the court considered
and gave mitigating weight to the defendant’s youth
and its hallmark features when considering whether to
impose the functional equivalent to life imprisonment
without parole, [the court] concluded that the defen-
dant in Riley was entitled to a new sentencing proceed-
ing.’’ (Citation omitted; internal quotation marks
omitted.) State v. Delgado, supra, 323 Conn. 806–807.
The court further explained that Miller applies to
discretionary sentencing schemes and term of years
sentencing schemes that are the functional equivalent
of life without parole. State v. Riley, supra, 315 Conn.
655–57. In addressing what constitutes a functional
equivalent of a sentence of life without parole, the court
noted that an aggregate sentence of 100 years of incar-
ceration without the possibility of parole imposed on
a juvenile offender ‘‘is the functional equivalent to life
without the possibility of parole.’’ Id., 642. Because the
sentencing court in Riley ‘‘made no reference to the
defendant’s age at the time he committed the offenses’’;
id., 643; when imposing this sentence, our Supreme
Court concluded that the defendant’s sentence violated
Miller and therefore remanded the case for resentenc-
ing with consideration of the factors identified in Miller.
Id., 660–61.
‘‘Several months after Riley was decided, [the] court
concluded that the required sentencing considerations
identified in Miller applied retroactively in collateral
proceedings.’’ State v. Delgado, supra, 323 Conn. 806–
807 (referring to Casiano v. Commissioner of Correc-
tion, supra, 317 Conn. 62). ‘‘[I]n Casiano v.
Commissioner of Correction, [supra, 317 Conn. 55], the
petitioner was sixteen years old when he committed
homicide and nonhomicide offenses for which the trial
court imposed a total effective sentence of fifty years
imprisonment without the possibility of parole pursuant
to a plea agreement. Our Supreme Court determined
that Miller applies retroactively to cases arising on col-
lateral review, and that a fifty year sentence without
the possibility of parole was the functional equivalent
of life imprisonment without the possibility of parole
and, therefore, subject to the sentencing procedures
set forth in Miller. . . . The court observed that
because the petitioner would be released from prison
at the age of sixty-six and the average life expectancy
of a male in the United States is seventy-six years, he
would only have approximately ten more years to live
outside of prison after his release. . . . The court
explained that [a] juvenile is typically put behind bars
before he has had the chance to exercise the rights
and responsibilities of adulthood, such as establishing
a career, marrying, raising a family, or voting. Even
assuming the juvenile offender does live to be released,
after a half century of incarceration, he will have irrepa-
rably lost the opportunity to engage meaningfully in
many of these activities and will be left with seriously
diminished prospects of his quality of life for the few
years he has left. . . . The court concluded that a fifty
year term and its grim prospects for any future outside
of prison effectively provide a juvenile offender with
no chance for fulfillment outside prison walls, no
chance for reconciliation with society, no hope.’’ (Inter-
nal quotation marks omitted.) Dumas v. Commissioner
of Correction, supra, 168 Conn. App. 138.
Moreover, in State v. Logan, supra, 160 Conn. App.
291–93, ‘‘this court held that a thirty-one year sentence
for murder and conspiracy to commit murder, imposed
on a defendant who was seventeen years old at the
time of the offenses, was not the equivalent of a life
sentence because even if he is not paroled, [he] will be
able to work toward rehabilitation, and can look for-
ward to release at an age when he will still have the
opportunity to live a meaningful life outside of prison
and to become a productive member of society.
Although the deprivation of liberty for any amount of
time, including a single year, is not insignificant . . .
Miller cannot be read to mean that all mandatory depri-
vations of liberty are of potentially constitutional magni-
tude. . . . The court concluded that thirty-one years
was not the equivalent of a life sentence; relief pursuant
to Miller, then, was unavailable to the defendant . . . .’’
(Citation omitted; internal quotation marks omitted.)
Dumas v. Commissioner of Correction, supra, 168
Conn. App. 138–39 (sentence of thirty years for first
degree manslaughter with firearm committed when
juvenile was fourteen years old did not implicate eighth
amendment prohibition against cruel and unusual pun-
ishment under Miller).
In light of the foregoing decisions recently decided
by this state’s appellate courts, the legislature in 2015
passed P.A. 15-84 (now codified in part in § 54-125a
[f]), ‘‘to respond to Miller and Graham by providing
increased parole eligibility to juvenile offenders.’’ State
v. Williams-Bey, supra, 167 Conn. App. 777.13 Pursuant
to § 54-125a (f), ‘‘all juveniles who are sentenced to
more than ten years imprisonment are eligible for
parole. State v. Delgado, supra, 323 Conn. 807. We
emphasize that our Supreme Court ‘‘has recognized that
the fixing of prison terms for specific crimes involves
a substantive penological judgment that, as a general
matter, is properly within the province of legislatures,
not courts.’’ (Emphasis added; internal quotation marks
omitted.) State v. Riley, supra, 315 Conn. 661.
Even when a defendant was not eligible for parole
pursuant to § 54-125a (f), this court has determined that
a sentence of thirty-one years of incarceration imposed
on a juvenile homicide offender was not considered the
equivalent of a life sentence and did not require the
sentencing court to consider the Miller mitigating fac-
tors of youth. See State v. Logan, supra, 160 Conn. App.
293. As the defendant in the present case was sentenced
to a mandatory minimum of twenty-five years of incar-
ceration, that sentence is less lengthy than the sentence
of thirty-one years of incarceration imposed on the juve-
nile homicide offender in Logan. See id., 285; see also
Dumas v. Commissioner of Correction, supra, 168
Conn. App. 139 (thirty year sentence imposed on juve-
nile did not implicate application of Miller). Suffice it
to say, the defendant’s twenty-five year sentence did not
amount to a life sentence, or its functional equivalent,
triggering the application of the Miller mitigating fac-
tors of youth. Therefore, this Geisler factor weighs
against the defendant.
E
Sister State Precedents
We next address the fifth Geisler factor, which
reviews precedent from other states. Regarding this
factor, the defendant relies on State v. Lyle, 854 N.W.2d
378 (Iowa 2014). In Lyle, the Supreme Court of Iowa
determined that ‘‘a statute mandating a sentence of
incarceration in a prison for juvenile offenders with no
opportunity for parole until a minimum period of time
has been served is unconstitutional under article I, sec-
tion 17 of the Iowa constitution.’’14 Id., 380. In Lyle, the
court further noted: ‘‘Mandatory sentencing for adults
does not result in cruel and unusual punishment but
for children it fails to account for too much of what
we know is child behavior.’’ Id., 402. The defendant’s
reliance on Lyle is unavailing for two reasons.
First, our Supreme Court in Taylor G.15 recently
rejected the applicability of Lyle to our state jurispru-
dence. State v. Taylor G., supra, 315 Conn. 750–51 n.8.
In explaining that the dissenting justice’s reliance on
Lyle was misplaced, the majority of the court in Taylor
G. explained: ‘‘[A]lthough [the dissent] relies exten-
sively on a recent Iowa Supreme Court decision holding
that mandatory minimum sentences for juvenile offend-
ers are impermissible, [the dissent] omits the fact that
the Iowa court chose not to decide the defendant’s
claim in that case under federal law, as the defendant
originally argued, but, rather, under the Iowa constitu-
tion after requesting additional briefing from the parties
on that issue. . . . [The dissent] also omits the fact
that, in interpreting the Iowa constitution, the Iowa
Supreme Court relied in part on the state legislature’s
decision in 2013 to expand the discretion of state courts
in juvenile matters by amending Iowa’s sentencing stat-
utes to remove mandatory sentencing for juveniles in
most cases . . . on other provisions in the Iowa crimi-
nal statutes vesting considerable discretion in courts
when deciding juvenile matters . . . and on a trilogy
of recent juvenile cases decided by the court under the
Iowa constitution. . . . Finally, [the dissent] omits the
fact that the Iowa court recognized that no other court
in the nation has held that its constitution or the [f]ed-
eral [c]onstitution prohibits a statutory schema that
prescribes a mandatory minimum sentence for a juve-
nile offender . . . and that no . . . national consen-
sus exists against the imposition of mandatory
sentences on juvenile offenders; the practice is common
across jurisdictions.’’ (Citations omitted; emphasis
altered; internal quotation marks omitted.) Id., 751 n.8.
Following the majority in Taylor G., we conclude that
the defendant’s reliance on Lyle is misplaced.
Second, our Supreme Court has also discussed the
trends in other jurisdictions pertaining to mandatory
minimum sentencing schemes for juvenile offenders.
In particular, in State v. Allen, 289 Conn. 550, 580–81, 958
A.2d 1214 (2008), the court noted: ‘‘[W]e also expressly
adopted the reasoning of the Delaware Supreme Court,
which, in Wallace v. State, 956 A.2d 630 (Del. 2008),
stated in relevant part: Every state provides some mech-
anism for the imposition of adult sentences on a juvenile
offender for at least some sort of crime. In other juris-
dictions, there is no evident trend away from imposing
serious adult criminal liability [on] juvenile offenders.
. . . [I]n forty-nine states, the age at which a first degree
murderer can face adult disposition is fourteen years
or younger. Forty-two states permit the sentencing of
juveniles to life without parole. In twenty-seven of those
states, the sentence is mandatory for anyone, child or
adult, found guilty of [m]urder in the [f]irst [d]egree.
. . . [I]n the past twenty years, courts have consistently
rejected [e]ighth [a]mendment claims made by juvenile
murderers attacking their life sentences.’’ (Internal quo-
tation marks omitted.) State v. Carrasquillo, 290 Conn.
209, 218–19, 962 A.2d 772 (2009). In addition, despite the
Iowa Supreme Court’s elimination in Lyle of mandatory
minimum sentences for juveniles, numerous state legis-
latures have maintained mandatory minimum sentences
for juvenile offenders sentenced in adult court. See,
e.g., Delaware: Del. Code Ann. tit. 11, § 4209A (West
Supp. 2016) (twenty-five years minimum mandatory
sentence for first degree murder); Louisiana: La. Rev.
Stat. Ann. § 15:574.4 E (1) (a) (West Supp. 2017) (juve-
nile convicted of first or second degree murder parole
eligible after thirty-five years); Massachusetts: Mass.
Ann. Laws c. 279, § 24 (LexisNexis 2015) (juvenile con-
victed of first degree murder parole eligible after not
less than twenty nor more than thirty years); Nebraska:
Neb. Rev. Stat. § 28-105.02 (2016) (mandatory minimum
sentence of forty years of incarceration for murder
when offender was under age of eighteen); Nevada: Nev.
Rev. Stat. Ann. §§ 176.025 and 200.030 (2015) (juvenile
convicted of first degree murder subject to sentence of
life with parole after twenty years); Oregon: Or. Rev.
Stat. § 163.115 (2015) (if at least fifteen years old at
time of crime, juvenile homicide offender parole eligible
after twenty-five years); Pennsylvania: 18 Pa. Cons. Stat.
Ann. § 1102.1 (a) (1) and (2) (West 2015) (first degree
murder; if committed when defendant fifteen years of
age or older, subject to life without parole or incarcera-
tion for minimum of thirty-five years; if committed when
defendant younger than fifteen years of age, subject to
life without parole or incarceration for minimum of
twenty-five years); Washington: Wash. Rev. Code Ann.
§ 9.94A.730 (1) (West Cum. Supp. 2017) (any person
convicted of crimes committed prior to eighteenth
birthday, eligible for sentence review for early release
after serving twenty years); West Virginia: W. Va. Code
Ann. §§ 61-11-23 (b) and 62-12-13 (c) (LexisNexis Supp.
2017) (juvenile convicted of offense punishable by life
imprisonment parole eligible after fifteen years).
Therefore, the persuasive precedent from our sister
states weighs against the defendant with respect to the
fifth Geisler factor.
F
Contemporary Understanding of Applicable
Economic and Sociological Norms
The sixth Geisler factor involves consideration of the
contemporary understandings of applicable economic
and sociological norms. ‘‘Whether a punishment is dis-
proportionate and excessive is to be judged by the con-
temporary, evolving standards of decency that mark
the progress of a maturing society. . . . In other words,
the constitutional guarantee against excessive punish-
ment is not fastened to the obsolete but may acquire
meaning as public opinion becomes enlightened by a
humane justice.’’ (Citations omitted; internal quotation
marks omitted.) State v. Santiago, supra, 318 Conn.
46–47. Moreover, ‘‘under the governing legal frame-
work, we must look beyond historical conceptions to
the evolving standards of decency that mark the prog-
ress of a maturing society. . . . This is because [t]he
standard of extreme cruelty is not merely descriptive,
but necessarily embodies a moral judgment. The stan-
dard itself remains the same, but its applicability must
change as the basic mores of society change.’’ (Internal
quotation marks omitted.) Id., 50. Our Supreme Court
‘‘and the United States Supreme Court have looked to
five objective indicia of society’s evolving standards of
decency: (1) the historical development of the punish-
ment at issue; (2) legislative enactments; (3) the current
practice of prosecutors and sentencing juries; (4) the
laws and practices of other jurisdictions; and (5) the
opinions and recommendations of professional associa-
tions.’’ Id., 52.
As to these ‘‘sociological considerations, the laws of
Connecticut have changed in several areas throughout
our state’s history to provide special protections to
juveniles. Section 54-125a (f) specifically confers spe-
cial protection on juveniles, as it applies only to those
who were under the age of eighteen at the time they
committed their offenses.’’ State v. Williams-Bey,
supra, 167 Conn. App. 777. Specifically, the language
of § 54-125a (f) explicitly provides parole eligibility for
juvenile offenders. Our legislature specifically enacted
§ 54-125a (f) ‘‘to respond to Miller and Graham by pro-
viding increased parole eligibility to juvenile offenders.’’
Id. This recent legislation reflects the current sociologi-
cal and economic norms as to youth related sentencing
considerations. The sixth Geisler factor weighs against
the defendant.
For the foregoing reasons, the Geisler factors do not
support the defendant’s state constitutional claim. We,
therefore, conclude that the mandatory minimum sen-
tence of twenty-five years of incarceration imposed on
a juvenile homicide offender does not violate article
first, §§ 8 and 9, of the Connecticut constitution.
III
The defendant’s final claim is that the trial court
committed constitutional error when it accepted his
waiver, through counsel, of his right to a presentence
investigation (report). Specifically, the defendant con-
tends that his sentence is illegal because the court failed
to canvass him prior to permitting him to waive the
report and that this failure compromised his constitu-
tional rights under Miller, which raised the report to a
level of constitutional magnitude as applied to adoles-
cents. We disagree.
The following facts are relevant to our resolution
of this claim. During the plea canvass, the defendant
affirmed that he had had enough time to discuss the
plea with his attorney and that he was satisfied with
the legal advice he had received. The defendant further
affirmed that he was entering his pleas voluntarily and
by his own free will. In addition, the defendant acknowl-
edged that the minimum exposure for murder, conspir-
acy to commit murder and assault in the first degree was
100 years of incarceration with a mandatory minimum
sentence of thirty years of incarceration. Thereafter,
the court, Clifford, J., stated: ‘‘You know that this matter
has been discussed, and you know that I’ve indicated,
based on your plea of guilty on the charge of murder,
I would impose a prison sentence of twenty-five years;
do you understand that?’’ The defendant responded:
‘‘Yes, Your Honor.’’
After canvassing the defendant and accepting the
pleas, the court stated that it would waive the report.
In response, defense counsel stated: ‘‘Yes, Your Honor,
in light of the fact that the court has indicated what
the sentence will be, there’s no reason to bring him
back in eight weeks; he can be sentenced today.’’ The
court then asked the defendant if he had anything that
he wanted to say, to which he responded in the negative.
In accordance with the agreement, the court sen-
tenced the defendant to twenty-five years of incarcera-
tion on the charge of murder, twenty years of
incarceration on the charge of conspiracy to commit
murder and, ten years of incarceration, five of which
were the mandatory minimum, on the charge of assault
in the first degree, with all sentences to be served con-
currently. The total effective sentence imposed by the
court was twenty-five years of incarceration.
We begin by noting that it is not disputed that the
defendant did not raise his claim about the presentence
investigation report before the trial court or in his
motion to correct an illegal sentence, and therefore, he
seeks review pursuant to State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 (1989). In Golding, our
Supreme Court held that ‘‘[a] defendant can prevail on
a claim of constitutional error not preserved at trial
only if all of the following conditions are met: (1) the
record is adequate to review the alleged claim of error;
(2) the claim is of constitutional magnitude alleging
the violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived
the defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail.’’ (Emphasis
omitted; internal quotation marks omitted.) State v.
Mark, 170 Conn. App. 254, 264, 154 A.3d 572, cert.
denied, 324 Conn. 926, 155 A.3d 1269 (2017); see also
In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015)
(modifying third prong of Golding by eliminating word
‘‘clearly’’ before words ‘‘exists’’ and ‘‘deprived’’).
We conclude that review under State v. Golding,
supra, 213 Conn. 239–40, is unwarranted. This court
previously has concluded that Golding review is not
warranted where a defendant, on appeal, raises a chal-
lenge to the legality of his sentence that was not pre-
sented in his underlying motion to correct. See State
v. Starks, 121 Conn. App. 581, 591–92, 997 A.2d 546
(2010) (where defendant failed to raise claim in motion
to correct illegal sentence, Golding review of unpre-
served claim unavailable due to trial court’s exclusive
judicial authority and superior position to consider
motion to correct illegal sentence and fact that defen-
dant retains ‘‘the right, at any time, to file a motion
to correct an illegal sentence’’ to pursue unpreserved
claim). Our reason for this determination rests on the
notion that the judicial authority to consider a motion
to correct an illegal sentence lies with the trial court
and not with an appellate court. Id., 591; see Cobham
v. Commissioner of Correction, 258 Conn. 30, 38 n.13,
779 A.2d 80 (2001) (‘‘[t]oday we clarify the meaning of
‘judicial authority’ in [Practice Book] § 43-22 . . . to
mean solely the trial court’’). Specifically, in Starks, this
court noted that ‘‘[t]he judicial authority may at any
time correct an illegal sentence . . . . Our Supreme
Court has interpreted the term ‘judicial authority,’ as
used in Practice Book § 43-22, to refer to the trial court,
not the appellate courts of this state.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.)
State v. Starks, supra, 591–92. ‘‘Furthermore, the defen-
dant has the right, at any time, to file a motion to correct
an illegal sentence and raise the [waiver of the report]
claim before the trial court. . . . Given the present cir-
cumstances, in which the defendant may seek and
obtain any appropriate redress before the trial court,
we are not persuaded that . . . review of the claim
under Golding . . . is warranted . . . .’’ Id., 592; see
also State v. Baker, 168 Conn. App. 19, 21 n.6, 145 A.3d
955 (‘‘[t]his court previously has recognized that [i]t is
not appropriate to review an unpreserved claim [per-
taining to a motion to correct] an illegal sentence for
the first time on appeal’’ [internal quotation marks omit-
ted]), cert. denied, 323 Conn. 932, 150 A.3d 232 (2016).
Accordingly, we decline to reach the merits of the defen-
dant’s claim as to the presentence investigation report.16
The judgment is affirmed.
In this opinion the other judges concurred.
1
The Miller factors refer to the sentencing court’s obligation to consider
a juvenile’s age and circumstances related to age at an individualized sentenc-
ing hearing as mitigating factors before imposing a sentence of life imprison-
ment without parole. See Miller v. Alabama, 567 U.S. 460, 479–80, 132 S.
Ct. 2455, 183 L. Ed. 2d 407 (2012).
2
The defendant pleaded guilty pursuant to the Alford doctrine to the
crimes of murder in violation of § 53a-54a, conspiracy to commit murder
in violation of §§ 53a-48 (a) and 53a-54a, and, in a different docket number,
assault in the first degree in violation of § 53a-59 (a) (1). See North Carolina
v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). The sentences
on only the conviction of murder and conspiracy to commit murder are at
issue in this appeal.
3
Although the defendant originally was sentenced to twenty-five years of
incarceration without the possibility of parole, with the subsequent passage
of No. 15-84 of the 2015 Public Acts (now codified in part in § 54-125a), the
defendant, according to the state, was scheduled to be released on parole
on May 21, 2017.
4
Practice Book § 43-22 provides: ‘‘The 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.’’
5
Miller requires ‘‘that a sentencing court consider the defendant’s chrono-
logical age and its hallmark features as a mitigating factor prior to sentencing
a juvenile offender to life without parole or its functional equivalent.’’ (Inter-
nal quotation marks omitted.) State v. Williams-Bey, 167 Conn. App. 744,
751 n.3, 144 A.3d 467 (2016), modified in part on other grounds after reconsid-
eration, 173 Conn. App. 64, 164 A.3d 31, cert. granted on other grounds, 326
Conn. 920, A.3d (2017).
6
Graham requires that ‘‘a juvenile offender serving a life sentence or its
functional equivalent is entitled to some meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation.’’ (Internal quota-
tion marks omitted.) State v. Williams-Bey, 167 Conn. App. 744, 751 n.3,
144 A.3d 467 (2016), modified in part on other grounds after reconsideration,
173 Conn. App. 64, 164 A.3d 31, cert. granted on other grounds, 326 Conn.
920, A.3d (2017).
7
The decision in Boyd relied upon the reasoning in Delgado, and, therefore,
we address only Delgado.
8
‘‘Section 1 of No. 15-84 of the 2015 Public Acts, codified at General
Statutes [§ 54-125a], provides in relevant part: (f) (1) Notwithstanding the
provisions of subsections (a) to (e), inclusive, of this section, a person
convicted of one or more crimes committed while such person was under
eighteen years of age, who is incarcerated on or after October 1, 2015, and
who received a definite sentence or total effective sentence of more than
ten years for such crime or crimes prior to, on or after October 1, 2015,
may be allowed to go at large on parole in the discretion of the panel of
the Board of Pardons and Paroles for the institution in which such person
is confined, provided (A) if such person is serving a sentence of fifty years
or less, such person shall be eligible for parole after serving sixty per cent
of the sentence or twelve years, whichever is greater, or (B) if such person
is serving a sentence of more than fifty years, such person shall be eligible
for parole after serving thirty years. Nothing in this subsection shall limit
a person’s eligibility for parole release under the provisions of subsections
(a) to (e), inclusive, of this section if such person would be eligible for
parole release at an earlier date under any of such provisions.
‘‘(2) The board shall apply the parole eligibility rules of this subsection
only with respect to the sentence for a crime or crimes committed while a
person was under eighteen years of age. . . .
‘‘(3) Whenever a person becomes eligible for parole release pursuant to
this subsection, the board shall hold a hearing to determine such person’s
suitability for parole release. . . .
***
‘‘(5) After such hearing, the board shall articulate for the record its decision
and the reasons for its decision. If the board determines that continued
confinement is necessary, the board may reassess such person’s suitability
for a new parole hearing at a later date to be determined at the discretion
of the board, but not earlier than two years after the date of its decision.
‘‘(6) The decision of the board under this subsection shall not be subject
to appeal.’’ (Internal quotation marks omitted.) State v. Delgado, supra, 323
Conn. 803 n.1.
9
In Ellis, this court, following Delgado, concluded that despite the defen-
dant’s originally having faced ‘‘the possibility of eighty-one and one-half
years incarceration with a mandatory minimum sentence of twenty-five
years’’ when he was sentenced; State v. Ellis, supra, 174 Conn. App. 16 n.2;
he became parole eligible with the recent enactment of P.A. 15-84, which
is now codified in part in § 54-125a (f), and could no longer claim that he
was serving a sentence of life imprisonment, or its equivalent, without parole.
Id., 17.
10
On July 10, 2017, our Supreme Court granted the defendant’s petitions
for certification to appeal from this court’s decisions in State v. Williams-
Bey, supra, 167 Conn. App. 744, and State v. Williams-Bey, 173 Conn. App.
64, 164 A.3d 31 (2017), limited to the following two questions:
‘‘1. Under the Connecticut constitution, article first, §§ 8 and 9, are all
juveniles entitled to a sentencing proceeding at which the court expressly
considers the youth related factors required by the United States constitution
for cases involving juveniles who have been sentenced to life imprisonment
without possibility of release? See Miller v. Alabama, [supra, 567 U.S.
460 (2012)]?
‘‘2. If the answer to the first question is in the affirmative and a sentencing
court does not comply with the sentencing requirements under the Connecti-
cut constitution, does parole eligibility under General Statutes § 54-125a (f)
adequately remedy any state constitutional violation?’’ State v. Williams-
Bey, 326 Conn. 920, 921, A.3d (2017).
11
Under the provisions of the effective § 54-125a (f) (1) (A) and (B),
juveniles sentenced to more than ten years of incarceration are parole
eligible after serving 60 percent of their sentence or twelve years, whichever
is greater, if they are serving a sentence of fifty years or less; if they are
serving a sentence of more than fifty years, they are parole eligible after
serving thirty years.
12
‘‘See Fisher v. Haynes, United States District Court, Docket No. [C15-
5747BHS], 2016 WL 5719398 (W.D. Wn. September 30, 2016) (defendant
sentenced to life imprisonment with parole was not entitled to relief under
Miller); People v. Cornejo, 3 Cal. App. 5th 36, 67–68, 207 Cal. Rptr. 3d 366
(2016) (after legislation afforded defendant opportunity for parole, sentence
imposed by trial court was no longer sentence of life without parole or
functional equivalent and no Miller claim arises, and same rationale applied
to both mandatory and discretionary sentences); State v. Tran, 138 Haw.
298, 307, 378 P.3d 1014 (2016) (United States Supreme Court’s statements
in Montgomery make clear that Miller does not require individualized sen-
tencing or consideration of the mitigating factors of youth in every case
involving a juvenile offender, but only [when] a sentence of life imprisonment
without parole is imposed on a juvenile offender); State v. Cardeilhac, 293
Neb. 200, 218, 876 N.W.2d 876 (2016) (Miller did not apply when defendant’s
sentence afforded opportunity for parole); State v. Lasane, New Jersey
Superior Court, Appellate Division, Docket No. 06-02-00365 (September 28,
2016) (Miller does not apply to juvenile offender who retains prospect of
parole within lifetime); State v. Terrell, Ohio Court of Appeals, Docket No.
103248 (June 23, 2016) (declining to extend Miller to cases in which parole
is afforded), appeal denied, Ohio Supreme Court, Docket No. 2016-Ohio-
7854 (November 23, 2016); see also State v. Williams-Bey, supra, 167 Conn.
App. 772.’’ (Internal quotation marks omitted.) State v. Delgado, supra, 323
Conn. 811–12 n.7.
13
In State v. Williams-Bey, supra, 167 Conn. App. 744, this court explained:
‘‘Under § 54-125a (f), a juvenile offender serving a sentence of greater than
ten years incarceration on or after October 1, 2015, will be parole eligible.
If the sentence is fifty years incarceration or less, the juvenile becomes
parole eligible after serving 60 percent of his or her sentence, or twelve
years, whichever is greater. If the sentence is greater than fifty years, the
juvenile offender becomes parole eligible after serving thirty years. The
statute also requires the parole board to consider whether such person has
demonstrated substantial rehabilitation since the date such crime or crimes
were committed considering such person’s character, background and his-
tory, as demonstrated by factors, including, but not limited to . . . the age
and circumstances of such person as of the date of the commission of
the crime or crimes, whether such person has demonstrated remorse and
increased maturity since the date of the commission of the crime or crimes
. . . obstacles that such person may have faced as a child or youth in the
adult correctional system, the opportunities for rehabilitation in the adult
correctional system and the overall degree of such person’s rehabilitation
considering the nature and circumstances of the crime or crimes. . . .
These criteria substantially encompass the mitigating factors of youth refer-
enced in Miller and Riley. . . . Furthermore, the statute ensures that indi-
gent juvenile offenders will have the right to counsel in obtaining, in the
terminology of Graham, a meaningful opportunity to obtain release. . . .
Overall, the legislature not only gave Miller retroactive application, but
also effectively eliminated life without the possibility of parole, even as a
discretionary sentence, for juvenile offenders in Connecticut.’’ (Citations
omitted; internal quotation marks omitted.) Id., 755–57.
14
Article I, § 17, of the Iowa constitution provides: ‘‘Excessive bail shall
not be required; excessive fines shall not be imposed, and cruel and unusual
punishment shall not be inflicted.’’
15
We note that our Supreme Court in Taylor G. did not determine this
case under the Geisler factors because there was no state constitutional
claim being challenged therein.
16
We note that with respect to this claim, the defendant argues that General
Statutes § 54-91g (b) prohibits the waiver of a presentence investigation or
report as to a juvenile convicted of a class A or B felony, which applied to
his conviction. We disagree. The text of P.A. 15-84, § 2, codified as amended
at § 54-91g, does not support such an assertion.
Our Supreme Court addressed the issue of retroactivity in the context of
§ 54-91g in State v. Delgado, supra, 323 Conn. 801, where it noted: ‘‘There
are ten sections in P.A. 15-84, four of which specify that they are [e]ffective
October 1, 2015, and applicable to any person convicted prior to, on or after
said date. . . . P.A. 15-84, §§ 6 through 9. In contrast, P.A. 15-84, § 2, pro-
vides it is [e]ffective October 1, 2015, indicating that the legislature did not
intend for this section to apply retroactively. Moreover, there is nothing in
the text of General Statutes (Supp. 2016) § 54-91g or the legislative history
of P.A. 15-84 to suggest that the legislature intended that all juveniles con-
victed of a class A or B felony who were sentenced without consideration of
the age related mitigating factors identified in Miller would be resentenced.’’
(Citations omitted; internal quotation marks omitted.) State v. Delgado,
supra, 323 Conn. 814.
Rather, ‘‘the pertinent legislative history clarifies that the legislature did
not intend for this provision to apply retroactively. The limited discussion
on this topic occurred before the Judiciary Committee. Attorney Robert Farr,
a member of the working group of the Connecticut Sentencing Commission,
which helped craft the proposed legislative language, discussed how the
legislation would affect previously sentenced individuals. See Conn. Joint
Standing Committee Hearings, Judiciary, Pt. 2, 2015 Sess., pp. 949, 955–56.
He first mentioned this court’s decision in Riley, in which the defendant in
that case had been sentenced to 100 years in prison and then resentenced,
and noted that, under the proposed legislation, instead of having to worry
about resentencing what would have happened is in [thirty] years, [twenty-
one] years from now there will be a parole hearing and then that parole
hearing would decide whether [the defendant in Riley] was going to be—
get another parole hearing . . . . So it gave some resolution to this which
was consistent we believe with the federal—with the [United States]
Supreme Court cases.’’ (Internal quotation marks omitted.) State v. Delgado,
supra, 814–15 n.9.