State v. Ruiz

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STATE OF CONNECTICUT v. JESUS RUIZ
(AC 38025)
(AC 38232)
Keller, Mullins and Beach, Js.
Argued February 23—officially released June 6, 2017
(Appeal from Superior Court, judicial district of New
Haven, Thompson, J. [judgment]; Clifford, J. [motion
to correct].)
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Patrick Griffin,
state’s attorney, Michael Dearington, former state’s
attorney, and Lisa D’Angelo, assistant state’s attorney,
for the appellant-appellee (state).
Stephan E. Seeger, with whom, on the brief, was Igor
G. Kuperman, for the appellee-appellant (defendant).
Opinion
MULLINS, J. The state appeals from the judgment of
the trial court granting in part the defendant’s motion
to correct an illegal sentence. In reliance on State v.
Victor O., 320 Conn. 239, 128 A.3d 940 (2016) (Victor
O. II), and State v. Jason B., 320 Conn. 259, 128 A.3d
937 (2016), the state claims that the trial court improp-
erly held that the defendant’s original sentence was
illegal because it did not include a period of special
parole. The defendant, Jesus Ruiz, cross appeals from
the judgment of the trial court. The defendant claims
that the court resentenced him to a total effective sen-
tence that improperly exceeds his original sentence.
We conclude that the defendant’s original sentence was
not illegal for lack of a period of special parole.1 Accord-
ingly, we reverse the judgment of the trial court.
The following facts and procedural history inform
our review. On July 1, 2008, following a jury trial, the
Superior Court rendered a judgment of conviction
against the defendant on two counts of sexual assault
in the first degree in violation of General Statutes § 53a-
70 (a) (2), one count of risk of injury to a child in
violation of General Statutes § 53-21 (a) (2), and one
count of sexual assault in the fourth degree in violation
of General Statutes § 53a-73a (a) (1) (A). The conduct
supporting these charges arose out of two incidents of
sexual contact that the defendant had with the child
victim sometime between 2002 and 2003, when the vic-
tim was five or six years old and in first or second grade.
On October 2, 2008, the court sentenced the defen-
dant as follows: On the first count of sexual assault in
the first degree, the court sentenced the defendant to
seventeen years incarceration, execution suspended
after twelve years, with ten years of probation; on the
second count of sexual assault in the first degree, the
court sentenced the defendant to twelve years incarcer-
ation; on the count of risk of injury to a child, the court
sentenced the defendant to ten years incarceration; and
on the count of sexual assault in the fourth degree, the
court sentenced the defendant to one year incarcera-
tion. The court ordered all sentences to run concur-
rently, for a total effective sentence of seventeen years
incarceration, execution suspended after twelve years,
with ten years of probation. This court affirmed the
defendant’s conviction on direct appeal. State v. Ruiz,
124 Conn. App. 118, 3 A.3d 1021, cert. denied, 299 Conn.
908, 10 A.3d 525 (2010).2
On April 17, 2015, the defendant filed a motion to
correct an illegal sentence. In that motion, the defen-
dant claimed that his sentences on each count of sexual
assault in the first degree were improper because they
did not include a period of special parole as he alleged
was required by General Statutes (Rev. to 2001) § 53a-
70 (b) (3), as amended by Public Acts 2002, No. 02-138,
§ 5,3 and by State v. Victor O., 301 Conn. 163, 166, 193,
20 A.3d 669, cert. denied, U.S. , 132 S. Ct. 583, 181
L. Ed. 2d 429 (2011) (Victor O. I). The defendant alleged
that, for his sentence to comply legally with § 53a-70
(b) (3) and Victor O. I, the trial court was required to
do each of the following: (1) add a term of special
parole to each count of first degree sexual assault, (2)
eliminate any term of probation, and (3) reduce his
unsuspended term of incarceration by the length of the
added term of special parole. The defendant argued in
his motion that the law ‘‘does not authorize a sentence
of imprisonment, special parole, and probation.
Accordingly, once the court adds special parole to the
sentence, it must remove probation.’’ (Emphasis in
original.)
The trial court conducted a hearing on April 30, 2015.
The parties initially assumed that the defendant’s con-
viction of the sexual assault in the first degree charges
was for a class B felony. During the hearing, however,
the court raised a concern about whether a conviction
of that crime was for a class A felony rather than for
a class B felony because the legislature had changed
the classification during the period the crimes were
alleged to have occurred.4 Ultimately, the court ruled
that, regardless of whether the defendant’s conviction
was for a class A or a class B felony, a period of special
parole was required pursuant to Victor O. I, and, there-
fore, the defendant’s sentence was illegal because it
did not include a period of special parole.5 The court,
thereafter, vacated the defendant’s sentences and
imposed the following new sentences.
On each count of sexual assault in the first degree,
the court resentenced the defendant to eleven years
incarceration, with one year of special parole; on the
count of risk of injury to a child, the court resentenced
the defendant to seventeen years incarceration, execu-
tion suspended after twelve years, with twelve years of
probation; and, on the count of sexual assault in the
fourth degree, the court resentenced the defendant to
one year incarceration. The court ordered all sentences
to run concurrently, for a total effective sentence of
seventeen years incarceration, execution suspended
after twelve years, with one year of special parole and
ten years of probation. Both the state and the defendant
now appeal from the trial court’s judgment.6
The state claims that the defendant’s original sen-
tence was not illegal for lack of a term of special parole,
and, therefore, the trial court improperly granted the
defendant’s motion on that ground. To support its claim,
the state relies on two recent cases from our Supreme
Court, Victor O. II and Jason B. The state further con-
tends that we also must assume that the defendant’s
conviction for sexual assault in the first degree was for
a class B felony.7 The state contends that the burden
to prove illegality in his sentence was on the defendant
and that he failed to provide any evidence to demon-
strate that the crimes were class A felonies. Therefore,
the state argues, we must assume that the original sen-
tence on count one, which contained a term of proba-
tion, was legal, and we should hold as such.
The defendant acknowledges that our Supreme
Court, in Victor O. II and Jason B., clarified any ambigu-
ity in the law regarding whether § 53a-70 (b) (3) required
a period a special parole as part of a defendant’s sen-
tence. Indeed, in both of those cases the court held that
§ 53a-70 (b) does not require that a trial court sentence
persons convicted under this statute to a period of
special parole. He argues, nonetheless, that we should
conclude that his original sentence was illegal for
two reasons.
First, he contends that he relied, to his detriment, on
the language of § 53a-70 (b) (3), which, he argues,
plainly and unambiguously provides that a person con-
victed under this section ‘‘shall be sentenced to a term
of imprisonment and a period of special parole.’’ Sec-
ond, he contends that he relied, to his detriment, on
his reading of Victor O. I. He argues that in Victor
O. I, the Supreme Court had construed the specific
language in § 53a-70 (b) (3) and, in doing so, the court
had concluded that a period of special parole was
required in cases such as his. Ultimately, the defendant
argues that, at the time he filed his motion, it was settled
law that special parole was required and he should not
be penalized for relying on established law.
The state responds that it was not settled law at all.
The state contends that, although there may have been
some question as to whether a period of special parole
was required in cases of sexual assault in the first degree
due to the language of § 53a-70 (b) (3) and a particular
reading of a portion of our Supreme Court’s decision
in Victor O. I, the matter certainly was contested by the
state. Thus, the state argues, the defendant’s reliance on
that disputed matter when preparing his motion is no
reason to give him the benefit of his misinterpretation
of the law. We agree with the state.
We set forth the applicable legal principles and our
standard of review. ‘‘[T]he jurisdiction of the sentencing
court terminates once a defendant’s sentence has
begun, and, therefore, that court may no longer take
any action affecting a defendant’s sentence unless it
expressly has been authorized to act. . . . Practice
Book § 43-22, which provides the trial court with such
authority, provides that [t]he judicial authority may at
any time correct an illegal sentence or other illegal
disposition, or it may correct a sentence imposed in an
illegal manner or any other disposition made in an illegal
manner. An illegal sentence is essentially one which
either exceeds the relevant statutory maximum limits,
violates a defendant’s right against double jeopardy,
is ambiguous, or is internally contradictory. . . . We
previously have noted that a defendant may challenge
his or her criminal sentence on the ground that it is
illegal by raising the issue on direct appeal or by filing
a motion pursuant to . . . § 43-22 with the judicial
authority, namely, the trial court. . . . State v. Tabone,
279 Conn. 527, 533–34, 902 A.2d 1058 (2006). [B]oth the
trial court, and this court, on appeal, have the power,
at any time, to correct a sentence that is illegal. . . .
State v. Constantopolous, 68 Conn. App. 879, 882, 793
A.2d 278, cert. denied, 260 Conn. 927, 798 A.2d 971(2002). . . . [T]he issue is one of law, and we afford
it plenary review.’’ (Internal quotation marks omitted.)
State v. Mungroo, 104 Conn. App. 668, 683–84, 935 A.2d
229 (2007), cert. denied, 285 Conn. 908, 942 A.2d 415(2008); see also State v. Barksdale, 79 Conn. App. 126,
139, 829 A.2d 911 (2003).
We begin with the state’s claim that the defendant’s
original sentence was not illegal for lack of a term
of special parole. In Victor O. II, our Supreme Court
expressly held that, pursuant to § 53a-70 (b) (3), a con-
viction of sexual assault in the first degree does not
require the imposition of a period of special parole;
rather, if the sentencing court chooses to impose a
period of special parole along with the imposed term
of imprisonment, the total sentence given a defendant
for such a conviction must amount to at least ten years.
Victor O. II, supra, 320 Conn. 258; see also State v.
Jason B., supra, 320 Conn. 264. Given such a clear
holding by our Supreme Court, we need not discuss
further whether a term of special parole is required
under our law. This matter is settled. Special parole is
not required. See also State v. Ovesen, 172 Conn. App.
250, A.3d (2017).
We next consider the defendant’s request that we
recognize that he acted in ‘‘justified reliance’’ on the
language of Victor O. I in preparing his motion and that
we affirm the trial court’s judgment because of this. He
contends that we should give him the benefit of his
interpretation of our Supreme Court’s decision in Victor
O. I because the trial court agreed with his interpreta-
tion and felt bound by it, and because our Supreme
Court itself ‘‘clearly recognized the misleading conse-
quences of its opinion . . . .’’ He contends that if we
apply Victor O. II in this case, it will amount to an
impermissible retroactive application of the law. We
are not persuaded.
‘‘The principle that statutes operate only prospec-
tively, while judicial decisions operate retrospectively,
is familiar to every law student . . . .’’ (Internal quota-
tion marks omitted.) Rivers v. Roadway Express, Inc.,
511 U.S. 298, 311, 114 S. Ct 1510, 128 L. Ed. 2d 274(1994); see also Kuhn v. Fairmont Coal Co., 215 U.S.
349, 372, 30 S. Ct. 140, 54 L. Ed. 228 (1910) (‘‘[j]udicial
decisions have had retrospective operation for near a
thousand years’’) (Holmes, J., dissenting). In Rivers, the
United States Supreme Court held: ‘‘It is this [c]ourt’s
responsibility to say what a statute means, and once
the [c]ourt has spoken, it is the duty of other courts to
respect that understanding of the governing rule of law.
A judicial construction of a statute is an authoritative
statement of what the statute meant before as well
as after the decision of the case giving rise to that
construction.’’ Rivers v. Roadway Express, Inc., supra,312–13. A decision that corrects a mistaken interpreta-
tion of the law does not constitute a change in the law.
Washington v. Commissioner of Correction, 287 Conn.
792, 804, 810–11, 950 A.2d 1220 (2008). To understand
the defendant’s claim, we must review the Supreme
Court’s decisions in Victor O. I and Victor O. II. We
begin with a review of Victor O. I.
In Victor O. I, the defendant, Victor O., was convicted
of sexual assault in the first degree in violation of § 53a-
70 (a) (2), a class A felony, and sentenced to twenty
years of incarceration, execution suspended after
twelve years, and twenty years of probation. Victor
O. I, supra, 301 Conn. 193. Victor O. argued that this
sentence was illegal because it did not contain a period
of special parole and it did contain a period of proba-
tion. The state conceded that the sentence was illegal
because it contained a period of probation.
Without identifying or addressing the precise con-
tours of Victor O.’s argument or the state’s concession,
the Supreme Court remanded the case to the trial court
for resentencing with respect to the conviction of sexual
assault in the first degree, stating in relevant part: ‘‘As
the state concedes, the sentence that the trial court
imposed does not comply with § 53a-70 (b) (3) because
it includes a period of probation rather than a period
of special parole. Accordingly, the case must be
remanded . . . for resentencing . . . .’’8 Id.
On remand, the trial court resentenced Victor O. to
‘‘a term of imprisonment of twelve years for his convic-
tion of sexual assault in the first degree. [His] sentences
on the other two counts remained the same. Accord-
ingly, [his] total effective sentence after resentencing
was the same as before his resentencing: thirty years of
incarceration, execution suspended after fifteen years,
and twenty years of probation.’’ Victor O. II, supra, 320
Conn. 244–45.
Victor O. again filed a motion to correct an illegal
sentence, contending in part that this new sentence
also was illegal because it did not include a period of
special parole. Id., 245. The trial court disagreed and
denied the motion, concluding, in part, that the Supreme
Court’s remand order did not require the imposition of
a period of special parole for any defendant convicted
of sexual assault in the first degree. Id. Victor O., there-
after, appealed from that judgment, claiming that the
Supreme Court in Victor O. I had determined that a
period of special parole was required for any conviction
under § 53a-70. Id., 247. That appeal led to Victor O. II.
In Victor O. II, our Supreme Court stated that Victor
O.’s claim ‘‘merits little discussion.’’ Id. The court first
noted that, because the state had conceded that the
sentence was illegal—albeit for reasons other than
whether a period of special parole was attached; see
footnote 8 of this opinion—‘‘we simply remanded the
case to the trial court for resentencing, without consid-
ering whether, on remand, the trial court was required
to sentence [Victor O.] to a period of special parole.
. . . To the extent that anything we may have said
therein [could] be construed as deciding the somewhat
challenging question of statutory interpretation pre-
sented by the present appeal, it was not our intention
to do so.’’ (Citations omitted.) Id.
Then, specifically construing § 53a-70, the court held
that a conviction of sexual assault in the first degree
does not require the imposition of a period of special
parole. Id., 258. Rather, the court explained, the sentenc-
ing court may impose a period of special parole along
with the term of imprisonment, provided that the total
sentence amounts to at least a ten year term. Id. The
court also stated that its decision in Victor O. I had
been misinterpreted by Victor O. as holding that a term
of special parole was required in § 53a-70 cases, but
that it had not ruled on that particular issue in Victor
O. I. Id., 247. Thus, our Supreme Court agreed with the
resentencing court that special parole was not required
and that it had not set forth such a requirement in its
remand order in Victor O. I. Id., 245–47.
It is clear from Victor O. I and Victor O. II that the
issue concerning whether special parole was mandatory
for defendants convicted of violating § 53a-70 had not
been decided by a reviewing court until our Supreme
Court issued its ruling in Victor O. II. Although there
may have been some uncertainty created by the lan-
guage in Victor O. I regarding whether a sentence pursu-
ant to a conviction of § 53a-70 required a period of
special parole, our Supreme Court neither addressed
nor ruled on that issue in Victor O. I. Thus, the defen-
dant’s reliance on Victor O. I for the proposition that
the requirement of special parole for those persons
convicted of a violation of § 53a-70 was ‘‘settled law’’
prior to Victor O. II is untenable.
That this argument is untenable is further demon-
strated by the action taken by the trial court in Victor
O. I on remand, the very case on which the defendant
relies. In Victor O. I, after our Supreme Court issued
its remand order, the remand court resentenced Victor
O. to a term of imprisonment of twelve years for his
conviction of sexual assault in the first degree, with no
period of special parole. Id., 244–45. The remand court
specifically concluded that our Supreme Court did not
hold that a period of special parole was required for
all persons who were convicted of sexual assault in the
first degree. Id., 245. At best, then, the issue that the
defendant now claims was ‘‘settled law’’ when he filed
his motion and the trial court issued its ruling in the
present case would be characterized, more appropri-
ately, as unsettled in Supreme Court case law. The
‘‘requirement’’ of special parole for persons convicted
of § 53a-70 had not been construed by our Supreme
Court, and Victor O. I certainly did not clarify the issue.
In any event, it is clear that whether special parole
was required was not ‘‘settled law’’ when the defendant
filed his motion. The defendant’s mistaken interpreta-
tion and contention that it was ‘‘settled law’’ is not a
basis for this court essentially to pretend that the law
was settled by Victor O. I and to then conclude that
the law changed with Victor O. II. See Washington
v. Commissioner of Correction, supra, 287 Conn. 804(decision that corrects mistaken interpretation of law,
does not constitute change in law). Accordingly, the
defendant’s argument, that he relied on the purported
‘‘settled law’’ that special parole was mandatory, as
allegedly established by Victor O. I, is without merit.
Finally, we consider the state’s contention that if we
agree that the defendant’s original sentence was not
illegal because it did not include a period of special
parole, we must determine whether the defendant’s
conviction for sexual assault in the first degree, as
alleged in count one, was a class A or a class B felony.
The state contends that if the defendant’s conviction,
on count one, of sexual assault in the first degree was
a class A felony, then a period of probation would not
have been allowed pursuant to § 53a-299 and the original
sentence on count one, therefore, would be illegal. The
state further contends that, because the defendant
failed to meet his alleged burden of proof by providing
evidence that his conviction on count one was, instead,
a class A, rather than a class B, felony, we must assume
and hold that the conviction was for a class B felony
and that the sentence, therefore, was legal.10
The defendant contends that we should not decide
this issue because it was neither presented to nor
decided by the trial court. He argues that it was not his
theory of illegality before the trial court and that he,
therefore, did not attempt to provide any proof whatso-
ever that his conviction on count one should have been
classified as a class A felony. We agree with the
defendant.
‘‘Only in [the] most exceptional circumstances can
and will [a reviewing court] consider a claim, constitu-
tional or otherwise, that has not been raised and
decided in the trial court.’’ (Internal quotation marks
omitted.) State v. Martin M., 143 Conn. App. 140, 151,
70 A.3d 135, cert. denied, 309 Conn. 919, 70 A.3d 41(2013). ‘‘For this court to . . . consider [a] claim on
the basis of a specific legal ground not raised during
trial would amount to trial by ambuscade, unfair both
to the [court] and to the opposing party.’’ (Internal quo-
tation marks omitted.) State v. Koslik, 116 Conn. App.
693, 702, 977 A.2d 275, cert. denied, 293 Conn. 930, 980
A.2d 916 (2009).
For purposes of this appeal, we assume, without
deciding, that the defendant’s conviction on count one
was for a class B felony. Pursuant to Practice Book § 43-
22, we ‘‘may at any time correct an illegal sentence’’;
(emphasis added); even when the claim is raised for
the first time on appeal. See State v. Cator, 256 Conn.
785, 804–805, 781 A.2d 285 (2001); State v. Kosuda, 85
Conn. App. 192, 195 n.1, 856 A.2d 480 (2004). Here,
however, the state does not ask us to correct an illegal
sentence; rather, it seeks to have us issue a ruling declar-
ing that the defendant’s sentence is legal because the
defendant did not claim and prove that it was illegal
on the ground that the conviction was for a class A
felony and the sentence improperly included a period
of probation.
Because the defendant does not claim that his sen-
tence on count one is illegal on the ground that his
conviction should have been classified as a class A
felony, for which our Supreme Court has ruled a period
of probation would not be permitted, we decline to
issue the ruling that the state is seeking; there simply
is no record on which we could base such a ruling.
Indeed, we must assume that the defendant’s conviction
for both counts of sexual assault in the first degree was
for a class B felony because we have no record that
would permit us to go beyond that assumption, neither
party having ever challenged the assumed classifica-
tion.11 Therefore, under the particular and unique facts
of this case, we conclude that it would be unfair to
the defendant to decide this issue by holding that the
defendant failed to meet a burden of proof on a claim
he never made. Because the record is inadequate, we
also decline to hold that count one necessarily is not
a class A felony.
The judgment is reversed and the case is remanded
with direction to reinstate the defendant’s original sen-
tence and to deny his motion to correct an illegal
sentence.
In this opinion the other judges concurred.
1
Because we conclude that the defendant’s original sentence was not
illegal, we need not determine whether his new sentence exceeds his origi-
nal sentence.
2
The defendant later filed a petition for a writ of habeas corpus on the
ground of ineffective assistance of counsel. The habeas court denied the
petition. This court reversed the judgment of the habeas court in part and
remanded the case for further proceedings. Ruiz v. Commissioner of Correc-
tion, 156 Conn. App. 321, 113 A.3d 485 (2015). Both the state and the
defendant filed petitions for certification to appeal from our decision. Our
Supreme Court granted the state’s petition; Ruiz v. Commissioner of Correc-
tion, 319 Conn. 923, 125 A.3d 199 (2015); but denied the defendant’s petition.
Id. The state, however, withdrew that appeal on January 28, 2016.
3
General Statutes (Rev. to 2001) § 53a-70 (b) (3), as amended by Public
Acts 2002, No. 02-138, § 5, provides: ‘‘Any person found guilty [of sexual
assault in the first degree] shall be sentenced to a term of imprisonment
and a period of special parole pursuant to subsection (b) of section 53a-28
which together constitute a sentence of at least ten years.’’ Hereinafter,
unless otherwise indicated, all references to § 53a-70 (b) (3) in this opinion
are to the 2001 revision of the statute, as amended by P.A. 02-138.
4
The charging document had alleged that the sexual assaults occurred
‘‘between 2002 and 2003.’’ Prior to October 1, 2002, a violation of § 53a-70 (a)
(2) was a class B felony; effective October 1, 2002, our legislature upgraded a
violation of § 53a-70 (a) (2) to a class A felony. See Public Acts 2002, No.
02-138 § 5. Both the state and the defendant agree that if the conviction
was for a class A felony, no period of probation would have been permitted.
Pursuant to the 2001 revision of § 53a-70 (b), which was in effect at
relevant times prior to October 1, 2002: ‘‘Sexual assault in the first degree
is a class B felony for which two years of the sentence imposed may not
be suspended or reduced by the court or, if the victim of the offense is
under ten years of age, for which ten years of the sentence imposed may
not be suspended or reduced by the court, and any person found guilty
under this section shall be sentenced to a term of imprisonment and a period
of special parole pursuant to subsection (b) of section 53a-28 which together
constitute a sentence of at least ten years.’’ General Statutes (Rev. to 2001)
§ 53a-70 (b).
On October 1, 2002, the legislature’s amendments to § 53a-70 became
effective by P.A. 02-138. In relevant part, § 53a-70 (b) was amended as
follows: ‘‘(1) Except as provided in subdivision (2) of this subsection, sexual
assault in the first degree is a class B felony for which two years of the
sentence imposed may not be suspended or reduced by the court or, if the
victim of the offense is under ten years of age, for which ten years of the
sentence imposed may not be suspended or reduced by the court.
‘‘(2) Sexual assault in the first degree is a class A felony if the offense is
a violation of subdivision (1) of subsection (a) of this section and the victim
of the offense is under sixteen years of age or the offense is a violation of
subdivision (2) of subsection (a) of this section. Any person found guilty
under said subdivision (1) or (2) shall be sentenced to a term of imprisonment
of which ten years of the sentence imposed may not be suspended or reduced
by the court if the victim is under ten years of age or of which five years
of the sentence imposed may not be suspended or reduced by the court if
the victim is under sixteen years of age.
‘‘(3) Any person found guilty under this section shall be sentenced to a
term of imprisonment and a period of special parole pursuant to subsection
(b) of section 53a-28 which together constitute a sentence of at least ten
years.’’ General Statutes (Rev. to 2001) § 53a-70 (b), as amended by Public
Acts 2002, No. 02-138, § 5.
We note that although General Statutes (Rev. to 2001) § 53a-70 (b) did
not contain a subsection (3), both the 2001 revision and P.A. 02-138 provided
that a person convicted under the statute ‘‘shall be sentenced to a term of
imprisonment and a period of special parole pursuant to subsection (b) of
section 53a-28 which together constitute a sentence of at least ten years.’’
5
The state had argued that § 53a-70 did not require a period of special
parole and that our Supreme Court had not held as such in Victor O. I. The
state also told the court that Victor O. II was pending before our Supreme
Court, and that, in that case, the Supreme Court would be addressing the
issue of whether special parole was required for a sentence pursuant to
§ 53a-70. As a result, the state asked the trial court to defer its ruling on
the motion until our Supreme Court issued a decision in Victor O. II. The
court, however, declined to defer its ruling because of the age of this case.
It then concluded that, although it did not necessarily agree with what it
considered to be the Supreme Court’s interpretation of § 53a-70 (b) (3) in
Victor O. I, the decision in Victor O. I could only be read as requiring the
imposition of a period of special parole.
6
Although the parties initially filed separate appeals, this court ordered
that the appeals be combined and be treated as cross appeals. This court
also granted a motion filed by the state to stay briefing in this appeal pending
the decision of our Supreme Court in Jason B. and Victor O. II.
7
The state posits that if the conviction was for a class A felony, pursuant
to General Statutes § 53a-29 (a), a term of probation would have been
prohibited for count one, and the sentence would be illegal on this ground
because § 53a-29 (a) provides: ‘‘The court may sentence a person to a period
of probation upon conviction of any crime, other than a class A felony
. . . .’’ (Emphasis added.) We are mindful that our legislature has amended
§ 53a-29 several times since the defendant’s commission of the crimes that
formed the basis of his conviction. Nevertheless, because those amendments
have no bearing on the outcome of this appeal, we refer only to the current
revision of § 53a-29.
We note that, effective October 1, 2015, the legislature amended § 53a-70
(b) (3) to permit a period of supervised probation for class A felonies under
this section. See Public Acts 2015, No. 15-211, § 16 (‘‘Any person found guilty
under this section shall be sentenced to a term of imprisonment of at least
ten years, a portion of which may be suspended, except as provided in
subdivisions (1) and (2) of this subsection, or a term of imprisonment and
a period of special parole pursuant to subsection (b) of section 53a-28 which
together constitute a sentence of at least ten years. Notwithstanding the
provisions of subsection (a) of section 53a-29 and except as otherwise
provided in this subsection, a court may suspend a portion of a sentence
imposed under this subsection and impose a period of supervised probation
pursuant to subsection (f) of section 53a-29.’’).
8
In Victor O. II, our Supreme Court acknowledged that that statement
was unclear, that it set forth too broadly the state’s concession in Victor
O. I, and that its decision and remand order could have been misinterpreted
on that basis: ‘‘As we previously noted, in support of his contention that
§ 53a-70 (b) (3) requires that he be sentenced to a period of special parole,
the defendant relies on our statement in [Victor O. I,] supra, 301 Conn. 163,
that, ‘[a]s the state concedes, the sentence that the trial court imposed does
not comply with § 53a-70 (b) (3) because it includes a period of probation
rather than a period of special parole.’ Id., 193. Although we recognize that
it is possible to construe this statement as indicating that the defendant
must be resentenced to a period of special parole instead of a period of
probation, we intended only to explain that probation was prohibited and
that special parole was the only form of supervised release that could be
imposed. Indeed, the state did not concede that the defendant’s sentence
was illegal because it should have included a period of special parole; the
state conceded only that probation was not an authorized sentence because
the defendant had been convicted of a class A felony. In fact, the state
expressly argued that the trial court is never required to sentence a defendant
to special parole but that, if the court does elect to impose such a sentence,
then the term of imprisonment and period of special parole together must
total at least ten years.’’ (Emphasis omitted.) Victor O. II, supra, 320 Conn.
247–48 n.9.
9
General Statutes § 53a-29 (a) provides in relevant part: ‘‘The court may
sentence a person to a period of probation upon conviction of any crime,
other than a class A felony . . . .’’
10
Although requesting that we issue a ruling concluding that the defen-
dant’s conviction on count one was for a class B felony, in response to a
question by the panel during oral argument before this court, the state
expressed that it was not immediately aware of any doctrine that would
prohibit the defendant from offering evidence in another proceeding to
substantiate a claim that his conviction was for a class A, rather than class
a B, felony.
11
The only document we have seen in the record that appears to set forth
the classification for the charges of sexual assault in the first degree, as
class B felonies, is the short form information, which the court also uses
as its docket sheet during the criminal trial. The charges set forth in that
information, however, were superseded by a long form information.