State v. Heath

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. JAMAR HEATH
(AC 38027)
Keller, Mullins and Beach, Js.
Argued February 23—officially released June 6, 2017
(Appeal from Superior Court, judicial district of New
Haven, Damiani, J. [judgment]; Clifford, J. [motion to
correct illegal sentence].)
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 and the defendant,
Jamar Heath, cross appeals from the judgment of the
trial court granting in part the defendant’s motion to
correct an illegal sentence.1 In its appeal, the state, 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), claims that the trial
court incorrectly concluded that General Statutes (Rev.
to 2007) § 53a-70 (b) (3)2 required the court to sentence
the defendant to a period of special parole for his con-
viction of sexual assault in the first degree. In his cross
appeal, the defendant claims that the court improperly
resentenced him to a total effective sentence that
exceeds his original sentence.3 We agree with the state
and, accordingly, reverse the judgment of the trial court.
The following factual and procedural history informs
our review. In 2008, the defendant pleaded guilty to
two class B felonies, sexual assault in the first degree
in violation of § 53a-70 (a) (1) and assault in the first
degree in violation of General Statutes § 53a-59 (a) (3).
The court imposed the following agreed upon sentence:
On the count of sexual assault in the first degree, the
court sentenced the defendant to twenty years incarcer-
ation, execution suspended after fifteen years, with ten
years of probation; on the count of assault in the first
degree, the court sentenced the defendant to five years
incarceration, execution suspended, with five years of
probation, ordered to run consecutive to the other sen-
tence. The total effective sentence, therefore, was
twenty-five years incarceration, execution suspended
after fifteen years, with ten years of probation.
Subsequently, the defendant filed a motion to correct
an illegal sentence, alleging that his sentence for sexual
assault in the first degree was illegal because it included
a period of probation rather than a period of special
parole. In support of this claim, the defendant relied
on 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), and § 53a-70 (b) (3). The
defendant argued that, for his sentence to comply
legally with § 53a-70 (b) (3), as interpreted by Victor
O. I, the trial court was required to do each of the
following: (1) add a term of special parole to the sexual
assault in the first degree conviction, (2) eliminate any
term of probation, and (3) reduce his unsuspended term
of incarceration by the length of the added term of
special parole.
During the hearing on the motion, the state argued
that § 53a-70 (b) (3) and Victor O. I do not require the
imposition of a period of special parole for a conviction
of sexual assault in the first degree. The court, however,
agreed with the defendant and vacated the original sen-
tence.4 Thereafter, the court resentenced the defendant
to a term of fifteen years incarceration followed by five
years of special parole. The court left intact the original
sentence on the assault conviction of five years incar-
ceration, execution suspended, with five years of proba-
tion, which was ordered to run concurrent with the
sexual assault sentence. The new total effective sen-
tence instituted by the court was twenty years incarcer-
ation, execution suspended after fifteen years, with five
years of special parole and five years of probation,
ordered to run concurrent. Both parties appealed.
On appeal, the state claims that the trial court incor-
rectly determined that it was required to resentence
the defendant to a period of special parole for his con-
viction of sexual assault in the first degree pursuant to
§ 53a-70 (b) (3). Although acknowledging that ‘‘it is
now clear that in cases involving class B felony sexual
assault in the first degree, a period of special parole is
not a required sentence component’’; see Victor O. II,
supra, 320 Conn. 239; State v. Jason B., supra, 320 Conn.
259; the defendant argues, nonetheless, that we should
not give retroactive effect to the Supreme Court deci-
sions in Victor O. II and Jason B. because they
amounted to a change in the law and he had relied on
the law as it existed at the time he filed his motion. We
conclude that this case is controlled by our decision
today in the companion case of State v. Ruiz, 173 Conn.
App. , A.3d (2017), in which we fully addressed
the retrospective applicability of Victor O. II and Jason
B. under similar arguments and rejected the claims that
those cases amounted to a change in the law. Therefore,
the trial court improperly granted the defendant’s
motion to correct an illegal sentence.
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
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 decisions of our Supreme Court in State v. Victor O., 320 Conn. 239,
128 A.3d 940 (2016), and State v. Jason B., 320 Conn. 259, 128 A.3d 937 (2016).
2
General Statutes (Rev. to 2007) § 53a-70 (b) (3) 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 2007 revision of the statute.
3
Because we conclude that the defendant’s original sentence was not
illegal and, therefore, should be reinstated, we need not determine whether
his new sentence exceeds his original sentence.
4
The state also requested that the court defer its ruling because Victor
O. II was pending before our Supreme Court. The trial court, however,
declined to defer its ruling. It then concluded that, although it did not
necessarily agree with what it considered to be the Supreme Court’s interpre-
tation 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.