State v. Riley

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STATE OF CONNECTICUT v. ACKEEM RILEY
(AC 40073)
Keller, Elgo and Bright, Js.
Syllabus
The defendant, who had been convicted of murder and several other crimes
when he was seventeen years old, appealed to this court from the
judgment of the trial court after it resentenced him to seventy years of
imprisonment. The trial court initially had sentenced the defendant to
100 years of imprisonment in connection with a shooting incident. This
court affirmed the judgment of the trial court, and the defendant
appealed to our Supreme Court, which reversed this court’s judgment
as to the sentence. The Supreme Court directed that this court remand
the case to the trial court for a new sentencing proceeding that con-
formed to the dictates of Miller v. Alabama (567 U.S. 460), which requires
that the trial court give mitigating weight to the defendant’s youth and
its hallmark features when considering whether to impose the functional
equivalent of life imprisonment without parole. After this court
remanded the case to the trial court, but before the defendant’s resen-
tencing hearing, the legislature enacted amendments (P.A. 15-84) to the
statutes applicable to the sentencing of children convicted of certain
felonies (§ 54-91g) and parole eligibility (§ 54-125a) to ensure that juve-
niles sentenced to more than ten years of imprisonment are eligible for
parole, and to require that sentencing judges consider a juvenile’s age
and youth related mitigating factors before imposing sentence. At the
defendant’s resentencing hearing, the defendant was sentenced by the
same judge who had presided over his trial and imposed the original
sentence. On appeal to this court, the defendant claimed that the resen-
tencing court improperly relied on the parole eligibility provisions of
P.A. 15-84, and failed to disqualify itself in violation of statute (§ 51-
183c), the rule of practice (§ 1-22 [a]) that requires disqualification when
the judicial authority previously tried the same matter and the judgment
was reversed on appeal, the Code of Judicial Conduct (rule 2.11 [a] [1]),
and the due process clauses of the fifth and fourteenth amendments to
the United States constitution. Held:
1. The resentencing court did not abuse its discretion in denying the defen-
dant’s motion for recusal:
a. Recusal was not required under § 51-183c, our Supreme Court pre-
viously having concluded that the legislature did not intend for § 51-
183c to apply to a sentencing proceeding, and because the rules promul-
gated by the judges of the Superior Court cannot abridge, enlarge or
modify any substantive right, Practice Book § 1-22 does not apply to a
sentencing procedure, as that rule was intended to give effect to the
mandate in § 51-183c, rather than provide for an independent ground
for recusal.
b. The defendant failed to satisfy his burden to show that disqualification
of the judicial authority was required under rule 2.11 (a) (1) of the Code
of Judicial Conduct, which was based on his claim that the resentencing
court was biased in favor of justifying its initial 100 year sentence: the
defendant’s claim that the 100 year sentence had an anchoring effect
that prevented the court from approaching the resentencing hearing
with a fully open mind that would allow it to fully consider the factors
required under Miller was based on speculation and conjecture, as the
defendant did not explain why only the original sentencing judge would
be susceptible to any anchoring effect, any judge who imposed the new
sentence would know of the prior sentence, and the fact that a trial
judge previously sentenced a defendant in a particular case where resen-
tencing was ordered did not establish an appearance of bias or partiality;
moreover, it was not apparent that the court’s statements during the
resentencing hearing indicated an interest in justifying the appropriate-
ness of the original sentence, as the court repeatedly stated that it would
consider the appropriate factors and impose sentence accordingly, it
never expressed that it would not or could not consider the defendant’s
age as a mitigating factor, nor did it ever express an unwillingness to
consider new information at resentencing, as required by Miller, and
the defendant failed to demonstrate how the court’s willingness to con-
sider new information constituted actual bias or would lead a reasonable
person to question the judge’s impartiality on the basis of all the circum-
stances.
2. The resentencing court properly sentenced the defendant in accordance
with the Supreme Court’s remand order, the applicable statutory authori-
ties and the constitutional principles contemplated in those authorities:
the resentencing court was not required under the Supreme Court’s
remand order to find that the defendant was incorrigible, irreparably
corrupt or irretrievably depraved before resentencing him, as the
Supreme Court’s discussion about a presumption against a life sentence
without parole that must be overcome by evidence of unusual circum-
stances was rendered inapplicable by the enactment of P.A. 15-84, which
provided the defendant with the possibility of parole, and although the
defendant claimed that pursuant to Miller, the Supreme Court’s decision
in his appeal and P.A. 15-84, there was a presumption against the imposi-
tion of a life sentence that could be imposed only after a finding that
the juvenile was permanently incorrigible, irreparably corrupt or irre-
trievable depraved, the resentencing court was required to consider only
how the scientific and psychological evidence described in § 54-91g (a)
(1) counseled against such a sentence; moreover, there was no indication
in the record that the resentencing court considered the seventy year
sentence to be inappropriate but nevertheless imposed it because the
defendant would be eligible for parole, as the court referred to the
defendant’s eligibility for parole, as was required pursuant to § 54-91g
(c), it fully considered and made clear its duty and intention to apply
the Miller factors, and to comply with § 54-91g and the Supreme Court’s
decision in the defendant’s appeal, it considered the defendant’s presen-
tence investigation report, aspects of his upbringing and testimony from
the defendant and his family members, and it discussed the defendant’s
age, the hallmark features of adolescence, the relevant science that
distinguishes a child’s development from that of an adult’s and other
mitigating factors, and balanced them with the circumstances of the
crime at issue, and noted that the defendant had been involved in other
incidents that resulted in the deaths and wounding of other persons.
Argued December 12, 2018—officially released May 14, 2019
Procedural History
Substitute information charging the defendant with
two counts each of the crimes of attempt to commit
murder and assault in the first degree, and with one
count each of the crimes of murder and conspiracy to
commit murder, brought to the Superior Court in the
judicial district of Hartford and tried to the jury before
O’Keefe, J.; verdict and judgment of guilty, from which
the defendant appealed to this court, which affirmed
the trial court’s judgment; thereafter, the defendant, on
the granting of certification, appealed to the Supreme
Court, which reversed this court’s judgment and
remanded the case to this court with direction to
reverse the trial court’s judgment as to the defendant’s
sentence and to remand the case to the trial court for
a new sentencing proceeding; subsequently, the court,
O’Keefe, J., denied the defendant’s motion for recusal
and, following a hearing, rendered judgment imposing
sentence, from which the defendant appealed to this
court. Affirmed.
Michael W. Brown, assigned counsel, for the appel-
lant (defendant).
Melissa Patterson, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy state’s attorney,
and John F. Fahey, supervisory assistant state’s attor-
ney, for the appellee (state).
Opinion
KELLER, J. The defendant, Ackeem Riley, appeals
from the judgment of the trial court resentencing him
following the decision of our Supreme Court, which
reversed the judgment of this court and remanded the
case to this court with direction to reverse the judgment
of the trial court with respect to the defendant’s original
sentence and to remand the case to the trial court for
a new sentencing proceeding. See State v. Riley, 315
Conn. 637, 663, 110 A.3d 1205 (2015), cert. denied,
U.S. , 136 S. Ct. 1361, 194 L. Ed. 2d 376 (2016).
The defendant claims that the trial court (1) failed to
disqualify itself from presiding over the resentencing
proceeding, and (2) violated the rescript of Riley,
ignored important constitutional principles, and failed
to comply with applicable mandatory statutory require-
ments when it resentenced him to seventy years of
incarceration. We disagree and, accordingly, affirm the
judgment of the trial court.
The following facts, as set forth by our Supreme
Court, are relevant to this appeal. ‘‘In November, 2006,
when the defendant was seventeen years old, he partici-
pated in a drive-by shooting into a crowd that left an
innocent sixteen year old dead and two other innocent
bystanders, ages thirteen and twenty-one, seriously
injured. The defendant and his accomplice thought that
someone responsible for a gang related shooting the
previous week was at the scene. The defendant’s iden-
tity as one of the perpetrators was corroborated by his
involvement in an incident two months after the crimes
at issue in which a firearm was discharged that matched
the weapon used in the 2006 shootings. A jury convicted
the defendant of one count of murder in violation of
General Statutes §§ 53a-54a (a) and 53a-8, two counts
of attempt to commit murder in violation of General
Statutes §§ 53a-49 (a) (2) and 53a-54a (a), two counts
of assault in the first degree in violation of General
Statutes §§ 53a-59 (a) (5) and 53a-8, and one count of
conspiracy to commit murder in violation of General
Statutes §§ 53a-48 (a) and 53a-54a (a). The murder con-
viction exposed the defendant to a potential sentence
of twenty-five to sixty years imprisonment, with no
possibility of parole. See General Statutes §§ 53a-35a
(2), 53a-35b and 54-125a (b) (1) (E). The other convic-
tions exposed him to sentences ranging from one year
imprisonment to twenty years imprisonment.’’ State v.
Riley, supra, 315 Conn. 641–42. The trial court imposed
a total effective sentence of 100 years of incarceration.
Id., 642.
In his initial appeal to this court; State v. Riley, 140
Conn. App. 1, 58 A.3d 304 (2013), rev’d, 315 Conn. 637,
110 A.3d 1205 (2015), cert. denied, U.S. , 136 S.
Ct. 1361, 194 L. Ed. 2d 376 (2016); the defendant argued
that his sentence and the procedure under which it
was imposed violated his rights under the eighth and
fourteenth amendments to the federal constitution. Id.,
4, 10 and n.7. In particular, the defendant argued that
the United States Supreme Court’s decision in Miller
v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed.
2d 407 (2012), which held that the eighth amendment
forbids a sentencing scheme that mandates life in prison
without the possibility of parole for juvenile offenders,
rendered the manner in which his sentence was
imposed unconstitutional.1 State v. Riley, supra, 9. This
court rejected the defendant’s contentions and affirmed
the judgment of the trial court. Id., 21.
On appeal to our Supreme Court, the defendant
argued that this court’s decision was incorrect as a
matter of law and fact. State v. Riley, supra, 315 Conn.
643–44. For reasons set forth in greater detail in part
II of this opinion, our Supreme Court agreed with the
defendant and reversed this court’s judgment and
remanded the case to this court with direction to
reverse the judgment of the trial court only with respect
to the defendant’s sentence, and to remand the case to
the trial court for a new sentencing proceeding consis-
tent with its opinion. Id., 663.
On remand to the trial court, the defendant filed a
motion for recusal dated June 24, 2016. The basis for
most of his arguments stemmed primarily from the fact
that the resentencing judge, O’Keefe, J., was the same
judge who had presided over his trial and had imposed
the original sentence. The defendant argued, for various
reasons, that Practice Book § 1-22, General Statutes
§ 51-183c, rule 2.11 of the Code of Judicial Conduct, and
the due process clause of the fourteenth amendment
required recusal. On August 11, 2016, the court held a
hearing on the motion for recusal and ultimately denied
the motion after hearing the parties’ arguments.
On November 2, 2016, the defendant appeared before
the court for resentencing. At the hearing, the court
addressed, among other things, the considerations set
forth in our Supreme Court’s decision in Riley and the
relevant statutory provisions applicable to the defen-
dant’s sentencing. After a lengthy colloquy, the court
resentenced the defendant to a total effective term of
seventy years of incarceration, noting that he was eligi-
ble for parole. This appeal followed. Additional facts
will be set forth as necessary.
I
On appeal, the defendant first claims that the trial
court erred by not granting his motion for recusal. In his
view, the court was required to recuse itself pursuant
to § 51-183c, Practice Book § 1-22, rule 2.11 of the Code
of Judicial Conduct, and the due process clauses of the
fifth and fourteenth amendments to the United States
constitution. The state argues, inter alia, that neither
our rules of practice nor our statutes prohibited the
court from presiding over the defendant’s resentencing
proceeding. For the reasons discussed herein, we agree
with the state.
A
We begin by first addressing whether § 51-183c and
Practice Book § 1-22 required the court to recuse itself
on remand following the reversal of the defendant’s
original sentence.
As a preliminary matter, we set forth the applicable
standard of review. Although our review of whether a
court properly denied a motion for recusal is based on
the abuse of discretion standard; see State v. Milner,
325 Conn. 1, 12, 155 A.3d 730 (2017); the claims in the
present case require us to determine whether § 51-183c
and Practice Book § 1-22 required recusal in this situa-
tion, which presents a question of statutory interpreta-
tion. Therefore, our review is plenary. See Patino v.
Birken Mfg. Co., 304 Conn. 679, 688, 41 A.3d 1013 (2012).
To begin, the defendant’s argument that § 51-183c2
required the court to recuse itself in this case is unper-
suasive because it is easily foreclosed by our Supreme
Court’s decision in State v. Miranda, 260 Conn. 93, 794
A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154
L. Ed. 2d 175 (2002). In Miranda, our Supreme Court
addressed a similar situation in which a defendant
claimed that § 51-183c required that his case be
‘‘assigned to another trial judge for resentencing.’’ Id.,
131. After our Supreme Court analyzed the statute in
relation to other pertinent authorities, it concluded that
‘‘the legislature did not intend for § 51-183c to apply to
a sentencing procedure.’’ Id., 132; see also Daley v. J.B.
Hunt Transport, Inc., 187 Conn. App. 587, 601 n.17,
203 A.3d 635 (2019) (explaining that sentencing hearing
is proceeding ‘‘to which § 51-183c does not apply’’).
Although the defendant attempts to distinguish
Miranda in various ways, none is persuasive.3 To say
more on the matter would be supererogatory.
With that in mind, though, the defendant argues that
Practice Book § 1-22 provides an independent basis for
recusal separate from § 51-183c. In particular, he
focuses on the specific language of the rule that pro-
vides that ‘‘[a] judicial authority shall, upon motion of
either party or upon its own motion, be disqualified
from acting in a matter if such judicial authority is
disqualified from acting therein . . . because the judi-
cial authority previously tried the same matter and . . .
the judgment was reversed on appeal.’’ (Emphasis
added.) Practice Book § 1-22 (a). He argues that
because a sentence imposed in a criminal case consti-
tutes the judgment of conviction, and because the
defendant’s sentence was in fact reversed, the trial
court that originally tried and sentenced him was
required, on remand, to recuse itself for the resentenc-
ing hearing.
Despite the defendant’s contention, our decision in
Barlow v. Commissioner of Correction, 166 Conn. App.
408, 422, 142 A.3d 290 (2016), appeal dismissed, 328
Conn. 610, 182 A.3d 78 (2018), undermines the defen-
dant’s claim. In Barlow, we addressed briefly the inter-
play between the two provisions. The petitioner in that
case claimed that the habeas court improperly denied
his motion for recusal, in which he relied on § 51-183c,
Practice Book § 1-22 (a), and rule 2.11 (a) of the Code
of Judicial Conduct. Id., 421. With respect to that claim,
we stated that ‘‘[t]he mandate of § 51-183c, a subject
of prior judicial interpretation, is plain and unambigu-
ous. It provides in relevant part: ‘No judge of any court
who tried a case without a jury . . . in which the judg-
ment is reversed by the Supreme Court, may again try
the case. . . .’ General Statutes § 51-183c.’’ Barlow v.
Commissioner of Correction, supra, 422. Significant
to the present case, we explained that ‘‘[o]ur rules of
practice give effect to this statutory right [in § 51-183c]
by providing in relevant part: ‘A judicial authority shall,
upon motion of either party or upon its own motion,
be disqualified from acting in a matter if such judicial
authority is disqualified from acting therein . . .
because the judicial authority previously tried the same
matter and . . . the judgment was reversed on appeal.
. . .’ Practice Book § 1-22 (a).’’ (Emphasis added.) Bar-
low v. Commissioner of Correction, supra, 422.
Although the facts of Barlow differ from those in the
present case, our discussion in that case makes clear
that the specific language in Practice Book § 1-22 on
which the defendant now relies is intended to ‘‘give
effect’’ to the mandate in § 51-183c, rather than provide
for an independent ground for recusal. See id. To adopt
the defendant’s position would yield a peculiar result
where the judge would be required under the rules of
practice to recuse himself from resentencing a defen-
dant after the initial sentence he imposed was reversed,
but he would not be required to do so under the statute
that the rule was intended to effectuate. As we noted
previously, our Supreme Court has concluded that ‘‘the
legislature did not intend for § 51-183c to apply to a
sentencing procedure.’’ State v. Miranda, supra, 260
Conn. 132. Furthermore, because the rules promulgated
by the judges of the Superior Court cannot ‘‘abridge,
enlarge or modify any substantive right’’; General Stat-
utes § 51-14 (a); we conclude that the language in Prac-
tice Book § 1-22 (a), which requires disqualification
when the ‘‘judicial authority previously tried the same
matter and . . . the judgment was reversed on appeal,’’
also does not apply to a sentencing procedure.
Accordingly, we conclude that recusal was not
required under § 51-183c or Practice Book § 1-22. Thus,
the defendant has not demonstrated an abuse of discre-
tion on these grounds.
B
The defendant similarly argues that pursuant to rule
2.11 of the Code of Judicial Conduct, as referenced
in Practice Book § 1-22, disqualification was required
because the trial court’s impartiality reasonably could
be questioned. The defendant makes clear that his
‘‘claim is not that [the] sentencing court was specifically
biased against the defendant. Rather, the defendant’s
claim is that the sentencing court was biased in favor
of justifying its initial imposition of a harsh sentence
against the defendant.’’ (Emphasis in original.) In sup-
port of this contention, he argues, inter alia, that the
court’s original imposition of a 100 year sentence ‘‘had
an ‘anchoring effect’ that prevented the sentencing
court from approaching the resentencing hearing with
a fully open mind that would allow the court to fully
consider the factors required by the rescript from our
Supreme Court,’’ and that the court ‘‘had an apparent
interest in justifying the appropriateness of the original
sentence that the court imposed.’’
Pursuant to rule 2.11 (a) of the Code of Judicial Con-
duct, ‘‘[a] judge shall disqualify himself . . . in any pro-
ceeding in which the judge’s impartiality might
reasonably be questioned . . . .’’ In applying this rule,
our Supreme Court has indicated that ‘‘[t]he reasonable-
ness standard is an objective one. Thus, the question
is not only whether the particular judge is, in fact, impar-
tial but whether a reasonable person would question
the judge’s impartiality on the basis of all the circum-
stances. . . . Moreover, it is well established that
[e]ven in the absence of actual bias, a judge must dis-
qualify himself in any proceeding in which his impartial-
ity might reasonably be questioned, because the
appearance and the existence of impartiality are both
essential elements of a fair exercise of judicial author-
ity. . . . Nevertheless, because the law presumes that
duly elected or appointed judges, consistent with their
oaths of office, will perform their duties impartially
. . . the burden rests with the party urging disqualifica-
tion to show that it is warranted. . . . Our review of
the trial court’s denial of a motion for disqualification is
governed by an abuse of discretion standard.’’ (Citation
omitted; internal quotation marks omitted.) State v. Mil-
ner, supra, 325 Conn. 12.
We conclude that the defendant has not satisfied his
burden. The defendant’s contention that the so-called
‘‘anchoring effect’’ prevented the sentencing court from
approaching resentencing with a fully open mind in
order to fully consider the Miller factors is nothing
more than the product of speculation and conjecture.4
See State v. Montini, 52 Conn. App. 682, 695, 730 A.2d
76 (explaining that ‘‘[v]ague and unverified assertions
of opinion, speculation and conjecture cannot support
a motion to recuse’’ [internal quotation marks omitted]),
cert. denied, 249 Conn. 909, 733 A.2d 227 (1999).
Although a few federal cases, as cited in the defendant’s
appellate brief, have given a cursory look at the social
science on how human tendencies and biases may influ-
ence sentencing under the federal sentencing guide-
lines, this alone, without more, is insufficient to show
that disqualification was warranted in the present case.
Furthermore, the defendant does not explain why only
the original sentencing judge would be susceptible to
any anchoring effect. Any judge who imposed the new
sentence would know of the same prior sentence, or
‘‘anchor.’’
The defendant also argues that a ‘‘reasonable person
knowing the circumstances under which the case
returned to the Superior Court for the resentencing
might reasonably question the ability of the original
sentencing judge to act impartially when he had already
pronounced a 100 year sentence, [and] had already
adjudged the defendant’s culpability and lack of pros-
pect for rehabilitation.’’ This contention must also be
rejected. As the state points out, the defendant’s argu-
ment, if accepted, ultimately would prevent any original
sentencing judge from conducting a resentencing hear-
ing, regardless of whether resentencing occurs pursu-
ant to Miller. The mere fact that a trial judge previously
had sentenced a defendant in a particular case where
resentencing is ordered does not in and of itself estab-
lish an appearance of bias or partiality. See State v.
Milner, supra, 325 Conn. 12 (‘‘law presumes that duly
elected or appointed judges, consistent with their oaths
of office, will perform their duties impartially’’ [internal
quotation marks omitted]).
Furthermore, the underpinnings for the defendant’s
argument that the ‘‘court had an apparent interest in
justifying the appropriateness of the original sentence
that the court imposed,’’ which is based on, among
other things, the various statements he made during
the resentencing hearing, is not so apparent to us. In
support of his argument, the defendant cites to State
v. Solis-Diaz, 187 Wash. 2d 535, 387 P.3d 703 (2017), in
which the Supreme Court of Washington granted review
of an intermediate appellate court decision that vacated
the defendant’s sentence for a second time but declined
to disqualify the sentencing judge in that case from
resentencing the defendant. Id., 536–37. The Supreme
Court of Washington explained that the sixteen year
old defendant was tried as an adult in connection with
a drive-by shooting and was sentenced to ‘‘1,111
months, or 92.6 years, of imprisonment.’’ Id., 537. After
the original sentence was vacated by the intermediate
court, the trial judge in the case resentenced the defen-
dant to the same sentence of 92.6 years of incarceration.
On appeal following the first resentencing, the interme-
diate court again vacated the sentence and remanded
the case for resentencing, ‘‘holding that [the judge]
erred in not considering an exceptional sentence below
the standard range on the basis of [the defendant’s]
youth and to mitigate the consecutive sentences
required under [Washington law].’’ Id., 539. The court
‘‘directed the trial court on resentencing to conduct a
meaningful, individualized inquiry into whether either
factor should mitigate the defendant’s sentence in light
of recent case law.’’ Id. The intermediate court, how-
ever, declined to disqualify the judge from presiding
over resentencing, noting that the defendant could
move to disqualify the judge on remand. Id.
In addressing whether the trial judge should have
been disqualified, the Supreme Court of Washington
indicated that the record reflected that the judge exhib-
ited ‘‘frustration and unhappiness at the [intermediate
court’s] requiring him to address anew whether [the
defendant] should be considered for an exceptional
downward sentence on the basis of his age or the multi-
ple offense policy.’’ Id., 541. The court further noted that
the ‘‘judge’s remarks at the first resentencing strongly
suggest that, regardless of the information presented
in mitigation, he is committed to the original standard
range sentence of 1,111 months. Concern about whether
on remand [the judge] could exercise discretion and
consider mitigating evidence with an open mind is
heightened by the judge’s statement that the length of
the sentence he imposed has had a deterrent effect on
incidents of gang-related gun violence in’’ the area
where the crimes at issue had been committed. Id. The
Supreme Court of Washington reversed the intermedi-
ate court’s decision to the extent that it declined to
disqualify the judge in the case. Id.
Although the defendant acknowledges that the facts
of Solis-Diaz vary from the facts in the present case,
he asserts that the logic underlying that decision applies
here with similar force. We find this case to be readily
distinguishable. On the basis of our review of the record,
the trial court in this case never expressed that it would
not or could not consider the defendant’s age as a miti-
gating factor, nor did it ever express its unwillingness to
consider the Miller factors or those required by statute
during the resentencing. To the contrary, the court
repeatedly stated that it would consider the appropriate
factors and impose sentence accordingly.5 The defen-
dant has failed to sufficiently demonstrate how the
court’s willingness to consider new information at
resentencing—i.e., the Miller factors—which were not
required by law for consideration at the time of the
original sentence (nor requested by the defendant to
be considered at the original sentencing), constituted
actual bias or would lead a reasonable person to ques-
tion the judge’s impartiality on the basis of all the cir-
cumstances.6
Accordingly, we conclude that court did not abuse
its discretion in denying the defendant’s motion for
recusal pursuant to rule 2.11 (a) (1) of the Code of
Judicial Conduct.
II
The defendant next claims that the trial court violated
the rescript of our Supreme Court’s decision in Riley,
ignored important constitutional principles, and failed
to comply with applicable mandatory statutory require-
ments when it resentenced him to a new effective life
sentence of seventy years of incarceration. In particular,
he contends that the trial court was required to find
specifically that he was ‘‘incorrigible, irreparably cor-
rupt, or irretrievably depraved’’ in order to overcome
a presumption against life sentences for juveniles
before it imposed its seventy year sentence. Addition-
ally, he argues that the court failed to craft an appro-
priate new sentence for him because it improperly
relied on the parole eligibility provisions of No. 15-84
of the 2015 Public Acts (P.A. 15-84), codified in relevant
part at § 54-125a. We disagree.
We briefly set forth additional facts and procedural
history necessary for the disposition of this claim. At
the conclusion of the defendant’s trial in 2009, the trial
court imposed a total effective sentence of 100 years
imprisonment. State v. Riley, supra, 315 Conn. 642. It
was undisputed that the sentence imposed was the func-
tional equivalent to life without the possibility of parole.
Id. After the trial court first sentenced the defendant
in this case, the United States Supreme Court issued
its decision in Miller. Id., 643. On appeal to this court;
State v. Riley, supra, 140 Conn. App. 1; the defendant
argued that his sentence and the procedure under which
it was imposed violated his rights under the eighth and
fourteenth amendments to the federal constitution. Id.,
4, 10 and n.7. This court rejected these contentions and
concluded that Miller required only that a defendant be
afforded the opportunity to present mitigating evidence,
including evidence relating to his age, and that the court
be permitted to impose a lesser sentence than life with-
out parole after considering any such evidence. Id., 10,
14–16. This court also concluded that the trial court,
in fact, had considered many of the factors identified
as relevant in Miller before it imposed the defendant’s
sentence.7 Id., 19–20.
On appeal to our Supreme Court, the defendant
argued that our decision was incorrect as a matter of
law and fact. State v. Riley, supra, 315 Conn. 643–44.
In particular, he argued that the sentencing procedure
and the sentence itself failed to conform to the dictates
of Miller and Graham v. Florida, 560 U.S. 48, 130 S.
Ct. 2011, 176 L. Ed. 2d 825 (2010). See State v. Riley,
supra, 644.8 In addressing his claim, our Supreme Court
first summarized the United States Supreme Court’s
decisions in Roper v. Simmons, 543 U.S. 551, 125 S. Ct.
1183, 161 L. Ed. 2d 1 (2005), Graham, and Miller, which
fundamentally altered the legal landscape for the sen-
tencing of juvenile offenders to comport with the ban
on cruel and unusual punishment under the eighth
amendment to the federal constitution. See State v.
Riley, supra, 645–52.
Our Supreme Court then discussed the import that
Miller had on discretionary schemes like the one in
Connecticut, and it characterized Miller as standing for
two propositions: ‘‘(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
evidence as mitigation when deciding whether to irrevo-
cably sentence juvenile offenders to a [term of life
imprisonment, or its equivalent, without parole].’’ Id.,
653; see State v. Delgado, 323 Conn. 801, 806, 151 A.3d
345 (2016). The court determined that ‘‘the dictates set
forth in Miller may be violated even when the sentenc-
ing 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 punishment is
appropriate.’’ State v. Riley, supra, 315 Conn. 653.
The court in Riley went on to recognize that Miller
held that a sentencing court must ‘‘take into account
how children are different, and how those differences
counsel against irrevocably sentencing them to a life-
time in prison.’’ (Internal quotation marks omitted.) Id.,
654, quoting Miller v. Alabama, supra, 567 U.S. 480.
The court then concluded that this mandate logically
would extend to a discretionary sentencing scheme. Id.,
654. Additionally, our Supreme Court noted that the
court in Miller ‘‘expressed its confidence that, once the
sentencing authority considers the mitigating factors
of the offender’s youth and its attendant circumstances,
‘appropriate occasions for sentencing juveniles to this
harshest possible penalty will be uncommon.’ . . .
This language suggests that the mitigating factors of
youth establish, in effect, a presumption against impos-
ing a life sentence without parole on a juvenile offender
that must be overcome by evidence of unusual circum-
stances. This presumption logically would extend to
discretionary schemes that authorize such a sentence.’’
(Citation omitted.) State v. Riley, supra, 315 Conn.
654–55.
Our Supreme Court further explained that ‘‘Miller
does not stand solely for the proposition that the eighth
amendment demands that the sentencer have discretion
to impose a lesser punishment than life without parole
on a juvenile homicide offender. Rather, Miller logically
indicates that, if a sentencing scheme permits the impo-
sition of that punishment on a juvenile homicide
offender, the trial court must consider the offender’s
‘chronological age and its hallmark features’ as mitigat-
ing against such a severe sentence. Miller v. Alabama,
supra, 567 U.S. 477. As the court in Miller explained,
those features include: ‘immaturity, impetuosity, and
failure to appreciate risks and consequences’; the
offender’s ‘family and home environment’ and the
offender’s inability to extricate himself from that envi-
ronment; ‘the circumstances of the homicide offense,
including the extent of [the offender’s] participation in
the conduct and the way familial and peer pressures
may have affected him’; the offender’s ‘inability to deal
with police officers or prosecutors (including on a plea
agreement) or his incapacity to assist his own attor-
neys’; and ‘the possibility of rehabilitation . . . .’ ’’
(Emphasis omitted.) State v. Riley, supra, 315 Conn.
658.
Our Supreme Court then applied the dictates of Miller
to the defendant’s case. It concluded that ‘‘the record
[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.’’ Id., 660. Accordingly, the court concluded that
‘‘the defendant [was] entitled to a new sentencing pro-
ceeding that conforms to the dictates of Miller. Both the
defendant and the state are free to present additional
evidence at this new proceeding.’’ Id., 661. The rescript
by the court stated: ‘‘The judgment of the Appellate
Court is reversed and the case is remanded to that court
with direction to reverse the judgment of the trial court
only with respect to the defendant’s sentence and to
remand the case to that court for a new sentencing
proceeding consistent with this opinion.’’ Id., 663.
Several months after this court remanded the case
to the trial court for resentencing, but before the defen-
dant’s resentencing hearing, the legislature enacted P.A.
15-84. Section 1 of P.A. 15-84, codified at § 54-125a,
ensures that all juveniles who are sentenced to more
than ten years imprisonment are eligible for parole.
Section 2 of P.A. 15-84, codified as amended at General
Statutes § 54-91g, requires a sentencing judge to con-
sider a juvenile’s age and any youth related mitigating
factors before imposing a sentence following a juve-
nile’s conviction of any class A or class B felony.
On November 2, 2016, the defendant appeared before
the trial court for a resentencing hearing pursuant to
the rescript of our Supreme Court. During the hearing,
the prosecutor argued, inter alia, that the defendant’s
actions were not the type of youthful impulsivity con-
templated in the decisions by the United States Supreme
Court or our Supreme Court that deserve leniency. The
prosecutor, in describing the defendant’s crimes, stated:
‘‘That’s not impulsivity. That’s just pure violence on the
part of [the defendant].’’ The prosecutor proceeded to
ask the court to sentence the defendant to 120 years
of incarceration, which was also the request made at
the defendant’s original sentencing.
Defense counsel then addressed the court and high-
lighted the troubled upbringing the defendant faced. In
particular, she described, inter alia, how the defendant,
at a young age, was raised in and exposed to a commu-
nity of violence. Defense counsel stated: ‘‘It was not a
choice that [the defendant] made at age twelve to be
taken by his mother, who was hiding from immigration
and exposed to violence against her, violence on the
street.’’ In explaining that the defendant was seventeen
years of age at the time he committed the crime in this
case, defense counsel stated that it was an ‘‘unfortu-
nately narrow understanding of the juvenile brain sci-
ence to characterize impulsivity, failure to appreciate
consequences . . . in the way that it’s been repre-
sented by the state.’’ Counsel went on to state: ‘‘I think
we’ve made an adequate presentation of what the brain
science really shows in our submissions to the court
and, of course, Your Honor read [the] materials [pro-
vided to the court by the court support services division
of the Judicial Branch].’’9 Counsel then had the defen-
dant, his aunt, and his cousin address the court.
After the parties concluded their arguments, the court
went on to indicate, inter alia, that it was ‘‘going to
resentence [the defendant] in accordance with the
instructions of the state of Connecticut Supreme Court.
I’m going to apply the Miller factors.’’ From there, the
court went on to discuss its awareness of the science
that was discussed by the defendant’s counsel. In partic-
ular, it recognized that ‘‘there are changes over time
that make a difference in who we are when we’re seven-
teen and who we are when we might be fifty or sixty-
nine. So, because of his age, I will assume that [the
defendant] was immature and impetuous, and had a
diminished capacity to appreciate the risks and conse-
quences of his actions when he was seventeen years
old.’’ The court also went on to address, inter alia, the
defendant’s family and home environment, his presen-
tence investigation report, and the circumstances sur-
rounding the crime. At the conclusion of its remarks,
the court sentenced the defendant to a total effective
term of seventy years of incarceration and made clear
that, pursuant to the recently enacted P.A. 15-84, the
defendant was eligible for parole before he reaches the
age of fifty. This appeal followed.
The defendant argues that the court violated the
rescript of Riley, ignored important constitutional prin-
ciples, and failed to comply with applicable mandatory
statutory requirements when it resentenced him. He
contends that the trial court was required to explicitly
find that he was ‘‘incorrigible, irreparably corrupt, or
irretrievably depraved’’ in order to overcome a pre-
sumption against life sentences for juveniles before it
imposed its seventy year sentence. In particular, he
argues that Riley interpreted Miller to include a pre-
sumption against the imposition of a life sentence on
a juvenile defendant and argues that this presumption
would need to be ‘‘overcome by evidence of unusual
circumstances’’ in order for a sentencing court to
impose a life sentence. (Internal quotation marks omit-
ted.) He further argues that even if the presumption in
Riley no longer applies due to a change in the legal
landscape in this state, he posits that the language and
legislative history of P.A. 15-84 clearly establish that a
presumption against the imposition of a functional life
sentence has been adopted by our legislature.
In response, the state argues that the defendant’s
claim fails because nothing in our law creates a pre-
sumption against a lengthy sentence with the possibility
of parole or requires the trial court to find that a defen-
dant is incorrigible, irreparably corrupt, or irretrievably
depraved before imposing a seventy year sentence with
the possibility of parole after thirty years. We agree
with the state.
Addressing the defendant’s claim necessarily requires
us to interpret both the remand order in Riley and § 54-
91g to determine whether the sentencing court properly
resentenced the defendant. As such, our review is ple-
nary. See State v. Brundage, 320 Conn. 740, 747, 135
A.3d 697 (2016) (‘‘[d]etermining the scope of a remand
is a matter of law because it requires the trial court to
undertake a legal interpretation of the higher court’s
mandate in light of that court’s analysis’’ [internal quota-
tion marks omitted]); Santorso v. Bristol Hospital, 308
Conn. 338, 355, 63 A.3d 940 (2013) (‘‘[t]he interpretation
of a statute presents a question of law over which our
review is plenary’’).
The defendant’s argument that the sentencing court’s
seventy year sentence was improper because Riley cre-
ated a presumption against a life sentence and could
be overcome only if the court found that the defendant
was ‘‘incorrigible, irreparably corrupt, or irretrievably
depraved’’ is flawed in several respects.
First, at the time of the defendant’s appeal before
our Supreme Court, it was undisputed that with this
original sentence, the ‘‘defendant ha[d] no possibility of
parole before his natural life expire[d].’’ State v. Riley,
supra, 315 Conn. 640. In addressing the import of Miller
for discretionary sentencing schemes, our Supreme
Court in Riley interpreted certain language in Miller to
suggest ‘‘that the mitigating factors of youth establish,
in effect, a presumption against imposing a life sentence
without parole on a juvenile offender that must be
overcome by evidence of unusual circumstances. This
presumption logically would extend to discretionary
schemes that authorize such a sentence.’’ (Emphasis
added.) Id., 655. Importantly, though, our Supreme
Court’s discussion referred to mandatory or discretion-
ary life without parole sentences, not simply ‘‘life sen-
tences’’ as the defendant asserts in this appeal.
The distinction between a sentence of life without
parole and a sentence of life with the possibility of
parole is an important one. Between the time at which
our Supreme Court reversed the defendant’s initial sen-
tence and the time at which his new sentencing hearing
was held, the legal landscape in Connecticut, once
again, had changed with respect to juvenile sentencing.
See General Statutes §§ 54-91g and 54-125a; see also
Montgomery v. Louisiana, U.S. , 136 S. Ct. 718,
732, 736, 193 L. Ed. 2d 599 (2016) (giving Miller retroac-
tive effect and permitting state to remedy Miller viola-
tion by permitting juvenile homicide offenders to be
considered for parole). Although the defendant did not
have a possibility of parole when our Supreme Court
rendered its decision in Riley, the legislature’s enact-
ment of P.A. 15-84 provided him, and those similarly
situated, with that possibility.10 Because Riley’s discus-
sion about overcoming presumptions referred only to
mandatory or discretionary life without parole senten-
ces, the fact that the defendant no longer faced a life
sentence without the opportunity of parole at the time
of his resentencing rendered this aspect of Riley inappli-
cable to the defendant at the time of resentencing.
Our Supreme Court’s decision in State v. Delgado,
supra, 323 Conn. 801, sheds light on the effect that the
enactment of P.A. 15-84 had post-Riley. In Delgado, the
court was tasked with determining how the changes in
juvenile sentencing law impacted individuals who were
sentenced before the changes in juvenile sentencing
occurred. Id., 802. The defendant in that case was sen-
tenced in 1996 to sixty-five years of imprisonment with-
out parole for crimes that he committed when he was
sixteen years old. Id. Although he had become eligible
for parole following the passage of P.A. 15-84, he filed
a motion to correct his allegedly illegal sentence, claim-
ing, inter alia, that he was entitled to be resentenced
because the judge who sentenced him failed to consider
youth related mitigating factors. Id., 805. After dis-
cussing its decisions in Riley, 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 the United
States Supreme Court’s decision in Montgomery v. Lou-
isiana, supra, 136 S. Ct. 718, our Supreme Court con-
cluded that ‘‘[b]ecause Miller and Riley 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.’’ State v. Delgado, supra,
812. Accordingly, the resentencing court in the present
case was not required under Riley to make any particu-
lar finding that the defendant was ‘‘incorrigible, irrepa-
rably corrupt, or irretrievably depraved’’ before
resentencing him to a seventy year term of imprison-
ment when he was eligible for parole after thirty years.
The defendant next argues that even if the enactment
of § 54-125a, which created a possibility of parole for
him, made certain principles in Riley inapplicable to
him, the language and legislative history of P.A. 15-84
clearly establish a presumption against the imposition
of a functional life sentence. He avers that the practical
effect of Miller, Riley, and our legislature’s enactment
of P.A. 15-84 was to ‘‘significantly limit a sentencing
court’s discretion when imposing a sentence on a juve-
nile.’’ He again asserts that this ‘‘limitation creates a
presumption against the imposition of a life sentence
on a juvenile defendant, and such exceedingly rare sen-
tences can only be imposed after a specific finding that
the juvenile being sentenced is permanently incorrigi-
ble, irreparably corrupt, or irretrievable depraved.’’
We turn our attention to the language of § 2 of P.A.
15-84, codified at § 54-91g,11 which requires the trial
court to consider certain factors before sentencing a
juvenile convicted of a class A or B felony. Section 54-
91g (a) provides in relevant part that a court shall ‘‘(1)
[c]onsider, in addition to any other information relevant
to sentencing, the defendant’s age at the time of the
offense, the hallmark features of adolescence, and any
scientific and psychological evidence showing the dif-
ferences between a child’s brain development and an
adult’s brain development,’’ and shall ‘‘(2) [c]onsider,
if the court proposes to sentence the child to a lengthy
sentence under which it is likely that the child will die
while incarcerated, how the scientific and psychologi-
cal evidence described in subdivision (1) of this subsec-
tion counsels against such a sentence.’’
The plain and unambiguous language of the statute
makes clear what a court must consider when sentenc-
ing a child convicted of an A or B felony. Although the
defendant asserts that the statute creates a presumption
against the imposition of a life sentence and requires
a finding that the juvenile being sentenced is ‘‘perma-
nently incorrigible, irreparably corrupt, or irretrievable
depraved’’ in order to overcome that presumption, our
review of the statute reveals no language to support
the defendant’s contention. Even if we assume, as do
the parties, that the defendant’s seventy year sentence
in this case constitutes a ‘‘lengthy sentence under which
it is likely [he] will die while incarcerated’’; General
Statutes § 54-91g (a) (2); the sentencing court was
required to consider only ‘‘how the scientific and psy-
chological evidence described in subdivision (1) of
[§ 54-91g (a)] counsels against such a sentence.’’ Gen-
eral Statutes § 54-91g (a) (2). The express language of
the statute makes no reference to a presumption or a
specific finding that the court was required to make in
order to overcome that purported presumption.
Last, the defendant argues that the trial court also
failed to craft an appropriate new sentence for him
because it improperly relied on the parole eligibility
provisions of § 1 of P.A. 15-84, codified at § 54-125a. In
particular, he argues that the court failed to consider
sufficiently the ‘‘Miller factors’’ in crafting a new sen-
tence and, instead, relied ‘‘heavily upon the availability
of a future parole opportunity for the defendant to
lessen the sentencing court’s responsibility to fully
weigh the factors relevant to the defendant’s youth at
the time of the crimes.’’12 In essence, the defendant
argues that the trial court imposed a sentence that it
knew to be disproportionate because it knew that the
defendant would be eligible for parole. We disagree.
A careful review of the record reveals that the court
properly complied with our Supreme Court’s decision
in Riley and the requirements of § 54-91g. To begin, the
court made clear at various times during the sentencing
hearing its duty and intention to comply with our
Supreme Court’s decision in Riley. In particular, the
court indicated that it was ‘‘going to resentence [the
defendant] in accordance with the instructions of the
State of Connecticut Supreme Court. I’m going to apply
the Miller factors.’’ During its colloquy, the court also
indicated that it was ‘‘not here to argue the correctness
or the wisdom of the cases that got us all here, Roper,
Graham, Miller, Montgomery and the state of Connecti-
cut versus [the defendant]. I mean, those courts have
spoken.’’ The court stated: ‘‘I’m a trial judge. I’m a ser-
vant of the law. I accept the rulings from the next level.
I will note that Graham, Miller and Montgomery, I
believe, all were decided after this case. There was no
way that trial Judge O’Keefe here on Lafayette Street
in [the geographical area number fourteen court in Hart-
ford in] . . . 2009, had access to the logic and the rea-
soning of those cases.’’
The court went on to consider, among other things,
the defendant’s presentence investigation report, testi-
mony from the defendant and his family members, and
other aspects of the defendant’s upbringing. Particu-
larly important to the present appeal, the court fully
considered, despite the defendant’s arguments to the
contrary, the Miller factors and those factors required
under § 54-91g. The court recognized that ‘‘because of
[the defendant’s] age at the time of the crime that he
committed, [he] was different than [an] adult.’’ The
court went on to state: ‘‘I am aware of the science that
now supports that view. That there are changes over
time that make a difference in who we are when we’re
seventeen and who we are when we might be fifty or
sixty-nine. So, because of his age, I will assume that he
was immature and impetuous and had a diminished
capacity to appreciate the risks and consequences of
his actions when he was seventeen years old.’’
The court then went on to state, inter alia, that
‘‘[t]here’s no evidence to the contrary that he wasn’t
immature, impetuous or did not have a diminished
capacity to appreciate the risks and the consequences
of his actions. None of this activity that he was engaged
in over a long period of time makes sense at all. There
really was no good motive for this.’’
In addition to recognizing and discussing the defen-
dant’s age, the hallmark features of adolescence, the
relevant science distinguishing a child’s development
from that of an adult’s, and other mitigating factors,
the court also balanced them with the ‘‘horrific circum-
stances of the crime.’’ The court made note that it was
significant that the defendant had ‘‘been involved in the
death of two people and the wounding of three or four
others over a period of time, not just on a single day.’’
The court noted that the crimes took place ‘‘over a
period of months where [the defendant] had time to
contemplate what he was doing, and the effect that it
would have on other people and other people’s lives.’’13
The court indicated that it had ‘‘no way to see into the
future’’ or whether the defendant was ‘‘ever going to
be rehabilitated.’’
As the defendant points out in his appellate brief, the
court at various times did refer to his eligibility for
parole. For instance, the court noted that ‘‘[o]ur legisla-
ture has addressed this, and no matter what sentence
I give, as we all agree, as long as it’s longer than fifty
years, will result in a parole hearing, approximately
thirty years.’’ But the defendant’s argument that the
court’s discussion of parole eligibility during the hearing
was the ‘‘main focal point’’ of the court’s sentencing
decision and that the court failed to fully weigh the
factors relevant to the defendant’s youth at the time of
the crimes, finds little support in the record and is
contradicted by the express statements of the court.
For example, at one point during the hearing, the court
stated: ‘‘I get why I’m sentencing him. And I agree that
it’s necessary. I’m not going to say I’m not going to
sentence him because he has a chance for a parole
hearing. I’m going to sentence him in accordance with
Miller as instructed by [our Supreme Court].’’ Addition-
ally, as previously discussed, the court thoroughly went
through the factors relevant to the defendant’s youth.
It discussed, inter alia, the defendant’s age, the hallmark
features of adolescence as they pertained to the defen-
dant, and noted that it had reviewed the science dis-
cussed in Riley and § 54-91g.
In addition, as the state points out, the court in fact
was required by statute to inform the defendant of his
parole eligibility. See General Statutes § 54-91g (c). Sec-
tion 54-91g (c) provides: ‘‘Whenever a child is sentenced
pursuant to subsection (a) of this section, the court
shall indicate the maximum period of incarceration that
may apply to the child and whether the child may be
eligible to apply for release on parole pursuant to subdi-
vision (1) of subsection (f) of section 54-125a.’’ Although
the trial court did reference the defendant’s eligibility
of parole multiple times during its lengthy colloquy, we
have found no indication in the record that the trial
court considered the seventy year sentence to be inap-
propriate but nevertheless imposed it because the
defendant would be eligible for parole.
On the basis of our review of the record, we conclude
that the defendant properly was resentenced by the
trial court in accordance with our Supreme Court’s
remand order in Riley, the applicable statutory authori-
ties, and the constitutional principles contemplated in
those authorities.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In Miller, the Supreme Court made clear that ‘‘[m]andatory life without
parole for a juvenile precludes consideration of his chronological age and
its hallmark features—among them, immaturity, impetuosity, and failure to
appreciate risks and consequences. It prevents taking into account the family
and home environment that surrounds him—and from which he cannot
usually extricate himself—no matter how brutal or dysfunctional. It neglects
the circumstances of the homicide offense, including the extent of his partici-
pation in the conduct and the way familial and peer pressures may have
affected him. Indeed, it ignores that he might have been charged and con-
victed of a lesser offense if not for incompetencies associated with youth—
for example, his inability to deal with police officers or prosecutors (includ-
ing on a plea agreement) or his incapacity to assist his own attorneys.’’
Miller v. Alabama, supra, 567 U.S. 477–78.
Our Supreme Court has characterized Miller as standing for two proposi-
tions: ‘‘(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
evidence as mitigation when deciding whether to irrevocably sentence juve-
nile offenders to a [term of life imprisonment, or its equivalent, without
parole].’’ State v. Riley, supra, 315 Conn. 653. These age related considera-
tions, as described in this footnote, have been colloquially referred to as
the ‘‘Miller factors.’’
2
General Statutes § 51-183c provides: ‘‘No judge of any court who tried
a case without a jury in which a new trial is granted, or in which the judgment
is reversed by the Supreme Court, may again try the case. No judge of any
court who presided over any jury trial, either in a civil or criminal case, in
which a new trial is granted, may again preside at the trial of the case.’’
3
We note that the defendant acknowledges in his appellate brief that the
‘‘Connecticut Supreme Court has previously held that [§ 51-183c] is not
applicable to sentencing proceedings that are the result of a case being
remanded for a new sentencing consistent with a reversal by a reviewing
tribunal.’’ Despite this, he argues tenuously that Miranda is distinguishable
because that case was remanded to the trial court for resentencing pursuant
to the aggregate package theory, whereas the present case was remanded
pursuant to Miller. He also appears to argue that because the defendant in
Miranda ’’essentially sought an advisory opinion’’ from our Supreme Court,
the rationale in Miranda should not be followed in the present case. These
arguments lack merit.
4
In support of his argument, the defendant relies on United States v.
Navarro, 817 F.3d 494, 501–502 (7th Cir. 2016), which cites to United States
v. Ingram, 721 F.3d 35, 40 (2d Cir. 2013) (Calabresi, J., concurring) (dis-
cussing how ‘‘anchoring effects’’ influence judgments and noting that court
‘‘cannot be confident that judges who begin’’ at a higher guidelines range
‘‘would end up reaching the same ‘appropriate’ sentence they would have
reached’’ if they started from lower guidelines range), and multiple articles
about the so-called ‘‘anchoring effect.’’ One of the cited articles explains
that ‘‘[a]nchoring is a cognitive bias that describes the human tendency
to adjust judgments or assessments higher or lower based on previously
disclosed external information—the ‘anchor.’ Studies demonstrate ‘that deci-
sionmakers tend to focus their attention on the anchor value and to adjust
insufficiently to account for new information.’ Cognitive psychology teaches
that the anchoring effect potentially impacts a huge range of judgments
people make. . . . [R]epeated studies show that the ‘anchor’ produces an
effect on judgment or assessment even when the anchor is incomplete,
inaccurate, irrelevant, implausible, or random. When it comes to numbers,
‘[o]verwhelming psychological research demonstrates that people estimate
or evaluate numbers by ‘anchoring’ on a preliminary number and then
adjusting, usually inadequately, from the initial anchor.’’ (Footnotes omit-
ted.) M. Bennett, ‘‘Confronting Cognitive ‘Anchoring Effect’ and ‘Blind Spot’
Biases in Federal Sentencing: A Modest Solution for Reforming A Fundamen-
tal Flaw,’’ 104 J. Crim. L. & Criminology 489, 495 (2014).
5
For example, the court indicated that it was ‘‘going to resentence [the
defendant] in accordance with the instructions of the state of Connecticut
Supreme Court. I’m going to apply the Miller factors.’’ During its colloquy,
the court also indicated that it was ‘‘not here to argue the correctness of
the wisdom of the cases that got us all here, [Roper v. Simmons, 543 U.S.
551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), Graham v. Florida, 560 U.S.
48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), Miller v. Alabama, supra, 567
U.S. 460, Montgomery v. Louisiana, U.S. , 136 S. Ct. 718, 193 L. Ed.
2d 599 (2016)], and the state of Connecticut versus [the defendant]. I mean,
those courts have spoken.’’ The judge made clear that he was ‘‘a servant of
the law’’ and accepted ‘‘the rulings from the next level.’’
6
The defendant also argues in his appellate brief that the due process
clauses of the fifth and fourteenth amendments to the United States constitu-
tion are another basis for recusal, but does not provide a separate analysis
of this distinct aspect of his claim. Instead, he states: ‘‘Because the Code
of Judicial Conduct’s language related to the possibility of partiality is sub-
stantially similar to the United States Supreme Court’s articulation of the
test for whether recusal is required by the due process clauses of the United
States Constitution, the defendant analyzes these two bases for recusal
simultaneously . . . .’’
Although there may be similarities between the two standards, a review
of Supreme Court precedent suggests that they differ. See Rippo v. Baker,
U.S. , 137 S. Ct. 905, 907, 197 L. Ed. 2d 167 (2017) (‘‘[u]nder our
precedents, the Due Process Clause may sometimes demand recusal even
when a judge ha[s] no actual bias’’ [internal quotation marks omitted]);
Williams v. Pennsylvania, U.S. , 136 S. Ct. 1899, 1905, 195 L. Ed.
2d 132 (2016) (‘‘[T]he Court’s precedents apply an objective standard that,
in the usual case, avoids having to determine whether actual bias is present.
The Court asks not whether a judge harbors an actual, subjective bias, but
instead whether, as an objective matter, the average judge in his position
is likely to be neutral, or whether there is an unconstitutional potential for
bias.’’ [Internal quotation marks omitted.]); Withrow v. Larkin, 421 U.S. 35,
47, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975) (recusal required when ‘‘probability
of actual bias on the part of the judge or decisionmaker is too high to be
constitutionally tolerable’’).
We similarly conclude that the circumstances of this case, as we view
them, simply do not rise to a due process violation under the Supreme
Court’s precedents because, objectively considered, they do not pose ‘‘such
a risk of actual bias or prejudgment’’ as to require disqualification. (Internal
quotation marks omitted.) Caperton v. A. T. Massey Coal Co., 556 U.S. 868,
884, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009).
7
Justice Borden dissented in the case. State v. Riley, supra, 140 Conn.
App. 21 (Borden, J., dissenting). He disagreed with each of the majority’s
determinations and concluded that the defendant was entitled to a new
sentencing proceeding. Id., 23–40.
8
We note that our Supreme Court declined to address the defendant’s
Graham claim. It noted that the ‘‘legislature has received a sentencing
commission’s recommendations for reforms to our juvenile sentencing
scheme to respond to the dictates of Graham and Miller. Therefore, in
deference to the legislature’s authority over such matters and in light of the
uncertainty of the defendant’s sentence upon due consideration of the Miller
factors, we conclude that it is premature to determine whether it would
violate the eighth amendment to preclude any possibility of release when
a juvenile offender receives a life sentence.’’ State v. Riley, supra, 315
Conn. 641.
9
The defendant filed a sentencing memorandum to the court dated Octo-
ber 31, 2016, which provided, among other things, a section addressing the
‘‘The Mitigating Characteristics of the Juvenile Brain.’’ In addition, attached
to his memorandum, the defendant provided the court with a copy of the
court support services division’s compilation of reference materials relating
to adolescent psychological and brain development, which are intended to
assist courts in sentencing children. See General Statutes § 54-91g (d).
10
General Statutes § 54-125a (f) (1) provides: ‘‘Notwithstanding the provi-
sions 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.’’
11
General Statutes § 54-91g provides: ‘‘(a) If the case of a child, as defined
in section 46b-120, is transferred to the regular criminal docket of the Supe-
rior Court pursuant to section 46b-127 and the child is convicted of a class
A or B felony pursuant to such transfer, at the time of sentencing, the
court shall: (1) Consider, in addition to any other information relevant to
sentencing, the defendant’s age at the time of the offense, the hallmark
features of adolescence, and any scientific and psychological evidence show-
ing the differences between a child’s brain development and an adult’s brain
development; and (2) Consider, if the court proposes to sentence the child
to a lengthy sentence under which it is likely that the child will die while
incarcerated, how the scientific and psychological evidence described in
subdivision (1) of this subsection counsels against such a sentence.
‘‘(b) Notwithstanding the provisions of section 54-91a, no presentence
investigation or report may be waived with respect to a child convicted of
a class A or B felony. Any presentence report prepared with respect to a
child convicted of a class A or B felony shall address the factors set forth
in subparagraphs (A) to (D), inclusive, of subdivision (1) of subsection (a)
of this section.
‘‘(c) Whenever a child is sentenced pursuant to subsection (a) of this
section, the court shall indicate the maximum period of incarceration that
may apply to the child and whether the child may be eligible to apply for
release on parole pursuant to subdivision (1) of subsection (f) of section
54-125a.
‘‘(d) The Court Support Services Division of the Judicial Branch shall
compile reference materials relating to adolescent psychological and brain
development to assist courts in sentencing children pursuant to this section.’’
12
In his appellate brief, the defendant often uses the phrase, ‘‘Miller fac-
tors,’’ when discussing both the requirements pursuant to § 54-91g and our
Supreme Court’s holding in Riley. See footnote 1 of this opinion. Section
54-91g (a) (1), however, only requires consideration of ‘‘the defendant’s age
at the time of the offense, the hallmark features of adolescence, and any
scientific and psychological evidence showing the differences between a
child’s brain development and an adult’s brain development.’’ The state
makes clear that it does not concede that the statute requires consideration
of every factor set forth in Miller. We need not decide, however, that issue
in this case because, as we explain subsequently, it is clear from the record
that the court considered each of the ‘‘Miller factors.’’
13
The court’s reference to these crimes that took place ‘‘over a period of
months’’ was based, in part, on new information presented to the court by
the prosecution. During the resentencing hearing, the prosecutor made clear
to the court that there was new information before it that was not previously
available to it at the time of the defendant’s original sentencing. Namely,
the prosecutor discussed other crimes, aside from the crimes in the present
case, to which the defendant had pleaded guilty, to wit, a drive-by shooting
that left a fifteen year old boy dead and, on a separate occasion, an incident
where the defendant and others ‘‘proceeded to unload twenty-four rounds
at close range,’’ resulting in one man’s ‘‘permanent paralyzation.’’ The prose-
cutor stated: ‘‘Your Honor didn’t have the benefit of knowing [this informa-
tion] at the time you sentenced him to 100 years in this case. You do have
the benefit now. Not only do you know that [the] other murder happened
before this killing and was pending thereafter, but he subsequently pleaded
guilty to that murder and to the assault.’’
During the court’s colloquy, it went on to address, inter alia, the signifi-
cance of the defendant’s actions on these separate occasions. It stated: ‘‘The
most significant factor in this sentencing is his involvement in the murder
of Tray Davis on Garden Street on November 17, 2006. Other significant
factors are his wounding of two other innocent people on a different day.
Another factor is his murder on a third occasion. These events can’t be
ignored.’’