Date: 04-16-2016

Case Style: STATE OF CONNECTICUT v. VICTOR O.*

Case Number: SC 19459

Judge: Richard N. Palmer

Court: Connecticut Supreme Court

Plaintiff's Attorney: Nancy L. Chupak, David I. Cohen, Paul Ferencek

Defendant's Attorney: Stephan E. Seeger, Igor G. Kuperman

Description: The defendant, Victor O., appeals from the trial court’s denial of his motion to correct an allegedly illegal sentence, which was imposed upon his conviction of, inter alia, sexual assault in the first degree in violation of General Statutes (Rev. to 2001) § 53a-70 (a) (2), as amended by Public Acts 2002, No. 02-138, § 5 (P.A. 02-138).1 He claims that the trial court improperly failed to sentence him to a period of special parole pursuant to § 53a-70 (b) (3), which provides that ‘‘[a]ny person found guilty under [§ 53a-70] shall be sentenced toatermofimprisonmentandaperiodofspecialparole pursuant to subsection (b) of section 53a-282 which together constitute a sentence of at least ten years.’’ (Footnoteadded.)Thestatecontendsthatthesentence that the trial court imposed was proper because § 53a70 (b) (3) does not require a period of special parole; rather, the state maintains, it requires only that any period of special parole that may be imposed shall, along with the accompanying term of imprisonment, constitute a total sentence of not less than ten years. We agree with the state and, accordingly, affirm the trial court’s denial of the defendant’s motion. The following procedural history is relevant to our analysis of the defendant’s claim. On November 17, 2005, following a jury trial, the defendant was found guilty of one count of sexual assault in the first degree in violation of § 53a-70 (a) (2), a class A felony; see General Statutes (Rev. to 2001) § 53a-70 (b) (2), as amended by P.A. 02-138, § 5;3 and two counts of risk ofinjurytoachildinviolationofGeneralStatutes(Rev. to 2001) § 53-21 (a) (2), as amended by P.A. 02-138, § 4. The court presiding over the defendant’s criminal trial rendered judgment in accordance with the jury verdict andsentencedthedefendantto atotaleffectivetermof thirty years imprisonment, execution suspended after fifteen years, and twenty years of probation. More specifically, the court sentenced the defendant to twenty years of incarceration, execution suspended after twelve years, and twenty years of probation with respect to count one (first degree sexual assault), twenty years of incarceration, execution suspended after twelve years, and twenty years of probation with respecttocounttwo(riskofinjury),torunconcurrently with the sentence imposed in connection with count one, and ten years of incarceration, execution suspendedafterthreeyears,andtwentyyearsofprobation with respect to count three (risk of injury), to run consecutively to the sentence imposed in connection with count one. Thedefendantappealedfromthejudgmentofconviction,claiming,interalia,thatthesentencethatthecourt imposed for his conviction of sexual assault in the first degree was illegal because § 53a-70 (b) (3), by its plain terms, requires that persons convicted of that offense
be sentenced to a period of special parole. See 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). In its brief to this court, the state agreed that the court had imposed an illegal sentence but not for the reason asserted bythe defendant. The state argued, rather,thatthecaseshouldberemandedforresentencing because the defendant’s conviction under § 53a-70 (a)(2)wasaclassAfelony,and,underGeneralStatutes § 53a-29 (a),4 probation is prohibited for persons convicted of a class A felony. See State v. Victor O., Conn. Supreme Court Records & Briefs, December Term, 2010, State’s Brief p. 40. The state observed, however, that sexual assault in the first degree under § 53a-70 can be either a class A or class B felony, depending on thecircumstances,andthat,when theoffenseisaclass B felony, § 53a-29 (f)5 expressly authorizes a sentence of probation of ‘‘not less than ten years or more than thirty-five years . . . .’’ The state maintained, therefore, that, contrary to the defendant’s interpretation of the statutory scheme, and § 53a-70 (b) (3) in particular, a sentencing court is authorized to impose a period of probation for a violation of § 53a-70 that is a class B felony, but, for a class A felony violation, the only authorized form of supervised release is special parole. Without any discussion of the parties’ competing interpretations, thiscourt remandedthe casefor resentencing with respect to the defendant’s 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 [with respect to] the defendant’s conviction of sexual assault in the first degree.’’ State v. Victor O., supra, 301 Conn. 193. Thereafter, the trial court resentenced the defendant toatermofimprisonmentoftwelveyearsforhisconvictionofsexualassaultinthefirstdegree.Thedefendant’s sentences on the other two counts remained the same. Accordingly, the defendant’s total effective sentence afterresentencingwasthesameasbeforehisresentencing: thirty years of incarceration, execution suspended after fifteen years, and twenty years of probation. Subsequently, the defendant filed a motion to correct an allegedly illegal sentence in which he claimed that the newsentencewasillegalunder§ 53a-70(b)(3),asinterpreted by this court in State v. Victor O., supra, 301 Conn. 193, because the sentence did not include a period ofspecial parole.The defendantfurther claimed that,becauseanewsentencecannotexceedtheoriginal total effective sentence imposed; see State v. Raucci, 21 Conn. App. 557, 563, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990); and because parole is deemed to be an extension of the original period of incarceration; see State v. Tabone, 292 Conn. 417, 429–
30, 973 A.2d 74 (2009); the trial court was required to deduct the period of special parole mandated by § 53a70 (b) (3) from his original total effective prison sentence, thereby leaving him with fourteen rather than fifteen years to serve. The trial court denied the defendant’s motion. The court concluded that Victor O. did not hold that the defendant’s original sentence was unlawful for the reason advanced by the defendant, namely, that, under § 53a-70 (b) (3), all persons who commit first degree sexual assault must be sentenced to a period of special parole. The court concluded, rather, that the defendant’s sentence was unlawful because it included a period of probation, which is prohibited for persons convicted of a class A felony. The trial court further explained,consistentwiththeinterpretationadvocated by the state, that § 53a-70 (b) (3) simply requires that, in the event that the court elects to impose a split sentenceofincarcerationandspecialparole,asauthorized by General Statutes § 53a-28 (b) (9),6 the minimum combined sentence must total a period of at least ten years. Inreachingitsdetermination,thetrialcourtobserved that, underwell establishedprinciples ofstatutory construction, a legislative scheme must be construed so as to harmonize and give effect to its various parts. The court further observed that, under General Statutes § 54-128 (c),7 a sentence that consists of incarceration followed by a period of special parole cannot exceed the maximum sentence authorized for the underlying offense.Thecourtexplainedthat,underthedefendant’s interpretation of § 53a-70 (b) (3), a sentencing court could never impose the maximum term of imprisonment authorized for a class A felony violation of § 53a70becauseoftherequirementthatthesentenceinclude a period of special parole, which, in combination with anytermofimprisonment,cannotexceedthemaximum allowable sentence. The court concluded that the legislaturereasonablycouldnothaveintendedsucharesult. On appeal to this court,8 the defendant renews the claim he raised in the trial court, namely, that § 53a-70 (b) (3), by its plain and unambiguous terms, and as interpreted by this court in State v. Victor O., supra, 301Conn.193,requiresthathebesentencedtoaperiod of special parole for his conviction of sexual assault in the first degree. We disagree. We first address the defendant’s contention that the issueofstatutoryinterpretationpresentedinthisappeal was decided by this court in State v. Victor O., supra, 301 Conn. 193. This claim merits little discussion. Although, in hindsight, it would have benefited the parties if we had decided the issue in that case, we did not do so in light of the state’s concession that the defendant’ssentencewasillegal.Seeid.Instead,inlight of that concession, we simply remanded the case to
the trial court for resentencing, without considering whether, on remand, the trial court was required to sentence the defendant to a period of special parole. See id. Indeed, our entire discussion of the defendant’s claim relating to his sentence consisted of four sentences at the end of the decision, in which we set forth the claim, the relevant statute, the state’s concession, and our disposition of the case in light of that concession. Id. To the extent that anything we may have said therein can be construed as deciding the somewhat challenging question of statutory interpretation presented by the present appeal, it was not our intention to do so.9 We now turn to that question. Itisaxiomaticthat,inconstruingastatute,theobjective of this court is to ascertain and give effect to the apparent or expressed intent of the legislature. See, e.g., State v. Smith, 317 Conn. 338, 346, 118 A.3d 49 (2015). Toward that end, ‘‘General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to [the broader statutory scheme]. If, after examining such text and considering such relationship,themeaningofsuchtextisplainandunambiguous and does not yield absurd or unworkable results, extratextualevidenceofthemeaningofthestatuteshall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptibletomorethanonereasonableinterpretation. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .’’ (Internal quotation marks omitted.) State v. Pond, 315 Conn. 451, 467, 108 A.3d 1083 (2015). Italsoiswellestablishedthat,‘‘[i]ncasesinwhichmore than one [statutory provision] is involved, we presume that the legislature intended [those provisions] to be read together to create a harmonious body of law . . . and we construe the [provisions], if possible, to avoid conflictbetweenthem.’’(Internalquotationmarksomitted.) Tomlinson v. Tomlinson, 305 Conn. 539, 552, 46 A.3d 112 (2012); see also State v. Tabone, supra, 292 Conn. 434 (‘‘we are bound to harmonize otherwise conflicting statutes to the maximum extent possible without thwarting their intended purpose’’). Aswepreviouslyexplained, § 53a-70(b)(3)provides in relevant part that any person who is found guilty of sexual assault in the first degree under § 53a-70 ‘‘shall be sentenced to a term of imprisonment and a period of special parole . . . which together constitute a sentence of at least ten years.’’ Contrary to the defendant’s contention, we do not believe that § 53a-70 (b) (3) is susceptible of only one interpretation. If one focuses solely on the first clause, as the defendant does, the statute is most reasonably understood to require that
allpersonsconvictedoffirstdegreesexualassaultshall be sentenced to a term of imprisonment and a period of special parole. If, however, one reads the second clause as a restrictive modifier of the first, as the state does, the provision reasonably may be construed as a mandatory minimum sentence provision requiring merely that any sentence of imprisonment and special paroleaddup toaperiodofatleast tenyears.Weagree with the state and the trial court that, when the statute is read in relation to the broader sentencing scheme, it becomes evident that the second interpretation is the more reasonable one because it harmonizes the statutory scheme into a coherent and cohesive whole, whereas the interpretation advocated by the defendant creates ambiguity within that scheme. Asthestatecontends,construing§ 53a-70(b)(3)asa minimum sentencing provision rather than as requiring special parole in all cases avoids two fundamental conflicts. First, it avoids a conflict with General Statutes § 53a-35a (4),10 which, with exceptions inapplicable to this case, authorizes a maximum term of imprisonment of twenty-five years for persons convicted of any class A felony. As the trial court explained, if we were to adopt the defendant’s interpretation of § 53a-70 (b) (3), a sentencing court never could impose that sentence on a person convicted of violating § 53a-70 because of the requirement of § 54-128 (c) that the length of the combinedsentenceofimprisonmentandspecialparole not exceed the maximum sentence authorized for the underlying offense. The second interpretation also avoidsaninconsistencyin§ 53a-29(f),whichexpressly authorizesthetrialcourttosentencepersonsconvicted ofcertainviolationsof§ 53a-70toatermofprobation.11 SeeGeneralStatutes§ 53a-29(f)(‘‘[t]heperiodofprobation, unless terminated sooner as provided in section 53a-32, shall be not less than ten years or more than thirty-five years for conviction of a violation of . . . section 53a-70’’). As the state maintains, were we to adopt the defendant’s interpretation of § 53a-70 (b) (3) as requiring special parole in all cases, it would effectivelynullifytheportionof§ 53a-29(f)expresslyauthorizing probation in some of those cases, which would be in contravention ofthe rule that, whenever possible, we must read statutes to avoid ‘‘conflict that would result in a nullification of one by the other . . . .’’12 (Internal quotation marks omitted.) Stern v. Allied Van Lines, Inc., 246 Conn. 170, 179, 717 A.2d 195 (1998); see also Franco v. East Shore Development, Inc., 271 Conn. 623, 632, 858 A.2d 703 (2004) (in absence of any indication that one statute was intended to supersede or to nullify another, we read two provisions to give both of them effect). Our interpretation also comports with the legislative history surrounding § 53a-29 (f) and General Statutes § 54-125e, the special parole statute. As this court previously has explained, prior to 1995, ‘‘the maximum
term of probation for . . . a violation of § 53a-70 . . . wasfiveyears.See[e.g.]GeneralStatutes(Rev.to1985) § 53a-29 (d). In 1995, the legislature, in response to a growing concern about sex offender recidivism, amended . . . § 53a-29 . . . by enacting No. 95-142, § 2, of the 1995 Public Acts, to require the term of probation to be set at not less than ten nor more than thirty-five years for a defendant convicted of violating § 53a-70.’’ (Footnote omitted.) State v. Kelly, 256 Conn. 23, 89, 770 A.2d 908 (2001). Thereafter, in 1998, ‘‘[t]he legislature created the concept of ‘special parole’ as a new sentencing option . . . by enacting § 54-125e. See Public Acts 1998, No. 98-234, § 3 [P.A. 98-234].’’ State v. Boyd, 272 Conn. 72, 78, 861 A.2d 1155 (2004). The legislativehistorysurrounding§ 54-125e‘‘indicatesthat it was intended to operate as a sentencing option in cases [in which] the judge wanted additional supervision of a defendant after the completion of his prison sentence.MichaelMullen,thechairmanoftheConnecticut [B]oard of [P]arole, testified before the [J]udiciary [C]ommitteeanddescribedspecialparoleasa‘sentencing option [that] ensures intense supervision of convicted felons after they’re released to the community and allows the imposition of parole stipulations on . . . releasedinmate[s] toensuretheir successfulincremental [reentry] into society or if they violate their stipulations, speedy [reincarceration] before they commit [other]crime[s].’ ’’(Emphasisomitted.)Id.,79n.6,quoting Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 1998 Sess., p. 1013. Atthesametimethatitenacted§ 54-125e,thelegislature amended § 54-128 to provide that a sentence consisting of a term of imprisonment followed by a period of special parole ‘‘shall not exceed the maximum sentence of incarceration authorized for the offense for whichthepersonwasconvicted.’’P.A.98-234,§ 4,codified at General Statutes § 54-128 (c). As we explained inState v.Tabone,supra,292Conn.417,thelegislature, inenacting§ 54-125e‘‘intendedtopermittheimposition of special parole as a sentencing option [that] ensures intense supervision of convicted felons after [they are] released to the community and allows the imposition of parole stipulations on the released inmate. At the same time, the legislature intended to prevent the trial court from sentencing a defendant to a term of imprisonment and to a period of special parole, the total combined length of which exceeds the maximum sentence of imprisonment for the offense [of] which the defendant was convicted.’’13 (Internal quotation marks omitted.) Id., 434–35. ‘‘It is clear, therefore, that the legislature intended that special parole, as a form of supervised release, should be available to trial courts, providedthatitsimposition,incombinationwithaterm of incarceration, does not exceed the maximum statutory period of incarceration permitted by law.’’ Id., 435. Asoriginallyenacted,subsection(c)of§ 54-125epro
vided that ‘‘[t]he period of special parole shall be not less than one year nor more than ten years except that such period shall be not less than ten years nor more than thirty-five years’’ for persons who committed certain offenses, including first and second degree sexual assault. P.A. 98-234, § 3, codified at General Statutes (Rev. to 1999) § 54-125e (c).14 This provision mirrored the requirement of § 53a-29 (f)—then General Statutes (Rev.to1999)§ 53a-29(e)—thattheperiodofprobation for firstand seconddegree sexualassault, amongother crimes, be ‘‘not less than ten years or more than thirtyfive years . . . .’’ General Statutes § 53a-29 (f). Within oneyearofitsenactment,however,itbecameapparent that the ten year mandatory minimum requirement of General Statutes (Rev. to 1999) § 54-125e (c), when added to the nine month mandatory minimum prison sentence for second degree sexual assault; see General Statutes (Rev. to 1999) § 53a-71 (b); exceeded the ten year maximum sentence authorized for second degree sexual assault under § 54-128 (c). See State v. Tabone, 279Conn.527,543–44,902A.2d1058(2006)(discussing conflict between General Statutes [Rev. to 1999] § 54125e [c] and § 54-128 [c], as applied to General Statutes [Rev. to 1999] § 53a-71). To remedy this problem, and to prevent others like it from occurring, the legislature passed Public Acts, Spec. Sess., June, 1999, No. 99-2, § 52 (Spec. Sess. P.A. 99-2), which amended General Statutes (Rev. to 1999) § 54-125e (c)15 to make the imposition of a term of special parole of more than ten years discretionary rather than mandatory. See State v. Tabone, supra, 292 Conn. 435–36 (‘‘the legislature, in apparent recognition of the confusion it had created upon enacting [General Statutes (Rev. to 1999)] § 54-125e [c], amended that statuteshortlyafteritsenactmenttoremovethemandatory minimum period of special parole’’). Specifically, Spec. Sess. P.A. 99-2, § 52, amended General Statutes (Rev. to 1999) § 54-125e (c) to provide that the period of special parole for the specified offenses ‘‘may be for morethantenyears’’ratherthanprovidingthatit‘‘shall be not less than ten years nor more than thirty-five years . . . .’’ (Emphasis added.) Spec. Sess. P.A. 99-2, § 52. In the same public act, the legislature amended General Statutes (Rev. to1999) § 53a-70 (b)16 to include the language at issue in this appeal. See Spec. Sess. P.A. 99-2, § 49,17 codified at General Statutes (Rev. to 2001) § 53a-70 (b). The legislature added similar language to General Statutes (Rev. to 1999) § 53a-70a18 (aggravated sexual assault in first degree) and General Statutes (Rev. to 1999) § 53a-72b19 (third degree sexual assault with firearm). See Spec. Sess. P.A. 99-2, §§ 50 and 51. In all three statutes, the language was added to the section of the statute containing the nonsuspendable portion of a defendant’s sentence. Although our research has not revealed any legislative history explaining the rationale for these amend
ments, it is well established that, ‘‘[i]n determining the true meaning of a statute when there is genuine uncertaintyastohowitshouldapply,identifyingtheproblem in society to which the legislature addressed itself by examining the legislative history of the statute under litigation is helpful.’’ State v. Campbell, 180 Conn. 557, 562, 429 A.2d 960 (1980). In the present case, the problem that the legislature sought to address in 1999 when it amended General Statutes (Rev. to 1999) § 54-125e (c) was the irreconcilable conflict between that provision and the requirement of § 54-128 (c) that the total combined period of imprisonment and special parole not exceed the maximum authorized sentence for an offense. Because there is no indication that the legislature had any other purpose in amending General Statutes (Rev. to 1999) § 54-125e (c), the most likely reason for the simultaneous amendments to General Statutes (Rev. to 1999) §§ 53a-70, 53a-70a and 53a-72b was to ensure that, notwithstanding the change to General Statutes(Rev.to1999)§ 54-125e(c),whichwasneeded to harmonize certain provisions of the new special parole statute, persons who commit the most serious sexual offenses would remain subject to a longer minimum periodof specialparole incases in whichthe trial court chooses to impose such a sentence on them. This interpretation is sensible not only because it comports with the original intent of § 54-125e (c), that is,requiringalongerperiodofspecialparoleforcertain offenses, but also because we do not believe that the legislature would, in so cryptic a fashion, turn what was intended to be a new sentencing option into a sentencing directive without any discussion of its reasons for doing so. We agree with the state, moreover, that tying a sentencing court’s hands in this manner— that is, limiting it to a single punishment for persons convicted of first degree sexual assault—runs counter to the legislative intent, reflected throughout the sentencing scheme, that sentencing courts be afforded ‘‘wide discretion to tailor a just sentence in order to fit a particular defendant and his crimes’’; (internal quotation marks omitted) State v. Johnson, 316 Conn. 34, 40, 111 A.3d 447 (2015); and be provided with an array of tools with which to exercise such discretion. See, e.g., GeneralStatutes§ 53a-28(b)(authorizingninedifferent sentencesfromwhichtrialcourtmaychooseinsentencing convicted persons). We also can perceive no reason, and the defendant has proffered none, why the legislature, having extended the maximum period of supervised release for sexual offenders to thirty-five years, would reduce by almost 50 percent (seventeen years) the amount of time that the most serious sexual offenders are subject to supervised release. That is precisely what would occur, however, if we were to adopt the defendant’s interpretation of § 53a-70 (b) (3).20 To the extent that the defendant contends that the legislature may have
intended this anomalous result because special parole allows for more intensive supervision of convicts after they are released from prison, we are not persuaded. Although it may be true that the terms of release for special parolees are more restrictive than they are for probationers in the short term, it is undisputed that probation exposes a defendant to imprisonment for a much longer period of time, arguably making it, depending on one’s perspective, a considerably more onerous punishment.21 For this reason, and for the reasons that we previously discussed, we conclude that the trial court correctly determined that § 53a-70 (b) (3) does not mandate that persons convicted of first degreesexualassaultbesentencedtoaperiodofimprisonment and special parole; it provides, rather, that, if the court elects to impose such a sentence, then the total combined period of imprisonment and special parole must total at least ten years.22

Outcome: In reaching our conclusion, we are mindful that our rather intricate sentencing scheme is not always a model of clarity and that sometimes it is difficult to ascertain the rationale under lying all of its components. Nevertheless, it is our duty to seek to reconcile that schemeintoacoherentsystem,inamannerthateffectuates, to the greatest extent possible, the legislative intentbehindthescheme.Webelievethatwehavedone so in the present case. The trial court’s denial of the defendant’s motion to correct an illegal sentence is affirmed.

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