Date: 07-09-2016

Case Style: STATE OF CONNECTICUT v. MARK BANKS

Case Number: SC 19246

Judge: Carmen Espinosa

Court: Connecticut Supreme Court

Plaintiff's Attorney:

Gail P. Hardy, state’s attorney

Defendant's Attorney:

Daniel J. Foster

Description: In this certified appeal1 we consider whether the Appellate Court properly resolved a series of claims that the defendant, Mark Banks, raises in connection with General Statutes (Rev. to 2009) § 54102g,2 which authorizes the Commissioner of CorrectiontocollectDNAsamplesfromcurrentlyincarcerated felons in order to maintain a DNA data bank to assist in criminal investigations. The defendant appeals, following our grant of certification, from the judgment of the Appellate Court affirming both the trial court’s judgment granting the state permission to use reasonable physical force to obtain a DNA sample from the defendantandthejudgmentofconvictionrenderedfollowing the defendant’s refusal to submit to the taking of a blood or other biological sample for DNA analysis in violation of § 54-102g (g). State v. Banks, 143 Conn. App. 485, 487–88, 71 A.3d 582 (2013). The defendant contends that the Appellate Court: (1) improperly concluded that the trial court had authority to grant the state permission to use reasonable physical force in obtaining a DNA sample from him prior to the 2011 amendment to § 54-102g that incorporated a provision authorizing the state to use such force; see Public Acts 2011, No. 11-144, § 1 (P.A. 11-144); and (2) incorrectly determined that § 54-102g, as applied to the defendant, did not violate his due process rights and the ex post factoclauseofthefederalconstitution.SeeU.S.Const., art. I, § 10. We conclude that the Appellate Court properly resolved both of the defendant’s claims and therefore affirm the judgment of the Appellate Court. The following facts and procedural history are relevant to the resolution of this appeal. In 1997, following a jury trial, the defendant was convicted of four counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), four counts of kidnapping in the first degree in violation of General Statutes § 53a92, and two counts of criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 1995) § 53a-217c for robberies committed in 1995. See State v. Banks, 59 Conn. App. 112, 113, 755 A.2d 951, cert. denied, 254 Conn. 950, 762 A.2d 904 (2000). On December 19, 1997, the trial court sentenced the defendant to fifteen years incarceration to run consecutively withasentencethedefendantwasalreadyservingfrom a prior conviction. The defendant has remained incarcerated since his 1997 convictions. In his brief to this court, the defendant states that onDecember8and29,2009,personnelfromtheDepartmentofCorrection(department)instructedhimtosubmit to the taking of a DNA sample pursuant to § 54102g (a), but that he refused to comply. On March 17, 2010, department personnel again instructed the defendant and nine other inmates to provide DNA samples inaccordancewiththestatute.Thedefendantremained
steadfast in his refusal to submit to the taking of a DNA sample. On May 19, 2010, the state filed a motion in the trial court seeking permission to use reasonable physical force to collect a DNA sample from the defendant and a fellow inmate, Roosevelt Drakes,3 who had likewise refused to submit a sample. The state cited § 54-102g as the authority for its motion. The defendant opposed the state’s motion, arguing that if he refused to submit a DNA sample for inclusion in the DNA data bank, the only recourse available to the state was to prosecute him pursuant to § 54-102g (g) for refusal to provide a bloodorotherbiologicalsampleforDNAanalysis.4 The defendant further argued that he was not required to submitaDNAsamplebecauseatthetimeofhisconvictions in 1997, General Statutes (Rev. to 1997) § 54-102g applied only to those persons convicted of certain sex offenses and did not apply to incarcerated felons, such asthedefendant,untilthelegislatureamendedthestatute in 2003. See Public Acts 2003, No. 03-242, § 1 (P.A. 03-242).Accordingly,thedefendantclaimedthatrequiring him to provide a DNA sample would constitute an addedpunishmenttohisoriginalsentenceandrunafoul of the ex post facto clause. On February 8, 2011, the trial court, Mullarkey, J., issued a written memorandum of decision rejecting the defendant’s claims and granting the state’s motion for permission to use reasonable physical force to collect aDNAsamplefromthedefendant.ThetrialcourtdeterminedthatsubmittingtothetakingofaDNAsamplefor thepurposesof§ 54-102gwasanonpunitive,regulatory measurethatdidnotaffectthedefendant’soriginal1997 sentence and, therefore, that the trial court had subject matter jurisdiction over the state’s motion. Likewise, because the trial court determined that § 54-102g is regulatory in nature, it concluded that the statute did not run awry of the ex post facto clause. Additionally, after examining the text and legislative history of § 54102g, the court determined that the statute necessarily included the option of enforcing compliance through reasonable force, because allowing incarcerated felons to simply refuse to provide DNA samples would substantially frustrate the legislature’s goal of creating a comprehensiveDNAdatabanktoaidincriminalinvestigations. Thedefendant appealedto theAppellate Court from the trial court’s decision.5 Subsequently,thedefendantwaschargedviaasubstitute information with refusal to submit to the taking of a blood or biological sample for DNA analysis in violation of § 54-102g (g) for his March 17, 2010 refusal. The defendantmovedtodismissthechargeand,atahearing beforethetrialcourt,Carbonneau,J.,presentedsimilar arguments to those he previously presented in opposition to the state’s motion to use physical force, namely, that application ofthe statute would violatethe ex post
facto clause as applied to him. The trial court adopted the reasoning of Judge Mullarkey in his memorandum of decision, concluded that the taking of a DNA sample was not a penalty and denied the defendant’s motion to dismiss. Following a bench trial, the defendant was found guilty and sentenced to one year incarceration, consecutive to his existing sentences. The defendant filed a separate appeal to the Appellate Court from the judgment of conviction. The Appellate Court considered the defendant’s consolidatedappealsandultimatelyupheldboththedefendant’sconvictionandthetrialcourt’sgrantofthestate’s motion for permission to use reasonable physical force in obtaining a DNA sample from the defendant. State v. Banks,supra,143Conn.App.485,487–88.Thedefendant argued that: (1) the trial court lacked subject matter jurisdiction to consider the state’s motion; (2) § 54102g, as applied to him, violated his due process rights andtheexpostfactoclause;(3)thelegislature,although it had amended § 54-102g in 2011 to authorize the use of reasonable force to obtain a DNA sample; P.A. 11144; did not intend that amendment to have retroactive effect;and (4)priorto 2011,§ 54-102gdid notauthorize the departmentto usereasonable force. State v. Banks, supra, 492, 508. The Appellate Court, largely adopting the reasoning of the trial court’s memorandum of decision, concluded that § 54-102g is regulatory rather than punitive in nature and, therefore, that the trial court had jurisdiction to consider the state’s motion and that application of the statute to the defendant did not violate his due process rights or contravene the ex post facto clause. Id., 499, 508–10. In analyzing the text and history of § 54-102g, the Appellate Court determined that the statute was not applied retroactively to the defendant and that, as the trial court concluded, the statuteauthorizedtheuseof reasonableforcetoobtain a DNA sample from those who refused to willingly submit one. Id., 507. We thereafter granted the defendant’s petition for certification to appeal. See footnote 1 of this opinion. Prior to addressing the defendant’s substantive claims, we provide an overview of the history of the statutory scheme which underlies the defendant’s claims. The current revision of § 54-102g (b) requires DNAsamplestobecollectedfromallpersonsconvicted of a felony, among others. When initially enacted in 1994, however, the statute only required the collection of DNA samples from persons convicted of certain sex offenses. Public Acts 1994, No. 94-246, § 1; see General Statutes (Rev. to 1995) § 54-102g. The statute was further amended in 1999 to extend the DNA collection requirementstoindividualswhohadcommittedacriminal offense against a victim who was a minor. Public Acts 1999, No. 99-183, § 1. In 2003, the legislature expandedthescopeofthestatutetorequireallincarcerated felons to submit a DNA sample for inclusion in
the state DNA data bank. See P.A. 03-242, § 1. The 2003 amendment broadening the category of those subject to § 54-102g is the source of the defendant’s present appeal.6 I A Wefirstaddressthedefendant’sclaimthattheAppellate Court incorrectly concluded that the trial court properly granted the state’s motion for permission to use reasonable physical force as a means of obtaining asampleofthedefendant’sDNA. Statev. Banks,supra, 143 Conn. App. 507. The defendant contends that § 54102gispenalratherthanregulatoryinnatureand,therefore, that the trial court was without jurisdiction because the defendant was already serving the sentences for his underlying criminal convictions. The state avers that § 54-102g is not punitive in nature and that the trial court properly had jurisdiction to consider the state’s motion given that the court’s actions would not affectthedefendant’soriginalsentences.Weagreewith the state. In the most fundamental sense, subject matter jurisdiction ‘‘involves the authority of a court to adjudicate the type of controversy presented by the action before it.’’(Internalquotationmarksomitted.)Statev.Fowlkes, 283Conn.735,739,930A.2d644(2007).Itiswellsettled that, in criminal matters, ‘‘[t]he jurisdiction of the sentencing court terminates when the sentence is put into effect, and that court may no longer take any action affecting the sentence unless it has been expressly authorizedtoact.’’(Emphasisinoriginal;internalquotationmarksomitted.)State v. Waterman,264Conn.484, 491, 825 A.2d 63 (2003). When determining whether a trialcourtproperlyhadsubjectmatterjurisdictionover an action, we recognize that ‘‘every presumption favoringjurisdictionshouldbeindulged.’’(Internalquotation marks omitted.) State v. Fowlkes, supra, 739. We exercise plenary review over questions of a court’s subject matter jurisdiction. Id., 738. The critical question in determining whether a court maytakeactionaffectingadefendant’ssentencefollowing its imposition is whether the requested action is punitive in nature. If the requested action ‘‘is not punitive in nature, then a defendant’s sentence is not affected,and thetrial courthas jurisdictiontotake that action. If it is punitive, then a defendant’s sentence is affected, and the trial court lacks jurisdiction to take that action.’’ (Emphasis in original.) Id., 740. In State v. Waterman, supra, 264 Conn. 484, we addressed a similar jurisdictional claim to that raised by the defendant in the present case. In that case, the defendant challenged the jurisdiction of the trial court to make a finding following the defendant’s sentencing that he must register as a sex offender pursuant to General
Statutes § 54-251, a provision in Connecticut’s version of Megan’s Law, General Statutes § 54-250 et seq. State v. Waterman, supra, 488. The defendant argued that registering as a sex offender was a punitive measure and that the court was without jurisdiction to order him to register, as he had already begun serving the sentence for his underlying convictions. Id., 489. We employed a two part test to determine whether the requirements of a statute are punitive in nature: ‘‘[U]nder the first part of the test, the court examine[s] whetherthelegislatureha[s]intendedthestatute[under consideration] to be criminal or civil, in other words, punitive in law. . . . Under the second part of the test, the . . . court consider[s] whether, even if not punitive inlaw,thestatute[is] neverthelesspunitiveinfact,that is, whether the statute [is] so punitive in fact that it [cannot] be seen as civil in nature.’’ (Internal quotation marks omitted.) State v. Fowlkes, supra, 283 Conn. 741; State v. Waterman, supra, 492–93; see also State v. Kelly, 256 Conn. 23, 92, 770 A.2d 908 (2001). We determined that the requirements of Megan’s Law were ministerial only; State v. Waterman, supra, 497; and relied on the conclusions of the United States District Court for the District of Connecticut in a previous challenge to the same law that neither the text of the statute nor the legislative history evinced a punitive purpose. Id., 493–94; see Doe v. Lee, 132 F. Supp. 2d 57, 67–68 (D. Conn.), aff’d sub nom. Doe v. Dept. of Public Safety ex rel. Lee, 271 F.3d 38 (2d Cir. 2001), rev’d on other grounds sub nom. Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S. Ct. 1160, 155 L. Ed. 2d 98 (2003). Furthermore, the statute did not necessitate modifying, opening, or correcting the defendant’s original sentence in order to ensure the defendant’s compliance with the registration requirements. State v. Waterman, supra, 497. We therefore concluded that the registration requirements of Megan’s Law are regulatory in nature and not punitive. Id., 489. Accordingly, we determined that the trial court had jurisdiction to order the defendant’s registration as the requirement did not affect the defendant’s original sentence. Id., 498. Like the similar claim in Waterman, the defendant’s argument that the trial court did not have jurisdiction tograntthestate’smotionforpermissiontousereasonableforcebecause§ 54-102gconstitutesapenaltymust fail. After our review of § 54-102g, we conclude that the Appellate Court properly determined that the requirements in the statute to provide DNA samples are not punitiveinnatureand,therefore,thetrialcourtproperly had subject matter jurisdiction to consider the state’s motion. Under the first part of our analysis, we examine the statutory text and conclude that the legislature did not intend for DNA collection to be punitive in the context of the statutory scheme that encompasses § 54-102g. In determining the legislative purpose of a statute, we
employ thefamiliar rules of statutoryconstruction. See Lieberman v. Aronow, 319 Conn. 748, 756–57, 127 A.3d 970 (2015); In re Tyriq T., 313 Conn. 99, 104–105, 96 A.3d 494 (2014). Our analysis of § 54-102g is therefore guided by General Statutes § 1-2z and standard principles of statutory construction. As both the trial court and the Appellate Court observed, § 54-102g (f) demonstrates that the purpose of the statute is to further the nonpunitive goal of maintaining a DNA data bank to assist in criminal investigations: ‘‘The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained . . . in a DNA data bank and shall be made available only as provided insection54-102j.’’GeneralStatutes(Rev.to2009)§ 54102g(f).Weagreethattheoverallpurposeofthestatute is not to punish those convicted of crimes by requiring them to submit a DNA sample, but to use DNA as a means of aiding law enforcement investigations. See Maryland v. King, U.S. , 133 S. Ct. 1958, 1966, 186L.Ed.2d1(2013)(‘‘[L]awenforcement,thedefense bar, and the courts have acknowledged DNA testing’s unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices.’’ [Internal quotation marks omitted.]). Indeed, the other provisions of the statutory scheme demonstrate that the collection of DNA samples is for regulatory rather than punitive purposes. For example, thestatutoryschemecontainsprovisionsregulating:the manner in which DNA samples are collected; General Statutes § 54-102h; the manner in which the analysis of DNAsamplesistobeconducted;GeneralStatutes§ 54102i;andthelegitimatepurposesforwhichinformation in the DNA data bank may be used. General Statutes § 54-102j. Likewise, the statutory scheme contains provisionsthat:outlinepenaltiesformisuseofinformation in the DNA data bank; General Statutes § 54-102k; provide for the destruction of DNA data bank information uponaperson’sexoneration;GeneralStatutes§ 54-102l; and create a DNA Data Bank Oversight Panel charged withsafeguardingtheinformationintheDNAdatabank and the privacy of individuals registered therein. General Statutes § 54-102m. All of these provisions further the regulatory purpose and ensure that the DNA data bankisusedonlyinaccordancewithitsproperpurpose of assisting in criminal investigations. Notably, all fifty states have enacted statutes similar to Connecticut’s that require convicted felons to submit a DNA sample in order to aid in criminal investigations. Maryland v. King, supra, 133 S. Ct. 1968. In challenges to those statutoryschemes,oursistercourtshaveregularlyheld that the collection of DNA in this context is regulatory andnotpunitive.7 Accordingly,§ 54-102gisnotpunitive in law. Althoughweconcludethat§ 54-102gisnotpunitivein
law, under the second part of our analysis, we consider whether the statute may be ‘‘ ‘punitive in fact’ ’’ if the punitive effect of the statute is so substantial that it swallows the regulatory or civil purpose of the statute. State v. Waterman, supra, 264 Conn. 492–93. When inquiring whether a statute is actually punitive in fact, we examine the factors first outlined by the United States Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963); see State v. Alexander, 269 Conn. 107, 118, 847 A.2d970(2004).Thesefactorsincludewhetherthechallengedaction‘‘hashistoricallybeenregardedaspunishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditionalaimsofpunishment—retributionanddeterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationallybeconnectedisassignableforit,andwhether it appears excessive in relation to the alternative purpose assigned . . . .’’ (Footnotes omitted.) Kennedy v. Mendoza-Martinez, supra, 168–69. We recognize that these factors ‘‘are all relevant to the inquiry, and may often point in differing directions.’’ Id., 169. Additionally, ‘‘[s]ometimes one factor will be considered nearly dispositive of punitiveness in fact, while sometimes another factor will be crucial to a finding of nonpunitiveness.’’ (Internal quotation marks omitted.) State v. Kelly, supra, 256 Conn. 93. In concluding that § 54-102g is not punitive in fact, the Appellate Court rejected the defendant’s claim that because refusal to submit a DNA sample can result in a criminal prosecution pursuant to § 54-102g (g) the statute is necessarily punitive in its effect. State v. Banks, supra, 143 Conn. App. 498–99. We agree with the Appellate Court’s determination that a statutory provisionthatsubjectsapersontoprosecutionfornoncompliance does not automatically convert an otherwiseregulatorystatutoryschemeintoapenalstatute.At thetimethedefendantinthepresentcasewascharged, § 54-102g (g) provided that any person who failed to submit to the taking of a DNA sample was guilty of a class A misdemeanor. See footnote 4 of this opinion. Megan’sLawcontainsseveralprovisionssimilarto§ 54102g (g) whereby a person who is required to register as a sex offender, yet fails to do so, is guilty of a class Dfelony.SeeGeneralStatutes §§ 54-251(e),54-252(d), 54-253 (e) and 54-254 (b). In State v. Kelly, supra, 256 Conn. 94, we concluded that the registration requirements of Megan’s Law, despite the existence of penalty provisions, were regulatory rather than punitive in nature. The penalty for failure to submit a DNA sample is no greater than the penalty for failure to register as a sex offender and the defendant offers no reason as to why that penalty is any more burdensome in this context. Accordingly, consistent with our decision in Kelly, the penalty provision of § 54-102g (g) does not
render the entire statutory scheme punitive in fact. OurexaminationoftheotherMendoza-Martinezfactors does not lead us to the conclusion that § 54-102g is punitive in fact. We are unaware of any tradition that considers the submission of a DNA sample to be a historically recognized punishment and the defendant offers no support for such a proposition.8 Likewise, requiring convicted felons to submit to the taking of a DNAsampleinnowayfurtherstheretributiveordeterrent goals of punishment for their underlying crimes. ThepurposeofcollectingDNAsamplesisnottopunish felons for their underlying crimes or to deter future criminals,buttobolstertheusefulnessoftheDNAdata bank in criminal investigations.9 The statutory scheme furthersthispurposebyonlyimposingaminimalinconvenience on those who must submit DNA samples and thereafter safeguards the interests of those in the data bank via the DNA Data Bank Oversight Panel and the destruction of DNA records upon exoneration. The goals expressed in the statute and the operative statutorymechanismsbywhichtheyaretobecarriedoutare inconsistentwiththegoalsofpunishment.Wetherefore conclude that the Appellate Court properly determined that § 54-102g is not punitive in fact under the factors setforthinMendoza-Martinez.Asthestatuteisneither punitive in law or in fact and therefore does not affect the defendant’s original sentences, the Appellate Court wascorrectinitsconclusionthatthetrialcourtproperly had subject matter jurisdiction over the state’s motion seeking permission to use reasonable physical force to obtain a DNA sample from the defendant. B Although the trial court was vested with jurisdiction to consider the state’s motion, we must next determine whether the trial court properly granted the state’s motionforpermissiontousereasonablephysicalforce. At the time of the state’s motion, § 54-102g contained noprovisionsexplicitlyoutliningtheremediesavailable to the department should an incarcerated felon refuse to willingly submit to the taking of a DNA sample. The legislaturesubsequentlyamendedthestatutetospecifically allow department personnel to use reasonable force to obtain samples from those who refuse to do so. See P.A. 11-144. Thus, we must determine whether, priortothelegislature’samendment,itwaspermissible for the trial court to authorize the state to use reasonable physical force to obtain a sample of the defendant’s DNA. Initsmemorandumofdecisiononthestate’smotion, thetrialcourtinitiallyconcludedthattheplainmeaning of§ 54-102gisclearinthattheDNAsamplerequirement ismandatory.Thecourtobserved,however,thatatthat point in time, the statute did not expressly provide for the use of reasonable force in the event of an individual’s refusal to submit a sample. The defendant argued
that the statute’s silence evinced an inability to implementforceasameans ofobtainingthesamplewhereas thestatearguedthatiftheuseofreasonableforcewere not permissible then the entire purpose of the statute wouldberenderedmeaninglessbytheabilityofinmates to refuse sampling. Determining that both interpretationswereplausible,thetrialcourtconcludedthat§ 54102g is ambiguous within the meaning of § 1-2z and proceeded to review the relevant legislative history, which provided no clarity on the use of reasonable force in this context. The trial court ultimately determined that the use of reasonable force to obtain a DNA sample was inherent in the statute because: (1) the legislature’ssilenceonthetopiccouldnotbeconstrued as evidence of legislative intent to the contrary; (2) it wasdepartmentpolicytoseekacourtorderauthorizing reasonable force in the event of an individual’s refusal and the legislature had not addressed that question despite making interim revisions to the statute; and (3) theoverallpurposeofthestatutewouldbesubstantially frustrated otherwise. Accordingly, the trial court granted the state’s motion. The Appellate Court affirmed the trial court’s decision,holdingthatthedepartment’sabilitytousereasonable force to obtain a DNA sample is implicit in the statute as its fundamental purpose would be subverted otherwise. State v. Banks, supra, 143 Conn. App. 505– 507. Furthermore, the Appellate Court observed that the legislature had since amended the statute to permit theuseofreasonableforce,therebyclarifyingthemeaning of the original statute. Id., 507–508; see P.A. 11-144, § 1. On appeal before this court, the defendant argues that the Appellate Court erred in its interpretation of the statute, and that, prior to its 2011 amendment, § 54102g contained no authority, implicit or otherwise, to usereasonableforcetoobtainaDNAsample.Thestate argues in response that the Appellate Court properly upheld the trial court’s reading of the statute and that to hold otherwise would severely undercut the legislature’s goals in enacting § 54-102g. We disagree with the defendant’s argument and conclude that the Appellate Court correctly upheld the trial court’s interpretation of the statute. As the defendant’s claim presents us with a question of statutory interpretation, we are guided by § 1-2z and the standard precepts of statutory construction. See Lieberman v. Aranow, supra, 319 Conn. 756–58. General Statutes (Rev. to 2009) § 54-102g (a) provides in relevantpartthat‘‘[a]nypersonwhohasbeenconvicted of a . . . felony . . . shall, prior to release from custodyandatsuchtimeasthe[C]ommissioner[ofCorrection] may specify, submit to the taking of a blood or other biological sample for DNA . . . analysis . . . .’’ Although the statute was, at the time of the state’s motion, silent on the question of the department’s use of reasonable force to obtain a DNA sample, the state
contends that the legislature’s use of the word ‘‘shall’’ inthelanguageofthestatutedenotesamandatoryduty on the part of an individual to submit to the taking of a DNA sample upon the request of the department. We recognize that ‘‘the legislature’s use of the word ‘shall’ suggests a mandatory command,’’ and yet ‘‘the word ‘shall’ is not [necessarily] dispositive on the issue of whether a statute is mandatory.’’ Southwick at Milford Condominium Assn., Inc. v.523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 319–20, 984 A.2d 676 (2009). Thus, the proper question in determining whether a statute is mandatory is ‘‘whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience.’’ (Internal quotation marks omitted.) United Illuminating Co. v. New Haven, 240 Conn. 422, 465, 692 A.2d 742 (1997). The use of the word ‘‘required’’ along with ‘‘shall’’ in the text of the statute seems to imply that submitting to the taking of a DNA sample is mandatory. More tellingly, the objective at the heart of § 54-102g is the DNA data bank, the creation and efficacy of which would be substantially impeded without the collection of DNA samples from those persons covered by the statute. Thus, the submission of DNA samples by convicted felons is certainly a matter of substance rather than one of mere convenience, as fulfillment of the statute’sgoalswouldbeutterlyhinderedbyanindividual’s refusal to submit a DNA sample. Although the plain language of the statute clearly suggests that § 54-102g imposes a mandatory obligation on an individual to submit to the taking of a DNA sample, the mandatory language of the statute does not address the crux of the defendant’s claim, namely whether the statute authorizes the use of reasonable force to obtain a sample from an unwilling individual. Although we observe that ‘‘statutory silence does not necessarily equate to ambiguity’’; (internal quotation marks omitted) Hartford/Windsor Healthcare Properties, LLC v. Hartford, 298 Conn. 191, 198, 3 A.3d 56 (2010); the state and the defendant offer vying interpretations of the statute in this regard. We therefore conclude, as the trial court and Appellate Court did, that the statute is ambiguous and that we must turn to its legislative history to aid in our analysis. See State v. Banks, supra, 143 Conn. App. 505. Both the trial court and the Appellate Court, after reviewingthelegislativehistoryof§ 54-102g,ultimately concluded that the history shed no light on the legislature’s intentions as to the use of reasonable force to obtain a DNA sample. Id. After our own review of the relevantlegislativehistory,wemustagreewiththeconclusions of the trial court and the Appellate Court. The legislatureneverdiscussedinfloordebatesthequestion of using reasonable force as a means of obtaining a
DNA sample and, as a result, the discussions of the legislators on the statute offer no guidance to our present inquiry. At first blush, the silence of the legislature during its debate on the statute appears to lend some support to the defendant’s position that the silence of the statute militates against the use of reasonable force to obtain a DNA sample. It is well established, however, that when ‘‘we are left with silence on [an] issue . . . we do not determine legislative intent’’ from such silence. Statev.Kirsch,263Conn.390,420,820A.2d236(2003). Additionally, the legislature’s silence on the question ofreasonableforceduringthe2003amendmentto§ 54102g was not the legislature’s first or last word on the issue. See P.A. 03-242. In 2011, the legislature amended § 54-102g to allow the department to use reasonable force to obtain a DNA sample from an individual, such as the defendant, who refuses to willingly submit to the taking of a sample. See P.A. 11-144, § 1. This court recognizes that ‘‘an amendment which in effect construes and clarifies a prior statute must be accepted as thelegislativedeclarationofthemeaningoftheoriginal act.’’ (Internal quotation marks omitted.) Bhinder v. Sun Co., 263 Conn. 358, 368–69, 819 A.2d 822 (2003); Statev. StateEmployees’ ReviewBoard,239Conn.638, 648–49, 687 A.2d 134 (1997). Thus, the subsequent amendmentdemonstratesthelegislature’sacknowledgment that it would be necessary at times to use reasonable force in order to further the goals of the statute. Intheabsenceofanydeterminativelegislativehistory on the statute, the Appellate Court focused on the fact that given the mandatory and substantive import of the DNA submission requirement, to permit individuals to refusetocomplywiththestatuteatwillwouldseriously defeat the statute’s goal of creating a DNA data bank to assist in criminal investigations. State v. Banks, supra,143Conn.App.506–507.WeagreewiththeAppellateCourt’sdeterminationthat,priortothe2011amendment, the use of reasonable force to obtain a DNA sample from an unwilling individual was ‘‘inherent’’ in § 54-102g. To conclude otherwise would result in absolutefrustrationofthelegislature’sobjectiveinestablishing and maintaining a DNA data bank. We are mindful that reviewing courts should not construe statutes ‘‘in disregardoftheircontextand infrustrationoftheobvious legislative intent’’ or in a manner ‘‘that is hostile to an evident legislative purpose . . . or in a way that is contrarytocommonsense.’’(Citationsomitted;internal quotation marks omitted.) State v. Skakel, 276 Conn. 633, 678, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006). If we were to accept the defendant’s position, those persons required to submit a DNA sample under the statute would be free to openly refuse and § 54-102g wouldbereducedtoanullityanditsobjectivesresound
ingly defeated. Although, as the defendant observes, § 54-102g(g)subjectsapersontofurthercriminalprosecutionforrefusaltosubmitaDNAsample,suchprosecution does not, as the defendant’s case itself demonstrates, remedy the fact that the ultimate objective of § 54-102g has been thwarted. For the statute to be effective, it must necessarily allow for the department to use reasonable force in those instances where a person required to submit to the taking of a DNA sample refuses to do so. See Rendelman v. Scott, 378 Fed.Appx.309,313(4thCir.2010)(‘‘[T]he[s]tate’sright toobtain[a]DNAsamplefromdesignatedinmatesmust necessarily carry with it the right to use a reasonable degree of force that is sufficient to ensure compliance. Otherwise, the [s]tate’s right can be rendered meaningless by an inmate who refuses to grant permission . . . .’’). Furthermore, at the time of the state’s motion, the department had a policy in place that when an inmate subject to § 54-102g refused to provide a DNA sample, departmentpersonnelweretodirecttheinmatetocompletea‘‘DNAAdvisement/RefusalForm’’(refusalform) thatinformedtheinmatethatrefusaltosubmitasample pursuant to the statute was a prosecutable offense. See DepartmentofCorrection,FelonyDNAPolicy(October 1,2010),availableatwww.ct.gov/doc/lib/doc/pdf/Policy DNAFelony.pdf (last visited May 6, 2016). In its memorandum of decision, the trial court observed that the refusal form also advised an inmate that if the inmate continuedtorefusetoprovideasample,thedepartment could seek a court order to use reasonable force in order to ensure compliance with the statute. The court noted that, despite the existence of such a policy, the legislature had not taken any action in subsequent amendmentstodisavowthestate’spolicyofseekingthe authorization of reasonable force should an individual refusetosubmittosampling.SeegenerallyConnecticut Light&PowerCo.v.PublicUtilitiesControlAuthority, 176 Conn. 191, 198, 405 A.2d 638 (1978). Indeed, the legislature’s 2011 amendment took the opposite course of action by explicitly amending the statute to permit the department to use reasonable force in those cases where an individual refuses to comply with the statute. Accordingly, we agree with the conclusions of the Appellate Court. Given the statute’s mandatory nature, its overall goals and objectives, and the legislature’s subsequent amendment to the statute, it was proper for the trial court to grant the state’s motion seeking permission to use reasonable physical force to obtain a DNA sample from the defendant. II Wenextaddressthedefendant’sclaimthattheAppellate Court incorrectly determined that the application of § 54-102g to the defendant did not run afoul of the ex post facto clause of the federal constitution. The
defendant suggests that, because at the time of his underlyingrobberyrelatedconvictionsin1997,thestatute applied only to those convicted of certain sex offenses, the requirement imposed by the 2003 amendment to § 54-102g that all convicted felons submit to the taking of a DNA sample violates the ex post facto clauseandthedefendant’sdueprocessrights.Thestate counters that the defendant’s claim must fail due to the fact that providing a DNA sample is not a punitive sanction and therefore it does not contravene the ex post facto clause or the defendant’s due process rights. We agree with the state that § 54-102g does not violate the federal constitution’s bar on ex post facto laws. The constitution of the United States, article one, § 10, provides in relevant part that ‘‘[n]o State shall . . . pass any . . . ex post facto Law . . . .’’ A law may be considered to violate the ex post facto clause if it ‘‘punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with [a] crime of any defense available according to law at the time when the act was committed . . . .’’ (Internal quotation marks omitted.) Dobbert v. Florida, 432 U.S. 282, 292, 97 S. Ct. 2290, 53 L. Ed. 2d 344 (1977); see also State v. Faraday, 268 Conn. 174, 199, 842 A.2d 567 (2004). In order to run awry of the ex post facto clause, a law ‘‘must be retrospective—that is, it must apply to events occurring before its enactment—and it must disadvantage the offender affected by it . . . .’’ (Internal quotation marks omitted.) State v. Faraday, supra, 195. It is well established that the ‘‘constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them.’’ Collins v. Youngblood, 497 U.S. 37, 41, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990). Accordingly, ‘‘regulatory measures do not constitute punishment as proscribed by the ex post facto clause.’’ State v. Kelly, supra, 256 Conn. 91. For the purposes of the ex post facto clause, our inquiry as to whether a statute is penal or not is the same as thatsetforthinpartIAofthisopinionandourdecisions in State v. Kelly, supra, 92, and State v. Waterman, 264 Conn. 492–93. The defendant first raised his ex post facto claim in a pro se supplemental memorandum at the time the state filed its motion seeking permission to use reasonableforceagainstthedefendant.Thetrialcourtrejected the defendant’s claim on the ground that § 54-102g is notapenalstatuteandthereforedoesnotfallwithinthe purviewoftheexpostfactoclause.Whenthedefendant was subsequently prosecuted for violating § 54-102g, the defendant moved to dismiss on the basis of the ex post facto clause and the trial court denied the motion on the basis of the same reasoning it relied on in grantingthestate’spreviousmotiontousereasonablephysical force. On appeal, the Appellate Court concluded
that its determination that the statute was regulatory rather than punitive foreclosed the defendant’s ex post facto claim and it therefore affirmed the trial court’s judgments. State v. Banks, supra, 143 Conn. App. 509–10. As the defendant notes, prior to the amendment in 2003 to § 54-102g, making all felons subject to the requirements of that statute; P.A. 03-242; § 54-102g applied only to those persons who had been convicted of particular sex offenses or who had committed an offense against a victim who was a minor. See General Statutes (Rev. to 2003) § 54-102g (a). Thus, at the time the defendant was convicted of his underlying offenses in 1997, he was not required to submit to the taking of a DNA sample for inclusion in the DNA data bank. The 2003 amendment, however, broadened the scope of the statute to include all persons convicted of a felony—a groupthatincludesthedefendant—tosubmitabiological sample for the purposes of the statute. See P.A. 03-242, § 1. Although this factual scenario would seemingly implicate the ex post facto clause, as we already extensively discussed in part I A of this opinion, § 54102g is not a penal statute. The statute does not therefore implicate the ex post facto clause.10 See Collins v. Youngblood, supra, 497 U.S. 41. Accordingly, the defendant cannot prevail on his ex post facto claim. We observe that thecourts of other jurisdictions that have addressed this issue have all arrived at the same conclusion, namely that statutes requiring convicts to submit DNA samples do not contravene the ex post factoclause,evenwhentheunderlyingconvictionsprecede the DNA collection statutes. See In re DNA Ex PostFactoIssues,561F.3d294,299(4thCir.2009)(‘‘the DNA-sample requirement did not violate the [e]x [p]ost [f]acto clause’’); United States v. Hook, 471 F.3d 766, 776 (7th Cir. 2006), cert. denied, 549 U.S. 1343, 127 S. Ct. 2081, 167 L. Ed. 2d 771 (2007) (‘‘the DNA [statute] doesnotoperateretroactivelytopunish[thedefendant] for his original crime, but rather any punishment that would ensue would be the result of new conduct, i.e., [the defendant’s] failure to comply with the DNA [statute]’’); Gilbert v. Peters, 55 F.3d 237, 238–39 (7th Cir. 1995) (‘‘[b]oth federal and state courts have uniformly concluded that statutes which authorize collection of blood specimens to assist in law enforcement are not penal in nature’’); State v. Bain, Docket No. 2008-286, 2009 WL 170109, *1 (Vt. January 14, 2009) (‘‘federal and state courts across the country have uniformly held that statutes requiring prisoners or convicted felons to provide DNA samplesdo not violate thefederal ex post facto clause, even when the convictions of the persons being asked to provide samples occurred before enactmentofthestatutes’’);seealso United Statesv. Coccia, 598 F.3d 293, 297–98 (6th Cir. 2010); Johnson v. Quander, 440 F.3d 489, 502–503 (D.C. Cir.), cert. denied, 549 U.S. 945, 127 S. Ct. 103, 166 L. Ed. 2d 255 (2006). This
court has also arrived at the same conclusion in the context of other statutory schemes. See State v. Faraday, supra, 268 Conn. 198–200 (defendant’s revocation of probation did not implicate ex post facto clause because revocation was due to acts distinct and separatefromdefendant’sunderlyingcriminalconvictions); Statev.Kelly,supra,256Conn.94(requirementtoregister as sex offender is regulatory and does not violate ex post facto clause). As the regulatory nature of § 54-102g does not raise anyconcernsinregardtotheconstitutionalprohibition on ex post facto laws, the defendant’s due process concerns stemming from the application of a supposed ex post facto law are therefore not an issue in the present case.

Outcome:

Accordingly,weconcludethattheAppellateCourt properly upheld the trial court’s determinations that § 54-102g does not violate the ex post facto clause. The judgment of the Appellate Court is affirmed.