State Of Conn. v. Wade

• Decision Date: 06 July 2010
• Docket Number: No. 18510.,18510.
• Citation: 297 Conn. 262,998 A.2d 1114
• Parties: STATE of Connecticutv.Sidney WADE.
• Court: Connecticut Supreme Court

297 Conn. 262

998 A.2d 1114

STATE of Connecticutv.Sidney WADE.

No. 18510.

Supreme Court of Connecticut.

Argued March 22, 2010.

Decided July 6, 2010.

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Pamela S. Nagy, special public defender, for the appellant (defendant).

Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Paul N. Rotiroti, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js.^*

NORCOTT, J.

This appeal requires us to consider the applicability and constitutionality of the “aggregate package” theory of sentencing (aggregate package theory) to the resentencing of a defendant after the partial reversal of a multicount conviction on the basis of insufficient evidence. The defendant, Sidney Wade, appeals ¹ from the judgment of the trial court resentencing him to a total effective sentence of twenty-three years imprisonment, on remand from the judgment of the Appellate Court, which had reversed, in part, his conviction of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(3), and modified the judgment of conviction to manslaughter in the second degree in violation of General Statutes § 53a-56(a)(1). State v. Wade, 106 Conn.App. 467, 492-93, 942 A.2d 1085, cert. granted, 287 Conn. 908, 950 A.2d 1286 (2008) (appeal withdrawn June 12, 2008). On appeal, the defendant claims that: (1) the trial court improperly resentenced him on all of his convictions because the Appellate Court's order directed resentencing only on the reversed count; (2) the aggregate package theory, adopted by this court 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), does not apply when the reversal of a conviction is based on insufficient evidence; (3) under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the trial court's decision to increase the sentences on the affirmed counts violated the defendant's due process rights under the fourteenth amendment to the United States constitution ² and, alternatively, article first, § 8, of the Connecticut constitution; ³ and (4) we should vacate his sentences under our supervisory powers over the administration of justice. We disagree and, therefore, we affirm the judgment of the trial court.

In connection with the death of the victim, Rebecca J. Calverley, from a drug overdose,⁴ the state charged the defendant with two counts of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278(b), two counts of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of § 21a-278(b), one count of manslaughter in the first degree in violation of § 53a-55(a)(3) and one count of manslaughter in the second degree in violation of § 53a-56(a)(1). The case was tried to the jury, which found the defendant guilty of two counts each of sale of narcotics by a person who is not drug-dependent and possession of narcotics with intent to sell by a person who is not drug-dependent, and one count of manslaughter in the first degree. ⁵ The trial court rendered a judgment of conviction in accordance with the jury's verdict and sentenced the defendant to a total effective sentence of twenty-five years imprisonment, structured as follows: the court imposed concurrent seven year terms of incarceration, with a five year mandatory minimum, on each of the four narcotics convictions and ordered that they be served consecutively to an eighteen year term of incarceration on the first degree manslaughter conviction.

The defendant appealed from the judgment of conviction to the Appellate Court, which reversed the judgment in part, concluding that there was insufficient evidence to support the jury's finding that he was guilty of manslaughter in the first degree in violation of § 53a-55 2395097; 00147;;LQ;CTSTS53A-55;1000264;2022395097;00148;;LQ;CTSTS53A-56;1000264;2022395097;0008;2015521867;RP;;162;2022395097;00149;;LQ;CTSTS53A-56;1000264;2022395097;0009;2015521867;RP;;162;

On remand, following a resentencing hearing, the trial court vacated the sentences on all counts in the judgment and modified the judgment to reflect a conviction of manslaughter in the second degree, along with the four original narcotics convictions that the Appellate Court had affirmed. The trial court then imposed a new total effective sentence of twenty-three years imprisonment by restructuring the defendant's original sentence as follows: the court increased the defendant's concurrent terms of imprisonment on the narcotics counts from seven years to thirteen years and ordered that they be served consecutively to a ten year term of imprisonment for the manslaughter in the second degree conviction. This appeal followed. See footnote 1 of this opinion.

On appeal, the defendant claims that: (1) the aggregate package theory does not apply in the present case, wherein the reversal of a conviction was based on insufficient evidence; (2) the trial court improperly resentenced him on all of his convictions when the Appellate Court's rescript ordered the court to resentence him only on the manslaughter conviction; (3) the trial court's increase of the sentences on the counts that were affirmed was vindictive, violating both his federal and state due process rights; and (4) in the alternative, his sentences should be vacated under our supervisory powers. We address each claim in turn.

I

We ordinarily would begin with the defendant's claim that the trial court improperly resentenced him on all of his convictions when the Appellate Court had directed that court to resentence him only on the manslaughter conviction. This claim, which requires interpreting the Appellate Court's rescript in State v. Wade, supra, 106 Conn.App. at 467, 942 A.2d 1085, cannot, however, be decided properly without first resolving the underlying legal issue, namely, the defendant's claim that the aggregate package theory does not apply to this case, wherein the partial reversal of a conviction was based on insufficient evidence, rather than on an illegal sentence or violations of the constitutional prohibitions against double jeopardy. In response, the state contends that the trial court complied with the Appellate Court's mandate when it vacated the defendant's multicount conviction in its entirety and restructured it in accordance with its original sentencing intent because, in State v. Miranda, supra, 260 Conn. at 93, 794 A.2d 506, we adopted the aggregate package theory without restriction as to the underlying reason for remand for resentencing.

As a preliminary matter, we set forth the applicable standard of review and governing principles. Under the aggregate package theory, when a multicount conviction is remanded after one or more of the convictions have been vacated on appeal, the trial court may increase individual sentences on the surviving counts as long as the total effective sentence is not exceeded. See, e.g. Pennsylvania v. Goldhammer, 474 U.S. 28, 30, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985) (per curiam); United States v. Dominguez, 951 F.2d 412, 414 (1st Cir.1991), cert. denied sub nom. Maravilla v. United States, 504 U.S. 917, 112 S.Ct. 1960, 118 L.Ed.2d 562 (1992). On appeal, “[t]he determination of whether the defendant's new sentence exceeds his original sentence is a question of law over which ... review is plenary.” State v. Tabone, 292 Conn. 417, 428, 973 A.2d 74 (2009).

In State v. Raucci, 21 Conn.App. 557, 563, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990), the Appellate Court adopted the aggregate package theory, which authorizes trial courts, following either a remand from a direct appeal or after the correction of an illegal sentence pursuant to Practice Book § 935, now § 43-22,⁶ to fashion a new sentence to implement its original sentencing intent. In Raucci, the defendant had been convicted of larceny in the first degree, conspiracy to commit larceny in the first degree, burglary in the third degree and conspiracy to commit burglary in the third degree, and was sentenced to a total effective sentence of not less than fifteen nor more than thirty years imprisonment. Id., at 558, 575 A.2d 234. On appeal, the Appellate Court vacated the conviction of conspiracy to commit burglary in the third degree on the ground that that conviction had stemmed from the same agreement underlying his conviction of conspiracy to commit larceny and, therefore, violated the prohibition against double jeopardy. Id., at 559, 575 A.2d 234. After remand, the trial court resentenced the defendant on the three remaining counts so as to reflect its original sentencing intent, and reimposed a total effective sentence of not less than fifteen nor more than thirty years. Id.

In accordance with the great weight of federal precedent, the Appellate Court adopted the aggregate package theory and affirmed the defendant's new sentence, recognizing that, “[t]he general rationale for this is that the defendant, in appealing his conviction and punishment, has voluntarily called into play the validity of the entire sentencing package, and, thus, the proper remedy is to vacate it in its entirety. More significantly, the original sentencing court is viewed as having imposed individual sentences merely as component parts or building blocks of a larger total punishment for the aggregate convictions, and, thus, to invalidate any part of that package without allowing the court thereafter to review and revise the remaining valid convictions would frustrate the court's sentencing intent.” Id., at 562, 575 A.2d 234. The court also noted that a trial court's power to restructure the aggregate package “is limited by its original sentencing intent as expressed by the original total effective sentence,” and that “this power is permissive, not...