State Of Conn. v. Michael A. *
| Decision Date | 17 August 2010 |
| Docket Number | No. 18464.,18464. |
| Citation | 1 A.3d 46,297 Conn. 808 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. MICHAEL A. * |
297 Conn. 808
1 A.3d 46
STATE of Connecticut
v.
MICHAEL A. *
No. 18464.
Supreme Court of Connecticut.
Argued March 22, 2010.
Decided Aug. 17, 2010.
COPYRIGHT MATERIAL OMITTED.
Glenn W. Falk, special public defender, for the appellant (defendant).
Sarah Hanna, deputy assistant state's attorney, with whom, on the brief, was Kevin Lawlor, state's attorney, for the appellee (state).
NORCOTT, KATZ, PALMER, ZARELLA and McLACHLAN, Js.
NORCOTT, J.
The defendant, Michael A., appeals 1 from the judgment of the trial court resentencing him to a total effective sentence of seventeen years imprisonment, after remand from the judgment of the Appellate Court, which had reversed his conviction of sexual assault in the second degree in violation of General
Statutes (Rev. to 1999) § 53a-71(a)(1), 2 and affirmed his conviction of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21(a)(2), as amended by Public Acts 2000, No. 00-207, § 6 (P.A. 00-207). 3 State v. Michael A., 99 Conn.App. 251, 254, 913 A.2d 1081 (2007). On appeal, the defendant claims that: (1) the trial court improperly resentenced him on the risk of injury to a child conviction because the Appellate Court's order was limited to reversal of the sexual assault conviction; and (2) the trial court's resentencing order, crafted under the persistent serious felony
offender statute, General Statutes (Rev. to 1999) § 53a-40(c) and (j), 4 as amended by Public Acts, Spec. Sess.,
June, 1999, No. 99-2, § 48 (P.A. 99-2), cannot stand because the defendant did not knowingly, intelligently and voluntarily waive his right to a jury trial on the issue of whether an extended period of incarceration would best serve the public interest. We disagree and, accordingly, we affirm the judgment of the trial court.
The record reveals the following relevant facts and procedural history. In November, 2000, the state charged the defendant in a two part information with one count of sexual assault in the first degree in violation of General Statutes (Rev. to 1999) § 53a-70(a)(1) 5 and one count of risk of injury to a child in violation of § 53-21(a)(2). The defendant was tried before a jury, which, in June, 2004, returned a verdict finding him guilty of risk of injury to a child and not guilty of sexual assault in the first degree. 6 The jury did, however, find the defendant guilty of sexual assault in the second
degree in violation of § 53a-71(a)(1) as a lesser included offense of sexual assault in the first degree. After the defendant entered a plea of nolo contendere with respect to part B of the information charging him as a persistent serious felony offender under § 53a-40(c), the trial court rendered a judgment of conviction in accordance with the jury's verdict and sentenced him pursuant to § 53a-40(j) to a total effective sentence of twenty-four years imprisonment, followed
by ten years special parole and lifetime sexual offender registration. 7
The defendant appealed from the judgment of conviction to the Appellate Court, which reversed the conviction of sexual assault in the second degree. State v. Michael A., supra, 99 Conn.App. at 254, 913 A.2d 1081. The Appellate Court concluded that the trial court improperly had instructed the jury that it could find the defendant guilty of sexual assault in the second degree as a lesser included offense of sexual assault in the first degree; id., at 262, 913 A.2d 1081; which deprived the defendant of his “constitutional right to a fair trial....” Id., at 263, 913 A.2d 1081. The court reversed the judgment “only as to the conviction of sexual assault in the second degree and ... remanded with direction to render judgment of not guilty as to that offense only.” Id., at 274, 913 A.2d 1081.
On remand, the trial court held a resentencing hearing on April 4, 2008. The trial court vacated the defendant's original sentence and, over his objections, 8 resentenced him to a total effective sentence of seventeen years imprisonment on the risk of injury to a child conviction, with no special parole, but with lifetime sexual offender registration. The new sentence, like the original sentence, reflected sentence enhancement under the persistent
serious felony offender statute, § 53a-40(j). The trial court also renewed its finding, at the state's request, that the defendant's history and character, as well as the nature of his criminal conduct, indicated that extended incarceration would best serve the public interest. This appeal followed.
On appeal, the defendant claims that: (1) the trial court lacked the authority to resentence him on the risk of injury to a child conviction because the Appellate Court's order reversed only the sexual assault conviction; and (2) the trial court's resentencing order, crafted under § 53a-40(j), the persistent serious felony offender statute, was improper because he did not knowingly, intelligently and voluntarily waive his right to a jury trial on the issue of whether an extended period of incarceration would best serve the public interest. We address each claim in turn and set forth additional relevant facts where necessary in the context of each claim.
We first address the defendant's claim that the trial court did not have the authority to resentence him on the risk of injury to a child conviction. Specifically, the defendant argues that the Appellate Court's remand order explicitly was limited to a reversal of the conviction of sexual assault in the second degree and did not authorize the trial court to fashion an entirely new sentence. The defendant also claims that the procedural posture of this case-a partially successful appeal and remand order-distinguishes this case from past precedent in which this court applied the “aggregate package” theory of sentencing (aggregate package theory), under which, inter alia, trial courts may reconstruct sentences following a partial reversal of a multicount conviction. In response, the state contends that the trial court properly resentenced the defendant under the aggregate package theory and
that the Appellate Court's
order should be interpreted in light of that court's entire opinion and not read so restrictively. We agree with the state and conclude that our recent decision in State v. Wade, 297 Conn. 262, 998 A.2d 1114 (2010), controls the outcome of this claim.
In State v. Wade, supra, 297 Conn. at 275, 998 A.2d 1114, we recently concluded “that the aggregate package theory ... applies regardless of the underlying reason for remand.” The defendant in Wade had challenged his new sentence partially on the ground that the aggregate package theory could not be applied when the reversal of conviction was based on insufficient evidence. Id., at 272, 998 A.2d 1114. We rejected the defendant's claim that the direction of a judgment of acquittal or reduction of a conviction to one that carries a lesser sentence precludes the trial court from restructuring a sentencing package originally imposed on a multicount conviction. Id., at 268, 998 A.2d 1114. We concluded that “the trial court was not bound by its previously imposed sentence on the [unaffected convictions] but, rather, was free to restructure the sentence on those counts in any way necessary to effectuate its original sentencing intent, so long as the revised total effective sentence did not exceed the original sentence....” Id., at 275, 998 A.2d 1114. Similarly, in the present case, the trial court properly resentenced the defendant in accordance with its original sentencing intent.
Moreover, we disagree with the defendant's claim that the Appellate Court's remand order specifically precluded the trial court from restructuring the original sentence in toto. The Appellate Court's rescript reads in its entirety: “The judgment is reversed only as to the conviction of sexual assault in the second degree and the case is remanded with direction to render judgment of not guilty as to that offense only. The judgment is affirmed in all other respects.” State v. Michael A., supra, 99 Conn.App. at 274, 913 A.2d 1081. “We have rejected efforts to construe our remand orders so narrowly as to prohibit
a trial court from considering matters relevant to the issues upon which further proceedings are ordered that may not have been envisioned at the time of the remand.” (Internal quotation marks omitted.) State v. Wade, supra, 297 Conn. at 276, 998 A.2d 1114. Although the remand order twice included the limiting word “only” with respect to its direction, we agree with the state that, given the multiple convictions from which the defendant appealed, the Appellate Court simply was clarifying that the reversal was limited to the sexual assault conviction. Furthermore, the Appellate Court's opinion did not at any point address resentencing, nor did the remand order contain specific language restricting the trial court's discretion with respect to resentencing. See State v. Michael A., supra, at 256-63, 274, 913 A.2d 1081. Thus, once the trial court followed the remand order and vacated the conviction of sexual assault in the second degree, under the aggregate package theory, it was free to “reconstruct the sentence in any way necessary to ensure that the punishment [fit] both the crime and the defendant, as long as the final sentence [did] not exceed” the original sentence of twenty-four years imprisonment. State v. Miranda, 260 Conn. 93, 130, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S.Ct. 224, 154 L.Ed.2d 175 (2002). We conclude, therefore, that the trial court properly resentenced the defendant on the one remaining count of risk of injury to a child.
We next address the defendant's claim that the trial court's resentencing order was improper because he did not
knowingly, intelligently and voluntarily waive his right to a jury trial on the issue of whether...
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