State Of Conn. v. Bernacki

• Decision Date: 06 July 2010
• Docket Number: No. 30176.,30176.
• Citation: 122 Conn.App. 399,998 A.2d 262
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticutv.Gary C. BERNACKI, Sr.

122 Conn.App. 399

998 A.2d 262

STATE of Connecticutv.Gary C. BERNACKI, Sr.

No. 30176.

Appellate Court of Connecticut.

Argued March 15, 2010.

Decided July 6, 2010.

Glenn W. Falk, special public defender, with whom, on the brief, was Elliot Morrison, law student intern, for the appellant (defendant).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, and Kimberley N. Perrelli, senior assistant state's attorney, for the appellee (state).

FLYNN, C.J., and BEACH and WEST, Js.^*

FLYNN, C.J.

The defendant, Gary C. Bernacki, Sr., appeals from the judgment of the trial court, following a jury trial, convicting him of, and sentencing him for, criminal possession of a firearm in violation of General Statutes § 53a-217(a)(3)(A) ¹ and criminal violation of a protective order in violation of General Statutes § 53a-223(a).² On appeal, the defendant claims that his conviction of, and his punishment for, both of these crimes violates the double jeopardy clause of the fifth amendment to the United States constitution and article first, § 9, of the Connecticut constitution ³ because as charged, they constitute the same offense. Although we agree that the crimes as charged constitute the same offense, we conclude that the legislature intended to permit multiple punishments for the crimes of criminal violation of a protective order and criminal possession of a firearm. Accordingly, we affirm the judgment of the trial court.

In this case, the charging document provides in relevant part: “Second Count. And the [senior assistant state's] attorney aforesaid further accuses [the defendant] of criminal possession of a firearm and charges that in the [t]own of Shelton on or about August 10, 2005, the said [defendant] possessed a firearm and knew that [he] was subject to a protective order of a [c]ourt of this [s]tate that had been issued against such person, after notice and opportunity to be heard had been provided to such person, in a case involving the use of physical force, attempted use or threatened use of physical force against another person in violation of [§] 53a-217(a)(3)(A) of the Connecticut General Statutes.

“Third Count. And the attorney aforesaid further accuses [the defendant] of criminal violation of a protective order and charges that in the [t]own of Shelton on or about August 10, 2005, an order issued pursuant to [s]ubsection (e) of [General Statutes §] 46b-38c had been issued against [him,] and [he] violated such order in violation of [§] 53a-223(a) of the Connecticut General Statutes.” The basis of the charge of criminal violation of a protective order was the defendant's possession of a firearm, which specifically is prohibited by anyone against whom a protective order has been issued.

The jury found the defendant guilty of these two charges,⁴ and the court sentenced him on count two to a four year term of imprisonment, execution suspended after two years, with four years of probation. On count three, the court sentenced the defendant to a four year term of imprisonment, execution suspended after one year, with four years of probation. The sentences were ordered to run concurrently, for a total effective sentence of four years imprisonment, execution suspended after two years, with four years of probation. This appeal followed.

The defendant claims that his conviction of, and his punishment for, both of these crimes violates double jeopardy because the crimes, as charged, constitute the same offense. He requests review of this unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The record on appeal is adequate for review, and a claim of double jeopardy is of constitutional magnitude. See State v. Chicano, 216 Conn. 699, 704-705, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S.Ct. 2898, 115 L.Ed.2d 1062 (1991). Accordingly, we will review the defendant's claim.

“A defendant may obtain review of a double jeopardy claim, even if it is unpreserved, if he has received two punishments for two crimes, which he claims were one crime, arising from the same transaction and prosecuted at one trial.... Because the claim presents an issue of law, our review is plenary.” (Internal quotation marks omitted.) State v. Bozelko, 119 Conn.App. 483, 507, 987 A.2d 1102, cert. denied, 295 Conn. 916, 990 A.2d 867 (2010). “[T]he double jeopardy clause protects [defendants] from multiple punishments for the same offense. To be entitled to this type of double jeopardy protection, the defendant must satisfy both prongs of a two-pronged test. First, the charges must arise out of the same act or transaction. Second, it must be determined [that] the charged crimes are the same offense.... In conducting this inquiry, we look only to relevant statutes, the information, and the bill of particulars, not to the evidence presented at trial.” (Internal quotation marks omitted.) State v. Kurzatkowski, 119 Conn.App. 556, 569, 988 A.2d 393, cert. denied, 296 Conn. 902, 991 A.2d 1104 (2010); see Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (developing this two-pronged test).

“The application of the Blockburger test, however, does not end our analysis of the double jeopardy issue. [T]he Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history.... Double jeopardy protection against cumulative punishments is only designed to ensure that the sentencing discretion of the courts is confined to the limits established by the legislature.... Where ... a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the same conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.... The Blockburger test is a rule of statutory construction, and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent.... The language, structure and legislative history of a statute can provide evidence of this intent.” (Citations omitted; internal quotation marks omitted.) State v. Greco, 216 Conn. 282, 292-93, 579 A.2d 84 (1990).

The defendant argues that his conviction and sentence violate his constitutional right not to be placed in double jeopardy because criminal violation of a protective order by the act of possessing a firearm and criminal possession of a firearm, while there is a protective order, punish him for the same acts. The state argues that the two offenses are not the same for double jeopardy purposes because criminal possession of a firearm has possession of a firearm as an element and criminal violation of a protective order does not. In the alternative, the state argues that there was no intent by the legislature to prohibit multiple punishments for the same conduct under these circumstances and that each of these statutes aims to promote different interests. Although we agree with the defendant that the crimes as charged constituted the same offense because he could not have committed one of the crimes without having committed the other, we further conclude that the legislature intended to provide multiple punishments for the defendant's conduct in possessing a firearm while being subject to a protective order.

In reaching our conclusion, we look to the reasoning of this court's decision in State v. Quint, 97 Conn.App. 72, 77-83, 904 A.2d 216, cert. denied, 280 Conn. 924, 908 A.2d 1089 (2006), which we find persuasive. In Quint, the defendant had been charged with criminal violation of a protective order pursuant to § 53a-223(a) and with criminal trespass in the first degree in violation of General Statutes § 53a-107(a)(2). As explained in Quint, “§ 53a-107(a)(2), criminal trespass in the first degree, makes it a crime when a person ‘enters or remains in a building or any other premises in violation of a ... protective order issued pursuant to [General Statutes §§] 46b-38c, 54-1k or 54-82r by the Superior Court....’ ” Id., at 77 n. 3, 904 A.2d 216. This court explained that criminal violation of a protective order and criminal trespass in the first degree as charged in the Quint case constituted the same offense because the defendant could not have committed one of the crimes without having committed the other. Id., at 80, 904 A.2d 216. We can discern no meaningful difference between Quint and the present case.

In the present case, the defendant was charged with criminal violation of a protective order, which stemmed from his possessing firearms in violation of that order, and he was charged with criminal possession of a firearm while subject to a protective order. As in Quint, we conclude that the defendant could not have committed one of these crimes without having committed the other. Our inquiry, however, does not end there.

“It frequently happens that one activity of a criminal nature will violate one or more laws or that one or more violations may be charged. Although the question is not totally free of doubt, it appears that the double jeopardy clause does not limit the legislative power to split a single transaction into separate crimes so as to give the prosecution a choice of charges that may be tried in one proceeding, thereby making multiple punishments possible for essentially one transaction.” J. Killian, G. Costello & K. Thomas, The Constitution of the United States of America Analysis and Interpretation (2002) pp. 1386-87. Essentially, there are two types of situations in which a single transaction may be split into separate crimes. “There are ‘double-description’ cases in which criminal law contains more than one prohibition for conduct arising out of a single transaction....