State v. Apt

• Decision Date: 10 November 2015
• Docket Number: No. 19266.,19266.
• Citation: 126 A.3d 511,319 Conn. 494
• Parties: STATE of Connecticut v. Seth William APT.
• Court: Connecticut Supreme Court

319 Conn. 494

126 A.3d 511

STATE of Connecticut

v.Seth William APT.

No. 19266.

Supreme Court of Connecticut.

Argued Jan. 13, 2015.

Decided Nov. 10, 2015.

Melissa Patterson, assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Charles W. Johnson, assistant state's attorney, for the appellant (state).

Adele V. Patterson, senior assistant public defender, for the appellee (defendant).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ROBINSON and MULLINS, Js.^*

PALMER, J.

General Statutes § 54–142a¹ mandates the erasure of records pertaining to certain charges that do not lead to a conviction and further provides that, when such records are erased, the person charged shall be deemed to have never been arrested with respect to the erased proceedings. See General Statutes § 54–142a (e)(3). General Statutes § 53a–40b² provides that a trial court may enhance the sentence of a defendant who, while on pretrial release following an arrest for another offense, commits the crime for which the sentence is imposed. The dispositive issue in this certified appeal is whether the erasure provisions of § 54–142a preclude a trial court from enhancing a defendant's sentence pursuant to § 53a–40b after the records pertaining to the charges for which the defendant was on pretrial release have been erased. We conclude that, although the state may not use the erased records to prove the basis for the sentence enhancement under § 53a–40b, the erasure provisions of § 54–142a do not prohibit the imposition of a sentence enhancement in such circumstances.

A jury found the defendant, Seth William Apt, guilty of larceny in the third degree in violation of General Statutes § 53a–124 (a)(2),³ and the state sought to have the defendant's sentence enhanced under § 53a–40b because the defendant had committed the larceny while he was released on bond following a number of previous arrests for various offenses. Prior to the hearing on the sentence enhancement, the records relating to the defendant's previous arrests had been erased in accordance with § 54–142a. Nevertheless, the trial court allowed the state to introduce those records into evidence to prove the factual basis for the enhancement under § 53a–40b and then relied on those records in finding that the defendant had committed the larceny while he was on pretrial release. The defendant appealed from the trial court's judgment to the Appellate Court, which concluded that the trial court improperly had permitted the state to introduce the erased records into evidence and, further, that the state could not seek to establish the basis for the sentence enhancement on remand because a trial court lacks the authority to impose such an enhancement when the records relating to the arrest that led to the defendant's release have been erased pursuant to § 54–142a. State v. Apt, 146 Conn.App. 641, 643, 650, 78 A.3d 249 (2013). We granted the state's petition for certification to appeal, limited to the issue of whether the Appellate Court properly concluded that the erasure statute precludes the imposition of a sentence enhancement under § 53a–40b in such circumstances. State v. Apt, 311 Conn. 902, 902–903, 83 A.3d 604 (2014).⁴ Although we agree with the Appellate Court that the trial court improperly permitted the state to introduce the erased records to prove the basis for the sentence enhancement under § 53a–40b, we also conclude that the state is not foreclosed from seeking to have the defendant's sentence enhanced on remand under that provision, as long as its proof does not include the erased records. We therefore reverse in part the judgment of the Appellate Court.

The record reveals the following relevant facts and procedural history. Prior to the incident that gave rise to this appeal, the defendant was arrested in three separate cases on three separate dates, namely, September 10, 2007, December 19, 2008, and January 16, 2009. The defendant was released on bond following all three arrests. In addition, following the September 10, 2007 arrest, the defendant applied for accelerated pretrial rehabilitation pursuant to General Statutes § 54–56e,⁵ which the court, Ward, J., granted.

On November 20, 2009, the defendant committed the larceny at issue in the present case, and he was arrested for that offense on March 31, 2010. On May 7, 2010, prior to trial on the larceny charge, the defendant was found to have successfully completed his program of accelerated rehabilitation in the case stemming from his September 10, 2007 arrest, and the charges in that case were dismissed. Consequently, the records relating to that arrest were erased in accordance with General Statutes §§ 54–56e (f) and 54–142a.⁶

On May 7, 2010, the state also entered a nolle prosequi on the charges brought in connection with the December 19, 2008 and January 16, 2009 arrests.

On May 6, 2011, following a trial, the jury found the defendant guilty of larceny in the third degree. Prior to trial, the state had notified the court that it intended to seek a sentence enhancement under § 53a–40b. Because the defendant had filed a written objection to the enhancement, the parties agreed to postpone the hearing on the enhancement to a later date so that the court and the state could review the defendant's objection. On June 7, 2011, prior to the hearing on the enhancement, the records relating to the defendant's December 19, 2008 and January 16, 2009 arrests were erased in accordance with § 54–142a (c)(1) ; see footnote 1 of this opinion; because thirteen months had passed since the state nolled the charges brought in connection with those arrests.

On June 24, 2011, the trial court held a sentencing hearing at which the state sought to prove, pursuant to § 53a–40b, that the defendant had committed the larceny while he was released on bond. To that end, the state introduced into evidence the informations from the defendant's three previous cases that had been subject to erasure, as well as an appearance bond form from one of those cases. Defense counsel objected to the enhancement, arguing, first, that the defendant had a right to a jury determination of whether he had committed the larceny while he was released on bond and, second, that the records were inadmissible because they had been erased pursuant to § 54–142a. The court overruled the objection and, relying solely on those records, found that the defendant had committed the larceny while he was on release.

On appeal to the Appellate Court, the defendant claimed that the trial court improperly had allowed the state to offer records that had been erased pursuant to § 54–142a and that he was prejudiced thereby because those records constituted the sole evidence offered by the state to prove the basis for the sentence enhancement under § 53a–40b. The defendant further maintained that, because § 54–142a bars the state from introducing those records, the state could not prove that he was released on bond when he committed the larceny of which he was convicted. Finally, the defendant argued in the alternative that he was denied due process of law because he had a right to a jury determination of whether he committed the larceny while he was on pretrial release.

The Appellate Court agreed with the defendant that the trial court improperly had allowed the state to introduce the erased records and also agreed that the state could not seek to prove the basis for the sentence enhancement at a new hearing. State v. Apt, supra, 146 Conn.App. at 650, 78 A.3d 249. In concluding that the trial court improperly had permitted the state to introduce the erased records, the Appellate Court first observed that, "[i]n this case, it is undisputed that the necessary amount of time had elapsed to subject records relating to the defendant's prior arrests to erasure as a matter of law"; id., at 648, 78 A.3d 249 ; and that the records offered by the state to prove the basis for the enhancement, namely, the informations and the appearance bond form, "clearly qualify as the type of police and court records to which the erasure statute applies.

[Those] records did not fall [within] any exception listed under the erasure statute." (Internal quotation marks omitted.) Id. The Appellate Court concluded, therefore, that the records had been erased before the state introduced them. See id. The Appellate Court further concluded that the introduction "of erased records in a court proceeding against the subject of those erased records is exactly the type of disclosure that the erasure statute is designed to prevent.... Thus, the [trial] court erred in [allowing the state to introduce] these records into evidence. Likewise, the court's error was harmful, as the erased records were the only evidence in support of the court's determination that the defendant had committed a crime while [he was] released on bond." (Citation omitted.) Id., at 649, 78 A.3d 249.

Turning to the issue of the appropriate remedy, the Appellate Court concluded that the state could not seek to prove the basis for the sentence enhancement at a new hearing. See id., at 650, 78 A.3d 249. The Appellate Court rejected the state's argument that the case "should be remanded for a new hearing as to the sentence enhancement, [at which] the prosecution [could] introduce alternative evidence that the defendant was released on bond at the time he committed the ... larceny." Id., at 649, 78 A.3d 249. Although recognizing that "the erasure statute does not preclude certain alternative forms of evidence, such as testimony from personal knowledge, [as] long as it is not derived from the erased records"; id.; the Appellate Court observed that, "[i]n this case ... the sole subject of the trial court's inquiry on remand would be the defendant's pretrial release status on the particular date in question. This status is inextricably related to the defendant's prior arrests. The erasure statute provides that ‘[a]ny person who shall...