State v. Banks

• Decision Date: 25 June 2013
• Docket Number: Nos. 33326,33387.,s. 33326
• Citation: State v. Banks, 143 Conn. App. 485, 71 A.3d 582 (Conn. App. 2013)
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Mark BANKS.

143 Conn.App. 485

71 A.3d 582

STATE of Connecticut

v.Mark BANKS.

Nos. 33326, 33387.

Appellate Court of Connecticut.

Argued Feb. 15, 2013.

Decided June 25, 2013.

Lauren Weisfeld, senior assistant public defender, for the appellant (defendant).

Michael A. Gailor, executive assistant state's attorney, with whom, on the brief, was Gail P. Hardy, state's attorney, for the appellee (state).

LAVINE, ROBINSON and BEAR, Js.

LAVINE, J.

The principal questions raised in these consolidated appeals are whether the state may obtain a DNA sample from a felon in the custody of the commissioner of correction (commissioner) who was convicted of crimes prior to the enactment of General Statutes (Rev. to 2003) § 54–102g and whether, prior to the passage of Public Acts 2011, No. 11–144, § 1 (P.A. 11–144), which amended § 54–102g, it was permissible for the trial court to grant the state permission to use reasonable physical force to obtain a DNA sample. We answer both questions in the affirmative and affirm the judgments of the trial court.

In AC 33326, the defendant, Mark Banks, appeals from the judgment of the trial court, claiming that the court lacked jurisdiction to grant the state's motion to use reasonable physical force to obtain a DNA sample from him.¹ The defendant claims that § 54–102g, as applied to him, violated his right to due process of law and the ex post facto clause of the federal constitution.² In AC 33387, the defendant appeals from his conviction, rendered after a trial to the court, of refusing to provide a blood or other biological sample for DNA analysis (DNA sample) in violation of General Statutes (Rev. to 2003) § 54–102g, as amended by Public Acts 2004, No. 04–188, § 1 (P.A. 04–188). He claims that, as applied to him, the statute violated his right to due process of law and the ex post facto clause. We conclude that § 54–102g is regulatory in nature, does not violate the ex post facto clause and that the state may use reasonable force to obtain a DNA sample from the defendant. We thus affirm the judgments of the trial courts.

The following facts and procedural history are relevant to the defendant's appeals. The defendant was indicted in two files for robberies he committed in 1995; the cases were consolidated for trial. State v. Banks, 59 Conn.App. 112, 114, 755 A.2d 951, cert. denied, 254 Conn. 950, 762 A.2d 904 (2000). A jury found the defendant guilty 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 § 53a–92 and two counts of criminal possession of a pistol or revolver in violation of General Statutes § 53a–217c (robbery related convictions). Id. at 113, 755 A.2d 951. On December 19,1997, the court, Spada, J., sentenced the defendant to fifteen years incarceration, consecutive to the sentence the defendant was then serving. The defendant has been in the custody of the commissioner since that time.

On March 17, 2010, the commissioner directed the defendant to submit to the taking of a DNA sample by department of correction personnel. The defendant refused, believing that he was not required to provide a DNA sample.³ On May 14, 2010, the state charged the defendant with failure to provide a DNA sample pursuant to § 54–102g (g).⁴ On May 19, 2010, the state filed a motion in the defendant's robbery related cases asking the court to authorize the use of reasonable physical force to obtain a DNA sample from the defendant. In its motion, the state represented that the defendant was serving sentences for the robbery related convictions, § 54–102g is regulatory in nature, the defendant is not exempt from the requirement to provide a DNA sample, and, therefore, the court had jurisdiction to consider the motion.

On August 12, 2010, the defendant, through counsel, opposed the state's motion to use reasonable physical force. The defendant argued that § 54–102g was a criminal statute that must be construed strictly. He further contended that the legislature intended § 54–102g to create a comprehensive database to store genetic material for comparative purposes in criminal investigations and that the clear and unambiguous text of § 54–102g did not provide for the taking of a DNA sample by reasonable force. The defendant further noted that the legislature had amended § 54–102g several times since its enactment and specifically noted that a conviction for failing to provide a DNA sample had been changed from a class A misdemeanor to a class D felony. See General Statutes (Rev. to 2009) § 54–102g (g), as amended by Public Acts 2010, No. 10–102, § 2. The defendant argued that, in amending the statute, the legislature did not authorize the use of reasonable force to obtain a DNA sample, which the court should construe as a conscious decision on the part of the legislature not to permit the use of such force.⁵ If the court grantedthe state's motion to use reasonable physical force, the defendant contended, the court would blur the lines of the separation of powers as between the legislature and our courts.

On October 1, 2010, the defendant, then representing himself, filed a supplemental memorandum of law in opposition to the state's motion to use reasonable physical force, arguing that the law now requiring a felon in the custody of the commissioner to provide a DNA sample could not apply to him. He further argued that, at the time of his robbery related convictions, he was not subject to DNA data collection under § 54–102g and subsequent amendments to the statute did not provide for retroactive application. According to the defendant, the 2003 amendment, therefore, subjects him to additional criminal proceedings in violation of the ex post facto clause.

The parties appeared before the court, Mullarkey, J., to argue the state's motion to use reasonable physical force. The court granted the motion pursuant to a memorandum of decision issued on February 8, 2011.⁶ The court found that § 54–102g applied to the defendant because he was a felon in the custody of the commissioner. The court concluded that it had jurisdiction to consider the motion to use reasonable physical force because granting the motion would have no effect on the sentences the defendant was serving for the robbery related convictions. Moreover, the court found that § 54–102g was regulatory in nature, and that, by implication, the state had the authority to use reasonable force to obtain a DNA sample from a felon who refused to provide one. The court concluded that prohibiting the state from using reasonable force would permit a felon to avoid his or her obligation to provide a DNA sample and thus frustrate the legislature's goal of creating a DNA data bank to assist in future criminal investigations. Although the court granted the motion to use reasonable physical force, it stayed the order until after the appeal period expired. The defendant's appeal from the judgment rendered when Judge Mullarkey granted the motion to use reasonable physical force is AC 33326.

By way of a substitute information dated February 18, 2011, the state charged the defendant with refusing to submit to the taking of a DNA sample as required by General Statutes (Rev. to 2011) § 54–102g (g). Following a trial to the court, Carbonneau, J., the defendant was found guilty and sentenced to one year of incarceration consecutive to the sentences he was then serving. The defendant's appeal from the judgment of conviction is AC 33387.

In each of the appeals, the defendant raised claims that are questions of law to which an appellate court gives plenary review. See State v. Alexander, 269 Conn. 107, 112, 847 A.2d 970 (2004) (court's subject matter jurisdiction question of law); State v. Parra, 251 Conn. 617, 622, 741 A.2d 902 (1999) (statutory construction question of law); State v. Marsala, 93 Conn.App. 582, 587, 889 A.2d 943 (constitutionalissue question of law), cert. denied, 278 Conn. 902, 896 A.2d 105 (2006).

IAC 33326

In this appeal, the defendant claims that Judge Mullarkey erred when he granted the state's motion to use reasonable physical force to obtain a DNA sample from him because (1) the court lacked subject matter jurisdiction to consider the state's motion, (2) as applied to him, § 54–102g violates the ex post facto clause, (3) the legislature did not give P.A. 11–144, § 1, which amendment added the “reasonable force” language, retroactive effect, and (4) the statute does not provide for the use of force. The defendant's claims fail because § 54–102g is a regulatory statute, its application to the defendant does not affect his robbery related sentences, his refusal to submit to the taking of a DNA sample is conduct that occurred after he began to serve those sentences and the use of reasonable physical force is implicit in the statute, given that the goal of the legislation is to establish a DNA data bank to assist future criminal investigations.

We begin with a brief history of the legislature's goal to establish a DNA data bank. In 1994, the General Assembly enacted legislation requiring persons convicted of certain enumerated sexual offenses to provide a DNA sample. See Public Acts 1994, No. 94–246, codified in General Statutes (Rev. to 1995) § 54–102g et seq.⁷ The statute has been amended several times since then. In 2003, the statute again was amended to apply to all felons in the custody of the commissioner. See Public Acts 2003, No. 03–242, § 1 (P.A. 03–242).⁸ It is the 2003 amendment that is at issue in these appeals.⁹

A

The defendant claims that the court improperly concluded that it had subject matter jurisdiction over the state's motion to use reasonable physical force. We do not agree.

Our Supreme Court “has held that the jurisdiction of the sentencing court terminates once a defendant's sentence has begun, and, therefore, that court may no longer take any action affecting a defendant's sentence unless it expressly has...