State v. Banks

• Decision Date: 05 July 2016
• Docket Number: No. 19246.,19246.
• Citation: 146 A.3d 1,321 Conn. 821
• Parties: STATE of Connecticut v. Mark BANKS.
• Court: Connecticut Supreme Court

321 Conn. 821

146 A.3d 1

STATE of Connecticut

v.Mark BANKS.

No. 19246.

Supreme Court of Connecticut.

Argued Jan. 28, 2016.

Decided July 5, 2016.

Daniel J. Foster, assigned counsel, for the appellant (defendant).

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

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and VERTEFEUILLE, Js.

ESPINOSA

, J.

In this certified appeal¹ we consider whether the Appellate Court properly resolved a series of claims that the defendant, Mark Banks, raises in connection with General Statutes (Rev. to 2009) § 54–102g

,² which authorizes the Commissioner of Correction to collect DNA samples from currently incarcerated felons in order to maintain a DNA data bank to assist in criminal investigations. The defendant appeals, following our grant of certification, from the judgment of the Appellate Court affirming both the trial court's judgment granting the state permission to use reasonable physical force to obtain a DNA sample from the defendant and the judgment of conviction rendered following the defendant's refusal to submit to the taking of a blood or other biological sample for DNA analysis in violation of § 54–102g (g)

. State v. Banks, 143 Conn.App. 485, 487–88, 71 A.3d 582 (2013). The defendant contends that the Appellate Court: (1) improperly concluded that the trial court had authority to grant the state permission to use reasonable physical force in obtaining a DNA sample from him prior to the 2011 amendment to § 54–102g that incorporated a provision authorizing the state to use such force; see Public Acts 2011, No. 11–144, § 1 (P.A. 11–144); and (2) incorrectly determined that § 54–102g, as applied to the defendant, did not violate his due process rights and the ex post facto clause of the federal constitution. See U.S. Const. art. I, § 10. We conclude that the Appellate Court properly resolved both of the defendant's claims and therefore affirm the judgment of the Appellate Court.

The following facts and procedural history are relevant to the resolution of this appeal. In 1997, following a jury trial, the defendant was convicted 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 (Rev. to 1995) § 53a–217c for robberies committed in 1995. See State v. Banks, 59 Conn.App. 112, 113, 755 A.2d 951, cert. denied, 254 Conn. 950, 762 A.2d 904 (2000). On December 19, 1997, the trial court sentenced the defendant to fifteen years incarceration to run consecutively with a sentence the defendant was already serving from a prior conviction. The defendant has remained incarcerated since his 1997 convictions.

In his brief to this court, the defendant states that on December 8 and 29, 2009, personnel from the Department of Correction (department) instructed him to submit to the taking of a DNA sample pursuant to § 54–102g (a)

, but that he refused to comply. On March 17, 2010, department personnel again instructed the defendant and nine other inmates to provide DNA samples in accordance with the statute. The defendant remained steadfast in his refusal to submit to the taking of a DNA sample.

On May 19, 2010, the state filed a motion in the trial court seeking permission to use reasonable physical force to collect a DNA sample from the defendant and a fellow inmate, Roosevelt Drakes,³ who had likewise refused to submit a sample. The state cited § 54–102g

as the authority for its motion. The defendant opposed the state's motion, arguing that if he refused to submit a DNA sample for inclusion in the DNA data bank, the only recourse available to the state was to prosecute him pursuant to § 54–102g (g) for refusal to provide a blood or other biological sample for DNA analysis.⁴ The defendant further argued that he was not required to submit a DNA sample because at the time of his convictions in 1997, General Statutes (Rev. to 1997) § 54–102gapplied only to those persons convicted of certain sex offenses and did not apply to incarcerated felons, such as the defendant, until the legislature amended the statute in 2003. See Public Acts 2003, No. 03–242, § 1 (P.A. 03–242). Accordingly, the defendant claimed that requiring him to provide a DNA sample would constitute an added punishment to his original sentence and run afoul of the ex post facto clause.

On February 8, 2011, the trial court, Mullarkey, J., issued a written memorandum of decision rejecting the defendant's claims and granting the state's motion for permission to use reasonable physical force to collect a DNA sample from the defendant. The trial court determined that submitting to the taking of a DNA sample for the purposes of § 54–102g

was a nonpunitive, regulatory measure that did not affect the defendant's original 1997 sentence and, therefore, that the trial court had subject matter jurisdiction over the state's motion. Likewise, because the trial court determined that § 54–102g is regulatory in nature, it concluded that the statute did not run awry of the ex post facto clause. Additionally, after examining the text and legislative history of § 54–102g, the court determined that the statute necessarily included the option of enforcing compliance through reasonable force, because allowing incarcerated felons to simply refuse to provide DNA samples would substantially frustrate the legislature's goal of creating a comprehensive DNA data bank to aid in criminal investigations. The defendant appealed to the Appellate Court from the trial court's decision.⁵

Subsequently, the defendant was charged via a substitute information with refusal to submit to the taking of a blood or biological sample for DNA analysis in violation of § 54–102g (g)

for his March 17, 2010 refusal. The defendant moved to dismiss the charge and, at a hearing before the trial court, Carbonneau, J., presented similar arguments to those he previously presented in opposition to the state's motion to use physical force, namely, that application of the statute would violate the ex post facto clause as applied to him. The trial court adopted the reasoning of Judge Mullarkey in his memorandum of decision, concluded that the taking of a DNA sample was not a penalty and denied the defendant's motion to dismiss. Following a bench trial, the defendant was found guilty and sentenced to one year incarceration, consecutive to his existing sentences. The defendant filed a separate appeal to the Appellate Court from the judgment of conviction.

The Appellate Court considered the defendant's consolidated appeals and ultimately upheld both the defendant's conviction and the trial court's grant of the state's motion for permission to use reasonable physical force in obtaining a DNA sample from the defendant. State v. Banks, supra, 143 Conn.App. 485, 487–88, 71 A.3d 582

. The defendant argued that: (1) the trial court lacked subject matter jurisdiction to consider the state's motion; (2) § 54–102g, as applied to him, violated his due process rights and the ex post facto clause; (3) the legislature, although it had amended § 54–102g

in 2011 to authorize the use of reasonable force to obtain a DNA sample; P.A. 11–144; did not intend that amendment to have retroactive effect; and (4) prior to 2011, § 54–102g did not authorize the department to use reasonable force. State v. Banks, supra, at 492, 508, 71 A.3d 582. The Appellate Court, largely adopting the reasoning of the trial court's memorandum of decision, concluded that § 54–102g is regulatory rather than punitive in nature and, therefore, that the trial court had jurisdiction to consider the state's motion and that application of the statute to the defendant did not violate his due process rights or contravene the ex post facto clause. Id., at 499, 508–10, 71 A.3d 582

. In analyzing the text and history of § 54–102g, the Appellate Court determined that the statute was not applied retroactively to the defendant and that, as the trial court concluded, the statute authorized the use of reasonable force to obtain a DNA sample from those who refused to willingly submit one. Id., at 507, 71 A.3d 582. We thereafter granted the defendant's petition for certification to appeal. See footnote 1 of this opinion.

Prior to addressing the defendant's substantive claims, we provide an overview of the history of the statutory scheme which underlies the defendant's claims. The current revision of § 54–102g (b)

requires DNA samples to be collected from all persons convicted of a felony, among others. When initially enacted in 1994, however, the statute only required the collection of DNA samples from persons convicted of certain sex offenses. Public Acts 1994, No. 94–246, § 1; see General Statutes (Rev. to 1995) § 54–102g. The statute was further amended in 1999 to extend the DNA collection requirements to individuals who had committed a criminal offense against a victim who was a minor. Public Acts 1999, No. 99–183, § 1. In 2003, the legislature expanded the scope of the statute to require all incarcerated felons to submit a DNA sample for inclusion in the state DNA data bank. See P.A. 03–242, § 1. The 2003 amendment broadening the category of those subject to § 54–102g is the source of the defendant's present appeal.⁶

I

A

We first address the defendant's claim that the Appellate Court incorrectly concluded that the trial court properly granted the state's motion for permission to use reasonable physical force as a means of obtaining a sample of the defendant's DNA. State v. Banks, supra, 143 Conn.App. at 507, 71 A.3d 582

. The defendant contends that § 54–102g is penal rather than regulatory in nature and, therefore, that the trial court was without jurisdiction because the defendant was already serving the sentences for his underlying...