State v. Bernacki

Decision Date26 September 2012
Docket NumberSC 18674
CourtSupreme Court of Connecticut
PartiesSTATE OF CONNECTICUT v. GARY C. BERNACKI, SR.

STATE OF CONNECTICUT
v.
GARY C. BERNACKI, SR.*

SC 18674

Supreme Court of Connecticut

Argued January 9 , 2012
officially released September 26, 2012***


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Rogers, C. J., and Norcott, Palmer, Zarella, McLachlan, Eveleigh and
Harper, Js.**

Glenn W. Falk, special public defender, for the appellant (defendant).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Kevin D.

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Lawlor, state's attorney, and Kimberley Perrelli, senior assistant state's attorney, for the appellee (state).

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Opinion

NORCOTT, J. The sole issue in this certified appeal is whether the defendant's conviction of, and punishment for, both 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 violate his federal and state constitutional protections against double jeopardy. The defendant, Gary C. Bernacki, Sr., appeals, upon our grant of his petition for certification,3 from the judgment of the Appellate Court affirming the judgment of the trial court convicting him of violating both §§ 53a-217 (a) (3) (A) and 53a-223 (a). See State v. Bernacki, 122 Conn. App. 399, 988 A.2d 262 (2010). On appeal, the defendant contends that the Appellate Court improperly concluded that the legislature clearly intended to permit multiple punishments for the same offense and, therefore, that his two convictions are not a double jeopardy violation. Because we agree with the state's contentions that §§ 53a-217 (a) (3) (A) and 53a-223 (a) are not the "same offense" under Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), as applied by Chief Justice Rehnquist in his concurring opinion in United States v. Dixon, 509 U.S. 688, 713, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993), and there is no evidence that the legislature clearly intended to preclude defendants from being convicted of, and punished for, committing both offenses, we affirm the judgment of the Appellate Court.

The record and the Appellate Court's opinion reveal the following undisputed facts and procedural history relevant to our resolution of this appeal. In connection with criminal charges that had been brought against the defendant, on June 14, 2005, the trial court, Sylvester, J., issued a family violence protective order against him pursuant to General Statutes § 46b-38c (d) and (e). The protective order directed the defendant to, inter alia, "surrender or transfer all firearms" in accordance with the instructions enumerated on page two thereof.4 Subsequently, on August 10, 2005, Shelton police officers, acting on a tip about the presence of guns in the defendant's apartment, obtained and executed a search warrant therein. The police officers who searched the defendant's apartment found that, while subject to the protective order, he was in possession of two antique guns, which were heirlooms from his father's service in World War II, specifically a Colt Woodsman .22 caliber pistol and a Mauser Machine Pistol, both of which later were determined to be in operable condition, along with holsters and ammunition.

The state charged the defendant in a three count substitute information with: (1) possession of a machine gun for an offensive or aggressive purpose in violation of General Statutes § 53-202 (c); (2) criminal possession of a firearm in violation of § 53a-217 (a) (3)

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(A); and (3) criminal violation of a protective order in violation of § 53a-223 (a).5 The case was tried to a jury, which returned a verdict finding the defendant not guilty on the first count but guilty on the second and third counts of the information. The trial court, Cronan, J., rendered a judgment of conviction in accordance with the jury's verdict and sentenced the defendant to a total effective sentence of four years imprisonment, execution suspended after the mandatory minimum of two years required by § 53a-217 (b), and four years probation.6

The defendant appealed from the judgment of conviction to the Appellate Court, claiming that his conviction of, and his punishment for, both criminal possession of a firearm in violation of § 53a-217 (a) (3) (A) and criminal violation of a protective order in violation of § 53a-223 (a), "violates double jeopardy because the crimes, as charged, constitute the same offense."7 State v. Bernacki, supra, 122 Conn. 402–403. Applying the Blockburger rule, the Appellate Court first followed its 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), and determined that the crimes "constituted the same offense" because "the defendant could not have committed one of these crimes without having committed the other." State v. Bernacki, supra, 404-405. The Appellate Court then determined, however, that "the language, structure and legislative history of §§ 53a-217 (a) (3) (A) and 53a-223 (a)" evinced the legislature's intent to permit multiple punishments for the same offense. Id., 406-408. The Appellate Court emphasized that the legislative history indicated that "the legislature knew of both statutes at issue in this case and that it intended to permit multiple punishments when a person who was subject to a protective order possessed firearms," especially given the existence of separate, unrelated penalties for the violation of each statute. Id., 409. Thus, the Appellate Court concluded that the defendant's conviction of both offenses did not violate his double jeopardy rights and affirmed the judgment of the trial court. Id., 410. This certified appeal followed. See footnote 3 of this opinion.

On appeal, the defendant contends that the Appellate Court improperly concluded that the legislative history of the 2002 amendments to § 53a-223 indicates that the legislature intended multiple punishments in the same trial for violations of §§ 53a-223 (a) and 53a-217 (a) (3) (A), which he posits are the "same offense" under the analysis articulated by Justice Scalia's separate opinion in part III of United States v. Dixon, supra, 509 U.S. 697-700. The defendant further relies on the South Dakota Supreme Court's reading in State v. Dillon, 632 N.W.2d 37 (S.D. 2001), of Missouri v. Hunter, 459 U.S. 359, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983), and Ball v. United States, 470 U.S. 856, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985), for the proposition that there is insufficient

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evidence of legislative intent to rebut the Blockburger presumption against multiple punishments for the same offense, particularly given that the Connecticut statutes at issue in the present case lack language making "explicitly" clear the legislature's intention to impose multiple punishments. The defendant further relies on the rule of lenity as described in Whalen v. United States, 445 U.S. 684, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980), and contends that we should resolve any ambiguity about the legislature's intention to impose multiple punishments in his favor.

In response, the state first contends that the Appellate Court improperly relied on its decision in State v. Quint, supra, 97 Conn. App. 72, in concluding that §§ 53a-223 (a) and 53a-217 (a) (3) (A) are the same offense under the Blockburger analysis. Advocating for the analytical approach of Chief Justice Rehnquist in his concurring opinion in United States v. Dixon, supra, 509 U.S. 715-17, the state argues that they are not the same offense under Blockburger because each of the statutes contains an element that the other does not and that the statutes also differ as to their prescribed mental states. In addition, both being class D felonies, they are not lesser included offenses of each other. Citing our decision in State v. Alvaro F., 291 Conn. 1, 966 A.2d 712, cert. denied, U.S. , 130 S. Ct. 200, 175 L. Ed. 2d 140 (2009), the state then contends that the defendant has failed to produce sufficient evidence of legislative intent to rebut the presumption that results from the Blockburger analysis, namely, that the legislature intends to allow multiple punishments for violations of multiple statutes. In particular, the state relies on State v. Kirsch, 263 Conn. 390, 820 A.2d 236 (2003),...

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