State v. Bernacki, SC18674

• Decision Date: 09 October 2012
• Docket Number: SC18674
• Court: Supreme Court of Connecticut
• Parties: STATE v. BERNACKI

STATE v. BERNACKI

SC18674

Supreme Court of Connecticut

Date: October 9, 2012

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DISSENT

EVELEIGH, J., with whom PALMER and HARPER, Js., join, dissenting. I respectfully dissent. The issue presented in this case is whether the punishment of the defendant, Gary C. Bernacki, Sr., for both criminal violation of a protective order, a form of nonsummary criminal contempt of court,¹ and the underlying substantive criminal offense—criminal possession of a firearm—which includes the existence of a protective order as an element, is barred by the double jeopardy clause of the fifth amendment to the United States constitution. I agree with the majority's analysis of the opinion of the Appellate Court. See State v. Bernacki, 122 Conn. App. 399, 401-402, 988 A.2d 262 (2010). I further agree with the majority that, contrary to the conclusion reached by the Appellate Court, there is no clear indication in the legislative history to the effect that the legislature intended to impose multiple punishments for this offense, nor is there any clear indication that it did not.²Thus, I agree with the majority that the result of the double jeopardy inquiry turns on whether the crimes constitute the ''same offense'' for double jeopardy purposes. I disagree, however, with the majority's conclusion that the crimes are not the same offense for double jeopardy purposes, and thus, I would conclude that a double jeopardy violation exists in the present case, requiring a reversal of the Appellate Court's judgment, which affirmed the trial court's judgment convicting the defendant of criminal possession of a firearm and criminal violation of a protective order. Accordingly, I respectfully dissent.

The defendant was charged with, inter alia, criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (3) (A), and criminal violation of a protective order in violation of General Statutes § 53a-223.³ I agree with the majority's statement of our basic governing legal principles, recently restated by this court in State v. Gonzalez, 302 Conn. 287, 315-16, 25 A.3d 648 (2011).⁴

The first prong of the test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932), for evaluating whether two offenses are the same offense for double jeopardy purposes, requires a determination of whether the two offenses arise out of the same act or transaction. I agree with the majority that there is no dispute regarding this issue in the present case. Clearly, the two charges listed in the preceding paragraph arose from the same act—the information lists the same date and same location for both charges. Both charges also list the fact that a protective order had been issued against the defendant. The charge of criminal possession of a firearm indicates that the defendant possessed a firearm when he knew that hewas subject to the protective order. The charge of criminal contempt is not explicit regarding the nature of the violation of the protective order. It is, however, a violation of any such protective order to possess a firearm, the Appellate Court found, and the state does not dispute, that ''[t]he basis of the charge of criminal violation of a protective order was the defendant's possession of a firearm . . . ." State v. Bernacki, supra, 122 Conn. App. 402. Therefore, the first prong of Blockburger is satisfied in that the two counts arose out of the same act.

The second prong of Blockburger requires a determination of whether the two charged crimes are the same offense. Blockburger v. United States, supra, 284 U.S. 304. I agree with the majority that, in the present case, a Blockburger analysis looking only to the particular criminal statutes allegedly violated, and to the charging instruments, suggests that these two crimes were not the same offense for double jeopardy purposes, even though the parties agree that in punishing the defendant for both crimes, the same blameworthy conduct, involving the same protective order and the same firearms, is proscribed.⁵ The majority, of course, is correct when it observes that the broad language of § 53a-223 (a),⁶''only the intent to perform the act constituting the violation'' is required, ''and says nothing about the possession of firearms, and it is therefore possible to violate a General Statutes § 46b-38c protective order without possessing a firearm. The problem with the majority's analysis, however, is that the converse is not true: it is not possible to possess a firearm while subject to a protective order under § 46b-38c without violating that protective order. The Appellate Court noted this when it observed that ''[t]he 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." (Emphasis added.) State v. Bernacki, supra, 122 Conn. App. 402. The majority is also correct that ''the language of § 53a-217 (a) (3)⁷ does not criminalize the violation of the terms of a particular protective order, but rather, criminalizes the possession of a firearm by a person who 'knows that such person is subject to . . . a restraining or protective order of a court of this state that has been issued against such person . . . . The majority's observation is inapposite, however, as the possession of a firearm is not a violation of merely ''a particular protective order, but a violation of any § 46b-38c protective order. Presuming the majority's analytical approach is the proper one, the analysis turns on the availability of this truth.

In my view, however, by employing the proper analytical approach, it is plain that as applied here the two crimes are for the same offense, stated in two different ways, one specifically and one generally. Pursuant to § 53a-217 (a) (3) (A), the defendant is guilty if he pos-sesses a firearm while he knows that he is subject to a protective order. Pursuant to § 53a-223 (a), the defendant is guilty of violating a protective order if he violates one of the provisions therein by virtue of his intended act. State v. Fagan, 280 Conn. 69, 77, 905 A.2d 1101 (2006) (''the intent required to prove a violation of § 53a-223 [a] is only that the defendant intended to perform the activities that constituted the violation of the protective order''), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007). As violated by the defendant, both statutes require proof of the same elements and are violated by the same act, in this case the possession of a firearm. Because the analytical approach embraced by the majority ignores precisely what the state must prove to demonstrate nonsummary criminal contempt, ordinarily the analysis will turn on the specificity of the charging instrument. In the present case, if the charging instrument for violation of a protective order described the underlying criminal violation, which it admittedly did not, I would conclude that the majority's interpretation of the Blockburger two-prong test had been satisfied, the two crimes charged represented the same offense and that, accordingly, a rebuttable presumption arose that double jeopardy barred the multiple punishment of the defendant. It seems both incongruous and patently unfair that whether a defendant receives additional incarceration would be dependent upon the existence of a bill of particulars in his case.

In my view, the vindication of the defendant's double jeopardy protections is not, however, solely dependent upon the level of detail provided in the charging instruments. The majority acknowledges the United States Supreme Court's fractured opinion in United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993). The present case, as in Dixon, involves prosecution for violation of a type of court order that prohibited the defendant from engaging in conduct, where such conduct also constituted the underlying substantive crime. Therefore, I agree with the majority that we are required to analyze the defendant's multiple punishments in light of that opinion.⁸ In determining whether prosecutions for both violation of a court order and the underlying substantive crime were barred by the double jeopardy clause of the fifth amendment, a majority of the United States Supreme Court held, in Dixon, that the protections of the double jeopardy clause attach to such contempt prosecutions just as they do in other criminal prosecutions.⁹ Id., 699-700. Nevertheless, no majority of that court agreed on the precise application of double jeopardy clause jurisprudence to...