State v. Bischoff

• Decision Date: 15 January 2021
• Docket Number: SC 20302
• Citation: 337 Conn. 739,258 A.3d 14
• Parties: STATE of Connecticut v. Haji Jhmalah BISCHOFF
• Court: Connecticut Supreme Court

337 Conn. 739

258 A.3d 14

STATE of Connecticut

v.Haji Jhmalah BISCHOFF

SC 20302

Supreme Court of Connecticut.

Argued September 11, 2020

Officially released January 15, 2021^*

Emily H. Wagner, assistant public defender, with whom, on the brief, was Judith L. Borman, senior assistant public defender, for the appellant (defendant).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, Craig P. Nowak, senior assistant state's attorney, and Jennifer F. Miller, assistant state's attorney, for the appellee (state).

Robinson, C. J., and McDonald, D'Auria, Kahn, Ecker and Keller, Js.

D'AURIA, J.

In 2015, our legislature amended General Statutes (Rev. to 2015) § 21a-279 (a) to reclassify a first offense for possession of narcotics from a class D felony subject to a maximum sentence of imprisonment of seven years to a class A misdemeanor subject to a maximum sentence of one year of incarceration.

Public Acts, Spec. Sess., June, 2015, No. 15-2, § 1 (Spec. Sess. P.A. 15-2).¹ This legislative action reflected a change in public policy that emphasized treatment and rehabilitation over incarceration for those convicted of possessing controlled substances. In this certified appeal, we are asked to determine whether the legislature's action applies retroactively to criminal cases pending at the time the amendment became effective.

The defendant, Haji Jhmalah Bischoff, was arrested and charged with, among other crimes, possession of narcotics in violation of § 21a-279 (a) prior to the enactment of Spec. Sess. P.A. 15-2, § 1. He was not convicted and sentenced, however, until after the amendment's enactment. The defendant claims that both the trial court and the Appellate Court incorrectly determined that Spec. Sess. P.A. 15-2, § 1, does not apply retroactively, and, thus, he claims that the sentence imposed on him was illegal, as it exceeded the maximum sentence allowed under § 21a-279 (a) as amended. Specifically, he claims that (1) although the plain language of Spec. Sess. P.A. 15-2, § 1, does not mention retroactivity, a prospective-only application of the amendment would lead to an absurd or unworkable result when viewed in the context of Public Acts 2015, No. 15-244 (P.A. 15-244), the state budget bill that Spec. Sess. P.A. 15-2, § 1, was meant to implement, and (2) alternatively, this court should overrule State v. Kalil , 314 Conn. 529, 107 A.3d 343 (2014), and adopt the amelioration doctrine, which presumes that amendments to statutes that mitigate punishment apply retroactively. We disagree with the defendant on both accounts and affirm the Appellate Court's judgment.

The following facts and procedural history are supported by the record and relevant to our review of the defendant's claims. On the basis of conduct that occurred in 2014, a jury in 2016 found the defendant guilty of possession of heroin in violation of § 21a-279 (a), possession of cocaine in violation of § 21a-279 (a), and possession of less than four ounces of marijuana in violation of § 21a-279 (c). See State v. Bischoff , 182 Conn. App. 563, 568–69, 190 A.3d 137, cert. denied, 330 Conn. 912, 193 A.3d 48 (2018). After the defendant's arrest but prior to his conviction and sentencing, the legislature amended § 21a-279 (a), with an effective date of October 1, 2015, reclassifying a first violation of § 21a-279 (a) as a misdemeanor punishable by not more than one year of incarceration. At the defendant's 2016 sentencing, his counsel requested that the trial court sentence him in accordance with the amended version of § 21a-279 (a). He argued that the policy underlying the amendment—providing assistance, not punishment, to nonviolent drug users—should apply retroactively to him. The trial court declined this request, merged the defendant's convictions of possession of heroin and possession of cocaine into a single conviction of possession of narcotics, and sentenced him to seven years of incarceration, suspended after five years, and three years of probation. As to his conviction of possession of less than four ounces of marijuana, the trial court sentenced him to a concurrent term of one year of incarceration.

The defendant appealed from the judgment of conviction to the Appellate Court and, among other things, renewed his argument that he was entitled to be sentenced on the conviction of possession of narcotics pursuant to Spec. Sess. P.A. 15-2, § 1, which, he claimed, applied retroactively to his case. Id., at 579, 190 A.3d 137. The Appellate Court rejected the defendant's claim, relying on State v. Moore , 180 Conn. App. 116, 124, 182 A.3d 696, cert. denied, 329 Conn. 905, 185 A.3d 595 (2018), which held that Spec. Sess. P.A. 15-2, § 1, did not apply retroactively. Id. The defendant petitioned for certification to appeal, which this court denied. See State v. Bischoff , 330 Conn. 912, 193 A.3d 48 (2018).

The defendant then filed a motion to correct an illegal sentence, the subject of the present appeal, again arguing that the legislature intended Spec. Sess. P.A. 15-2, § 1, to apply retroactively, or, alternatively, that the amelioration doctrine should apply. The trial court dismissed the motion, and the defendant appealed to the Appellate Court, which, in a per curiam opinion, again held that Spec. Sess. P.A. 15-2, § 1, does not apply retroactively, and, like the trial court, rejected application of the amelioration doctrine, ruling that it was bound by this court's holding in State v. Kalil , supra, 314 Conn. at 529, 107 A.3d 343.² State v. Bischoff , 189 Conn. App. 119, 121–22, 206 A.3d 253 (2019). The defendant petitioned this court for certification to appeal, which we granted, limited to the following issues: (1) "Did the Appellate Court properly determine, in State v. Moore , [supra, 180 Conn. App. at 116, 182 A.3d 696 ] that [Spec. Sess. P.A. 15-2, § 1], does not have retroactive effect?" And (2) "[i]f the answer to the first certified question is ‘[yes],’ should this court overrule the retroactivity analysis contained in State v. Kalil , [supra, 314 Conn. at 552, 107 A.3d 343 ] and apply the amelioration doctrine to give retroactive effect to Spec. Sess. P.A. 15-2, § 1?"³ State v. Bischoff , 331 Conn. 926, 926–27, 207 A.3d 28 (2019).

Although "[a] claim that the trial court improperly denied a defendant's motion to correct an illegal sentence is [typically] reviewed pursuant to the abuse of discretion standard"; (internal quotation marks omitted) State v. Brown , 310 Conn. 693, 701–702, 80 A.3d 878 (2013) ; in the present case, the defendant's motion to correct an illegal sentence raises two questions of law, over which our review is plenary: (1) whether the trial court properly construed Spec. Sess. P.A. 15-2, § 1, not to apply retroactively; see Walsh v. Jodoin , 283 Conn. 187, 195, 925 A.2d 1086 (2007) ; and (2) whether this court should overrule Kalil and recognize the amelioration doctrine. See, e.g., State v. Ashby , 336 Conn. 452, 492, 247 A.3d 521, 2020 WL 4555146 (2020).

I

The defendant first claims that we must interpret Spec. Sess. P.A. 15-2, § 1, to apply retroactively. The defendant concedes that the plain language of Spec. Sess. P.A. 15-2, § 1, does not mention retroactivity. He asserts that the legislature enacted P.A. 15-244, a budget bill, under the impression that Spec. Sess. P.A. 15-2, § 1, a budget implementing bill, would reduce the prison population and save the Department of Correction (department) millions of dollars. The defendant argues that, if Spec. Sess. P.A. 15-2, § 1, is not applied retroactively, the department would not attain those savings, an absurd and unworkable result that would violate the legislature's constitutional duty to pass a balanced budget. See Conn. Const., amend. XXVIII (codified at Conn. Const., art. III, § 18 (a)). As a result, he contends, this court must examine relevant extratextual sources, including a fiscal note authored by the Office of Fiscal Analysis showing that the legislature intended Spec. Sess. P.A. 15-2, § 1, to apply retroactively. See Office of Fiscal Analysis, Connecticut General Assembly, Fiscal Note, House Bill No. 7104, An Act Implementing Provisions of the State Budget for the Biennium Ending June 30, 2017 Concerning General Government Provisions Relating to Criminal Justice.

In response, the state contends that the Appellate Court—in Moore , in the defendant's direct appeal, and in the present case—correctly determined that, in the absence of explicit language regarding retroactivity, Spec. Sess. P.A. 15-2, § 1, is presumed to apply only prospectively, i.e., only to cases brought after its effective date. The state argues that a prospective application would not lead to an absurd or unworkable result when Spec. Sess. P.A. 15-2, § 1, is viewed in the context of the relevant savings statutes, General Statutes §§ 1-1 (t) and 54-194. We agree with the state.

A criminal "statute is said to have retroactive application if it applies to crimes allegedly committed prior to its date of enactment. ... The question is one of legislative intent and is governed by well established rules of statutory construction." (Citations omitted.) State v. Nathaniel S ., 323 Conn. 290, 294, 146 A.3d 988 (2016). Specifically, "to ascertain and give effect to the apparent intent of the legislature ... General Statutes § 1-2z directs this court to first consider the text of the statute and its relationship to other statutes to determine its meaning. If, after such consideration, the meaning is plain and unambiguous and does not yield absurd or unworkable results, we shall not consider extratextual evidence of the meaning of the statute. ... Only if we determine that the statute is not plain and unambiguous or yields absurd or unworkable results may we consider extratextual evidence of its meaning such as the legislative history and circumstances surrounding its enactment ... [and] the legislative policy it was designed to implement .......