State v. Gelormino

• Decision Date: 28 April 2009
• Docket Number: No. 18144.,18144.
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Kenneth GELORMINO.

968 A.2d 379

291 Conn. 373

STATE of Connecticut v. Kenneth GELORMINO.

No. 18144.

Supreme Court of Connecticut.

Argued September 3, 2008.

Decided April 28, 2009.

David Channing, public defender, for the appellant (defendant).

Harry Weller, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Robin Lipsky, former senior assistant state's attorney, for the appellee (state).

KATZ, PALMER, VERTEFEUILLE, ZARELLA and SCHALLER, Js.

PALMER, J.

The defendant, Kenneth Gelormino, entered a plea under the Alford¹ doctrine to one count of sale of marijuana by a person who is not drug-dependent in violation of General Statutes § 21a-278(b),² and, thereafter, the trial court, Iannotti, J., sentenced him to the mandatory minimum term of imprisonment of five years. On appeal³ from the judgment of conviction, the defendant claims that the trial court improperly declined to consider a sentence of less than five years under General Statutes § 21a-283a,⁴ which permits a court to depart from the statutorily prescribed mandatory minimum sentence for certain drug related offenses if the defendant previously had not invoked the provisions of § 21a-283a. We agree with the trial court that the defendant was ineligible for consideration under § 21a-283a because he previously had received a sentence departure under § 21a-283a. Accordingly, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant's claim. In 2004, the defendant's father arranged to sell a large quantity of marijuana to his friend, Robert Mellilo. Unbeknownst to either the defendant or his father, Mellilo had been arrested for the sale of narcotics and was cooperating with the statewide narcotics task force as an informant. Sergeant John Mucherino of the statewide narcotics task force, who was supervising Mellilo's cooperation with law enforcement officials, instructed Mellilo to contact the defendant's father for the purpose of purchasing 100 pounds of marijuana. In the course of setting up the transaction, the defendant communicated several times with Mellilo, who ultimately arranged to have the defendant deliver the marijuana to him at a location in the city of Waterbury.

On August 4, 2004, the defendant met Mellilo behind a motel in Waterbury. While the two men were engaged in conversation, Mucherino instructed his team to move in and arrest the defendant. A search of the defendant's vehicle revealed six bales of marijuana in the trunk. The state subsequently filed an information in the Superior Court in the judicial district of Waterbury (Waterbury case), charging the defendant with possession of four ounces or more of marijuana in violation of General Statutes § 21a-279(b),⁵ sale of marijuana by a person who is not drug-dependent in violation of § 21a-278(b), and conspiracy to sell marijuana by a person who is not drug-dependent in violation of § 21a-278(b) and General Statutes § 53a-48.⁶

Following his arrest in the Waterbury case, the defendant agreed to cooperate with law enforcement officials, and he informed them that there was more marijuana located at his place of business, Mohawk Motors in the city of Torrington. Upon searching the premises of Mohawk Motors, the police discovered five additional bales of marijuana weighing approximately 100 pounds. Thereafter, the state filed an information in the Superior Court in the judicial district of Litchfield (Litchfield case), charging the defendant with possession of marijuana with intent to sell by a person who is not drug-dependent in violation of § 21a-278(b), and conspiracy to possess marijuana with intent to sell by a person who is not drug-dependent in violation of §§ 21a-278(b) and 53a-48. The charges in the Litchfield case pertained only to the five bales of marijuana that had been concealed at the premises of Mohawk Motors.

The defendant proceeded to trial in the Litchfield case, and, on February 21, 2006, a jury found him guilty as charged. Following the jury verdict, the defendant filed a motion under § 21a-283a for a departure from the mandatory minimum sentence that the court otherwise would have been required to impose. The trial court, Gill, J., granted the defendant's motion and, on November 28, 2006, imposed a suspended prison sentence.⁷

After the jury had returned its verdict in the Litchfield case, but before the court imposed sentence in that case, the defendant entered an Alford plea in the Waterbury case to one count of sale of marijuana by a person who is not drug-dependent in violation of § 21a-278(b).⁸ With the agreement of the trial court, Iannotti, J.,⁹ the sentencing in the Waterbury case was postponed until after the defendant had been sentenced in the Litchfield case. Several days after his sentencing in the Litchfield case, the defendant filed a motion in the Waterbury case pursuant to § 21a-283a, seeking a sentence of less than the mandatory minimum five year prison term prescribed under § 21a-278(b). The trial court denied the motion, concluding that, because the defendant already had received a sentence departure under § 21a-283a in the Litchfield case, he was not eligible for a second such departure in the Waterbury case. On December 8, 2006, the trial court rendered judgment of conviction, sentencing the defendant to the mandatory minimum term of five years imprisonment.

On appeal, the defendant contends that the trial court improperly determined that, because he already had received the benefit of the sentence departure provisions of § 21a-283a in the Litchfield case at the time of his sentencing in the Waterbury case, he was ineligible to receive a second such departure in the Waterbury case. We reject the defendant's contention because it conflicts with the plain meaning of § 21a-283a.

The defendant's claim raises an issue of statutory interpretation over which our review is plenary. See, e.g., Stiffler v. Continental Ins. Co., 288 Conn. 38, 42, 950 A.2d 1270 (2008). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine the meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) Id., at 43, 950 A.2d 1270.

We turn first, therefore, to the relevant text of General Statutes § 21a-283a, which provides: "[W]hen sentencing a person convicted of a violation of any provision of this chapter . . . for which there is a mandatory minimum sentence . . . the court may, upon a showing of good cause by the defendant, depart from the prescribed mandatory minimum sentence, provided the provisions of this section have not previously been invoked on the defendant's behalf. . . ." The state contends that the only plausible reading of this statutory language is that if, at the time of a defendant's sentencing for a drug related offense, he already has received the benefit of a sentence departure under § 21a-283a, he is ineligible to utilize that provision a second time. We agree.

"In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language. . . ." General Statutes § 1-1 (a). We ordinarily look to the dictionary definition of a word to ascertain its commonly approved usage. See, e.g., Jim's Auto Body v. Commissioner of Motor Vehicles, 285 Conn. 794, 808, 942 A.2d 305 (2008). For present purposes, "when" means "[a]t the time that"; American Heritage Dictionary of the English Language (3d Ed.1992); "previous" is defined as "[e]xisting or occurring before something else in time or order" or "prior"; id.; and "invoke" means to "use or apply. . . ." Id. As used in § 21a-283a, these words, like the other operative language of that statute, are plain and unambiguous as applied to the factual scenario presented: if, at the time of sentencing, the defendant has not used § 21a-283a on a prior occasion, the court has the discretion to depart from the prescribed mandatory minimum sentence, provided, of course, that the other requirements of § 21a-283a have been met. It is undisputed however, that the defendant in the present case received the benefit of § 21a-283a when he was sentenced in the Litchfield case on November 28, 2006. The court in that case departed from the statutorily prescribed mandatory minimum sentence by suspending the defendant's eight year sentence, five years of which would have been nonsuspendable but for the court's invocation of § 21a-283a. Because the defendant already had used § 21a-283a to receive a sentence departure in the Litchfield case several days prior to his sentencing in the Waterbury case on December 8, 2006, the trial court in the Waterbury case properly determined that the defendant was not entitled to a reduction in his mandatory minimum sentence in that case under § 21a-283a.

Despite the clarity of § 21a-283a, the defendant contends that the words "have not previously been invoked" in § 21a-283a do not relate temporally to the time of sentencing. Under the defendant...