State v. Gonzalez

• Docket Number: AC 44630
• Decision Date: 23 August 2022
• Citation: 214 Conn.App. 511,281 A.3d 501
• Parties: STATE of Connecticut v. Nico GONZALEZ
• Court: Connecticut Court of Appeals

214 Conn.App. 511

281 A.3d 501

STATE of Connecticut

v.Nico GONZALEZ

AC 44630

Appellate Court of Connecticut.

Argued May 11, 2022

Officially released August 23, 2022

Vishal K. Garg, West Hartford, for the appellant (defendant).

Kayla A. Steefel, certified legal intern, with whom were Michele C. Lukban, senior assistant state's attorney, and, on the brief, Maureen Platt, state's attorney, and Cynthia S. Serafini, senior assistant state's attorney, for the appellee (state).

Moll, Cradle and Eveleigh, Js.

CRADLE, J.

The defendant, Nico Gonzalez, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant claims that the court improperly determined that No. 18-63, § 2, of the 2018 Public Acts (P.A. 18-63), which amended General Statutes (Rev. to 2017) § 54-125e (b) to require that a trial court determine that a period of special parole is necessary to ensure public safety before imposing a period of special parole, did not retroactively apply to his 2017 sentence. See General Statutes § 54-125e (b) (1). Specifically, the defendant claims that (1) § 54-125e, as amended by § 2 of P.A. 18-63, is a procedural statute presumed to apply retroactively, and (2) the legislature, through passing § 2 of P.A. 18-63, intended to clarify § 54-125e, rather than change the law. We affirm the judgment of the trial court.

The record reveals the following relevant procedural history. In connection with the defendant's commission of a shooting on January 2, 2017, the defendant was charged, by way of a substitute information, with one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), one count of attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a, one count of illegal discharge of a firearm in violation of General Statutes § 53-203, one count of illegal possession of a weapon in a motor vehicle in violation of General Statutes § 29-38, and one count of carrying a pistol without a permit in violation of General Statutes § 29-35 (a).

On October 11, 2017, the defendant pleaded guilty, under the Alford doctrine,¹ to one count of assault in the first degree in violation of § 53a-59 (a) (1) ; and one count of carrying a pistol without a permit in violation of § 29-35 (a). On December 15, 2017, the court, Fasano, J. , imposed a total effective sentence of five years of incarceration, followed by five years of special parole.

At the time the defendant was convicted, General Statutes (Rev. to 2017) § 54-125e authorized a court to impose a period of special parole "as a sentencing option in cases [in which] the judge wanted additional supervision of a defendant after the completion of his prison sentence." (Internal quotation marks omitted.) State v. Victor O. , 320 Conn. 239, 252, 128 A.3d 940 (2016). Specifically, special parole was intended by the legislature to "[ensure] intense supervision of convicted felons after they're released to the community and [allow] the imposition of parole stipulations on ... released inmate[s] to ensure their successful incremental [reentry] into society or if they violate their stipulations, speedy [reincarceration] before they commit [other] crime[s]." (Internal quotation marks omitted.) Id.

After the defendant was sentenced, our legislature enacted P.A. 18-63, which eliminated special parole as a punishment for certain offenses.² See State v. Smith , 209 Conn. App. 296, 299, 268 A.3d 127 (2021), cert. denied, 342 Conn. 905, 270 A.3d 691 (2022). Relevant to the present appeal is § 2 of P.A. 18-63, which amended General Statutes (Rev. to 2017) § 54-125e (b) by adding, in relevant part, that "the court may not impose a period of special parole unless the court determines, based on the nature and circumstances of the offense, the defendant's prior criminal record and the defendant's history of performance on probation or parole, that a period of special parole is necessary to ensure public safety." (Emphasis omitted.) Public Act 18-63 lists an effective date of October 1, 2018.

In July, 2020, the defendant, as a self-represented party, filed a motion to correct an illegal sentence, pursuant to Practice Book § 43-22.³ The defendant subsequently was appointed counsel⁴ and, on December 18, 2020, filed an amended motion to correct an illegal sentence, alleging that § 2 of P.A. 18-63 applied retroactively to his sentence of special parole. Specifically, the defendant claimed that because P.A. 18-63 was a "procedural rule ... intended to clarify a preexisting statute," the legislature intended that it apply retroactively. Accordingly, because the sentencing court never determined that a period of special parole was necessary to ensure public safety, the defendant claimed that the court should vacate that part of his sentence and hold a new sentencing hearing in order to consider the factors now set forth in § 54-125e (b) (1).

In response, the state filed an opposition to the defendant's motion to correct an illegal sentence arguing, inter alia, that the legislature did not intend P.A. 18-63 to apply retroactively. The state also contended that, even under the amended statute, the defendant would still qualify for a period of special parole due to his criminal history and the violent nature of the underlying offense. The court heard argument from both parties on February 10, 2021.

On February 23, 2021, the court denied the defendant's motion to correct an illegal sentence. In its memorandum of decision, the court found that there was "neither any evidence of an intent that [P.A. 18-63] be retroactive nor any authority in the case law for [that] proposition" and determined that "[t]he nature of the change to [ § 54-125e ] [was] clearly substantive in that factual findings must be made by the court relative to [the defendant's] history and circumstances in order to place [the defendant] on special parole under the current guidelines." In addition, the court relied on our Supreme Court's decision in State v. Bischoff , 337 Conn. 739, 761–62, 258 A.3d 14 (2021), for the proposition that, in the absence of clear legislative intent, criminal statutes that prescribe or define punishment apply prospectively. Accordingly, the court concluded that P.A. 18-63 did not apply retroactively. This appeal followed.

We begin by setting forth the standard of review applicable to this claim. "Ordinarily, claims that the trial court improperly denied a defendant's motion to correct an illegal sentence are reviewed pursuant to an abuse of discretion standard. ... Nonetheless, a trial court's determination of whether a new statute is to be applied retroactively or only prospectively presents a question of law over which this court exercises plenary review." (Citation omitted.) State v. Smith , supra, 209 Conn. App. at 301, 268 A.3d 127.

I

The defendant first claims that § 2 of P.A. 18-63 was intended to apply retroactively to his sentence of special parole because § 54-125e, as amended by § 2 of P.A. 18-63, is procedural in nature, rather than substantive. See State v. Nathaniel S. , 323 Conn. 290, 294–96, 146 A.3d 988 (2016) (explaining that, in absence of clear expression of legislative intent, procedural statutes are presumed to apply retroactively whereas substantive statutes apply only prospectively). We are not persuaded.

The defendant's claim is governed by this court's decision in State v. Omar , 209 Conn. App. 283, 268 A.3d 726 (2021), cert. denied, 342 Conn. 906, 270 A.3d 691 (2022). In Omar , the defendant argued, as does the defendant in the present case, that § 54-125e (b), as amended by § 2 of P.A. 18-63, is procedural in nature and therefore presumed to apply retroactively. Id., at 289–90, 268 A.3d 726. Specifically, the defendant in State v. Omar , supra, at 290, 268 A.3d 726, contended that this court should apply to P.A. 18-63 the retroactivity analysis set forth in State v. Nathaniel S. , supra, 323 Conn. at 295, 146 A.3d 988, which provides, in relevant part, that "[p]rocedural statutes have been traditionally viewed as affecting remedies, not substantive rights, and therefore leave the preexisting scheme intact. ... [Accordingly] we have presumed that procedural ... statutes are intended to apply retroactively absent a clear expression of legislative intent to the contrary ...." (Internal quotation marks omitted.) This court rejected the argument that P.A. 18-63 is procedural in nature. Rather, this court determined that, unlike the court in Nathaniel S. , which concluded that No. 15-183 of the 2015 Public Acts (P.A. 15-183) was procedural due to the act's "automatic transfer" provision⁵ ; State v. Nathaniel S. , supra, at 301, 146 A.3d 988 ; the special parole statutes at issue merely provided the "option of imposing special parole as one of multiple punishments." State v. Omar , supra, at 290–91, 268 A.3d 726. This court proceeded to clarify that "choosing to impose special parole was an act of discretion, as opposed to the automatic transfer statute at issue in Nathaniel S. , which applies to every fifteen year old charged with certain types of crimes." Id., at 291–92, 268 A.3d 726.

This court then determined that, because P.A. 18-63 repealed and replaced the imposition of a form of punishment for a criminal conviction, this court's retroactivity analysis was controlled by our Supreme Court's decisions in State v. Kalil , 314 Conn. 529, 107 A.3d 343 (2014), and State v. Bischoff , supra, 337 Conn. 739, 258 A.3d 14,⁶ as well as our criminal savings statutes, General Statutes §§ 54-194⁷ and 1-1 (t).⁸ State v. Omar , supra, 290–92, 268 A.3d 726 ; see also State v. Smith , supra, 209 Conn. App. at 307, 268 A.3d 127. Specifically, this court noted that the decisions in Kalil and Bischoff established that, in the absence of a clear and unequivocal expression of legislative intent that an amendment to a criminal penalty applies retroactively, an act repealing and replacing the imposition of...