State v. Hickey
Decision Date | 23 December 2003 |
Docket Number | (AC 22847). |
Citation | 836 A.2d 457,80 Conn. App. 589 |
Court | Connecticut Court of Appeals |
Parties | STATE OF CONNECTICUT v. MICHAEL HICKEY |
West, DiPentima and Dupont, Js.
Alice Osedach-Powers, assistant public defender, with whom, on the brief, was Leslie K. Cavanagh, assistant public defender, for the appellant (defendant).
John A. East III, senior assistant state's attorney, with whom, on the brief, were Mary M. Galvin, state's attorney, and Kevin D. Lawlor, assistant state's attorney, for the appellee (state).
The defendant, Michael Hickey, appeals from the judgments of conviction1 of two counts of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes (Rev. to 1999) § 14-227a, Public Acts 1999, No. 99-255, § 1.2 The defendant claims that the trial court improperly denied his motion to dismiss because (1) as applied, § 14-227a (h), now (g), results in a violation of the ex post facto clause of the United States constitution and (2) the application of the statute constitutes a violation of his sixth amendment right to effective assistance of counsel under the United States constitution.3 We affirm the judgment of the trial court.
The following facts and procedural history are relevant to our resolution of the defendant's appeal. On March 11, 1991, and February 25, 1994, the defendant was convicted, under § 14-227a, of operating a motor vehicle while under the influence of alcohol. The statute in effect when those two incidents occurred had been amended in 1985 pursuant to Public Acts 1985, No. 85-387. Under subsection (h) of that statute, a second, third, fourth or subsequent violation was one that occurred within five years of a prior conviction for the same offense.4 In 1995, Public Acts 1995, No. 95-314, § 1, amended § 14-227a (h) by defining a subsequent violation as one that occurs within ten years of a prior conviction for the same offense.5 These five and ten year periods are referred to as "look back" periods. See 38 H.R. Proc., Pt. 19, 1995 Sess., p. 6829, remarks of Representative Dale W. Radcliffe. Additionally, in 1999, Public Acts 1999, No. 99-255, § 1, amended the statute to provide for increased penalties for repeat offenders.6
The defendant was arrested on separate charges of violating § 14-227a on June 1 and June 28, 2000. On April 4, 2001, the defendant filed a motion to dismiss the charges. The court denied the motion. Thereafter, on October 19, 2001, the defendant pleaded nolo contendere, as a third time offender, to both counts of § 14-227a. On February 5, 2002, the defendant was sentenced pursuant to General Statutes (Rev. to 1999) § 14-227a, Public Acts 1999, No. 99-255, § 1, to three years incarceration, suspended after one year mandatory time, and three years of probation.
The defendant first argues that § 14-227a, as applied, results in a violation of the ex post facto clause of the United States constitution in that the amended statute (1) resulted in greater punishment than that previously prescribed, (2) reduced the state's burden of proof and (3) deprived him of a defense. We disagree.
(Internal quotation marks omitted.) State v. Weiner, 61 Conn. App. 738, 747, 767 A.2d 1220, cert. denied, 256 Conn. 902, 772 A.2d 600 (2001).
The ex post facto clause prohibits, inter alia, the enactment of "any law which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." (Internal quotation marks omitted.) Weaver v. Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981).
The United States Supreme Court has held that a statute enhancing a defendant's sentence because he is a repeat offender does not violate the ex post facto clause even if one of the convictions on which the sentence is based occurred before the enactment of the statute. See Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 92 L. Ed. 1683 (1948). Moreover, the United States Supreme Court has consistently sustained repeat offender laws as penalizing only the last offense committed by a defendant. See Nichols v. United States, 511 U.S. 738, 747, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994).
Our own Supreme Court has reached the same conclusion. In State v. Holloway, 144 Conn. 295, 130 A.2d 562 (1957), the court rejected the contention that an enhanced sentence for a third time offender, under a statute enacted in 1955 and based on convictions in 1947 and 1952, constituted a violation of the ex post facto clause. Id., 301.
The situation in this case is very similar. The defendant's first two convictions occurred prior to the amendments of 1995 and 1999. Under the rationale of Holloway, it is clear that the defendant's 2002 conviction did not result in a second punishment for his convictions in 1991 and 1994. His punishment for the 2002 conviction was simply enhanced on the basis of his status as a repeat offender. Consequently, as the court succinctly stated in Holloway, "in no sense does the statute operate ex post facto." Id.7
The defendant relies principally on State v. Sanford, 67 Conn. 286, 289, 34 A. 1045 (1896), for the proposition that a law providing for greater punishment than previously had been prescribed would clearly be ex post facto if it applied retroactively. In Sanford, the defendant was convicted as a repeat offender under § 1 of chapter 331 of the Public Acts of 1895, a liquor law. The Sanford court interpreted the law to apply prospectively. The Connecticut Supreme Court has since explained the rationale behind Sanford. In the legislation at issue in Sanford, there was a clearly expressed legislative intent that the only convictions occurring after enactment of the legislation would qualify as prior convictions. State v. Holloway, supra, 144 Conn. 299-300.
The legislative scenario for § 14-227a is markedly different from that facing the Sanford court. Unlike the legislature promulgating the act of 1895, the legislature addressing § 14-227a intended to consider behavior occurring prior to the enactment of the amendment. See State v. Mattioli, 210 Conn. 573, 578, 556 A.2d 584 (1989) (); see also 38 H.R. Proc., Pt. 19, 1995 Sess., pp. 6829-30, remarks of Representative Dale W Radcliffe; 42 H.R. Proc., Pt. 19, 1999 Sess., pp. 6740-41, remarks of Representative John Wayne Fox. Because the legislative intent and purpose behind the respective statutes clearly were different, Sanford provides no support for the defendant's argument. Therefore, the defendant's argument that the amended statute results in an ex post facto violation by prescribing a greater punishment for a prior conviction must fail.
The defendant next claims that there is an ex post facto violation when the amendment effectively reduces the state's burden of proof. The defendant argues that a ten year, rather than a five year, look back period makes it easier to prove that he had two prior convictions, a necessary predicate to being considered a third time offender. The defendant further claims that the application of § 14-227a deprives him of the defense that his earlier convictions would fall outside the previous five year look back period. Obviously, that defense is not available under a ten year look back period.
Neither of those arguments is availing. In a case strikingly similar to the one at bar, the Maine Supreme Court held that "[w]hen a statute defines penalties for future offenses, defendants are put on notice that they can no longer rely on the former statutory scheme for whatever defense or protection it may have provided."8 State v. Chapman, 685 A.2d 423, 425 (Me. 1996). Moreover, (Citation omitted.) Atlas Realty Corp. v. House, 123 Conn. 94, 101, 192 A. 564 (1937). Because the defendant was effectively put on notice of the changes occurring in 1995 and 1999, he is precluded from relying on the five year look back period to prove that the state's...
To continue reading
Request your trial-
State v. King
...it was committed; or imposes additional punishment to that then prescribed." (Internal quotation marks omitted.) State v. Hickey , 80 Conn. App. 589, 593, 836 A.2d 457 (2003), cert. denied, 267 Conn. 917, 841 A.2d 1192 (2004). "Habitual criminal statutes increase the punishment for an offen......
-
State v. Lamb
...339 Pa.Super. 32, 488 A.2d 293 (1985). In this appeal, the State adds more cases to this line of authority: State v. Hickey, 80 Conn.App. 589, 836 A.2d 457 (2003); Botkin v. Commonwealth, 890 S.W.2d 292 (Ky.1994); State v. Bennett, 870 So.2d 447 (La.Ct.App.2004); Dixon v. State, 103 Nev. 27......
-
Provident Bank v. Lewitt
...Supreme Court]." (Citation omitted.) Atlas Realty Corp. v. House, 123 Conn. 94, 101, 192 A. 564 (1937); see also State v. Hickey, 80 Conn. App. 589, 596, 836 A.2d 457 (2003), cert. denied, 267 Conn. 917, 841 A.2d 1192 (2004). The defendant is presumed to be on notice of federal bankruptcy l......
-
King v. Commissioner of Correction, (AC 23734).
... ... App. 582 in calculating his discharge date, and that the court thereby violated the equal protection rights afforded him under the federal and state constitutions. We affirm the judgment of the habeas court ... The facts underlying this appeal are not in dispute, and relate to the ... ...