State v. Holley

Citation197 Conn.App. 161,231 A.3d 318
Decision Date28 April 2020
Docket NumberAC 42104
CourtAppellate Court of Connecticut
Parties STATE of Connecticut v. Jubar T. HOLLEY

Deborah G. Stevenson, assigned counsel, for the appellant (defendant).

Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and John F. Fahey, supervisory assistant state's attorney, for the appellee (state).

Lavine, Moll and Flynn, Js.

LAVINE, J.

The defendant, Jubar T. Holley, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. The defendant's central claim on appeal is that the trial court improperly concluded that his consecutive sentences did not violate the federal and state constitutional prohibitions against

double jeopardy. Specifically, the defendant claims that the trial court improperly denied his motion to correct an illegal sentence by (1) relying on federal and sister state case law, rather than on Connecticut precedent, (2) applying an incorrect standard of review, and (3) failing to apply the rule of lenity.1 To resolve the defendant's appeal, we are required to determine whether the legislature, in enacting General Statutes (Rev. to 2013) § 53a-217 (a) (1),2 the criminal possession of a firearm statute, intended to punish the possession of each firearm or to punish only once the act of possessing multiple firearms. Our resolution of this question informs our analysis of the defendant's ancillary claim that the trial court improperly failed to apply the rule of lenity. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. On March 14, 2013, the police executed a search warrant at the defendant's home and seized numerous firearms and firearm related items. The defendant was charged with thirty-eight counts of criminal possession of a firearm in violation of § 53a-217 (a) (1). The state alleged as to each count that "on or about March 15, 2013 at approximately 9:00 a.m. at or near 22 Livingston Road, East Hartford, Connecticut, the defendant possessed a firearm and had been convicted of a felony." The defendant filed a motion to suppress on the ground that the search warrant was invalid, which the court denied. The defendant pleaded nolo contendere to the first four counts of criminal possession of a firearm in violation of § 53a-217 (a) (1), conditioned on his right to appeal from the trial court's denial of his motion to suppress. The defendant's conviction was upheld by our Supreme Court. See State v. Holley , 324 Conn. 344, 346–50, 152 A.3d 532 (2016)

(affirming denial of defendant's motion to suppress).

The trial court sentenced the defendant to five years of incarceration on count one, two years of incarceration, followed by three years of special parole on each of counts two and three, consecutive to one another and consecutive to count one, and five years of incarceration on count four, to run concurrently with count one. The defendant's total effective sentence was nine years of incarceration, followed by six years of special parole.

On February 17, 2017, the self-represented defendant filed a motion to correct an illegal sentence and argued, inter alia, that his sentences violated the fifth and fourteenth amendments to the United States constitution and article first, §§ 8, 10, and 20, of the constitution of Connecticut3 because he received four sentences for one crime that was predicated on essentially the same facts, offense, conduct, and time, and for a single occurrence. The trial court, Dewey, J. , concluded that there had been no constitutional violation and dismissed the motion on July 28, 2017.

On January 19, 2018, the self-represented defendant filed a second motion to correct an illegal sentence and a memorandum of law in support thereof. The defendant asserted that, because the four firearms were found in a single event, his possession of them constituted only one offense. He argued, therefore, that the imposition of consecutive sentences violated the federal

and state constitutional prohibitions against double jeopardy.4 The defendant retained counsel who filed supplemental memoranda in support of the defendant's motion on April 13 and May 23, 2018. The state argued in opposition that the defendant pleaded nolo contendere to four separate and distinct counts and, with respect to each count, the defendant received a sentence that was within the statutory guidelines and did not exceed the maximum sentence set by the legislature. The motion was heard by the court, Schuman, J. , on July 16, 2018.

The court issued a memorandum of decision on July 19, 2018, denying the defendant's motion. The court resolved the defendant's claim—that his consecutive sentences based on a single act of possession constituted multiple punishments for the same offense in violation of the double jeopardy clause5 —by analyzing the controlling statute, § 53a-217 (a) (1). The court concluded: "The use of the word ‘a’ in § 53a-217 (a) defines the unit of prosecution in singular terms. In multiple instances in this case the defendant was in possession of ‘a firearm.’ Accordingly, the [sentencing] court properly imposed separate sentences for each firearm possessed."

The defendant appealed from the denial of his second motion to correct an illegal sentence.

I

The defendant claims that the trial court improperly concluded that his consecutive sentences did not violate

the constitutional prohibition against double jeopardy. The defendant argues that § 53a-217 (a) (1) and its legislative history do not reveal whether the legislature intended to authorize multiple punishments for the simultaneous possession of multiple firearms and that the statute is therefore ambiguous and requires the finding of a double jeopardy violation.6 The state counters that the plain and unambiguous use of the language "a firearm"—in the singular—establishes that each possession of a firearm by a convicted felon constitutes a separate, punishable violation of the statute. We agree with the state.7

We begin with the relevant legal principles and the applicable standard of review. "A motion to correct an

illegal sentence under Practice Book § 43-22 constitutes a narrow exception to the general rule that, once a defendant's sentence has begun, the authority of the sentencing court to modify that sentence terminates." (Internal quotation marks omitted.) State v. Brown , 192 Conn. App. 147, 151, 217 A.3d 690 (2019). "A violation of a defendant's right against double jeopardy is one of the permissible grounds on which to challenge the legality of a sentence." State v. Santiago , 145 Conn. App. 374, 379, 74 A.3d 571, cert. denied, 310 Conn. 942, 79 A.3d 893 (2013).

"Double jeopardy claims present a question of law over which our review is plenary.... The fifth amendment to the United States constitution provides in relevant part: No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb .... The double jeopardy clause of the fifth amendment is made applicable to the states through the due process clause of the fourteenth amendment." (Citation omitted; internal quotation marks omitted.) State v. Carlos P. , 171 Conn. App. 530, 537, 157 A.3d 723, cert. denied, 325 Conn. 912, 158 A.3d 321 (2017). "The Connecticut constitution provides coextensive protection, with the federal constitution, against double jeopardy.... This constitutional guarantee ... protects against multiple punishments for the same offense [in a single trial] ...." (Internal quotation marks omitted.) State v. McColl , 74 Conn. App. 545, 566, 813 A.2d 107, cert. denied, 262 Conn. 953, 818 A.2d 782 (2003).

"The proper double jeopardy inquiry when a defendant is convicted of multiple violations of the same statutory provision is whether the legislature intended to punish the individual acts separately or to punish only the course of action which they constitute.... The issue, though essentially constitutional, becomes one of statutory construction." (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Hearl , 182 Conn. App. 237, 272, 190 A.3d 42, cert. denied, 330 Conn. 903, 192 A.3d 425 (2018).

"[T]he meaning of a statute shall, in the first instance, be ascertained from 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.... [E]very case of statutory interpretation ... requires a threshold determination as to whether the provision under consideration is plain and unambiguous. This threshold determination then governs whether extratextual sources can be used as an interpretive tool. ... [O]ur case law is clear that ambiguity exists only if the statutory language at issue is susceptible to more than one plausible interpretation." (Internal quotation marks omitted.) Id., at 272–73, 190 A.3d 42.

In the present case, there is no dispute that the defendant was convicted of four counts charging violations of the same statutory section. Therefore, the question with which we are presented is whether the legislature, in enacting § 53a-217 (a) (1), intended to punish the possession of each firearm or to punish only once the act of possessing all of the firearms. The trial court addressed this question in its memorandum of decision, and we do the same pursuant to our plenary review.

In March, 2013, at the time the defendant was arrested for criminally possessing firearms, General Statutes (Rev. to 2013) § 53a-217 provided in relevant part: "(a) A person is guilty of criminal possession of a firearm or electronic defense weapon when such person possesses a firearm or electronic defense weapon and (1) has been convicted of a felony ...." (...

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