State v. Jenkins

• Decision Date: 18 February 1986
• Citation: 198 Conn. 671,504 A.2d 1053
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Mark JENKINS.

Page 1053

504 A.2d 1053

198 Conn. 671

STATE of Connecticut v. Mark JENKINS.

Supreme Court of Connecticut.

Argued Jan. 9, 1986.

Decided Feb. 18, 1986.

Jon C. Blue, Assistant Public Defender, with whom, on brief, was Joette Katz, Public Defender, for appellant (defendant).

Roland D. Fasano, Asst. State's Atty., with whom, on brief, was Arnold Markle, State's Atty., for appellee (state).

PETERS, Chief Justice.

The only issue in this appeal is whether a trial court has discretion to suspend a part of the sentence of a person convicted of kidnapping in the first degree without the use of a firearm. The defendant, Mark Jenkins, was convicted, after a trial to a jury, of burglary in the second degree, a violation of General Statutes § 53a-102, ¹ and kidnapping in the first degree, a violation of General Statutes § 53a-92(a)(2)(C). ² The trial court, after determining that it was required to impose a minimum ten year sentence without suspension for the kidnapping conviction, sentenced the defendant to concurrent sentences of two years' imprisonment for the burglary conviction and ten years' imprisonment for the kidnapping conviction. Finding error in the trial court's interpretation of the applicable statutes, we remand for resentencing.

For the purposes of this appeal, it is sufficient to note that the state proved, at trial, that the defendant and Gregory Howard in the early hours of July 14, 1983, broke into the kitchen of an apartment at Brookside Avenue in New Haven. When the fifteen year old victim entered the kitchen to investigate the disturbance, the two men choked him, threatened him, and dragged him outside. The victim was dragged in the direction of a nearby park. Once the victim was no longer being choked, he began to scream and the men fled the scene. The victim ran to the home of a neighbor to report the crime. A medical examination disclosed that the victim had sustained neck injuries that were consistent with his having been choked. The defendant does not contest that this evidentiary showing was sufficient to sustain his conviction of the crimes with which he was charged. ³

At the sentencing proceedings, the defendant urged the trial court to consider suspending part of the ten year sentence, which is the minimum sentence for conviction under General Statutes § 53a-92. The defendant acknowledged that this statute describing the offense of kidnapping in the first degree made the offense a class A felony, and that §§ 53a-28 and 53a-29 prohibited suspension of sentences for class A felonies. However, he asked the court to read these statutes in conjunction with the provisions of § 53a-92a, governing kidnapping in the first degree with a firearm. Because the latter statute permits suspension of the sentence after one year, the defendant argued that an ambiguity existed between the statutes. He therefore urged the court to consider suspending the sentence in this case after seven years.

The trial court, although agreeing with the defendant that there was some ambiguity in the relationship between the relevant statutes, determined that it was constrained to follow §§ 53a-28 and 53a-29 and to impose a mandatory sentence. The court expressly stated to the defendant that "[p]erhaps your recommended sentence might be the better avenue to take but I don't feel the law permits me to do so." The record is therefore clear that the trial court, despite the defendant's argument to the contrary, ruled that it was constrained not to consider a partially suspended sentence.

Our review of the propriety of the sentencing proceedings at trial must start with a close reading of the applicable statutes. The defendant stands convicted of the crime of kidnapping in the first degree, a crime which, under General Statutes § 53a-92(b), ⁴ is punishable as a class A felony. Class A felonies other than murder are punishable, under General Statutes § 53a-35a(3), ⁵ by a term of imprisonment of "not less than ten years nor more than twenty-five years." Although General Statutes § 53a-28 ⁶ authorizes the suspension of a term of imprisonment in whole or in part, and the substitution therefor of a period of probation or conditional discharge, General Statutes § 53a-29(a) and (b) ⁷ preclude probation or conditional discharge, and hence suspension of imprisonment, for class A felonies. By a logic that both parties recognize as unassailable, these statutes require the imposition of a term of imprisonment not subject to suspension upon those who, like the defendant, are convicted of a class A felony. State v. Lopez, 197 Conn. 337, 353-55, 497 A.2d 390 (1985). These statutes, read by themselves, fully support the position taken by the trial court in this case.

Unfortunately, the unassailable logic of this statutory pattern must be reconciled with the enactment, in 1975, of General Statutes § 53a-92a. ⁸ That statute contains three provisions. First, it describes the elements of the new crime of kidnapping in the first degree with a firearm. Second, it forbids simultaneous conviction of this new crime and the pre-existing crime of kidnapping in the first degree. Third, and most significantly for present purposes, it provides, in subsection (b), that "[k]idnapping in the first degree with a firearm is a class A felony for which one year of the sentence imposed may not be suspended or reduced by the court." For the crime of kidnapping in the first degree with a firearm, concededly a crime more serious than that of kidnapping in the first degree, the legislature has substituted a one year nonsuspendible minimum sentence for the previously established ten year mandatory minimum sentence. The effect of the enactment of § 53a-92a(b) is to link a more serious crime with a less serious penalty.

The legislative history of the enactment of § 53a-92a reveals that it was part of a statutory package; Public Acts 1975, No. 75-380; intended to strengthen penalties for the commission of designated crimes when the commission of those crimes involved the use of firearms. 18 S.Proc., Pt. 5, 1975 Sess., pp. 2293-96 (remarks of Sen. David M. Barry); p. 2297 (remarks of Sen. Joseph P. Flynn) and; pp. 2296-97 (remarks of Sen. George L. Gunther); 18 H.R.Proc., Pt. 10, 1975 Sess., p. 4853 (remarks of Rep. James T. Healey); 18 H.R.Proc., Pt. 10, 1975 Sess., p. 4859 (remarks of Rep. Walter J. Henderson); pp. 4858-59 (remarks of Rep. Paul C. DeMennato). The legislature assumed that existing mandatory minimum sentences provided adequate sanctions for serious crimes but sought to add a one year mandatory minimum sentence for lesser class B, class C and class D felonies. The sole class A felony included in the public act is kidnapping in the first degree. As the state suggests, it is likely that the legislature simply erred in including kidnapping in the first degree in Public Acts 1975, No. 75-380, mistakenly deeming it among the "lesser crimes" requiring stiffer penalties.

The question before us, then, is how this court should deal with legislative error that mistakenly assigns a lesser penalty to a greater crime. Read literally, the statutes impose on this defendant, convicted of kidnapping in the first degree, a mandatory minimum sentence that exceeds by nine years the mandatory minimum sentence that would be faced by someone convicted of kidnapping in the first degree with a firearm. Such a discrepancy necessarily implicates the equal protection clauses of our federal and state constitutions. ⁹

To avoid a constitutional confrontation, each of the parties urges us to construe the statutes to effectuate legislative intent. They urge us to consider a variety of suggestions for interpretations that might serve to reconcile the 1975 statute with the pre-existing sentencing pattern. None of these arguments, in the form advanced by the litigants, is ultimately persuasive.

The defendant argues that we should assign primary importance to the legislative intent, in Public Acts 1975, No. 75-380, of providing more severe penalties for crimes involving the use of firearms than for those that do not involve such use. Accordingly, the defendant maintains that we should construe the statutes in their entirety to permit unlimited judicial discretion to suspend sentences in crimes not involving the use of firearms. The defendant would have us find ambiguity in §§ 53a-28 and 53a-29 so that a trial court retains discretion to suspend any sentence, even upon conviction of a class A felony. The state persuasively responds that the language of the statutes precludes such a construction. A court may suspend imprisonment, under § 53a-28(b)(5), only if it instead imposes a sentence of probation or of conditional discharge. Under § 53a-29(a) and (b), a court may not impose a sentence of probation or of conditional discharge on a class A felon. Indeed, the defendant himself concedes that §§ 53a-28 and 53a-29, in the absence of § 53a-92a, unambiguously preclude the discretionary authority for which he argues, and this court has recently so held. State v. Lopez, supra.

The state offers three different constructions to implement the intent of the public act to enhance penalties for firearm-related crimes. Its first suggestion is that the new statute creates a statutory safety net to provide a minimum mandatory prison term of one year in the event that a future legislature dismantles the existing statutory framework requiring mandatory minimum sentences for class A felonies. The state itself recognizes that this interpretation "is not precisely what the legislature intended" in enacting § 53a-92a. Its second suggestion is to view § 53a-92a not as a statute that creates a new offense but rather as a penalty-enhancing statute, intended to add an additional year to the mandatory minimum for firearm-related kidnappings. Although the legislature might have enacted a penalty-enhancing statute, the language of § 53a-92a unequivocally demonstrates that it did not do so. In subsec...