State v. Johnson

• Decision Date: 31 March 2015
• Docket Number: No. 19139.,19139.
• Citation: 316 Conn. 34,111 A.3d 447
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Jennifer JOHNSON.

316 Conn. 34

111 A.3d 447

STATE of Connecticut

v.Jennifer JOHNSON.

No. 19139.

Supreme Court of Connecticut.

Argued Oct. 29, 2014.

Decided March 31, 2015.

Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Kevin Lawlor, state's attorney, and Paul O. Gaetano, supervisory assistant state's attorney, for the appellant (state).

Annacarina Jacob, senior assistant public defender, for the appellee (defendant).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD and ESPINOSA, Js.

Opinion

ESPINOSA, J.

In this certified appeal, we consider whether a trial court is required to hold a resentencing hearing when a defendant's conviction and sentence for a lesser included offense is vacated because it constituted a violation of the double jeopardy clause, but there is no evidence in the record that leaving the defendant's sentences intact for the remaining offenses undermines the trial court's original sentencing intent. The state appeals from the judgment of the Appellate Court, upon our grant of its petition for certification, limited to the following issue: “In view of our recent decision in State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013), did the Appellate Court properly determine that the defendant had to be resentenced, under the aggregate package theory, on the greater offense of conspiracy to possess narcotics with intent to sell?” State v. Johnson, 308 Conn. 938, 66 A.3d 881 (2013). We conclude that, although the trial court has the discretion to resentence the defendant, Jennifer Johnson, it was improper under the circumstances of the present case to order it to hold a resentencing hearing. We answer the certified question in the negative and reverse in part the judgment of the Appellate Court.¹

The record reveals the following factual background and procedural history.² The defendant was convicted, following a jury trial, of conspiracy to possess narcotics with intent to sell in violation of General Statutes §§ 21a–277 (a) and 53a–48 (a), conspiracy to possess narcotics in violation of General Statutes §§ 21a–279 (a) and 53a–48 (a), possession of narcotics in violation of § 21a–279 (a), possession of less than four ounces of marijuana in violation of § 21a–279 (c), and possession of drug paraphernalia in violation of General Statutes § 21a–267 (a). State v. Johnson, 137 Conn.App. 733, 736, 49 A.3d 1046 (2012). For each of the three narcotics counts, the trial court sentenced the defendant to five years of incarceration, execution suspended after eighteen months, and three years of probation, all sentences to run concurrently. As to the remaining counts, the court sentenced the defendant to one year of incarceration for the count of possession of less than four ounces of marijuana, and to three months of incarceration for the count of possession of drug paraphernalia, to run concurrently with the sentences for the narcotics counts. The defendant's total effective sentence for all charges was five years of incarceration, execution suspended after eighteen months, and three years of probation.

At the Appellate Court, the defendant claimed, inter alia, that the “separate conspiracy convictions of possession and possession with intent to sell must be reversed because they represent but one agreement and violate the constitutional double jeopardy clause ....” Id., at 736, 49 A.3d 1046. Relying on the decision of the United States Supreme Court in Rutledge v. United States, 517 U.S. 292, 307, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996), the Appellate Court held that because conspiracy to possess narcotics is a lesser included offense of conspiracy to possess narcotics with intent to sell, the defendant could not properly be convicted and sentenced on both counts. State v. Johnson, supra, 137 Conn.App. at 757, 49 A.3d 1046. Accordingly, the court reversed the judgment with respect to the conviction of conspiracy to possess narcotics and remanded the case to the trial court with direction to vacate both the conviction and the sentence for that lesser included offense. Id., at 766, 49 A.3d 1046. The Appellate Court also vacated the defendant's sentence for the greater offense of conspiracy to possess narcotics with intent to sell, and “remanded for resentencing on that charge in accordance with the aggregate package theory....” Id. The court did not vacate the sentences for the remaining counts. Id. This certified appeal followed.

The state does not challenge that portion of the judgment of the Appellate Court vacating the defendant's conviction and sentence on the lesser included offense of conspiracy to possess narcotics. Instead, the state appeals only with respect to the Appellate Court's decision to vacate the defendant's sentence for conspiracy to possess narcotics with intent to sell and to remand the case to the trial court with direction to resentence the defendant on that charge. Disturbing the defendant's sentence for the conviction of the greater offense, the state argues, conflicts with this court's decision in State v. Polanco, supra, 308 Conn. at 242, 61 A.3d 1084 and is neither necessary nor appropriate under the aggregate package theory of sentencing. The defendant responds that, because the record does not clearly indicate the trial court's original sentencing intent, the Appellate Court properly remanded for resentencing under the aggregate package theory.³ Because we conclude that under the facts of the present case, there is no evidence in the record that the Appellate Court's decision vacating the conviction and sentence of the lesser included offense of conspiracy to commit possession of narcotics altered the original sentencing intent of the trial court, we reverse in part the judgment of the Appellate Court.

Before we proceed to the merits of the appeal, we note our agreement with the position that both the state and the defendant expressed during oral argument before this court, namely, that this court's decision in State v. Polanco, supra, 308 Conn. at 242, 61 A.3d 1084 did not address the question presented in this appeal. In Polanco, we revisited the appropriate remedy to which a defendant should be entitled upon establishing that he had been convicted of and sentenced on both a greater and lesser included offense in violation of the double jeopardy clause. Our prior precedent had followed the merger of convictions approach, vacating the sentence for the lesser included offense, but leaving the conviction for that offense intact and merging it with the conviction for the greater offense.

State v. Chicano, 216 Conn. 699, 725, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S.Ct. 2898, 115 L.Ed.2d 1062 (1991), overruled in part by State v. Polanco, 308 Conn. 242, 245, 61 A.3d 1084 (2013). The defendant in Polanco relied on Rutledge v. United States, supra, 517 U.S. at 292, 116 S.Ct. 1241 to argue that the proper remedy was to vacate both the conviction and the sentence for the lesser included offense. We declined to resolve the issue on constitutional grounds, instead exercising our supervisory authority to conclude that “when a defendant has been convicted of greater and lesser included offenses, the trial court must vacate the conviction for the lesser offense rather than merging the convictions pursuant to Chicano. ” State v. Polanco, supra, at 245, 61 A.3d 1084. Because the defendant in Polanco did not request to be resentenced when his case was remanded to the trial court, this court did not consider in that decision whether, after vacating the defendant's conviction and sentence for a lesser included offense on double jeopardy grounds, a reviewing court properly should remand the case for resentencing pursuant to the aggregate package theory. Accordingly, Polanco does not govern the issue before us in the present appeal. Instead, the issue is controlled by our case law discussing the aggregate package theory of sentencing.

The purpose of the aggregate package theory of sentencing is to ensure that, notwithstanding the judgment of the reviewing court, the original sentencing intent of the trial court is effectuated. In State v. Raucci, 21 Conn.App. 557, 563–64, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990), in which the Appellate Court first adopted the aggregate package theory, the court explained: “It is axiomatic that a trial court has wide discretion to tailor a just sentence in order to fit a particular defendant and his crimes, as long as the final sentence falls within the statutory limits.... This same wide sentencing discretion equally applies to a trial court's restructuring of a sentencing plan for a defendant who has been convicted in a multiple count case and who faces a permissible range of punishment based on the individual counts. [W]hen a defendant is found guilty on a multicount indictment, there is a strong likelihood that the ... court will craft a disposition in which the sentences on the various counts form part of an overall plan. When the conviction on one or more of the component counts is vacated, common sense dictates that the judge should be free to review the efficacy of what remains in light of the original plan, and to reconstruct the sentencing architecture ... within applicable constitutional and statutory limits, if that appears necessary in order to ensure that the punishment still fits both crime and criminal.” (Citations omitted; internal quotation marks omitted.) When we endorsed the Appellate Court's adoption of the aggregate package theory, we explained that a defendant “in appealing his conviction and punishment, has voluntarily called into play the validity of the entire sentencing package....” (Internal quotation marks omitted.) State v. Miranda, 260 Conn. 93, 129, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S.Ct. 224, 154 L.Ed.2d 175 (2002).

Although we also stated that “the proper remedy is to vacate [the sentence] in its entirety”; (internal quotation marks omitted) id.; that statement must be...