State v. Kalil

• Decision Date: 25 November 2014
• Docket Number: SC19016
• Parties: STATE v. KALIL
• Court: Connecticut Supreme Court

STATE v. KALIL

SC19016

Supreme Court of Connecticut

November 25, 2014

DISSENT

EVELEIGH, J., concurring and dissenting. I respectfully dissent. Although I agree with part I of the majority opinion, which concludes that the Appellate Court properly determined that the trial court did not abuse its discretion in admitting Raymond Driscoll's testimony because the testimony was relevant and not unduly prejudicial, I disagree with part II of the opinion, in which the majority concludes that the amelioration doctrine should not be employed in the present case so as to apply No. 09-138, § 2, of the 2009 Public Acts (P.A. 09-138), retroactively to the defendant, Albert Kalil. In my view, the savings statutes relied upon by the majority do not apply in the context of P.A. 09-138. Therefore, I respectfully dissent from part II of the majority opinion.

The amelioration doctrine dictates that P.A. 09-138 should be applied retroactively. The amelioration doctrine provides that "amendments to statutes that lessen their penalties are applied retroactively State v. Graham, 56 Conn. App. 507, 511, 743 A.2d 1158 (2000); see also Castonguay v. Commissioner of Correction, 300 Conn. 649, 663, 16 A.3d 676 (2011) (under amelioration doctrine, "when [the] legislature has amended [a] statute to mitigate [the] penalty for [a] crime, [the] new law applies to cases in which [the] defendant committed [the] crime before [the] amendment, but was sentenced after [the] amendment"), citing In re Estrada, 63 Cal. 2d 740, 745-6, 408 P.2d 948, 48 Cal. Rptr. 172 (1965). As the United States Court of Appeals for the Tenth Circuit has explained, "where a criminal statute is amended, lessening the punishment, a defendant is entitled to the benefit of the new act, although the offense was committed prior thereto." Moorehead v. Hunter, 198 F.2d 52, 53 (10th Cir. 1952). "[T]he predominant state court view . . . favors retroactive application of ameliorative sentencing legislation despite a general savings statute." Holiday v. United States, 683 A.2d 61, 66 (D.C. 1996), cert. denied sub nom. Palmer v. United States, 520 U.S. 1162, 117 S. Ct. 1349, 137 L. Ed. 2d 506 (1997). Under this doctrine, "[t]he key date is the date of final judgment. If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies." (Internal quotation marks omitted.) People v. Vieira, 35 Cal. 4th 264, 305, 106 P.3d 990, 25 Cal. Rptr. 3d 337, cert. denied, 546 U.S. 984, 126 S. Ct. 562, 163 L. Ed. 2d 473 (2005), quoting In re Estrada, supra, 744. This rule applies "except when the [l]egislature, in enacting the amendment, has expressed a contrary intent . . . ." (Citation omitted; emphasis omitted.) People v. Utsey, 7 N.Y.3d 398, 402, 855 N.E.2d 791, 822 N.Y.S.2d 475 (2006). In Utsey, the New York Court of Appeals explained that "[t]he gen-eral rationale for the amelioration doctrine is that by mitigating the punishment the [l]egislature is necessarily presumed—absent some evidence to the contrary— to have determined that the lesser penalty sufficiently serves the legitimate demands of the criminal law. Imposing the harsher penalty in such circumstances would serve no valid penological purpose . . . . However, when the [l]egislature manifests a specific intent that an ameliorative amendment not be retroactively applied to underlying acts committed before the amendment's effective date, then the usual presumption—that the [l]egislature must have intended that the harsher penalty should no longer be applied to anyone—will have been rebutted, and the legislative will that the amendment apply only prospectively must be given effect." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Id. In view of the fact that the amendment was passed and became effective before both the dates of trial and sentencing, I would apply the amelioration doctrine in the present case. There is simply no language in the amendment to the statute indicating that the statute was only to have prospective application.

Both New York and California follow the amelioration doctrine. It is particularly appropriate for us to look to New York law for guidance because "drafters of the [Connecticut Penal Code] relied heavily upon . . . the [P]enal [C]ode of New York . . . ." (Internal quotation marks omitted.) State v. Albert, 252 Conn. 795, 811, 750 A.2d 1037 (2000); see also State v. Havican, 213 Conn. 593, 601, 569 A.2d 1089 (1990).

At the present time, sixteen states have approved the doctrine, either by statute or judicial decision; see, e.g., State v. Stafford, 129 P.3d 927, 932 (Alaska App. 2006); while three states and the federal courts have rejected the doctrine by judicial decision. See, e.g., Moton v. State, 242 Ga. App. 397, 399-400, 530 S.E.2d 31 (2000). In all of the decisions which have accepted the doctrine, the rationale for the decisions is based upon the same foundation. Namely, "[t]his application of statutes reducing punishment accords with the best modern theories concerning the functions of punishment in criminal law. According to these theories, the punishment or treatment of criminal offenders is directed toward one or more of three ends: (1) to discourage and act as a deterrent upon future criminal activity, (2) to confine the offender so that he may not harm society and (3) to correct and rehabilitate the offender. There is no place in the scheme for punishment for its own sake, the product simply of vengeance or retribution. . . . A legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law. Nothing is to be gained by imposing the more severe penalty after such a pronouncement; the excess in punishmentcan, by hypothesis, serve no purpose other than to satisfy a desire for vengeance. As to a mitigation of penalties, then, it is safe to assume, as the modern rule does, that it was the legislative design that the lighter penalty should be imposed in all cases that subsequently reach the courts." (Citation omitted.) People v. Oliver, 1 N.Y.2d 152, 160, 134 N.E.2d 197, 151 N.Y.S.2d 367 (1956). In Oliver, the fourteen year old defendant was charged with homicide for killing his younger brother. Id., 154. At the time of the offense, persons older than seven and younger than sixteen could be prosecuted for murder or any other capital crime. Id., 155. Three years after the offense, the legislature amended New York's homicide statute so that a child under the age of fifteen may be subjected only to treatment as a "delinquent" and not to punishment as a "criminal." Id. Even though the legislature's amendment changed the substantive nature of the crime, namely the identity element and the punishment, the New York Court of Appeals held that the change was ameliorative and, thus, applied retroactively. In the court's view, "[t]he amendatory statute unquestionably [fell] within the category of legislation reducing penalties for criminal activity. Its object and effect were to relieve children of a certain age from punishment as criminals . . . ." Id., 161.

While P.A. 09-138 did not reduce the punishment for larceny in the second degree, or reclassify it as a lesser felony, it had exactly that effect with respect to the defendant's conduct. Specifically, P.A. 09-138 increased the value of the goods necessary to constitute larceny in the second degree, a class C felony, from $5000 to $10,000. Thus, the principle expressed in Oliver is equally applicable in the present situation. Our legislature decided to increase the value of the property taken before an individual may be punished for a class C felony—and there is no basis, other than a desire for vengeance, not to make the legislature's considered judgment retroactive.

Connecticut's two general savings clauses, General Statutes §§ 1-1 (t) and 54-194, in my view, contrary to the majority's position, do not bar retroactive application of P.A. 09-138. Section 1-1 (t) provides: "The repeal of an act shall not affect any punishment, penalty or forfeiture incurred before the repeal takes effect, or any suit, prosecution, or proceeding pending at the time of the repeal, for an offense committed, or for the recovery of a penalty or forfeiture incurred under the act repealed." Section 54-194 provides: "The repeal of any statute defining or prescribing the punishment for any crime shall not affect any pending prosecution or any existing liability to prosecution and punishment therefor, unless expressly provided in the repealing statute that such repeal shall have that effect." First, most courts in other states have held that general savings statutes do "not indicate that the [l]egislature intended the statute priorto amendment to provide the terms of punishment where an amendatory act mitigates the authorized terms of punishment but continues to proscribe the same conduct." People v. Schultz, 435 Mich. 517, 529, 460 N.W.2d 505 (1990); see also State v. Reis, 115 Haw. 79, 165 P.3d 980 (2007) (ameliorative amendments applied to defendants because "neither of the statutes at issue contained specific savings clauses" [emphasis omitted]).

In my view, these savings statutes do not apply because we are not dealing with the repeal of a statute, as required by the savings statutes, rather, we are dealing with an amendment to a statute. Further, while the value of the goods necessary to convict of the class C felony has changed, the statute continued to proscribe the same conduct. In Simborski v. Wheeler, 121 Conn. 195, 196, 183 A. 688 (1936), this court considered a case in which the plaintiff was found guilty of murder in the first degree on April 25, 1935, the crime having been committed on March 5, 1935. At the time, the prescribed manner of...