State v. Moore

• Decision Date: 06 March 2018
• Docket Number: AC 39808
• Citation: 182 A.3d 696,180 Conn.App. 116
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Jerome F. MOORE

180 Conn.App. 116

182 A.3d 696

STATE of Connecticut

v.Jerome F. MOORE

AC 39808

Appellate Court of Connecticut.

Argued November 29, 2017

Officially released March 6, 2018

Emily H. Wagner, assistant public defender, with whom was Michael K. Courtney, public defender, for the appellant (defendant).

Jennifer F. Miller, deputy assistant state's attorney, with whom, on the brief, were David Shepack, state's attorney, and David R. Shannon, senior assistant state's attorney, for the appellee (state).

DiPentima, C.J., and Bright and Bishop, Js.

BISHOP, J.

The defendant, Jerome F. Moore, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant claims that the court incorrectly concluded that (1) the 2015 amendment to General Statutes § 21a–279 (a), which the legislature passed during a special session in June, 2015; see Public Acts, Spec. Sess., June, 2015, No. 15–2, § 1; does not apply retroactively to his sentence,¹ and (2) his five year sentence does not violate the eighth amendment to the United States constitution or article first, §§ 8 and 9, of the Connecticut constitution. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On August 6, 2014, the defendant was arrested for possession of twenty-eight bags of heroin and charged with possession of narcotics in violation of § 21a–279 (a), and possession of narcotics with intent to sell in violation of General Statutes § 21a–278 (b). On the date of the offense, a violation of § 21a–279 (a) carried a sentence of imprisonment of up to seven years for a first offense.² See General Statutes (Rev. to 2013) § 21a–279 (a). Prior to the defendant's conviction and sentencing, but subsequent to his arrest, the legislature amended § 21a–279 (a), with an effective date of October 15, 2015, and reclassified a first offense of § 21a–279 (a) as a misdemeanor punishable by not more than one year of incarceration. See General Statutes (Supp. 2016) § 21a–279 (a).

Following a jury trial, on April 1, 2016, the defendant was found not guilty of possession of narcotics with intent to sell in violation of 21a–278 (b), but guilty of possession of narcotics in violation of § 21a–279 (a). On May 27, 2016, the court, Shah, J. , sentenced the defendant, pursuant to § 21a–279 (a), to a period of five years of incarceration.

On June 8, 2016, the defendant filed a motion to correct an illegal sentence. On August 23, 2016, defense counsel filed an amended motion to correct an illegal sentence and a supporting memorandum of law, claiming that the defendant's five year sentence exceeded the statutory maximum set forth in § 21a–279 (a), as amended by Spec. Sess. P.A. 15–2 (2015 amendment). On the same day, the court heard arguments on the amended motion.

On September 16, 2016, the court denied the defendant's motion to correct an illegal sentence, finding, inter alia, that (1) "there is no language in either the public act or its legislative history indicating a clear intent to apply the amendment retroactively" and (2) the sentence did not violate the defendant's right against excessive and disproportionate punishment under the federal and state constitutions. This appeal followed.

On appeal, the defendant claims that the court improperly denied his motion to correct an illegal sentence because (1) the legislature expressed its intent that the 2015 amendment applies retroactively; and (2) following the amendment to § 21a–279 (a), his sentence now constitutes excessive and disproportionate punishment in violation of the state and federal constitutions. "We review claims that the court improperly denied the defendant's motion to correct an illegal sentence under an abuse of discretion standard." State v. Pagan , 75 Conn. App. 423, 429, 816 A.2d 635, cert. denied, 265 Conn. 901, 829 A.2d 420 (2003). We address each claim in turn.

I

The defendant first claims that his five year sentence exceeds the statutory maximum set forth in § 21a–279 (a) because the legislature expressed its intent that the 2015 amendment applies retroactively. He claims, as well, that by reason of the rule of amelioration, the statute should be applied retroactively. We are not persuaded.³

Whether, as a matter of statutory interpretation, the 2015 amendment may be applied retroactively to crimes committed before its effective date of October 1, 2015, is a question of law over which our review is plenary. See State v. Kalil , 314 Conn. 529, 552, 107 A.3d 343 (2014) ; see also State v. Jackson , 153 Conn. App. 639, 643, 103 A.3d 166 (2014) ("Whether a statute is to be applied retroactively is a question of statutory construction.... Issues of statutory construction raise questions of law, over which we exercise plenary review." [Citation omitted; internal quotation marks omitted.] ), cert. denied, 315 Conn. 912, 106 A.3d 305 (2015).

"In criminal cases, to determine whether a change in the law applies to a defendant, we generally have applied the law in existence on the date of the offense, regardless of its procedural or substantive nature." (Internal quotation marks omitted.) State v. Kalil , supra, 314 Conn. at 552, 107 A.3d 343 ; accord In re Daniel H. , 237 Conn. 364, 377, 678 A.2d 462 (1996). "This principle is derived from the legislature's enactment of savings statutes such as General Statutes § 54–194, which provides that '[t]he 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,' and General Statutes § 1–1 (t), which provides that '[t]he repeal of an act shall not affect any punishment, penalty or forfeiture incurred before the repeal takes effect, or any suit, or 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.' " State v. Kalil , supra, at 552, 107 A.3d 343. "It is obvious from the clear, unambiguous, plain language of the savings statutes that the legislature intended that [defendants] be prosecuted and sentenced in accordance with and pursuant to the statutes in effect at the time of the commission of the crime. Our courts have repeatedly held that these savings statutes preserve all prior offenses and liability therefor so that when a crime is committed and the statute violated is later amended or repealed, defendants remain liable under the revision of the statute existing at the time of the commission of the crime." (Internal quotation marks omitted.) State v. Jackson , supra, 153 Conn. App. at 644–45, 103 A.3d 166.

"We will not give retrospective effect to a criminal statute absent a clear legislative expression of such intent.... When the meaning of a statute initially may be determined from the text of the statute and its relationship to other statutes ... extratextual evidence of the meaning of the statute shall not be considered.... When the meaning of a provision cannot be gleaned from examining the text of the statute and other related statutes without yielding an absurd or unworkable result, extratextual evidence may be consulted .... Thus ... every 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.... [T]he fact that ... relevant statutory provisions are silent ... does not mean that they are ambiguous.... [O]ur case law is clear that ambiguity exists only if the statutory language at issue is susceptible to more than one plausible interpretation." (Citations omitted; internal quotation marks omitted.) Id., at 643–44, 103 A.3d 166.

The defendant argues that extratextual evidence should be considered in the present case because a "plain language reading of [the statute] results in an absurd and unworkable result." Specifically, the defendant asserts that Spec. Sess. "P.A. 15–2, § 1, was a budget implementing bill and the legislature has a constitutional duty to pass a balanced budget." He further contends that "[i]t would be absurd to conclude that the legislature would vote to approve this budget implementing bill knowing that the projected fiscal savings in the bill would not be realized ...." We disagree.

We begin with the "threshold determination as to whether the provision under consideration is plain and unambiguous." State v. Jackson , supra, 153 Conn. App. at 643, 103 A.3d 166, 103 A.3d 166. The effective date of the 2015 amendment is October 1, 2015. See Public Acts, Spec. Sess., June, 2015, No. 15–2, § 1 (section "21a–279 of the general statutes is repealed and the following is substituted in lieu thereof [Effective October 1, 2015] ...."). The amendment contains no express statement that it applies retroactively. Its silence in this regard, however, does not render it ambiguous. Rather, the absence of any language stating that the amendment applies retroactively indicates that the legislature intended the amendment to apply prospectively only. See State v. Kalil , supra, 314 Conn. at 558, 107 A.3d 343 ; General Statutes §§ 54–194 and 1–1 (t).

Additionally, the legislature knows how to make a statute apply retroactively when it intends to do so. See State v. Kevalis , 313 Conn. 590, 604, 99 A.3d 196 (2014) ("it is a well settled principle of statutory construction that the legislature knows how to convey its intent expressly" [internal quotation marks omitted] ). Thus, if the legislature had intended the 2015 amendment to apply retroactively, it could have used clear and unequivocal language indicating such an intent. It did not do so. A prospective only application of the statute is consistent with our precedent and the legislature's enactment of the...