State v. Palmenta

• Citation: 144 A.3d 503,168 Conn.App. 37
• Decision Date: 06 September 2016
• Docket Number: No. 37891.,37891.
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Scott PALMENTA.

168 Conn.App. 37

144 A.3d 503

STATE of Connecticut

v.Scott PALMENTA.

No. 37891.

Appellate Court of Connecticut.

Argued May 12, 2016.

Decided Sept. 6, 2016.

David B. Bachman, assigned counsel, for the appellate (defendant).

Toni M. Smith–Rosario, senior assistant state's attorney, with whom, on the brief, were David S. Shepack, state's attorney, and Dawn Gallo, supervisory assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and MULLINS and JONGBLOED, Js.

JONGBLOED, J.

The defendant, Scott Palmenta, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant claims that he falls within the exemption set forth in General Statutes § 53a–40 (c), and, therefore, the court improperly sentenced him as a persistent serious felony offender. We disagree with the defendant and, accordingly, affirm the judgment of the trial court.

The following undisputed facts and procedural history, as set forth in the court's memorandum of decision, are relevant to this appeal. “On May 8, 2009, in Docket No. CR–07–124076–S, the defendant [pleaded] guilty to burglary in the second degree in violation of General Statutes § 53a–102 (a)(2) ; attempt [to commit] larceny in the third degree in violation of General Statutes §§ 53a–124 (a)(2) and 53a–49 ; and criminal mischief in the second degree in violation of General Statutes § 53a–116 (a)(1). The defendant also admitted to being a persistent [serious] felony offender in violation of General Statutes § 53a–40 (c) and § 53a–40 (j).¹

“On May 8, 2009, in Docket No. CR–07–125614–S, the defendant [pleaded] guilty to burglary in the third degree in violation of General Statutes § 53a–103 ; identity theft in the third degree in violation of General Statutes § 53a–129d ; and larceny in the fifth degree in violation of General Statutes § 53a–125. The defendant also admitted to being a persistent [serious] felony offender in violation of General Statutes § 53a–40 (c) and § 53a–40 (j). On August 7, 2009, the defendant was sentenced to a total effective sentence of thirty years, execution suspended after ten years of incarceration, followed by five years of probation.”²

On March 20, 2014, the defendant filed a motion to correct an illegal sentence pursuant to Practice Book § 43–22. In that motion, the defendant argued that the court improperly enhanced his sentence on the charge of burglary in the second degree after finding him to be a persistent serious felony offender. He argued that his sentence was illegal because his admission that he was a persistent serious felony offender was not knowing, intelligent and voluntary. He further argued that the sentencing court had no factual or legal basis for its finding that he should be sentenced as a persistent serious felony offender. Specifically, the defendant contended that he fell within the exemption set forth in § 53a–40 (c), and, therefore, could not be considered a persistent serious felony offender. The state filed an objection to the motion. Following a hearing, the trial court denied the defendant's motion by memorandum of decision dated August 21, 2014.³ The defendant then filed the present appeal in which he claims that the court improperly denied his motion to correct an illegal sentence. Specifically, he argues that he falls within the exemption set forth in § 53a–40 (c) and, therefore, the court improperly sentenced him as a persistent serious felony offender.⁴

Before commencing our review of the defendant's claim, we first set forth the applicable standard of review. “[A] claim that the trial court improperly denied a defendant's motion to correct an illegal sentence is [typically] reviewed pursuant to the abuse of discretion standard.... In the present case, however, the defendant's motion to correct an illegal sentence raises a question of statutory construction. Issues of statutory construction raise questions of law, over which we exercise plenary review.... The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply....

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider 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.... The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Citations omitted; internal quotation marks omitted.) State v. Adams, 308 Conn. 263, 269–70, 63 A.3d 934 (2013).

Section 53a–40(c) provides: “A persistent serious felony offender is a person who (1) stands convicted of a felony, and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime. This subsection shall not apply where the present conviction is for a crime enumerated in subdivision (1) of subsection (a) of this section and the prior conviction was for a crime other than those enumerated in subsection (a) of this section.”⁵ (Emphasis added.)

The issue to be resolved in this appeal is whether the word “and” in the exemption contained in § 53a–40 (c) should be interpreted conjunctively or disjunctively. The defendant contends that he had no prior conviction for crimes enumerated in § 53a–40 (a)(1) and, therefore, satisfied the second condition required for the exemption contained in § 53a–40 (c). He concedes, however, that because the present conviction was for crimes other than those enumerated in § 53a–40 (a)(1), he did not satisfy the first portion of the exemption. According to the defendant, because the word “and” in the exemption can be construed conjunctively or disjunctively, it is ambiguous; we, therefore, should apply the rule of lenity and narrowly construe the exemption in his favor by adopting a disjunctive construction. In response, the state argues that the court properly construed the exemption contained in § 53a–40 (c) and, therefore, properly denied the defendant's motion to correct an illegal sentence. We agree with the state.

“Our Supreme Court has held that the term ‘and’ may be construed to mean ‘or,’ especially if construing ‘and’ in the conjunctive would lead to an illogical or unreasonable result.” Kayla M. v. Greene, 163 Conn.App. 493, 502, 136 A.3d 1 (2016). In support of his argument that “and” should be construed disjunctively in § 53a–40 (c), the defendant relies on Bania v. New Hartford, 138 Conn. 172, 83 A.2d 165 (1951) and Commission on Hospitals & Health Care v. Lakoff, 214 Conn. 321, 572 A.2d 316 (1990). In Bania, our Supreme Court construed the word “and” disjunctively in a statute that prohibited Sunday sales of liquor but further provided that “any town may ... allow the sale of alcoholic liquor on Sunday between the hours of twelve o'clock noon and nine o'clock in the evening in hotels, restaurants and clubs.” (Emphasis added.) Bania v. New Hartford, supra, at 173, 83 A.2d 165. In Lakoff, our Supreme Court construed disjunctively the word “and” in the phrase “prevention, diagnosis and treatment” in General Statutes (Rev. to 1987) § 19a–145 so that an entity performing only one of the three functions would meet the definition of a “health care facility or institution.” Commission on Hospitals & Health Care v. Lakoff, supra, at 328, 572 A.2d 316 ;⁶ see also Kayla M. v. Greene, supra, at 503, 136 A.3d 1 (construing “and” disjunctively in General Statutes § 46b–16a [a] so that “an applicant for a civil protection order on the basis of stalking is required to prove only that there are reasonable grounds to believe that a defendant stalked and will continue to stalk, as described in [General Statutes] §§ 53a–181c, 53a–181dor 53a–181e.” [emphasis in original] ).

Unlike the statutes at issue in the previously cited cases, § 53a–40 (c) addresses two preconditions that must be fulfilled before a defendant is entitled to the exemption. State v. Bell, 283 Conn. 748, 931 A.2d 198 (2007), is instructive on this point. In Bell, our Supreme Court considered whether General Statutes (Rev. to 2007) § 53a–40 (h) was unconstitutional because it allowed for a finding by the trial court, rather than the jury, that imposing extended incarceration would best serve the public interest. Id., at 784–85, 931 A.2d 198. As part of its analysis of this claim, the court stated: “In examining the text of the statute, we note at the outset that, by its use of the conjunctive ‘and,’ the statute appears to impose two preconditions for an enhanced sentence to be imposed in lieu of the lesser sentence prescribed for the offense for which the defendant stands convicted: (1) the jury's determination that the defendant is a persistent offender; and (2) the court's determination that the defendant's history and character and the nature and circumstances of his criminal conduct indicate that extended incarceration will best serve the public interest. See Penn v. Irizarry, 220 Conn. 682, 687, 600 A.2d 1024 (1991) (‘[t]he use of the conjunctive, “and,” indicates that both conditions must be fulfilled before a new primary [election] may be ordered [pursuant to General Statutes § 9–329a ]’); Nicotra Wieler Investment Management, Inc. v. Grower, 207 Conn. 441, 455,...