State v. Polanco

• Decision Date: 02 April 2013
• Docket Number: No. 18771.,18771.
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Carlos POLANCO.

308 Conn. 242

61 A.3d 1084

STATE of Connecticut

v.Carlos POLANCO.

No. 18771.

Supreme Court of Connecticut.

Argued Sept. 17, 2012.

Decided April 2, 2013.

Elizabeth M. Inkster, assigned counsel, and Daniel M. Erwin, assigned counsel, with whom, on the brief, was Neal Cone, senior assistant public defender, for the appellant (defendant).

Melissa Patterson, assistant state's attorney, with whom, on the brief, were Patricia M. Froehlich, state's attorney, Mark Stabile, supervisory assistant state's attorney, and Andrew J. Slitt, assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH and HARPER, Js.^*

HARPER, J.

Presently in Connecticut, when a defendant is convicted of a greater offense and a lesser included offense in violation of the double jeopardy clause of the federal constitution,¹ the appropriate remedy is to merge the convictions and to vacate the sentence for the lesser offense. In accordance with that approach, the Appellate Court concluded that the trial court improperly had failed to merge the cumulative convictions of the defendant, Carlos Polanco, for possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a–278 (b) and possession of narcotics with intent to sell in violation of General Statutes § 21a–277 (a), greater and lesser included offenses, respectively, and to sentence him on the conviction for the greater offense only. State v. Polanco, 126 Conn.App. 323, 336, 339, 11 A.3d 188 (2011). The defendant now appeals, upon our grant of certification, claiming that, although the Appellate Court's judgment was proper under 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), and its progeny, Connecticut's rubric for sentencing defendants convicted of greater and lesser included offenses fails to conform to the requirements of federal constitutional law in light of the United States Supreme Court's decision in Rutledge v. United States, 517 U.S. 292, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996). We conclude that it is unnecessary to reach the defendant's constitutional claim, relying instead on the exercise of our inherent supervisory authority over the administration of justice to hold 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. Accordingly, we reverse in part the judgment of the Appellate Court.

The Appellate Court opinion set forth the following undisputed facts and procedural history. As part of a statewide narcotics task force investigation conducted in the spring of 2008, police officers focused their attention on apartment 107 of 287 Main Street in Willimantic, where they suspected that narcotics were being trafficked. State v. Polanco, supra, 126 Conn.App. at 325, 11 A.3d 188. Their investigatory efforts included the arranged purchase of cocaine at that location on three occasions. On the basis of their investigation, the police secured search warrants for the apartment and for the defendant's person. Pursuant to those warrants, which were executed on April 22, 2008, the officers conducted a search, first, of the defendant's person after stopping him in his vehicle, and, then, of apartment 107. The officers discovered $100 in cash on the defendant, but no narcotics. Id. The search of the apartment yielded cocaine, drug paraphernalia, and approximately $1500 in cash. Id., at 326, 11 A.3d 188. The defendant was tried by a jury and found guilty of: (1) possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of § 21a–278; (2) possession of a narcotic substance with intent to sell in violation of § 21a277; and (3) possession of drug paraphernalia in violation of General Statutes § 21a–267. Id. The trial court rendered judgment in accordance with the jury's verdict and sentenced the defendant to a ten year term of imprisonment on the first count, five of those mandatory, with ten years of special parole, and a ten year term of imprisonment on the second count to be served concurrently with the first count. Id. The court also ordered an unconditional discharge on the third count, which is not at issue in this certified appeal.

The defendant subsequently appealed from the judgment to the Appellate Court on two grounds. He claimed that: (1) the state violated his due process rights under the Connecticut constitution due to its destruction or loss of potentially exculpatory evidence; and (2) his sentence violated the federal constitutional prohibition against double jeopardy due to the trial court's merger of his sentences rather than his convictions. Id., at 325, 11 A.3d 188. Rejecting the first claim on its merits; id., at 336, 11 A.3d 188; the Appellate Court thereafter concluded that the defendant was entitled to review of the second, unpreserved claim under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989). State v. Polanco, supra, 126 Conn.App. at 337, 11 A.3d 188.Because the defendant's convictions were for greater and lesser included offenses arising out of the same transaction, the court explained, he could not be punished for both without running afoul of the prohibition against double jeopardy. Id., at 336, 338, 11 A.3d 188. To correct this defect, as directed by this court's case law, the Appellate Court applied the merger of convictions approach, which provides that “when a defendant has been sentenced for both [greater and lesser included offenses, the appropriate remedy] is to merge the conviction for the lesser included offense with the conviction for the greater offense and to vacate the sentence for the lesser included offense.” (Internal quotation marks omitted.) Id., at 338, 11 A.3d 188. Accordingly, the Appellate Court held that the defendant's § 21a–277 conviction must be merged with his § 21a–278 conviction and that the sentence for the former, lesser included offense must be vacated. Id., at 339, 11 A.3d 188. Relying on this controlling precedent, the Appellate Court declined to consider the defendant's “alternate” argument—that it should vacate both the conviction and the sentence for the lesser offense. Id., at 339 n. 8, 11 A.3d 188. The defendant's certified appeal to this court followed, in which the sole issue is whether the Appellate Court properly ordered the trial court to merge the defendant's convictions for the greater and lesser included offenses and to vacate the sentence for the lesser included offense, pursuant to State v. Chicano, supra, 216 Conn. at 699, 584 A.2d 425, rather than order the court to vacate the conviction for the lesser offense.²

It is the defendant's position that Rutledge requires us to eschew the merger of convictions approach, and, instead, when a defendant is convicted of greater and lesser included offenses, to vacate the conviction for the lesser offense. The defendant contends that the existence of a conviction on a lesser offense, despite its merger with the conviction on the greater offense, is “inherently punitive as measured by collateral effects,” a result the court in Rutledge deemed violative of the double jeopardy clause. Alternatively, the defendant posits that, as a jurisprudential matter, this court should reject the merger approach and resurrect the vacatur approach that was used in Connecticut prior to Chicano, which would bring Connecticut's law into conformity with Rutledge and the practice of the Circuit Courts of Appeals.

Conversely, it is the state's position that this court can and should adhere to the merger of convictions approach, which, the state argues, provides a constitutionally permissible alternative to the approach enunciated in Rutledge. In reliance on this premise, the state additionally contends that adoption of the vacatur approach would require this court to “depart from our well settled law defining vacated judgments” when there is no double jeopardy violation to justify such a departure, and that the doctrine of stare decisis compels adherence to Chicano and its progeny.

Without reaching the merits of the defendant's constitutional argument, we elect to exercise our supervisory authority to conclude that the vacatur approach shall replace the use of the merger of convictions approach when a defendant is convicted of greater and lesser included offenses.³ We are led to this conclusion, because, first, the jurisprudential underpinnings to this court's approval of the merger approach have since been repudiated, and, second, the remedy in Chicano is now at odds with the remedy utilized almost uniformly within the Circuit Courts of Appeals. While we do not resolve the question of whether the merger approach survives as a constitutionally permissible alternative to Rutledge, we are not persuaded by the state's additional arguments, premised on that proposition, in favor of continued adherence to Chicano 's approach. Accordingly, the Appellate Court's judgment must be reversed insofar as it ordered the trial court to merge the defendant's convictions for violating §§ 21a–277 and 21a–278, and the case must be remanded with direction to vacate the defendant's § 21a–277 conviction.

For several years prior to Chicano, it was this court's policy, when “multiple punishments [were] imposed for the same offense ... [to] set aside the judgment of conviction for one of the offenses, thereby vacating both the conviction and the sentence for that offense.” State v. Chicano, supra, 216 Conn. at 722, 584 A.2d 425; see State v. John, 210 Conn. 652, 697, 557 A.2d 93,cert. denied,493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989); State v. Rawls, 198 Conn. 111, 122, 502 A.2d 374 (1985); State v. Amaral, 179 Conn. 239, 245, 425 A.2d 1293 (1979); State v. Goldson, 178 Conn. 422, 427, 423 A.2d 114 (1979). In the...