State v. Secore

• Decision Date: 25 December 1984
• Citation: 485 A.2d 1280,194 Conn. 692
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Bruce J. SECORE.

Page 1280

485 A.2d 1280

194 Conn. 692

STATE of Connecticut v. Bruce J. SECORE.

Supreme Court of Connecticut.

Argued Oct. 5, 1984.

Decided Dec. 25, 1984.

Louis Parley, West Hartford, for appellant (defendant).

Justin Sullivan, law student intern, with whom was Donald B. Caldwell, State's Atty., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, PARSKEY, SHEA and SANTANIELLO, JJ.

SANTANIELLO, Associate Justice.

The defendant was found guilty of first degree sexual assault in violation of General Statutes § 53a-70(a)(2) and was given an enhanced sentence as a persistent dangerous felony offender under General Statutes § 53a-40(a). He appeals, claiming that he was improperly sentenced as a persistent felony offender because the substantive offense of which he was convicted, first degree sexual assault, was not charged in the same indictment as the persistent felony offender violation. There is no claim of error in the jury's verdict on the sexual assault charge.

The facts relating to the defendant's appeal are not in dispute. On August 19, 1980, a grand jury issued a two part, three count indictment charging the defendant in the first part with sexual assault in the first degree and kidnapping in the first degree, and in the second part with being a persistent felony offender, in violation of General Statutes §§ 53a-70(a)(1), ¹ 53a-92 (a)(2)(A) and 53a-40(a), respectively. ² On April 28, 1981, the state withdrew count one of the indictment and substituted an information charging the defendant with first degree sexual assault under § 53a-70(a)(2). ³ Shortly thereafter, at a trial by jury before Spada, J., the defendant was acquitted of the kidnapping charge and convicted of sexual assault in the first degree. Following the jury's verdict the defendant motioned the trial court to dismiss part two of the indictment, claiming that he could not be sentenced as a persistent felony offender because he was convicted of a sexual assault crime different from that set forth in part one of the indictment. After the court's denial of the motion, the defendant pleaded nolo contendere to the persistent felony offender charge and was accordingly sentenced to a term of imprisonment of not less than fifteen years to life. In this appeal we find no error.

In order properly to address the defendant's contention that failure to convict him under the indicted substantive offense precluded the trial court from sentencing him as a persistent felony offender, we must first determine whether the sexual assault charge contained in the indictment and that substituted by information constitute the same crime. If we find that these two charges are in fact the same, then logically we could not find error in the state's substitution of one for the other. Our focus naturally turns to the statute under which the defendant was indicted and convicted, General Statutes § 53a-70, which at the time of the crime read in pertinent part: "SEXUAL ASSAULT IN THE FIRST DEGREE: CLASS B FELONY. (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or (2) by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person." The defendant's indictment under subsection (1) of § 53a-70(a) for sexual assault "by the use of force" was replaced by an information charging him under subsection (2) with sexual assault "by the threat of use of force." We note that, although the indictment specifically charged the defendant under § 53a-70(a)(1), prior to the time of the indictment, and at the time the crime occurred the subsection numeral "(1)" had been removed from the statute by amendment. ⁴ The defendant presses the claim that because these constitute separate offenses, an indictment for one cannot be replaced by an information charging the other, but can be changed only by reindictment for the substituted offense.

The issue before us is whether § 53a-70(a) describes two separate crimes or one crime that can be committed in two separate ways. We agree with the defendant that if sexual assault by the "use of force" and sexual assault by the "threat of use of force" as set out in § 53a-70(a) are separate offenses, then clearly an information for one cannot be substituted for an indictment for the other. The principle that any offense carrying a life sentence must be charged by indictment is well settled in this state. See Conn.Const., art. I § 8 ("No person shall be held to answer for any offense, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury...."); ⁵ General Statutes § 54-45(b) ("No person shall be put to plea or held to trial for any crime the punishment of which may be death or imprisonment for life unless an indictment has been found against him for such crime by a grand jury...."); ⁶ Practice Book §§ 605 (grand jury must indict for any offense punishable by death) and 616 ("A felony punishable by death or life imprisonment shall be prosecuted by indictment"); State v. Lewis, 176 Conn. 270, 272, 407 A.2d 955 (1978) (robbery conviction raised to possible life sentence by persistent offender conviction must be charged by indictment); State v. Holloway, 144 Conn. 295, 302, 130 A.2d 562 (1957) (indictment by grand jury required in all cases in which penalty may be life imprisonment). Since a conviction for sexual assault under § 53a-70(a) by either the "use of force" or the "threat of use of force" in conjunction with a persistent felony offender violation carries a possible life sentence, each must be independently charged by indictment. In the present case the defendant makes no claim that he was erroneously indicted for sexual assault "by the use of force," but argues that the substitute information charging sexual assault "by the threat of use of force" was improper. We find, however, that the language of § 53a-70 divides the statute, not into two crimes, but into two methods of committing the same crime; see State v. Wallace, 181 Conn. 237, 239, 435 A.2d 20 (1980); and that the indictment substitution made by the state in this case involved a matter of form, not substance. We conclude, therefore, that both the indictment and the substitute information charge the defendant with only one crime, sexual assault in the first degree.

Despite our conclusion that § 53a-70(a) charges only one crime, we must still address the defendant's additional, procedural claim that the substantive offense, sexual assault, and the persistent felony offender violation must be charged in the same indictment. The defendant argues that by charging the substantive offense in an information, the persistent felony offender and substantive violations were no longer in the same indictment and that therefore the defendant cannot be given an enhanced sentence under the persistent felony offender statute. In support of his claim the defendant relies on Practice Book §§ 605 and 615, ⁷ and several of our decisions.

We do not disagree with the defendant that an allegation that a person is a persistent felony offender must be included in the same indictment as a specific substantive criminal charge. "A person cannot be charged as a persistent offender under § 53a-40 in a separate ... indictment. If the allegation of prior offenses is not included in an ... indictment charging a specific crime, it is ineffective." State v. Lewis, supra, 176 Conn. 272-73, 407 A.2d 955; see State v. LaSelva, 163 Conn. 229, 232, 303 A.2d 721 (1972); State v. Delmonto, 110 Conn. 298, 300, 147 A. 825 (1929); State v. Ferrone, 96 Conn. 160, 175, 113 A. 452 (1921). That principle, however, must be read in conjunction with Practice Book § 622, which allows a minor defect in an indictment to be corrected at any time. It is an established rule of procedure that, prior to trial, nonsubstantive changes may be made in an indictment. Practice Book § 622 provides in relevant part: "The judicial authority may order at any time such relief as is required to remedy any defect, imperfection or omission in the indictment, information, or complaint, including the following: (1) [a]ny matter of form; (2) [a]ny miswriting, misspelling, or improper English; (3) [a]ny misuse of a sign, symbol, figure, or abbreviation; or (4) [a]ny omission of the true name or any misspelling of the name of the defendant." This court has held that the state may properly amend an information to correct the date of commission of an offense, when the date is not a material ingredient of the crime charged; State v. Ramos, 176 Conn. 275, 277, 407 A.2d 952 (1978); and may change the signature of the charging state's attorney, and remove parentheses around a drug name; State v. Jones, 166 Conn. 620, 629, 353 A.2d 764 (1974). In the present case the substantive charge and the persistent offender allegation were initially contained in the same indictment. Just before the start of trial the state made a nonsubstantive substitution by information of the language describing the charged violation. If the state had substituted by information a wholly different crime, then the defendant would obviously have to be reindicted for the new crime and the persistent felony offender violation. Here, however, the state acted within the bounds of § 622 by amending by information only the language of the crime charged.

The defendant's contentions under Practice Book §§ 605 and 616 ⁸ appear to be that because these sections require that felonies punishable by death or life imprisonment be charged by indictment, the state cannot change such indictments by information. In light of our previous conclusion that the state properly amended the indictment, we find the defendant's argument unpersuasive. We are equally unconvinced by the defendant's...