State v. Tabone

Decision Date07 July 2009
Docket NumberNo. 18119.,18119.
Citation292 Conn. 417,973 A.2d 74
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. John TABONE.

Andrew S. Liskov, special public defender, for the appellant (defendant).

Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Cara Eschuck, supervisory assistant state's attorney, for the appellee (state).

NORCOTT, KATZ, VERTEFEUILLE, ZARELLA and SCHALLER, Js.

KATZ, J.

This case returns to us for a second time to address the sentence of the defendant, John Tabone, following our decision in State v. Tabone, 279 Conn. 527, 544, 902 A.2d 1058 (2006), in which we remanded the case for resentencing after concluding that the defendant's original sentence of ten years incarceration followed by ten years of special parole was illegal. The defendant appeals1 from the judgment of the trial court sentencing him on remand to a total effective sentence of twenty years incarceration, execution suspended after ten years, followed by ten years of probation for his conviction of sexual assault in the second degree in violation of General Statutes (Rev. to 1999) § 53a-71(a)(4),2 sexual assault in the third degree in violation of General Statutes (Rev. to 1999) § 53a-72a(a)(1)(A)3 and risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21(2).4 On appeal, the defendant claims that his total effective sentence after remand is illegal because: (1) the substitution of a ten year term of probation for the ten year period of special parole that originally was imposed unconstitutionally enlarged the sentence in violation of his due process rights under the federal and state constitutions; (2) the sentence was predicated on a personal agreement between the trial court and the state's attorney in violation of General Statutes (Rev. to 1999) § 53a-32(b)(4)5 and the separation of powers doctrine; and (3) the sentence violates the double jeopardy clause of the fifth amendment to the United States constitution and the Connecticut constitution.6 We reverse the judgment of the trial court and remand the case for further proceedings.

The record reflects the following procedural history that is relevant to this appeal, most of which was set forth by this court in State v. Tabone, supra, 279 Conn. at 530-32, 902 A.2d 1058. "On November 2, 2000, pursuant to a plea agreement, the defendant pleaded guilty under the Alford doctrine7 to sexual assault in the second degree ... sexual assault in the third degree ... and risk of injury to a child8 .... The trial court sentenced the defendant as follows: (1) for the charge of sexual assault in the second degree, ten years of imprisonment followed by ten years of special parole; (2) for the charge of sexual assault in the third degree, five years of imprisonment followed by five years of special parole; and (3) for the charge of risk of injury to a child, five years of imprisonment followed by five years of special parole. [The court also imposed certain conditions on the defendant, including enrollment in an outpatient sex offender treatment program.]9 The trial court ordered all of the sentences to run concurrently, resulting in a total effective sentence of ten years of imprisonment followed by ten years of special parole.10

"In June, 2004, the defendant filed a motion to correct his sentence for sexual assault in the second degree pursuant to Practice Book § 43-22.11 Thereafter, the trial court held a hearing on the defendant's motion. At the hearing, the defendant pointed out that [General Statutes (Rev. to 1999)] § 53a-35a(6)12 limits the maximum sentence of imprisonment for sexual assault in the second degree to ten years.... Because the defendant was sentenced to ten years of imprisonment and ten years of special parole, [he] maintained that his sentence exceed[ed] the maximum statutory limit and, therefore, [was] illegal. Moreover, [he] claimed that [General Statutes] § 54-128(c)13 explicitly prohibited the imposition of such an illegal sentence. See General Statutes § 54-128(c) (`[t]he total length of the term of incarceration and term of special parole combined shall not exceed the maximum sentence of incarceration authorized for the offense for which the person was convicted'). The defendant conceded, however, that General Statutes (Rev. to 1999) § 54-125e(c)14 required the trial court to sentence the defendant to a period of special parole of `not less than ten years....' [He] maintained, nonetheless, that to the extent that §§ 54-125e(c) and 54-128(c) conflict, `the benefit should go to the defendant.' The trial court disagreed and concluded that the defendant's sentence was not illegal because § 53a-35a(6) plainly authorized a sentence of ten years of imprisonment, and § 54-125e(c) plainly authorized a sentence of ten years of special parole for the offense of sexual assault in the second degree. Further, the trial court concluded that §§ 54-125e(c) and 54-128(c) do not conflict because § 54-125e(c) unambiguously `carves out an exception [to the maximum statutory limit] for sex offenses.'" (Citation omitted.) State v. Tabone, supra, 279 Conn. at 530-32, 902 A.2d 1058. Thereafter, the trial court denied the defendant's motion to correct the sentence, and the defendant's first appeal followed. Id., at 532, 902 A.2d 1058.

In the first appeal, the defendant renewed the claims he had raised before the trial court and also claimed that "his sentence violate[d] the double jeopardy clause of the fifth amendment to the United States constitution because it `constitutes cumulative multiple punishments exceeding what the legislature intended' for the offense of sexual assault in the second degree." Id. This court concluded that "the defendant's sentence violates § 54-128(c) because the total length of the term of imprisonment and term of special parole combined exceed[ed] the maximum term of imprisonment authorized for sexual assault in the second degree." Id., at 533, 902 A.2d 1058. The court recognized that "an irreconcilable conflict exists between the sentencing requirements of §§ 54-125e (c) and 54-128(c)"; id., at 543, 902 A.2d 1058; concluding that, "when the sentencing provisions of §§ 54-125e (c) and 54-128(c) conflict, the legislature intended the maximum statutory limit in § 54-128(c) to control." Id., at 544, 902 A.2d 1058. Accordingly, this court remanded the case for resentencing "in accordance with State v. Raucci, 21 Conn.App. 557, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990), and State v. Miranda, 260 Conn. 93, 127-30, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S.Ct. 224, 154 L.Ed.2d 175 (2002)."15 State v. Tabone, supra, at 544, 902 A.2d 1058.

On remand, the trial court first recognized that State v. Raucci, supra, 21 Conn. App. at 557, 575 A.2d 234, and State v. Miranda, supra, 260 Conn. at 93, 794 A.2d 506, were applicable to the defendant's sentence, and therefore, this court had authorized it to impose a sentence closely approximating the defendant's original sentence, which had included a period of supervised release by way of special parole, provided that it did not exceed the parameters imposed by the original sentence. The trial court concluded, however, that it could not impose special parole because the minimum ten year special parole period had been determined to be illegal by this court. The trial court discussed probation as an alternate form of supervised release but expressed the concern that a violation of probation could expose the defendant to incarceration for the full term of his suspended sentence, even on the last day of probation, thereby enlarging his sentence, whereas a violation of special parole would have exposed him to incarceration only for the remainder of the special parole period. To address this concern, State's Attorney John A. Connelly submitted a written agreement to the court under which he committed that, if the court were to sentence the defendant to a term of probation instead of special parole and the defendant thereafter violated his probation, the state would seek incarceration only for the remainder of the probationary period, rather than the full term of the suspended sentence.16 In reliance on this agreement the trial court imposed a total effective sentence of twenty years incarceration, execution suspended after ten years, with ten years of probation. Specifically, the defendant was sentenced as follows: (1) for sexual assault in the second degree, ten years incarceration; (2) for sexual assault in the third degree, five years incarceration, execution suspended, with ten years of probation, to run consecutively to count one; (3) for risk of injury to a child, five years incarceration, execution suspended, with ten years of probation, to run consecutively to counts one and two. The court also imposed the same conditions on the defendant that had been imposed in his previous sentence, including enrollment in an outpatient sex offender treatment program. See footnote 9 of this opinion. This appeal followed.

I

The defendant first claims that his new sentence is illegal because the ten year period of probation unconstitutionally enlarged his original sentence in violation of his due process rights under the federal and state constitutions. In support of this claim, he contends, inter alia, that, because the terms of incarceration following violations of probation and special parole are calculated differently, he could be exposed to a significantly longer period of incarceration from a probation violation than from a violation of special parole, thereby exceeding the confines of his original sentence.17 The state claims that its agreement to seek incarceration only for the time remaining in the probationary period prevents the defendant from being exposed to additional incarceration if he violates his probation, and thus his new sentence is within the...

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