State v. Bischoff ( 2021 )

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STATE OF CONNECTICUT v. HAJI
JHMALAH BISCHOFF
(SC 20302)
Robinson, C. J., and McDonald, D’Auria,
Kahn, Ecker and Keller, Js.
Syllabus
Pursuant to statute (§ 54-194), ‘‘[t]he repeal of any statute defining or pre-
scribing the punishment for any crime shall not affect any pending
prosecutions or any existing liability to prosecution and punishment
therefor, unless expressly provided in the repealing statute that such
repeal shall have that effect.’’
Pursuant further to statute (§ 1-1 (t)), ‘‘[t]he repeal of an act shall not affect
the punishment, penalty or forfeiture incurred before the repeal takes
effect . . . .’’
The defendant was convicted of and sentenced to an effective term of
incarceration of five years for possession of narcotics, among other
crimes, in connection with events that occurred in 2014. After the defen-
dant’s arrest but prior to his conviction in 2016, the legislature amended
the statute (§ 21a-279) under which the defendant was convicted, effec-
tive October 1, 2015, by changing possession of narcotics from a class
D felony with a maximum sentence of seven years of imprisonment
to a class A misdemeanor with a maximum sentence of one year of
imprisonment. After the defendant unsuccessfully appealed from the
judgment of conviction, he filed a motion to correct an illegal sentence,
arguing, inter alia, that the legislature had intended its 2015 amendment
to § 21a-279 to apply retroactively. The trial court dismissed the motion
to correct, and the defendant appealed to the Appellate Court, which
directed the trial court to deny rather than to dismiss the defendant’s
motion, concluding, inter alia, that the 2015 amendment did not apply
retroactively. On the granting of certification, the defendant appealed
to this court. Held:
1. The Appellate Court correctly determined that the defendant was properly
sentenced in accordance with the version of § 21a-279 that was in effect
when he committed the crimes of which he was convicted: this court
has interpreted §§ 54-194 and 1-1 (t) to embody a presumption that
changes to criminal statutes prescribing or defining punishment apply
prospectively only, unless the statute expressly states otherwise, the
plain language of the 2015 amendment did not indicate that it was to
apply retroactively, and, contrary to the defendant’s claim, the legislature
did not intend to exclude ameliorative changes to sentencing schemes
from the presumption against retroactivity derived from §§ 54-194 and
1-1 (t); moreover, because the legislature was aware that this court has
interpreted §§ 54-194 and 1-1 (t) as requiring an explicit expression of
intent regarding retroactivity to overcome this presumption, the legisla-
ture’s silence regarding retroactivity in the 2015 amendment was evi-
dence of an intent that it have prospective application only; furthermore,
the defendant could not prevail on his claim that prospective only appli-
cation of the 2015 amendment would lead to an absurd and unworkable
result on the basis that the 2015 amendment was meant to implement
a 2015 budget bill that the legislature anticipated would result in fiscal
savings for the Department of Correction, as nothing in the language
of the budget bill or its legislative history referenced the 2015 amendment
or the fiscal savings that would be realized from the 2015 amendment.
2. This court declined the defendant’s invitation to adopt the amelioration
doctrine, which provides that amendments to statutes that lessen their
penalties are applied retroactively, and to overrule State v. Kalil (314
Conn. 529), which recently rejected the applicability of that doctrine:
Kalil thoroughly considered whether to adopt the amelioration doctrine
only six years ago and was based on approximately 100 years of prece-
dent during which time the legislature took no action to suggest any
disagreement with this court’s interpretation and application of §§ 54-
194 and 1-1 (t); moreover, this court’s analysis in Kalil was consistent
with this court’s analysis of the defendant’s claim regarding the retroac-
tivity of the 2015 amendment to § 21a-279, demonstrating that there
were no conflicts or difficulties in applying the holding of Kalil.
(One justice concurring separately)
Argued September 11, 2020—officially released January 15, 2021*
Procedural History
Substitute information charging the defendant with
two counts each of the crimes of possession of narcotics
with intent to sell by a person who is not drug-depen-
dent, possession of narcotics with intent to sell and
possession of narcotics, and with one count of the crime
of possession of less than four ounces of a cannabis-
type substance, brought to the Superior Court in the
judicial district of Fairfield, geographical area number
two, and tried to the jury before Dennis, J.; verdict and
judgment of guilty of one count of possession of less
than four ounces of a cannabis-type substance and of
two counts of possession of narcotics, from which the
defendant appealed to the Appellate Court, Sheldon,
Elgo and Bright, Js., which affirmed the judgment;
thereafter, this court denied the defendant’s petition for
certification to appeal; subsequently the court, Doyle,
J., dismissed the defendant’s motion to correct an illegal
sentence, and the defendant appealed to the Appellate
Court, DiPentima, C. J., and Lavine and Harper, Js.,
which reversed the trial court’s denial of the motion to
correct an illegal sentence and remanded the case with
direction to deny the motion, and the defendant, on
the granting of certification, appealed to this court.
Affirmed.
Emily H. Wagner, assistant public defender, with
whom, on the brief, was Judith L. Borman, senior assis-
tant public defender, for the appellant (defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, Craig P. Nowak, senior assistant state’s attor-
ney, and Jennifer F. Miller, assistant state’s attorney,
for the appellee (state).
Opinion
D’AURIA, J. In 2015, our legislature amended General
Statutes (Rev. to 2015) § 21a-279 (a) to reclassify a first
offense for possession of narcotics from a class D felony
subject to a maximum sentence of imprisonment of
seven years to a class A misdemeanor subject to a
maximum sentence of one year of incarceration. Public
Acts, Spec. Sess., June, 2015, No. 15-2, § 1 (Spec. Sess.
P.A. 15-2).1 This legislative action reflected a change in
public policy that emphasized treatment and rehabilita-
tion over incarceration for those convicted of pos-
sessing controlled substances. In this certified appeal,
we are asked to determine whether the legislature’s
action applies retroactively to criminal cases pending
at the time the amendment became effective.
The defendant, Haji Jhmalah Bischoff, was arrested
and charged with, among other crimes, possession of
narcotics in violation of § 21a-279 (a) prior to the enact-
ment of Spec. Sess. P.A. 15-2, § 1. He was not convicted
and sentenced, however, until after the amendment’s
enactment. The defendant claims that both the trial
court and the Appellate Court incorrectly determined
that Spec. Sess. P.A. 15-2, § 1, does not apply retroac-
tively, and, thus, he claims that the sentence imposed on
him was illegal, as it exceeded the maximum sentence
allowed under § 21a-279 (a) as amended. Specifically,
he claims that (1) although the plain language of Spec.
Sess. P.A. 15-2, § 1, does not mention retroactivity, a
prospective-only application of the amendment would
lead to an absurd or unworkable result when viewed
in the context of Public Acts 2015, No. 15-244 (P.A. 15-
244), the state budget bill that Spec. Sess. P.A. 15-2,
§ 1, was meant to implement, and (2) alternatively, this
court should overrule State v. Kalil, 314 Conn. 529, 107
A.3d 343 (2014), and adopt the amelioration doctrine,
which presumes that amendments to statutes that miti-
gate punishment apply retroactively. We disagree with
the defendant on both accounts and affirm the Appellate
Court’s judgment.
The following facts and procedural history are sup-
ported by the record and relevant to our review of
the defendant’s claims. On the basis of conduct that
occurred in 2014, a jury in 2016 found the defendant
guilty of possession of heroin in violation of § 21a-279
(a), possession of cocaine in violation of § 21a-279 (a),
and possession of less than four ounces of marijuana
in violation of § 21a-279 (c). See State v. Bischoff, 182
Conn. App. 563, 568–69, 190 A.3d 137, cert. denied, 330
Conn. 912, 193 A.3d 48 (2018). After the defendant’s
arrest but prior to his conviction and sentencing, the
legislature amended § 21a-279 (a), with an effective date
of October 1, 2015, reclassifying a first violation of § 21a-
279 (a) as a misdemeanor punishable by not more than
one year of incarceration. At the defendant’s 2016 sen-
tencing, his counsel requested that the trial court sen-
tence him in accordance with the amended version of
§ 21a-279 (a). He argued that the policy underlying the
amendment—providing assistance, not punishment, to
nonviolent drug users—should apply retroactively to
him. The trial court declined this request, merged the
defendant’s convictions of possession of heroin and
possession of cocaine into a single conviction of posses-
sion of narcotics, and sentenced him to seven years
of incarceration, suspended after five years, and three
years of probation. As to his conviction of possession
of less than four ounces of marijuana, the trial court
sentenced him to a concurrent term of one year of
incarceration.
The defendant appealed from the judgment of convic-
tion to the Appellate Court and, among other things,
renewed his argument that he was entitled to be sen-
tenced on the conviction of possession of narcotics
pursuant to Spec. Sess. P.A. 15-2, § 1, which, he claimed,
applied retroactively to his case. Id., 579. The Appellate
Court rejected the defendant’s claim, relying on State
v. Moore, 180 Conn. App. 116, 124, 182 A.3d 696, cert.
denied, 329 Conn. 905, 185 A.3d 595 (2018), which held
that Spec. Sess. P.A. 15-2, § 1, did not apply retroac-
tively. Id. The defendant petitioned for certification to
appeal, which this court denied. See State v. Bischoff,
330 Conn. 912, 193 A.3d 48 (2018).
The defendant then filed a motion to correct an illegal
sentence, the subject of the present appeal, again
arguing that the legislature intended Spec. Sess. P.A.
15-2, § 1, to apply retroactively, or, alternatively, that
the amelioration doctrine should apply. The trial court
dismissed the motion, and the defendant appealed to
the Appellate Court, which, in a per curiam opinion,
again held that Spec. Sess. P.A. 15-2, § 1, does not apply
retroactively, and, like the trial court, rejected applica-
tion of the amelioration doctrine, ruling that it was
bound by this court’s holding in State v. Kalil, supra,
314 Conn. 529.2 State v. Bischoff, 189 Conn. App. 119,
121–22, 206 A.3d 253 (2019). The defendant petitioned
this court for certification to appeal, which we granted,
limited to the following issues: (1) ‘‘Did the Appellate
Court properly determine, in State v. Moore, [supra, 180
Conn. App. 116] that [Spec. Sess. P.A. 15-2, § 1], does
not have retroactive effect?’’ And (2) ‘‘[i]f the answer
to the first certified question is ‘[yes],’ should this court
overrule the retroactivity analysis contained in State v.
Kalil, [supra, 314 Conn. 552] and apply the amelioration
doctrine to give retroactive effect to Spec. Sess. P.A.
15-2, § 1?’’3 State v. Bischoff, 331 Conn. 926, 926–27, 207
A.3d 28 (2019).
Although ‘‘[a] claim that the trial court improperly
denied a defendant’s motion to correct an illegal sen-
tence is [typically] reviewed pursuant to the abuse of
discretion standard’’; (internal quotation marks omit-
ted) State v. Brown, 310 Conn. 693, 701–702, 80 A.3d
878 (2013); in the present case, the defendant’s motion
to correct an illegal sentence raises two questions of
law, over which our review is plenary: (1) whether the
trial court properly construed Spec. Sess. P.A. 15-2, § 1,
not to apply retroactively; see Walsh v. Jodoin, 283
Conn. 187, 195, 925 A.2d 1086 (2007); and (2) whether
this court should overrule Kalil and recognize the ame-
lioration doctrine. See, e.g., State v. Ashby, 336 Conn.
452, 492, 247 A.3d 521 (2020).
I
The defendant first claims that we must interpret
Spec. Sess. P.A. 15-2, § 1, to apply retroactively. The
defendant concedes that the plain language of Spec.
Sess. P.A. 15-2, § 1, does not mention retroactivity. He
asserts that the legislature enacted P.A. 15-244, a budget
bill, under the impression that Spec. Sess. P.A. 15-2,
§ 1, a budget implementing bill, would reduce the prison
population and save the Department of Correction
(department) millions of dollars. The defendant argues
that, if Spec. Sess. P.A. 15-2, § 1, is not applied retroac-
tively, the department would not attain those savings,
an absurd and unworkable result that would violate
the legislature’s constitutional duty to pass a balanced
budget. See Conn. Const., amend. XXVIII (codified at
Conn. Const., art. III, § 18 (a)). As a result, he contends,
this court must examine relevant extratextual sources,
including a fiscal note authored by the Office of Fiscal
Analysis showing that the legislature intended Spec.
Sess. P.A. 15-2, § 1, to apply retroactively. See Office of
Fiscal Analysis, Connecticut General Assembly, Fiscal
Note, House Bill No. 7104, An Act Implementing Provi-
sions of the State Budget for the Biennium Ending June
30, 2017 Concerning General Government Provisions
Relating to Criminal Justice.
In response, the state contends that the Appellate
Court—in Moore, in the defendant’s direct appeal, and
in the present case—correctly determined that, in the
absence of explicit language regarding retroactivity,
Spec. Sess. P.A. 15-2, § 1, is presumed to apply only
prospectively, i.e., only to cases brought after its effec-
tive date. The state argues that a prospective application
would not lead to an absurd or unworkable result when
Spec. Sess. P.A. 15-2, § 1, is viewed in the context of
the relevant savings statutes, General Statutes §§ 1-1
(t) and 54-194. We agree with the state.
A criminal ‘‘statute is said to have retroactive applica-
tion if it applies to crimes allegedly committed prior to
its date of enactment. . . . The question is one of legis-
lative intent and is governed by well established rules
of statutory construction.’’ (Citations omitted.) State v.
Nathaniel S., 323 Conn. 290, 294, 146 A.3d 988 (2016).
Specifically, ‘‘to ascertain and give effect to the appar-
ent intent of the legislature . . . General Statutes § 1-
2z directs this court to first consider the text of the
statute and its relationship to other statutes to deter-
mine its meaning. If, after such consideration, the mean-
ing is plain and unambiguous and does not yield absurd
or unworkable results, we shall not consider extratex-
tual evidence of the meaning of the statute. . . . Only
if we determine that the statute is not plain and unam-
biguous or yields absurd or unworkable results may we
consider extratextual evidence of its meaning such as
the legislative history and circumstances surrounding
its enactment . . . [and] the legislative policy it was
designed to implement . . . . The test to determine
ambiguity is whether the statute, when read in context,
is susceptible to more than one reasonable interpreta-
tion.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) Marchesi v. Board of Select-
men, 309 Conn. 608, 614–15, 72 A.3d 394 (2013).
We therefore begin our analysis with the language
of Spec. Sess. P.A. 15-2, § 1, the first clause of which
provides: ‘‘Section 21a-279 of the general statutes is
repealed and the following is substituted in lieu thereof
(Effective October 1, 2015) . . . .’’ (Emphasis in origi-
nal.) Spec. Sess. P.A. 15-2, was passed on June 20, 2015,
and § 1 is silent on whether it applies retroactively. The
effective date of Spec. Sess. P.A. 15-2, § 1, October 1,
2015, is therefore the only textual reference to the date
of applicability found in Spec. Sess. P.A. 15-2, § 1, and
indicates that the change in punishment for violating
§ 21a-279 would take effect months after its enactment,
not retroactively.
The defendant counters that this court may not treat
the effective date as dispositive of the legislature’s
intent regarding retroactivity.4 We agree and do not rely
on the act’s effective date as the only relevant textual
evidence of the legislature’s intent regarding retroactiv-
ity. The courts in Kalil and Moore did not, either. Rather,
we consider the effective date in light of the applicable
savings statutes and the legislature’s lack of any refer-
ence to retroactivity.
Section 1-2z directs that ‘‘[t]he meaning of a statute
shall, in the first instance, be ascertained from the text
of the statute itself and its relationship to other stat-
utes.’’ (Emphasis added.) Because Spec. Sess. P.A. 15-
2, § 1, repealed and replaced5 the penalty structure for
the crime of possession of narcotics, the state argues
that §§ 54-194 and 1-1 (t), two of our savings statutes,
are related statutes for statutory construction purposes,
and, thus, our interpretation of Spec. Sess. P.A. 15-2, § 1,
is controlled by their presumption against retroactivity.
We agree.
The plain language of § 54-194 provides that ‘‘[t]he
repeal of any statute defining or prescribing the punish-
ment for any crime shall not affect any pending prosecu-
tion or any existing liability to prosecution and punish-
ment therefor, unless expressly provided in the
repealing statute that such repeal shall have that effect.’’
Section 1-1 (t) 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.’’
This court has interpreted these statutes to mean that
there is a presumption that changes to criminal statutes
prescribing or defining punishment apply prospectively
only, unless the statute expressly states otherwise. See
State v. Kalil, supra, 314 Conn. 552 (presumption that
criminal statutes apply prospectively is derived from
§§ 54-194 and 1-1 (t)). This presumption ‘‘can be over-
come only by a clear and unequivocal expression of
legislative intent that the statute shall apply retrospec-
tively . . . [which may be determined by examining
the language of the statute and] the relationship of [the
statute] to related statutes . . . .’’ (Citation omitted.)
Mead v. Commissioner of Correction, 282 Conn. 317,
325, 920 A.2d 301 (2007); see also State v. Nowell, 262
Conn. 686, 701–702, 817 A.2d 76 (2003).6
As noted, the defendant does not contend that the
plain language of Spec. Sess. P.A. 15-2, § 1, clearly over-
comes this presumption. Rather, he argues that this
presumption does not apply in the present case because
the legislature did not intend for these savings statutes
to apply to ameliorative changes to sentencing schemes,
and, thus, these statutes are not in fact related statutes
for statutory construction purposes in determining the
meaning of Spec. Sess. P.A. 15-2, § 1.7 Specifically, the
defendant argues that §§ 54-194 and 1-1 (t) do not apply
to Spec. Sess. P.A. 15-2, § 1, because, historically, these
savings statutes were adopted to prevent common-law
abatement, not to prevent a defendant from receiving
the benefit of an ameliorative statute.
It is true that these savings statutes were enacted
‘‘to counter the effect of the common-law abatement
doctrine.’’ State v. Kalil, supra, 314 Conn. 556. The
history of the statutes, however, does not support an
argument that the legislature intended to exclude amel-
iorative amendments from the presumption against ret-
roactivity derived from §§ 54-194 and 1-1 (t)).
We refer to these statutes as ‘‘savings statutes’’
because they ‘‘preserve all prior offenses and liability
therefor so that when a crime is committed and the
statute violated is later amended or repealed, defen-
dants remain liable under the revision of the statute
existing at the time of the commission of the crime. . . .
[S]avings statutes were enacted to prevent defendants
from escaping punishment by allowing the state to pur-
sue them under prior versions of a statute, regardless
of whether the newer revision imposed a greater or
lesser penalty.’’ (Citations omitted.) State v. Graham,
56 Conn. App. 507, 511, 743 A.2d 1158 (2000). ‘‘At com-
mon law, the repeal of a criminal statute abated all
prosecutions which had not reached final disposition
in the highest court authorized to review them. . . .
Abatement by repeal included a statute’s repeal and
[reenactment] with different penalties. . . . And the
rule applied even when the penalty was reduced. . . .
To avoid such results, legislatures frequently indicated
an intention not to abate pending prosecutions by
including in the repealing statute a specific clause stat-
ing that prosecutions of offenses under the repealed
statute were not to be abated.’’ (Citations omitted.)
Bradley v. United States, 410 U.S. 605, 607–608, 93 S.
Ct. 1151, 35 L. Ed. 2d 528 (1973). ‘‘As a way of preventing
abatements of criminal prosecutions and other liabili-
ties when legislatures failed to provide special savings
clauses in the repealing legislation, state legislatures
began in the [nineteenth] century to adopt general sav-
ings statutes applicable thereafter to all repeals, amend-
ments, and reenactments of criminal and civil liabilities.
For criminal prosecutions, therefore, these statutes
shifted the legislative presumption from one of abate-
ment unless otherwise specified to one of [nonabate-
ment] in the absence of contrary legislative direction.’’
(Footnote omitted; internal quotation marks omitted.)
Holiday v. United States, 683 A.2d 61, 66 (D.C. 1996),
cert. denied sub nom. Palmer v. United States, 520 U.S.
1162, 117 S. Ct. 1349, 137 L. Ed. 2d 506 (1997).
To the extent that the history of the savings statutes
leaves any ambiguity as to their applicability, this
court’s interpretation of these statutes lays to rest any
doubt. Since at least 1936, this court has held that
changes to criminal sentencing schemes, even those
that provide a benefit to defendants, are subject to these
savings statutes. See Simborski v. Wheeler, 121 Conn.
195, 183 A. 688 (1936) (applying statutory predecessor
to § 54-194 when amendments to method of carrying
out death penalty would have benefited defendant).8
This is due to the language of § 54-194, which provides
in relevant part that it applies to ‘‘[t]he repeal of any
statute defining or prescribing the punishment for any
crime. . . .’’ (Emphasis added.) On the basis of this
language, courts in this state have concluded that ‘‘[i]t
is obvious from the clear, unambiguous, plain language
of the savings statutes that the legislature intended that
the defendant be prosecuted and sentenced in accor-
dance with and pursuant to the statutes in effect at the
time of the commission of the crime . . . regardless
of whether the newer revision imposed a greater or
lesser penalty.’’ (Citations omitted.) State v. Graham,
supra, 56 Conn. App. 511, citing Simborski v. Wheeler,
supra, 198–200.
In light of this plain language and history, this court
consistently has held that these savings statutes
embody a legislative intent of only prospective applica-
tion of changes to criminal statutes defining or prescrib-
ing punishment, unless otherwise specified explicitly,
regardless of whether the change benefits defendants.
See State v. Kalil, supra, 314 Conn. 552 (holding that
§§ 54-194 and 1-1 (t) apply to changes to sentencing
schemes of criminal statutes, even those that benefit
defendant); State v. Harris, 198 Conn. 158, 168, 502
A.2d 880 (1985) (rejecting defendant’s argument that
he should not be prosecuted under statute in effect at
time of crime but under amended statute, and stating
that, ‘‘[i]n order to accept the defendant’s argument
. . . [the court] would have to ignore the savings clause
embodied in . . . § 54-194’’); State v. Carbone, 172
Conn. 242, 256, 374 A.2d 215 (repeal of statute was
not retroactive ‘‘[s]ince the defendants were liable to
prosecution at the date of the repeal, [and, thus] § 54-
194 preserves that liability’’), cert. denied, 431 U.S. 967,
97 S. Ct. 2925, 53 L. Ed. 2d 1063 (1977), and cert. denied,
431 U.S. 967, 97 S. Ct. 2925, 53 L. Ed. 2d 1063 (1977);
State v. DeMartin, 171 Conn. 524, 528–29, 370 A.2d
1038 (1976) (in determining whether amended statute
applies, ‘‘§ 54-194 is dispositive’’ that ‘‘a crime commit-
ted prior to the effective date of the repealing act
remains punishable under the terms of the prior statute’’
unless amended statute expressly provides otherwise
(internal quotation marks omitted)); State v. Pastet, 169
Conn. 13, 22, 363 A.2d 41 (§ 1-1 (t) applied to repeal of
sentencing statute, and, thus, repeal was not retroac-
tive), cert. denied, 423 U.S. 967, 96 S. Ct. 297, 46 L. Ed.
2d 270 (1975); State v. Pastet, 152 Conn. 81, 85, 203
A.2d 287 (1964) (‘‘[i]n the absence of any expressed
legislative intent that [the public act] should apply retro-
actively, we dismiss this attempt by the defendant [to
persuade the court otherwise] without further com-
ment’’), citing General Statutes §§ 1-1 (t) and 54-194;
Dortch v. State, 142 Conn. 18, 29, 110 A.2d 471 (1954)
(savings statutes applied to change to criminal sentenc-
ing scheme and prevented retroactive application when
‘‘[t]he legislature expressed no intent that [the amended
statute] should operate retrospectively’’); Simborski v.
Wheeler, supra, 121 Conn. 197–98, 199 (The court applied
the statutory predecessor to § 54-194 when amendments
that changed the method of carrying out the death
penalty would have benefited the defendant because
‘‘[t]he situation before [the court was] clearly within
the intent of . . . provisions [the legislature previously
had enacted pertaining to the repeal of statutes]. In
effect they attach to every act repealing a statute within
their purview a saving clause . . . under which the
repealed statute still remains in full effect as regards
any matter covered by it.’’).9
On the basis of this extensive case law, dating back
to the 1930s, we must assume that the legislature is
aware of how we have interpreted and applied §§ 54-
194 and 1-1 (t).10 The legislature has not amended these
savings statutes, manifesting its acceptance of our inter-
pretation of them. See State v. Kalil, supra, 314 Conn.
556 (legislature has not amended §§ 54-194 and 1-1 (t)
for more than 130 years); see also State v. Lombardo
Bros. Mason Contractors, Inc., 307 Conn. 412, 440, 54
A.3d 1005 (2012) (‘‘[o]nce an appropriate interval to
permit legislative reconsideration has passed without
corrective legislative action, the inference of legislative
acquiescence places a significant jurisprudential limita-
tion on our own authority to reconsider the merits of our
earlier decision’’ (internal quotation marks omitted)).11
Thus, §§ 54-194 and 1-1 (t) apply to any change to a
criminal statute prescribing or defining punishment and
are related statutes for purposes of interpreting Spec.
Sess. P.A. 15-2, § 1.
Additionally, because we must assume that the legis-
lature is aware that we have interpreted §§ 54-194 and
1-1 (t) as requiring an explicit expression of intent
regarding retroactivity to overcome this presumption,
we likewise must assume that the legislature’s silence
regarding retroactivity in Spec. Sess. P.A. 15-2, § 1, is
evidence of an intent for prospective application only.
Specifically, in light of our well established interpreta-
tion of §§ 54-194 and 1-1 (t), the fact that Spec. Sess.
P.A. 15-2, § 1, is silent regarding retroactivity does not
create ambiguity. See State v. Orr, 291 Conn. 642, 653–
54, 969 A.2d 750 (2009) (‘‘[t]he fact that . . . relevant
statutory provisions are silent . . . does not mean that
they are ambiguous’’ (internal quotation marks omit-
ted)). Rather, this silence ‘‘indicates that the legislature
intended [the amendment] to be applied prospectively
only.’’ State v. Kalil, supra, 314 Conn. 558; see also
State v. Harris, supra, 198 Conn. 168 (because we must
presume that legislature was aware of savings statute,
and related case law, we also must presume that it did
not intend for amendment at issue to apply retroactively
when amendment made no mention of retroactive appli-
cation). Accordingly, Spec. Sess. P.A. 15-2, § 1, is subject
to only one reasonable interpretation—that it applies
only prospectively.
Moreover, the straightforward rule created by these
savings statutes—that changes to the sentencing
scheme of a criminal statute are not retroactive unless
explicitly stated—is supported by the legislature’s
directive in § 1-2z that we ascertain the meaning of a
statute ‘‘in the first instance . . . from the text of the
statute itself and its relationship to other statutes.’’ This
rule also makes for sound policy because, by requiring
the legislature to be explicit regarding retroactivity,
these savings statutes help eliminate the possibility of
ambiguity regarding an amendment’s applicability, an
issue inherent in any amendment altering criminal pen-
alties that could be resolved by legislative clarity rather
than judicial interpretation.
Nevertheless, the defendant asserts that we must con-
sider Spec. Sess. P.A. 15-2, § 1, in the context of not
only the savings statutes, but also in light of P.A. 15-
244, the budget bill he claims it was meant to implement.
He argues that, even if it is assumed that the text of the
amendment and its relationship to the savings statutes
yield a plain and unambiguous meaning requiring pro-
spective application only, this reading leads to an
‘‘absurd and unworkable result.’’ The crux of the defen-
dant’s argument is that P.A. 15-244 anticipated a certain
amount of fiscal savings for the department, which was
supposed to be accomplished by Spec. Sess. P.A. 15-2,
§ 1, and, without retroactive application, Spec. Sess.
P.A. 15-2, § 1, cannot accomplish its purpose, thereby
creating an unbalanced budget in violation of the legisla-
ture’s constitutional duty to pass a balanced budget. See
Conn. Const., amend. XXVIII. As a result, the defendant
contends, this court may examine extratextual sources
to determine the legislature’s intent, including a fiscal
note authored by the Office of Fiscal Analysis regarding
Spec. Sess. P.A. 15-2, § 1. See Office of Fiscal Analysis,
Fiscal Note, House Bill No. 7104, supra. The defendant
maintains that the fiscal note shows that the legislature
intended the amendment to apply retroactively because
the legislature anticipated that it would lead to a certain
amount of savings for the department, which would
have been possible only if the amendment were to be
applied retroactively to those defendants with pending
cases at the time the amendment became effective.
The defendant correctly notes that, even if the lan-
guage of Spec. Sess. P.A. 15-2, § 1, is plain and unambig-
uous, extratextual sources may be consulted if ‘‘the
meaning of a provision cannot be gleaned from examin-
ing the text of the statute and other related statutes
without yielding an absurd or unworkable result . . . .’’
Carmel Hollow Associates Ltd. Partnership v. Bethle-
hem, 269 Conn. 120, 129 n.16, 848 A.2d 451 (2004); see
also State v. Salamon, 287 Conn. 509, 524–25, 949 A.2d
1092 (2008). ‘‘[T]his court will not interpret statutes in
such a way that would reach a bizarre or absurd result.’’
(Internal quotation marks omitted.) State v. Boyd, 272
Conn. 72, 79, 861 A.2d 1155 (2004). The plain language of
P.A. 15-244, however, does not support the defendant’s
argument. Nothing in P.A. 15-244 or its legislative his-
tory references Spec. Sess. P.A. 15-2, § 1, let alone a
specific amount of fiscal savings anticipated by Spec.
Sess. P.A. 15-2, § 1. This is not surprising because P.A.
15-244 was passed by the legislature before Spec. Sess.
P.A 15-2.
Rather, to establish that the legislature intended Spec.
Sess. P.A. 15-2, § 1, to create a certain amount of fiscal
savings that would be possible through retroactive
application only, the defendant makes a circular argu-
ment, relying on extratextual sources to show that a
prospective only application would lead to the absurd
result of not achieving those savings, thereby justifying
the use of the same extratextual sources in interpreting
Spec. Sess. P.A. 15-2, § 1.12 The defendant argues that we
may examine these extratextual sources to determine
whether there is an absurd or unworkable result insofar
as budget bills and associated implementing bills ‘‘are
unique forms of legislation because they cannot be fully
understood on their own. Unlike the plain language
contained within other statutes, budget bills are com-
prised of fiscal amounts and budget line items—num-
bers—that are not self-explanatory. Indeed, these bills
can only be fully understood and acted upon by refer-
ence to documents prepared by the legislature’s nonpar-
tisan office, the Office of Fiscal Analysis . . . [includ-
ing fiscal notes] and any implementing legislation the
legislature chooses to pass to effectuate the revenue
and expenditure levels contained in the budget.’’ Thus,
the defendant contends that we must consider Spec.
Sess. P.A. 15-2, § 1, not just in light of P.A. 15-244 but
also in light of any related analyses authored by the
Office of Fiscal Analysis.
The defendant cites no case law, and we have found
none, holding that budget bills are inherently ambigu-
ous under § 1-2z and that extratextual sources must be
considered to determine their meaning. Additionally,
the defendant’s argument conflicts directly with our
rules of statutory construction, which prohibit this
court from considering extratextual sources unless the
plain language of the statute is ambiguous or leads to
an absurd or unworkable result. See General Statutes
1-2z. In determining whether the plain language of P.A.
Spec. Sess. 15-2, § 1, leads to an absurd or unworkable
result, we are limited to considering its plain language
and its relationship to other statutes. The defendant
has not identified any language in Spec. Sess. P.A. 15-
2, § 1, or P.A. 15-244 that supports his argument. The
only arguable support for his argument exists in extra-
textual sources, such as the fiscal note attached to Spec.
Sess. P.A. 15-2, § 1, which we cannot consider.13 See
State v. Ramos, 306 Conn. 125, 140–41, 49 A.3d 197(2012) (‘‘[a]lthough the defendant contends that our
conclusion would mean that legislators whose com-
ments during debate on [a] 1997 amendment indicated
that they interpreted the statute differently and did not
understand the plain meaning of the bill that they either
sponsored or voted in favor of, this argument too
depends on our resort to the legislative history that § 1-
2z bars us from considering [in the absence of ambiguity
or an absurd result]’’).
We note, however, that, even if the Office of Fiscal
Analysis made a mistake regarding the retroactive appli-
cation of Spec. Sess. P.A. 15-2, § 1, or a miscalculation
about its anticipated fiscal savings, this alone would
not necessarily lead to an absurd or unworkable result
requiring retroactive application when the legislature
has not expressed any manifest intent for retroactive
application. Not only does neither P.A. 15-244 nor Spec.
Sess. P.A. 15-2, § 1, mention retroactivity, but the legisla-
tive histories of both are void of any discussion regard-
ing retroactivity. See Mead v. Commissioner of Correc-
tion, supra, 282 Conn. 326 (rejecting retroactive
application of statute when ‘‘review of the legislative
history . . . reveals that it is void of any clear and
unequivocal expression by the legislature for [the stat-
ute] to apply retroactively’’). We acknowledge that fis-
cal notes authored by the Office of Fiscal Analysis ‘‘may
bear on the legislature’s knowledge of interpretive prob-
lems that could arise from a bill.’’ Butts v. Bysiewicz,
298 Conn. 665, 688 n.22, 5 A.3d 932 (2010). But they
‘‘are not, in and of themselves, evidence of legislative
intent . . . .’’ Id. The fiscal note at issue, by itself, is
insufficient. Sections 54-194 and 1-1 (t) require an
explicit expression of intent regarding retroactivity to
overcome the presumption of prospective applicability
only. Accordingly, viewing the plain language of Spec.
Sess. P.A. 15-2, § 1, in the context of P.A. 15-244 does
not lead to an absurd or unworkable result, and, thus,
extratextual sources may not be considered.
Nevertheless, the defendant responds that it is illogi-
cal for the legislature to change the sentencing scheme
on the basis of a change in moral policy and a recogni-
tion that the prior punishment was ineffective but not
to apply that change retroactively. This argument, how-
ever, relies on legislative history, which we may not
examine in light of our conclusion that the plain lan-
guage of Spec. Sess. P.A. 15-2, § 1, is clear and unambig-
uous, and does not lead to an absurd or unworkable
result. See State v. Ramos, supra, 306 Conn. 140. More
fundamentally though, this court has stated that there
is ‘‘nothing irrational in a legislative conclusion that
individuals should be punished in accordance with the
sanctions in effect at the time the offense was commit-
ted, a viewpoint encompassed by the savings statutes
themselves.’’ (Internal quotation marks omitted.) State
v. Kalil, supra, 314 Conn. 555, quoting Holiday v. United
States, supra, 683 A.2d 79. It also is perfectly rational
for the legislature to conclude that the better policy is
to offer statutory grace and apply the change retroac-
tively to pending cases, or even to already sentenced
defendants. According to its own words, along with our
case law, however, the legislature must do so explicitly.
Accordingly, we conclude that the plain language of
Spec. Sess. P.A. 15-2, § 1, clearly and unambiguously
prohibits retroactive application, and this interpretation
does not lead to an absurd or unworkable result, espe-
cially when viewed in context of the related savings
statutes, §§ 54-194 and 1-1 (t). Therefore, we conclude
that the Appellate Court correctly determined that the
defendant was properly sentenced in accordance with
the version of § 21a-279 (a) in effect on the date of the
conduct at issue.
II
Alternatively, the defendant asks us to declare that
Spec. Sess. P.A. 15-2, § 1, applies retroactively under
the amelioration doctrine, which ‘‘provides that amend-
ments to statutes that lessen their penalties are applied
retroactively . . . .’’ (Internal quotation marks omit-
ted.) State v. Kalil, supra, 314 Conn. 552. The defendant
acknowledges that this court only recently rejected the
applicability of this doctrine in Kalil. Nonetheless, he
argues that we should overrule Kalil because it is at
odds with this court’s long-standing retroactivity prece-
dent.14 The state responds that this court’s holding in
Kalil is supported by both the applicable savings stat-
utes and § 1-2z, and that no grounds exist for overruling
Kalil. We agree with the state.
Our determination of whether we should overrule a
prior decision is guided by the doctrine of stare decisis,
which ‘‘counsels that a court should not overrule its
earlier decisions unless the most cogent reasons and
inescapable logic require it. . . . [I]n evaluating the
force of stare decisis, our case law dictates that we
should be especially wary of overturning a decision that
involves the construction of a statute. . . . When we
construe a statute, we act not as plenary lawgivers but
as surrogates for another policy maker, [that is] the
legislature. In our role as surrogates, our only responsi-
bility is to determine what the legislature, within consti-
tutional limits, intended to do. . . . Once [we have con-
strued a statute and] an appropriate interval to permit
legislative reconsideration has passed without correc-
tive legislative action, the inference of legislative acqui-
escence places a significant jurisprudential limitation
on our own authority to reconsider the merits of our
earlier decision. . . . Factors that may justify overrul-
ing a prior decision interpreting a statutory provision
include intervening developments in the law, the poten-
tial for unconscionable results, the potential for irrecon-
cilable conflicts and difficulty in applying the interpreta-
tion.’’ (Internal quotation marks omitted.) State v.
Evans, 329 Conn. 770, 804–805, 189 A.3d 1184 (2018),
cert. denied, U.S. , 139 S. Ct. 1304, 203 L. Ed.
2d 425 (2019).
In Kalil, the defendant argued that Public Acts 2009,
No. 09-138, § 2 (P.A. 09-138), which increased the mini-
mum value element of the second degree larceny statute
from $5000 to $10,000, and which would have resulted in
a downgrade of the defendant’s second degree larceny
charge to third degree larceny and a reduction in his
sentence, applied retroactively under the amelioration
doctrine. State v. Kalil, supra, 314 Conn. 550. P.A. 09-
138, § 2, was enacted after the criminal conduct at issue
but while the defendant’s case was pending. Id., 551.
In declining to adopt the amelioration doctrine, this
court noted that, in determining whether a change in
a criminal statute prescribing punishment applies retro-
actively, it is bound by the presumption against retroac-
tivity contained in §§ 54-194 and 1-1 (t). Id., 552–53.
Nevertheless, the defendant in Kalil argued that the
amelioration doctrine should apply despite these sav-
ings statutes because the legislature did not intend for
§§ 54-194 and 1-1 (t) to apply to ameliorative changes
in law. Id., 556. This court disagreed. Id. First, as
explained in detail in part I of this opinion, this court set
forth its extensive history of holding that these savings
statutes apply to all changes to criminal statutes defin-
ing or prescribing punishment, even if the change bene-
fits defendants, unless the legislature explicitly pro-
vides otherwise. Id., 553–54. Because ‘‘the legislature
has not seen fit to amend the statutes in any material
respects for more than 130 years,’’ despite this case
law, this court held that these savings statutes applied
and weighed against adopting the amelioration doc-
trine. Id., 556.
Second, we held that this court was required to inter-
pret changes to criminal sentencing schemes in light of
these savings statutes for separation of powers reasons:
‘‘[W]hatever views may be entertained regarding sever-
ity of punishment, whether one believes in its efficacy
or its futility . . . these are peculiarly questions of leg-
islative policy. . . . Thus, although the rule of separa-
tion of governmental powers cannot always be rigidly
applied . . . it must be remembered that the constitu-
tion assigns to the legislature the power to enact laws
defining crimes and fixing the degree and method of
punishment and to the judiciary the power to try
offenses under these laws and [to] impose punishment
within the limits and according to the methods . . .
provided.’’ (Citations omitted; internal quotation marks
omitted.) Id., 554–55.
Third, this court determined that adopting the amelio-
ration doctrine ‘‘could result in the unequal treatment
of defendants who commit the [same] crime . . . on
the same day but whose trials proceed at a different
pace, thus resulting in some defendants being convicted
under the law in effect at the time the crime was com-
mitted and others under the law enacted following com-
mission of the crime.’’ Id., 555. We concluded that it is
‘‘unlikely that the legislature would have intended for
two similarly situated offenders to receive . . . dispa-
rate treatment solely on the fortuity of when their cases
came to trial.’’ (Internal quotation marks omitted.)
Id., 555–56.
Fourth, in response to the defendant’s argument that
it would be illogical for the legislature to intend for an
ameliorative statute to apply prospectively only, this
court explained that there was ‘‘nothing irrational in a
legislative conclusion that individuals should be pun-
ished in accordance with the sanctions in effect at the
time the offense was committed, a viewpoint encom-
passed by the savings statutes themselves.’’ (Internal
quotation marks omitted.) Id., 555. Finally, this court
rejected the defendant’s reliance on case law from other
jurisdictions that have adopted the amelioration doc-
trine, explaining that those jurisdictions relied on ‘‘their
own unique state constitutional and jurisdictional con-
straints.’’ Id., 556.
We see no reason why this court should overrule
Kalil, which thoroughly considered this issue more than
six years ago. Although relatively recent, the holding
in Kalil is premised on approximately 100 years of
precedent, during which time the legislature took no
action that would suggest any disagreement with our
interpretation and application of §§ 54-194 and 1-1 (t).
See State v. Evans, supra, 329 Conn. 806–807. Moreover,
the analysis in Kalil is consistent with our analysis in
part I of this opinion, showing that there are no conflicts
or difficulty in applying the holding of Kalil. Accord-
ingly, we are not persuaded that any ‘‘ ‘cogent reasons’ ’’
or ‘‘ ‘inescapable logic’ ’’ supports a departure from our
decision in Kalil. Id., 805.
The defendant argues that Kalil nevertheless should
be overruled because it is at odds with this court’s
prior precedent regarding retroactivity. Specifically, he
argues that, prior to Kalil, this court routinely examined
extratextual sources to determine the legislature’s
intent regarding retroactivity regardless of the amend-
ment’s plain language, and, thus, Kalil’s strict applica-
tion of § 1-2z is contrary to prior case law.15 The defen-
dant contends that the holding in Kalil means that the
savings statutes will always trump legislative intent. He
contends that, instead, the savings statutes must yield
to legislative intent, which is established in this case
by extratextual sources. This argument relies on retro-
activity cases decided before the enactment of § 1-2z
in which this court considered both the plain language
of the amendments and legislative history to determine
the legislature’s intent. See, e.g., State v. Parra, 251
Conn. 617, 622–23, 741 A.2d 902 (1999); In re Daniel
H., 237 Conn. 364, 376, 678 A.2d 462 (1996).
This court has held that the enactment of § 1-2z did
not suggest that the legislature intended to overrule
prior cases in which our courts employed methods of
statutory interpretation that were inconsistent with § 1-
2z. See Hummel v. Marten Transport, Ltd., 282 Conn.
477, 501, 923 A.2d 657 (2007). This would include prior
retroactivity cases. We never have held, however, that
all future retroactivity cases also can ignore the dictates
of § 1-2z and the principles contained therein. Although
the holdings in the cases the defendant cites remain
good law, the principles of statutory construction that
were used to reach those holdings have been replaced
by § 1-2z,16 which directs us not to examine extratextual
sources unless the statute’s plain language is ambiguous
or creates an absurd or unworkable result. This does not
mean that the savings statutes trump the legislature’s
intent. To the contrary, they require the legislature to
be explicit in its intent regarding retroactivity. As
explained, this court has interpreted §§ 54-194 and 1-1
(t) in this fashion for decades, and the legislature never
has amended them, acquiescing to our interpretation
of the legislature’s own rules of construction. See State
v. Graham, supra, 56 Conn. App. 511 (‘‘[t]he defendant’s
request that this court adopt an ‘amelioration doctrine,’
whereby amendments to statutes that lessen their pen-
alties are applied retroactively is, in essence, asking this
court to intervene in the legislative process to nullify
by judicial fiat the legislature’s savings statutes’’). Con-
trary to the defendant’s argument that a strict adherence
to § 1-2z conflicts with our retroactivity jurisprudence,
§ 1-2z is consistent with our prior interpretations of
§§ 54-194 and 1-1 (t), which require that the legislature
use explicit—i.e., ‘‘plain’’—language to express its
intent to apply such a statute retroactively. This rule
of construction is not of ‘‘our own making,’’ as the
concurring justice asserts, but of the legislature’s mak-
ing. (Emphasis omitted.) Section 1-2z is further evi-
dence of the legislature’s intent that its statutes be taken
at face value, and not only supports but requires our
conclusion that, unless explicitly stated otherwise, acts
governed by §§ 54-194 and 1-1 (t) must be presumed to
apply only prospectively.17
Finally, the defendant argues that the holding in Kalil
is hostile to the clear legislative purpose of ameliorative
amendments because these amendments manifest a
shift in society’s moral approach to punishment. In sup-
port of his position, the defendant relies on case law
from other jurisdictions that have adopted the ameliora-
tion doctrine for this very reason. This argument is
unpersuasive, however, because, as we already have
explained in Kalil, we are bound by § 1-2z and by our
savings statutes, which we consistently have interpre-
ted as applying to ameliorative changes in criminal sen-
tencing schemes. Accordingly, we decline the invitation
to overrule Kalil and to adopt the amelioration doctrine.
The judgment of the Appellate Court is affirmed.
In this opinion ROBINSON, C. J., and McDONALD,
KAHN and KELLER, Js., concurred.
* January 15, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
In 2014, when the defendant committed the offense of which he was
convicted, General Statutes (Rev. to 2013) § 21a-279 (a) provided: ‘‘Any
person who possesses or has under his control any quantity of any narcotic
substance, except as authorized in this chapter, for a first offense, may be
imprisoned not more than seven years or be fined not more than fifty
thousand dollars, or be both fined and imprisoned; and for a second offense,
may be imprisoned not more than fifteen years or be fined not more than
one hundred thousand dollars, or be both fined and imprisoned; and for
any subsequent offense, may be imprisoned not more than twenty-five years
or be fined not more than two hundred fifty thousand dollars, or be both
fined and imprisoned.’’
At the time of the defendant’s sentencing, General Statutes (Supp. 2016)
§ 21a-279 (a) provided: ‘‘(1) Any person who possesses or has under such
person’s control any quantity of any controlled substance, except less than
one-half ounce of a cannabis-type substance and except as authorized in
this chapter, shall be guilty of a class A misdemeanor.
‘‘(2) For a second offense of subdivision (1) of this subsection, the court
shall evaluate such person and, if the court determines such person is a
drug-dependent person, the court may suspend prosecution of such person
and order such person to undergo a substance abuse treatment program.
‘‘(3) For any subsequent offense of subdivision (1) of this subsection, the
court may find such person to be a persistent offender for possession of a
controlled substance in accordance with section 53a-40.’’
Unless otherwise indicated, all references to § 21a-279 (a) in this opinion
are to the 2013 revision of the statute.
2
The Appellate Court ruled that the form of the trial court’s judgment
was improper and that the trial court should have denied, not dismissed,
the defendant’s motion. See State v. Bischoff, 189 Conn. App. 119, 120, 124,
207 A.3d 28 (2019).
3
Due to a scrivener’s error, which we correct in brackets, the second
certified question initially stated: ‘‘If the answer to the first certified question
is ‘no,’ should this court overrule the retroactivity analysis contained in
State v. Kalil, [supra, 314 Conn. 552] and apply the amelioration doctrine
to give retroactive effect to Spec. Sess. P.A. 15-2, § 1?’’ State v. Bischoff,
331 Conn. 926, 927, 207 A.3d 28 (2019).
4
The defendant argues that courts recently have placed too much signifi-
cance on the effective date in determining retroactivity, treating it as disposi-
tive. See State v. Kalil, supra, 314 Conn. 558 (‘‘[T[he effective date of [Public
Acts 2009, No. 09-138, § 2 (P.A. 09-138)], was October 1, 2009. This fact,
and the absence of any express language in the provision referring to its
retroactive application, indicates that the legislature intended P.A. 09-138,
§ 2, to be applied prospectively only.’’); State v. Moore, supra, 180 Conn.
App. 123 (‘‘The effective date of the 2015 amendment is October 1, 2015.
. . . The amendment contains no express statement that it applies retroac-
tively. . . . [T[he absence of any language stating that the amendment
applies retroactively indicates that the legislature intended the amendment
to apply prospectively only.’’ (Citation omitted.)). He points out that, in
State v. Nathaniel S., supra, 323 Conn. 301, this court held that the effective
date had no ‘‘ ‘particular significance’ ’’ in determining retroactivity.
There is a critical difference between Spec. Sess. P.A. 15-2, § 1, and the
amendatory act we construed in State v. Nathaniel S., supra, 323 Conn.
294–96. Nathaniel S. involved an amendment to the juvenile transfer statute
that increased the age of a child whose case was subject to an automatic
transfer to the adult docket by one year to fifteen years old. Id., 292; see
Public Acts 2015, No. 15-183, § 1 (P.A. 15-183), codified at General Statutes
(Supp. 2016) § 46b-127 (a) (1). The issue in Nathaniel S. was whether the
presumption against retroactivity under General Statutes § 55-3, which
applies only to substantive changes in the law, applied to the juvenile transfer
amendment. We concluded that the amendment to the automatic transfer
provisions was procedural in nature, which, under our case law, unlike a
substantive amendment, is presumed to apply retroactively to all pending
cases. State v. Nathaniel S., supra, 301. It was in light of that presumption that
the court stated that the effective date of P.A. 15-183 was of no ‘‘ ‘particular
significance’ ’’: i.e., the effective date of the repealing statute did not over-
come the presumption of retroactivity. Id.
By contrast, the amendment at issue in the present case changes the
punishment structure for the crime of possession of narcotics, thereby
implicating §§ 54-194 and 1-1 (t), which apply to changes to criminal statutes
prescribing punishment and create a presumption against retroactivity. The
defendant does not contend that we are tasked with deciding whether Spec.
Sess. P.A. 15-2, § 1, is substantive or procedural under § 55-3. Thus, unlike
in Nathaniel S., in which the defendant sought to use an effective date to
rebut an applicable presumption, the effective date of Spec. Sess. P.A. 15-
2, § 1, buttresses the presumption of prospective application only.
5
In enacting amendments—ameliorative or otherwise—our legislature
explicitly repeals the prior version of the amended statute. Connecticut may
be unique in this respect. Thus, this court consistently has held, and the
defendant does not contest, that amendments and substitutions to statutes
are the equivalent of repeals, and, thus, the savings statutes apply to any
change—amendment, substitution, or repeal—to a criminal statute prescrib-
ing or defining punishment. See Simborski v. Wheeler, 121 Conn. 195, 200,
183 A. 688 (1936) (amendment or substitution ‘‘constitutes just as complete
and effective a repeal of the provisions in the place of which the substitution
is made as though they had been in terms repealed’’); see also State v. Kalil,
supra, 314 Conn. 553 n.9 (difference between repeal and amendment ‘‘is a
distinction without a difference, because the legislature typically repeals an
existing statute before enacting its replacement containing the amended
language’’). Thus, there is no dispute in the present case that the legislature
‘‘repealed’’ the existing possession of narcotics statute in its entirety before
replacing it with the new sentencing scheme. See Spec. Sess. P.A. 15-2, § 1
(‘‘[s]ection 21a-279 of the general statutes is repealed and the following is
substituted in lieu thereof (Effective October 1, 2015)’’ (emphasis omitted)).
6
An example of the legislature’s expressly providing for retroactive appli-
cability is No. 11-51 of the 2011 Public Acts, § 22, codified at General Statutes
§ 18-98e (a), which provides in relevant part that ‘‘any person sentenced to
a term of imprisonment for a crime committed on or after October 1, 1994,
and committed to the custody of the Commissioner of Correction on or
after said date . . . may be eligible to earn risk reduction credit toward a
reduction of such person’s sentence, in an amount not to exceed five days
per month, at the discretion of the Commissioner of Correction for conduct
as provided in subsection (b) of this section occurring on or after April 1,
2006.’’ This amendment specifically provided that it retroactively applied to
inmates who committed crimes on or after October 1, 1994.
7
The defendant makes this argument in his initial brief in relation to his
second claim, regarding the amelioration doctrine, and in his reply brief in
relation to his first claim in response to the state’s argument regarding the
proper construction of Spec. Sess. P.A. 15-2, § 1. For efficiency, we address
this argument here.
8
The concurring justice disagrees that ‘‘our earlier case law suggests that
the outcome in Kalil was foreordained by ‘extensive case law’ . . . .’’ Foot-
note 2 of the concurring opinion. Specifically, it does not view our prior
case law as ever having decided ‘‘the question of whether the amelioration
doctrine could or should be adopted as part of our laws . . . .’’ Id. Although
this court may not have used the word ‘‘amelioration,’’ our prior case law
clearly has addressed whether changes to criminal statutes defining or
prescribing punishment that provide a benefit to defendants apply retroac-
tively under §§ 54-194 and 1-1 (t), which is the same issue in different
verbiage. It is also true that, in Castonguay v. Commissioner of Correction,
300 Conn. 649, 16 A.3d 676 (2011), we stated that ‘‘[t]his court has not
previously held that ameliorative changes to criminal statutes apply retroac-
tively and we express no opinion on that question here.’’ Id. 663 n.14. But
that statement related to General Statutes § 55-3, which is the savings statute
governing substantive changes to laws in general, not §§ 54-194 and 1-1
(t), which apply specifically to changes in laws that define or prescribe
punishment. See Harlow v. Planning & Zoning Commission, 194 Conn.
187, 194, 479 A.2d 808 (1984) (§ 55-3 embodies general presumption that
legislation is intended to operate prospectively). Moreover, the Castonguay
footnote is consistent with our prior law, as this court never has ‘‘held that
ameliorative changes to criminal statutes apply retroactively . . . .’’
(Emphasis added.) Castonguay v. Commissioner of Correction, supra, 663
n.14. On the other hand, we specifically have held that changes to criminal
statutes that benefit defendants do not apply retroactively in the absence
of a clear intent from the legislature.
9
Despite our lengthy history of applying these savings statutes to all
changes to criminal statutes prescribing punishment, the defendant relies
on a footnote from State v. Nathaniel S., supra, 323 Conn. 290, for his
contention that there remains an open question regarding whether the sav-
ings statutes would bar retroactive application of a change to a criminal
statute that benefits a defendant. We said in that case: ‘‘Because we conclude
that [the amendment at issue] is procedural rather than substantive, we
need not determine whether [General Statutes] § 55-3 would bar retroactive
application of a statute that, while substantive in nature, affords only benefits
to a criminal defendant and imposes no new obligations on either the defen-
dant or other persons.’’ (Emphasis omitted.) Id., 295 n.1. Not only is the
footnote in Nathaniel S. nonbinding dictum, as already discussed, it involves
a different savings statute than either of the statutes at issue in this case.
See footnote 4 of this opinion. As also already discussed, this court has a
long history of applying §§ 54-194 and 1-1 (t) to any amendment that involves
the defining or prescribing of punishment, regardless of whether the amend-
ment increases or decreases punishment.
10
The defendant argues that this court should interpret its savings statutes
in a manner similar to how courts in other jurisdictions have interpreted
their savings statutes as not applying to ameliorative changes to sentencing
schemes. But as this court previously has stated, ‘‘[b]ecause of the differ-
ences in the statutory language, governing statutory regimes, and controlling
legal precedents, those decisions are of limited use in construing the intent
of the Connecticut legislature . . . .’’ State v. Nathaniel S., supra, 323
Conn. 301.
11
The defendant responds that, pursuant to State v. Salamon, 287 Conn.
509, 949 A.2d 1092 (2008), we cannot presume legislative acquiescence unless
the legislature has amended these statutes to adopt explicitly this court’s
interpretation of them. See id., 521–22 (‘‘We also have recognized that legisla-
tive inaction [following our interpretation of a statute] is not necessarily
legislative affirmation . . . . [T]he legislature’s failure to amend a statute
in response to our interpretation of that provision is not dispositive of the
issue because legislative inaction is not always the best of guides to legisla-
tive intent.’’ (Citations omitted; internal quotation marks omitted.); id., 525(legislative acquiescence is strongest when legislature has amended statute
at issue in response to judicial interpretation but did not amend portion at
issue, despite judicial interpretation).
The defendant misapplies our holding in Salamon. In Salamon, this court
did not hold that legislative inaction cannot be considered in determining
legislative intent but, rather, held that legislative inaction did not establish
the legislature’s intention regarding this state’s kidnapping statute, as ‘‘the
issue presented by the defendant’s claim is not one that is likely to have
reached the top of the legislative agenda because the issue directly implicates
only a relatively narrow category of criminal cases’’; id., 523; and because
the statutory section at issue had not been subject to any amendment since
1969. Id., 525–56.
The present case is distinguishable from Salamon because the issue of
whether §§ 54-194 and 1-1 (t) apply to all changes to criminal statutes pre-
scribing punishment is an issue ‘‘likely to have reached the top of the
legislative agenda’’; id., 523; for the following reasons: this court’s interpreta-
tion of §§ 54-194 and 1-1 (t) dates back to at least the 1930s; this court
has addressed this issue previously on numerous occasions; and our prior
interpretation of these statutes has had broad impact, implicating any crimi-
nal case involving a sentencing scheme that the legislature has amended.
12
Specifically, the defendant relies on the fiscal note authored by the
Office of Fiscal Analysis attached to Spec. Sess. P.A. 15-2, § 1, which provides
in relevant part: ‘‘The bill [Spec. Sess. P.A. 15-2, § 1] makes various changes to
statutes regarding drug possession that implement P.A. 15-244. The changes
result in an estimated savings to the [d]epartment . . . of $6.6 million in
[fiscal year 2016] and at least $12.4 million in [fiscal year 2017] through
reduction in prison population and corresponding facility closures. However,
P.A. 15-244 includes a higher savings target of $ 12.5 million in [fiscal year
2016] and $18.9 million in [fiscal year 2017] in the [d]epartment . . . .’’
13
The only reference in the legislative history of P.A. 15-244 to fiscal
savings for the department is a single statement that the budget bill requires
the department to save $5.3 million. See 58 H.R. Proc., Pt. 23, 2015 Sess.,
p. 7858, remarks of Representative Toni E. Walker (‘‘We also had some
savings in our budget. . . . We ended up at approximately 20 million [dol-
lars] . . . . And the way we have it broken down now is 5 million [dollars]
for the Department of Developmental Services, 5.3 million [dollars] for the
. . . Department [of Correction], and then we have given the responsibility
to the Secretary of [the] Office of [Policy and Management] to achieve
another . . . 10 million [dollars] from the other collective agencies.’’). There
is no mention in the legislative history of how these savings will occur, and
it differs from the savings anticipated in the fiscal note relied on by the
defendant.
14
The defendant also argues that Kalil’s prohibition against applying the
amelioration doctrine does not apply to the present case because Spec.
Sess. P.A. 15-2, § 1, is distinguishable from the statute at issue in Kalil in
that Spec. Sess. P.A. 15-2, § 1, directly interacts with the budget bill that it
was meant to implement, and, thus, not applying this doctrine would lead
to an absurd and unworkable result. As explained in part I of this opinion,
prospective only application of Spec. Sess. P.A. 15-2, § 1, does not lead to
an absurd or unworkable result in light of P.A. 15-244, and, thus, we reject
this argument.
15
The defendant also argues that Kalil’s strict application of § 1-2z was
contrary to prior case law because it treated the effective date of legislation
as dispositive of the legislature’s intent regarding retroactivity. We reject
this argument for the same reasons we rejected it in part I of this opinion.
16
In two sentences in his reply brief, the defendant argues that, to the
extent that § 1-2z prevents him from relying on extratextual sources to
establish legislative intent regarding retroactivity, that statute violates the
separation of powers doctrine because ‘‘the interpretation of the meaning
of statutes, as applied to justiciable controversies, is exclusively a judicial
function.’’ We decline to review this claim, which the defendant raised, for
the first time, in his reply brief. See, e.g., State v. Devalda, 306 Conn. 494,
519 n.26, 50 A.3d 882 (2012).
17
If we were to conclude, as the concurring justice does, that our construc-
tion would ‘‘defeat and frustrate the will of the legislature,’’ we would of
course reach a different conclusion or overrule Kalil. Statutory construction,
after all, is not a means unto itself but, rather, a process of divining the
legislature’s will. Although applying Spec. Sess. P.A. 15-2, § 1, retroactively
or adopting and applying the amelioration doctrine to it might be consistent
with the purpose of the amendment—to reverse policies that led to mass
incarceration for mere drug possession and to provide a second chance,
including treatment resources, to drug users—that does not mean such
an application is required. Rather, this bipartisan legislation, described by
several legislators as a first step that might require future legislation; see
58 S. Proc., Pt. 12, June, 2015 Spec. Sess., pp. 3547–48, remarks of Senator
John A. Kissel (describing amendment as ‘‘trying a new path, a new methodol-
ogy,’’ that might require the legislature ‘‘to go back and tweak it and change
it’’); id., p. 3550, remarks of Senator Gary A. Winfield (although voting in
favor of the amendment, ‘‘there’s more that we need to do’’); id., p. 3551,
remarks of Senator Catherine C. Osten (this amendment was ‘‘a beginning
of [our] finally dealing with our ever burgeoning . . . prison population’’);
id., p. 3552, remarks of Senator Leonard A. Fasano (this amendment was
‘‘the tip of the iceberg’’); id., p. 3554, remarks of Senator Martin M. Looney
(‘‘we’ll continue to work on these issues’’); could have been the result of a
compromise, including with legislators who believed that ‘‘individuals should
be punished in accordance with the sanctions in effect at the time the
offense was committed.’’ (Internal quotation marks omitted.) State v. Kalil,
supra, 314 Conn. 555. Ultimately, though, we do not examine this legislative
history for the same reason the majority in Kalil did not address legislative
history: because the plain language of Spec. Sess. P.A. 15-2, § 1, clearly and
unambiguously prohibits retroactive application in light of the presumption
of prospective only intent arising not from our holding in Kalil but from
our savings statutes. Thus, the issue is not whether the amelioration doctrine
would be consistent with Spec. Sess. P.A. 15-2, § 1, but whether the ameliora-
tion doctrine is consistent with our savings statutes. If we were to adopt
the amelioration doctrine, as the defendant requests, it would apply to
any amendment to criminal statutes that benefits criminal defendants. The
legislative history underlying a single amendment alone does not justify
adopting such a broadly applicable doctrine.