State v. Johnson ( 2015 )

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STATE OF CONNECTICUT v. JENNIFER JOHNSON
(SC 19139)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Espinosa, Js.
Argued October 29, 2014—officially released March 31, 2015
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Kevin Lawlor, state’s
attorney, and Paul O. Gaetano, supervisory assistant
state’s attorney, for the appellant (state).
Annacarina Jacob, senior assistant public defender,
for the appellee (defendant).
Opinion
ESPINOSA, J. In this certified appeal, we consider
whether a trial court is required to hold a resentencing
hearing when a defendant’s conviction and sentence
for a lesser included offense is vacated because it con-
stituted a violation of the double jeopardy clause, but
there is no evidence in the record that leaving the defen-
dant’s sentences intact for the remaining offenses
undermines the trial court’s original sentencing intent.
The state appeals from the judgment of the Appellate
Court, upon our grant of its petition for certification,
limited to the following issue: ‘‘In view of our recent
decision in State v. Polanco, 308 Conn. 242, 61 A.3d
1084 (2013), did the Appellate Court properly determine
that the defendant had to be resentenced, under the
aggregate package theory, on the greater offense of
conspiracy to possess narcotics with intent to sell?’’
State v. Johnson, 308 Conn. 938, 66 A.3d 881 (2013).
We conclude that, although the trial court has the dis-
cretion to resentence the defendant, Jennifer Johnson,
it was improper under the circumstances of the present
case to order it to hold a resentencing hearing. We
answer the certified question in the negative and reverse
in part the judgment of the Appellate Court.1
The record reveals the following factual background
and procedural history.2 The defendant was convicted,
following a jury trial, of conspiracy to possess narcotics
with intent to sell in violation of General Statutes §§ 21a-
277 (a) and 53a-48 (a), conspiracy to possess narcotics
in violation of General Statutes §§ 21a-279 (a) and 53a-
48 (a), possession of narcotics in violation of § 21a-279
(a), possession of less than four ounces of marijuana
in violation of § 21a-279 (c), and possession of drug
paraphernalia in violation of General Statutes § 21a-267
(a). State v. Johnson, 137 Conn. App. 733, 736, 49 A.3d
1046 (2012). For each of the three narcotics counts, the
trial court sentenced the defendant to five years of
incarceration, execution suspended after eighteen
months, and three years of probation, all sentences to
run concurrently. As to the remaining counts, the court
sentenced the defendant to one year of incarceration
for the count of possession of less than four ounces of
marijuana, and to three months of incarceration for
the count of possession of drug paraphernalia, to run
concurrently with the sentences for the narcotics
counts. The defendant’s total effective sentence for all
charges was five years of incarceration, execution sus-
pended after eighteen months, and three years of pro-
bation.
At the Appellate Court, the defendant claimed, inter
alia, that the ‘‘separate conspiracy convictions of pos-
session and possession with intent to sell must be
reversed because they represent but one agreement and
violate the constitutional double jeopardy clause
. . . .’’ Id., 736. Relying on the decision of the United
States Supreme Court in Rutledge v. United States, 517
U.S. 292, 307, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996),
the Appellate Court held that because conspiracy to
possess narcotics is a lesser included offense of conspir-
acy to possess narcotics with intent to sell, the defen-
dant could not properly be convicted and sentenced on
both counts. State v. Johnson, supra, 137 Conn. App.
757. Accordingly, the court reversed the judgment with
respect to the conviction of conspiracy to possess nar-
cotics and remanded the case to the trial court with
direction to vacate both the conviction and the sentence
for that lesser included offense. Id., 766. The Appellate
Court also vacated the defendant’s sentence for the
greater offense of conspiracy to possess narcotics with
intent to sell, and ‘‘remanded for resentencing on that
charge in accordance with the aggregate package theory
. . . .’’ Id. The court did not vacate the sentences for
the remaining counts. Id. This certified appeal followed.
The state does not challenge that portion of the judg-
ment of the Appellate Court vacating the defendant’s
conviction and sentence on the lesser included offense
of conspiracy to possess narcotics. Instead, the state
appeals only with respect to the Appellate Court’s deci-
sion to vacate the defendant’s sentence for conspiracy
to possess narcotics with intent to sell and to remand
the case to the trial court with direction to resentence
the defendant on that charge. Disturbing the defen-
dant’s sentence for the conviction of the greater offense,
the state argues, conflicts with this court’s decision in
State v. Polanco, supra, 308 Conn. 242, and is neither
necessary nor appropriate under the aggregate package
theory of sentencing. The defendant responds that,
because the record does not clearly indicate the trial
court’s original sentencing intent, the Appellate Court
properly remanded for resentencing under the aggre-
gate package theory.3 Because we conclude that under
the facts of the present case, there is no evidence in
the record that the Appellate Court’s decision vacating
the conviction and sentence of the lesser included
offense of conspiracy to commit possession of narcotics
altered the original sentencing intent of the trial court,
we reverse in part the judgment of the Appellate Court.
Before we proceed to the merits of the appeal, we
note our agreement with the position that both the
state and the defendant expressed during oral argument
before this court, namely, that this court’s decision in
State v. Polanco, supra, 308 Conn. 242, did not address
the question presented in this appeal. In Polanco, we
revisited the appropriate remedy to which a defendant
should be entitled upon establishing that he had been
convicted of and sentenced on both a greater and lesser
included offense in violation of the double jeopardy
clause. Our prior precedent had followed the merger
of convictions approach, vacating the sentence for the
lesser included offense, but leaving the conviction for
that offense intact and merging it with the conviction
for the greater offense. 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), overruled in
part by State v. Polanco, 308 Conn. 242, 245, 61 A.3d 1084
(2013). The defendant in Polanco relied on Rutledge v.
United States, supra, 517 U.S. 292, to argue that the
proper remedy was to vacate both the conviction and
the sentence for the lesser included offense. We
declined to resolve the issue on constitutional grounds,
instead exercising our supervisory authority to con-
clude 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.’’ State v.
Polanco, supra, 245. Because the defendant in Polanco
did not request to be resentenced when his case was
remanded to the trial court, this court did not consider
in that decision whether, after vacating the defendant’s
conviction and sentence for a lesser included offense
on double jeopardy grounds, a reviewing court properly
should remand the case for resentencing pursuant to
the aggregate package theory. Accordingly, Polanco
does not govern the issue before us in the present
appeal. Instead, the issue is controlled by our case law
discussing the aggregate package theory of sentencing.
The purpose of the aggregate package theory of sen-
tencing is to ensure that, notwithstanding the judgment
of the reviewing court, the original sentencing intent
of the trial court is effectuated. In State v. Raucci, 21
Conn. App. 557, 563–64, 575 A.2d 234, cert. denied, 215
Conn. 817, 576 A.2d 546 (1990), in which the Appellate
Court first adopted the aggregate package theory, the
court explained: ‘‘It is axiomatic that a trial court has
wide discretion to tailor a just sentence in order to fit
a particular defendant and his crimes, as long as the
final sentence falls within the statutory limits. . . .
This same wide sentencing discretion equally applies
to a trial court’s restructuring of a sentencing plan for
a defendant who has been convicted in a multiple count
case and who faces a permissible range of punishment
based on the individual counts. [W]hen a defendant is
found guilty on a multicount indictment, there is a
strong likelihood that the . . . court will craft a dispo-
sition in which the sentences on the various counts
form part of an overall plan. When the conviction on one
or more of the component counts is vacated, common
sense dictates that the judge should be free to review
the efficacy of what remains in light of the original plan,
and to reconstruct the sentencing architecture . . .
within applicable constitutional and statutory limits,
if that appears necessary in order to ensure that the
punishment still fits both crime and criminal.’’ (Cita-
tions omitted; internal quotation marks omitted.) When
we endorsed the Appellate Court’s adoption of the
aggregate package theory, we explained that a defen-
dant ‘‘in appealing his conviction and punishment, has
voluntarily called into play the validity of the entire
sentencing package . . . .’’ (Internal quotation marks
omitted.) State v. Miranda, 260 Conn. 93, 129, 794 A.2d
506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L.
Ed. 2d 175 (2002).
Although we also stated that ‘‘the proper remedy
is to vacate [the sentence] in its entirety’’; (internal
quotation marks omitted) id.; that statement must be
understood in the context of the question that we con-
fronted in adopting the aggregate package theory,
which was limited to the extent of the trial court’s
authority on remand to resentence a defendant. We
concluded that the trial court does indeed have such
power, and characterized the court’s authority as per-
missive, rather than mandatory. Id. We clarified that
‘‘[a]lthough the court may reconstruct the sentencing
package to conform to its original intent, it is not
required to do so. It may, therefore, simply eliminate
the sentence previously imposed for the vacated convic-
tion, and leave the other sentences intact; or it may
reconstruct the sentencing package so as to reach a
total effective sentence that is less than the original
sentence but more than that effected by the simple
elimination of the sentence for the vacated conviction.
The guiding principle is that the court may resentence
the defendant to achieve a rational, coherent [sentence]
in light of the remaining convictions, as long as the
revised total effective sentence does not exceed the
original.’’ (Internal quotation marks omitted.) Id.,
129–30.
Contrary to the state’s position, however, a reviewing
court need not direct the trial court to apply the aggre-
gate package theory in order for the original sentence to
be restructured. Our decisions already have established
that the trial court has the authority to restructure the
original sentence pursuant to the aggregate package
theory, even if not ordered to do so, if the judgment
of the reviewing court has disturbed the trial court’s
original sentencing intent. State v. Michael A., 297 Conn.
808, 815, 1 A.3d 46 (2010). Although that authority more
typically would be exercised to increase the sentence(s)
on the conviction(s) remaining after a conviction and
sentence have been vacated, such authority also may
be exercised to decrease the remaining sentence(s).
The precise question in this appeal, therefore, is not
whether the trial court has authority to resentence the
defendant. The narrow issue before us is whether under
the facts of the present case the Appellate Court prop-
erly ordered the trial court to resentence the defendant
on remand. Because the trial court always retains
authority to restructure the original sentence if the
court determines that the judgment of the reviewing
court altered its original sentencing intent, common
sense and principles of judicial economy dictate that,
in a case in which the judgment of the reviewing court
does not change the total effective sentence, the
reviewing court should not order the trial court to resen-
tence a defendant on the remaining convictions unless
there is some evidence or some other basis in the record
supporting the conclusion that the judgment of the
reviewing court altered the original sentencing intent.
Adopting a default rule requiring the trial court to revisit
the entire sentence, even when there is no evidence in
the record suggesting that the court’s original sentenc-
ing intent was affected by the decision of the reviewing
court, would waste valuable judicial resources.
Under the facts of the present case, the Appellate
Court’s decision to vacate the defendant’s sentence for
conspiracy to possess narcotics with intent to sell, and
remand for resentencing on that count in accordance
with the aggregate package theory is simply not sup-
ported by the record. The decision of the Appellate
Court had no effect on the total effective sentence. On
each of the narcotics counts, the trial court sentenced
the defendant to five years of incarceration, execution
suspended after eighteen months, and three years of
probation, to run concurrently. Because the sentences
on the remaining counts were shorter, and ran concur-
rently to the sentences for the narcotics counts, the
concurrent sentences for the narcotics counts resulted
in a total effective sentence of five years of incarcera-
tion, execution suspended after eighteen months, and
three years of probation. The decision of the Appellate
Court affected only one conviction and one sentence,
for the lesser included offense of conspiracy to possess
narcotics. The total effective sentence, therefore, was
not altered by the Appellate Court’s decision.
The Appellate Court’s decision also did not affect any
of the conduct that served as the predicate for the
defendant’s sentence. Although the court vacated the
defendant’s conviction and sentence for the lesser
included offense of conspiracy to possess narcotics,
the court left standing the conviction for the greater
offense of conspiracy to possess narcotics with intent
to sell. By definition, ‘‘[a] lesser included offense is one
that does not require proof of elements beyond those
required by the greater offense.’’ State v. Johnson,
supra, 137 Conn. App. 753. Accordingly, because the
conviction for the greater offense required proof of
all of the elements that comprised the lesser included
offense, the judgment of the Appellate Court vacating
the defendant’s conviction and sentence for conspiracy
to possess narcotics had no effect on the conduct on
which the trial court relied in sentencing the defendant.
That is, all of the conduct that served as a predicate
for the defendant’s conviction for conspiracy to possess
narcotics also formed the basis for the defendant’s con-
viction for the greater offense of conspiracy to possess
narcotics with intent to sell. It was that conduct that
the court relied on in determining the appropriate sen-
tence for the defendant. The trial court’s remarks at
the sentencing hearing indicate that the court based
its determination of the appropriate sentence on the
defendant’s lack of awareness of her addiction to pre-
scription medication and her failure to take responsibil-
ity for her addiction.
Under the facts of this record, which reflect that after
the judgment of the Appellate Court, the same total
effective sentence remains in place, based on the same
conduct on which the trial court relied in the first
instance, there is no basis for the reviewing court to
conclude that the trial court’s original sentencing intent
has been disturbed. Accordingly, although the trial
court retains authority to restructure the defendant’s
entire sentence if that court determines that doing so
is necessary to retain its original sentencing intent, it
is neither necessary nor appropriate under these partic-
ular facts for a reviewing court to require the trial court
to conduct a new sentencing hearing.
The judgment of the Appellate Court is reversed only
with respect to its orders vacating the sentence for
conspiracy to possess narcotics with intent to sell and
remanding the case to the trial court for resentencing;
the judgment is affirmed in all other respects.
In this opinion the other justices concurred.
1
In the defendant’s certified appeal from the Appellate Court’s judgment,
Docket No. SC 19062, which we heard concurrently with the state’s certified
appeal, this court held that the Appellate Court improperly determined that
the defendant implicitly waived her instructional claim as to nonexclusive
possession and constructive possession, and concluded that although the
instruction on possession was deficient, the impropriety was harmless
beyond a reasonable doubt in light of the evidence and the state’s theory
of the case. State v. Johnson, 316 Conn. 45, A.3d (2015).
2
For a more detailed summary of the factual background, see State v.
Johnson, 137 Conn. App. 733, 736–38, 49 A.3d 1046 (2012).
3
The defendant claims that the remand order was improper, however,
insofar as the Appellate Court only vacated the sentence for conspiracy to
possess narcotics with intent to sell. The defendant contends that the senten-
ces on all of the remaining convictions should have been vacated, thereby
permitting the trial court to resentence her on the remaining convictions
consistent with the trial court’s original sentencing intent. See State v.
Miranda, 260 Conn. 93, 129, 794 A.2d 506 (indicating that, when reviewing
court remands case for resentencing pursuant to aggregate package theory,
‘‘the proper remedy is to vacate [the sentence] in its entirety’’ [internal
quotation marks omitted]), cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L.
Ed. 2d 175 (2002). We note that the defendant did not file a cross appeal
raising this claim. In any event, our resolution of the state’s claim negates
the factual predicate for this claim.