State v. Kalil ( 2014 )

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STATE v. KALIL—DISSENT
EVELEIGH, J., concurring and dissenting. I respect-
fully dissent. Although I agree with part I of the majority
opinion, which concludes that the Appellate Court prop-
erly determined that the trial court did not abuse its
discretion in admitting Raymond Driscoll’s testimony
because the testimony was relevant and not unduly
prejudicial, I disagree with part II of the opinion, in
which the majority concludes that the amelioration doc-
trine should not be employed in the present case so as
to apply No. 09-138, § 2, of the 2009 Public Acts (P.A.
09-138), retroactively to the defendant, Albert Kalil. In
my view, the savings statutes relied upon by the majority
do not apply in the context of P.A. 09-138. Therefore, I
respectfully dissent from part II of the majority opinion.
The amelioration doctrine dictates that P.A. 09-138
should be applied retroactively. The amelioration doc-
trine provides that ‘‘amendments to statutes that lessen
their penalties are applied retroactively . . . .’’ State v.
Graham, 56 Conn. App. 507, 511, 743 A.2d 1158 (2000);
see also Castonguay v. Commissioner of Correction,
300 Conn. 649, 663, 16 A.3d 676 (2011) (under ameliora-
tion doctrine, ‘‘when [the] legislature has amended [a]
statute to mitigate [the] penalty for [a] crime, [the] new
law applies to cases in which [the] defendant committed
[the] crime before [the] amendment, but was sentenced
after [the] amendment’’), citing In re Estrada, 63 Cal.
2d 740, 745–46, 408 P.2d 948, 48 Cal. Rptr. 172 (1965).
As the United States Court of Appeals for the Tenth
Circuit has explained, ‘‘where a criminal statute is
amended, lessening the punishment, a defendant is enti-
tled to the benefit of the new act, although the offense
was committed prior thereto.’’ Moorehead v. Hunter,
198 F.2d 52, 53 (10th Cir. 1952). ‘‘[T]he predominant
state court view . . . favors retroactive application of
ameliorative sentencing legislation despite a general
savings statute.’’ 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). Under this doctrine, ‘‘[t]he key date is the date
of final judgment. If the amendatory statute lessening
punishment becomes effective prior to the date the
judgment of conviction becomes final then, in our opin-
ion, it, and not the old statute in effect when the prohib-
ited act was committed, applies.’’ (Internal quotation
marks omitted.) People v. Vieira, 35 Cal. 4th 264, 305,
106 P.3d 990, 25 Cal. Rptr. 3d 337, cert. denied, 546 U.S.
984, 126 S. Ct. 562, 163 L. Ed. 2d 473 (2005), quoting
In re Estrada, supra, 744. This rule applies ‘‘except
when the [l]egislature, in enacting the amendment, has
expressed a contrary intent . . . .’’ (Citation omitted;
emphasis omitted.) People v. Utsey, 7 N.Y.3d 398, 402,
855 N.E.2d 791, 822 N.Y.S.2d 475 (2006). In Utsey, the
New York Court of Appeals explained that ‘‘[t]he gen-
eral rationale for the amelioration doctrine is that by
mitigating the punishment the [l]egislature is necessar-
ily presumed—absent some evidence to the contrary—
to have determined that the lesser penalty sufficiently
serves the legitimate demands of the criminal law.
Imposing the harsher penalty in such circumstances
would serve no valid penological purpose . . . . How-
ever, when the [l]egislature manifests a specific intent
that an ameliorative amendment not be retroactively
applied to underlying acts committed before the amend-
ment’s effective date, then the usual presumption—that
the [l]egislature must have intended that the harsher
penalty should no longer be applied to anyone—will
have been rebutted, and the legislative will that the
amendment apply only prospectively must be given
effect.’’ (Citation omitted; emphasis omitted; internal
quotation marks omitted.) Id. In view of the fact that
the amendment was passed and became effective
before both the dates of trial and sentencing, I would
apply the amelioration doctrine in the present case.
There is simply no language in the amendment to the
statute indicating that the statute was only to have
prospective application.
Both New York and California follow the ameliora-
tion doctrine. It is particularly appropriate for us to
look to New York law for guidance because ‘‘drafters
of the [Connecticut Penal Code] relied heavily upon
. . . the [P]enal [C]ode of New York . . . .’’ (Internal
quotation marks omitted.) State v. Albert, 252 Conn.
795, 811, 750 A.2d 1037 (2000); see also State v. Havican,
213 Conn. 593, 601, 569 A.2d 1089 (1990).
At the present time, sixteen states have approved the
doctrine, either by statute or judicial decision; see, e.g.,
State v. Stafford, 129 P.3d 927, 932 (Alaska App. 2006);
while three states and the federal courts have rejected
the doctrine by judicial decision. See, e.g., Moton v.
State, 242 Ga. App. 397, 399–400, 530 S.E.2d 31 (2000).
In all of the decisions which have accepted the doctrine,
the rationale for the decisions is based upon the same
foundation. Namely, ‘‘[t]his application of statutes
reducing punishment accords with the best modern
theories concerning the functions of punishment in
criminal law. According to these theories, the punish-
ment or treatment of criminal offenders is directed
toward one or more of three ends: (1) to discourage
and act as a deterrent upon future criminal activity, (2)
to confine the offender so that he may not harm society
and (3) to correct and rehabilitate the offender. There
is no place in the scheme for punishment for its own
sake, the product simply of vengeance or retribution.
. . . A legislative mitigation of the penalty for a particu-
lar crime represents a legislative judgment that the
lesser penalty or the different treatment is sufficient to
meet the legitimate ends of the criminal law. Nothing
is to be gained by imposing the more severe penalty
after such a pronouncement; the excess in punishment
can, by hypothesis, serve no purpose other than to
satisfy a desire for vengeance. As to a mitigation of
penalties, then, it is safe to assume, as the modern rule
does, that it was the legislative design that the lighter
penalty should be imposed in all cases that subsequently
reach the courts.’’ (Citation omitted.) People v. Oliver,
1 N.Y.2d 152, 160, 134 N.E.2d 197, 151 N.Y.S.2d 367
(1956). In Oliver, the fourteen year old defendant was
charged with homicide for killing his younger brother.
Id., 154. At the time of the offense, persons older than
seven and younger than sixteen could be prosecuted
for murder or any other capital crime. Id., 155. Three
years after the offense, the legislature amended New
York’s homicide statute so that a child under the age
of fifteen may be subjected only to treatment as a ‘‘delin-
quent’’ and not to punishment as a ‘‘criminal.’’ Id. Even
though the legislature’s amendment changed the sub-
stantive nature of the crime, namely the identity ele-
ment and the punishment, the New York Court of
Appeals held that the change was ameliorative and,
thus, applied retroactively. In the court’s view, ‘‘[t]he
amendatory statute unquestionably [fell] within the cat-
egory of legislation reducing penalties for criminal
activity. Its object and effect were to relieve children
of a certain age from punishment as criminals . . . .’’
Id., 161.
While P.A. 09-138 did not reduce the punishment for
larceny in the second degree, or reclassify it as a lesser
felony, it had exactly that effect with respect to the
defendant’s conduct. Specifically, P.A. 09-138 increased
the value of the goods necessary to constitute larceny
in the second degree, a class C felony, from $5000 to
$10,000. Thus, the principle expressed in Oliver is
equally applicable in the present situation. Our legisla-
ture decided to increase the value of the property taken
before an individual may be punished for a class C
felony—and there is no basis, other than a desire for
vengeance, not to make the legislature’s considered
judgment retroactive.
Connecticut’s two general savings clauses, General
Statutes §§ 1-1 (t) and 54-194, in my view, contrary to the
majority’s position, do not bar retroactive application of
P.A. 09-138. Section 1-1 (t) provides: ‘‘The repeal of an
act shall not affect any punishment, penalty or forfeiture
incurred before the repeal takes effect, or any suit,
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.’’
Section 54-194 provides: ‘‘The repeal of any statute
defining or prescribing the punishment for any crime
shall not affect any pending prosecution or any existing
liability to prosecution and punishment therefor, unless
expressly provided in the repealing statute that such
repeal shall have that effect.’’ First, most courts in other
states have held that general savings statutes do ‘‘not
indicate that the [l]egislature intended the statute prior
to amendment to provide the terms of punishment
where an amendatory act mitigates the authorized
terms of punishment but continues to proscribe the
same conduct.’’ People v. Schultz, 435 Mich. 517, 529,
460 N.W.2d 505 (1990); see also State v. Reis, 115 Haw.
79, 165 P.3d 980 (2007) (ameliorative amendments
applied to defendants because ‘‘neither of the statutes
at issue contained specific savings clauses’’ [empha-
sis omitted]).
In my view, these savings statutes do not apply
because we are not dealing with the repeal of a statute,
as required by the savings statutes, rather, we are deal-
ing with an amendment to a statute. Further, while the
value of the goods necessary to convict of the class C
felony has changed, the statute continued to proscribe
the same conduct. In Simborski v. Wheeler, 121 Conn.
195, 196, 183 A. 688 (1936), this court considered a case
in which the plaintiff was found guilty of murder in the
first degree on April 25, 1935, the crime having been
committed on March 5, 1935. At the time, the prescribed
manner of death for murder was by hanging. Id., 196–97.
After the entry of the judgment directing execution, the
legislature passed two acts, chapter 161 of the Public
Acts of 1935 (first act) and chapter 266 of the Public Acts
of 1935 (second act). Id., 197. The first act permitted the
warden of the state prison to appoint a suitable person
to perform executions and specifically repealed incon-
sistent provisions of certain existing statutes. Id., 197–
98. The first act was signed by the governor on May
21, 1935, and took effect upon passage. Id., 197. The
second act added new statutory language permitting
executions to be carried out up to five days after the
date designated by the judge for passing sentence and
changing the method of execution from hanging to elec-
trocution. Id., 197–98. We held that the case was gov-
erned by the savings statutes because ‘‘[t]he situation
before us is clearly within the intent of these provisions.
In effect they attach to every act repealing a statute
within their purview a saving clause such as that sug-
gested in State v. Daley, [29 Conn. 272 (1860)], under
which the repealed statute still remains in full effect as
regards any matter covered by it.’’ Simborski v. Wheeler,
supra, 199. This court further stated that: ‘‘[The first
act] is fully within the terms of [the savings statutes]
by reason of its express provision for the repeal of so
much of [the existing statutes] as was inconsistent with
it. [The second act] does not contain any express repeal
of the [existing statutes], but it does substitute . . .
complete new statutory provisions. This 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.’’ Id., 200. Thus, the
decision of this court in Simborski relied upon the fact
that the new statute either expressly repealed the prior
statute, or its terms so completely replaced the prior
statute that it effectively repealed the prior statute, in
order to engage the provisions of the savings statutes.
Thus, this court held that the manner of execution
should be conducted in accordance with the original
statute. Id., 201. I note further that, in Simborski, since
the statutory amendments became effective after the
conviction, the original basis for the application of the
amelioration doctrine did not exist.
In the present case, the legislature did not expressly
repeal the prior statute. Rather, it merely amended the
monetary provisions that classified the degree of the
crime. The elements of the crime, aside from the mone-
tary value, are the same. It can hardly be said that
this amendment represented a wholesale change of the
statute such that either of the savings statutes would
be implicated or the Simborski decision would apply.
This distinction becomes important when we consider
the purpose for enacting the savings statutes in the first
place. Indeed, the cases cited by the majority relate to
an application of the doctrine when, either the punish-
ment for the crime has changed, or there has been a
wholesale change in the statute. I have not been able
to locate one case wherein we have applied the doctrine
to a situation in which the legislature has changed the
dollar amounts necessary to convict someone of a
crime, but left the essential elements of the crime and
the punishment the same. Thus, I respectfully disagree
with the majority’s position that ‘‘the [amelioration]
doctrine is in direct contravention of Connecticut’s sav-
ings statutes.’’
The history of §§ 1-1 (t) and 54-194 demonstrates
that the legislature enacted these statutes to negate
the effect of the common-law abatement doctrine; see
Simborski v. Wheeler, supra, 121 Conn. 198–99; State
v. Daley, supra, 29 Conn. 272; and not to prevent amelio-
rative amendments from having retroactive application.
Therefore, I agree with the majority that ‘‘it is true that
§§ 54-194 and 1-1 (t) were enacted in 1871 and 1881,
respectively, to counter the effect of the common-law
abatement doctrine.’’ The common-law abatement doc-
trine allowed a defendant to escape prosecution entirely
due to a statutory gap. Thus, the repeal of one statute,
without the concomitant enactment of another statute
allowed people who had committed crimes to go free.
Daley serves as the perfect example of escape of prose-
cution due to a statutory gap. In Daley, the defendant
had been convicted of manslaughter. State v. Daley,
supra, 272. The crime was committed on May 6, 1860,
and the defendant was tried and convicted in July, 1860.
Id. Between the time the defendant committed the
offense and his trial, the legislature passed an act
expressly repealing the statute in force when the crime
was committed, which had fixed the punishment for
manslaughter as a fine not exceeding $1000 and impris-
onment of not less than two years or more than ten
years. Id. 273. That act provided in relevant part: ‘‘ ‘That
[§] sixth, of the act of which this is an alteration, be
and the same is hereby repealed.’ ’’ Id. The new act,
which had an effective date of July 4, 1860, was effective
prior to the trial and conviction of the defendant. Id.
It provided a penalty for manslaughter of a fine not
exceeding $1000 and imprisonment not exceeding ten
years. Id. This court held that the defendant could nei-
ther be legally convicted under the statute that had
been repealed nor under the statute which was substi-
tuted for it, because that was by its own terms prospec-
tive in operation. This court reasoned that ‘‘[h]is escape
from punishment might easily have been prevented if
the legislature had, as they usually do, on the repeal of
criminal laws, modified the repeal by a saving from its
operation of offenses committed against the repealed
law prior to such repeal.’’ Id., 275.
Years later, this court again stated that ‘‘[n]o doubt
it was to avoid just such an oversight by the [l]egislature
as suggested in [Daley] that [c]hapter 107 of the Public
Acts of 1871 was enacted . . . . [That statute] provides
as follows: ‘The repeal of any statute defining or pre-
scribing the punishment for any crime shall not affect
any pending prosecution or any existing liability to pros-
ecution and punishment therefor, unless expressly pro-
vided in the repealing statute that such repeal shall
have that effect.’ Ten years later, in 1881, the [l]egisla-
ture passed [another] act which provided that, in the
construction of all statutes thereafter enacted, except
where such construction would be repugnant to the
express terms of the statute: ‘The repeal of an act shall
not affect any punishment, penalty, or forfeiture
incurred before the repeal takes effect, or any suit or
prosecution, or proceedings 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.’
[Public Acts 1881, c. 1].’’ Simborski v. Wheeler, supra,
121 Conn. 198–99. Thus, the savings statutes were
passed to prevent the situation where a defendant is
able to escape punishment for a crime because of a
repeal. In my view, the savings statutes were not
intended to apply to a situation wherein the legislature
may have amended the definition of the degree of crime
by changing the dollar amounts involved, but not
changed the fact that a crime still existed for which
there would be some form of punishment.
The present situation is different from State v. Harris,
198 Conn. 158, 166–68, 502 A.2d 880 (1985), wherein
this court held that the savings statutes applied when
the legislature had changed the qualification for a per-
sistent felony offender by both exempting a prior con-
viction for a class D felony and changing eligibility
criteria by changing the convictions required from one
conviction with a prison term of more than one year
to a requirement of two felony convictions in the
absence of a class D felony conviction. In my view, this
change represented a wholesale change of the statute
that would fit the criteria established in Simborski v.
Wheeler, supra, 121 Conn. 198–99.
Further, the history of P.A. 09-138 supports retroac-
tive application. The purpose of P.A. 09-138 was to
adjust the property values in the larceny statute to
account for twenty-seven years of inflation and to save
the state money. Retroactive application furthers those
goals. Neither P.A. 09-138, nor the plain language of
General Statutes (Rev. to 2009) § 53a-123, as amended,
states whether the amendments were retroactive or
prospective. ‘‘When a statute is not plain and unambigu-
ous, we also look for interpretive guidance to the legisla-
tive history and circumstances surrounding its
enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter.’’ (Internal quotation marks omitted.)
418 Meadow St. Associates, LLC v. Clean Air Partners,
LLC, 304 Conn. 820, 829, 43 A.3d 607 (2012).
The joint favorable report of the Judiciary Committee
on House Bill No. 6576, which would eventually become
P.A. 09-138, noted that the bill ‘‘would adjust the mone-
tary values utilized in the larceny statutes to more accu-
rately reflect the actual values today. The values, last
updated in 1982, are adjusted using the consumer price
index.’’ Report on Bills Favorably Reported by Commit-
tee, Judiciary, House Bill No. 6576 (March 16, 2009).
The report also included a statement by the Office of
the Chief Public Defender that ‘‘[a]pplication of [the
consumer price index] to the existing amounts notes
that these values have more than doubled since 1982.’’
Id. The goal to make the larceny statute ‘‘more accu-
rately reflect the actual values today’’; id.; suggests a
strong preference for retroactive application. The legis-
lature’s obvious intent was to eliminate a disparity cre-
ated over time in terms of the degree of larceny with
which the state charges defendants who stole property
of the same monetary value. The disparity did not arise
overnight, however, it affected many defendants prior
to the effective date of P.A. 09-138—especially those,
like the defendant himself, who committed larceny only
a few months before that date. Further, the fiscal note
attached to House Bill No. 6576 states that passage of
the bill would have a ‘‘potential[ly]’’ significant savings
for fiscal years 2010 and 2011. Office of Fiscal Analysis,
Connecticut General Assembly, Fiscal Note, House Bill
No. 6526, An Act Concerning Larceny. The note’s analy-
sis had found that ‘‘[t]o the extent that these changes
decrease the maximum criminal penalties to which lar-
ceny offenders are exposed, a potential savings related
to probation supervision and incarceration (in addition
to a potential revenue loss from criminal fines) exists.
On average, it costs the state [$3736] to supervise an
offender on probation in the community as compared
to $44,165 to incarcerate the offender.’’ Id. The note
also estimated that there are 4259 larceny convictions
per year in Connecticut. Id. The inclusion of these fig-
ures in the fiscal note also suggests a preference for
retroactive application because of the potential addi-
tional savings to the state’s general fund. Certainly,
saving money is a rational and consistent legislative
purpose and adopting the amelioration doctrine in this
case would further that legislative purpose. The history
and policy goals of P.A. 09-138 thus coincide with a
‘‘legislative judgment that the lesser penalty or the dif-
ferent treatment is sufficient to meet the legitimate ends
of the criminal law.’’ People v. Oliver, supra, 1 N.Y.2d
160.
The adoption of the doctrine, in the present case,
would further the legislative goals of both recognizing
the adjustment of monetary values utilized in the lar-
ceny statutes to more accurately reflect the actual val-
ues today, and saving the state money through the usage
of probation instead of incarceration. Because I agree
with part I of the majority opinion, I would affirm the
conviction in this matter. I would, however, adopt the
amelioration doctrine in this case, reverse the Appellate
Court judgment with respect to sentencing, and remand
the case to the trial court for resentencing. Therefore,
I respectfully concur in part I of the majority opinion
and dissent from part II of that opinion.