State v. Nathaniel S. , 323 Conn. 290 ( 2016 )

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STATE OF CONNECTICUT v. NATHANIEL S.*
(SC 19592)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued May 2—officially released September 27, 2016
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, was Maureen Platt, state’s attorney,
for the appellant (state).
Alice Osedach, assistant public defender, for the
appellee (defendant).
Opinion
McDONALD, J. A person convicted of a class A or
class B felony on the regular criminal docket of the
Superior Court may be subject to a lengthy mandatory
minimum sentence and may suffer various adverse con-
sequences attendant to a felony conviction. By contrast,
a child adjudicated a delinquent on the juvenile docket
for committing that same offense is subject to at most
four years confinement at the Connecticut Juvenile
Training School and is spared many of those attendant
consequences. Our juvenile justice statutory scheme
requires the automatic transfer of certain cases involv-
ing children who have been charged with the commis-
sion of a class A or class B felony from the docket for
juvenile matters to the regular criminal docket. In 2015,
the legislature amended the juvenile transfer statute to
increase the age of a child whose case was subject to
an automatic transfer by one year, to fifteen years old.
Public Acts 2015, No. 15-183, § 1 (P.A. 15-183, or act),
codified at General Statutes (Supp. 2016) § 46b-127 (a)
(1). Prior to this amendment, the court was required
to transfer a case from the juvenile docket to the regular
criminal docket in which a child, such as the defendant,
Nathaniel S., had been charged with the commission
of certain felonies and had attained the age of fourteen
years prior to the commission of such offenses. See
General Statutes (Rev. to 2011) § 46b-127 (a) (1). The
question presented by this reserved question of law is
whether that amendment applies retroactively, so that
the case of a child who has been charged with commit-
ting a class A or class B felony prior to the enactment
of P.A. 15-183, and whose case already has been trans-
ferred to the regular criminal docket, should now have
his case transferred back to the juvenile docket. We
conclude that the legislature intended that P.A. 15-183
apply retroactively and, accordingly, we answer the
reserved question in the affirmative.
The parties agree on the relevant procedural facts.
By juvenile arrest warrant dated August 14, 2012, the
defendant was charged with, among other crimes, sex-
ual assault in the first degree in violation of General
Statutes (Rev. to 2011) § 53a-70 (a) (2), a class A felony,
and risk of injury to a child in violation of General
Statutes (Rev. to 2011) § 53-21 (a) (2), a class B felony,
for acts allegedly committed in early May, 2012. The
defendant was fourteen years old at the time of the
alleged crimes. On August 4, 2014, the defendant’s case
was automatically transferred from the juvenile docket
of the Superior Court to the regular criminal docket
pursuant to General Statutes (Rev. to 2011) § 46b-127
(a) (1). Both at the time of the alleged crimes and at
the time of transfer, the transfer statute provided in
relevant part: ‘‘The court shall automatically transfer
from the docket for juvenile matters to the regular crimi-
nal docket of the Superior Court the case of any child
charged with the commission of . . . a class A or B
felony . . . provided such offense was committed after
such child attained the age of fourteen years . . . .’’
General Statutes (Rev. to 2011) § 46b-127 (a) (1).
On October 1, 2015, while the defendant’s case was
pending on the regular criminal docket, P.A. 15-183 took
effect. Among other things, the act amended § 46b-127
(a) (1) by raising the age of defendants whose cases
are subject to automatic transfer from the juvenile
docket to the regular criminal docket from fourteen
years to fifteen years. See P.A. 15-183, § 1. In response,
the state and the defendant jointly requested that the
trial court reserve the following question of law for the
advice of this court pursuant to General Statutes § 52-
235 (a) and Practice Book § 73-1: ‘‘Does [P.A. 15-183]
apply to the defendant, who is charged with committing
[c]lass A and B felonies when he was fourteen years
old and had not yet reached the age of fifteen, whose
case was transferred to the regular criminal docket of
the Superior Court prior to [the act’s] effective date,
but whose case has not yet been adjudicated and will
be adjudicated now that [P.A.] 15-183 has taken effect?’’
The trial court, Fasano, J., granted the request.
The following principles govern our resolution of the
reserved question. With respect to criminal statutes, a
statute is said to have retroactive application if it applies
to crimes allegedly committed prior to its date of enact-
ment. Robinson v. Commissioner of Correction, 258
Conn. 830, 836 n.7, 786 A.2d 1107 (2002). Whether a
new statute is to be applied retroactively or only pro-
spectively presents a question of statutory interpreta-
tion over which we exercise plenary review. Walsh v.
Jodoin, 283 Conn. 187, 195, 925 A.2d 1086 (2007). The
question is one of legislative intent and is governed by
well established rules of statutory construction. Id.Several rules of presumed legislative intent govern
our retroactivity analysis. Pursuant to those rules, our
first task is to determine whether a statute is substantive
or procedural in nature. In re Daniel H., 237 Conn. 364,
373, 678 A.2d 462 (1996). ‘‘[Although] there is no precise
definition of either [substantive or procedural law], it
is generally agreed that a substantive law creates,
defines and regulates rights while a procedural law
prescribes the methods of enforcing such rights or
obtaining redress.’’ (Internal quotation marks omitted.)
D’Eramo v. Smith, 273 Conn. 610, 621, 872 A.2d 408(2005).
If a statute is substantive, then our analysis is con-
trolled by General Statutes § 55-3, which provides: ‘‘No
provision of the general statutes, not previously con-
tained in the statutes of the state, which imposes any
new obligation on any person or corporation, shall be
construed to have retrospective effect.’’ ‘‘[W]e have uni-
formly interpreted § 55-3 as a rule of presumed legisla-
tive intent that statutes affecting substantive rights shall
apply prospectively only. . . . [I]n the absence of any
clear expression of legislative intent to the contrary
[changes to statutes that create or impose substantive
new obligations are therefore] presumptively prospec-
tive.’’1 (Citation omitted; footnote omitted; internal quo-
tation marks omitted.) Walsh v. Jodoin, supra, 283
Conn. 195–96.
By contrast, ‘‘[p]rocedural statutes have been tradi-
tionally viewed as affecting remedies, not substantive
rights, and therefore leave the preexisting scheme
intact. . . . [Accordingly] we have presumed that pro-
cedural . . . statutes are intended to apply retroac-
tively absent a clear expression of legislative intent to
the contrary . . . .’’2 Id., 196. ‘‘We have noted, however,
that a procedural statute will not be applied retroac-
tively if considerations of good sense and justice dictate
that it not be so applied.’’ (Internal quotation marks
omitted.) Narayan v. Narayan, 305 Conn. 394, 403, 46
A.3d 90 (2012). Because, in the absence of clear statu-
tory guidance, these default rules provide a conclusive
expression of the presumed intent of the legislature, it
rarely will be necessary to consult legislative history
or other extratextual sources to ascertain the legislative
intent with respect to retroactivity. See State v. Kalil,
314 Conn. 529, 558–59, 107 A.3d 343 (2014).
Turning our attention to the present case, the parties
agree that P.A. 15-183 has both procedural and substan-
tive elements. The defendant, however, contends that
the act is primarily procedural in nature and, therefore,
presumptively retroactive in its application, whereas
the state characterizes the act as having significant sub-
stantive effects and, therefore, is presumptively pro-
spective in its application. We agree with the defendant.
There is no doubt that the amended statute, on its
face, dictates only a procedure—automatic transfer—
for adjudicating the cases of certain children accused
of committing class A or class B felonies. For that rea-
son, in State v. Kelley, 206 Conn. 323, 332, 537 A.2d 483(1988), this court characterized the juvenile transfer
statute as akin to a change of venue and, ‘‘by its nature,
procedural.’’ The only change effectuated by P.A. 15-
183 is to narrow the class of persons to whom this
procedure applies. A child who had only attained the
age of fourteen when he allegedly committed such
crimes is no longer subject to automatic transfer to the
regular criminal docket pursuant to General Statutes
(Supp. 2016) § 46b-127 (a) (1) and thus his case will
remain on the juvenile docket unless other circum-
stances dictate transfer, pursuant to General Statutes
§ 46b-145.3
The state offers several arguments as to why P.A.
15-183 should be deemed substantive for purposes of
retroactivity, notwithstanding its facially procedural
nature. We consider each argument in turn.
First, the state argues that the act should be applied
on a solely prospective basis because, although the
act is facially procedural, it carries various substantive
consequences for children accused of committing crimi-
nal offenses at the age of fourteen. One consequence
of the act, for example, is to mitigate the potential
punishment and dispositional options for fourteen year
olds charged with class A and B felonies. A fourteen
year old transferred to the regular criminal docket pur-
suant to General Statutes (Rev. to 2011) § 46b-127 (a)
will be sentenced as an adult if convicted; see General
Statutes (Rev. to 2011) § 46b-127 (c); and may be subject
to a lengthy period of incarceration, mandatory mini-
mum sentences, and other consequences attendant to
conviction. See General Statutes § 53a-28 et seq. In the
present case, for example, if the defendant is convicted
on the regular criminal docket of having violated Gen-
eral Statutes (Rev. to 2011) § 53a-70 (a) (2), he will be
subject to a mandatory minimum sentence of ten years
imprisonment; see General Statutes (Rev. to 2011)
§ 53a-70 (b) (2) and (3); and may be required to register
as a sex offender. See General Statutes § 54-251. By
contrast, if he were found guilty of violating a criminal
statute following adjudication on the juvenile docket,
he would be subject to a maximum period of commit-
ment of four years at the Connecticut Juvenile Training
School; see General Statutes (Rev. to 2011) §§ 46b-140
(j) and 46b-141 (a); and would be entitled to receive
various rehabilitative and treatment services while so
confined. See, e.g., General Statutes §§ 46b-121i through
46b-121l. Another consequence of the act, the state
notes, is that whether a child is adjudicated on the
regular criminal docket or the juvenile docket dictates
the nature of the proceedings against him. A conviction
of a felony offense on the regular criminal docket is a
conviction of having committed a crime; see General
Statutes § 53a-24 (a); whereas a child found guilty of
violating a criminal statute following adjudication on
the juvenile docket is convicted of delinquency and is
not subject to the various consequences attendant to
a felony conviction. See General Statutes (Supp. 2016)
§ 46b-146.
The problem with the state’s argument is that many,
if not most, rules of legal procedure have the potential to
be outcome determinative, and thus to have substantive
effects, under certain circumstances. See, e.g., See State
v. Skakel, 276 Conn. 633, 684–86, 888 A.2d 985(addressing retroactive application of statute of limita-
tions), cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166
L. Ed. 2d 428 (2006). If we treat as substantive any
procedural statute that impacts substantive rights, then
the line between substantive and procedural will
become hopelessly blurred. That in turn defeats the
purpose of default rules—such as the rule that proce-
dural statutes are presumptively retroactive—which is
to maximize the likelihood that, in the absence of
express statutory guidance, a reviewing court will be
able to discern the actual intent of the legislature. By
contrast, if we retain the rule that facially procedural
statutes are presumptively retroactive, then a reviewing
court can apply the presumption with a reasonable
degree of predictability and the legislature, in turn, can
draft legislation with a clear understanding of how it
will be interpreted by the courts.4
The state’s second argument is that In re Daniel H.,
supra, 237 Conn. 364, and its progeny, stand for the
proposition that the substantive/procedural distinction
applies only to the civil law, and that all changes to the
criminal law are presumptively prospective regardless
of whether they are substantive or procedural in nature.
The state misreads In re Daniel H. In that case, as in our
other cases addressing the retroactive or prospective
application of criminal statutes, we made clear that
purely procedural changes to the criminal law presump-
tively apply retroactively, subject of course to the
requirements imposed by the ex post facto clause of
the federal constitution. See id., 372–73; see also Mead
v. Commissioner of Correction, 282 Conn. 317, 323, 920
A.2d 301 (2007); State v. Tabone, 279 Conn. 527, 537
n.13, 902 A.2d 1058 (2006); State v. Skakel, supra, 276
Conn. 680; State v. Ross, 230 Conn. 183, 282, 646 A.2d
1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133,
130 L. Ed. 2d 1095 (1995). When this court stated in In
re Daniel H. that ‘‘[i]n criminal cases, to determine
whether a change in the law applies to a defendant, we
generally have applied the law in existence on the date
of the offense, regardless of its procedural or substan-
tive nature’’; In re Daniel H., supra, 377; it was in the
context of discussing not the default presumptions but,
rather, the predicate determination of whether the issue
of retroactivity is even implicated. See id., 376–77. That
is to say, whereas certain of our sister states take the
position that a substantive criminal statute has retroac-
tive application if it applies to crimes committed before
the statute was enacted but that a procedural criminal
statute is deemed to have retroactive application only
if it applies under circumstances (such as the present
case) in which the procedures dictated by the prior
law already have been undertaken; see M. Gilmore,
‘‘Application of Statutory Changes to Cases in Progress:
The Crossroads of the Legislative and Judicial Power—
An Analysis of Federal and Idaho Law,’’ 34 Idaho L.
Rev. 517, 562 (1998); Connecticut follows the rule that
the date of the offense is the touchstone for both sub-
stantive and procedural changes to the law. Accord-
ingly, In re Daniel H. does not require prospective
application of the act.
The state also argues that: (1) retroactive application
of the act is barred by the savings statutes; see General
Statutes §§ 1-1 (t) and 54-194; (2) applying the act retro-
actively would lead to the ‘‘absurd’’ consequence that
child defendants such as the defendant would receive
the benefit of its application whereas other children
who offended at the same time, but who were tried and
convicted prior to its enactment, would not; and (3)
other states have not applied similar statutory changes
retroactively. We are not persuaded.
First, it is well established that § 1-1 (t) does not
bar the retroactive application of procedural statutes
except to the extent that such application would offend
considerations of good sense and justice. See Invest-
ment Associates v. Summit Associates, Inc., 309 Conn.
840, 866 n.16, 74 A.3d 1192 (2013). Moreover, § 54-194,
by its terms, governs only those statutes that define
or prescribe criminal punishments, which P.A. 15-183
does not.
Second, we perceive no absurdity in the fact that
retroactive application of the act will affect pending
cases but not those that already have reached a final
judgment, as this will be true of most retroactive amend-
ments to procedural rules. If the legislature wishes to
avoid such a result, it need only specify that a particular
procedural change is to be applied only prospectively.
Third, we observe that our sister states, in consider-
ing whether changes to their juvenile transfer statutes
applied retroactively or only prospectively, have
reached differing conclusions. Compare, e.g., Watts v.
Commonwealth, 468 Mass. 49, 59, 8 N.E.3d 717 (2014)
(prospective application only), with State v. Walls, 96
Ohio St. 3d 437, 442, 775 N.E.2d 829 (2002) (retroactive
application). Because of the differences 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 with
respect to P.A. 15-183.
For these reasons, we conclude that P.A. 15-183 is
procedural in nature and that the changes to the auto-
matic transfer provisions of General Statutes (Supp.
2016) § 46b-127 (a) are presumptively to be applied
retroactively to all pending cases. We turn next to the
text of the act, wherein we perceive nothing that would
overcome this presumption of retroactive application.
The language of the act itself is silent in this respect,
providing an effective date of October 1, 2015, but no
express guidance as to retroactive or prospective appli-
cation. ‘‘Because all public acts not specifying an effec-
tive date automatically are assigned to take effect on
the first day of October following the session of the
General Assembly at which they are passed; General
Statutes § 2-32; we never have ascribed particular signif-
icance to such dates in ascertaining the legislature’s
intent.’’ (Internal quotation marks omitted.) Investment
Associates v. Summit Associates, Inc., supra, 309
Conn. 867.
The state argues that the text of other contemporane-
ous legislation addressed to juvenile sentencing speci-
fies that those amendments are to be applied
retroactively, and that the absence of such express lan-
guage in P.A. 15-183 suggests that the act is intended
to apply only prospectively. We disagree.
One week before P.A. 15-183 was signed into law,
the governor signed No. 15-84 of the 2015 Public Acts
(P.A. 15-84), which made various changes to Connecti-
cut’s juvenile sentencing laws. Most sections of P.A.
15-84 merely provide an effective date of October 1,
2015. Unlike P.A. 15-183, however, four sections of P.A.
15-84 contain the following language: ‘‘Effective Octo-
ber 1, 2015, and applicable to any person convicted
prior to, on or after said date . . . .’’ (Emphasis
altered.) P.A. 15-84, §§ 6 through 9. The state contends
that the fact that the legislature expressly made certain
changes to the juvenile sentencing laws applicable ret-
roactively in contemporaneous legislation, but did not
include such language in the relevant provisions of P.A.
15-183, indicates that it did not intend the latter changes
to apply retroactively. See State v. Rupar, 293 Conn.
489, 509, 978 A.2d 502 (2009).
The flaw in this argument is that all the amendments
contained in P.A. 15-84 that the state highlights are
plainly substantive changes in the law. For example,
they specify that juvenile offenders will no longer be
subject to the death penalty or to mandatory life impris-
onment without the possibility of parole. P.A. 15-84,
§§ 6 through 9. Because substantive amendments are
presumptively prospective, in order to afford those
changes retroactive effect the legislature was required
to include express language to that effect. By contrast,
because P.A. 15-183 amends the state’s criminal proce-
dure, the act is presumptively retroactive, and there was
no need for the legislature to so specify. Accordingly, we
conclude that the plain language of the act, as informed
by the statutory presumptions, unambiguously indi-
cates that the amendments to the juvenile transfer stat-
ute contained in P.A. 15-183 apply retroactively to cases
pending on the effective date of October 1, 2015.5
Lastly, we are not aware of any ‘‘ ‘considerations of
good sense and justice’ ’’ that would preclude retroac-
tive application of P.A. 15-183 in the present case. See
Narayan v. Narayan, supra, 305 Conn. 403. The parties
and the trial court sought the guidance of this court at
the outset, prior to trial, and there is no indication in
the record that the state has relied to its detriment
on the defendant’s transfer status as an alleged adult
offender.6 Moreover, the rationales that appear to have
motivated the adoption of the act apply with equal force
to children such as the present defendant who allegedly
committed felony offenses prior to its enactment. See
footnote 5 of this opinion. Accordingly, we conclude
that the legislature intended P.A. 15-183 to apply retro-
actively to cases such as this.
The reserved question is answered ‘‘yes.’’
No costs shall be taxed in this court to either party.
In this opinion the other justices concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the alleged victim or others
through whom the alleged victim’s identity may be ascertained. See General
Statutes § 54-86e.
1
Because we conclude that P.A. 15-183 is procedural rather than substan-
tive, we need not determine whether § 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 defendant
or other persons. See Welch v. Wadsworth, 30 Conn. 149, 158 (1861).
2
Although at times we have equated procedural rules with those that
govern remedies rather than rights, we also have cautioned that reliance
on the term ‘‘remedial’’ in this context may unnecessarily confuse the issue,
because most statutes—both substantive and procedural—can be consid-
ered remedial insofar as they seek to solve a problem, cure an ill, or repair
a defect in existing legislation. See, e.g., Narayan v. Narayan, 305 Conn.
394, 405, 46 A.3d 90 (2012).
3
Section 46b-145, which was not affected by P.A. 15-183, provides that
no child shall be prosecuted for an offense before the regular criminal
docket of the Superior Court except as provided in General Statutes (Supp.
2016) § 46b-127 and General Statutes (Supp. 2016) § 46b-133c (f). General
Statutes (Supp. 2016) § 46b-133c (f) still permits the transfer of a proceeding
involving a child who has attained the age of fourteen to the regular criminal
docket if the child has been adjudicated a serious juvenile repeat offender.
4
We recognize that certain of our cases have indicated that a statute that,
‘‘in form, provides but a change in remedy but actually brings about changes
in substantive rights is not subject to retroactive application.’’ (Internal
quotation marks omitted.) Walsh v. Jodoin, supra, 283 Conn. 196. That
language, however, is better understood as an outgrowth of the well estab-
lished principle that even new procedural rules will not be applied retroac-
tively when to do so would impair vested rights and thus implicate
considerations of good sense and justice. See State v. Skakel, supra, 276
Conn. 684–86 (connecting these principles).
5
Even if the statutory language were ambiguous, nothing in the legislative
history of P.A. 15-183 compels a different result. It is reasonable to assume
that the amendments to § 46b-127 were motivated by an emerging under-
standing of youth behavior and a recognition that fourteen year olds are
more amenable than adults to rehabilitation and that their needs may more
effectively be served within the juvenile justice system. See 58 H.R. Proc.,
Pt. 11, 2015 Sess., pp. 5090–93, remarks of Representative Robyn Porter.
Such purposes apply with equal force to children whose offenses were
committed prior to the effective date of the act.
6
We need not, and do not, decide whether retroactive application of P.A.
15-183 might be barred as unjust in a case in which a trial on the regular
criminal docket already had commenced at the time the act came into effect.