State v. Victor O. ( 2016 )

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STATE OF CONNECTICUT v. VICTOR O.*
(SC 19459)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued September 18, 2015—officially released January 19, 2016
Stephan E. Seeger, with whom was Igor G. Kuper-
man, for the appellant (defendant).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were David I. Cohen, state’s
attorney, and Paul Ferencek, senior assistant state’s
attorney, for the appellee (state).
Opinion
PALMER, J. The defendant, Victor O., appeals from
the trial court’s denial of his motion to correct an alleg-
edly illegal sentence, which was imposed upon his con-
viction of, inter alia, sexual assault in the first degree
in violation of General Statutes (Rev. to 2001) § 53a-70
(a) (2), as amended by Public Acts 2002, No. 02-138, § 5
(P.A. 02-138).1 He claims that the trial court improperly
failed to sentence him to a period of special parole
pursuant to § 53a-70 (b) (3), which provides that ‘‘[a]ny
person found guilty under [§ 53a-70] shall be sentenced
to a term of imprisonment and a period of special parole
pursuant to subsection (b) of section 53a-282 which
together constitute a sentence of at least ten years.’’
(Footnote added.) The state contends that the sentence
that the trial court imposed was proper because § 53a-
70 (b) (3) does not require a period of special parole;
rather, the state maintains, it requires only that any
period of special parole that may be imposed shall,
along with the accompanying term of imprisonment,
constitute a total sentence of not less than ten years.
We agree with the state and, accordingly, affirm the
trial court’s denial of the defendant’s motion.
The following procedural history is relevant to our
analysis of the defendant’s claim. On November 17,
2005, following a jury trial, the defendant was found
guilty of one count of sexual assault in the first degree
in violation of § 53a-70 (a) (2), a class A felony; see
General Statutes (Rev. to 2001) § 53a-70 (b) (2), as
amended by P.A. 02-138, § 5;3 and two counts of risk
of injury to a child in violation of General Statutes (Rev.
to 2001) § 53-21 (a) (2), as amended by P.A. 02-138, § 4.
The court presiding over the defendant’s criminal trial
rendered judgment in accordance with the jury verdict
and sentenced the defendant to a total effective term of
thirty years imprisonment, execution suspended after
fifteen years, and twenty years of probation. More spe-
cifically, the court sentenced the defendant to twenty
years of incarceration, execution suspended after
twelve years, and twenty years of probation with
respect to count one (first degree sexual assault),
twenty years of incarceration, execution suspended
after twelve years, and twenty years of probation with
respect to count two (risk of injury), to run concurrently
with the sentence imposed in connection with count
one, and ten years of incarceration, execution sus-
pended after three years, and twenty years of probation
with respect to count three (risk of injury), to run con-
secutively to the sentence imposed in connection with
count one.
The defendant appealed from the judgment of convic-
tion, claiming, inter alia, that the sentence that the court
imposed for his conviction of sexual assault in the first
degree was illegal because § 53a-70 (b) (3), by its plain
terms, requires that persons convicted of that offense
be sentenced to a period of special parole. See State
v. Victor O., 301 Conn. 163, 166, 193, 20 A.3d 669, cert.
denied, U.S. , 132 S. Ct. 583, 181 L. Ed. 2d 429
(2011). In its brief to this court, the state agreed that
the court had imposed an illegal sentence but not for
the reason asserted by the defendant. The state argued,
rather, that the case should be remanded for resentenc-
ing because the defendant’s conviction under § 53a-70
(a) (2) was a class A felony, and, under General Statutes
§ 53a-29 (a),4 probation is prohibited for persons con-
victed of a class A felony. See State v. Victor O., Conn.
Supreme Court Records & Briefs, December Term,
2010, State’s Brief p. 40. The state observed, however,
that sexual assault in the first degree under § 53a-70
can be either a class A or class B felony, depending on
the circumstances, and that, when the offense is a class
B felony, § 53a-29 (f)5 expressly authorizes a sentence
of probation of ‘‘not less than ten years or more than
thirty-five years . . . .’’ The state maintained, there-
fore, that, contrary to the defendant’s interpretation of
the statutory scheme, and § 53a-70 (b) (3) in particular,
a sentencing court is authorized to impose a period of
probation for a violation of § 53a-70 that is a class B
felony, but, for a class A felony violation, the only
authorized form of supervised release is special parole.
Without any discussion of the parties’ competing
interpretations, this court remanded the case for resen-
tencing with respect to the defendant’s conviction of
sexual assault in the first degree, stating in relevant
part: ‘‘As the state concedes, the sentence that the trial
court imposed does not comply with § 53a-70 (b) (3)
because it includes a period of probation rather than
a period of special parole. Accordingly, the case must
be remanded . . . for resentencing [with respect to]
the defendant’s conviction of sexual assault in the first
degree.’’ State v. Victor O., supra, 301 Conn. 193.
Thereafter, the trial court resentenced the defendant
to a term of imprisonment of twelve years for his convic-
tion of sexual assault in the first degree. The defendant’s
sentences on the other two counts remained the same.
Accordingly, the defendant’s total effective sentence
after resentencing was the same as before his resentenc-
ing: thirty years of incarceration, execution suspended
after fifteen years, and twenty years of probation. Sub-
sequently, the defendant filed a motion to correct an
allegedly illegal sentence in which he claimed that the
new sentence was illegal under § 53a-70 (b) (3), as inter-
preted by this court in State v. Victor O., supra, 301
Conn. 193, because the sentence did not include a
period of special parole. The defendant further claimed
that, because a new sentence cannot exceed the original
total effective sentence imposed; see State v. Raucci,
21 Conn. App. 557, 563, 575 A.2d 234, cert. denied, 215
Conn. 817, 576 A.2d 546 (1990); and because parole is
deemed to be an extension of the original period of
incarceration; see State v. Tabone, 292 Conn. 417, 429–
30, 973 A.2d 74 (2009); the trial court was required to
deduct the period of special parole mandated by § 53a-
70 (b) (3) from his original total effective prison sen-
tence, thereby leaving him with fourteen rather than
fifteen years to serve.
The trial court denied the defendant’s motion. The
court concluded that Victor O. did not hold that the
defendant’s original sentence was unlawful for the rea-
son advanced by the defendant, namely, that, under
§ 53a-70 (b) (3), all persons who commit first degree
sexual assault must be sentenced to a period of special
parole. The court concluded, rather, that the defen-
dant’s sentence was unlawful because it included a
period of probation, which is prohibited for persons
convicted of a class A felony. The trial court further
explained, consistent with the interpretation advocated
by the state, that § 53a-70 (b) (3) simply requires that,
in the event that the court elects to impose a split
sentence of incarceration and special parole, as author-
ized by General Statutes § 53a-28 (b) (9),6 the minimum
combined sentence must total a period of at least ten
years.
In reaching its determination, the trial court observed
that, under well established principles of statutory con-
struction, a legislative scheme must be construed so as
to harmonize and give effect to its various parts. The
court further observed that, under General Statutes
§ 54-128 (c),7 a sentence that consists of incarceration
followed by a period of special parole cannot exceed
the maximum sentence authorized for the underlying
offense. The court explained that, under the defendant’s
interpretation of § 53a-70 (b) (3), a sentencing court
could never impose the maximum term of imprison-
ment authorized for a class A felony violation of § 53a-
70 because of the requirement that the sentence include
a period of special parole, which, in combination with
any term of imprisonment, cannot exceed the maximum
allowable sentence. The court concluded that the legis-
lature reasonably could not have intended such a result.
On appeal to this court,8 the defendant renews the
claim he raised in the trial court, namely, that § 53a-70
(b) (3), by its plain and unambiguous terms, and as
interpreted by this court in State v. Victor O., supra,
301 Conn. 193, requires that he be sentenced to a period
of special parole for his conviction of sexual assault in
the first degree. We disagree.
We first address the defendant’s contention that the
issue of statutory interpretation presented in this appeal
was decided by this court in State v. Victor O., supra,
301 Conn. 193. This claim merits little discussion.
Although, in hindsight, it would have benefited the par-
ties if we had decided the issue in that case, we did
not do so in light of the state’s concession that the
defendant’s sentence was illegal. See id. Instead, in light
of that concession, we simply remanded the case to
the trial court for resentencing, without considering
whether, on remand, the trial court was required to
sentence the defendant to a period of special parole.
See id. Indeed, our entire discussion of the defendant’s
claim relating to his sentence consisted of four senten-
ces at the end of the decision, in which we set forth
the claim, the relevant statute, the state’s concession,
and our disposition of the case in light of that conces-
sion. Id. To the extent that anything we may have said
therein can be construed as deciding the somewhat
challenging question of statutory interpretation pre-
sented by the present appeal, it was not our intention
to do so.9 We now turn to that question.
It is axiomatic that, in construing a statute, the objec-
tive of this court is to ascertain and give effect to the
apparent or expressed intent of the legislature. See,
e.g., State v. Smith, 317 Conn. 338, 346, 118 A.3d 49
(2015). Toward that end, ‘‘General Statutes § 1-2z
directs us first to consider the text of the statute itself
and its relationship to [the broader statutory scheme].
If, after examining such text and considering such rela-
tionship, the meaning of such text is plain and unambig-
uous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall
not be considered. . . . The test to determine ambigu-
ity is whether the statute, when read in context, is
susceptible to more than one reasonable interpretation.
. . . When a statute is not plain and unambiguous, we
also look for interpretive guidance to the legislative
history and circumstances surrounding its enactment,
to the legislative policy it was designed to implement,
and to its relationship to existing legislation and com-
mon law principles governing the same general subject
matter . . . .’’ (Internal quotation marks omitted.)
State v. Pond, 315 Conn. 451, 467, 108 A.3d 1083 (2015).
It also is well established that, ‘‘[i]n cases in which more
than one [statutory provision] is involved, we presume
that the legislature intended [those provisions] to be
read together to create a harmonious body of law . . .
and we construe the [provisions], if possible, to avoid
conflict between them.’’ (Internal quotation marks omit-
ted.) Tomlinson v. Tomlinson, 305 Conn. 539, 552, 46
A.3d 112 (2012); see also State v. Tabone, supra, 292
Conn. 434 (‘‘we are bound to harmonize otherwise con-
flicting statutes to the maximum extent possible with-
out thwarting their intended purpose’’).
As we previously explained, § 53a-70 (b) (3) provides
in relevant part that any person who is found guilty of
sexual assault in the first degree under § 53a-70 ‘‘shall
be sentenced to a term of imprisonment and a period
of special parole . . . which together constitute a sen-
tence of at least ten years.’’ Contrary to the defendant’s
contention, we do not believe that § 53a-70 (b) (3) is
susceptible of only one interpretation. If one focuses
solely on the first clause, as the defendant does, the
statute is most reasonably understood to require that
all persons convicted of first degree sexual assault shall
be sentenced to a term of imprisonment and a period
of special parole. If, however, one reads the second
clause as a restrictive modifier of the first, as the state
does, the provision reasonably may be construed as a
mandatory minimum sentence provision requiring
merely that any sentence of imprisonment and special
parole add up to a period of at least ten years. We agree
with the state and the trial court that, when the statute
is read in relation to the broader sentencing scheme,
it becomes evident that the second interpretation is
the more reasonable one because it harmonizes the
statutory scheme into a coherent and cohesive whole,
whereas the interpretation advocated by the defendant
creates ambiguity within that scheme.
As the state contends, construing § 53a-70 (b) (3) as a
minimum sentencing provision rather than as requiring
special parole in all cases avoids two fundamental con-
flicts. First, it avoids a conflict with General Statutes
§ 53a-35a (4),10 which, with exceptions inapplicable to
this case, authorizes a maximum term of imprisonment
of twenty-five years for persons convicted of any class
A felony. As the trial court explained, if we were to
adopt the defendant’s interpretation of § 53a-70 (b) (3),
a sentencing court never could impose that sentence
on a person convicted of violating § 53a-70 because of
the requirement of § 54-128 (c) that the length of the
combined sentence of imprisonment and special parole
not exceed the maximum sentence authorized for the
underlying offense. The second interpretation also
avoids an inconsistency in § 53a-29 (f), which expressly
authorizes the trial court to sentence persons convicted
of certain violations of § 53a-70 to a term of probation.11
See General Statutes § 53a-29 (f) (‘‘[t]he period of proba-
tion, unless terminated sooner as provided in section
53a-32, shall be not less than ten years or more than
thirty-five years for conviction of a violation of . . .
section 53a-70’’). As the state maintains, were we to
adopt the defendant’s interpretation of § 53a-70 (b) (3)
as requiring special parole in all cases, it would effec-
tively nullify the portion of § 53a-29 (f) expressly author-
izing probation in some of those cases, which would
be in contravention of the rule that, whenever possible,
we must read statutes to avoid ‘‘conflict that would
result in a nullification of one by the other . . . .’’12
(Internal quotation marks omitted.) Stern v. Allied Van
Lines, Inc., 246 Conn. 170, 179, 717 A.2d 195 (1998);
see also Franco v. East Shore Development, Inc., 271
Conn. 623, 632, 858 A.2d 703 (2004) (in absence of any
indication that one statute was intended to supersede
or to nullify another, we read two provisions to give
both of them effect).
Our interpretation also comports with the legislative
history surrounding § 53a-29 (f) and General Statutes
§ 54-125e, the special parole statute. As this court pre-
viously has explained, prior to 1995, ‘‘the maximum
term of probation for . . . a violation of § 53a-70 . . .
was five years. See [e.g.] General Statutes (Rev. to 1985)
§ 53a-29 (d). In 1995, the legislature, in response to a
growing concern about sex offender recidivism,
amended . . . § 53a-29 . . . by enacting No. 95-142,
§ 2, of the 1995 Public Acts, to require the term of
probation to be set at not less than ten nor more than
thirty-five years for a defendant convicted of violating
§ 53a-70.’’ (Footnote omitted.) State v. Kelly, 256 Conn.
23, 89, 770 A.2d 908 (2001). Thereafter, in 1998, ‘‘[t]he
legislature created the concept of ‘special parole’ as a
new sentencing option . . . by enacting § 54-125e. See
Public Acts 1998, No. 98-234, § 3 [P.A. 98-234].’’ State
v. Boyd, 272 Conn. 72, 78, 861 A.2d 1155 (2004). The
legislative history surrounding § 54-125e ‘‘indicates that
it was intended to operate as a sentencing option in
cases [in which] the judge wanted additional supervi-
sion of a defendant after the completion of his prison
sentence. Michael Mullen, the chairman of the Connecti-
cut [B]oard of [P]arole, testified before the [J]udiciary
[C]ommittee and described special parole as a ‘sentenc-
ing option [that] ensures intense supervision of con-
victed felons after they’re released to the community
and allows the imposition of parole stipulations on . . .
released inmate[s] to ensure their successful incremen-
tal [reentry] into society or if they violate their stipula-
tions, speedy [reincarceration] before they commit
[other] crime[s].’ ’’ (Emphasis omitted.) Id., 79 n.6, quot-
ing Conn. Joint Standing Committee Hearings, Judi-
ciary, Pt. 4, 1998 Sess., p. 1013.
At the same time that it enacted § 54-125e, the legisla-
ture amended § 54-128 to provide that a sentence con-
sisting of a term of imprisonment followed by a period
of special parole ‘‘shall not exceed the maximum sen-
tence of incarceration authorized for the offense for
which the person was convicted.’’ P.A. 98-234, § 4, codi-
fied at General Statutes § 54-128 (c). As we explained
in State v. Tabone, supra, 292 Conn. 417, the legislature,
in enacting § 54-125e ‘‘intended to permit the imposition
of special parole as a sentencing option [that] ensures
intense supervision of convicted felons after [they are]
released to the community and allows the imposition
of parole stipulations on the released inmate. At the
same time, the legislature intended to prevent the trial
court from sentencing a defendant to a term of impris-
onment and to a period of special parole, the total
combined length of which exceeds the maximum sen-
tence of imprisonment for the offense [of] which the
defendant was convicted.’’13 (Internal quotation marks
omitted.) Id., 434–35. ‘‘It is clear, therefore, that the
legislature intended that special parole, as a form of
supervised release, should be available to trial courts,
provided that its imposition, in combination with a term
of incarceration, does not exceed the maximum statu-
tory period of incarceration permitted by law.’’ Id., 435.
As originally enacted, subsection (c) of § 54-125e pro-
vided that ‘‘[t]he period of special parole shall be not
less than one year nor more than ten years except that
such period shall be not less than ten years nor more
than thirty-five years’’ for persons who committed cer-
tain offenses, including first and second degree sexual
assault. P.A. 98-234, § 3, codified at General Statutes
(Rev. to 1999) § 54-125e (c).14 This provision mirrored
the requirement of § 53a-29 (f)—then General Statutes
(Rev. to 1999) § 53a-29 (e)—that the period of probation
for first and second degree sexual assault, among other
crimes, be ‘‘not less than ten years or more than thirty-
five years . . . .’’ General Statutes § 53a-29 (f). Within
one year of its enactment, however, it became apparent
that the ten year mandatory minimum requirement of
General Statutes (Rev. to 1999) § 54-125e (c), when
added to the nine month mandatory minimum prison
sentence for second degree sexual assault; see General
Statutes (Rev. to 1999) § 53a-71 (b); exceeded the ten
year maximum sentence authorized for second degree
sexual assault under § 54-128 (c). See State v. Tabone,
279 Conn. 527, 543–44, 902 A.2d 1058 (2006) (discussing
conflict between General Statutes [Rev. to 1999] § 54-
125e [c] and § 54-128 [c], as applied to General Statutes
[Rev. to 1999] § 53a-71).
To remedy this problem, and to prevent others like
it from occurring, the legislature passed Public Acts,
Spec. Sess., June, 1999, No. 99-2, § 52 (Spec. Sess. P.A.
99-2), which amended General Statutes (Rev. to 1999)
§ 54-125e (c)15 to make the imposition of a term of
special parole of more than ten years discretionary
rather than mandatory. See State v. Tabone, supra, 292
Conn. 435–36 (‘‘the legislature, in apparent recognition
of the confusion it had created upon enacting [General
Statutes (Rev. to 1999)] § 54-125e [c], amended that
statute shortly after its enactment to remove the manda-
tory minimum period of special parole’’). Specifically,
Spec. Sess. P.A. 99-2, § 52, amended General Statutes
(Rev. to 1999) § 54-125e (c) to provide that the period
of special parole for the specified offenses ‘‘may be for
more than ten years’’ rather than providing that it ‘‘shall
be not less than ten years nor more than thirty-five
years . . . .’’ (Emphasis added.) Spec. Sess. P.A. 99-2,
§ 52. In the same public act, the legislature amended
General Statutes (Rev. to 1999) § 53a-70 (b)16 to include
the language at issue in this appeal. See Spec. Sess.
P.A. 99-2, § 49,17 codified at General Statutes (Rev. to
2001) § 53a-70 (b). The legislature added similar lan-
guage to General Statutes (Rev. to 1999) § 53a-70a18
(aggravated sexual assault in first degree) and General
Statutes (Rev. to 1999) § 53a-72b19 (third degree sexual
assault with firearm). See Spec. Sess. P.A. 99-2, §§ 50
and 51. In all three statutes, the language was added
to the section of the statute containing the nonsus-
pendable portion of a defendant’s sentence.
Although our research has not revealed any legisla-
tive history explaining the rationale for these amend-
ments, it is well established that, ‘‘[i]n determining the
true meaning of a statute when there is genuine uncer-
tainty as to how it should apply, identifying the problem
in society to which the legislature addressed itself by
examining the legislative history of the statute under
litigation is helpful.’’ State v. Campbell, 180 Conn. 557,
562, 429 A.2d 960 (1980). In the present case, the prob-
lem that the legislature sought to address in 1999 when
it amended General Statutes (Rev. to 1999) § 54-125e
(c) was the irreconcilable conflict between that provi-
sion and the requirement of § 54-128 (c) that the total
combined period of imprisonment and special parole
not exceed the maximum authorized sentence for an
offense. Because there is no indication that the legisla-
ture had any other purpose in amending General Stat-
utes (Rev. to 1999) § 54-125e (c), the most likely reason
for the simultaneous amendments to General Statutes
(Rev. to 1999) §§ 53a-70, 53a-70a and 53a-72b was to
ensure that, notwithstanding the change to General
Statutes (Rev. to 1999) § 54-125e (c), which was needed
to harmonize certain provisions of the new special
parole statute, persons who commit the most serious
sexual offenses would remain subject to a longer mini-
mum period of special parole in cases in which the trial
court chooses to impose such a sentence on them.
This interpretation is sensible not only because it
comports with the original intent of § 54-125e (c), that
is, requiring a longer period of special parole for certain
offenses, but also because we do not believe that the
legislature would, in so cryptic a fashion, turn what
was intended to be a new sentencing option into a
sentencing directive without any discussion of its rea-
sons for doing so. We agree with the state, moreover,
that tying a sentencing court’s hands in this manner—
that is, limiting it to a single punishment for persons
convicted of first degree sexual assault—runs counter
to the legislative intent, reflected throughout the sen-
tencing scheme, that sentencing courts be afforded
‘‘wide discretion to tailor a just sentence in order to fit
a particular defendant and his crimes’’; (internal quota-
tion marks omitted) State v. Johnson, 316 Conn. 34, 40,
111 A.3d 447 (2015); and be provided with an array of
tools with which to exercise such discretion. See, e.g.,
General Statutes § 53a-28 (b) (authorizing nine different
sentences from which trial court may choose in sentenc-
ing convicted persons).
We also can perceive no reason, and the defendant
has proffered none, why the legislature, having
extended the maximum period of supervised release
for sexual offenders to thirty-five years, would reduce
by almost 50 percent (seventeen years) the amount of
time that the most serious sexual offenders are subject
to supervised release. That is precisely what would
occur, however, if we were to adopt the defendant’s
interpretation of § 53a-70 (b) (3).20 To the extent that
the defendant contends that the legislature may have
intended this anomalous result because special parole
allows for more intensive supervision of convicts after
they are released from prison, we are not persuaded.
Although it may be true that the terms of release for
special parolees are more restrictive than they are for
probationers in the short term, it is undisputed that
probation exposes a defendant to imprisonment for a
much longer period of time, arguably making it,
depending on one’s perspective, a considerably more
onerous punishment.21 For this reason, and for the rea-
sons that we previously discussed, we conclude that
the trial court correctly determined that § 53a-70 (b)
(3) does not mandate that persons convicted of first
degree sexual assault be sentenced to a period of impris-
onment and special parole; it provides, rather, that, if
the court elects to impose such a sentence, then the
total combined period of imprisonment and special
parole must total at least ten years.22
In reaching our conclusion, we are mindful that our
rather intricate sentencing scheme is not always a
model of clarity and that sometimes it is difficult to
ascertain the rationale underlying all of its components.
Nevertheless, it is our duty to seek to reconcile that
scheme into a coherent system, in a manner that effectu-
ates, to the greatest extent possible, the legislative
intent behind the scheme. We believe that we have done
so in the present case.
The trial court’s denial of the defendant’s motion to
correct an illegal sentence is affirmed.
In this opinion the other justices concurred.
* In accordance with the policy of protecting the privacy interests of
victims of sexual assault and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
1
General Statutes (Rev. to 2001) § 53a-70 (a), as amended by P.A. 02-138,
§ 5, provides in relevant part: ‘‘(a) A person is guilty of sexual assault in
the first degree when such person . . . (2) engages in sexual intercourse
with another person and such other person is under thirteen years of age
and the actor is more than two years older than such person . . . .’’
Hereinafter, all references to § 53a-70 are to the revision of 2001, as
amended by P.A. 02-138, § 5, unless otherwise noted.
2
General Statutes § 53a-28 (b) authorizes the imposition of various senten-
ces, including a term of imprisonment and a period of special parole. See
footnote 6 of this opinion.
3
Section 53a-70 (b) (2) provides that a violation of § 53a-70 (a) (2) is a
class A felony. Section 53a-70 (b) (2) also provides for a nonsuspendable
sentence of ten years if the victim of a sexual assault under § 53a-70 (a) (2)
is less than ten years of age. Because the defendant’s victim was under ten
years of age when the sexual assault occurred, the trial court was required
to sentence the defendant to a nonsuspendable prison term of not less than
ten years.
4
General Statutes § 53a-29 (a) provides: ‘‘The court may sentence a person
to a period of probation upon conviction of any crime, other than a class
A felony, if it is of the opinion that: (1) Present or extended institutional
confinement of the defendant is not necessary for the protection of the
public; (2) the defendant is in need of guidance, training or assistance which,
in the defendant’s case, can be effectively administered through probation
supervision; and (3) such disposition is not inconsistent with the ends of
justice.’’
Although § 53a-29 has been amended several times since the defendant’s
commission of the crimes that formed the basis of his conviction, those
amendments have no bearing on the merits of this appeal. In the interest
of simplicity, we refer to the current revision of § 53a-29 throughout this
opinion.
5
General Statutes § 53a-29 (f) provides in relevant part: ‘‘The period of
probation, unless terminated sooner as provided in section 53a-32, shall be
not less than ten years or more than thirty-five years for conviction of a
violation of subdivision (2) of subsection (a) of section 53-21 or section
53a-70 . . . .’’
Subsection (f) of § 53a-29 was codified at General Statutes § 53a-29 (e),
as amended by Public Acts 2001, No. 01-84, § 14, when the defendant commit-
ted the crimes that formed the basis of his conviction. The relevant language
of that statutory provision has not changed in any material respect.
6
General Statutes § 53a-28, which sets forth the nine sentences that may
be imposed for the commission of an offense, provides in relevant part: ‘‘(a)
Except as provided in section 17a-699 and chapter 420b, to the extent that
the provisions of said section and chapter are inconsistent herewith, every
person convicted of an offense shall be sentenced in accordance with
this title.
‘‘(b) Except as provided in section 53a-46a, when a person is convicted
of an offense, the court shall impose one of the following sentences: (1) A
term of imprisonment; or (2) a sentence authorized by section 18-65a or 18-
73; or (3) a fine; or (4) a term of imprisonment and a fine; or (5) a term
of imprisonment, with the execution of such sentence of imprisonment
suspended, entirely or after a period set by the court, and a period of
probation or a period of conditional discharge; or (6) a term of imprisonment,
with the execution of such sentence of imprisonment suspended, entirely
or after a period set by the court, and a fine and a period of probation or
a period of conditional discharge; or (7) a fine and a sentence authorized
by section 18-65a or 18-73; or (8) a sentence of unconditional discharge; or
(9) a term of imprisonment and a period of special parole as provided in
section 54-125e. . . .’’
7
General Statutes § 54-128 (c) provides in relevant part: ‘‘The total length
of the term of incarceration and term of special parole combined shall not
exceed the maximum sentence of incarceration authorized for the offense
for which the person was convicted.’’
8
The defendant appealed to the Appellate Court from the trial court’s
denial of the defendant’s motion, and we transferred the appeal to this court
pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
9
As we previously noted, in support of his contention that § 53a-70 (b)
(3) requires that he be sentenced to a period of special parole, the defendant
relies on our statement in State v. Victor O., supra, 301 Conn. 163, that,
‘‘[a]s the state concedes, the sentence that the trial court imposed does not
comply with § 53a-70 (b) (3) because it includes a period of probation rather
than a period of special parole.’’ Id., 193. Although we recognize that it is
possible to construe this statement as indicating that the defendant must
be resentenced to a period of special parole instead of a period of probation,
we intended only to explain that probation was prohibited and that special
parole was the only form of supervised release that could be imposed.
Indeed, the state did not concede that the defendant’s sentence was illegal
because it should have included a period of special parole; the state conceded
only that probation was not an authorized sentence because the defendant
had been convicted of a class A felony. In fact, the state expressly argued
that the trial court is never required to sentence a defendant to special
parole but that, if the court does elect to impose such a sentence, then the
term of imprisonment and period of special parole together must total at
least ten years.
10
Section 53a-35a (4) was codified at General Statutes (Rev. to 2001)
§ 53a-35a (3) when the defendant committed the crimes that formed the
basis of his conviction. Although the language of that statutory provision
has changed somewhat, those changes do not bear on the merits of this
appeal. In the interest of simplicity, we refer to the current revision of the
statute, unless otherwise noted.
11
As we previously noted, under § 53a-29 (a), the court may not impose
probation for a violation of § 53a-70 that constitutes a class A felony but
may do so for a violation of § 53a-70 that constitutes a class B felony. See
footnotes 4 and 5 of this opinion and accompanying text.
12
Relying on the principle ‘‘that specific terms in a statute covering a
given subject matter will prevail over the more general language of the same
or another statute that otherwise might be controlling’’; (internal quotation
marks omitted) Branford v. Santa Barbara, 294 Conn. 803, 813, 988 A.2d
221 (2010); the defendant argues that there is no conflict between §§ 53a-70
(b) (3) and 53a-35a (4) because the latter statute provides that the sentencing
ranges established thereunder shall apply ‘‘unless the section of the general
statutes that defines or provides the penalty for the crime specifically pro-
vides otherwise’’; General Statutes § 53a-35a; and § 53a-70 (b) (3) can be
interpreted as creating such an exception to § 53a-35a. The defendant’s
argument is unavailing because § 53a-70 (b) (3) does not purport to provide
a sentencing range for persons convicted of first degree sexual assault
but, instead, establishes the minimum length of a combined sentence of
imprisonment and special parole. Thus, the trial court is still required to
consult § 53a-35a to determine the upper limits of a sentence for violations
of § 53a-70.
In reliance on the tenet of statutory construction that, ‘‘[w]hen two legisla-
tive enactments are in conflict and cannot reasonably be reconciled, the
later one repeals the earlier one to the extent of the repugnance’’; New
Haven Water Co. v. North Branford, 174 Conn. 556, 565, 392 A.2d 456 (1978);
the defendant further argues that, because there is an irreconcilable conflict
between §§ 53a-29 (f) and 53a-70 (b) (3), the latter must be deemed to
have repealed the former to the extent of that conflict. As the defendant’s
argument acknowledges, however, this principle has applicability only if,
after resort to established tools of statutory interpretation, there is no way
to reasonably reconcile the two provisions. Because we are satisfied that
there is a reasonable interpretation that gives effect to both statutes, we
have no occasion to apply this tenet of statutory construction.
13
We have explained that ‘‘[t]he provision that is now codified at § 54-
128 (c) . . . was adopted in response to the testimony of Deborah Del
Prete Sullivan, executive assistant public defender and legal counsel for the
[O]ffice of the [C]hief [P]ublic [D]efender. Sullivan submitted a letter to the
[J]udiciary [C]ommittee stating that the bill as originally drafted . . . would
allow the total number of years of imprisonment and the term of special
parole (for which a person can be incarcerated) combined to exceed the
maximum sentence [that] can be imposed for the offense. As a result, a
person could be incarcerated for [a] . . . period of time well in excess of
the maximum sentence permitted by the penal statute if [he was] to violate
special parole. The concept of parole is that it is an extension of the original
period of incarceration imposed as a sentence by the court. The language
proposed would not pass constitutional muster, as a person could receive
increased penalties without due process. These additional penalties could
also violate the constitutional right against double jeopardy.’’ (Internal quota-
tion marks omitted.) State v. Tabone, 279 Conn. 527, 540–41, 902 A.2d 1058
(2006). To remedy these infirmities, Sullivan proposed that the following
language be added to § 54-128 (c): ‘‘The total length of the term of incarcera-
tion and term of special parole combined shall not exceed the maximum
sentence of incarceration authorized for the offense for which the person
was convicted.’’ Conn. Joint Standing Committee Hearings, Judiciary, Pt. 5,
1998 Sess., p. 1325. As we noted in State v. Tabone, supra, 279 Conn. 527,
the legislature’s wholesale adoption of Sullivan’s proposed language makes
clear ‘‘that the legislature intended to resolve the alleged constitutional
infirmities [in] the original bill by adding the language recommended by
Sullivan . . . .’’ Id., 541.
14
General Statutes (Rev. to 1999) § 54-125e (c) provides in relevant part:
‘‘The period of special parole shall be not less than one year nor more than
ten years except that such period shall be not less than ten years nor more
than thirty-five years for a person convicted of a violation of . . . section
53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b . . . .’’
15
General Statutes (Rev. to 1999) § 54-125e (c), as amended by Public
Acts, Spec. Sess., June, 1999, No. 99-2, § 52, provides: ‘‘The period of special
parole shall be not less than one year nor more than ten years except that
such period may be for more than ten years for a person convicted of a
violation of . . . section 53a-70, as amended by this act, 53a-70a, as
amended by this act, 53a-70b, 53a-71, 53a-72a or 53a-72b, as amended by
this act . . . .’’ (Emphasis added.)
16
General Statutes (Rev. to 1999) § 53a-70 (b) provides: ‘‘Sexual assault
in the first degree is a class B felony for which one year of the sentence
imposed may not be suspended or reduced by the court or, if the victim of
the offense is under ten years of age, for which ten years of the sentence
imposed may not be suspended or reduced by the court.’’
17
General Statutes (Rev. to 1999) § 53a-70 (b), as amended by Spec. Sess.
P.A. 99-2, § 49, provides in relevant part: ‘‘Sexual assault in the first degree
is a class B felony for which two years of the sentence imposed may not
be suspended or reduced by the court or, if the victim of the offense is
under ten years of age, for which ten years of the sentence imposed may
not be suspended or reduced by the court, and any person found guilty
under this section shall be sentenced to a term of imprisonment and a
period of special parole pursuant to subsection (b) of section 53a-28 which
together constitute a sentence of at least ten years.’’ (Emphasis added.)
In 2002, the legislature enacted Public Acts 2002, No. 02-138, § 5, which
amended General Statutes (Rev. to 2001) § 53a-70 (b) to make certain viola-
tions of that statute class A felonies with longer, nonsuspendable sentences
and transferred the foregoing italicized language to its own subdivision
within § 53a-70 (b).
18
General Statutes (Rev. to 1999) § 53a-70a (b), as amended by Spec. Sess.
P.A. 99-2, § 50, provides in relevant part: ‘‘Aggravated sexual assault in the
first degree is a class B felony and any person found guilty under this section
shall be sentenced to a term of imprisonment of which five years of the
sentence imposed may not be suspended or reduced by the court and a
period of special parole pursuant to subsection (b) of section 53a-28 which
together constitute a sentence of twenty years.’’ (Emphasis added.)
19
General Statutes (Rev. to 1999) § 53a-72b (b), as amended by Spec. Sess.
P.A. 99-2, § 51, provides in relevant part: ‘‘Sexual assault in the third degree
with a firearm is a class C felony for which two years of the sentence
imposed may not be suspended or reduced by the court and any person
found guilty under this section shall be sentenced to a term of imprisonment
and a period of special parole pursuant to subsection (b) of section 53a-
28 which together constitute a sentence of ten years.’’ (Emphasis added.)
20
This is so because the maximum authorized sentence for a class B
felony violation of § 53a-70 is twenty years; see General Statutes § 53a-
35a (6); with a minimum, nonsuspendable sentence of two years. General
Statutes § 53a-70 (b) (1). Because the length of a combined sentence of
imprisonment and special parole cannot exceed the maximum authorized
sentence for the offense; General Statutes § 54-128 (c); the longest period
of special parole that could be imposed on a person who commits a class
B felony violation of § 53a-70 would be eighteen years. In contrast, § 53a-
29 (f) authorizes up to thirty-five years of probation for that offense.
21
As we previously have explained, ‘‘[p]ursuant to § 54-128 (c), when a
defendant violates special parole, he is subject to incarceration only for ‘a
period equal to the unexpired portion of the period of special parole.’ Thus,
for a violation that occurs on the final day of the defendant’s special parole
term, the defendant would be exposed to one day of incarceration. Special
parole, therefore, exposes a defendant to a decreasing period of incarcera-
tion as the term of special parole is served. On the other hand, when a
defendant violates his probation, the court may revoke his probation, and,
if revoked, ‘the court shall require the defendant to serve the sentence
imposed or impose any lesser sentence.’ . . . Accordingly, if [a] defendant
. . . violate[s] his probation on the final day of [the probationary] term, he
would be exposed to the full suspended sentence of . . . incarceration
[whatever that sentence may be]. Thus, in contrast to a term of special
parole, the defendant is exposed to incarceration for the full length of the
suspended sentence, with no decrease in exposure as the probationary
period is served, for the entirety of the probationary period.’’ (Citation
omitted; footnote omitted.) State v. Tabone, supra, 292 Conn. 429.
22
We note that the defendant argues that the rule of lenity compels us to
strictly construe § 53a-70 (b) (3) against the state. It is well established that
‘‘courts do not apply the rule of lenity unless a reasonable doubt persists
about a statute’s intended scope even after resort to the language and
structure, legislative history, and motivating policies of the statute.’’ (Empha-
sis omitted; internal quotation marks omitted.) State v. Lutters, 270 Conn.
198, 219, 853 A.2d 434 (2004). There is no role for the rule of lenity in
the present case because, after applying the traditional tools of statutory
interpretation in seeking to construe § 53a-70 (b) (3), we are not left with
a reasonable doubt as to the meaning of that provision.