State v. Langston ( 2023 )

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STATE OF CONNECTICUT v. RICHARD LANGSTON
(SC 20734)
McDonald, D’Auria, Mullins, Ecker and Alexander, Js.
Syllabus
The defendant appealed from the trial court’s denial of his motion to correct
an illegal sentence. The defendant had been convicted of the crimes of
criminal possession of a firearm and robbery in the first degree, but
acquitted of assault in the first degree, in connection with an armed
robbery and a shooting. During the sentencing hearing, the prosecutor,
relying on United States v. Watts (519 U.S. 148), requested that the
sentencing court find, by a preponderance of the evidence, that the
defendant had committed the assault, notwithstanding his acquittal of
that charge, and consider that finding for purposes of sentencing. The
sentencing court reviewed the underlying facts of the defendant’s convic-
tion, as well as the assault charge of which the defendant was acquitted,
noted that it found the evidence to be telling and the witnesses to be
credible, and commented on the nature of the alleged assault and its
impact on the victim. The court specifically stated that the victim ‘‘was
shot in the back of both legs by the defendant.’’ The defendant received
a lengthy total effective sentence, but the sentence for each count on
which he was convicted fell within the statutorily prescribed range. In
his motion to correct, the defendant argued that the sentencing court
violated his rights under the federal and state constitutions when it
considered the conduct underlying the assault charge, but the court
rejected the defendant’s claim and denied the motion. On appeal, the
defendant claimed, inter alia, that the sentencing court’s consideration
of the conduct underlying the assault charge of which he was acquitted
violated his federal and state constitutional rights to due process and
to a trial by jury. Held:
1. The sentencing court’s consideration of the conduct underlying the assault
charge of which the defendant was acquitted did not violate his rights
to a trial by jury or due process under the sixth and fourteenth amend-
ments to the United States constitution, respectively:
Contrary to the defendant’s argument that there was no binding prece-
dent on whether the consideration of acquitted conduct for purposes of
sentencing violates a criminal defendant’s federal constitutional rights
to a trial by jury or to due process, in Watts, the United States Supreme
Court emphasized that a long line of cases had established the broad
range of information a sentencing court can consider in imposing a
sentence and held that a sentencing court is not prevented from consider-
ing conduct underlying a crime or crimes of which the defendant has
been acquitted, provided that such conduct is proven by a preponderance
of the evidence.
Moreover, since Watts, the United States Supreme Court has clarified
that a sentencing court has discretion to consider a broad range of
conduct, so long as the sentence imposed falls within the statutory range
and the conduct does not serve as a basis to enhance that sentence,
nearly every federal court of appeals has held that the consideration of
acquitted conduct for purposes of sentencing does not violate a criminal
defendant’s constitutional rights, including the right to a trial by jury or
to due process, provided that the sentence imposed does not exceed
the statutory maximum for the conviction, and, in State v. Huey (199
Conn. 121), which predated Watts, this court emphasized the broad
discretion a sentencing court has within the federal constitutional rubric
to consider matters that would not be admissible at trial and held that,
as a matter of federal due process, a sentencing court can consider
information that merely has some minimal indicium of reliability.
In the present case, the sentencing court considered testimony and evi-
dence adduced at a jury trial over which it presided, it had sufficient
opportunity to observe and judge the credibility of the witnesses,
although it did not explicitly state that the evidence on which it was
relying had some minimal indicium of reliability, such sworn testimony
is exactly the kind of minimally credible evidence on which sentencing
courts rely, and the sentencing court’s findings as to the sufficiency of
the evidence of the acquitted conduct were implicit in its explanation
that it found the evidence to be telling and the witnesses to be credible.
Furthermore, the defendant could not prevail on his claim that neither
Watts nor Huey was binding on this court, insofar as he argued that Huey
did not explicitly address whether a sentencing court could consider
acquitted conduct and that the holding of Watts was limited to the context
of double jeopardy violations, as Watts explicitly stated that due process
is generally satisfied when the acquitted conduct under consideration has
been established by a preponderance of the evidence, and the rationale
supporting Watts and Huey extended to a sentencing court’s consider-
ation of acquitted conduct, provided the requisite standards are met.
2. The sentencing court’s consideration of the conduct underlying the assault
charge of which the defendant was acquitted did not violate his rights
to due process or to a trial by jury under article first, §§ 8 and 19, of
the Connecticut constitution:
Notwithstanding the defendant’s claim that the state constitution affords
greater protection than the federal constitution with respect to a defen-
dant’s rights to due process and to a trial by jury in the context of a
sentencing court’s consideration of acquitted conduct, an analysis under
the multifactor approach articulated in State v. Geisler (222 Conn. 672)
for construing state constitutional provisions led this court to conclude
that the state constitution does not prohibit the consideration of acquitted
conduct for purposes of sentencing when the sentence is within the
statutory range for the offenses of which the defendant has been con-
victed and the information relied on has a minimal indicium of reliability.
Specifically, the text of the relevant state constitutional provisions,
related Connecticut precedent, and persuasive federal precedent all
weighed heavily in favor of this court’s determination that consideration
of acquitted conduct for purposes of sentencing is not unconstitutional,
as §§ 8 and 19 of article first of the Connecticut constitution are almost
identical in substance to the corresponding provisions in the federal
constitution, this court previously has emphasized that a sentencing
court has broad discretion in imposing a sentence within the statutory
limits and has held that the practice of commenting on conduct for which
a defendant is acquitted does not rise to the level of a constitutional
violation, the defendant cited no Connecticut authority supporting the
opposite proposition, and every federal court of appeals that has
addressed the issue has afforded sentencing courts the same wide lati-
tude discussed by the United States Supreme Court in Watts in concluding
that the consideration of acquitted conduct for sentencing purposes does
not raise double jeopardy concerns.
Moreover, the factor regarding the persuasive precedents of other state
courts, which follow diverse approaches with respect to the consider-
ation of acquitted conduct for purposes of sentencing, did not strongly
favor either the state’s or the defendant’s position, the factor regarding
the historical insights into the intent of the framers of the state constitu-
tion favored the state’s argument that the state constitution grants the
same rights as the federal constitution, insofar as the state right to trial
by jury developed in a similar manner to the right to a trial by jury under
the federal constitution, and, although contemporary norms and public
policy weighed in favor of the defendant’s position, on balance, the
factors favoring the state’s position outweighed the concerns embodied
in the contemporary norms and public policy factor.
3. This court declined the defendant’s invitation to exercise its supervisory
authority over the administration of justice to impose a rule prohibiting
a sentencing court’s consideration of conduct underlying a charge of
which a defendant has been acquitted, but it emphasized that sentencing
courts should exercise caution if they do rely on such conduct:
Under Connecticut’s sentencing system, a sentencing court has wide
latitude to sentence a defendant within the established statutory range
for each offense of which a defendant is convicted, it may consider any
evidence that has a minimal indicium of reliability in imposing a sentence
within that range, and it is not permitted to make findings of fact relating
to aggravating factors or other factors that may place a sentence outside
the statutory range.
Accordingly, limiting the information on which a sentencing court can
rely would not provide any benefit and, instead, would discourage that
court from articulating on the record a full and transparent basis for the
sentence, which would prevent appellate courts from remedying those
instances in which a sentencing court does rely on unreliable, inaccurate,
or patently wrong information that falls short of a minimal indicium of
reliability, and, as long as the evidence considered in this context satisfies
the requisite standard of having a minimal indicium of reliability, it would
not be appropriate for this court to interfere with a trial court’s discretion
in crafting proper sentences.
Nevertheless, this court emphasized that sentencing courts should under-
take every effort to refrain from basing a sentence on facts that cast
doubt, either directly or indirectly, on any aspect of a jury’s verdict, and
that it is neither necessary nor appropriate for a sentencing court to
express or imply its disagreement with the jury’s verdict, as such a
practice may harm public confidence in the fairness of the judicial system
and undermine the importance of the jury’s role in fair adjudications,
and, in the present case, although the sentencing court’s declarative
statement that the victim ‘‘was shot in the back of both legs by the
defendant’’ was not unconstitutional or illegal, it was imprudent.
Argued November 17, 2022—officially released June 6, 2023
Procedural History
Substitute information charging the defendant with
the crimes of assault in the first degree, criminal possession
of a firearm, and robbery in the first degree, brought
to the Superior Court in the judicial district of Hartford,
where the case was tried to the jury before Spada, J.;
verdict and judgment of guilty of criminal possession
of a firearm and robbery in the first degree; thereafter,
the court, Graham, J., denied the defendant’s motion
to correct an illegal sentence, and the defendant
appealed. Affirmed.
John R. Weikart, assigned counsel, with whom was
Emily Graner Sexton, assigned counsel, for the appel-
lant (defendant).
Timothy F. Costello, senior assistant state’s attorney,
with whom, on the brief, were Sharmese L. Walcott,
state’s attorney, and Vicki Melchiorre, former supervi-
sory assistant state’s attorney, for the appellee (state).
Opinion
McDONALD, J. This case requires us to decide whether,
following a jury trial, a trial court can properly consider
conduct related to a charge of which a criminal defen-
dant was acquitted, when the court sentences the defen-
dant on other charges of which the defendant was
convicted. We conclude that the practice is permissible
under established law. We also conclude, however, that
trial courts should be extremely cautious if they rely
on such conduct during sentencing.
The defendant, Richard Langston, appeals from the
trial court’s denial of his motion to correct an illegal
sentence. On appeal, the defendant claims that the sen-
tencing court’s consideration of conduct related to a
charge of which he was acquitted violated his rights to
due process and to a trial by jury under the sixth and
fourteenth amendments to the United States constitu-
tion and article first, §§ 8 and 19, of the Connecticut
constitution. The defendant also urges us, in the absence
of a constitutional violation, to use our supervisory
authority to prohibit consideration of acquitted conduct
during sentencing. Although we do not endorse that
practice, we decline to reverse the trial court’s denial
of the defendant’s motion because (1) a long line of
both federal and state precedent has allowed significant
latitude for what judges may consider during sentencing
and has permitted sentencing courts to consider a wide
range of conduct, including conduct related to acquitted
charges, and (2) the sentence imposed by the sentenc-
ing court in this case was within the statutorily pre-
scribed range for the counts of conviction. Accordingly,
we affirm the trial court’s denial of the defendant’s
motion to correct an illegal sentence.
The defendant was arrested in 1998 in connection
with an armed robbery and a shooting. He was subse-
quently charged with assault in the first degree, criminal
possession of a firearm, and robbery in the first degree.
Following a jury trial, the defendant was acquitted of
assault in the first degree but convicted of all the other
charges. During the sentencing proceedings, the prose-
cutor requested that the sentencing court find, by a
preponderance of the evidence, that the defendant com-
mitted the assault and consider that finding during the
defendant’s sentencing. In support of her request, the
prosecutor cited the United States Supreme Court’s
decision in United States v. Watts, 519 U.S. 148, 117 S.
Ct. 633, 136 L. Ed. 2d 554 (1997), which held that a
sentencing court may consider acquitted conduct, so
long as it is proven by a preponderance of the evidence,
without running afoul of the double jeopardy clause
of the United States constitution. See id., 154–55, 157.
Defense counsel argued, in response, that the sentenc-
ing court should acknowledge and take into account
the fact that the defendant was acquitted of the assault
charge.
The sentencing court proceeded to review the factual
underpinnings of the charges of which the defendant
was convicted, as well as the alleged assault, and, not-
withstanding the acquittal on the assault charge, com-
mented at length on the assault—placing the defendant
as the shooter—and emphasized the impact it had on
the victim, Richard Middleton: ‘‘[T]he victim . . .
turned about, started to walk away, and was shot in
the back of both legs by the defendant. [The victim],
to this day, carries one of the bullets in his leg. He is
effectively crippled and denied from enjoying the full
quality of his life. All because this defendant elected to
fire a handgun for the sake of stealing $100 from an
unsuspecting victim. Further, [the victim] has been
denied the opportunity to pursue a meaningful voca-
tional career. He is essentially unable to secure employ-
ment and must now, for the remainder of his life, be
dependent on the public dole for his support and suste-
nance. [The victim] is currently on Social Security dis-
ability payments, and these will likely continue for the
rest of his life. These payments, of course, are shoul-
dered by the taxpayers of this country, and these pay-
ments will likely total in the hundreds of thousands of
dollars. . . . We learned at trial that [the victim] under-
went four days of hospitalization and major surgeries
on both of his legs. He now requires, as a relatively
young man, the use of a cane to walk. In effect, his life
has been stolen from him.’’ Specifically, the sentencing
court noted that it found that ‘‘[t]he evidence was telling
and the witnesses credible.’’
The court sentenced the defendant to fifteen years
of incarceration for the robbery in the first degree con-
viction, and five years of incarceration, to run consecu-
tively, for the conviction of criminal possession of a
firearm. In accordance with the jury’s findings, the court
also sentenced the defendant to a five year consecutive
term of imprisonment as a mandatory sentence enhance-
ment for committing a class A, B or C felony with a
firearm pursuant to General Statutes § 53-202k. The
defendant received a total effective sentence of twenty-
five years of incarceration.1 The parties agree that each
of the sentences was within the statutorily prescribed
range for each of the offenses.
In 2021, the defendant filed the motion to correct an
illegal sentence at issue in this appeal, in which he
argued that the sentencing court violated his rights
under the sixth and fourteenth amendments to the
United States constitution and article first, § 8, of the
Connecticut constitution when it considered conduct
underlying the assault charge of which he was acquit-
ted. The defendant argued that recent United States
Supreme Court precedent had limited Watts and that
the legal landscape on this issue had changed since
Watts was decided. Following oral argument, the trial
court denied the defendant’s motion.
The trial court emphasized that the defendant’s ‘‘sen-
tence did not exceed the maximum allowed by law, nor
was it imposed in an illegal manner,’’ because, ‘‘[u]nder
Connecticut case law at the time, the sentencing judge
was entitled to consider the shooting of which the
defendant was acquitted.’’ The trial court further rea-
soned that Watts held that a sentencing court is not
precluded from considering the conduct underlying any
charges of which the defendant was acquitted, so long
as it finds, by a preponderance of the evidence, that
the defendant carried out that conduct. Furthermore,
because the sentencing judge did not exceed the maxi-
mum allowable sentences, the trial court found no con-
flict with the federal constitution. Regarding the
question of state law, the court relied on State v. Huey,
199 Conn. 121, 127, 505 A.2d 1242 (1986), for the princi-
ple that, as a matter of due process, any information
that has ‘‘some minimal indicium of reliability’’ may be
considered by the sentencing court as a basis for a
sentence. The trial court reasoned that, because the
sentencing judge had ample opportunity to observe the
witnesses and to reach the conclusion that the evidence
was telling and the witnesses were credible, he was in
a proper position to impose the defendant’s sentence.
The defendant appealed from the trial court’s denial
of his motion to correct an illegal sentence to the Appel-
late Court, and the appeal was transferred to this court.
On appeal, the defendant advances two claims. First,
the defendant claims that the sentencing court’s consid-
eration of conduct underlying a charge of which he was
acquitted violated his rights to a trial by jury and to due
process under the sixth and fourteenth amendments to
the United States constitution, respectively. Second, he
claims that the sentencing court’s consideration of the
same conduct violated his rights to due process and to
a trial by jury under article first, §§ 8 and 19, of the
Connecticut constitution.2 The defendant also requests
that, even if we conclude that his constitutional rights
were not violated, we exercise our supervisory author-
ity to create a rule prohibiting the consideration of
acquitted conduct in sentencing decisions.
Before turning to the defendant’s claims, we summa-
rize the general principles applicable to a trial court’s
consideration of a motion to correct an illegal sentence.
‘‘[A] judicial authority may at any time correct an illegal
sentence or other illegal disposition, or it may correct
a sentence imposed in an illegal manner or any other
disposition made in an illegal manner.’’ Practice Book
§ 43-22. ‘‘[A]n illegal sentence is essentially one [that]
. . . exceeds the relevant statutory maximum limits,
violates a defendant’s right against double jeopardy, is
ambiguous, or is internally contradictory. . . . In
accordance with this summary, Connecticut courts
have considered four categories of claims pursuant to
. . . § 43-22. The first category has addressed whether
the sentence was within the permissible range for the
crimes charged. . . . The second category has consid-
ered violations of the prohibition against double jeop-
ardy. . . . The third category has involved claims
pertaining to the computation of the length of the sen-
tence and the question of consecutive or concurrent
prison time. . . . The fourth category has involved
questions as to which sentencing statute was applica-
ble. . . . We have emphasized that, in order to invoke
the jurisdiction of the trial court, a challenge to the
legality of a sentence must challenge the sentencing
proceeding itself.’’ (Citation omitted; internal quotation
marks omitted.) State v. Myers, 343 Conn. 447, 459–60,
274 A.3d 100 (2022).
‘‘A sentence is imposed in an illegal manner when it
is imposed in a way [that] violates [a] defendant’s right
. . . to be sentenced by a judge relying on accurate
information or considerations solely in the record
. . . . This principle emanates from the defendant’s
constitutional right to due process.’’ (Citation omitted;
footnote omitted; internal quotation marks omitted.)
State v. Francis, 338 Conn. 671, 679, 258 A.3d 1257,
cert. denied, U.S. , 142 S. Ct. 292, 211 L. Ed. 2d
136 (2021). ‘‘[A] claim that the trial court improperly
denied a defendant’s motion to correct an illegal sen-
tence is [typically] reviewed pursuant to the abuse of
discretion standard.’’ State v. Tabone, 279 Conn. 527,
534, 902 A.2d 1058 (2006). However, when a motion to
correct an illegal sentence involves questions of law,
such as the constitutional claims raised here, our review
over those questions is plenary. See, e.g., State v.
Bischoff, 337 Conn. 739, 745, 258 A.3d 14 (2021).
I
FEDERAL CONSTITUTIONAL CLAIM
We begin with the defendant’s claim that the sentenc-
ing court’s consideration of the conduct underlying his
assault charge violated his rights to a trial by jury and
to due process under the sixth3 and fourteenth amend-
ments to the United States constitution, respectively.
The defendant argues that no binding precedent has
decided whether the consideration of such conduct vio-
lates a criminal defendant’s rights to due process and
to a trial by jury, and that two recent United States
Supreme Court cases provide support for his position.
See United States v. Booker, 543 U.S. 220, 240 and n.4,
125 S. Ct. 738, 160 L. Ed. 2d 621 (2005); Apprendi v.
New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L.
Ed. 2d 435 (2000). The state counters that we are bound
by a long line of precedent on this question from both
the United States Supreme Court and this court, which
established that a trial court may properly consider
acquitted conduct at sentencing. See United States v.
Watts, supra, 519 U.S. 157; State v. Huey, supra, 199
Conn. 126. The state also argues that the two recent
United States Supreme Court cases relied on by the
defendant are inapplicable to this case.
The principles governing the constitutionality of sen-
tencing practices are well established.4 In Watts, the
United States Supreme Court addressed whether judges
may consider acquitted conduct during sentencing. See
United States v. Watts, supra, 519 U.S. 149. In that
case, the police found two loaded guns and ammunition
hidden in the home of the defendant Vernon Watts and
cocaine in the home’s kitchen cabinet. Id. The jury
found Watts guilty of possessing cocaine with intent to
distribute but not guilty of using a firearm in relation
to a drug offense. Id., 149–50. Notwithstanding Watts’
acquittal on the firearms charge, the sentencing court
found, by a preponderance of the evidence, that Watts
had possessed the guns in connection with the drug
offense, and it considered that finding in its sentence.
Id., 150. On appeal, the Supreme Court concluded that
the sentencing court’s consideration of the conduct
underlying Watts’ acquitted firearms charge did not vio-
late his constitutional right against double jeopardy.
See id., 154–55, 157. Relying primarily on prior case
law and 18 U.S.C. § 3661 (1988),5 the Supreme Court
concluded that it was ‘‘convinced that a sentencing
court may consider conduct of which a defendant has
been acquitted.’’ Id., 154; see also id., 149. The court
emphasized the long line of cases that established the
broad range of information a sentencing court may con-
sider in its sentencing decisions. Id., 151–52; see, e.g.,
Williams v. New York, 337 U.S. 241, 247, 69 S. Ct. 1079,
93 L. Ed. 1337 (1949) (‘‘[h]ighly relevant—if not essen-
tial—to [a sentencing court’s] selection of an appro-
priate sentence is the possession of the fullest informa
tion possible concerning the defendant’s life and character-
istics’’); Williams v. Oklahoma, 358 U.S. 576, 585, 79 S.
Ct. 421, 3 L. Ed. 2d 516 (1959) (‘‘[i]n discharging his
duty of imposing a proper sentence, the sentencing
judge is authorized, if not required, to consider all of
the mitigating and aggravating circumstances involved
in the crime’’); Nichols v. United States, 511 U.S. 738,
747, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994) (‘‘Sentenc-
ing courts have not only taken into consideration a
defendant’s prior convictions, but have also considered
a defendant’s past criminal behavior, even if no convic-
tion resulted from that behavior. We have upheld the
constitutionality of considering such previous conduct
. . . .’’ (Citation omitted.)); Witte v. United States, 515
U.S. 389, 397, 115 S. Ct. 2199, 132 L. Ed. 2d 351 (1995)
(same). The court reasoned that an acquittal is not proof
that a defendant is innocent or that the jury rejected
certain facts. See United States v. Watts, supra, 155.
Rather, the court explained, an acquittal only indicates
the presence of a reasonable doubt as to the defendant’s
guilt. Id. Furthermore, the court in Watts specifically
held ‘‘that a jury’s verdict of [not guilty] does not prevent
the sentencing court from considering conduct underly-
ing the acquitted charge, so long as that conduct has
been proved by a preponderance of the evidence’’; id.,
157; and the court explained that the application of the
preponderance of the evidence standard at sentencing
‘‘generally satisfies due process’’ and does not violate
the double jeopardy clause. Id., 156; see also id., 154–55.
Since Watts, the United States Supreme Court has
twice had occasion to address a sentencing court’s dis-
cretion at sentencing. First, in Apprendi v. New Jersey,
supra, 530 U.S. 466, the court held that, ‘‘[o]ther than
the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved
beyond a reasonable doubt.’’ Id., 490. The court made
explicit, however, that ‘‘nothing in [the] history suggests
that it is impermissible for judges to exercise discre-
tion—taking into consideration various factors relating
both to offense and offender—in imposing a judgment
within the range prescribed by statute.’’ (Emphasis in
original.) Id., 481. The court in United States v. Booker,
supra, 543 U.S. 220, reaffirmed Apprendi and reiterated
that ‘‘[w]e have never doubted the authority of a judge
to exercise broad discretion in imposing a sentence
within a statutory range.’’ (Emphasis added.) Id., 233.
Thus, both Apprendi and Booker make clear that a
sentencing judge may consider a broad range of con-
duct, so long as the sentence falls within the statutory
range and the conduct does not serve as a basis to
enhance the sentence.
As we will explain in part II of this opinion, nearly
every federal court of appeals has held that considering
acquitted conduct at sentencing does not violate a crimi-
nal defendant’s constitutional rights, including the right
to trial by jury or due process, so long as the conduct
has been proven by a preponderance of the evidence
and the sentence imposed does not exceed the statutory
maximum for the conviction. See, e.g., United States
v. Culver, 598 F.3d 740, 752 (11th Cir.) (holding that
defendant’s argument that consideration of acquitted
conduct violated due process clause and his right to
trial by jury was ‘‘without merit’’), cert. denied, 562 U.S.
896, 131 S. Ct. 336, 178 L. Ed. 2d 147 (2010); United
States v. Grubbs, 585 F.3d 793, 799 (4th Cir. 2009)
(‘‘Booker did not change the sentencing court’s ability
to consider uncharged or even acquitted conduct during
sentencing’’), cert. denied, 559 U.S. 1022, 130 S. Ct. 1923,
176 L. Ed. 2d 392 (2010); United States v. White, 551
F.3d 381, 385 (6th Cir. 2008) (‘‘[s]o long as the defendant
receives a sentence at or below the statutory ceiling
set by the jury’s verdict, the district court does not
abridge the defendant’s right to a jury trial by looking to
other facts, including acquitted conduct’’), cert. denied,
556 U.S. 1215, 129 S. Ct. 2071, 173 L. Ed. 2d 1147 (2009).
We find particularly persuasive one such case from the
United States Court of Appeals for the Second Circuit.
See, e.g., Turner v. Frowein, 253 Conn. 312, 341, 752
A.2d 955 (2000) (‘‘[d]ecisions of the Second Circuit
Court of Appeals, although not binding on us, are partic-
ularly persuasive’’ when resolving issues of federal law).
In United States v. Sweig, 454 F.2d 181 (2nd Cir. 1972),
a jury found the defendant guilty of one count of perjury
but not guilty of the remaining counts. Id. During the
defendant’s sentencing proceeding, the judge indicated
that ‘‘his deliberations were influenced in part by [the
defendant’s] failure to cooperate with government offi-
cials in their investigation of influence peddling, and
by evidence at the trial, much of it admitted on counts
of which [the defendant] was acquitted, showing that
[the defendant] was part of ‘a picture of corruption of
a very profound kind . . . .’ ’’ Id., 182. The defendant
argued that the judge’s deliberations and resulting sen-
tence essentially punished him for crimes of which he
had been acquitted. Id., 182–83. The Second Circuit
held that the defendant’s ‘‘contentions [were] without
merit’’; id., 183; and that ‘‘the judge could properly refer
to the evidence introduced with respect to crimes of
which [the] defendant was acquitted’’ because ‘‘[a]cquit-
tal does not have the effect of conclusively establishing
the untruth of all the evidence introduced against the
defendant.’’ Id., 184.
More generally, and more than a decade before Watts
was decided, this court had occasion to consider, within
the federal constitutional rubric, the range of informa-
tion a trial court may rely on at sentencing. In State v.
Huey, supra, 199 Conn. 121, we emphasized the broad
discretion of judges at sentencing and noted that, ‘‘if a
sentence is within statutory limits it is not generally
subject to modification by a reviewing court.’’ Id., 126.
Although we did not specifically address the issue of
acquitted conduct in that case, we noted that, in exercis-
ing their broad discretion, sentencing judges have wide
latitude to consider matters that would not be admissi-
ble at trial. Id. Specifically, we held that, ‘‘[a]s a matter
of due process, information may be considered as a
basis for a sentence only if it has some minimal indicium
of reliability.’’ Id., 127. We relied on the United States
Supreme Court’s decision in Williams v. Oklahoma,
supra, 358 U.S. 584, as support for our conclusion that
the sentencing court may conduct a broad inquiry into
the ‘‘circumstances of the crime and [into] the convicted
person’s life and circumstance’’ and may consider ‘‘re-
sponsible unsworn or out-of-court information,’’ with-
out running afoul of the fourteenth amendment. State
v. Huey, supra, 127. Citing the decision of the United
States Court of Appeals for the District of Columbia
decision in United States v. Campbell, 684 F.2d 141,
154 (D.C. Cir. 1982), we emphasized that, ‘‘[a]s long as
the sentencing judge has a reasonable, persuasive basis
for relying on the information [that] he uses to fashion
his ultimate sentence, an appellate court should not
interfere with his discretion.’’ State v. Huey, supra, 127.
Significantly, we also cited United States v. Sweig,
supra, 454 F.2d 184, for the proposition that this discre-
tion extended to consideration of acquitted conduct.
See State v. Huey, supra, 126.
In Huey, in which the sentencing judge relied in part
on conduct that was outside the scope of the crime to
which the defendant had pleaded guilty, we declined to
limit the information a sentencing judge could consider
because ‘‘[t]o hold otherwise would be to adopt an
unrealistic view of both the plea bargaining and sentenc-
ing processes, a view that would only deter judges from
articulating their reasons for a particular sentence fully
and prevent correction when the sentencing judge
relied on information which was truly unreliable, inac-
curate or patently wrong. Trial judges ought not be
reprimanded for acknowledging on the record the
impact of information they have gained in the plea bar-
gaining or sentencing processes unless the use of such
information confounds reason and a just result. . . .
Accordingly, when cases of this nature are heard on
appeal, we should review the record to ensure that
there is a persuasive basis for the conclusion reached
by the sentencing court. . . . There is no simple for-
mula for determining what information considered by
a sentencing judge is sufficiently reliable to meet the
requirements of due process. The question must be
answered on a [case-by-case] basis.’’ (Citations omitted;
internal quotation marks omitted.) Id., 127–28.
In the present case, the sentencing court considered
the testimony and evidence presented by witnesses at
a trial over which it presided. It had sufficient opportu-
nity to observe and judge the credibility of such wit-
nesses, and their sworn testimony is exactly the kind
of minimally credible evidence that we anticipate sen-
tencing judges will rely on. In fact, the sentencing judge
specifically explained that he found that ‘‘[t]he evidence
was telling and the witnesses [were] credible.’’ Although
the sentencing judge did not explicitly reference the
quantum of evidence, his findings as to the sufficiency
of the evidence he relied on was implicit in his explana-
tion. Accordingly, we conclude that the sentencing
court did not violate the defendant’s right to trial by
jury under the sixth amendment, or the defendant’s
right to due process under the fourteenth amendment,
when it considered the conduct underlying the defen-
dant’s assault charge.6
The defendant, however, urges us to depart from our
holding in Huey and the United States Supreme Court’s
holding in Watts because, he asserts, neither case is
binding. He argues that Huey is not binding because,
in that case, we addressed only whether a sentencing
court may consider a defendant’s denial of allegations
and did not explicitly address whether a sentencing
court may consider acquitted conduct. Furthermore, he
argues that Apprendi and Booker confined the holding
in Watts to the context of double jeopardy violations.
We disagree.
Although Watts and Huey did not explicitly address
the constitutional provisions or the conduct at issue in
the present case, when viewed, in totality, with previous
United States Supreme Court case law and more recent
federal appellate case law, it is evident that the rationale
supporting Watts and Huey extends to a sentencing
court’s consideration of acquitted conduct, so long as
it meets the requisite standard. Watts also explicitly
stated that due process is generally satisfied when the
conduct has been established by a preponderance of
the evidence. United States v. Watts, supra, 519 U.S.
156. Furthermore, we find Huey instructive with respect
to our analysis in the present case, insofar as it created
a standard for the breadth of information that a judge
may consider during sentencing as a matter of due
process, namely, any information that has a ‘‘minimal
indicium of reliability.’’ State v. Huey, supra, 199 Conn.
127.
The defendant also asserts that, notwithstanding the
United States Supreme Court’s holding in Watts, we
should follow the principles articulated in Apprendi
regarding the importance of the respective roles of
juries and judges. Although we agree that Apprendi
articulates important principles regarding the distinct
roles of judges and juries, its holding centered on the
concern that sentencing judges would use acquitted
conduct to increase the penalty for a crime beyond the
prescribed statutory maximum. See Apprendi v. New
Jersey, supra, 530 U.S. 491–97. Because the sentence
imposed in the present case was within the statutory
ranges for the counts of conviction authorized by the
jury, our holding does not run afoul of the principles
articulated in Apprendi and Booker. Indeed, Connecti-
cut sentencing practices do not permit the sentencing
judge to depart from the range authorized by the jury’s
verdict. Our statutes clearly define the requisite sen-
tencing ranges for various crimes or enhancements.
See, e.g., General Statutes § 53-202k (mandating five
year enhancement for certain felonies committed with
firearm); General Statutes § 53a-28 (a) (‘‘every person
convicted of an offense shall be sentenced in accor-
dance with this title’’); General Statutes § 53a-35a (set-
ting forth sentencing ranges for felony convictions).
Within that prescribed range, judges then have broad
discretion to determine the sentence. See, e.g., State v.
Johnson, 316 Conn. 34, 40, 111 A.3d 447 (2015). There-
fore, when a sentencing court considers acquitted con-
duct, the jury’s role is not infringed on as long as the
sentence imposed does not exceed the statutory maxi-
mum. The jury is the sole fact finder, and its verdict
on statutory offenses establishes the requisite statutory
sentencing range within which the judge has broad dis-
cretion to sentence. See id.II
STATE CONSTITUTIONAL CLAIM
We next address the defendant’s claims that the sen-
tencing court’s consideration of acquitted conduct vio-
lated his state constitutional rights to due process and
to a trial by jury under article first, §§ 8 and 19, of the
Connecticut constitution. The defendant argues that,
when reviewed under the factors articulated in State
v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992),
our state constitution affords greater protection than
the federal constitution. The state counters that we have
previously concluded that consideration of acquitted
conduct does not violate the state constitution and that
the state constitutional protections of the rights to due
process and to a trial by jury are the same as those of
the corresponding federal rights.
As the state correctly points out, this court reviewed
a similar claim in State v. Pena, 301 Conn. 669, 22 A.3d
611 (2011). In Pena, the jury found the defendant guilty
of carrying a pistol without a permit and criminal pos-
session of a firearm but not guilty of murder and the
lesser included offense of manslaughter in the first
degree with a firearm. Id., 671–72. During the sentencing
proceeding, the trial court considered remarks made
by the victim’s family and other evidence related to the
murder charge of which the defendant was acquitted.
See id., 671, 678–79. On appeal, the defendant argued
that ‘‘the trial court’s reliance on this information deprived
him of his state constitutional rights to due process and
trial by jury.’’ Id., 682. Relying on Huey, we disagreed
with the defendant and applied the ‘‘minimal indicium
of reliability’’ standard articulated in Huey. (Internal
quotation marks omitted.) Id., 683. We concluded that
the evidence relied on by the trial judge at sentencing—
including the facts underlying the murder charge of
which the defendant was acquitted—satisfied this stan-
dard and that the judge’s reliance on the acquitted con-
duct did not run afoul of our state constitution. See id.Although we ultimately agree with our holding in
Pena, the defendant correctly notes that neither Pena
nor Huey properly analyzed a claim that our state con-
stitution affords greater protection than the federal con-
stitution in this area under the factors articulated in
State v. Geisler, supra, 222 Conn. 685. Instead, Pena
relied on Huey, which addressed only a federal constitu-
tional challenge to the defendant’s sentence. See State
v. Pena, supra, 301 Conn. 680–82. As such, although
Huey and Pena both indicate7 that the consideration
of acquitted conduct at sentencing does not offend the
federal constitution, that conclusion is not dispositive
of the defendant’s claim under our state constitution.
See, e.g., State v. Skok, 318 Conn. 699, 708, 122 A.3d
608 (2015) (‘‘federal constitution establishes a minimum
national standard for the exercise of individual rights
and does not inhibit state governments from affording higher
levels of protection for such rights’’ (internal quotation
marks omitted)).
Given the importance of the question, we find it necessary
to engage in a more robust consideration of this state
constitutional claim in the present case. ‘‘In determining
the contours of the protections provided by our state
constitution, we employ a multifactor approach that we
first adopted in Geisler. The factors that we consider
are (1) the text of the relevant constitutional provisions;
(2) related Connecticut precedents; (3) persuasive fed-
eral precedents; (4) persuasive precedents of other
state courts; (5) historical insights into the intent of
[the] constitutional [framers]; and (6) contemporary
understandings of applicable economic and sociologi-
cal norms [otherwise described as public policies].’’
(Internal quotation marks omitted.) Id.; see also State
v. Geisler, supra, 222 Conn. 685.
We begin with the first factor—the text of the relevant
constitutional provisions. The defendant argues that the
sentencing court violated his rights to due process and
to a trial by jury under article first, §§ 8 and 19, of
the Connecticut constitution. Article first, § 8, of the
Connecticut constitution provides in relevant part: ‘‘In
all criminal prosecutions, the accused shall have a right
. . . to be informed of the nature and cause of the
accusation; to be confronted by the witnesses against
him . . . and in all prosecutions by indictment or infor-
mation, to a speedy, public trial by an impartial jury.
No person shall be compelled to give evidence against
himself, nor be deprived of life, liberty or property with-
out due process of law . . . .’’ Section 19 of article
first provides: ‘‘The right of trial by jury shall remain
inviolate.’’ These provisions of our state constitution
are almost identical in substance to their federal coun-
terparts. In fact, we have previously concluded that the
‘‘the text of the due process . . . [clause] in article
first, § 8, of our state constitution . . . is not materially
different from the corresponding [provisions in] the
federal constitution.’’ (Citation omitted.) State v. Pur-
cell, 331 Conn. 318, 344–45, 203 A.3d 542 (2019).
Although article first, § 19, as amended, provides some
additional express rights beyond those provided by the
federal constitution; see State v. Jose A. B., 342 Conn.
489, 509–11, 270 A.3d 656 (2022) (discussing guarantee
for peremptory challenges of jurors under article first,
§ 19, of Connecticut constitution, as amended by article
four of amendments, that is not included in its federal
counterpart); those differences do not apply here.
Accordingly, under the first Geisler factor, the similarit-
ies of article first, §§ 8 and 19, of the Connecticut consti-
tution to the corresponding provisions in the federal
constitution support the state’s argument that our state
constitution does not provide any additional protection
beyond that of the federal constitution in this instance.
Notwithstanding the similarities, the defendant argues
that the term ‘‘inviolate’’ in article first, § 19, of our
state constitution is a strong term used to indicate an
intention to protect against ‘‘any attempts to substan-
tially impair a party’s right to have issues of fact decided
by [a] jury.’’ We agree that the language of the state
constitution is intentionally strong and reflects the great
importance of the jury right in Connecticut. The fact
remains, however, that the sentencing court’s conduct
did not impact the defendant’s right to have his guilt
determined by a jury. The defendant was afforded a
full and fair trial, pursuant to which the jury considered
the evidence and found him guilty of the charges for
which he was sentenced within the statutorily author-
ized ranges. Although the sentencing court considered
the facts underlying the acquitted charge, the sentence
ultimately imposed by the court did not exceed the
permissible statutory range for the crimes of which the
defendant was convicted.
The second Geisler factor instructs us to consider
related Connecticut precedent. As we explained in part
I of this opinion, in Pena and Huey, we concluded,
on similar records, that ‘‘[a] sentencing judge has very
broad discretion in imposing any sentence within the
statutory limits and in exercising that discretion he may
and should consider matters that would not be admissi-
ble at trial.’’ (Internal quotation marks omitted.) State
v. Pena, supra, 301 Conn. 680; accord State v. Huey,
supra, 199 Conn. 126. In Pena, we specifically concluded
that, although we do not encourage the practice of
commenting on acquitted conduct, it does not rise to
the level of a constitutional violation. See State v. Pena,
supra, 684. Similarly, in Huey, we determined that ‘‘[i]t
is a fundamental sentencing principle that a sentencing
judge may appropriately conduct an inquiry broad in
scope, and largely unlimited either as to the kind of
information he may consider or the source from which
it may come.’’ (Internal quotation marks omitted.) State
v. Huey, supra, 127. The defendant cites no Connecticut
authority, and we have found none, that stands for the
proposition that consideration of acquitted conduct at
sentencing amounts to a constitutional violation. This
is particularly true when, as here, the sentence was
within the permissible statutory range. Therefore, this
factor also supports the state’s position.
Persuasive federal precedent, the third Geisler factor,
similarly lends strong support to the state’s position.
As we briefly discussed in part I of this opinion, the
United States Supreme Court in Watts discussed the
wide latitude afforded to sentencing judges in its con-
clusion that consideration of acquitted conduct did not
raise double jeopardy concerns. See United States v.
Watts, supra, 519 U.S. 151–55. The wide latitude afforded
to sentencing judges predates Watts and has continued
even in the wake of Apprendi and Booker, with every
federal court of appeals8 that has addressed the issue
allowing trial courts to consider acquitted conduct at
sentencing. See, e.g., United States v. Gonzãlez, 857
F.3d 46, 58 (1st Cir. 2017) (‘‘a sentencing court may
consider relevant conduct that constitutes another
offense, even if the defendant has been acquitted of
that offense, so long as it can be proven by a preponder-
ance of the evidence’’); United States v. Daugerdas,
837 F.3d 212, 231 (2d Cir. 2016) (‘‘a district judge can
take into account acquitted conduct in determining a
sentence’’), cert. denied, U.S. , 138 S. Ct. 62, 199
L. Ed. 2d 20 (2017); United States v. Ciavarella, 716
F.3d 705, 735–36 (3d Cir. 2013) (‘‘a jury’s verdict of
[not guilty] does not prevent the sentencing court from
considering [acquitted] conduct . . . so long as that
conduct has been proved by a preponderance of the
evidence’’ (internal quotation marks omitted)), cert.
denied, 571 U.S. 1239, 134 S. Ct. 1491, 188 L. Ed. 2d 378(2014); United States v. Grubbs, supra, 585 F.3d 798–99
(‘‘[the defendant’s] argument is nullified by clear
[United States] Supreme Court and Fourth Circuit prec-
edent holding that a sentencing court may consider
uncharged and acquitted conduct in determining a sen-
tence, as long as that conduct is proven by a preponder-
ance of the evidence’’); United States v. Gaspar-Felipe,
4 F.4th 330, 343 n.11 (5th Cir. 2021) (‘‘[the defendant’s]
argument that the [c]onstitution bars considering
acquitted conduct during sentencing is foreclosed by
[United States] Supreme Court precedent’’), cert.
denied, U.S. , 142 S. Ct. 903, 211 L. Ed. 2d 608(2022); United States v. Wandahsega, 924 F.3d 868, 888
(6th Cir. 2019) (‘‘the [D]istrict [C]ourt’s consideration
of acquitted conduct in sentencing passes constitutional
muster . . . insofar as enhancements based on acquit-
ted conduct do not increase a sentence beyond the
maximum penalty provided by the United States Code’’
(internal quotation marks omitted)); United States v.
Rollerson, 7 F.4th 565, 570 n.1 (7th Cir.) (‘‘[t]he practice
of considering acquitted conduct at sentencing is con-
troversial but is clearly allowed if the conduct is proven
by a preponderance of the evidence’’), cert. denied,
U.S. , 142 S. Ct. 631, 211 L. Ed. 2d 384 (2021); United
States v. Chambers, 878 F.3d 616, 622 (8th Cir. 2017)
(‘‘[t]he [D]istrict [C]ourt may consider uncharged, dis-
missed, and even acquitted conduct at sentencing’’);
United States v. Mercado, 474 F.3d 654, 657 (9th Cir.
2007) (‘‘[w]e are . . . satisfied that the core principle
of Watts lives on and that the [D]istrict [C]ourt could
constitutionally consider the acquitted conduct’’), cert.
denied, 552 U.S. 1297, 128 S. Ct. 1736, 170 L. Ed. 2d 542(2008); United States v. Todd, 515 F.3d 1128, 1137 (10th
Cir. 2008) (‘‘[t]he [United States] Supreme Court and
this circuit have both expressly held that acquitted con-
duct can be considered for purposes of sentencing’’
(emphasis omitted)); United States v. Culver, supra,598 F.3d 752 (‘‘[i]t is [well settled] that a sentencing
court may consider conduct for which a defendant has
been acquitted if the government proves the conduct in
question by a preponderance of the evidence’’); United
States v. Norman, 926 F.3d 804, 811 (D.C. Cir. 2019)
(‘‘[t]his [c]ourt, and other courts of appeals, [has]
reached the conclusion that sentencing based on acquit-
ted conduct is constitutional’’), cert. denied, U.S.
, 140 S. Ct. 2555, 206 L. Ed. 2d 489 (2020).
We acknowledge, however, that, although the courts
of appeals allow the practice under federal law, many
federal courts of appeals have been reluctant to do so
and have expressed displeasure with the practice. See,
e.g., United States v. Bell, 808 F.3d 926, 928 (D.C. Cir.
2015) (Kavanaugh, J., concurring in the denial of rehear-
ing en banc) (‘‘[a]llowing judges to rely on acquitted or
uncharged conduct to impose higher sentences than
they otherwise would impose seems a dubious infringe-
ment of the rights to due process and to a jury trial’’);
see also, e.g., United States v. Norman, supra, 926 F.3d
811 (‘‘Justice [Antonin] Scalia wrote, in a dissent from
[the] denial of certiorari joined by Justices [Clarence]
Thomas and [Ruth Bader] Ginsburg, that [t]his has gone
on long enough, and that the [United States] Supreme
Court should take up the issue to put an end to the
unbroken string of cases disregarding the [s]ixth
[a]mendment—or to eliminate the [s]ixth [a]mendment
difficulty by acknowledging that all sentences below
the statutory maximum are substantively reasonable.
. . . The Supreme Court has not yet done what Justice
Scalia suggested. Therefore, we continue to recognize
that [w]hatever the merits of Justice Scalia’s argument,
it is not the law.’’ (Citation omitted; internal quotation
marks omitted.)). Notwithstanding this criticism, fed-
eral precedent overwhelmingly supports the state’s
position that a judge may constitutionally consider
acquitted conduct during sentencing.
The fourth Geisler factor directs us to consider the
precedent of other states. Sister state precedent is
divided into three primary categories.9 First, numerous
states permit sentencing courts to consider a wide range
of conduct, including acquitted conduct or facts not
established beyond a reasonable doubt, without run-
ning afoul of state or federal constitutional provisions.
See, e.g., People v. Towne, 44 Cal. 4th 63, 85–86, 186
P.3d 10, 78 Cal. Rptr. 3d 530 (2008) (‘‘[n]othing in the
applicable statute or rules suggests that a [sentencing]
court must ignore evidence related to the offense of
which the defendant was convicted, merely because
that evidence did not convince a jury that the defendant
was guilty beyond a reasonable doubt of related offenses’’);
People v. Jackson, 149 Ill. 2d 540, 548, 599 N.E.2d 926(1992) (‘‘outstanding indictments or other criminal con-
duct for which there has been no prosecution or convic-
tion may be considered in sentencing’’), cert. denied,
507 U.S. 973, 113 S. Ct. 1416, 122 L. Ed. 2d 786 (1993);
State v. Longo, 608 N.W.2d 471, 474–75 (Iowa 2000)
(‘‘There is no general prohibition against considering
other criminal activities by a defendant as factors that
bear on the sentence to be imposed. . . . We are con-
vinced that a sentencing judge is not required to deviate
from the judge’s own characterization of the nature of
a crime committed based on sworn testimony simply
because the jury has characterized the offense differ-
ently.’’); State v. Jaco, 156 S.W.3d 775, 780–81 (Mo.)
(‘‘[The] sentence was within the original, unenhanced
range of punishment . . . . Therefore, any facts that
would have tended to assess [the defendant’s] punish-
ment within this range were not required to be found
beyond a reasonable doubt by a jury.’’), cert. denied,
546 U.S. 819, 126 S. Ct. 350, 163 L. Ed. 2d 60 (2005);
State v. McCrary, 676 N.W.2d 116, 120 (S.D. 2004)
(‘‘[S]entencing courts may consider an extremely broad
range of evidence . . . . This consideration may
include inquiry into uncharged conduct or even conduct
[of which the defendant] was acquitted.’’ (Citation omit-
ted; internal quotation marks omitted.)).
Second, a minority of states completely prohibit the
consideration of acquitted conduct at sentencing. See,
e.g., State v. Koch, 107 Haw. 215, 225, 112 P.3d 69 (2005)
(sentencing court ‘‘did not have the discretion to con-
sider alleged conduct of which [the defendant] was
acquitted in sentencing him’’); People v. Beck, 504 Mich.
605, 629, 939 N.W.2d 213 (2019) (‘‘[W]e do not believe
existing United States Supreme Court jurisprudence
prevents us from holding that reliance on acquitted
conduct at sentencing is barred by the [f]ourteenth
[a]mendment. We hold that it is.’’), cert. denied,
U.S. , 140 S. Ct. 1243, 206 L. Ed. 2d 240 (2020).
Finally, other states prohibit consideration of acquitted
conduct when it results in an aggravated or enhanced
sentence. New Jersey is one example. In State v. Melvin,
248 N.J. 321, 258 A.3d 1075 (2021), the Supreme Court
of New Jersey considered claims under the federal and
New Jersey constitution. See id., 339. The court held
that principles of fundamental fairness underlying the
state constitutional right to due process prohibited trial
courts from subjecting a defendant to enhanced sen-
tencing for conduct of which the defendant was acquit-
ted. See id., 326, 347–49; see also State v. Marley, 321
N.C. 415, 425, 364 S.E.2d 133 (1988) (‘‘[t]o allow the
trial court to use at sentencing an essential element of
a greater offense as an aggravating factor, when the
presumption of innocence was not, at trial, overcome
as to this element, is fundamentally inconsistent with
the presumption of innocence itself’’).
Other state precedent is divided in its practices, and
this divide is further complicated by the variety of each
state’s sentencing schemes. As discussed in part I of
this opinion, Connecticut sentencing practices confine
sentencing judges to statutory ranges for each convic-
tion. Other states utilize guideline approaches or give
sentencing judges more latitude to increase sentences
based on aggravating factors or other subjective consid-
erations. Those jurisdictions raise constitutional con-
cerns that are not present here and, therefore, make it
difficult to glean guidance from their decisions. Accord-
ingly, we conclude that this factor is neutral.
The fifth Geisler factor instructs us to look to the
historical insights and intent of the framers regarding
the rights at issue.10 The right to trial by jury has
remained consistent from the enactment of the 1818
Connecticut constitution, which declared that ‘‘[t]he
right of trial by jury shall remain inviolate.’’ Conn. Const.
(1818), art. I, § 21.11 This court has long held that the
trial by jury described in the Connecticut constitution
is ‘‘the same in its essential features as the jury trial at
common law, which had been adopted by the [c]onstitu-
tion of the United States and by the constitutions of
other [s]tates.’’ State v. Gannon, 75 Conn. 206, 226, 52
A. 727 (1902). Even prior to 1818, in 1672, Connecticut
colonial laws called for ‘‘a special verdict [on] which the
court shall declare the law in accordance with English
practice, guarantee[d] to all persons tried for life or
banishment a jury of twelve whose verdict must be
unanimous . . . define[d] the duty of juries in accor-
dance with the settled doctrine of the common law [as]
. . . a jury of twelve . . . who shall find the matter of
fact . . . and [stated that] the judges shall declare the
sentence, or direct the jury to find according to the law.’’
(Emphasis omitted; internal quotation marks omitted.)
Id., 228. The respective roles of the jury and the judge
as finder of fact and arbiter of law have remained consis-
tent in this state over centuries. ‘‘[T]he jury trial provi-
sions in the [f]ederal and [s]tate [c]onstitutions reflect
a fundamental decision about the exercise of official
power—a reluctance to entrust plenary powers over
the life and liberty of the citizen to one judge or to a
group of judges.’’ (Internal quotation marks omitted.)
State v. Griffin, 251 Conn. 671, 739, 741 A.2d 913 (1999)
(Berdon, J., dissenting). The right to a trial by jury and
the right to have a jury find all necessary facts are
deeply rooted in our history. Equally deeply rooted,
however, is the role of the judge as the sole party to
impose a sentence. ‘‘[B]oth before and since the Ameri-
can colonies became a nation, courts in this country and
in England practiced a policy under which a sentencing
judge could exercise a wide discretion in the sources
and types of evidence used to assist him in determining
the kind and extent of punishment to be imposed within
limits fixed by law.’’ Williams v. New York, supra, 337
U.S. 246. In these instances, the scope of the sentencing
court’s authority is curtailed by the jury’s verdict. This
factor demonstrates that our state constitutional right
to trial by jury has developed in a similar manner to
its federal counterpart. Accordingly, there is nothing in
the historical insights or in the intent of the framers to
suggest that there is greater weight afforded to the right
to trial by jury under our state constitution than under
the federal constitution. Although the historical insight
strongly emphasizes the respective roles of judge and
jury, we see no infringement on those roles when the
judge is confined to sentencing within a range author-
ized by the jury’s verdict and limited by statute.
The sixth and final Geisler factor asks us to consider
contemporary norms and public policy. The defendant
argues that there are several public policy concerns at
issue in this appeal, namely, that allowing sentencing
judges to consider acquitted conduct undermines the
jury’s role and gives the prosecution a ‘‘second bite at
the apple’’ without affording the defendant the same
procedural safeguards as at trial. The defendant con-
tends that the combination of these two concerns and
the general concern that this acts as a form of ‘‘ ‘judge
nullification’ ’’ of the jury’s verdict undermines important
public policy regarding the jury’s important role as a
‘‘check on state power.’’ The state counters that the
sentencing court’s consideration of acquitted conduct
does not undermine the role of the jury because, ‘‘[i]f
the court considers conduct proven by a lesser standard
of proof than the jury applied, it does not find facts
contrary to any findings necessarily [inherent in] the
verdict.’’ The state further argues that discouraging sen-
tencing judges from considering as much information as
possible may limit the thoroughness of the sentencing
procedures and ‘‘frustrate the broad inquiry that sen-
tencing is supposed to entail . . . .’’
We agree with the defendant that the sanctity of the
role of the jury should never be infringed on. Although
the law largely supports the state’s position, there is a
modern push to prohibit the practice of considering
acquitted conduct during sentencing. See A.B.A., Stan-
dards for Criminal Justice: Sentencing (3d Ed. 1994)
standard 18-6.5 (a), p. 230 (‘‘[a] sentencing court should
impose a sanction appropriate to the offense of convic-
tion and should not consider other offenses . . . of
which the defendant was acquitted’’). Commentators
have expressed the concern that ‘‘the civic value of jury
service suffers’’ when judges are permitted to put aside
the product of a jury’s fact-finding, an event ‘‘likely to
engender consternation among the public.’’ J. Bilsbor-
row, Note, ‘‘Sentencing Acquitted Conduct to the Post-
Booker Dustbin,’’ 49 Wm. & Mary L. Rev. 289, 333 (2007).
‘‘To work effectively, it is important that society’s crimi-
nal process satisfy the appearance of justice,’’ in addi-
tion to producing just results. (Internal quotation marks
omitted.) Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555, 571–72, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980)
(plurality opinion). These contemporary public policy
concerns weigh in favor of the defendant’s arguments.
The six Geisler factors, in totality, lead us to the
conclusion that our state constitution does not prohibit
the consideration of acquitted conduct at sentencing
when the sentence is within the statutory range for the
convicted offenses and the information relied on has a
‘‘minimal indicium of reliability.’’ State v. Huey, supra,199 Conn. 127. In sum, the first, second, and third factors
weigh heavily in favor of our conclusion. The fourth
factor, regarding other state precedents, does not
strongly favor either the defendant’s or the state’s argu-
ments. The fifth factor helps us glean important princi-
ples from the origins of our constitution and favors the
state’s arguments that our state constitution grants the
same rights as the federal constitution. The sixth factor,
which demonstrates modern concerns about the prac-
tice of considering acquitted conduct, militates in favor
of the defendant’s arguments. On balance, however, the
factors in favor of the state’s arguments outweigh the
concerns embodied within the sixth factor. Here, the
defendant’s case was tried to the jury, the jury returned
its verdict, and the sentence imposed was in fact below
the maximum statutory sentence applicable to the
counts of conviction. Notwithstanding the comments
made by the sentencing judge, the jury’s verdict is what
determined the permissible ranges, and the defendant’s
sentence fell within those ranges.
III
SUPERVISORY AUTHORITY
The defendant next argues that, even if we conclude
that a trial court’s consideration of acquitted conduct
during sentencing does not amount to a constitutional
violation, we should exercise our supervisory authority
to impose a rule prohibiting the practice in order to
remedy a perceived injustice. The state argues that we
should follow our precedent in Pena and again decline
to exercise our supervisory authority, as the exercise of
that authority would frustrate the ability of sentencing
courts to consider a broad range of conduct in determin-
ing an appropriate sentence.
‘‘It is well settled that [a]ppellate courts possess an
inherent supervisory authority over the administration
of justice.’’ (Internal quotation marks omitted.) State v.
Rose, 305 Conn. 594, 607, 46 A.3d 146 (2012). ‘‘Under
our supervisory authority, we have adopted rules
intended to guide the lower courts in the administration
of justice in all aspects of the criminal process. . . .
The exercise of our supervisory powers is an extraordi-
nary remedy to be invoked only when circumstances
are such that the issue at hand, [although] not rising
to the level of a constitutional violation, is nonetheless
of utmost seriousness, not only for the integrity of a
particular trial but also for the perceived fairness of the
judicial system as a whole.’’ (Citation omitted; emphasis
omitted; internal quotation marks omitted.) State v.
Lockhart, 298 Conn. 537, 576, 4 A.3d 1176 (2010).
We previously declined to exercise our supervisory
authority to overrule Huey and to create a rule prohib-
iting consideration of acquitted conduct at sentencing
in Pena. See State v. Pena, supra, 301 Conn. 683–84.
We agreed with our previous analysis in Huey that it
is not the province of our appellate courts to interfere
with the discretion of sentencing judges, so long as they
have reasonable and persuasive bases for relying on
the information they choose. Id., 682; see also State v.
Huey, supra, 199 Conn. 127.
We continue to agree with that rationale. To limit the
information that sentencing judges may rely on does not
provide any benefit under our state sentencing system.
Under our system, sentencing judges are not required,
or even permitted, to make findings of fact relating to
aggravating factors, or other factors that may increase
or decrease a sentence outside the statutory range. See
General Statutes §§ 53a-28 and 53a-35a. Rather, our
penal code gives judges wide latitude within an estab-
lished statutory range for each of the offenses of which
the defendant has been convicted. See General Statutes
§§ 53a-28 and 53a-35a; see also, e.g., State v. Johnson,
supra, 316 Conn. 40. In determining the proper sentence
within that range, the judge has authority, under our
case law, to consider any evidence that has a ‘‘minimal
indicium of reliability.’’ State v. Huey, supra, 199 Conn.
127. So long as the evidence considered rises to the
requisite standard, the court’s consideration of it com-
ports with due process, and the sentence is within the
statutory range, we do not believe it is appropriate to
interfere with a trial court’s discretion in determining
a proper sentence. To do so would serve no beneficial
purpose and, instead, would encourage sentencing
judges to keep their thoughts and reasons for imposing
a particular sentence to themselves, rather than articu-
lating them on the record. This would, in turn, prevent
appellate courts from remedying those instances in
which a sentencing judge does indeed rely on informa-
tion that is unreliable, inaccurate, or patently wrong,
therefore falling short of a minimal indicium of reliabil-
ity. We do not wish to dissuade sentencing judges from
articulating a full and transparent basis for the sentence
on the record.
Notwithstanding our decision not to exercise our
supervisory authority, we emphasize that sentencing
judges should undertake every effort to refrain from
basing a sentence on facts that cast doubt, either
directly or indirectly, on any aspect of the jury’s verdict.
See State v. Pena, supra, 301 Conn. 684. This practice
undermines many of our foundational principles regard-
ing the critical role of the jury in our system of justice
and the trust we place in the jury’s verdict. Many courts
and scholars have expressed similar concerns about
the consideration of acquitted conduct at sentencing.
Although, as we explained, federal courts, bound by
decades of precedent, continue to utilize the practice,
many have expressed displeasure with it. See, e.g.,
United States v. Brown, 892 F.3d 385, 415 (D.C. Cir.
2018) (Kavanaugh, J., dissenting in part) (‘‘there are
good reasons to be concerned about the use of acquitted
conduct at sentencing, both as a matter of appearance
and as a matter of fairness’’); Id., 409 (Millett, J., concur-
ring) (‘‘lumping acquitted conduct in with those tradi-
tional factors and then using that acquitted conduct to
single a defendant out for distinctively severe punish-
ment—an above-[g]uidelines sentence—renders the
jury a sideshow’’ (emphasis omitted)); United States
v. Canania, 532 F.3d 764, 778 (8th Cir.) (Bright, J.,
concurring) (‘‘I wonder what the man on the street
might say about this practice of allowing a prosecutor
and judge to say that a jury verdict of ‘not guilty’ for
practical purposes may not mean a thing’’), cert. denied,
555 U.S. 1037, 129 S. Ct. 609, 172 L. Ed. 2d 466 (2008),
and cert. denied sub nom. Robinson v. United States,
555 U.S. 1116, 129 S. Ct. 938, 173 L. Ed. 2d 139 (2009).
Scholars and commentators harbor similar concerns
regarding the appearance and fairness of the practice.
See, e.g., B. Johnson, ‘‘The Puzzling Persistence of
Acquitted Conduct in Federal Sentencing, and What
Can Be Done About It,’’ 49 Suffolk U. L. Rev. 1, 25
(2016) (‘‘[t]he use of acquitted conduct has been charac-
terized as, among other things, ‘[Kafkaesque], repug-
nant, uniquely malevolent, and pernicious’ . . . ‘mak[ing]
no sense as a matter of law or logic,’ and . . . a ‘perver-
[sion] of our system of justice,’ as well as ‘bizarre’ and
‘reminiscent of Alice in Wonderland’ ’’ (footnotes omit-
ted)); E. Ngov, ‘‘Judicial Nullification of Juries: Use of
Acquitted Conduct at Sentencing,’’ 76 Tenn. L. Rev. 235,
242 (2009) (‘‘[c]onsideration of acquitted conduct by a
judge after a jury has already deliberated sends a mes-
sage that the work of the jury was unnecessary and, in
turn, threatens to undermine the role the jury serves
and advantages it provides over judicial fact-finding’’).
Although these concerns are valid, and weigh in favor
of great caution, we are not persuaded that they warrant
the extraordinary remedy contemplated by the exercise
of our supervisory authority.
In sum, we encourage sentencing judges to be thoughtful
regarding the information they utilize when sentencing
a defendant and mindful of the way the reasoning that
underlies the sentence is conveyed during sentencing
proceedings. We find no fault in judges who wish to
consider the full context of the offense of which the
defendant was convicted and, in fact, encourage the
practice. In doing so, however, it is neither necessary
nor appropriate for the judge to express or imply his or
her disagreement with the jury’s verdict. Such a practice
may harm public confidence in the fairness of our judi-
cial system and undermine the importance of the jury’s
role in fair adjudications. In this case, although we
cannot conclude that the sentencing judge’s declarative
statement that the victim ‘‘was shot in the back of both
legs by the defendant’’ was unconstitutional or illegal,
we believe that it was imprudent. Certainly, the sentenc-
ing judge could have explained that the sentence was
intended to reflect the fact that the defendant was
directly involved in a dangerous and violent robbery
that resulted in the shooting of the victim, with serious
and permanent consequences, but that is far different
from the judge’s affirmative declaration that the defen-
dant had committed the assault of which he was acquit-
ted. A measure of circumspection by the sentencing
judge would not only have resulted in a legal sentence,
but would have left no doubt that the sentence was
wholly in accord with the jury’s verdict and reflected
the seriousness of the crimes of which the defendant
was found guilty. As we have stated before, ‘‘allowing
a trial court to comment on and express disagreement
with a jury verdict during the sentencing of a defendant
may improperly call into question the jury’s verdict.
Indeed, it has been recognized that a judge’s comments
in disagreement with a jury verdict may undermine
public confidence in the jury system. See A.B.A., Stan-
dards for Criminal Justice: Sentencing [supra, standard
18-3.6, commentary, pp. 65–69].’’ State v. Pena, supra,301 Conn. 684.
CONCLUSION
The sentencing court’s consideration of conduct under-
lying charges of which the defendant was acquitted did
not violate his rights under the sixth and fourteenth
amendments to the United States constitution, or under
article first, §§ 8 and 19, of our state constitution. We
reach this conclusion because the underlying conduct
and evidence considered by the sentencing court had
a ‘‘minimal indicium of reliability’’ and because the sen-
tence imposed was within the permissible statutory
range for the convictions. Furthermore, we decline to
exercise our supervisory authority to prohibit consider-
ation of acquitted conduct at sentencing, as we believe
the negative ramifications of such a rule outweigh any
benefit. Nonetheless, we discourage sentencing courts
from expressing disbelief or disagreement with the
jury’s verdict and using that disbelief or disagreement
as a basis for crafting a sentence.
The trial court’s denial of the defendant’s motion to
correct an illegal sentence is affirmed.
In this opinion the other justices concurred.
1
The sentencing court also took judicial notice of a ten year sentence—
imposed for a separate conviction by a different court the day prior—and
ordered the sentences in the present case to run consecutively to that ten
year sentence.
2
The defendant did not raise a claim under article first, § 19, of the
Connecticut constitution in his operative motion to correct an illegal sen-
tence. The state, however, does not argue that the claim is unpreserved or
unreviewable. Given that the claim, regardless of its preservation, would
be reviewable under the principles set forth in State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn.
773, 781, 120 A.3d 1188 (2015), we address it on the merits.
3
The sixth amendment right to a trial by jury is made applicable to the
states through the due process clause of the fourteenth amendment to the
United States constitution. See, e.g., Duncan v. Louisiana, 391 U.S. 145,
148–49, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968).
4
We note that the United States Supreme Court is currently reviewing
five petitions for writs of certiorari on related questions surrounding the
constitutionality of a sentencing court’s consideration of conduct that a jury
did not find beyond a reasonable doubt, including acquitted conduct. See
United States v. Bullock, 35 F.4th 666 (8th Cir. 2022), petition for cert. filed
(U.S. October 14, 2022) (No. 22-5828); United States v. Karr, Docket No.
21-50219, 2022 WL 1499288 (5th Cir. May 12, 2022), petition for cert. filed
(U.S. August 15, 2022) (No. 22-5345); United States v. Shaw, Docket No.
18-50384, 2022 WL 636639 (9th Cir. March 4, 2022), petition for cert. filed
(U.S. August 8, 2022) (No. 22-118); United States v. Bravo, 26 F.4th 387 (7th
Cir. 2022), petition for cert. filed sub nom. Luczak v. United States (U.S.
June 21, 2022) (No. 21-8190); United States v. McClinton, 23 F.4th 732 (7th
Cir. 2022), petition for cert. filed (U.S. June 14, 2022) (No. 21-1557).
5
Section 3661 of title 18 of the United States Code codifies the ‘‘[long-
standing] principle that sentencing courts have broad discretion to consider
various kinds of information.’’ United States v. Watts, supra, 519 U.S. 151.
The current statute provides that ‘‘[n]o limitation shall be placed on the
information concerning the background, character, and conduct of a person
convicted of an offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sentence.’’ 18 U.S.C.
§ 3661 (2018).
6
The defendant does not claim that the information on which the trial
court relied to craft the sentence was false, inaccurate, or misleading. See,
e.g., United States v. Tucker, 404 U.S. 443, 447, 92 S. Ct. 589, 30 L. Ed. 2d
592 (1972) (recognizing that sentence cannot be founded on ‘‘misinformation
of constitutional magnitude’’); Townsend v. Burke, 334 U.S. 736, 741, 68 S.
Ct. 1252, 92 L. Ed. 1690 (1948) (sentence based on ‘‘materially false’’ informa-
tion is ‘‘constitutionally invalid’’); see also State v. Huey, supra, 199 Conn.
127 (recognizing that, ‘‘[a]s a matter of due process, information may be
considered as a basis for a sentence only if it has some minimal indicium
of reliability’’).
7
Although Huey did not address the precise question of the consideration
of acquitted conduct during sentencing, in discussing the broad range of
information a sentencing court may consider, it cited to Sweig in support
of the proposition that acquitted conduct was included in such a range. See
State v. Huey, supra, 199 Conn. 126.
8
The United States Court of Appeals for the Federal Circuit is the only
court of appeals that has not addressed the issue, as it does not have criminal
jurisdiction. See 28 U.S.C. § 1295 (2018).
9
New Hampshire is a unique jurisdiction that does not squarely fit into
any of the categories. In 1987, the New Hampshire Supreme Court prohibited
the consideration of acquitted conduct to justify enhanced sentencing. See
State v. Cote, 129 N.H. 358, 373, 376, 530 A.2d 775 (1987). However, the
same court, in 2008, concluded that the consideration of acquitted conduct
as the basis for restoring a suspended sentence was permissible. See State
v. Gibbs, 157 N.H. 538, 542, 953 A.2d 439 (2008). Vermont similarly diverges
from the categories and prohibits the practice only when the defendant does
not receive notice and an opportunity to be heard regarding the acquitted
conduct. See State v. Koons, 189 Vt. 285, 286, 20 A.3d 662 (2011); see also
id., 292 (‘‘the trial court’s reliance . . . on undisclosed acquitted conduct’’
was plain error (emphasis added)).
10
Our research reveals little, relevant historical insight regarding the right
to due process in this context. Additionally, neither party provided briefing
on the historical insights of article first, § 8, of the Connecticut constitution.
Therefore, we confine our discussion under the fifth factor to the historical
insights as they relate to the right to trial by jury under article first, § 19,
of our state constitution.
11
The right to trial by jury in the 1818 constitution was contained in article
first, § 21. The 1965 constitution retained the language of the right but
relocated it to article first, § 19, where it currently remains.