State v. Ovesen ( 2017 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. RONNIE OVESEN
(AC 37630)
Beach, Sheldon and Harper, Js.*
Submitted on briefs December 1, 2016—officially released April 11, 2017
(Appeal from Superior Court, judicial district of
Waterbury, Damiani, J. [judgment]; Fasano, J. [motion
to correct])
Stephan E. Seeger, assigned counsel, filed a brief for
the appellant (defendant).
Maureen Platt, state’s attorney, Catherine Brannelly
Austin, supervisory assistant state’s attorney, and Lisa
A. Riggione, senior assistant state’s attorney, filed a
brief for the appellee (state).
Opinion
BEACH, J. The defendant, Ronnie Ovesen, appeals
from the trial court’s judgment granting his motion to
correct an illegal sentence. The defendant had been
convicted of one count of sexual assault in the first
degree in violation of General Statutes (Rev. to 2008)
§ 53a-70 (a) (1)1 and one count of strangulation in the
second degree in violation of General Statutes § 53a-
64bb. On appeal, the defendant argues that, upon grant-
ing his motion and resentencing him, the court imposed
an illegal sentence. We reverse the judgment of the trial
court and remand the case with direction to reinstate
the defendant’s original sentence.
In September, 2009, the defendant pleaded guilty pur-
suant to the Alford doctrine2 to one count of sexual
assault in the first degree and one count of strangulation
in the second degree. The defendant was sentenced on
the first count to twenty years incarceration, suspended
after eleven and one-half years, with ten years proba-
tion, and on the second count to one year of incarcera-
tion to run concurrently, for a total effective sentence
of twenty years incarceration, suspended after eleven
and one-half years, with ten years probation. Approxi-
mately four years later, the defendant filed a motion to
correct an illegal sentence, alleging that because his
sentence included a period of probation, rather than a
period of special parole, it violated our Supreme Court’s
holding in State v. Victor O., 301 Conn. 163, 193–94, 20
A.3d 669 (Victor O. I), cert. denied, U.S. , 132 S.
Ct. 583, 181 L. Ed. 2d 429 (2011), and was unlawful
under § 53a-70. The state conceded before the trial court
that the defendant’s original sentence was illegal, and
the court, Fasano, J., vacated the defendant’s original
sentence and imposed a new total effective sentence
of eleven and one-half years incarceration followed by
eight and one-half years of special parole. The defen-
dant appealed, claiming that the new sentence was ille-
gal, as well.
At the time of the defendant’s resentencing, both the
parties and the court interpreted our Supreme Court’s
holding in Victor O. I to mean that a person convicted
of sexual assault under § 53a-70 must be sentenced
to a period of imprisonment and special parole. Our
Supreme Court has since clarified that Victor O. I
should not be interpreted in this manner. State v. Victor
O., 320 Conn. 239, 247, 128 A.3d 940 (2016) (Victor O.
II) (‘‘[t]o the extent that anything we may have said [in
Victor O. I] 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’’); see id., 247–48 n.9. Instead, the court in
Victor O. I ‘‘intended only to explain that probation
was prohibited and that special parole was the only
form of supervised release that could be imposed’’; Vic-
tor O. II, supra, 248 n.9; in sentencing a defendant
convicted of a class A felony. Id., 246. Victor O. II held
that § 53a-70 does not require a court to impose any
period of special parole. Id., 242, 258. Because the defen-
dant in the present case was convicted of a class B
felony, there is no such restriction on the imposition of
probation. Accordingly, the original sentence of twenty
years incarceration, suspended after eleven and one-
half years, with ten years of probation to follow, did
not violate § 53a-70, and the sentence therefore was
not illegal.3
The judgment is reversed and the case is remanded
with direction to vacate the defendant’s second sen-
tence and to reinstate his original sentence.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
General Statutes § 53a-70 was amended by No. 15-211, § 16, of the 2015
Public Acts. The events underlying the defendant’s conviction occurred in
2008. Accordingly, unless otherwise indicated, all references to § 53a-70 in
this opinion are to the 2008 revision of the statute.
2
North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
3
Although this construction does not appear to have been advanced in
the trial court, we understand that the parties and the court relied on a
reasonable, but ultimately mistaken, interpretation of Victor O. I. In its brief,
the state advanced the argument, which we now adopt, and the defendant
had the opportunity to respond. Although the error was not preserved, we
nonetheless reach the issue pursuant to our supervisory authority because,
in light of our Supreme Court’s decision in Victor O. II, there functionally
has been an intervening change in the law. See Blumberg Associates World-
wide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123,159, 84
A.3d 840 (2014).