State v. Williams-Bey , 167 Conn. App. 744 ( 2016 )

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STATE OF CONNECTICUT v. TAUREN
WILLIAMS-BEY
(AC 37430)
Lavine, Beach and Alvord, Js.
Argued May 26—officially released August 23, 2016
(Appeal from Superior Court, judicial district of
Hartford, Clifford, J. [judgment]; Alexander, J. [motion
to correct illegal sentence].)
Heather Clark, assigned counsel, for the appellant
(defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, Vicki Melchiorre, senior assistant state’s attor-
ney, and Melissa E. Patterson, assistant state’s attor-
neys, for the appellee (state).
Opinion
LAVINE, J. In recent years, the United States and
Connecticut Supreme Courts have made major changes
in the jurisprudence relating to juvenile sentencing. The
law now requires that juvenile offenders facing life with-
out parole or its functional equivalent are entitled to
individual consideration that takes into account the
mitigating factors of their youth. This case concerns
the important question of where such consideration
must be given for juvenile offenders who were sen-
tenced prior to the recent developments in the law.
Must it be in the context of a resentencing proceeding,
as the defendant claims? Or may it be in the setting of
a parole hearing, as the state asserts? We conclude, for
the reasons that follow, that a parole hearing provides
the class of juveniles under consideration with a consti-
tutionally adequate, pragmatic, and fair opportunity to
gain consideration of the mitigating factors of their
youth.
The defendant, Tauren Williams-Bey, appeals from
the trial court’s dismissal of his motion to correct an
illegal sentence. The defendant claims that the court
erred by concluding that it did not have jurisdiction
over his motion after determining that his sentence did
not violate the eighth amendment to the United States
constitution and article first, §§ 8 and 9, of the constitu-
tion of Connecticut. We conclude that the trial court
improperly determined that it lacked jurisdiction to con-
sider the defendant’s motion, but properly concluded
that the defendant’s federal and state constitutional
rights have not been violated. The defendant’s rights
have not been violated because, as will be discussed,
he will be entitled to have the mitigating factors of his
youth considered at a parole hearing pursuant to a
recently enacted Connecticut statute and a recently
decided United States Supreme Court case. We affirm
the conclusion of the trial court as to the defendant’s
constitutional claims, albeit on alternative grounds. See,
e.g., State v. Brown, 242 Conn. 389, 395, 699 A.2d 943
(1997). The form of the judgment is improper and we
remand the case with direction to render judgment
denying the defendant’s motion to correct an illegal
sentence. See, e.g., State v. Gemmell, 155 Conn. App.
789, 790, 110 A.3d 1234, cert. denied, 316 Conn. 913,
111 A.3d 886 (2015).
The following facts and procedural history are rele-
vant to this appeal. On December 20, 1997, the defen-
dant and two friends jumped out of a van and shot at
the victim, killing him. At the time, the defendant was
sixteen years old. The state charged the defendant with
murder as an accessory, in violation of General Statutes
(Rev. to 1997) § 53a-54a and General Statutes § 53a-8,
and with conspiracy to commit murder, in violation of
General Statutes (Rev. to 1997) § 53a-54a and General
Statutes § 53a-48. On January 4, 2000, the defendant
pleaded guilty to murder as an accessory in violation
of General Statutes (Rev. to 1997) § 53a-54a.1 The court
accepted the parties’ waiver of the presentence investi-
gation report and continued the case for sentencing.
On February 25, 2000, the court, Clifford, J., sentenced
the defendant to thirty-five years in prison. At the time
of sentencing, the crime of which the defendant was
convicted made him ineligible for parole. General Stat-
utes (Rev. to 1997) § 54-125a (b) (1). If he were to serve
the full sentence, the defendant would not be released
until he is fifty-two years old.
The defendant filed a motion to correct an illegal
sentence on December 16, 2013, asserting that his sen-
tence violated the eighth amendment as explicated in
Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L.
Ed. 2d 825 (2010), and Miller v. Alabama, U.S. ,
132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). The defendant
filed an amended motion to correct on April 2, 2014.
In the amended motion, the defendant claimed that his
sentence violated the eighth amendment because ‘‘the
sentence and the manner in which it is imposed fails to
provide for a meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation
. . . .’’ The court, Alexander, J., heard oral argument
on the motion on April 2, 2014, and issued a written
memorandum of decision on July 29, 2014. At the time,
neither State v. Riley, 315 Conn. 637, 110 A.3d 1205
(2015), cert. denied, U.S. , 136 S. Ct. 1361, 194
L. Ed. 2d 376 (2016), nor Casiano v. Commissioner of
Correction, 317 Conn. 52, 115 A.3d 1031 (2015), cert.
denied sub nom. Semple v. Casiano, U.S. , 136
S. Ct. 1364, 194 L. Ed. 2d 376 (2016), Connecticut’s
leading cases on juvenile sentencing, had been decided.
Riley and Casiano applied Miller retroactively to dis-
cretionary life without parole sentences and term of
years sentences that are the functional equivalent of
life sentences.2 The trial court concluded that because
the defendant was not serving a mandatory life without
parole sentence, Graham and Miller were inapplicable.
It dismissed the motion, concluding that ‘‘the defen-
dant’s case does not fall within the narrow confines of
Graham or Miller, and the relief sought exceeds the
jurisdiction of this court.’’
We conclude that the defendant’s sentence does not
violate the eighth amendment as interpreted by Miller
v. Alabama, supra, 132 S. Ct. 2469. Furthermore, we
conclude that even if the sentence violated the eighth
amendment pursuant to Miller, in light of the United
States Supreme Court’s decision in Montgomery v. Lou-
isiana, U.S. , 136 S. Ct. 718, 736, 193 L. Ed.
2d 599 (2016), which decided that conferring parole
eligibility on a juvenile offender is a constitutionally
adequate remedy for a sentence that violates Miller’s
teachings upon retroactive application, and the fact that
the defendant will be parole eligible under § 1 of No.
15-84 of the 2015 Public Acts (Public Act 15-84), codified
at General Statutes § 54-125a (f), the defendant and
those similarly situated have been provided with a con-
stitutionally adequate remedy. In reaching this conclu-
sion we address (1) the recent changes in the law
regarding juvenile sentencing, (2) the trial court’s juris-
diction over the motion to correct, (3) whether, assum-
ing the defendant’s thirty-five year without parole
sentence violated the constitutional principles defined
in Miller, his eligibility for parole under § 54-125a (f),
rather than resentencing, is a constitutionally adequate
remedy under the eighth amendment to the United
States constitution; and (4) whether parole eligibility,
rather than resentencing, is a constitutionally adequate
remedy under the constitution of Connecticut. Due to
the somewhat complex nature of the issues presented,
a detailed analysis is required.
I
LAW REGARDING JUVENILE SENTENCING
We first discuss the law regarding juvenile sentenc-
ing, as the law in this rapidly evolving area has changed
since the defendant filed his motion to correct. The
eighth amendment of the United States constitution
provides: ‘‘Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punish-
ments inflicted.’’ This provision is applicable to the
states through the due process clause of the fourteenth
amendment. See Furman v. Georgia, 408 U.S. 238, 239–
40, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972). In Miller,
the United States Supreme Court held that sentencing
schemes imposing mandatory life without parole sen-
tences on juveniles convicted of homicide offenses vio-
late the eighth amendment. Miller v. Alabama, supra,
132 S. Ct. 2469. In Graham v. Florida, supra, 560 U.S.
74, the court had determined that imposing mandatory
sentences of life imprisonment without the possibility
of parole on juvenile offenders convicted of nonhomi-
cide crimes likewise constitutes cruel and unusual pun-
ishment.3 Specifically, Miller requires that prior to
sentencing juveniles to life without parole, a judicial
authority must ‘‘take into account how children are
different [from adults], and how those differences coun-
sel against irrevocably sentencing them to a lifetime in
prison.’’ Miller v. Alabama, supra, 2469. Thus, juvenile
offenders facing life without the possibility of parole
are entitled to an individualized sentencing that consid-
ers the mitigating factors of their youth.
Our Supreme Court has determined that ‘‘the holding
in Miller implicates not only mandatory sentencing
schemes, but also discretionary sentencing schemes
that permit a life sentence without parole for a juvenile
offender but do not mandate consideration of Miller’s
mitigating factors.’’ Casiano v. Commissioner of Cor-
rection, supra, 317 Conn. 72. Thus, in Connecticut,
Miller applies to discretionary sentences and term of
years sentences that are functionally equivalent to life
without parole. Our Supreme Court has addressed what
constitutes a functional life without parole sentence.
In State v. Riley, supra, 315 Conn. 641, our Supreme
Court concluded that an aggregate sentence of 100 years
without parole imposed on a juvenile offender violates
Miller, and remanded the case for resentencing with
consideration of the factors identified in Miller.4 Our
Supreme Court has concluded that Miller applies in
both direct and collateral review sentencing appeals.
See id. (direct appeal); Casiano v. Commissioner of
Correction, supra, 54–55 (habeas appeal). The defen-
dant in Casiano, whose case was on collateral review,
was sentenced to fifty years without parole. In reaching
its conclusion that a sentence of fifty years without
parole violates Miller, the court rejected the ‘‘notion
that, in order for a sentence to be deemed life imprison-
ment, it must continue until the literal end of one’s
life.’’ (Internal quotation marks omitted.) Casiano v.
Commissioner of Correction, supra, 73, 75. The court
remanded the case for resentencing.
Riley and Casiano also dealt with claims brought
under Graham v. Florida, supra, 560 U.S. 48. As our
Supreme Court has explained: ‘‘Graham precludes the
[judicial authority] from determining at the outset that a
juvenile nonhomicide offender is beyond rehabilitation,
[and] thus requir[es] that such offenders be afforded
a meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation if sentenced
to life imprisonment.’’ State v. Riley, supra, 315 Conn.
661. Because Graham specifically applied to nonhomi-
cide offenses, our Supreme Court in Riley declined to
consider that defendant’s Graham claim that he was
entitled to a ‘‘second look.’’ Id., 663.
In Riley, which involved a direct appeal, our Supreme
Court concluded that the Graham claim was not ripe,
and that legislation regarding the ‘‘ ‘means and mecha-
nisms for compliance’ with the dictates of Graham’’
was pending in our legislature. Id., 662. In Casiano,
our Supreme Court declined to consider the habeas
petitioner’s Graham claim and deferred to the legisla-
ture, stating that it had ‘‘every reason to expect that
[its] decisions in Riley and [Casiano] will prompt our
legislature to renew earlier efforts to address the impli-
cations of the [United States] Supreme Court’s deci-
sions in Graham and Miller.’’ (Emphasis added.)
Casiano v. Commissioner of Correction, supra, 317
Conn. 79.
There have been two extremely significant changes
in the law regarding juvenile sentencing at the state
and federal level since our Supreme Court decided Riley
and Casiano: our legislature’s enactment of Public Act
15-84 and the United States Supreme Court’s decision
in Montgomery v. Louisiana, supra, 136 S. Ct. 718. On
October 1, 2015, Public Act 15-84, codified in part at
§§ 54-91g and 54-125a (f), which was entitled ‘‘An Act
Concerning Lengthy Sentences for Crimes Committed
by a Child or Youth And the Sentencing of a Child or
Youth Convicted of Certain Felony Offenses,’’ became
effective. This public act was our legislature’s direct
response to Miller, Graham, Riley, and Casiano. See,
e.g., 58 S. Proc., Pt. 8, 2015 Sess., p. 2644, remarks of
Senator John A. Kissel. It provides parole eligibility for
juveniles sentenced to greater than ten years incarcera-
tion prior to Miller and Graham,5 and also provides
prospective sentencing procedures that bring Connecti-
cut into compliance with the requirements of Graham
and Miller going forward.6 Under § 54-125a (f), a juve-
nile offender serving a sentence of greater than ten
years incarceration on or after October 1, 2015, will be
parole eligible. If the sentence is fifty years incarcera-
tion or less, the juvenile becomes parole eligible after
serving 60 percent of his or her sentence, or twelve
years, whichever is greater. If the sentence is greater
than fifty years, the juvenile offender becomes parole
eligible after serving thirty years. The statute also
requires the parole board to consider whether ‘‘such
person has demonstrated substantial rehabilitation
since the date such crime or crimes were committed
considering such person’s character, background and
history, as demonstrated by factors, including, but not
limited to . . . the age and circumstances of such per-
son as of the date of the commission of the crime or
crimes, whether such person has demonstrated
remorse and increased maturity since the date of the
commission of the crime or crimes . . . obstacles that
such person may have faced as a child or youth in
the adult correctional system, the opportunities for
rehabilitation in the adult correctional system and the
overall degree of such person’s rehabilitation consider-
ing the nature and circumstances of the crime or
crimes.’’ (Emphasis added.) General Statutes § 54-125a
(f) (4) (C). These criteria substantially encompass the
mitigating factors of youth referenced in Miller and
Riley. See footnote 4 of this opinion. Furthermore, the
statute ensures that indigent juvenile offenders will
have the right to counsel in obtaining, in the terminology
of Graham, a ‘‘meaningful opportunity to obtain
release.’’ Graham v. Florida, supra, 560 U.S. 75. Overall,
the legislature not only gave Miller retroactive applica-
tion, but also effectively eliminated life without the
possibility of parole, even as a discretionary sentence,
for juvenile offenders in Connecticut.
Also of great significance is the fact that the United
States Supreme Court has substantially refined its hold-
ing in Miller since our Supreme Court decided Riley
and Casiano. In Montgomery v. Louisiana, supra, 136
S. Ct. 718, decided on January 25, 2016, the United
States Supreme Court held that Miller applies retroac-
tively upon collateral review to all juvenile offenders
serving mandatory life without parole sentences
because Miller announced a substantive rule of consti-
tutional law.7 Id., 734. The court also recognized that the
substantive rule in Miller had procedural components
regarding the factors that the judicial authority must
consider. It stated that ‘‘Miller requires [the judicial
authority] to consider a juvenile offender’s youth and
attendant characteristics before determining that life
without parole is a proportionate sentence.’’ Id. The
court noted that ‘‘[t]he foundation stone for Miller’s
analysis was [the] Court’s line of precedent holding
certain punishments disproportionate when applied to
juveniles.’’ (Internal quotation marks omitted.) Id., 732.
The court reiterated that because of children’s
decreased culpability and greater ability to reform,
‘‘Miller recognized that the distinctive attributes of
youth diminish the penological justifications for impos-
ing life without parole on juvenile offenders.’’ (Internal
quotation marks omitted.) Id., 733. ‘‘Miller, then, did
more than require [the judicial authority] to consider
a juvenile offender’s youth before imposing life without
parole; it established that the penological justifications
for life without parole collapse in light of the distinctive
attributes of youth.’’ (Internal quotation marks omit-
ted.) Id., 734.
The United States Supreme Court, however, also rec-
ognized in Montgomery the practical limitations in rem-
edying sentences that violated Miller upon its
retroactive application. Juvenile offenders whose sen-
tences violate Miller upon retroactive application did
not have the opportunity to demonstrate the mitigating
factors of youth at the time of sentencing. The court
emphasized that this violation of Miller could be reme-
died by affording those juvenile offenders parole eligi-
bility, thus providing, in the context of Graham, a
meaningful ‘‘opportunity for release . . . .’’ Id., 736.
The court also emphasized that ‘‘[g]iving Miller retroac-
tive effect . . . does not require States to relitigate sen-
tences, let alone convictions, in every case where a
juvenile offender received mandatory life without
parole. A State may remedy a Miller violation by per-
mitting juvenile homicide offenders to be considered
for parole, rather than by resentencing them. See, e.g.,
Wyo. Stat. Ann. § 6-10-301 (c) (2013) (juvenile homicide
offenders eligible for parole after [twenty-five] years).
Allowing those offenders to be considered for parole
ensures that juveniles whose crimes reflected only tran-
sient immaturity—and who have since matured—will
not be forced to serve a disproportionate sentence in
violation of the Eighth Amendment.
‘‘Extending parole eligibility to juvenile offenders
does not impose an onerous burden on the States, nor
does it disturb the finality of state convictions. Those
prisoners who have shown an inability to reform will
continue to serve life sentences. The opportunity for
release will be afforded to those who demonstrate the
truth of Miller’s central intuition—that children who
commit even heinous crimes are capable of change.’’
(Emphasis added.) Montgomery v. Louisiana, supra,
136 S. Ct. 736. It is within this legal framework that we
address the defendant’s specific claims.
II
JURISDICTION
We first address the issue of whether the trial court
had jurisdiction over the defendant’s motion to correct
an illegal sentence. The trial court dismissed the defen-
dant’s motion to correct for lack of jurisdiction. The
defendant appealed, claiming (1) that the trial court
erred in concluding that it lacked jurisdiction to con-
sider his Miller claim; (2) that the trial court erred in
concluding that it lacked jurisdiction to consider his
Graham claim;8 and (3) that the court erroneously con-
cluded that the defendant’s sentence did not violate the
eighth amendment and the constitution of Connecticut.
We agree that the trial court erred in concluding that
it lacked jurisdiction.
‘‘Subject matter jurisdiction involves the authority of
the court to adjudicate the type of controversy pre-
sented by the action before it. . . . [A] court lacks dis-
cretion to consider the merits of a case over which it is
without jurisdiction . . . .’’ (Internal quotation marks
omitted.) Ajadi v. Commissioner of Correction, 280
Conn. 514, 533, 911 A.2d 712 (2006). ‘‘A determination
of whether the trial court has jurisdiction to consider
a motion to correct an illegal sentence filed pursuant
to Practice Book § 43-22 presents a question of law,
and, therefore, our review is plenary.’’ State v. Hender-
son, 130 Conn. App. 435, 443, 24 A.3d 35 (2011), appeal
dismissed, 308 Conn. 702, 66 A.3d 847 (2013) (certifica-
tion improvidently granted).
Practice Book § 43-22 provides: ‘‘The judicial author-
ity 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.’’ ‘‘An illegal sentence is essentially
one which either exceeds the relevant statutory maxi-
mum limits, violates a defendant’s right against double
jeopardy, is ambiguous, or is inherently contradictory.
. . . Sentences imposed in an illegal manner have been
defined as being within the relevant statutory limits but
. . . imposed in a way which violates the defendant’s
right . . . to be addressed personally at sentencing and
to speak in mitigation of punishment . . . or his right
to be sentenced by a judge relying on accurate informa-
tion or considerations solely in the record, or his right
that the government keep its plea agreement promises
. . . .’’ State v. Logan, 160 Conn. App. 282, 287, 125
A.3d 581 (2015), cert. denied, 321 Conn. 906, 135 A.3d
279 (2016).
The trial court concluded that it lacked jurisdiction
because, at the time, Miller and Graham did not clearly
apply to lengthy term of years sentences, and ‘‘the relief
sought exceeds the jurisdiction of this court.’’ In
reviewing the defendant’s pleadings, however, the
motion challenged the manner in which the sentence
was imposed, namely, that the court did not consider
the Miller factors during sentencing and whether the
defendant was entitled to a later meaningful opportu-
nity for release. Because the motion to correct chal-
lenged the manner in which the sentence was imposed,
the defendant’s claim was properly raised by a motion
to correct pursuant to Practice Book § 43-22. See State
v. Bozelko, 154 Conn. App. 750, 758–59, 108 A.3d 262
(2015) (allegations of procedural violations in sentenc-
ing properly raised in motion to correct pursuant to
Practice Book § 43-22). The court’s conclusion that it
could not provide the defendant a remedy did not impli-
cate the court’s authority to determine whether the
sentence had been imposed in an illegal manner. It is
clear from the trial court’s memorandum of decision,
however, that the court, prior to dismissing the motion,
considered the merits of the defendant’s Miller and
Graham claims, and concluded that the defendant’s
sentence was not illegal.9 In parts III and IV of this
opinion, we address why the trial court properly con-
cluded that the defendant’s sentence was not illegal,
albeit for a different reason than the trial court. ‘‘[An
appellate court] can sustain a right decision although
it may have been placed on a wrong ground.’’ (Internal
quotation marks omitted.) LaBow v. LaBow, 69 Conn.
App. 760, 761 n.2, 796 A.2d 592, cert. denied, 261 Conn.
903, 802 A.2d 853 (2002). Accordingly, we conclude
that the trial court did not lack jurisdiction over the
defendant’s motion to correct an illegal sentence and
that the proper disposition was for the court to deny,
rather than to dismiss, the defendant’s motion to
correct.
III
FEDERAL CONSTITUTIONAL CLAIM
We next address the defendant’s claim that his sen-
tence of thirty-five years imprisonment violates the
eighth amendment of the United States constitution
because it was imposed without consideration of the
factors listed in Miller v. Alabama, supra, 132 S. Ct.
2455. We note that, pursuant to § 54-125a (f), which the
legislature enacted after the defendant filed the present
appeal, the defendant will be parole eligible after serv-
ing 60 percent of his sentence, which is twenty-one
years.10 Thus, the actual issue before this court is
whether parole eligibility is a constitutionally adequate
remedy if the imposition of the defendant’s thirty-five
year sentence without parole required the procedures
set forth in Miller .11 The defendant asserts that, notwith-
standing that he will be parole eligible under § 54-125a
(f), his case must be remanded for resentencing with
consideration of the Miller factors as our Supreme
Court ordered in Riley and Casiano. He asserts that
parole eligibility is a constitutionally inadequate remedy
because (1) the language in Montgomery that parole
eligibility is constitutionally adequate to remedy a
Miller violation is dicta, and (2) Montgomery is at odds
with our own Supreme Court’s holdings in Riley and
Casiano and our legislature’s intent in enacting Public
Act 15-84.12 We conclude that, for juvenile offenders
who were entitled to be, but were not, sentenced with
consideration of the mitigating factors of youth as
required by Miller, § 54-125a (f) offers a constitutionally
adequate remedy under the eighth amendment to those
who qualify for parole under its provisions. Our review
of the defendant’s constitutional claims is plenary. See
State v. Long, 301 Conn. 216, 236, 19 A.3d 1242, cert.
denied, U.S. , 132 S. Ct. 827, 181 L. Ed. 2d 535
(2011).
A
We first address the defendant’s claim that the United
States Supreme Court’s statement that parole eligibility
will remedy a Miller violation is dicta, and, regardless,
is at odds with our Supreme Court’s rationale regarding
Miller as set forth in State v. Riley, supra, 315 Conn. 637,
and Casiano v. Commissioner of Correction, supra, 317
Conn. 52. We are not persuaded.
Black’s Law Dictionary (9th Ed. 2009) defines ‘‘obiter
dictum’’ as ‘‘[a] judicial comment made while delivering
a judicial opinion, but one that is unnecessary to the
decision in the case and therefore not precedential
. . . .’’ See also Remax Right Choice v. Aryeh, 100
Conn. App. 373, 378, 918 A.2d 976 (2007) (statements
by court that are not germane to holding are dicta and
not binding precedent). Dicta of the United States
Supreme Court, however, is persuasive authority. See
United States v. Dorcely, 454 F.3d 366, 375 (D.C. Cir.)
(‘‘carefully considered language of the [United States]
Supreme Court, even if technically dictum, generally
must be treated as authoritative’’ [internal quotation
marks omitted]), cert. denied, 549 U.S. 1055, 127 S. Ct.
691, 166 L. Ed. 2d 518 (2006). This is especially so in
this case, in which we consider a federal constitutional
claim. See State v. Kimbro, 197 Conn. 219, 235, 496 A.2d
498 (1985) (‘‘we recognize, as we must, the authority of
the United States Supreme Court to act as the final
arbiter of controversies arising under the United States
constitution’’), overruled in part on other grounds by
State v. Barton, 219 Conn. 529, 544, 594 A.2d 917 (1991).
It is true that the Supreme Court granted certiorari
in Montgomery to determine only whether the court
had jurisdiction over the defendant’s claim and whether
Miller applied retroactively. Montgomery v. Louisiana,
supra, 136 S. Ct. 725, 727. The court, though, had to
have recognized that Miller’s retroactive application
would potentially affect thousands of cases across sev-
eral states and that the logical extension of its holding
would require state legislatures and courts to fashion
a constitutionally adequate remedy for sentences that
violated Miller. It thus is illogical to categorize Mont-
gomery’s conclusion that Miller applies retroactively
as the holding of the court, but its pronouncement of
a constitutionally adequate remedy in light of Miller’s
retroactive application as not being germane to that
holding, and, thus, mere dicta. We do not believe that the
United States Supreme Court would so glibly identify
a constitutionally adequate remedy under the eighth
amendment. Moreover, as noted, the court in Montgom-
ery stated unequivocally that ‘‘[a] State may remedy a
Miller violation by permitting juvenile homicide offend-
ers to be considered for parole, rather than by resen-
tencing them.’’ Montgomery v. Louisiana, supra, 736.
The court could hardly have been clearer. We conclude
that parole eligibility is an adequate remedy for senten-
ces that violated Miller as applied retroactively.
B
Nevertheless, the defendant suggests that this court
cannot follow Montgomery regarding parole eligibility
as a constitutionally adequate remedy for a Miller viola-
tion because, in doing so, we would implicitly be over-
ruling our own Supreme Court. The defendant argues
that because Riley and Casiano treated the claims
raised under Miller and Graham as distinct claims, we
are required to reject Montgomery to the extent that it
concludes that providing a ‘‘meaningful opportunity to
obtain release’’ under Graham, in this case parole eligi-
bility, will remedy a Miller violation. He thus asserts
that he is constitutionally entitled to be resentenced
like the defendants in Riley and Casiano. We find this
argument to be convoluted and reject it.
Although our Supreme Court remanded Riley and
Casiano for resentencing pursuant to Miller, at the time
it did so, Montgomery had not yet been decided. In
other words, Montgomery significantly changed the
legal landscape under which Riley and Casiano were
decided. In Riley and Casiano, our Supreme Court did
not have the opportunity to consider parole eligibility
as a remedy pursuant to the eighth amendment for
sentences already imposed that violated Miller. Nothing
in Riley or Casiano remotely suggests, however, that
in light of the subsequent passage of § 54-125a (f) and
the United States Supreme Court’s decision in Mont-
gomery, parole eligibility is not a constitutionally ade-
quate remedy for Connecticut juvenile offenders whose
sentences may have violated Miller. It is noteworthy
that our Supreme Court declined to extend Miller to
apply to sentences of less than fifty years and stated
that it had ‘‘every reason to expect that [its] decisions
in Riley and [Casiano] will prompt our legislature to
renew earlier efforts to address the implications of the
Supreme Court’s decisions in Graham and Miller.’’13
(Emphasis added.) Casiano v. Commissioner of Cor-
rection, supra, 317 Conn. 79. Our legislature has now
implemented such a remedy. Our conclusion that parole
eligibility provides a constitutionally adequate remedy
under the eighth amendment to sentences that may
have violated Miller does not disturb or contradict the
holdings in Riley or Casiano.14 Riley and Casiano make
clear that juvenile offenders whose sentences violated
Miller are entitled to an individualized consideration
of the mitigating factors of youth and their effect on a
juvenile’s criminal behavior. The United States Supreme
Court in Montgomery clarified that this individualized
consideration can occur at a parole hearing, and § 54-
125a (f) clearly provides this opportunity.15 The United
States Supreme Court is the ultimate authority on the
requirements of the federal constitution, and has
emphasized that parole eligibility is a constitutionally
adequate remedy for sentences that violate Miller in
light of that case’s retroactive application.16
IV
STATE CONSTITUTIONAL CLAIM
The defendant also contends that this court should
hold that, even if parole eligibility is adequate under
the federal constitution, it does not provide an adequate
remedy under the state constitution. The defendant
argues that, under the Connecticut constitution, the
only remedy for sentences imposed in violation of
Miller is resentencing.
The following legal principles are relevant to this
claim. ‘‘It is well established that federal constitutional
law 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.)
State v. Ross, 230 Conn. 183, 247, 646 A.2d 1318 (1994),
cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed.
2d 1095 (1995). In several cases, our Supreme Court has
concluded that ‘‘the state constitution provides broader
protection of individual rights than does the federal
constitution.’’ (Internal quotation marks omitted.) Id.,
248. ‘‘It is by now well established that the constitution
of Connecticut prohibits cruel and unusual punish-
ments under the auspices of the dual due process provi-
sions contained in article first, §§ 8 and 9. Those due
process protections take as their hallmark principles
of fundamental fairness rooted in our state’s unique
common law, statutory, and constitutional traditions.
. . . Although neither provision of the state constitu-
tion expressly references cruel or unusual punishments,
it is settled constitutional doctrine that both of our
due process clauses prohibit governmental infliction of
cruel and unusual punishments.’’ (Citations omitted;
footnote omitted.) State v. Santiago, 318 Conn. 1, 17–18,
112 A.3d 1 (2015). We must determine whether, under
these sections of the state constitution, parole eligibility
under § 54-125a (f) is a constitutionally adequate rem-
edy for sentences that were imposed in violation of
Miller. We conclude that it is.
‘‘In order to construe the contours of the state consti-
tution and reach reasoned and principled results, the
following tools of analysis should be considered to the
extent applicable: (1) the textual approach . . . (2)
holdings and dicta of [our Supreme Court], and the
Appellate Court . . . (3) federal precedent . . . (4)
sister state decisions or sibling approach . . . (5) the
historical approach, including the historical constitu-
tional setting and the debates of the framers . . . and
(6) economic/sociological considerations.’’ (Citations
omitted; emphasis omitted.) State v. Geisler, 222 Conn.
672, 685, 610 A.2d 1225 (1992).
In regard to the first Geisler factor, the textual
approach is neutral. Article first, §§ 8 and 9, of the
Connecticut constitution do not contain any language
specifically applying to juveniles.
As to the second Geisler factor, we have already
addressed the relevant Connecticut precedents on juve-
nile sentencing, namely, Riley, Casiano, Taylor G., and
Logan. See part I of this opinion. As noted, Riley and
Casiano expanded the holdings of Graham and Miller
under Connecticut law to apply to discretionary life
sentences and de facto life sentences. That our Supreme
Court has expanded upon Miller in previous cases does
not provide, in and of itself, a principled reason for us
to further expand the requirements of that case under
the state constitution in the present case.17 Our Supreme
Court has had no occasion to consider the remedy of
parole eligibility because § 54-125a (f) had not yet been
enacted. As we have noted, we consider it significant
that our Supreme Court in Casiano stated that it
expected our legislature to enact an appropriate remedy
to respond to the requirements of Graham, Miller,
Riley, and Casiano. The legislature has since imple-
mented a remedy. Thus, we believe that our Supreme
Court’s precedent weighs against expanding the state
constitution to require resentencing. Requiring resen-
tencing under the state constitution, even though parole
eligibility is adequate under the federal constitution,
would seem to undermine the very legislative response
that our Supreme Court contemplated in Casiano.
We next address the third Geisler factor, federal prec-
edent. The defendant asserts that federal precedent sup-
ports his claim and cites to United States v. Pete, 819
F.3d 1121, 1126, 1133–34 (9th Cir. 2016), in which the
United States Court of Appeals for the Ninth Circuit,
after Montgomery, remanded the case to the District
Court for a second resentencing because the District
Court had abused its discretion in declining to appoint
an expert to aid the defendant in presenting mitigating
evidence at his first resentencing after Miller. The
defendant was serving a mandatory life without parole
sentence pursuant to federal statute for a murder he
committed in 2002 at the age of sixteen. Id., 1124, 1126.
The Ninth Circuit concluded that the refusal to appoint
an expert was an abuse of discretion, vacated the sen-
tence, and remanded the case for resentencing. Id.,
1133–34. There is no reference in Pete to the remedy
of parole eligibility because ‘‘[t]he Sentencing Reform
Act of 1984 abolished all forms of federal parole for
offenses committed after November 1, 1987.’’ Rich v.
Maranville, 369 F.3d 83, 85 n.1 (2d. Cir.) cert. denied
sub nom. Rich v. Hatin, 543 U.S. 913, 125 S. Ct. 233,
160 L. Ed. 2d 193 (2004). Pete therefore is not persuasive
authority upon which this court, in light of the defen-
dant’s parole eligibility, should expand Miller and Gra-
ham under the constitution of Connecticut to require
resentencing for juvenile offenders in the defendant’s
circumstances.18
In regard to decisions from sister states, the trend,
though not definitive, appears to be that in states that
have enacted a statute providing parole eligibility for
juveniles whose life without parole and functional
equivalent sentences were imposed without consider-
ation of Miller, courts have concluded that parole eligi-
bility is constitutionally adequate to remedy a Miller
violation.
For example, the California Supreme Court recently
held, in a direct appeal, that the claims of juvenile
offenders whose mandatory de facto life sentences vio-
late Miller are moot because those juvenile offenders
are now parole eligible under a recently enacted statute.
People v. Franklin, 63 Cal. 4th 261, 370 P.3d 1053, 202
Cal. Rptr. 3d 496 (2016). In Franklin, the defendant
was convicted of murder as a juvenile and was serving
a mandatory fifty year to life sentence. Id., 268. After the
defendant was sentenced but before the Montgomery
decision, the California legislature enacted a statute
conferring parole on juvenile offenders and explicitly
recognized that the purpose of the legislation was ‘‘to
bring juvenile sentencing into conformity with Graham
[and] Miller . . . .’’ Id., 277. Under this statute, the
defendant in Franklin is entitled to a parole hearing
after serving twenty-five years in prison. Id. The court
stated that ‘‘[the defendant] is now serving a life sen-
tence that includes a meaningful opportunity for release
during his 25th year of incarceration. Such a sentence
is neither [life without parole] nor its functional equiva-
lent. Because [the defendant] is not serving [a life with-
out parole] sentence or its functional equivalent, no
Miller claim arises here. The Legislature’s enactment
of [the statute] has rendered moot [the defendant’s]
challenge to his original sentence under Miller.’’19
(Emphasis added.) Id., 279–80. The remedy under § 54-
125a (f) is similar to the remedy provided by the Califor-
nia statute.20 We find the California Supreme Court’s
analysis persuasive in our consideration of the present
case.21 The defendant in the present case will be eligible
for parole at approximately the age of thirty-nine. After
the enactment of § 54-125a (f), the defendant is not
serving a life without parole sentence or its func-
tional equivalent.
The defendant in his supplemental brief to this court
asserts that sister state precedent supports his position
that parole eligibility is constitutionally inadequate as
a remedy for a Miller violation. He cites to State v.
Zarate, Indictment No. 09-02-0062, 2016 WL 1079462,
*1 (N.J. App. Div. March 21, 2016), in which the juvenile
offender was sentenced in 2009 to a ‘‘life sentence car-
rying a mandatory parole ineligibility period of 63.75
years’’ pursuant to New Jersey’s ‘‘No Early Release Act
. . . .’’ The defendant in that case would not be eligible
for parole until 2069, at which time he would be seventy-
eight years and eight months old. State v. Zarate, supra,
2016 WL 1079462, *2. The court determined that a man-
datory parole ineligibility period of 63.75 years is a de
facto life sentence and remanded the case to the trial
court to reconsider the defendant’s sentence. State v.
Zarate, supra, 2016 WL 1079462, *15.
Zarate is not persuasive authority that parole eligibil-
ity, as constituted under § 54-125a (f), is not a constitu-
tionally adequate remedy and that resentencing of the
defendant in the present case is required. First, the
parole ineligibility period of 63.75 years exceeds what
our legislature in General Statutes § 53a-35b has defined
as a life sentence (sixty years), and what our Supreme
Court concluded in Casiano was a de facto life sentence
for juvenile offenders (fifty years). Section 54-125a (f)
provides a maximum parole ineligibility period of thirty
years for a juvenile offender. Thus, assuming a juvenile
offender was sentenced just before the age of eighteen
to a term of years sentence exceeding fifty years, that
juvenile offender would be parole eligible, at the latest,
when he or she is approximately forty-eight years of
age. This is far different from Zarate, in which the
defendant was sentenced pursuant to a pre-Miller state
statute under which he would not be parole eligible
until he was the age of approximately seventy-nine. Cf.
State v. Tyson, Indictment No. 85-06-2616, 2016 WL
483527, *2 (N.J. App. Div. February 9, 2016) (sentence
of life with parole eligibility after thirty years on juvenile
offender does not violate eighth amendment). Section
54-125a (f) was enacted in direct response to the
requirements of Graham, Miller, Riley, and Casiano,
and requires that a juvenile offender serve, at most,
thirty years without parole eligibility.
The defendant is correct that, after Montgomery,
some courts have remanded cases for resentencing.22
This is especially true in jurisdictions that do not have
parole or have limited parole eligibility for juvenile
offenders sentenced prior to Miller. See Atwell v. State,
Docket No. SC14-193, 2016 WL 3010795, *2–3 (Fla. May
26, 2016) (remanding for resentencing because juvenile
defendant would not be parole eligible pursuant to pre-
Miller statute until 2130 and ‘‘[r]ather than offer[ing]
parole as a means of complying with the principles . . .
[in Miller and Graham], the Florida Legislature chose
instead to enact a wholly new and distinct sentencing
framework for juvenile offenders, offering term-of-
years sentencing options for trial courts and providing
for subsequent judicial review of lengthy sentences’’
[emphasis added]).23 We are unpersuaded, however,
that such cases support the proposition that remanding
for resentencing is constitutionally required even after
a state legislature has enacted a statute specifically to
offer parole eligibility to defendants whose sentences
now would be held to violate Miller.
The fifth Geisler factor, the historical approach, in
theory, arguably weighs against the defendant. The
state, quoting State v. Jose C., Superior Court, judicial
district of New Haven, Docket No. CR-6421185 (March
21, 1996) (16 Conn. L. Rptr. 419, 425), aff’d sub nom.
State v. Angel C., 245 Conn. 93, 715 A.2d 652 (1998),
points out that ‘‘[a]t the time of the adoption of its 1818
constitution, Connecticut followed the common law
and treated fourteen and fifteen year olds as adults
when charged with a felony offense. It was not until
1921 that Connecticut established by statute a juvenile
justice system.’’ (Internal quotation marks omitted.)
This historical consideration, however, offers no insight
into the specific question of whether the state constitu-
tion mandates the resentencing of juvenile offenders
whose sentences violate Miller upon retroactive appli-
cation.
The sixth Geisler factor involves consideration of the
contemporary understandings of applicable economic
and sociological norms. In regard to sociological con-
siderations, the laws of Connecticut have changed in
several areas throughout our state’s history to provide
special protections to juveniles. Section 54-125a (f) spe-
cifically confers special protection on juveniles, as it
applies only to those who were under the age of eigh-
teen at the time they committed their offenses. This
factor does not support the defendant’s assertion that
the remedy the statute provides is not constitutionally
adequate; it was specifically enacted by the legislature
to respond to Miller and Graham by providing
increased parole eligibility to juvenile offenders.
Because of the unique circumstances of this case,
we also note the practical challenges that would be
inherent in requiring resentencing in these circum-
stances. Section 54-91g provides an extensive list of
factors that sentencing courts must consider post-
Miller when a juvenile offender is convicted of a class
A or B felony. This section mandates consideration of
‘‘the defendant’s age at the time of the offense, the
hallmark features of adolescence, and any scientific
and psychological evidence showing the differences
between a child’s brain development and an adult’s
brain development . . . .’’ General Statutes § 54-91g
(a) (1). Furthermore, the statute ensures that the sen-
tencing court will have this information before it prior
to sentencing, as the statute prohibits the waiver of any
presentence investigation or report. General Statutes
§ 54-91g (b).
In the present case, as a practical matter, it would
be exceedingly difficult for a sentencing court to retro-
actively make the determinations required by § 54-91g.
The defendant waived the presentence investigation
and there was no consideration of the Miller factors,
as Miller would not be decided for another twelve years.
In light of our legislature enacting § 54-125a (f), we have
significant concerns as to whether trial courts are the
proper forum in which to provide the defendant and
others in his position with a ‘‘meaningful opportunity
to obtain release . . . .’’ State v. Riley, supra, 315 Conn.
661. Although courts in some instances can consider
postsentencing conduct during resentencing; Pepper v.
United States, 562 U.S. 476, 491–92, 131 S. Ct. 1229, 179
L. Ed. 2d 196 (2011); ‘‘[u]nder Miller . . . the inquiry
is whether the inmate was seen to be incorrigible when
he was sentenced—not whether he has proven corrigi-
ble and so can safely be paroled today.’’ Montgomery
v. Louisiana, supra, 136 S. Ct. 744 (Scalia, J., dis-
senting). For example, in the present case, a resentenc-
ing court would be called on to determine, without the
benefit of a presentence investigation conducted at the
time of the defendant’s conviction, what the defendant’s
character was sixteen years ago when he was sen-
tenced. Without such information, the court would
likely need to principally rely upon the defendant’s sub-
sequent rehabilitation or lack thereof since his sentenc-
ing. This situation would arise in other cases where
juvenile offenders were sentenced several years or
decades prior to Miller. Resentencing in such cases
would be cumbersome and would in reality be more
akin to a parole hearing.24 We note that the trial court
recognized at oral argument on the defendant’s motion
that the defendant had presented documentation dem-
onstrating his efforts at rehabilitation. Whether the
defendant has sufficiently rehabilitated himself to safely
rejoin society, however, is precisely the determination
that the parole board is statutorily designated to make.
Moreover, a new sentencing proceeding would impose
emotional burdens on victims, who may have struggled
to cope with tragic losses caused by a defendant’s
crimes.
As the United States Supreme Court emphasized in
Montgomery, the key focus in remedying retrospective
Miller violations is providing juvenile offenders a mean-
ingful opportunity for release in which they will be able
to demonstrate the mitigating factors of youth and their
greater ability for rehabilitation. See id., 736 (majority).
In this state, juvenile offenders sentenced to greater
than ten years incarceration will have a meaningful
opportunity for release in a parole hearing during which
the parole board will be able to consider the mitigating
factors of youth. Our state legislature has enacted, in
careful consideration of the evolving legal landscape,
a constitutionally adequate remedy for sentences that
were imposed in violation of Miller.25 We conclude that,
for those juvenile defendants whose sentences violated
Miller and who are, or will be, eligible for parole under
§ 54-125a (f), resentencing is not required under our
state constitution.
The form of the judgment is improper, the judgment
is reversed and the case is remanded with direction
to render judgment denying the defendant’s motion to
correct an illegal sentence.
In this opinion the other judges concurred.
1
The state subsequently dropped the charge of conspiracy to commit
murder.
2
We address Riley, Casiano, and the changes in the law regarding juvenile
sentencing more fully in part I of this opinion. The parties filed supplemental
briefs addressing the effect of the recent changes in the law on the outcome
of this case.
3
When we refer to a Miller claim, we mean the requirement that a sentenc-
ing court consider the defendant’s ‘‘chronological age and its hallmark fea-
tures’’ as a mitigating factor prior to sentencing a juvenile offender to life
without parole or its functional equivalent. State v. Riley, supra, 315 Conn.
651–52. When we refer to a Graham claim we mean a claim that a juvenile
offender serving a life sentence or its functional equivalent is entitled to
‘‘some meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.’’ Graham v. Florida, supra, 560 U.S. 75.
4
Our Supreme Court stated that ‘‘Miller logically indicates that, if a sen-
tencing scheme permits the imposition of a punishment on a juvenile homi-
cide offender, the trial court must consider the offender’s ‘chronological
age and its hallmark features’ as mitigating against such a severe sentence.
Miller v. Alabama, supra, 132 S. Ct. 2468. As the court in Miller explained,
those features include: ‘immaturity, impetuosity, and failure to appreciate
risks and consequences’; the offender’s ‘family and home environment’ and
the offender’s inability to extricate himself from that environment; ‘the
circumstances of the homicide offense, including the extent of [the offend-
er’s] participation in the conduct and the way familial and peer pressures
may have affected him’; the offender’s ‘inability to deal with police officers
or prosecutors (including on a plea agreement) or his incapacity to assist
his own attorneys’; and the ‘possibility of rehabilitation . . . .’ ’’ (Emphasis
in original.) State v. Riley, supra, 315 Conn. 658.
5
Section 1 of Public Act 15-84, codified in part at § 54-125a (f), provides
in relevant part: ‘‘(f) (1) Notwithstanding the provisions of subsections (a)
to (e), inclusive, of this section, a person convicted of one or more crimes
committed while such person was under eighteen years of age, who is
incarcerated on or after October 1, 2015, and who received a definite sen-
tence or total effective sentence of more than ten years for such crime or
crimes prior to, on or after October 1, 2015, may be allowed to go at large
on parole in the discretion of the panel of the Board of Pardons and Paroles
for the institution in which such person is confined, provided (A) if such
person is serving a sentence of fifty years or less, such person shall be
eligible for parole after serving sixty per cent of the sentence or twelve
years, whichever is greater, or (B) if such person is serving a sentence of
more than fifty years, such person shall be eligible for parole after serving
thirty years. Nothing in this subsection shall limit a person’s eligibility for
parole release under the provisions of subsections (a) to (e), inclusive, of
this section if such person would be eligible for parole release at an earlier
date under any of such provisions.
(2) The board shall apply the parole eligibility rules of this subsection
only with respect to the sentence for a crime or crimes committed while a
person was under eighteen years of age. . . .
(3) Whenever a person becomes eligible for parole release pursuant to
this subsection, the board shall hold a hearing to determine such person’s
suitability for parole release. At least twelve months prior to such hearing,
the board shall notify the office of Chief Public Defender, the appropriate
state’s attorney, the Victim Services Unit within the Department of Correc-
tion, the Office of the Victim Advocate and the Office of Victim Services
within the Judicial Department of such person’s eligibility for parole release
pursuant to this subsection. The office of Chief Public Defender shall assign
counsel for such person pursuant to section 51-296 if such person is indigent.
At any hearing to determine such person’s suitability for parole release
pursuant to this subsection, the board shall permit (A) such person to make
a statement on such person’s behalf, (B) counsel for such person and the
state’s attorney to submit reports and other documents, and (C) any victim
of the crime or crimes to make a statement pursuant to section 54-126a.
The board may request testimony from mental health professionals or other
relevant witnesses, and reports from the Commissioner of Correction or
other persons, as the board may require. The board shall use validated
risk assessment and needs assessment tools and its risk-based structured
decision making and release criteria established pursuant to subsection (d)
of section 54-124a in making a determination pursuant to this subsection.
(4) After such hearing, the board may allow such person to go at large
on parole with respect to any portion of a sentence that was based on a
crime or crimes committed while such person was under eighteen years of
age if the board finds that such parole release would be consistent with the
factors set forth in subdivisions (1) to (4), inclusive, of subsection (c) of
section 54-300 and if it appears, from all available information, including,
but not limited to, any reports from the Commissioner of Correction, that
(A) there is a reasonable probability that such person will live and remain
at liberty without violating the law, (B) the benefits to such person and
society that would result from such person’s release to community supervi-
sion substantially outweigh the benefits to such person and society that
would result from such person’s continued incarceration, and (C) such
person has demonstrated substantial rehabilitation since the date such
crime or crimes were committed considering such person’s character,
background and history, as demonstrated by factors, including, but not
limited to, such person’s correctional record, the age and circumstances
of such person as of the date of the commission of the crime or crimes,
whether such person has demonstrated remorse and increased maturity
since the date of the commission of the crime or crimes, such person’s
contributions to the welfare of other persons through service, such person’s
efforts to overcome substance abuse, addiction, trauma, lack of education
or obstacles that such person may have faced as a child or youth in the
adult correctional system, the opportunities for rehabilitation in the adult
correctional system and the overall degree of such person’s rehabilitation
considering the nature and circumstances of the crime or crimes.
(5) After such hearing, the board shall articulate for the record its decision
and the reasons for its decision. If the board determines that continued
confinement is necessary, the board may reassess such person’s suitability
for a new parole hearing at a later date to be determined at the discretion
of the board, but not earlier than two years after the date of its decision.
(6) The decision of the board under this subsection shall not be subject
to appeal.’’ (Emphasis added.)
6
Section 2 of Public Act 15-84, codified at § 54-91g, provides: ‘‘(a) If the
case of a child, as defined in section 46b-120 of the general statutes, is
transferred to the regular criminal docket of the Superior Court pursuant
to section 46b-127 of the general statutes, as amended by this act, and the
child is convicted of a class A or B felony pursuant to such transfer, at the
time of sentencing, the court shall:
(1) Consider, in addition to any other information relevant to sentencing,
the defendant’s age at the time of the offense, the hallmark features of
adolescence, and any scientific and psychological evidence showing the
differences between a child’s brain development and an adult’s brain devel-
opment; and
(2) Consider, if the court proposes to sentence the child to a lengthy
sentence under which it is likely that the child will die while incarcerated,
how the scientific and psychological evidence described in subdivision (1)
of this subsection counsels against such a sentence.
(b) Notwithstanding the provisions of section 54-91a of the general stat-
utes, no presentence investigation or report may be waived with respect to
a child convicted of a class A or B felony. Any presentence report prepared
with respect to a child convicted of a class A or B felony shall address the
factors set forth in subparagraphs (A) to (D), inclusive, of subdivision (1)
of subsection (a) of this section.
(c) Whenever a child is sentenced pursuant to subsection (a) of this
section, the court shall indicate the maximum period of incarceration that
may apply to the child and whether the child may be eligible to apply for
release on parole pursuant to subdivision (1) of subsection (f) of section
54-125a of the general statutes, as amended by this act.
(d) The Court Support Services Division of the Judicial Branch shall
compile reference materials relating to adolescent psychological and brain
development to assist courts in sentencing children pursuant to this section.’’
7
In the aftermath of Miller, state and federal courts have struggled with
whether Miller applied retroactively upon collateral review, and divided
several ways. Under federal law regarding the retroactivity of constitutional
rules upon collateral review, a rule applies retroactively if it is a new substan-
tive rule, or, if it is a new procedural rule, it is a ‘‘watershed rule of criminal
procedure.’’ Casiano v. Commissioner of Correction, supra, 317 Conn. 62.
A mere new procedural rule does not apply retroactively. See id., 62–63.
Some courts have concluded that Miller announced a substantive rule and
thus applied retroactively; see., e.g., Diatchenko v. District Attorney, 466
Mass. 655, 666, 1 N.E.3d 270 (2013); our Supreme Court determined that
Miller announced a new watershed rule of criminal procedure, and thus
applied retroactively; Casiano v. Commissioner of Correction, supra, 69;
and other courts determined that Miller merely announced a procedural
rule that did not apply retroactively; see, e.g., In re Morgan, 713 F.3d 1365,
1368 (11th Cir. 2013).
8
In light of the legislature’s enactment of Public Act 15-84 and the United
States Supreme Court’s decision in Montgomery, the defendant amended
his appeal by withdrawing his Graham claim.
9
In fact, the defendant states in his appellate brief that the court
‘‘impliedly’’ denied his motion to correct an illegal sentence.
10
The defendant suggests that Miller is automatically implicated because
he was exposed to a sentence of life without parole and the court did not
consider the Miller factors prior to sentencing him. See footnote 4 of this
opinion. Going forward, courts certainly must comply with Miller through
consideration of the requirements listed in § 54-91g in sentencing juveniles
convicted of class A and B felonies. ‘‘However, there is no authority, nor
is there any principled analysis, that specifically supports the defendant’s
theory that the defendant’s sentence should be examined in light of hypothet-
ical sentences that could have been imposed but which were not imposed.’’
State v. Holley, Superior Court, judicial district of Middlesex, Docket No.
CR-08-185982 (May 18, 2016). The defendant received a sentence of thirty-
five years; the fact that he could have received a life sentence but did not
has no bearing on our analysis of whether the sentence actually imposed
violates Miller retrospectively.
11
The defendant claims that Casiano, which held that a sentence of fifty
years without parole violates the constitutional principles outlined in Miller,
supports his contention that his sentence of thirty-five years without parole
violated Miller. In Casiano, our Supreme Court stated that it ‘‘need not decide
. . . whether the imposition of a term of less than fifty years imprisonment
without parole on a juvenile offender would require the procedures set
forth in Miller . . . . Indeed, we have every reason to expect that our
decisions in Riley and in the present case will prompt our legislature to
renew earlier efforts to address the implications of the Supreme Court’s
decisions in Graham and Miller.’’ (Emphasis added.) Casiano v. Commis-
sioner of Correction, supra, 317 Conn. 79. This court has held that a sentence
of thirty-one years is not the functional equivalent of life without parole
and, thus, does not implicate Miller. State v. Logan, supra, 160 Conn. App.
293–94; see also State v. Taylor G., 315 Conn. 734, 744, 110 A.3d 388 (2015)
(concluding that mandatory sentences of five and ten years do not violate
the eighth amendment pursuant to Miller).
The defendant contends that because, if he serves his full sentence, he
will not be released until he is fifty-two years old, ‘‘[a]s identified in Casiano
[v. Commissioner of Correction, supra, 317 Conn. 77] the defendant’s pros-
pect of ‘establishing a career, marrying, raising a family, or voting,’ will have
diminished greatly by that age.’’ He cites to several statistics demonstrating
the decreased prospects of employment for people between the ages of fifty
and sixty-five, as well as statistics regarding the decreased fertility of men
over the age of forty. ‘‘Although the deprivation of liberty for any amount
of time, including a single year, is not insignificant, Roper, Graham and
Miller cannot be read to mean that all mandatory deprivations of liberty
are of potentially constitutional magnitude.’’ State v. Taylor G., supra, 315
Conn. 745. We are cognizant that those being released from extended periods
of incarceration will likely face greater obstacles in establishing a career,
marrying, raising a family, or voting than those who have not been incarcer-
ated. We see no legally meaningful distinction, however, between the sen-
tence of thirty-one years without parole in Logan, which this court concluded
did not violate Miller, and the defendant’s sentence of thirty-five years
without parole.
We note that the Iowa Supreme Court has concluded that a sentence with
a thirty-five year parole ineligibility period imposed on a juvenile violates
Miller. State v. Pearson, 836 N.W.2d 88, 96 (Iowa 2013). Although Pearson
involved a nonhomicide conviction, we note that our Supreme Court has
favorably cited the Iowa Supreme Court’s juvenile sentencing jurisprudence.
Casiano v. Commissioner of Correction, supra, 317 Conn. 79 (citing State
v. Null, 836 N.W.2d 41 [Iowa 2013]). Only for purposes of our analysis of
whether parole eligibility under § 54-125a (f) provides a constitutionally
adequate remedy, we will assume, without deciding, that the defendant’s
sentence of thirty-five years without parole violated the eighth amendment
pursuant to Miller.
12
We note that, notwithstanding the defendant’s claim that parole eligibil-
ity is not an adequate remedy, one of the remedies he sought in filing his
motion to correct was parole eligibility. In his amended motion to correct
the defendant requested that ‘‘the court order the Board of Pardon and
Paroles to immediately evaluate the defendant for release or, in the alterna-
tive, that the court vacate the sentence and conviction and remand the case
to the juvenile court and for such further relief to which the defendant may
be entitled.’’
13
We note that while this appeal has been pending, the judges of our
Superior Court have expressed differing views about the appropriate remedy
after Montgomery. In State v. Belcher, Superior Court, judicial district of
Fairfield, Docket No. CR-94-100508 (April 29, 2016), the court, noting that
our Supreme Court remanded the case in Riley for resentencing, concluded
that it was compelled to order the same result. The defendant argues that
this court is required to reach a similar conclusion. Other Superior Court
decisions, however, have concluded that parole eligibility provides a suffi-
cient remedy and concluded that the defendants in each case were not
entitled to resentencing. See State v. Ellis, Superior Court, judicial district
of Waterbury, Docket No. CR-91-196561 (June 3, 2016); State v. Holley,
Superior Court, judicial district of Middlesex, Docket No. CR-08-185982 (May
18, 2016); State v. Guess, Superior Court, judicial district of New Haven,
CR-93-0385472 (May 5, 2016). We find the analysis in Ellis especially persua-
sive in its rejection of the defendant’s argument. In Ellis, the court concluded
that a defendant’s fifty-five year sentence did not violate Miller because he
is now parole eligible pursuant to § 54-125a (f). The court disagreed with
the reasoning in Belcher that, because our Supreme Court in Riley remanded
the case for resentencing, resentencing is now required in all cases that
arguably implicate Miller. It noted that the ‘‘Riley decision, which was prior
to both Public Act 15-84 and the Montgomery decision, was predicated on
the facts of [that] case; a virtual life sentence imposed on a juvenile with
no possibility of parole.
‘‘Currently, as a direct result of Public Act 15-84, no Connecticut sentence
imposed on a living juvenile offender, in the past, present or future, consti-
tutes a life sentence, virtual or otherwise, without the possibility of parole.
The predicate for the Riley decision no longer exists.
‘‘Furthermore, the court in Riley never suggested that its decision consti-
tuted a unique approach to the application of Miller creating an additional
right for Connecticut citizens that could not be affected by future legislation
or future United States Supreme Court decisions. The court simply applied
Miller to a unique set of circumstances (a discretionary sentencing scheme,
and virtual life sentence) that existed at the time of the decision.’’ State v.
Ellis, supra, Superior Court, Docket No. CR-91-196561.
14
The defendant notes that the United States Supreme Court denied the
petitions for writs of certiorari in Riley and Casiano. It is clear that those
cases continue to be binding precedent on Connecticut courts. We do not
see how the denial of the petitions in those cases, which had nothing to do
with whether parole eligibility is an adequate remedy for a Miller violation,
prevents this court from following Montgomery.
15
The defendant makes an analogous argument that our legislature con-
ceptualized Miller and Graham as separate claims in enacting Public Act
15-84. We do not see how, even if the defendant is correct that the legislature,
pre-Montgomery, conceptualized Miller and Graham separately in enacting
the two portions of Public Act 15-84, such consideration is relevant to our
analysis of whether parole eligibility is a constitutionally adequate remedy
under the eighth amendment after the decision in Montgomery.
16
We are unpersuaded by the defendant’s additional argument that § 54-
125a (f) is not adequate in comparison to the Wyoming parole statute that
the United States Supreme Court approvingly cited in Montgomery. Section
54-125a (f) provides more expansive parole eligibility than the Wyoming
statute. Thus, it would be incongruous for us to conclude that our state
statute is not a constitutionally adequate remedy under the eighth
amendment.
17
Connecticut is one of several states that have concluded that Graham
and Miller apply to lengthy term of years sentences. See, e.g., State v. Null,
836 N.W.2d 41, 72 (Iowa 2013). Other states, however, have adhered to
the principle that ‘‘[s]trictly read, Miller forbids only the imposition of a
mandatory sentence of life imprisonment without parole on a person under
age 18 who has committed a homicide.’’ State v. Cardeilhac, 293 Neb. 200,
218, 876 N.W.2d 876 (2014); see also State v. Houston, 353 P.3d 55, 77 (Utah
2015) (Miller does not apply to discretionary life sentences); Vasquez v.
Commonwealth, 291 Va. 232, 246, 781 S.E.2d 920 (2016) (aggregate term of
years sentence for nonhomicide offense that set parole eligibility beyond
defendant’s life expectancy did not violate Graham). We note that, in consid-
ering whether to further extend Miller, our Supreme Court has already
expanded its requirements under state law beyond the original holding by
applying it to discretionary life without parole sentences and term of years
sentences that are the functional equivalent to life without parole.
18
The defendant also cites to United States v. Under Seal, 819 F.3d 715
(4th Cir. 2016), in which the Court of Appeals for the Fourth Circuit stated:
‘‘The limits of Montgomery will no doubt be litigated in future cases, but
for present purposes it is sufficient to observe that the Supreme Court has
indicated that vacating a conviction may not be necessary in order to remedy
a past Miller violation.’’ Id., 728. That case did not involve the question of
whether parole eligibility is a sufficient remedy for past Miller violations.
It involved whether a juvenile offender could be prosecuted as an adult in
federal district court where, if convicted, a federal statute mandated that
the court impose either the death penalty or life without parole, both of
which if imposed on a juvenile would violate the eighth amendment. Id.
The Fourth Circuit affirmed the judgment that the prosecution could not
proceed. Id. This case does not support the defendant’s argument that federal
precedent suggests that parole eligibility is not a constitutionally adequate
remedy for a Miller violation, as the court did not consider that issue.
19
Other state courts have reached a similar conclusion. The Arizona Court
of Appeals recently denied a juvenile offender’s request for resentencing
pursuant to Miller because the juvenile offender is now parole eligible
pursuant to state statute. State v. Mendez, Docket No. 2CA-CR 2016-0091-
PR, 2016 WL 2855660, *1 (Ariz. App. May 16, 2016). In fact, the Arizona
Court of Appeals had made such holding prior to Montgomery. See State
v. Vera, 235 Ariz. 571, 578, 334 P.3d 754 (App. 2014), cert. denied, U.S.
, 136 S. Ct. 121, 193 L. Ed. 2d 95 (2015). The Nebraska Supreme Court;
State v. Cardeilhac, 293 Neb. 200, 218, 876 N.W.2d 876 (2016) (citing Mont-
gomery and holding that minimum 60 year to life sentence imposed on
juvenile offender did not violate Miller because defendant would be parole
eligible pursuant to state statute after serving half of minimum term); and
the Ohio Court of Appeals; State v. Terrell, Docket No. CR-13-581323-A,
2016 WL 3442917, *5 (Ohio App. 2016) (declining to apply Miller to sentences
that offer defendants parole eligibility); have also reached similar conclu-
sions. See also State v. Tran, Docket No. CAAP-13-0005233, 2016 WL 3768880,
*6–7 (Haw. App. 2016) (concluding that life sentence with possibility of
parole imposed on juvenile offender does not violate Miller).
20
We recognize some distinctions between Franklin and the present case,
but they do not affect our conclusion that parole eligibility is a constitution-
ally adequate remedy. For example, in Franklin, the court remanded the
case to the trial court for the limited purpose of ‘‘determining whether
[the defendant] was afforded an adequate opportunity to make a record of
information that will be relevant’’ to the parole board. People v. Franklin,
supra, 63 Cal. 4th 286–87. Section 54-125a (f) (3) allows juvenile offenders
to present evidence and gives the Board of Pardons and Paroles the authority
to request testimony from mental health professionals and other witnesses.
The decision in Franklin also noted that its mootness holding was limited
to circumstances where the state statute conferred parole eligibility to a
juvenile offender sentenced to a lengthy mandatory sentence. Id., 280. As
we have stated, § 54-125a (f) applies to both mandatory and discretionary
sentences imposed on a juvenile offender.
21
We also find Massachusetts case law persuasive. The Massachusetts
Supreme Judicial Court, two years before Montgomery, held that parole
eligibility is an adequate remedy for a retroactive Miller violation. Diat-
chenko v. District Attorney, 466 Mass. 655, 673, 1 N.E.3d 270 (2013). The
court concluded that the defendant’s life sentence violated Miller. Id., 667.
Rather than requiring resentencing upon retroactive application, however,
the court excised the portions of the applicable statute precluding homicide
offenders from being parole eligible if the offenders were juveniles at the
time they committed the crime. Id., 674. The result in Massachusetts was
that, under the statute, juvenile offenders sentenced to life without parole
would become eligible for parole after fifteen years of imprisonment. See
Commonwealth v. Costa, 472 Mass. 139, 140, 33 N.E.3d 412 (2015).
The defendant cited to Costa in a letter submitted to this court prior to
oral argument in support of his contention that parole eligibility is constitu-
tionally insufficient. In Costa, the Massachusetts Supreme Judicial Court
ordered resentencing of a juvenile offender, notwithstanding its decision in
Diatchenko, because the defendant had been sentenced to two consecutive
discretionary life sentences, and, thus, would not be parole eligible under
Massachusetts law for thirty years. Id., 140, 144. The court remanded the
case for resentencing, reasoning that because the defendant was sentenced
prior to Miller and Diatchenko, the trial court did not have the opportunity
to consider the effect imposing consecutive life sentences would have on
the defendant’s parole eligibility. Id., 144. This is not applicable to the
situation in the present case. We have not been made aware of any such
case in Connecticut where a juvenile offender, who otherwise would have
been eligible for parole under § 54-125a (f), is not eligible for parole within
the timeframe of the statute because he or she is serving consecutive senten-
ces. If such case exists, we express no opinion on the constitutionality of
such sentence. Our holding today that § 54-125a (f) provides a constitution-
ally adequate remedy is limited to juvenile offenders who are or will be
eligible for parole within the applicable timeframes set forth in the statute.
22
The defendant also cited to People v. Nieto, 52 N.E.3d 442, 545 (Ill.
App. 2016), in which the Appellate Court of Illinois remanded a case for
resentencing after Montgomery. Nieto is distinguishable. The Nieto defen-
dant was sentenced to seventy-eight years and would have had to serve at
least 75.3 years after receiving sentencing credit. Id., 447. He would not
have been released until the age of ninety-four. Id., 448.
23
We note the recent decision of the Louisiana Supreme Court, which upon
remand from the United States Supreme Court ordered that the defendant in
Montgomery v. Louisiana, supra, 136 S. Ct. 718, be resentenced. State v.
Montgomery, Docket No. 13-KP-1163, 2016 WL 3533068, *3 (La. June 28,
2016). The court concluded that it was compelled to order resentencing
because the Louisiana legislature had failed to enact a proposed law that
would have conferred parole eligibility on those whose sentences violated
Miller upon retroactive application. State v. Montgomery, supra, 2016
WL3533068, *2.
The Iowa Supreme Court also recently remanded a case for resentencing
after the defendant had been sentenced to a discretionary sentence of life
without parole. State v. Sweet, 879 N.W.2d 811, 812 (Iowa 2016). The court
held that sentencing a juvenile to a discretionary sentence of life without
parole violates the state constitution. Id., 839. It stated that ‘‘sentencing
courts should not be required to make speculative up-front decisions on
juvenile offenders’ prospects for rehabilitation because they lack adequate
predictive information supporting such a decision. The parole board will
be better able to discern whether the offender is irreparably corrupt after
time has passed, after opportunities for maturation and rehabilitation have
been provided, and after a record of success or failure in the rehabilitative
process is available.’’ Id. Thus, the court remanded the case for resentencing
precisely because the defendant was not eligible for parole.
24
Superior Court decisions have noted these same practical concerns.
For example, as the court, Fasano, J., aptly noted: ‘‘An actual resentencing
would, presumably, require that the parties be limited to the facts and
circumstances that existed at the time of the original sentencing, sometimes
decades earlier, often in the absence of original judges and lawyers as well
as other key participants in the original trial, many of whom have died or
otherwise become unavailable. If the parameters of the resentencing
extended to the offender’s current maturity, rehabilitation, ability to function
in society, etc; then, it would, actually, be a parole hearing without the
benefit of a statutorily authorized, qualified, Board of [Pardon and] Parole.
The resentencing or virtual parole hearing, would, then, be followed by
another parole hearing pursuant to the new public act? It defies logic and
legislative intent and subjects participants to the unnecessary, repeated
ordeal of rehashing often horrific events and circumstances, unnecessarily.’’
State v. Ellis, Superior Court, judicial district of Waterbury, Docket No. CR-
91-196561 (June 3, 2016).
In another case involving four defendants’ motions to correct illegal sen-
tences, the court, Clifford, J., likewise expressed practical, commonsense
concerns: ‘‘Here’s why the parole remedy suggested by the U.S. Supreme
Court in Montgomery is appealing to this court. The four defendants, or
petitioners, today, I was not the sentencing judge. One judge may be available
as a judge trial referee, and Judge Fracasse, who was the trial judge in
two of these, is deceased, and Judge William Hadden is retired from the
state bench.
‘‘Two of these defendants, well, are now in their forties or close to forty,
and two are in their thirties. These four cases highlight the problems in
resentencing and why parole, as suggested by our U.S. Supreme Court, is
a more practical solution than resentencing. If I order resentencing for these
four defendants, I would be the sentencing judge on probably all four.
‘‘Victims’ families would have to be located and advised about a new
sentencing procedure on cases where at least one conviction is over twenty-
five years old. The victim’s families will be informed that the hallmark
characteristics of youth will be considered by a judge who previously had
nothing to do with the case and for a defendant, in that particular case,
who is now in his forties. . . .
‘‘If I conduct resentencing what is relevant at resentencing? Is it only the
characteristics of the defendant’s youth according to Miller? Would I con-
sider the defendant’s immaturity, impetuosity, and failure to appreciate risks
and consequences going back many, many years and that is all I would
factor in? Would this court be able to consider negative or positive behavior
by the defendant during incarceration since they received their sentence?
Would I consider a defendant’s maturity and rehabilitation at the time of
resentencing just as parole would?
***
‘‘Clearly, pursuant to Montgomery, parole is a viable, constitutional way
to remedy a Miller violation and Montgomery concerned interpreting the
case under Miller, it was not a Graham ‘second look’ case.
‘‘This court believes parole is a more realistic and practical solution than
resentencing. I would have to find that the holdings in Riley and Casiano
prevent this remedy; however, our [Supreme] Court never considered parole
as a remedy since it didn’t exist at the time of the decision.’’ (Emphasis
added.) State v. Guess, Superior Court, judicial district of New Haven, Docket
No. CR-93-0385472 (May 5, 2016).
25
The defendant, in a letter to this court prior to oral argument, and at
oral argument, suggested that a conclusion by this court that parole eligibility
is a sufficient remedy for a Miller violation would violate the separation of
powers doctrine because juvenile offenders who are released on parole will
still be subject to having to serve the full sentence if they violate their
parole. Although we generally do not consider claims that have not been
briefed; see State v. Wright, 197 Conn. 588, 595, 500 A.2d 547 (1985); we
note that our Supreme Court in Casiano expected our legislature to imple-
ment future remedies to comply with Riley, Graham and Miller. Further-
more, Montgomery requires that those whose sentences violated Miller be
given a meaningful opportunity for release; it does not require that all juvenile
offenders be released with no further supervision by the criminal justice
system. Whether juvenile offenders who are granted release pursuant to
§ 54-125a (f) return to prison or not is to be determined by their subse-
quent behavior.