State v. Moore , 180 Conn. App. 116 ( 2018 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears 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 reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. JEROME F. MOORE
(AC 39808)
DiPentima, C. J., and Bright and Bishop, Js.
Syllabus
The defendant, who had been sentenced to five years incarceration following
his conviction of possession of narcotics, appealed to this court from
the trial court’s denial of his motion to correct an illegal sentence, in
which he raised claims that his sentence exceeded the statutory maxi-
mum. On the date of the offense, possession of narcotics in violation
of statute ([Rev. to 2013] § 21a-279) carried a sentence of imprisonment
of up to seven years for a first offense. Prior to the defendant’s conviction
and sentencing, but subsequent to his arrest, the legislature amended
§ 21a-279 (a) in 2015 and reclassified a first offense of § 21a-279 (a) as
a misdemeanor punishable by not more than one year of incarceration.
On appeal, the defendant claimed that the trial court improperly deter-
mined that the 2015 amendment did not apply retroactively. He also
claimed that his five year sentence constituted an excessive and dispro-
portionate punishment in violation of the state and federal constitu-
tions. Held:
1. The defendant could not prevail on his claim that his five year sentence
exceeded the statutory maximum because the legislature expressed its
intent that the 2015 amendment apply retroactively: the fact that the
statute, as amended, contained no express statement that it applied
retroactively did not render the statute ambiguous, as the absence of
any language stating that the amendment applied retroactively indicated
that the legislature intended for the amendment to apply prospectively
only, which was consistent with precedent holding that the law in exis-
tence on the date of the offense governs and with the legislature’s
enactment of savings statutes demonstrating an intent that defendants
be prosecuted and sentenced in accordance with the statutes in effect
at the time of the crime, and because the statutory language was not
susceptible to more than one plausible interpretation, there was no
ambiguity requiring this court to look to the legislative history of the
amendment to ascertain the legislature’s intent, and, therefore, the trial
court correctly determined that the 2015 amendment did not apply
retroactively; moreover, the defendant’s claim that this court should
adopt the amelioration doctrine and apply it to his sentence was unavail-
ing, as our Supreme Court previously has determined that that doctrine
is in direct contravention of our savings statutes and has expressly
declined to establish that ameliorative changes to criminal statutes apply
retroactively, and this court was bound by that precedent.
2. The defendant’s claim that his five year sentence constituted an excessive
and disproportionate punishment in violation of the state and federal
constitutions was unavailing; because the defendant failed to provide
an independent analysis of his state constitutional claim pursuant to
the factors set out in State v. Geisler (222 Conn. 672), which controlled
the defendant’s state constitutional claim, that claim was inadequately
briefed and deemed abandoned, and with respect to his federal constitu-
tional claim, the defendant failed to demonstrate that his five year
sentence for a violation of § 21a-279 (a) was disproportionate and exces-
sive in violation of the eighth amendment to the United States constitu-
tion, and, therefore, the trial court did not abuse its discretion in denying
his motion to correct an illegal sentence.
Argued November 29, 2017—officially released March 6, 2018
Procedural History
Substitute information charging the defendant with
the crimes of possession of narcotics and possession
of narcotics with intent to sell, brought to the Superior
Court in the judicial district of Litchfield and tried to
the jury before the court, Shah, J.; verdict and judgment
of guilty of possession of narcotics; thereafter, the trial
court denied the defendant’s motion to correct an illegal
sentence, and the defendant appealed to this court.
Affirmed.
Emily H. Wagner, assistant public defender, with
whom was Michael K. Courtney, public defender, for
the appellant (defendant).
Jennifer F. Miller, deputy assistant state’s attorney,
with whom, on the brief, were David Shepack, state’s
attorney, and David R. Shannon, senior assistant state’s
attorney, for the appellee (state).
Opinion
BISHOP, J. The defendant, Jerome F. Moore, appeals
from the judgment of the trial court denying his motion
to correct an illegal sentence. On appeal, the defendant
claims that the court incorrectly concluded that (1)
the 2015 amendment to General Statutes § 21a-279 (a),
which the legislature passed during a special session
in June, 2015; see Public Acts, Spec. Sess., June, 2015,
No. 15-2, § 1; does not apply retroactively to his sen-
tence,1 and (2) his five year sentence does not violate
the eighth amendment to the United States constitution
or article first, §§ 8 and 9, of the Connecticut constitu-
tion. We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. On August 6, 2014, the defendant
was arrested for possession of twenty-eight bags of
heroin and charged with possession of narcotics in vio-
lation of § 21a-279 (a), and possession of narcotics with
intent to sell in violation of General Statutes § 21a-278
(b). On the date of the offense, a violation of § 21a-279
(a) carried a sentence of imprisonment of up to seven
years for a first offense.2 See General Statutes (Rev. to
2013) § 21a-279 (a). Prior to the defendant’s conviction
and sentencing, but subsequent to his arrest, the legisla-
ture amended § 21a-279 (a), with an effective date of
October 15, 2015, and reclassified a first offense of
§ 21a-279 (a) as a misdemeanor punishable by not more
than one year of incarceration. See General Statutes
(Supp. 2016) § 21a-279 (a).
Following a jury trial, on April 1, 2016, the defendant
was found not guilty of possession of narcotics with
intent to sell in violation of 21a-278 (b), but guilty of
possession of narcotics in violation of § 21a-279 (a).
On May 27, 2016, the court, Shah, J., sentenced the
defendant, pursuant to § 21a-279 (a), to a period of five
years of incarceration.
On June 8, 2016, the defendant filed a motion to
correct an illegal sentence. On August 23, 2016, defense
counsel filed an amended motion to correct an illegal
sentence and a supporting memorandum of law, claim-
ing that the defendant’s five year sentence exceeded
the statutory maximum set forth in § 21a-279 (a), as
amended by Spec. Sess. P.A. 15-2 (2015 amendment).
On the same day, the court heard arguments on the
amended motion.
On September 16, 2016, the court denied the defen-
dant’s motion to correct an illegal sentence, finding,
inter alia, that (1) ‘‘there is no language in either the
public act or its legislative history indicating a clear
intent to apply the amendment retroactively’’ and (2)
the sentence did not violate the defendant’s right against
excessive and disproportionate punishment under the
federal and state constitutions. This appeal followed.
improperly denied his motion to correct an illegal sen-
tence because (1) the legislature expressed its intent
that the 2015 amendment applies retroactively; and (2)
following the amendment to § 21a-279 (a), his sentence
now constitutes excessive and disproportionate punish-
ment in violation of the state and federal constitutions.
‘‘We review claims that the court improperly denied the
defendant’s motion to correct an illegal sentence under
an abuse of discretion standard.’’ State v. Pagan, 75
Conn. App. 423, 429, 816 A.2d 635, cert. denied, 265
Conn. 901, 829 A.2d 420 (2003). We address each claim
in turn.
I
The defendant first claims that his five year sentence
exceeds the statutory maximum set forth in § 21a-279
(a) because the legislature expressed its intent that the
2015 amendment applies retroactively. He claims, as
well, that by reason of the rule of amelioration, the
statute should be applied retroactively. We are not per-
suaded.3
Whether, as a matter of statutory interpretation, the
2015 amendment may be applied retroactively to crimes
committed before its effective date of October 1, 2015,
is a question of law over which our review is plenary.
See State v. Kalil, 314 Conn. 529, 552, 107 A.3d 343
(2014); see also State v. Jackson, 153 Conn. App. 639,
643, 103 A.3d 166 (2014) (‘‘Whether a statute is to be
applied retroactively is a question of statutory construc-
tion. . . . Issues of statutory construction raise ques-
tions of law, over which we exercise plenary review.’’
[Citation omitted; internal quotation marks omitted.]),
cert. denied, 315 Conn. 912, 106 A.3d 305 (2015).
‘‘In criminal cases, to determine whether a change
in the law applies to a defendant, we generally have
applied the law in existence on the date of the offense,
regardless of its procedural or substantive nature.’’
(Internal quotation marks omitted.) State v. Kalil,
supra, 314 Conn. 552; accord In re Daniel H., 237 Conn.
364, 377, 678 A.2d 462 (1996). ‘‘This principle is derived
from the legislature’s enactment of savings statutes
such as General Statutes § 54-194, which provides that
‘[t]he repeal of any statute defining or prescribing the
punishment for any crime shall not affect any pending
prosecution or any existing liability to prosecution and
punishment therefor, unless expressly provided in the
repealing statute that such repeal shall have that effect,’
and General Statutes § 1-1 (t), which provides that ‘[t]he
repeal of an act shall not affect any punishment, penalty
or forfeiture incurred before the repeal takes effect, or
any suit, or prosecution, or proceeding pending at the
time of the repeal, for an offense committed, or for the
recovery of a penalty or forfeiture incurred under the
act repealed.’ ’’ State v. Kalil, supra, 552. ‘‘It is obvious
from the clear, unambiguous, plain language of the sav-
ings statutes that the legislature intended that [defen-
dants] be prosecuted and sentenced in accordance with
and pursuant to the statutes in effect at the time of the
commission of the crime. Our courts have repeatedly
held that these savings statutes preserve all prior
offenses and liability therefor so that when a crime is
committed and the statute violated is later amended or
repealed, defendants remain liable under the revision
of the statute existing at the time of the commission
of the crime.’’ (Internal quotation marks omitted.) State
v. Jackson, supra, 153 Conn. App. 644–45.
‘‘We will not give retrospective effect to a criminal
statute absent a clear legislative expression of such
intent. . . . When the meaning of a statute initially may
be determined from the text of the statute and its rela-
tionship to other statutes . . . extratextual evidence
of the meaning of the statute shall not be considered.
. . . When the meaning of a provision cannot be
gleaned from examining the text of the statute and
other related statutes without yielding an absurd or
unworkable result, extratextual evidence may be con-
sulted. . . . Thus . . . every case of statutory inter-
pretation . . . requires a threshold determination as to
whether the provision under consideration is plain and
unambiguous. This threshold determination then gov-
erns whether extratextual sources can be used as an
interpretive tool. . . . [T]he fact that . . . relevant
statutory provisions are silent . . . does not mean that
they are ambiguous. . . . [O]ur case law is clear that
ambiguity exists only if the statutory language at issue is
susceptible to more than one plausible interpretation.’’
(Citations omitted; internal quotation marks omitted.)
Id., 643–44.
The defendant argues that extratextual evidence
should be considered in the present case because a
‘‘plain language reading of [the statute] results in an
absurd and unworkable result.’’ Specifically, the defen-
dant asserts that Spec. Sess. ‘‘P.A. 15-2, § 1, was a budget
implementing bill and the legislature has a constitu-
tional duty to pass a balanced budget.’’ He further con-
tends that ‘‘[i]t would be absurd to conclude that the
legislature would vote to approve this budget imple-
menting bill knowing that the projected fiscal savings
in the bill would not be realized . . . .’’ We disagree.
We begin with the ‘‘threshold determination as to
whether the provision under consideration is plain and
unambiguous.’’ State v. Jackson, supra, 153 Conn. App.
643. The effective date of the 2015 amendment is Octo-
ber 1, 2015. See Public Acts, Spec. Sess., June, 2015,
No. 15-2, § 1 (section ‘‘21a-279 of the general statutes is
repealed and the following is substituted in lieu thereof
[Effective October 1, 2015] . . . .’’). The amendment
contains no express statement that it applies retroac-
tively. Its silence in this regard, however, does not ren-
der it ambiguous. Rather, the absence of any language
stating that the amendment applies retroactively indi-
cates that the legislature intended the amendment to
apply prospectively only. See State v. Kalil, supra, 314
Conn. 558; General Statutes §§ 54-194 and 1-1 (t).
Additionally, the legislature knows how to make a
statute apply retroactively when it intends to do so. See
State v. Kevalis, 313 Conn. 590, 604, 99 A.3d 196 (2014)
(‘‘it is a well settled principle of statutory construction
that the legislature knows how to convey its intent
expressly’’ [internal quotation marks omitted]). Thus,
if the legislature had intended the 2015 amendment
to apply retroactively, it could have used clear and
unequivocal language indicating such an intent. It did
not do so. A prospective only application of the statute
is consistent with our precedent and the legislature’s
enactment of the savings statutes; see State v. Kalil,
supra, 314 Conn. 552; and, therefore, the statutory lan-
guage is not susceptible to more than one plausible
interpretation. See State v. Jackson, supra, 153 Conn.
App. 644. Because there is no ambiguity in the 2015
amendment, we need not look to its legislative history
to ascertain the legislature’s intent.4 We conclude that
the court correctly determined that the 2015 amend-
ment does not apply retroactively to the defendant’s
sentence.
We also reject the defendant’s argument that we
should adopt the amelioration doctrine and apply it to
his sentence. ‘‘The amelioration doctrine provides that
amendments to statutes that lessen their penalties are
applied retroactively.’’ (Internal quotation marks omit-
ted.) State v. Kalil, supra, 314 Conn. 552. Our Supreme
Court expressly has declined to establish that ameliora-
tive changes to criminal statutes apply retroactively,
finding that ‘‘the doctrine is in direct contravention of
Connecticut’s savings statutes.’’ (Footnote omitted.) Id.,
553. We are bound by this precedent.
On the basis of the foregoing, we conclude that, in the
absence of legislative intent that the 2015 amendment
applies retroactively, the defendant properly was sen-
tenced pursuant to the statute in effect on the date of
the offense for which he was convicted.
II
The defendant next claims that his five year sentence
constitutes an excessive and disproportionate punish-
ment in violation of the eighth amendment to the United
States constitution and article first, §§ 8 and 9, of the
Connecticut constitution. Specifically, the defendant
asserts that his ‘‘sentence is no longer graduated to the
offense’’ because Spec. Sess. ‘‘P.A. 15-2, § 1, and its
surrounding legislative history express a change in
criminal justice policy in this state, namely, that incar-
cerating rather than treating drug-dependent individu-
als no longer comports with our evolving standards of
decency.’’ In response, the state claims that the court
properly denied the defendant’s motion to correct
because he failed to establish that his punishment was
unconstitutional. The state further argues that this court
should not review the defendant’s state constitutional
claim because he failed to adequately brief the claim
under the well established Geisler5 analysis. We agree
with the state.
‘‘Our review of the defendant’s constitutional claims
is plenary.’’ (Internal quotation marks omitted.) State
v. Rivera, 177 Conn. App. 242, 252, 172 A.3d 260 (2017);
see also State v. Taylor G., 315 Conn. 734, 741, 110 A.3d
338 (2015) (‘‘[a] challenge to [t]he constitutionality of
a statute presents a question of law over which our
review is plenary’’ [internal quotation marks omitted]).
A
We first address the state’s argument that the defen-
dant’s constitutional claim under article first, §§ 8 and 9,
of the Connecticut constitution is inadequately briefed.
Specifically, the state argues that the defendant failed
to analyze his claim pursuant to the Geisler factors,
and instead analyzed his claim under a two factor analy-
sis set forth in State v. Santiago, 318 Conn. 1, 122 A.3d
1 (2015). The defendant maintains that, following Santi-
ago, ‘‘[a] reviewing court engages in a two stage analysis
in determining whether a challenged punishment is
unconstitutionally excessive and disproportionate.
. . . First, the court looks to ‘objective factors’ to deter-
mine whether the punishment at issue comports with
contemporary standards of decency. . . . [Second,
the] court must [then] decide whether the constitution
permits imposition of the defendant’s . . . sentence.’’
We agree with the state that Geisler controls, and
accordingly, we conclude that the defendant’s state con-
stitutional claim is inadequately briefed.
‘‘It is well established that federal constitutional law
establishes a minimum national standard for the exer-
cise of individual rights and does not inhibit state gov-
ernments from affording higher levels of protection for
such rights. . . . In several cases, our Supreme Court
has concluded that the state constitution provides
broader protection of individual rights than does the
federal constitution. . . . It is by now well established
that the constitution of Connecticut prohibits cruel and
unusual punishments under the auspices of the dual
due process provisions contained in article first, §§ 8
and 9. Those due process protections take as their hall-
mark principles of fundamental fairness rooted in our
state’s unique common law, statutory, and constitu-
tional traditions. . . . Although neither provision of
the state constitution expressly references cruel or
unusual punishments, it is settled constitutional doc-
trine that both of our due process clauses prohibit gov-
ernmental infliction of cruel and unusual punishments.’’
(Citations omitted; internal quotation marks omitted.)
State v. Rivera, supra, 177 Conn. App. 252–53. ‘‘In ascer-
taining the contours of the protections afforded under
our state constitution, we utilize a multifactor approach
that we first adopted in [Geisler].’’ State v. Santiago,
319 Conn. 935, 937 n.3, 125 A.3d 520 (2015). See footnote
5 of this opinion.
We reject the defendant’s argument that our Supreme
Court, in State v. Santiago, supra, 318 Conn. 1, aban-
doned the Geisler analysis for claims of cruel and
unusual punishment and instead broadly adopted a two
part test. Our review of Santiago does not support the
defendant’s interpretation. Contrary to the defendant’s
assertions, in Santiago, the Supreme Court did analyze
the defendant’s state constitutional claim pursuant to
the Geisler factors.6 See State v. Santiago, supra, 17–46.
We therefore conclude that Geisler still controls. We
note, as well, that this court recently has applied the
Geisler factors to a claim of cruel and unusual punish-
ment, and we are bound by this court’s precedent. See
State v. Rivera, supra, 177 Conn. App. 251–75 (analyz-
ing, pursuant to Geisler factors, defendant’s claim that
‘‘mandatory minimum sentence of twenty-five years of
incarceration without the possibility of parole imposed
on a juvenile homicide offender’’ constitutes cruel and
unusual punishment).
Absent from the defendant’s discussion of his state
constitutional claim is an independent analysis of the
Geisler factors. Accordingly, we deem abandoned his
claim under the state constitution, and we decline to
review it. See State v. Bennett, 324 Conn. 744, 748 n.1,
155 A.3d 188 (2017) (‘‘The defendant has asserted vari-
ous claims under both the state and federal constitu-
tions, but he has not provided an independent analysis
of the former in accordance with . . . Geisler . . . .
Therefore, we deem abandoned any state constitutional
claims.’’ [Citation omitted.]); see also Morrissey-
Manter v. Saint Francis Hospital & Medical Center,
166 Conn. App. 510, 526–27, 142 A.3d 363 (claim inade-
quately briefed on appeal deemed abandoned and court
declined to review it), cert. denied, 323 Conn. 924, 149
A.3d 982 (2016).
B
We next address the defendant’s argument that his
sentence is excessive and disproportionate in violation
of the eighth amendment to the United States constitu-
tion. The defendant argues that his sentence violates
the eighth amendment because it ‘‘is out of step with
our contemporary standards of decency and serves no
penological purpose,’’ given the change in criminal jus-
tice policy following the enactment of the 2015 amend-
ment. We are unpersuaded.7
‘‘[T]he eighth amendment [to the United States consti-
tution] mandates that punishment be proportioned and
graduated to the offense of conviction.’’ State v. Santi-
ago, supra, 318 Conn. 20. ‘‘The eighth amendment’s
prohibition against cruel and unusual punishment is
made applicable to the states through the due process
clause of the fourteenth amendment to the United
States constitution. . . . [T]he United States Supreme
Court has indicated that at least three types of punish-
ment may be deemed unconstitutionally cruel . . .
[including] excessive and disproportionate punish-
ments.’’ (Citation omitted; internal quotation marks
omitted.) Dumas v. Commissioner of Correction, 168
Conn. App. 130, 135–36, 145 A.3d 355, cert. denied, 324
Conn. 901, 151 A.3d 1288 (2016).
In addressing an eighth amendment claim, ‘‘[a]
reviewing court engages in a two stage analysis [to
determine] whether a challenged punishment is uncon-
stitutionally excessive and disproportionate. . . .
First, the court looks to objective factors to determine
whether the punishment at issue comports with con-
temporary standards of decency. . . . [This includes]
the historical development of the punishment at issue,
legislative enactments, and the decisions of prosecutors
and sentencing juries.’’ (Citations omitted; internal quo-
tation marks omitted.) State v. Santiago, supra, 318
Conn. 21. Second, ‘‘courts must . . . bring their own
independent judgments to bear, giving careful consider-
ation to the reasons why a civilized society may accept
or reject a given penalty. . . . Although the judgments
of legislatures, juries, and prosecutors weigh heavily in
the balance, it is for [the court] ultimately to judge
whether the [constitution] permits imposition of the
. . . penalty . . . . This analysis necessarily encom-
passes the question of whether the penalty at issue
promotes any of the penal goals that courts and com-
mentators have recognized as legitimate: deterrence,
retribution, incapacitation, and rehabilitation. . . . A
sentence materially lacking any legitimate penological
justification would be nothing more than the gratuitous
infliction of suffering and, by its very nature, dispropor-
tionate.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) Id., 22–23.
The defendant first asserts that his five year sentence
no longer comports to contemporary standards of
decency. See id., 21. In support of this claim, the defen-
dant relies primarily on the legislative history sur-
rounding the 2015 amendment and remarks made by
the governor about how the 2015 amendment indicates
a ‘‘systematic change’’ in the treatment of those con-
victed of minor possession offenses.
The defendant’s focus on the remarks of our legisla-
tors does little to support his claim. It bears repeating
that the legislature knows how to make the application
of a statute retroactive when it wants to do so. See
State v. Kevalis, supra, 313 Conn. 604. It necessarily
follows that if the legislature had felt that ‘‘extended
periods of incarceration are no longer necessary or
appropriate forms of punishment for nonviolent drugs
offenders,’’ or that a sentence of greater than one year
for a first violation of § 21a-279 (a) constituted ‘‘cruel
and unusual punishment,’’ as the defendant argues, the
legislature would have so indicated by making the stat-
ute apply retroactively. It did not do so. See part I
of this opinion. Further undercutting the defendant’s
reliance on our legislators’ comments is the fact that
our legislature enacted the savings statutes, §§ 54-194
and 1-1 (t), to ensure ‘‘that [defendants] be prosecuted
and sentenced in accordance with and pursuant to the
statutes in effect at the time of the commission of the
crime. . . . [T]hese savings statutes preserve all prior
offenses and liability therefor so that when a crime is
committed and the statute violated is later amended or
repealed, defendants remain liable under the revision
of the statute existing at the time of the commission
of the crime.’’ (Internal quotation marks omitted.) State
v. Jackson, supra, 153 Conn. App. 644–45.
Furthermore, as the court noted in its memorandum
of decision, ‘‘contrary to the defendant’s assertions,
neither [Spec. Sess.] P.A. 15-2 nor its legislative history
indicate that a five year prison sentence for possession
of narcotics imposed based on a persistent history of
drug offenses and a failure to complete probation is
‘disproportionate and excessive . . . [as] judged by the
contemporary, evolving standards of decency that mark
the progress of a maturing society.’ ’’ We agree. As the
defendant concedes, many jurisdictions still treat sim-
ple possession as a felony. Further, the 2015 revision
to § 21a-279 (a) still permits a defendant to be charged
with a felony in certain circumstances. See General
Statutes (Supp. 2016) § 21a-279 (a) (3). Thus, the defen-
dant has failed to demonstrate that his sentence no
longer comports to contemporary standards of decency
using objective indicia such as ‘‘the historical develop-
ment of the punishment at issue, legislative enactments,
and the decisions of prosecutors and sentencing juries.’’
(Internal quotation marks omitted.) State v. Santiago,
supra, 318 Conn. 21.
The defendant also has failed to demonstrate that
his five year sentence serves no legitimate penological
justification. Although the defendant argues that his
sentence offers no deterrent value to others who will
now receive a maximum sentence of up to one year
incarceration for the same offense, he fails to ade-
quately rebut other recognized penological purposes—
retribution, incapacitation, and rehabilitation.8 See
State v. Santiago, supra, 318 Conn. 22.
On the basis of the foregoing, we conclude that the
court properly found that the defendant failed to dem-
onstrate that his five year sentence for a violation of
§ 21a-279 (a) is disproportionate and excessive in viola-
tion of the eighth amendment to the United States con-
stitution. Accordingly, the court did not abuse its
discretion in denying the defendant’s motion to correct
an illegal sentence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
On August 6, 2014, the date the defendant committed the offense for
which he was convicted, General Statutes (Rev. to 2013) § 21a-279 (a) pro-
vided: ‘‘Any person who possesses or has under his control any quantity of
any narcotic substance, except as authorized in this chapter, for a first
offense, may be imprisoned not more than seven years or be fined not more
than fifty thousand dollars, or be both fined and imprisoned; and for a
second offense, may be imprisoned not more than fifteen years or be fined
not more than one hundred thousand dollars, or be both fined and impris-
oned; and for any subsequent offense, may be imprisoned not more than
twenty-five years or be fined not more than two hundred fifty thousand
dollars, or be both fined and imprisoned.’’
At the time of the defendant’s conviction and sentencing, General Statutes
(Supp. 2016) § 21a-279 (a) provided: ‘‘(1) Any person who possesses or has
under such person’s control any quantity of any controlled substance, except
less than one-half ounce of a cannabis-type substance and except as author-
ized in this chapter, shall be guilty of a class A misdemeanor.
‘‘(2) For a second offense of subdivision (1) of this subsection, the court
shall evaluate such person and, if the court determines such person is a
drug-dependent person, the court may suspend prosecution of such person
and order such person to undergo a substance abuse treatment program.
‘‘(3) For any subsequent offense of subdivision (1) of this subsection, the
court may find such person to be a persistent offender for possession of a
controlled substance in accordance with [General Statutes §] 53a-40.’’
Hereinafter, unless otherwise indicated, all references to § 21a-279 (a) in
this opinion are to the 2013 revision of the statute.
2
The defendant has prior drug convictions, and thus, the state initially
charged the defendant as a persistent felony offender in a part B information.
Prior to sentencing, however, the state’s attorney withdrew that part B
information. Therefore, the defendant was sentenced as a first offender
pursuant to § 21a-279 (a).
3
We also disagree with the defendant’s contention that the principles set
forth in State v. Kalil, 314 Conn. 529, 107 A.3d 343 (2014), are inapplicable
to the present case. In Kalil, our Supreme Court addressed a situation
analogous to that of the present case. See id., 550–59 (concluding that
amendment to larceny statute did not apply retroactively, where defendant
committed crime prior to amendment but was convicted and sentenced
thereafter).
4
Even if we were to determine that the statute is ambiguous, so as to
implicate a review of its legislative history, we are not persuaded that
comments from legislators and the fiscal impact statement support the
defendant’s claim that a plain language reading of the statute leads to ‘‘absurd
and unworkable results.’’
As the court aptly noted in its memorandum of decision, ‘‘the legislature
was clearly aware of the many defendants waiting to be tried and sentenced
under the then-existing version of § 21a-279 (a) when they discussed and
passed [Spec. Sess.] P.A. 15-2. . . . [I]f the legislature had intended [Spec.
Sess.] P.A. 15-2 to apply retroactively, it would have used language clearly
indicating the act’s retroactive effect, which it did not, either in the public
act itself or the act’s legislative history.’’
Additionally, our Supreme Court has recognized that fiscal impact state-
ments are not evidence of legislative intent. See Butts v. Bysiewicz, 298
Conn. 665, 688 n.22, 5 A.3d 932 (2010). The fiscal impact statement for the
2015 amendment itself even contains a disclaimer, which provides, in rele-
vant part: ‘‘The preceding Fiscal Impact statement is prepared for the benefit
of the members of the General Assembly, solely for the purposes of informa-
tion, summarization and explanation and does not represent the intent of the
General Assembly or either chamber thereof for any purpose.’’ (Emphasis
added.) Thus, the fiscal impact statement cannot be utilized as a fulcrum
to lever the statute’s plain meaning into ambiguity.
5
‘‘In order to construe the contours of our state constitution and reach
reasoned and principled results, the following tools of analysis should be
considered to the extent applicable: (1) the textual approach . . . (2) hold-
ings and dicta of [the Supreme Court], and the Appellate Court . . . (3)
federal precedent . . . (4) sister state decisions or sibling approach . . .
(5) the historical approach . . . and (6) economic/sociological considera-
tions.’’ (Citations omitted; emphasis omitted; internal quotation marks omit-
ted.) State v. Geisler, 222 Conn. 672, 684–85, 610 A.2d 1225 (1992); see also
State v. Saturno, 322 Conn. 80, 102, 139 A.3d 629 (2016).
6
As further support for our conclusion, subsequent to the release of the
decision in State v. Santiago, supra, 318 Conn. 1, the state filed a motion
to stay execution of the judgment in that case, arguing, inter alia, that it
‘‘lacked notice that [the Supreme Court] would consider [the various Geisler]
factors in evaluating the defendant’s claim.’’ (Emphasis added.) State v.
Santiago, supra, 319 Conn. 939. In denying the state’s motion, the court
noted that ‘‘the state’s analysis of the various Geisler factors [in its supple-
mental brief] refutes its contention that it lacked notice.’’ Id. The court
further noted that ‘‘as long as the state constitutional claim is adequately
briefed in accordance with Geisler, as it unarguably was in this case, it is
this court’s responsibility to identify and evaluate all of the relevant factors
and considerations so that we may reach the correct constitutional result.’’
(Emphasis omitted.) Id., 940.
7
We also reject the defendant’s argument that his five year sentence is
unconstitutional because it was not authorized by law. As we conclude in
part I of this opinion, the court correctly sentenced the defendant pursuant
to the statute that was in effect on the date he committed the crime, which
permitted a sentence of up to seven years of incarceration for a first offense.
See General Statutes (Rev. to 2013) § 21a-279 (a). Accordingly, the defen-
dant’s five year sentence was authorized by law. See State v. Kalil, supra,
314 Conn. 552.
8
In its memorandum of decision, the court noted that its decision to
impose a five year sentence included, in relevant part, ‘‘the need to achieve
a specific [and] general deterrent effect, the need for incapacitation, the
need to effect rehabilitation, and the need to achieve justice.’’