Argued September 18, 2015.
Motion to correct an illegal sentence, brought to the Superior Court in the judicial district of Fairfield, where the court, Devlin, J., granted the motion in part and resentenced the defendant; thereafter, the defendant appealed, and the state cross appealed.
Reversed; judgment directed.
Pursuant to statute ([Rev. to 2005] § 53a-70 [b]), any person found guilty of sexual assault in the first degree " shall be sentenced to a term of imprisonment and a period of special parole . . . which together constitute a sentence of at least ten years."
The defendant, who had been convicted of, inter alia, the class B felony of sexual assault in the first degree in violation of the statute ([Rev. to 2005] § 53a-70 [a]) prohibiting a person from compelling another person to engage in sexual intercourse by use of force, was sentenced to a total effective term of twenty-five years of incarceration, execution suspended after fifteen years, and thirty-five years of probation. The Appellate Court affirmed the judgment of conviction. Thereafter, the defendant filed a motion to correct an allegedly illegal sentence, claiming that his sentence for his conviction of sexual assault in the first degree was illegal because § 53a-70 (b) (3), as interpreted by this court in State v. Victor O. (301 Conn. 163, 20 A.3d 669), required that the defendant be sentenced for his conviction under § 53a-70 to a period of special parole, which, when combined with his term of imprisonment, would have reduced the amount of prison time that he was required to serve. The trial court granted the defendant's motion in part, concluding that the defendant was entitled to be resentenced to a term of imprisonment and a period of special parole. The trial court concluded, however, that the period of special parole did not need to be deducted from the defendant's total effective sentence so as to avoid expanding the defendant's original sentence. The court thereupon resentenced the defendant to a total effective term of fifteen years incarceration and ten years of special parole. On the defendant's appeal and the state's cross appeal from the court's decision with respect to resentencing and the defendant's motion to correct, held that, in light of this court's decision in the companion case of State v. Victor O. (320 Conn. ), § 53a-70 (b) (3) does not mandate that persons convicted of sexual assault in the first degree be sentenced to a period of imprisonment and special parole but, rather, provides that, if a court elects to impose such a sentence, the total combined period of imprisonment and special parole must add up to at least ten years; consequently, this court reversed the trial court's partial granting of the defendant's motion to correct an illegal sentence and its resentencing of the defendant, and remanded the case to the trial court with direction to deny the defendant's motion to correct.
Mark Rademacher, assistant public defender, for the appellant-cross appellee (defendant).
Adam E. Mattei, assistant state's attorney, with whom, on the brief, was John C. Smriga, state's attorney, for the appellee-cross appellant (state).
Rogers, C. J., and Palmer, Zarella, Eveleigh and McDonald, Js. PALMER, J. In this opinion the other justices concurred.
[320 Conn. 261] PALMER, J.
The defendant, Jason B., appeals and the state cross appeals from the the trial
court's granting in part of the defendant's motion to correct an allegedly illegal sentence and its subsequent resentencing of the defendant. The state claims that the trial court incorrectly concluded that General Statutes (Rev. to 2005) § 53a-70 (b) (3), which provides that " [a]ny person found guilty [of sexual assault in the first degree] shall be sentenced to a term of imprisonment and a period of special parole pursuant to subsection (b) of section 53a-28 which together constitute a sentence of at least ten years," required the court to sentence the defendant to a period of special parole for his conviction of first degree sexual assault. The state maintains that § 53a-70 (b) (3) requires only that any period of special parole that may be imposed shall, along with the accompanying term of imprisonment, constitute a total sentence of not less than ten years. The defendant claims that the trial court correctly determined that § 53a-70 (b) (3) requires that he be sentenced to a period of special parole but incorrectly concluded that the period of special parole need not be deducted from the defendant's original total effective sentence. We agree with the state.
The following procedural history is relevant to our analysis of the parties' claims. In 2006, following a jury trial, the defendant was found guilty of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), a class D felony; see General Statutes § 53a-95 (b); [320 Conn. 262] and sexual assault in the first degree in violation of § 53a-70 (a) (1), a class B felony. See General Statutes (Rev. to 2005) § 53a-70 (b) (1). In accordance with the jury verdict, the defendant was sentenced to five years of incarceration for his conviction of unlawful restraint and to a consecutive term of twenty years of incarceration, execution suspended after ten years, and thirty-five years of probation, for his conviction of first degree sexual ...