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State v. Victor O.

Supreme Court of Connecticut

January 19, 2016

STATE OF CONNECTICUT
v.
VICTOR O. [*]

Argued September 18, 2015.

Motion to correct an illegal sentence, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Kavanewsky, J., denied the motion, and the defendant appealed.

Affirmed.

SYLLABUS

Pursuant to statute ([Rev. to 2001] § 53a-70 [b], as amended by P.A. 02-138, § 5), 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 the class A felony of sexual assault in the first degree in violation of the statute ([Rev. to 2001] § 53a-70 [a], as amended by P.A. 02-138, § 5) prohibiting sexual intercourse with a person under thirteen years of age when the actor is more than two years older than that person, as well as two counts of risk of injury to a child, was sentenced to a total effective term of thirty years imprisonment, execution suspended after fifteen years, and twenty years of probation. The probationary term was imposed in connection with the defendant's conviction on the sexual assault and risk of injury counts. On appeal from the judgment of conviction, this court vacated the defendant's sentence and remanded the case for resentencing with respect to the sexual assault conviction on the basis of the state's concession that the sentence did not comply with the statutory scheme because it included a period of probation. In resentencing the defendant, the trial court retained the same term of imprisonment for the sexual assault violation but eliminated the term of probation for that violation. Because the sentences pertaining to the risk of injury counts remained the same, however, the defendant's total effective sentence also was the same as before resentencing. The defendant thereafter filed a motion to correct an allegedly illegal sentence, claiming, inter alia, that his new sentence was illegal because § 53a-70 (b) (3), as this court previously had interpreted that statute in the defendant's appeal from his criminal conviction in State v. Victor O. (301 Conn. 163, 20 A.3d 669), required the trial court to sentence the defendant to a period of special parole, which, when deducted from the defendant's term of imprisonment, would have reduced the amount of prison time that he was required to serve. The trial court denied the defendant's motion, concluding, inter alia, that § 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 only that, if a court does impose such a sentence, then the total combined period of imprisonment and special parole must total at least ten years. On the defendant's appeal from the trial court's denial of his motion to correct an illegal sentence, held that the trial court correctly concluded that § 53a-70 (b) (3) does not require a court to sentence a person convicted under § 53a-70 to a period of special parole, and, therefore, this court affirmed the trial court's denial of the defendant's motion to correct an illegal sentence: contrary to the defendant's contention, this court did not determine in Victor O. that a court is required to sentence a person convicted under § 53a-70 to a term of special parole, and § 53a-70 (b) (3), when read in relation to the broader sentencing scheme, reasonably could be construed as a mandatory minimum sentence provision requiring merely that any sentence of imprisonment and special parole for a conviction under § 53a-70 total a period of at least ten years; moreover, this court's interpretation of § 53a-70 (b) (3) as a mandatory minimum sentence provision rather than as one requiring special parole avoided conflicts with or inconsistencies in other sentencing provisions in the Penal Code and comported with the legislative history surrounding the special parole statute (§ 54-125e) and the statute (§ 53a-29 [f]) governing the minimum and maximum periods of probation for class B felony convictions under § 53a-70, and the contrary interpretation that the defendant urged would run counter to the legislative intent, reflected throughout the sentencing scheme, that sentencing courts be afforded wide discretion to tailor sentences to fit particular defendants and their crimes and be provided with an array of tools with which to exercise such discretion.

Stephan E. Seeger, with whom was Igor G. Kuperman, for the appellant (defendant).

Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Paul Ferencek, senior assistant state's attorney, for the appellee (state).

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js. PALMER, J. In this opinion the other justices concurred.

OPINION

Page 941

[320 Conn. 241] PALMER, J.

The defendant, Victor O., appeals from the trial court's denial of his motion to correct an allegedly illegal sentence, which was imposed upon his conviction of, inter alia, sexual assault in the first degree in violation of General Statutes (Rev. to 2001) § 53a-70 (a) (2), as amended by Public Acts 2002, No. 02-138, § 5 (P.A. 02-138).[1] He claims that the trial court improperly [320 Conn. 242] failed to sentence him to a period of special parole pursuant to § 53a-70 (b) (3), which provides that " [a]ny person found guilty under [§ 53a-70] shall be sentenced to a term of imprisonment and a period of special parole pursuant to subsection (b) of section 53a-28[2] which together constitute a sentence of at least ten years." (Footnote added.) The state contends that the sentence that the trial court imposed was proper because § 53a-70 (b) (3) does not require a period of special parole; rather, the state maintains, it 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. We agree with the state and, accordingly, affirm the trial court's denial of the defendant's motion.

The following procedural history is relevant to our analysis of the defendant's claim. On November 17, 2005, following a

Page 942

jury trial, the defendant was found guilty of one count of sexual assault in the first degree in violation of § 53a-70 (a) (2), a class A felony; see General Statutes (Rev. to 2001) § 53a-70 (b) (2), as amended by P.A. 02-138, § 5; [3] and two counts of risk of injury to a child in violation of General Statutes (Rev. to 2001) § 53-21 (a) (2), as amended by P.A. 02-138, § 4. The court presiding over the defendant's criminal trial rendered judgment in accordance with the jury verdict and sentenced the defendant to a total effective term of thirty years imprisonment, execution suspended after [320 Conn. 243] fifteen years, and twenty years of probation. More specifically, the court sentenced the defendant to twenty years of incarceration, execution suspended after twelve years, and twenty years of probation with respect to count one (first degree sexual assault), twenty years of incarceration, execution suspended after twelve years, and twenty years of probation with respect to count two (risk of injury), to run concurrently with the ...


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