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State v. Banks

Supreme Court of Connecticut

July 5, 2016

STATE OF CONNECTICUT
v.
MARK BANKS

          Argued January 28, 2016.

          Daniel J. Foster, assigned counsel, for the appellant (defendant).

          Michael Gailor, executive assistant state’s attorney, with whom, on the brief, was Gail P. Hardy, state’s attorney, for the appellee (state).

          Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Vertefeuille, Js.

          OPINION

          ESPINOSA, J.

         In this certified appeal[1] we consider whether the Appellate Court properly resolved a series of claims that the defendant, Mark Banks, raises in connection with General Statutes (Rev. to 2009) § 54-102g, [2] which authorizes the Commissioner of Correction to collect DNA samples from currently incarcerated felons in order to maintain a DNA data bank to assist in criminal investigations. The defendant appeals, following our grant of certification, from the judgment of the Appellate Court affirming both the trial court’s judgment granting the state permission to use reasonable physical force to obtain a DNA sample from the defendant and the judgment of conviction rendered following the defendant’s refusal to submit to the taking of a blood or other biological sample for DNA analysis in violation of § 54-102g (g). State v. Banks, 143 Conn.App. 485, 487–88, 71 A.3d 582 (2013). The defendant contends that the Appellate Court: (1) improperly concluded that the trial court had authority to grant the state permission to use reasonable physical force in obtaining a DNA sample from him prior to the 2011 amendment to § 54-102g that incorporated a provision authorizing the state to use such force; see Public Acts 2011, No. 11-144, § 1 (P.A. 11-144); and (2) incorrectly determined that § 54-102g, as applied to the defendant, did not violate his due process rights and the ex post facto clause of the federal constitution. See U.S. Const., art. I, § 10. We conclude that the Appellate Court properly resolved both of the defendant’s claims and therefore affirm the judgment of the Appellate Court.

         The following facts and procedural history are relevant to the resolution of this appeal. In 1997, following a jury trial, the defendant was convicted of four counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), four counts of kidnapping in the first degree in violation of General Statutes § 53a-92, and two counts of criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 1995) § 53a-217c for robberies committed in 1995. See State v. Banks, 59 Conn.App. 112, 113, 755 A.2d 951, cert. denied, 254 Conn. 950, 762 A.2d 904 (2000). On December 19, 1997, the trial court sentenced the defendant to fifteen years incarceration to run consecutively with a sentence the defendant was already serving from a prior conviction. The defendant has remained incarcerated since his 1997 convictions.

         In his brief to this court, the defendant states that on December8 and 29, 2009, personnel from the Department of Correction (department) instructed him to submit to the taking of a DNA sample pursuant to § 54-102g (a), but that he refused to comply. On March 17, 2010, department personnel again instructed the defendant and nine other inmates to provide DNA samples in accordance with the statute. The defendant remained steadfast in his refusal to submit to the taking of a DNA sample.

         On May 19, 2010, the state filed a motion in the trial court seeking permission to use reasonable physical force to collect a DNA sample from the defendant and a fellow inmate, Roosevelt Drakes, [3] who had likewise refused to submit a sample. The state cited § 54-102g as the authority for its motion. The defendant opposed the state’s motion, arguing that if he refused to submit a DNA sample for inclusion in the DNA data bank, the only recourse available to the state was to prosecute him pursuant to § 54-102g (g) for refusal to provide a blood or other biological sample for DNA analysis.[4] The defendant further argued that he was not required to submit a DNA sample because at the time of his convictions in 1997, General Statutes (Rev. to 1997) § 54-102g applied only to those persons convicted of certain sex offenses and did not apply to incarcerated felons, such as the defendant, until the legislature amended the statute in 2003. See Public Acts 2003, No. 03-242, § 1 (P.A. 03-242). Accordingly, the defendant claimed that requiring him to provide a DNA sample would constitute an added punishment to his original sentence and run afoul of the ex post facto clause.

         On February 8, 2011, the trial court, Mullarkey, J., issued a written memorandum of decision rejecting the defendant’s claims and granting the state’s motion for permission to use reasonable physical force to collect a DNA sample from the defendant. The trial court determined that submitting to the taking of a DNA sample for the purposes of § 54-102g was a nonpunitive, regulatory measure that did not affect the defendant’s original 1997 sentence and, therefore, that the trial court had subject matter jurisdiction over the state’s motion. Likewise, because the trial court determined that § 54-102g is regulatory in nature, it concluded that the statute did not run awry of the ex post facto clause. Additionally, after examining the text and legislative history of § 54-102g, the court determined that the statute necessarily included the option of enforcing compliance through reasonable force, because allowing incarcerated felons to simply refuse to provide DNA samples would substantially frustrate the legislature’s goal of creating a comprehensive DNA data bank to aid in criminal investigations. The defendant appealed to the Appellate Court from the trial court’s decision.[5]

         Subsequently, the defendant was charged via a substitute information with refusal to submit to the taking of a blood or biological sample for DNA analysis in violation of § 54-102g (g) for his March 17, 2010 refusal. The defendant moved to dismiss the charge and, at a hearing before the trial court, Carbonneau, J., presented similar arguments to those he previously presented in opposition to the state’s motion to use physical force, namely, that application of the statute would violate the ex post facto clause as applied to him. The trial court adopted the reasoning of Judge Mullarkey in his memorandum of decision, concluded that the taking of a DNA sample was not a penalty and denied the defendant’s motion to dismiss. Following a bench trial, the defendant was found guilty and sentenced to one year incarceration, consecutive to his existing sentences. The defendant filed a separate appeal to the Appellate Court from the judgment of conviction.

         The Appellate Court considered the defendant’s consolidated appeals and ultimately upheld both the defendant’s conviction and the trial court’s grant of the state’s motion for permission to use reasonable physical force in obtaining a DNA sample from the defendant. State v. Banks, supra, 143 Conn.App. 485, 487–88. The defendant argued that: (1) the trial court lacked subject matter jurisdiction to consider the state’s motion; (2) § 54-102g, as applied to him, violated his due process rights and the expost facto clause; (3) the legislature, although it had amended § 54-102g in 2011 to authorize the use of reasonable force to obtain a DNA sample; P.A. 11-144; did not intend that amendment to have retroactive effect; and (4) prior to 2011, § 54-102g did not authorize the department to use reasonable force. State v. Banks, supra, 492, 508. The Appellate Court, largely adopting the reasoning of the trial court’s memorandum of decision, concluded that § 54-102g is regulatory rather than punitive in nature and, therefore, that the trial court had jurisdiction to consider the state’s motion and that application of the statute to the defendant did not violate his due process rights or contravene the ex post facto clause. Id., 499, 508–10. In analyzing the text and history of § 54-102g, the Appellate Court determined that the statute was not applied retroactively to the defendant and that, as the trial court concluded, the statute authorized the use of reasonable force to obtain a DNA sample from those who refused to willingly submit one. Id., 507. We thereafter granted the defendant’s petition for certification to appeal. See footnote 1 of this opinion.

         Prior to addressing the defendant’s substantive claims, we provide an overview of the history of the statutory scheme which underlies the defendant’s claims. The current revision of § 54-102g (b) requires DNA samples to be collected from all persons convicted of a felony, among others. When initially enacted in 1994, however, the statute only required the collection of DNA samples from persons convicted of certain sex offenses. Public Acts 1994, No. 94-246, § 1; see General Statutes (Rev. to 1995) § 54-102g. The statute was further amended in 1999 to extend the DNA collection requirements to individuals who had committed a criminal offense against a victim who was a minor. Public Acts 1999, No. 99-183, § 1. In 2003, the legislature expanded the scope of the statute to require all incarcerated felons to submit a DNA sample for inclusion in the state DNA data bank. See P.A. 03-242, § 1. The 2003 amendment broadening the category of those subject to § 54-102g is the source of the defendant’s present appeal.[6]

         I

         A

         We first address the defendant’s claim that the Appellate Court incorrectly concluded that the trial court properly granted the state’s motion for permission to use reasonable physical force as a means of obtaining a sample of the defendant’s DNA. State v. Banks, supra, 143 Conn.App. 507. The defendant contends that § 54-102g is penal rather than regulatory in nature and, therefore, that the trial court was without jurisdiction because the defendant was already serving the sentences for his underlying criminal convictions. The state avers that § 54-102g is not punitive in nature and that the trial court properly had jurisdiction to consider the state’s motion given that the court’s actions would not affect the defendant’s original sentences. We agree with the state.

         In the most fundamental sense, subject matter jurisdiction ‘‘involves the authority of a court to adjudicate the type of controversy presented by the action before it.’’ (Internal quotation marks omitted.) State v. Fowlkes, 283 Conn. 735, 739, 930 A.2d 644 (2007). It is well settled that, in criminal matters, ‘‘[t]he jurisdiction of the sentencing court terminates when the sentence is put into effect, and that court may no longer take any action affecting the sentence unless it has been expressly authorized to act.’’ (Emphasis in original; internal quotation marks omitted.) State v. Waterman, 264 Conn. 484, 491, 825 A.2d 63 (2003). When determining whether a trial court properly had subject matter jurisdiction over an action, we recognize that ‘‘every presumption favoring jurisdiction should be indulged.’’ (Internal quotation marks omitted.) State v. Fowlkes, supra, 739. We exercise plenary review over questions of a court’s subject matter jurisdiction. Id., 738.

         The critical question in determining whether a court may take action affecting a defendant’s sentence following its imposition is whether the requested action is punitive in nature. If the requested action ‘‘is not punitive in nature, then a defendant’s sentence is not affected, and the trial court has jurisdiction to take that action. If it is punitive, then a defendant’s sentence is affected, and the trial court lacks jurisdiction to take that action.’’ (Emphasis in original.) Id., 740. In State v. Waterman, supra, 264 Conn. 484, we addressed a similar jurisdictional claim to that raised by the defendant in the present case. In that case, the defendant challenged the jurisdiction of the trial court to make a finding following the defendant’s sentencing that he must register as a sex offender pursuant to General Statutes § 54-251, a provision in Connecticut’s version of Megan’s Law, General Statutes § 54-250 et seq. State v. Waterman, supra, 488. The defendant argued that registering as a sex offender was a punitive measure and that the court was without jurisdiction to order him to register, as he had already begun serving the sentence for his underlying convictions. Id., 489. We employed a two part test to determine whether the requirements of a statute are punitive in nature: ‘‘[U]nder the first part of the test, the court examine[s] whether the legislature ha[s] intended the statute [under consideration] to be criminal or civil, in other words, punitive in law. . . . Under the second part of the test, the . . . court consider[s] whether, even if not punitive in law, the statute [is] nevertheless punitive in fact, that is, whether the statute [is] so punitive in fact that it [cannot] be seen as civil in nature.’’ (Internal quotation marks omitted.) State v. Fowlkes, supra, 283 Conn. 741; State v. Waterman, supra, 492–93; see also State v. Kelly, 256 Conn. 23, 92, 770 A.2d 908 (2001). We determined that the requirements of Megan’s Law were ministerial only; State v. Waterman, supra, 497; and relied on the conclusions of the United States District Court for the District of Connecticut in a previous challenge to the same law that neither the text of the statute nor the legislative history evinced a punitive purpose. Id., 493–94; see Doe v. Lee, 132 F.Supp.2d 57, 67–68 (D. Conn.), aff’d sub nom. Doe v. Dept. of Public Safety ex rel. Lee, 271 F.3d 38 (2d Cir. 2001), rev’d on other grounds sub nom. Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003). Furthermore, the statute did not necessitate modifying, opening, or correcting the defendant’s original sentence in order to ensure the defendant’s compliance with the registration requirements. State v. Waterman, supra, 497. We therefore concluded that the registration requirements of Megan’s Law are regulatory in nature and not punitive. Id., 489. Accordingly, we determined that the trial court had jurisdiction to order the defendant’s registration as the requirement did not affect the defendant’s original sentence. Id., 498.

         Like the similar claim in Waterman, the defendant’s argument that the trial court did not have jurisdiction to grant the state’s motion for permission to use reasonable force because § 54-102g constitutes a penalty must fail. After our review of § 54-102g, we conclude that the Appellate Court properly determined that the requirements in the statute to provide DNA samples are not punitive in nature and, therefore, the trial court properly had subject matter jurisdiction to consider the state’s motion.

         Under the first part of our analysis, we examine the statutory text and conclude that the legislature did not intend for DNA collection to be punitive in the context of the statutory scheme that encompasses § 54-102g. In determining the legislative purpose of a statute, we employ the familiar rules of statutory construction. See Lieberman v. Aronow, 319 Conn. 748, 756–57, 127 A.3d 970 (2015); In re Tyriq T., 313 Conn. 99, 104–105, 96 A.3d 494 (2014). Our analysis of § 54-102g is therefore guided by General Statutes § 1-2z and standard principles of statutory construction. As both the trial court and the Appellate Court observed, § 54-102g (f) demonstrates that the purpose of the statute is to further the nonpunitive goal of maintaining a DNA data bank to assist in criminal investigations: ‘‘The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained . . . in a DNA data bank and shall be made available only as provided in section 54-102j.’’ General Statutes (Rev. to 2009) § 54-102g (f). We agree that the overall purpose of the statute is not to punish those convicted of crimes by requiring them to submit a DNA sample, but to use DNA as a means of aiding law enforcement investigations. See Maryland v. King, ___ U.S. ___, 133 S.Ct. 1958, 1966, 186 L.Ed.2d 1 (2013) (‘‘[L]aw enforcement, the defense bar, and the courts have acknowledged DNA testing’s unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices.’’ [Internal quotation marks omitted.]).

         Indeed, the other provisions of the statutory scheme demonstrate that the collection of DNA samples is for regulatory rather than punitive purposes. For example, the statutory scheme contains provisions regulating: the manner in which DNA samples are collected; General Statutes § 54-102h; the manner in which the analysis of DNA samples is to be conducted; General Statutes § 54-102i; and the legitimate purposes for which information in the DNA data bank may be used. General Statutes § 54-102j. Likewise, the statutory scheme contains provisions that: outline penalties for misuse of information in the DNA data bank; General Statutes § 54-102k; provide for the destruction of DNA data bank information upon a person’s exoneration; General Statutes § 54-102l; and create a DNA Data Bank Oversight Panel charged with safeguarding the information in the DNA data bank and the privacy of individuals registered therein. General Statutes § 54-102m. All of these provisions further the regulatory purpose and ensure that the DNA data bank is used only in accordance with its proper purpose of assisting in criminal investigations. Notably, all fifty states have enacted statutes similar to Connecticut’s that require convicted felons to submit a DNA sample in order to aid in criminal investigations. Maryland v. King, supra, 133 S.Ct. 1968. In challenges to those statutory schemes, our sister courts have regularly held that the collection of DNA in this context is regulatory and not punitive.[7] Accordingly, § 54-102g is not punitive in law.

         Although we conclude that § 54-102g is not punitive in law, under the second part of our analysis, we consider whether the statute may be ‘‘ ‘punitive in fact’ ’’ if the punitive effect of the statute is so substantial that it swallows the regulatory or civil purpose of the statute. State v.Waterman, supra, 264 Conn. 492–93. When inquiring whether a statute is actually punitive in fact, we examine the factors first outlined by the United States Supreme Court in Kennedy v.Mendoza-Martinez, 372 U.S. 144, 168–69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); see State v.Alexander, 269 Conn. 107, 118, 847 A.2d 970 (2004). These factors include whether the challenged action ‘‘has historically been regarded as punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment-retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned . . . .’’ (Footnotes omitted.) Kennedy v.Mendoza-Martinez, supra, 168–69. We recognize that these factors ‘‘are all relevant to the inquiry, and may often ...


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