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State v. Spielberg

Supreme Court of Connecticut

December 20, 2016

STATE OF CONNECTICUT
v.
MAX SPIELBERG

          Argued September 16, 2016

          David B. Rozwaski, assigned counsel, for the appellant (defendant).

          Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, was Stephen J. Sedensky III, state's attorney, for the appellee (state).

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

          OPINION

          ESPINOSA, J.

          In this appeal, we are asked to decide whether the defendant, Max Spielberg, is entitled to erasure of the records of his conviction of possession of less than four ounces of marijuana in violation of General Statutes (Rev. to 2009) § 21a-279 (c), despite the lack of any factual record as to the amount of marijuana he possessed at the time of his arrest. The defendant appeals from the judgment of the trial court denying his petition for an order of erasure.[1] He contends that because possession of less than one-half ounce of marijuana has been decriminalized; see Public Acts 2011, No. 11-71, § 2 (P.A. 11-71); the trial court improperly concluded that he was not entitled to erasure of the records of this conviction pursuant to General Statutes § 54-142d.[2] Because this court's decision in State v. Menditto, 315 Conn. 861, 110 A.3d 410 (2015), clarified Connecticut case law while this appeal was pending, the judgment of the trial court is reversed and the case is remanded to that court to conduct an evidentiary hearing on the defendant's petition for an order of erasure.

         The record reveals the following undisputed facts. On August18, 2010, officers from the Community Conditions Unit of the Danbury Police Department visited the defendant's residence because he was on probation and had failed to inform the Office of Adult Probation of his new address within the requisite period of time after he had moved. The officers detected a strong odor of marijuana throughout the residence and asked the defendant if he had any marijuana on his person or in the residence. He indicated that there was marijuana both on his person and in the residence. In the defendant's pockets, the officers found $44 and eight clear plastic bags containing marijuana. Elsewhere in the residence, the officers found additional marijuana, drug paraphernalia, cultivation supplies, and $380. Located near some of the drugs, drug paraphernalia, and cultivation supplies were toys and clothing that belonged to the defendant's four year old son who visited and slept at the residence. The defendant indicated that his son had left the residence moments prior to the officers' arrival.

         The defendant was arrested and subsequently, on April 1, 2011, pleaded guilty to possession of less than four ounces of marijuana in violation of General Statutes (Rev. to 2009) § 21a-279 (c), [3] possession of marijuana within 1500 feet of a school in violation of General Statutes (Rev. to 2009) § 21a-279 (d), and risk of injury to a child in violation of General Statutes (Rev. to 2009) § 53-21 (a) (1).[4] He received a total effective sentence of five years and one day of incarceration followed by seven years of special parole.

         On July 1, 2011, P.A. 11-71 became effective, reducing the penalty for possessing less than one-half ounce of marijuana from a potential term of imprisonment and/ or a large fine to a fine of between $150 and $500. See General Statutes § 21a-279a. The enactment of P.A. 11-71 raised the question of whether the legislature had ‘‘decriminalized'' the possession of small amounts of marijuana, thus entitling some defendants who had been convicted of possession of less than four ounces of marijuana in violation of § 21a-279 (c), prior to 2011, to erasure of their records by virtue of § 54-142d.[5]

         The trial court considered this claim in State v. Men-ditto, Superior Court, judicial district of Tolland, Docket No. CR-09-0095007-S (January 25, 2012) (53 Conn. L. Rptr. 415). In that case, Nicholas Mendit to was arrested for possession of approximately 0.15 and 0.01 ounces of marijuana on two occasions in 2009, and subsequently pleaded guilty to two counts of possession of less than four ounces of marijuana in violation of General Statutes (Rev. to 2009) § 21a-279 (c). Id., 416. After the legislature amended § 21a-279 through P.A. 11-71, Mendit to filed petitions for erasure pursuant to § 54-142d, arguing that § 54-142d applied to his convictions because P.A. 11-71 decriminalized the possession of less than one-half ounce of marijuana. Id. The trial court concluded that P.A. 11-71 did not ‘‘decriminalize'' the possession of less than one-half ounce of marijuana for purposes of § 54-142d because those convictions remained violations and, therefore, the defendant was not entitled to erasure. Id., 417-18. The Appellate Court agreed and affirmed the judgments of the trial court. State v. Menditto, 147 Conn.App. 232, 246, 80 A.3d 923 (2013).

         Pursuing a similar argument as Menditto, the defendant in the present case filed a petition for erasure pursuant to § 54-142d on March 5, 2013. Consistent with the trial court's decision in State v. Menditto, supra, 53 Conn. L. Rptr. 415, the trial court in the present case denied the defendant's petition for erasure and subsequently denied the defendant's motion for reconsideration. This appeal followed.

         While this appeal was pending, the effect of P.A. 11-71 was clarified when this court decided State v. Menditto, supra, 315 Conn. 861. In that case, we reversed the Appellate Court in part and concluded that P.A. 11-71 decriminalized the possession of less than one-half ounce of marijuana and, therefore, the records of Menditto's convictions were entitled to erasure pursuant to § 54-142d. Id., 872-76.

         In contrast to State v. Menditto, supra, 315 Conn. 861, however, in which there was a factual record of the amount of marijuana Menditto possessed at the time of his arrests, no such record exists in the present case. Under the current state of the law, the amount of marijuana that the defendant possessed-specifically whether he possessed less than one-half ounce of marijuana-is key to the determination of whether he is entitled to erasure pursuant to § 54-142d. The record in the present case merely reveals that the defendant pleaded guilty to possession of less than four ounces of marijuana. Because P.A. 11-71 only decriminalized the possession of less than one-half ounce of marijuana, and this court does not find facts, factual findings by the trial court as to the amount of marijuana the defendant possessed are necessary to a determination of whether he is entitled to erasure of the records relating to his conviction.

         The state contends that this court should affirm the denial of the defendant's petition for erasure because his conviction of possession of less than four ounces of marijuana was the basis for his conviction under the same docket number of possession of a controlled substance within 1500 feet of a school and risk of injury to a child. In order for the defendant to be entitled to erasure pursuant to § 54-142d of the records pertaining to any one offense of which he was convicted, the state contends that the records of the companion charges for which he was convicted under that same ...


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