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State v. Ruiz

Court of Appeals of Connecticut

June 6, 2017

STATE OF CONNECTICUT
v.
JESUS RUIZ

          Argued February 23, 2017

         Appeal from Superior Court, judicial district of New Haven, Thompson, J. [judgment]; Clifford, J. [motion to correct].

          Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Patrick Griffin, state's attorney, Michael Dearington, former state's attorney, and Lisa D'Angelo, assistant state's attorney, for the appellant-appellee (state).

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

          Keller, Mullins and Beach, Js.

          OPINION

          MULLINS, J.

         The state appeals from the judgment of the trial court granting in part the defendant's motion to correct an illegal sentence. In reliance on State v. Victor O., 320 Conn. 239, 128 A.3d 940 (2016) (Victor O. II), and State v. Jason B., 320 Conn. 259, 128 A.3d 937 (2016), the state claims that the trial court improperly held that the defendant's original sentence was illegal because it did not include a period of special parole. The defendant, Jesus Ruiz, cross appeals from the judgment of the trial court. The defendant claims that the court resentenced him to a total effective sentence that improperly exceeds his original sentence. We conclude that the defendant's original sentence was not illegal for lack of a period of special parole.[1] Accordingly, we reverse the judgment of the trial court.

         The following facts and procedural history inform our review. On July 1, 2008, following a jury trial, the Superior Court rendered a judgment of conviction against the defendant on two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2), and one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A). The conduct supporting these charges arose out of two incidents of sexual contact that the defendant had with the child victim sometime between 2002 and 2003, when the victim was five or six years old and in first or second grade.

         On October 2, 2008, the court sentenced the defendant as follows: On the first count of sexual assault in the first degree, the court sentenced the defendant to seventeen years incarceration, execution suspended after twelve years, with ten years of probation; on the second count of sexual assault in the first degree, the court sentenced the defendant to twelve years incarceration; on the count of risk of injury to a child, the court sentenced the defendant to ten years incarceration; and on the count of sexual assault in the fourth degree, the court sentenced the defendant to one year incarceration. The court ordered all sentences to run concurrently, for a total effective sentence of seventeen years incarceration, execution suspended after twelve years, with ten years of probation. This court affirmed the defendant's conviction on direct appeal. State v. Ruiz, 124 Conn.App. 118, 3 A.3d 1021, cert. denied, 299 Conn. 908, 10 A.3d 525 (2010).[2]

         On April 17, 2015, the defendant filed a motion to correct an illegal sentence. In that motion, the defendant claimed that his sentences on each count of sexual assault in the first degree were improper because they did not include a period of special parole as he alleged was required by General Statutes (Rev. to 2001) § 53a-70 (b) (3), as amended by Public Acts 2002, No. 02-138, § 5, [3] and by State v. Victor O., 301 Conn. 163, 166, 193, 20 A.3d 669, cert. denied, U.S., 132 S.Ct. 583, 181 L.Ed.2d 429 (2011) (Victor O. I). The defendant alleged that, for his sentence to comply legally with § 53a-70 (b) (3) and Victor O. I, the trial court was required to do each of the following: (1) add a term of special parole to each count of first degree sexual assault, (2) eliminate any term of probation, and (3) reduce his unsuspended term of incarceration by the length of the added term of special parole. The defendant argued in his motion that the law ‘‘does not authorize a sentence of imprisonment, special parole, and probation. Accordingly, once the court adds special parole to the sentence, it must remove probation.'' (Emphasis in original.)

         The trial court conducted a hearing on April 30, 2015. The parties initially assumed that the defendant's conviction of the sexual assault in the first degree charges was for a class B felony. During the hearing, however, the court raised a concern about whether a conviction of that crime was for a class A felony rather than for a class B felony because the legislature had changed the classification during the period the crimes were alleged to have occurred.[4] Ultimately, the court ruled that, regardless of whether the defendant's conviction was for a class A or a class B felony, a period of special parole was required pursuant to Victor O. I, and, therefore, the defendant's sentence was illegal because it did not include a period of special parole.[5] The court, thereafter, vacated the defendant's sentences and imposed the following new sentences.

         On each count of sexual assault in the first degree, the court resentenced the defendant to eleven years incarceration, with one year of special parole; on the count of risk of injury to a child, the court resentenced the defendant to seventeen years incarceration, execution suspended after twelve years, with twelve years of probation; and, on the count of sexual assault in the fourth degree, the court resentenced the defendant to one year incarceration. The court ordered all sentences to run concurrently, for a total effective sentence of seventeen years incarceration, execution suspended after twelve years, with one year of special parole and ten years of probation. Both the state and the defendant now appeal from the trial court's judgment.[6]

         The state claims that the defendant's original sentence was not illegal for lack of a term of special parole, and, therefore, the trial court improperly granted the defendant's motion on that ground. To support its claim, the state relies on two recent cases from our Supreme Court, Victor O. II and Jason B. The state further contends that we also must assume that the defendant's conviction for sexual assault in the first degree was for a class B felony.[7] The state contends that the burden to prove illegality in his sentence was on the defendant and that he failed to provide any evidence to demonstrate that the crimes were class A felonies. Therefore, the state argues, we must assume that the original sentence on count one, which contained a term of probation, was legal, and we should hold as such.

         The defendant acknowledges that our Supreme Court, in Victor O. II and Jason B., clarified any ambiguity in the law regarding whether§ 53a-70 (b) (3) required a period a special parole as part of a defendant's sentence. Indeed, in both of those cases the court held that § 53a-70 (b) does not require that a trial court sentence persons convicted under this statute to a period of special parole. He argues, nonetheless, that we should conclude that his original sentence was illegal for two reasons.

         First, he contends that he relied, to his detriment, on the language of § 53a-70 (b) (3), which, he argues, plainly and unambiguously provides that a person convicted under this section ‘‘shall be sentenced to a term of imprisonment and a period of special parole.'' Second, he contends that he relied, to his detriment, on his reading of Victor O. I. He argues that in Victor O. I, the Supreme Court had construed the specific language in § 53a-70 (b) (3) and, in doing so, the court had concluded that a period of special parole was required in cases such as his. Ultimately, the defendant argues that, at the time he filed his motion, it was settled law that special parole was required and he should not be penalized for relying on established law.

         The state responds that it was not settled law at all. The state contends that, although there may have been some question as to whether a period of special parole was required in cases of sexual assault in the first degree due to the language of § 53a-70 (b) (3) and a particular reading of a portion of our Supreme Court's decision in Victor O. I, the matter certainly was contested by the state. Thus, the state argues, the defendant's reliance on that disputed ...


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