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State v. Allan

Supreme Court of Connecticut

August 21, 2018

STATE OF CONNECTICUT
v.
NEMIAH ALLAN

          Argued December 18, 2017

         Procedural History

         Substitute information charging the defendant with the crimes of sale of narcotics by a person who is not drug dependent, sale of narcotics within 1500 feet of a school, possession of narcotics, conspiracy to sell narcotics by a person who is not drug dependent and interfering with an officer, brought to the Superior Court in the judicial district of New Haven, geographical area number seven, and tried to the jury before B. Fischer, J.; verdict and judgment of guilty of conspiracy to sell narcotics by a person who is not drug dependent and interfering with an officer, from which the defendant appealed to the Appellate Court, DiPentima, C. J., and Bear and Pellegrino, Js., which affirmed the trial court's judgment; thereafter, the court, S. Moore, J., denied the defendant's motion to correct an illegal sentence, and the defendant appealed. Affirmed.

          Temmy Ann Miller, assigned counsel, with whom was Owen Firestone, assigned counsel, for the appellant (defendant).

          Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and James Dinnan, senior assistant state's attorney, for the appellee (state).

          Palmer, McDonald, Robinson, D'Auria, Mullins and Kahn, Js. [*]

          OPINION

          ROBINSON, J.

         This appeal is the companion case to State v. Evans, 329 Conn. 770, A.3d (2018), which we also decide today. The defendant, Nemiah Allan, [1] appeals[2] from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant claims that we should overrule State v. Ray, 290 Conn. 602, 966 A.2d 148 (2009), in which we interpreted General Statutes (Rev. to 2009) § 21a-278 (b)[3] to render drug dependency an affirmative defense to be proven by the defendant because (1) it is no longer good law in light of the subsequent decision of the United States Supreme Court in Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and (2) it was wrongly decided as a matter of statutory interpretation. The defendant also argues that the narcotics statutory scheme, which gives the prosecutor the sole authority to decide whether to proceed under § 21a-278 (b), rather than the otherwise identical General Statutes (Rev. to 2009) § 21a-277 (a), [4] violates the separation of powers established by article second of the Connecticut constitution, as amended by article eighteen of the amendments. The state contends to the contrary, and also argues that the trial court lacked subject matter jurisdiction over the defendant's motion to correct because that motion failed to raise a colorable claim challenging his sentence. Although we conclude that the trial court had subject matter jurisdiction over the defendant's motion to correct, we disagree with the merits of the defendant's claims. Accordingly, we affirm the judgment of the trial court denying the defendant's motion to correct an illegal sentence.

         The record reveals the following undisputed facts and procedural history. Following a jury trial, the defendant was convicted of conspiracy to sell narcotics in violation of § 21a-278 (b) and General Statutes § 53a-48, and interfering with a police officer in violation of General Statutes § 53a-167a (a).[5] No evidence concerning the defendant's drug dependency was presented at trial by the state or the defendant, and the trial court did not instruct the jury with respect to drug dependency. At sentencing, the court considered the defendant's history of narcotics convictions, and defense counsel argued that the defendant was not a career criminal but, rather, a career addict as a result of a painkiller addiction following a neck injury suffered in an automobile accident. The trial court, B. Fischer, J., sentenced the defendant to a total effective sentence of twelve years imprisonment, followed by five years of special parole, to be served concurrently with a sentence that the defendant was serving for violation of probation. His conviction was subsequently affirmed on appeal. See State v. Allan, 131 Conn.App. 433, 443, 27 A.3d 19 (2011), aff'd, 311 Conn. 1. 83 A.3d 326 (2014).

         Pursuant to Practice Book § 43-22, the defendant filed a motion to correct an illegal sentence, claiming, inter alia, that his sentence had been imposed in violation of Alleyne v. United States, supra, 570 U.S. 99, and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the fact of drug dependency, which triggered the mandatory minimum sentence under § 21a-278 (b), was not admitted by the defendant or found by the fact-finder. The trial court, S. Moore, J., denied the defendant's motion, concluding that Alleyne and Apprendi did not control because of this court's interpretation of § 21a-278 (b) in, among other cases, State v. Ray, supra, 290 Conn. 602, which held that drug dependency is an affirmative defense to be proven by the defendant, rather than an element of the offense to be proven by the state. The trial court denied the defendant's subsequent motion for reconsideration and rendered judgment denying the motion to correct an illegal sentence. This appeal followed.

         The jurisdictional issues raised by the parties and the merits of the underlying arguments presented in this appeal are identical to those considered in State v. Evans, supra, 329 Conn. 770, which we also decide today. We conclude that our examination of these same issues in Evans thoroughly resolves the claims in the present appeal and that there is nothing in this case that would mandate a different result. Accordingly, we adopt the reasoning and conclusions of that opinion herein. See, e.g., State v. Drakes, 321 Conn. 857, 864, 146 A.3d 21, cert. denied, U.S., 137 S.Ct. 321, 196 L.Ed.2d 234 (2016). We, therefore, conclude that the trial court properly denied the defendant's motion to correct an illegal sentence.

         The judgment is affirmed.

         In this opinion the other ...


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