March 6, 2019
information charging the defendant with two counts each of
the crimes of possession of narcotics with intent to sell by
a person who is not drug-dependent, possession of narcotics
with intent to sell and possession of narcotics, and with the
crime of possession of less than four ounces of a
cannabis-type substance, brought to the Superior Court in the
judicial district of Fairfield, geographical area number two,
and tried to the jury before Dennis, J.; verdict and
judgment of guilty of possession of less than four ounces of
a cannabis-type substance and of two counts of possession of
narcotics, from which the defendant appealed to this court,
which affirmed the judgment; thereafter, the Supreme Court
denied the defendant's petition for certification to
appeal; subsequently, the court, Doyle, J.,
dismissed the defendant's motion to correct an illegal
sentence, and the defendant appealed to this court.
Improper form of judgment; judgment directed.
B. Streeto, senior assistant public defender, with whom, on
the brief, was Emily H. Wagner, assistant public defender,
for the appellant (defendant).
Jennifer F. Miller, assistant state's attorney, with
whom, on the brief, were John C. Smriga, state's
attorney, and Craig P. Nowak, senior assistant state's
attorney, for the appellee (state).
DiPentima, C. J., and Lavine and Harper, Js.
defendant, Haji Jhmalah Bischoff, appeals from the judgment
of the trial court dismissing his motion to correct an
illegal sentence. After reviewing the record and the
parties' briefs, we conclude that the defendant's
claim is barred by appellate precedent. We further conclude
that the form of the judgment is improper, and, accordingly,
we reverse the judgment dismissing the defendant's motion
to correct an illegal sentence and remand the case to the
trial court with direction to render judgment denying the
defendant was convicted of possession of heroin in violation
of General Statutes (Rev. to 2013) § 21a-279 (a),
possession of cocaine in violation of § 21a-279 (a), and
possession of less than four ounces of a cannabis-type
substance (marijuana) in violation of General Statutes (Rev.
to 2013) § 21a-279 (c). State v. Bischoff, 182
Conn.App. 563, 569, 190 A.3d 137, cert. denied, 330 Conn.
912, 193 A.3d 48 (2018). The trial court merged the
conviction of possession of heroin and possession of cocaine
into a single conviction of possession of narcotics in
violation of § 21a-279 (a), and sentenced the defendant
to seven years incarceration, execution suspended after five
years, and three years of probation. Id. On the
defendant's conviction of possession of less than four
ounces of marijuana, the court sentenced the defendant to a
concurrent term of one year incarceration. Id.
direct appeal, this court considered and rejected the
defendant's claim that he was entitled to be resentenced
as a result of the legislative amendment to the crime of
possession of narcotics. Specifically, we stated:
‘‘The defendant finally claims that he is
entitled to resentencing on his conviction of possession of
narcotics because the legislature has retroactively
reclassified the violation of § 21a-279, for a first
offense, as a class A misdemeanor, which carries a maximum
sentence of one year of incarceration. See Public Acts, Spec.
Sess., June, 2015, No. 15-2, § 1. The defendant
concedes, as he must, that this court's holding in
State v. Moore, 180 Conn.App. 116, 124,
[182 A.3d 696');">182 A.3d 696, cert. denied, 329 Conn. 905, 185 A.3d 595]
(2018), in which this court held that the 2015 amendment to
§ 21a-279 (a), which took effect October 1, 2015, does
not apply retroactively and is dispositive of his claim. The
defendant's claim that he is entitled to be resentenced
must therefore fail.'' State v.
Bischoff, supra, 182 Conn.App. 579-80. This
court released the decision in the defendant's direct
appeal on June 12, 2018. Id., 563. On September 20,
2018, our Supreme Court denied the defendant's petition
for certification to appeal. State v.
Bischoff, 330 Conn. 912, 193 A.3d 48 (2018).
11, 2017, the defendant filed the present motion to correct
an illegal sentence. He argued that the legislature had
intended the 2015 amendment to apply retroactively. According
to the defendant, the sentence imposed for his violation of
§ 21a-279 (a) was illegal because it exceeded the
maximum sentence allowed under the 2015 amendment.
December 22, 2017, the trial court issued a memorandum of
decision dismissing the motion to correct an illegal
sentence. It concluded that, in the absence of any language
indicating that the amendment was to be applied retroactively
to crimes committed prior to its effective date, the general
rule in Connecticut is that courts apply the law in effect at
the time of the offense. It also rejected the defendant's
argument as to the amelioration doctrine, which provides that
amendments that reduce a statutory penalty for a criminal
offense are applied retroactively. Specifically, the trial
court stated: ‘‘[B]oth our Supreme and Appellate
Courts have rejected application of the amelioration doctrine
based on the plain language of the savings
statutes.'' See General Statutes §§ 54-194
and 1-1 (t).
principal appellate brief, the defendant acknowledges that
the present case is controlled by State v.
Moore, supra, 180 Conn.App. 116, and
State v. Kalil, 314 Conn. 529, 107 A.3d 343
(2014). In Moore, this court rejected a claim that
the 2015 amendment to § 21a-279 (a) applied
retroactively. State v. Moore,
supra, 120-25. Specifically, we concluded that the
2015 amendment contained no language indicating a retroactive
application and that the absence of such language was
informative as to the legislature's intent. Id.,
123-24. ‘‘Thus, if the legislature had intended
the 2015 amendment to apply retroactively, it could have used
clear and unequivocal language indicating such intent. It did
not do so. A prospective only application of the statute is
consistent with our precedent and the legislature's
enactment of the savings statutes . . . and, therefore, the
statutory language is not susceptible to more than one
plausible interpretation.'' (Citation omitted.)
Id., 123; see also State v.
Bischoff, supra, 182 Conn.App. 579-80.
Additionally, in accordance with State v.
Kalil, supra, 314 Conn. 552-53, this court
rejected the applicability of the amelioration doctrine in
Connecticut. State v. Moore,
present appeal, the defendant expressly asks us to overrule
State v.Kalil, supra, 314 Conn.
529, State v.Moore, supra, 180
Conn.App. 116, and State v.Bischoff,
supra, 182 Conn.App. 563. We reject this invitation.
First, ‘‘[i]t is axiomatic that, [a]s an
intermediate appellate court, we are bound by Supreme Court
precedent and are unable to modify it . . . . [W]e are not at
liberty to overrule or discard the decisions of our Supreme
Court but are bound by them. . . . [I]t is not within our
province to reevaluate or replace those decisions.''
(Internal quotation marks omitted.) State v.Montanez, 185 Conn.App. 589, 605 n.5, 197 A.3d 959
(2018); see also State v.Corver, 182
Conn.App. 622, 638 n.9, 190 A.3d 941, cert. denied, 330 Conn.
916, 193 A.3d 1211 (2018). Second, ‘‘[i]t is this
court's policy that we cannot overrule a decision made by
another panel of this court absent en banc
consideration.'' State v.Joseph
B., 187 Conn.App. 106, 124 n.13, A.3d (2019); State
v.Carlos P., 171 Conn.App. 530, 545 n.12, 157
A.3d 723, cert. denied, 325 Conn. 912, 158 A.3d 321 (2017);
see also State v.Houg ...