Argued
December 12, 2018
Procedural
History
Substitute
information charging the defendant with two counts each of
the crimes of attempt to commit murder and assault in the
first degree, and with one count each of the crimes of murder
and conspiracy to commit murder, brought to the Superior
Court in the judicial district of Hartford and tried to the
jury before O'Keefe, J.; verdict and judgment of
guilty, from which the defendant appealed to this court,
which affirmed the trial court's judgment; thereafter,
the defendant, on the granting of certification, appealed to
the Supreme Court, which reversed this court's judgment
and remanded the case to this court with direction to reverse
the trial court's judgment as to the defendant's
sentence and to remand the case to the trial court for a new
sentencing proceeding; subsequently, the court,
O'Keefe, J., denied the defendant's motion
for recusal and, following a hearing, rendered judgment
imposing sentence, from which the defendant appealed to this
court. Affirmed.
Michael W. Brown, assigned counsel, for the appellant
(defendant).
Melissa Patterson, assistant state's attorney, with whom,
on the brief, were Gail P. Hardy state's attorney, and
John F. Fahey, supervisory assistant state's attorney,
for the appellee (state).
Keller, Elgo and Bright, Js.
OPINION
KELLER, J.
The
defendant, Ackeem Riley, appeals from the judgment of the
trial court resentencing him following the decision of our
Supreme Court, which reversed the judgment of this court and
remanded the case to this court with direction to reverse the
judgment of the trial court with respect to the
defendant's original sentence and to remand the case to
the trial court for a new sentencing proceeding. See
State v. Riley, 315 Conn. 637, 663, 110
A.3d 1205 (2015), cert. denied, U.S., 136 S.Ct. 1361, 194
L.Ed.2d 376 (2016). The defendant claims that the trial court
(1) failed to disqualify itself from presiding over the
resentencing proceeding, and (2) violated the rescript of
Riley, ignored important constitutional principles,
and failed to comply with applicable mandatory statutory
requirements when it resentenced him to seventy years of
incarceration. We disagree and, accordingly, affirm the
judgment of the trial court.
The
following facts, as set forth by our Supreme Court, are
relevant to this appeal. ‘‘In November, 2006,
when the defendant was seventeen years old, he participated
in a drive-by shooting into a crowd that left an innocent
sixteen year old dead and two other innocent bystanders, ages
thirteen and twenty-one, seriously injured. The defendant and
his accomplice thought that someone responsible for a gang
related shooting the previous week was at the scene. The
defendant's identity as one of the perpetrators was
corroborated by his involvement in an incident two months
after the crimes at issue in which a firearm was discharged
that matched the weapon used in the 2006 shootings. A jury
convicted the defendant of one count of murder in violation
of General Statutes §§ 53a-54a (a) and 53a-8, two
counts of attempt to commit murder in violation of General
Statutes §§ 53a-49 (a) (2) and 53a-54a (a), two
counts of assault in the first degree in violation of General
Statutes §§ 53a-59 (a) (5) and 53a-8, and one count
of conspiracy to commit murder in violation of General
Statutes §§ 53a-48 (a) and 53a-54a (a). The murder
conviction exposed the defendant to a potential sentence of
twenty-five to sixty years imprisonment, with no possibility
of parole. See General Statutes §§ 53a-35a (2),
53a-35b and 54-125a (b) (1) (E). The other convictions
exposed him to sentences ranging from one year imprisonment
to twenty years imprisonment.'' State v.
Riley, supra, 315 Conn. 641-42. The trial
court imposed a total effective sentence of 100 years of
incarceration. Id., 642.
In his
initial appeal to this court; State v.
Riley, 140 Conn.App. 1, 58 A.3d 304 (2013),
rev'd, 315 Conn. 637, 110 A.3d 1205 (2015), cert. denied,
U.S., 136 S.Ct. 1361, 194 L.Ed.2d 376 (2016); the defendant
argued that his sentence and the procedure under which it was
imposed violated his rights under the eighth and fourteenth
amendments to the federal constitution. Id., 4, 10
and n.7. In particular, the defendant argued that the United
States Supreme Court's decision in Miller v.
Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d
407 (2012), which held that the eighth amendment forbids a
sentencing scheme that mandates life in prison without the
possibility of parole for juvenile offenders, rendered the
manner in which his sentence was imposed
unconstitutional.[1] State v. Riley,
supra, 9. This court rejected the defendant's
contentions and affirmed the judgment of the trial court.
Id., 21.
On
appeal to our Supreme Court, the defendant argued that this
court's decision was incorrect as a matter of law and
fact. State v. Riley, supra, 315
Conn. 643-44. For reasons set forth in greater detail in part
II of this opinion, our Supreme Court agreed with the
defendant and reversed this court's judgment and remanded
the case to this court with direction to reverse the judgment
of the trial court only with respect to the defendant's
sentence, and to remand the case to the trial court for a new
sentencing proceeding consistent with its opinion.
Id., 663.
On
remand to the trial court, the defendant filed a motion for
recusal dated June 24, 2016. The basis for most of his
arguments stemmed primarily from the fact that the
resentencing judge, O'Keefe, J., was the same
judge who had presided over his trial and had imposed the
original sentence. The defendant argued, for various reasons,
that Practice Book § 1-22, General Statutes §
51-183c, rule 2.11 of the Code of Judicial Conduct, and the
due process clause of the fourteenth amendment required
recusal. On August 11, 2016, the court held a hearing on the
motion for recusal and ultimately denied the motion after
hearing the parties' arguments.
On
November 2, 2016, the defendant appeared before the court for
resentencing. At the hearing, the court addressed, among
other things, the considerations set forth in our Supreme
Court's decision in Riley and the relevant
statutory provisions applicable to the defendant's
sentencing. After a lengthy colloquy, the court resentenced
the defendant to a total effective term of seventy years of
incarceration, noting that he was eligible for parole. This
appeal followed. Additional facts will be set forth as
necessary.
I
On
appeal, the defendant first claims that the trial court erred
by not granting his motion for recusal. In his view, the
court was required to recuse itself pursuant to §
51-183c, Practice Book § 1-22, rule 2.11 of the Code of
Judicial Conduct, and the due process clauses of the fifth
and fourteenth amendments to the United States constitution.
The state argues, inter alia, that neither our rules of
practice nor our statutes prohibited the court from presiding
over the defendant's resentencing proceeding. For the
reasons discussed herein, we agree with the state.
A
We
begin by first addressing whether § 51-183c and Practice
Book § 1-22 required the court to recuse itself on
remand following the reversal of the defendant's original
sentence.
As a
preliminary matter, we set forth the applicable standard of
review. Although our review of whether a court properly
denied a motion for recusal is based on the abuse of
discretion standard; see State v. Milner,
325 Conn. 1, 12, 155 A.3d 730 (2017); the claims in the
present case require us to determine whether § 51-183c
and Practice Book § 1-22 required recusal in this
situation, which presents a question of statutory
interpretation. Therefore, our review is plenary. See
Patino v. Birken Mfg. Co., 304 Conn. 679,
688, 41 A.3d 1013 (2012).
To
begin, the defendant's argument that §
51-183c[2] required the court to recuse itself in
this case is unpersuasive because it is easily foreclosed by
our Supreme Court's decision in State v.
Miranda, 260 Conn. 93, 794 A.2d 506, cert. denied,
537 U.S. 902, 123 S.Ct. 224, 154 L.Ed.2d 175 (2002). In
Miranda, our Supreme Court addressed a similar
situation in which a defendant claimed that § 51-183c
required that his case be ‘‘assigned to another
trial judge for resentencing.'' Id., 131.
After our Supreme Court analyzed the statute in relation to
other pertinent authorities, it concluded that
‘‘the legislature did not intend for §
51-183c to apply to a sentencing procedure.''
Id., 132; see also Daley v. J.B. Hunt
Transport, Inc., 187 Conn.App. 587, 601 n.17, 203 A.3d
635 (2019) (explaining that sentencing hearing is proceeding
‘‘to which § 51-183c does not
apply''). Although the defendant attempts to
distinguish Miranda in various ways, none is
persuasive.[3] To say more on the matter would be
supererogatory.
With
that in mind, though, the defendant argues that Practice Book
§ 1-22 provides an independent basis for recusal
separate from § 51-183c. In particular, he focuses on
the specific language of the rule that provides that
‘‘[a] judicial authority shall, upon motion of
either party or upon its own motion, be disqualified from
acting in a matter if such judicial authority is disqualified
from acting therein . . . because the judicial authority
previously tried the same matter and . . . the judgment
was reversed on appeal.'' (Emphasis added.)
Practice Book § 1-22 (a). He argues that because a
sentence imposed in a criminal case constitutes the judgment
of conviction, and because the defendant's sentence was
in fact reversed, the trial court that originally tried and
sentenced him was required, on remand, to recuse itself for
the resentencing hearing.
Despite
the defendant's contention, our decision in Barlow
v. Commissioner of Correction, 166 Conn.App.
408, 422, 142 A.3d 290 (2016), appeal dismissed, 328 Conn.
610, 182 A.3d 78 (2018), undermines the defendant's
claim. In Barlow, we addressed briefly the interplay
between the two provisions. The petitioner in that case
claimed that the habeas court improperly denied his motion
for recusal, in which he relied on § 51-183c, Practice
Book § 1-22 (a), and rule 2.11 (a) of the Code of
Judicial Conduct. Id., 421. With respect to that
claim, we stated that ‘‘[t]he mandate of §
51-183c, a subject of prior judicial interpretation, is plain
and unambiguous. It provides in relevant part: ‘No
judge of any court who tried a case without a jury . . . in
which the judgment is reversed by the Supreme Court, may
again try the case. . . .' General Statutes §
51-183c.'' Barlow v. Commissioner of
Correction, supra, 422. Significant to the
present case, we explained that ‘‘[o]ur rules of
practice give effect to this statutory right [in
§ 51-183c] by providing in relevant part: ‘A
judicial authority shall, upon motion of either party or upon
its own motion, be disqualified from acting in a matter if
such judicial authority is disqualified from acting therein .
. . because the judicial authority previously tried the same
matter and . . . the judgment was reversed on appeal. . .
.' Practice Book § 1-22 (a).'' (Emphasis
added.) Barlow v. Commissioner of
Correction, supra, 422.
Although
the facts of Barlow differ from those in the present
case, our discussion in that case makes clear that the
specific language in Practice Book § 1-22 on which the
defendant now relies is intended to ‘‘give
effect'' to the mandate in § 51-183c, rather
than provide for an independent ground for recusal. See
id. To adopt the defendant's position would
yield a peculiar result where the judge would be required
under the rules of practice to recuse himself from
resentencing a defendant after the initial sentence he
imposed was reversed, but he would not be required to do so
under the statute that the rule was intended to effectuate.
As we noted previously, our Supreme Court has concluded that
‘‘the legislature did not intend for §
51-183c to apply to a sentencing procedure.''
State v. Miranda, supra, 260 Conn.
132. Furthermore, because the rules promulgated by the judges
of the Superior Court cannot ‘‘abridge, enlarge
or modify any substantive right''; General Statutes
§ 51-14 (a); we conclude that the language in Practice
Book § 1-22 (a), which requires disqualification when
the ‘‘judicial authority previously tried the
same matter and . . . the judgment was reversed on appeal,
'' also does not apply to a sentencing procedure.
Accordingly,
we conclude that recusal was not required under §
51-183c or Practice Book § 1-22. Thus, the defendant has
not demonstrated an abuse of discretion on these grounds.
B
The
defendant similarly argues that pursuant to rule 2.11 of the
Code of Judicial Conduct, as referenced in Practice Book
§ 1-22, disqualification was required because the trial
court's impartiality reasonably could be questioned. The
defendant makes clear that his ‘‘claim is not
that [the] sentencing court was specifically biased
against the defendant. Rather, the defendant's
claim is that the sentencing court was biased in favor of
justifying its initial imposition of a harsh sentence against
the defendant.'' (Emphasis in original.) In support
of this contention, he argues, inter alia, that the
court's original imposition of a 100 year sentence
‘‘had an ‘anchoring effect' that
prevented the sentencing court from approaching the
resentencing hearing with a fully open mind that would allow
the court to fully ...