Argued
January 29, 2019
Appeal
from the Superior Court in the judicial district of
Fairfield, Arnold, J.
Page 107
Daniel
M. Erwin, assigned counsel, with whom were Temmy Ann Miller,
assigned counsel, and, on the briefs, Nicholas Marolda,
assigned counsel, for the appellants (defendants).
Rocco
A. Chiarenza, assistant states attorney, with whom, on the
briefs, were John C. Smriga, states attorney, Marc R. Durso,
senior assistant states attorney, Nicholas J. Bove, Jr.,
senior assistant states attorney, Michael A. DeJoseph, Jr.,
senior assistant states attorney, Richard Palombo, Jr.,
former senior assistant states attorney, and Yamini Menon,
former special deputy assistant states attorney, for the
appellee (state).
Keller,
Bright and Bishop, Js.
OPINION
BISHOP,
J.
[190
Conn.App. 468] These appeals all stem from the same legal
root with factual differences not pertinent to the common
legal issues they present. In each case, the defendant was
convicted, following a plea of guilty, of, inter alia, sale
of narcotics and/or possession of narcotics with the intent
to sell by a person who is not drug-dependent, in violation
of General Statutes (Rev. to 2013) § 21a-278
(b),[1] and was sentenced to a
Page 108
term of [190 Conn.App. 469] incarceration that included the
statutorily mandated minimum sentence of five years. In each
instance, the court made no finding, nor did the defendant
admit, that he was not drug-dependent. Each defendant
subsequently filed a motion to correct an illegal sentence,
alleging, in essence, that his sentence was illegal because,
under Apprendi v. New Jersey, 530 U.S. 466, 120
S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Alleyne v. United
States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013), the state was required to plead and prove his lack of
drug dependency beyond a reasonable doubt given that it is a
fact that would result in a mandatory minimum sentence that
would expose the defendant to a higher maximum sentence. The
trial court dismissed each motion for lack of subject matter
jurisdiction, and the defendants appealed to this court. We
conclude that, in light of our Supreme Courts recent
decision in State v. Evans, 329 Conn. 770, 189 A.3d
1184 (2018), cert. denied, __ U.S. __, 139 S.Ct. 1304, 203
L.Ed.2d 425 (2019), the defendants motions to correct no
longer present colorable claims of an illegal sentence, and,
accordingly, we affirm the trial courts dismissals of their
motions.
The
records in these appeals reveal the following undisputed
facts and procedural history. On March 12, [190 Conn.App.
470] 2013, the defendant Livorio Sanchez was convicted,
following a plea of guilty, of sale of narcotics by a person
who is not drug-dependent in violation of § 21a-278 (b).
During the plea canvass, the prosecutor recited the facts
underlying the alleged sale of heroin by Sanchez, but he made
no representation as to whether Sanchez was drug-dependent.
Similarly, during the questioning of Sanchez by the court,
Arnold, J., there was no discussion of drug
dependency. Sanchez was subsequently sentenced on May 15,
2013, in accordance with an agreed upon disposition, to a
term of incarceration of twelve years, execution suspended
after eight years, followed by three years of probation. As a
condition of his probation, the court ordered that he undergo
"substance abuse evaluation and treatment including
random urinalysis ...." During the sentencing hearing,
however, there was no discussion by the court, counsel, or
Sanchez of the issue of drug dependency, nor did the court
make explicit that the defendants period of incarceration
included a mandatory minimum period of five years pursuant to
§ 21a-278 (b).
On
April 12, 2012, the defendant Michael A. Fernandes was
convicted, following a plea of guilty, of possession of
narcotics with intent to sell by a person who is not
drug-dependent in violation of § 21a-278 (b).[2] During a
colloquy with defense counsel prior to canvassing Fernandes,
the court, Arnold, J., noted, and defense counsel
agreed, that the narcotics charge included a mandatory
minimum sentence of five years of incarceration. During the
canvass itself, although the court asked Fernandes if his
counsel had advised him of the elements of the charge to
which he was pleading guilty and the mandatory minimum
penalties that he could receive, there was no mention by the
court or counsel of
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drug dependency. Having waived the requirement [190 Conn.App.
471] of a presentence investigation report, Fernandes was
immediately sentenced, pursuant to an agreed upon
disposition, to a term of incarceration of ten years,
execution suspended after five years, followed by a period of
three years of probation. In reciting Fernandes sentence,
the court stated that the ...