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State v. Sanchez

Court of Appeals of Connecticut

June 11, 2019

STATE OF CONNECTICUT
v.
LIVORIO SANCHEZ STATE OF CONNECTICUT
v.
MICHAEL A. FERNANDES STATE OF CONNECTICUT
v.
FRANCISCO RODRIGUEZ STATE OF CONNECTICUT
v.
FRANK SLAUGHTER STATE OF CONNECTICUT
v.
MICHAEL ANTHONY THIGPEN

          Argued January 29, 2019

         Procedural History

         Information, in the first case, charging the defendant with the crime of sale of narcotics by aperson who is not drug-dependent, and information, in the second case, charging the defendant with the crimes of possession of narcotics with intent to sell by a person who is not drug-dependent and interfering with a police officer, and information, in the third case, charging the defendant with the crimes of possession of narcotics with the intent to sell by a person who is not drug-dependent, possession of narcotics with the intent to sell within 1500 feet of a school, carrying a pistol without a permit, and criminal possession of a firearm by a felon, and information, in the fourth case, charging the defendant with the crimes of sale of narcotics by a person who is not drug-dependent and possession of narcotics with the intent to sell by a person who is not drug-dependent, and information, in the fifth case, charging the defendant with the crimes of sale of narcotics by a person who is not drug-dependent and possession of narcotics, brought to the Superior Court in the judicial district of Fairfield, where the defendants in the first, second and fourth cases were presented to the court, Arnold, J., on pleas of guilty, and the defendants in the third and fifth cases were presented to the court, Iannotti, J., on pleas of guilty; judgments of guilty; thereafter, the court, E. Richards, J., dismissed the defendants' motions to correct illegal sentences, and the defendants filed separate appeals to this court. Affirmed.

          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 state's attorney, with whom, on the briefs, were John C. Smriga, state's attorney, Marc R. Durso, senior assistant state's attorney, Nicholas J. Bove, Jr., senior assistant state's attorney, Michael A. DeJoseph, Jr., senior assistant state's attorney, Richard Palombo, Jr., former senior assistant state's attorney, and Yamini Menon, former special deputy assistant state's attorney, for the appellee (state).

          Keller, Bright and Bishop, Js.

          OPINION

          BISHOP, J.

         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 term of 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 Court's recent decision in State v. Evans, 329 Conn. 770, 189 A.3d 1184 (2018), cert. denied, U.S., 139 S.Ct. 1304, L.Ed.2d (2019), the defendants' motions to correct no longer present colorable claims of an illegal sentence, and, accordingly, we affirm the trial court's dismissals of their motions.

         The records in these appeals reveal the following undisputed facts and procedural history. On March 12, 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 defendant's 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 drug dependency. Having waived the requirement 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 five year period of incarceration was the mandatory minimum sentence required by the statute.

         On February 27, 2012, the defendant Francisco Rodriguez was convicted, following a plea of guilty, of possession of narcotics with the intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b).[3]In response to a question from the court, Iannotti, J., at the outset of its canvass, Rodriguez confirmed that his counsel had explained the maximum and mandatory minimum sentences to which his plea could expose him. Rodriguez also acknowledged during the canvass that by pleading guilty, he was giving up a number of enumerated rights, including the right to present defenses on his behalf at trial. Throughout the proceeding, there was no mention by the court, counsel, or Rodriguez of the issue of drug dependency. Having waived the requirement of a presentence investigation report, Rodriguez was immediately sentenced, pursuant to an agreed upon disposition, to a total effective term of incarceration of ten years, five of which reflected the mandatory minimum sentence under § 21a-278 (b).

         On September 9, 2013, the defendant Frank Slaughter was convicted, following a plea of guilty, of one count of sale of narcotics by a person who is not drug-dependent in violation of § 21a-278 (b) and two counts of possession of narcotics with the intent to sell by a person who is not drug-dependent also in violation of § 21a-278 (b). As part of a plea agreement, the other charges then pending against Slaughter were nolled by the state. At the beginning of the canvass, the state informed the court, Arnold, J., that all three counts required a mandatory minimum sentence of five years, and, in response to questioning from the court, Slaughter initially stated that he was unaware that the agreed disposition included a mandatory minimum period of incarceration of five years. After a brief colloquy, however, Slaughter stated to the court that he understood that the sentencetobe imposed would carry a minimum term of five years of incarceration.

         The record further reflects that before the court sentenced Slaughter, but after the court had stated the sentences to be imposed, Slaughter interjected as follows: ‘‘[A]s long as I've been coming in and out of the courthouse, I've been drug-dependent. I been drug-dependent. Now that I'm being charged with a drug-dependent case, how is that . . . .'' At this juncture, the court pointed out to Slaughter the number of charges initially confronting him and the fact that, if he was convicted after trial, he could face ‘‘close to eighty years' worth of exposure.'' The court continued to inform Slaughter that it would accept his guilty pleas only if they were made voluntarily, and it offered him the opportunity either to withdraw his pleas or to proceed with the sentencing. Slaughter responded, ‘‘[p]roceed.'' After confirming Slaughter's response, the court found that his guilty pleas were knowingly and voluntarily made and found him guilty as to all three counts. Because Slaughter waived the requirement of a presentence investigation report, the court proceeded immediately to sentence him, pursuant to an agreed upon disposition, to twelve years of incarceration for each count, execution suspended after seven years, five of which were mandatory, followed by a five year period of probation. As a condition of his probation, the court ordered that Slaughter undergo ‘‘substance abuse evaluation and treatment as deemed appropriate by the Department of Adult Probation.'' Other than Slaughter's statement that he was drug-dependent, there was no discussion by the court or counsel regarding the relationship between drug dependency and the criminal charges to which Slaughter pleaded guilty. Notably, when Slaughter raised the issue of his drug dependency, there was no discussion by the court or counsel as to whether such a claim could be a defense to any of the charges.

         On July 26, 2011, the defendant Michael Anthony Thigpen 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).[4] During the canvass, Thigpen confirmed with the court, Iannotti, J., that his counsel had discussed with him the elements of the offenses to which he was pleading guilty, as well as the maximum and mandatory minimum sentences to which his guilty pleas would expose him. Thigpen also acknowledged that he was giving up his right to present defenses by pleading guilty. There was no discussion by the court, counsel, or Thigpen of the issue of drug dependency. On September 22, 2011, pursuant to an agreed upon disposition, Thigpen was sentenced to a term of incarceration of fifteen years, execution suspended after eight years, five of which were mandatory, to be followed by three years of probation. As conditions of his probation, the court ordered him to undergo substance abuse evaluation and treatment, as deemed necessary, and to attend ‘‘ten weekly [Narcotics Anonymous] meetings.'' ...


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