State v. Sanchez

         Argued January 29, 2019

          Appeal from the Superior Court in the judicial district of Fairfield, Arnold, J.

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          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.

         [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

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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 Court’s 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 court’s 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 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

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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 ...