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.'' ...