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State v. McCleese

Supreme Court of Connecticut

August 23, 2019

STATE OF CONNECTICUT
v.
WILLIAM MCCLEESE

          Argued October 15, 2018

         Procedural History

         Substitute information charging the defendant with the crimes of murder, conspiracy to commit murder, assault in the first degree and conspiracy to commit assault in the first degree, brought to the Superior Court in the judicial district of New Haven and tried to the jury before Harper, J.; verdict and judgment of guilty of murder, conspiracy to commit murder and assault in the first degree, from which the defendant appealed to the Appellate Court, Bishop, McLachlan and Dupont, Js., which affirmed the trial court's judgment; thereafter, the court, Clifford, J., dismissed the defendant's motion to correct an illegal sentence, and the defendant appealed. Affirmed.

          Adele V. Patterson, senior assistant public defender, with whom was Beth A. Merkin, public defender, for the appellant (defendant).

          Melissa Patterson, deputy assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Matthew A. Weiner and Lisa M. D'Angelo, assistant state's attorneys, for the appellee (state).

          Kim E. Rinehart filed a brief for the Connecticut Psychiatric Society as amicus curiae.

          Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

          OPINION

          D'AURIA, J.

         Under the federal constitution's prohibition of cruel and unusual punishments, a juvenile offender cannot serve a sentence of imprisonment for life, or its functional equivalent, without the possibility of parole, unless his age and the hallmarks of adolescence have been considered as mitigating factors. Miller v. Alabama, 567 U.S. 460, 476-77, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012); Casiano v. Commissioner of Correction, 317 Conn. 52, 60-61, 115 A.3d 1031 (2015), cert. denied sub nom. Semple v. Casiano, U.S., 136 S.Ct. 1364, 194 L.Ed.2d 376 (2016); State v. Riley, 315 Conn. 637, 641, 110 A.3d 1205 (2015), cert. denied, U.S., 136 S.Ct. 1361, 194 L.Ed.2d 376 (2016). The defendant, William McCleese, a juvenile offender, was originally serving a sentence of imprisonment for the functional equivalent of his life without the possibility of parole, in violation of this constitutional mandate. Because of subsequent legislation, however, he will be eligible for parole in or about 2033. This appeal requires us to decide whether the legislature may remedy the constitutional violation with parole eligibility. We conclude that it may and has done so.

         The following undisputed facts and procedural history, as contained in the record and the Appellate Court's decision in the defendant's direct appeal, are relevant to this appeal. The defendant was seventeen years old when he and a partner shot and killed one victim and injured another. State v. McCleese, 94 Conn.App. 510, 512, 892 A.2d 343, cert. denied, 278 Conn. 908, 899 A.2d 36 (2006). In 2003, a jury found the defendant guilty of murder in violation of General Statutes § 53a-54a (a), conspiracy to commit murder in violation of § 53a-54a (a) and General Statutes § 53a-48 (a), and assault in the first degree in violation of General Statutes § 53a-59 (a) (5). Id., 511.

         The defendant received a total effective sentence of eighty-five years of imprisonment without eligibility for parole, including sixty years on the conviction of murder. Although the sentencing court, Harper, J., considered other mitigating evidence and mentioned the defendant's youth several times, there is no express reference in the record that it specifically considered youth as a mitigating factor, which, at the time, was not a constitutional requirement. See Miller v. Alabama, supra, 567 U.S. 460. The Appellate Court affirmed his conviction on direct appeal; State v. McCleese, supra, 94 Conn.App. 521; and this court denied his petition for certification to appeal from the Appellate Court's judgment. State v. McCleese, 278 Conn. 908, 899 A.2d 36 (2006).

         Subsequently, decisions by the United States Supreme Court, decisions by this court, and enactments by our legislature resulted in changes to the sentencing scheme for juvenile offenders. Those changes will be set forth more fully in this opinion, but a brief summary helps to understand the procedural posture of this case. Specifically, the United States Supreme Court in Miller held that the eighth amendment's prohibition on cruel and unusual punishments is violated when a juvenile offender serves a mandatory sentence of life imprisonment without the possibility of parole because it renders ‘‘youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence'' and ‘‘poses too great a risk of disproportionate punishment.'' Miller v. Alabama, supra, 567 U.S. 479. Thus, an offender's age and the hallmarks of adolescence must be considered as mitigating factors before a juvenile can serve this particular sentence.[1] This court has interpreted Miller to apply not only to mandatory sentences for the literal life of the offender, but also to discretionary sentences and sentences that result in imprisonment for the ‘‘functional equivalent'' of an offender's life. State v. Riley, supra, 315 Conn. 642, 654; see also Casiano v. Commissioner of Correction, supra, 317 Conn. 72. We also have ruled that Miller applies not only prospectively, but retroactively, and also to challenges to sentences on collateral review. Casiano v. Commissioner of Correction, supra, 71.

         To comport with federal constitutional requirements, the legislature passed No. 15-84 of the 2015 Public Acts (P.A. 15-84).[2] In relevant part, the act retroactively provided parole eligibility to juvenile offenders sentenced to more than ten years in prison. See P.A. 15-84, § 1. As a result, the defendant is no longer serving a sentence without the possibility of parole-he will be parole eligible after serving thirty years, when he is about fifty years old.

         Following these developments, the defendant filed a motion to correct an illegal sentence. He asserted a Miller claim under the federal constitution and a similar claim under the state constitution.[3] Initially, the trial court, Clifford, J., ruled in the defendant's favor on his federal constitutional claim but reserved ruling on a remedy for the federal violation and on the merits of the state constitutional claim.

         Three days after the trial court's initial ruling on the motion to correct an illegal sentence, the United States Supreme Court held that Miller applied retroactively. Montgomery v. Louisiana, U.S., 136 S.Ct. 718, 732, 193 L.Ed.2d 599 (2016). In other words, a Miller violation existed if a juvenile offender was serving life without parole without the trial court's having considered the Miller factors, even if the sentencing took place before Miller had been decided. Although this court in Casiano had already established that Miller applied retroactively, critically, Montgomery also made clear that ‘‘[Miller's] retroactive effect . . . does not require [s]tates to relitigate sentences, let alone convictions, in every case [in which] a juvenile offender received mandatory life without parole. A [s]tate may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.'' Id., 736.

         Relying on Montgomery, the state filed a motion to reconsider the trial court's ruling granting the defendant's motion to correct an illegal sentence. After briefing and argument, the court granted the motion to reconsider, concluded that the defendant's Miller claim was now moot under both the federal and state constitutions, and dismissed the motion to correct an illegal sentence. The defendant appealed from that decision to the Appellate Court. The defendant's appeal was then transferred to this court. See Practice Book § 65-2.

         In this appeal, we must decide whether the trial court had subject matter jurisdiction over the defendant's motion to correct an illegal sentence. Subject matter jurisdiction ‘‘involves the authority of the court to adjudicate the type of controversy presented by the action before it.'' (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 533, 911 A.2d 712 (2006). The existence of jurisdiction is a question of law, and our review is plenary. Id., 532. A trial court generally has no authority to modify a sentence but retains limited subject matter jurisdiction to correct an illegal sentence or a sentence imposed in an illegal manner. State v. Delgado, 323 Conn. 801, 809, 151 A.3d 345 (2016). Practice Book § 43-22[4] codifies this common-law rule. Id. Therefore, we must decide ‘‘whether the defendant has raised a colorable claim within the scope of Practice Book § 43-22 . . . . In the absence of a colorable claim requiring correction, the trial court has no jurisdiction . . . .'' (Citation omitted.) Id., 810.

         In the present case, whether the defendant has made out a colorable claim depends on (1) whether the parole eligibility afforded by P.A. 15-84 adequately remedies an unconstitutional sentence under the state constitution, (2) whether, consistent with separation of powers principles embodied in the Connecticut constitution, [5]the legislature may remedy an unconstitutional sentence that was imposed by the judiciary, and (3) whether P.A. 15-84 violates the defendant's right to equal protection. We hold that the defendant has not made out a colorable claim and that the trial court lacked jurisdiction over his motion.

         I

         The defendant first claims that the parole eligibility afforded by P.A. 15-84, § 1, does not remedy a Miller violation under the Connecticut constitution. Specifically, he argues that a juvenile sentenced to fifty years or more without consideration of the Miller factors must be resentenced in accordance with Miller, regardless of whether he is eligible for parole. We disagree and conclude that parole eligibility under P.A. 15-84, § 1, is an adequate remedy for a Miller violation under our state constitution just as it is under the federal constitution.

         This court has not yet addressed this issue. In State v. Geisler, 222 Conn. 672, 684-85, 610 A.2d 1225 (1992), ‘‘we identified six nonexclusive tools of analysis to be considered, to the extent applicable, whenever we are called on as a matter of first impression to define the scope and parameters of the state constitution: (1) persuasive relevant federal precedents; (2) historical insights into the intent of our constitutional forebears; (3) the operative constitutional text; (4) related Connecticut precedents; (5) persuasive precedents of other states; and (6) contemporary understandings of applicable economic and sociological norms, or, as otherwise described, relevant public policies. . . . These factors, [commonly referred to as the Geisler factors and] which we consider in turn, inform our application of the established state constitutional standards-standards that . . . derive from United States Supreme Court precedent concerning the eighth amendment-to the defendant's claims in the present case.'' (Citations omitted.) State v. Santiago, 318 Conn. 1, 17-18, 122 A.3d 1 (2015).

         A

         1

         Federal Precedent

         It is not critical to a proper Geisler analysis that we discuss the various factors in any particular order or even that we address each factor. See Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 408, 119 A.3d 462 (2015). Because the point of departure that the defendant advocates for requires an understanding of the federal jurisprudence on the sentencing of juveniles, we begin witha survey of those precedents.

         Federal precedent requires special treatment of juveniles when especially harsh punishments are imposed. The cases justify this treatment, in part, by acknowledging that juveniles are less deserving of criminal punishment and are more capable of change than their adult counterparts. But federal case law also relies on the severity of the punishments at issue in these cases: death and life imprisonment without parole. Precisely because these punishments are irrevocable, they are ‘‘disproportionate for the vast majority of juvenile offenders . . . .'' Montgomery v. Louisiana, supra, 136 S.Ct. 736. This rationale does not support similar special treatment of juveniles who are parole eligible, notwithstanding the length of the sentence imposed, because they are afforded the opportunity to ‘‘demonstrate the truth of Miller's central intuition-that children who commit even heinous crimes are capable of change.'' Id.

         The eighth amendment to the United States constitution provides: ‘‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.'' U.S. Const., amend. VIII. The cruel and unusual punishments clause has been understood to bar ‘‘(1) inherently barbaric punishments; (2) excessive and disproportionate punishments; and (3) arbitrary or discriminatory punishments.'' State v. Santiago, supra, 318 Conn. 19. ‘‘For the most part, however, the [United States Supreme] Court's precedents consider punishments challenged . . . as disproportionate to the crime. The concept of proportionality is central to the [e]ighth [a]mendment.'' Graham v. Florida, 560 U.S. 48, 59, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). There are two types of proportionality challenges: (1) ‘‘challenges to the length of term-of-years sentences given all the circumstances in a particular case, '' and (2) categorical challenges balancing ‘‘the nature of the offense . . . [or] the characteristics of the offender'' against a particular type of sentence. Id., 60.

         The United States Supreme Court's juvenile sentencing cases have involved categorical proportionality challenges, as does the defendant's claim in this appeal. Therefore, in this context, the court has weighed the characteristics of juvenile offenders against the severity of sentences of death or life imprisonment without parole.

         On one hand, the court has considered ‘‘the unique aspects of adolescence . . . .'' State v. Riley, supra, 315 Conn. 644-45. It repeatedly has recognized that ‘‘children are constitutionally different from adults for purposes of sentencing.'' Miller v. Alabama, supra, 567 U.S. 471. Juvenile offenders have ‘‘diminished culpability and greater prospects for reform'' than their adult counterparts because they are less mature, more vulnerable to external influences like peers, and have character traits that are not yet fully ingrained. Id. These observations ‘‘[rest] not only on common sense-on what ‘any parent knows'-but on science and social science . . . .'' Id. And, none of them is crime specific. Id., 473.

         On the other hand, the court has considered the severity of the punishments imposed: death or life imprisonment without parole. Sentence severity is critical to a categorical proportionality analysis. Prior to Graham, categorical challenges had been applied only to the death penalty. Graham v. Florida, supra, 560 U.S. 59; see also Kennedy v. Louisiana, 554 U.S. 407, 438, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) (nonhomicide offenders); Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (juvenile offenders); Atkins v. Virginia, 536 U.S. 304, 318, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (offenders with limited intellectual functioning). For juvenile offenders, however, the court extended categorical challenges to apply to sentences of life imprisonment without parole in certain contexts. Graham v. Florida, supra, 61. It first banned all sentences of life without parole for juvenile nonhomicide offenders; id., 82; and then the mandatory imposition of sentences of life without parole for juvenile homicide offenders. Miller v. Alabama, supra, 567 U.S. 465.

         Miller, in particular, justified the extension of the categorical approach for two reasons, both of which relate to the irrevocability of a life-without-parole punishment. First, the court stated that traditional penological justifications could not warrant a mandatory, irrevocable punishment for a juvenile. Id., 472. Most relevant here, if a sentencing court determines that an offender is incapable of change, then incapacitation and the impossibility of rehabilitation justify his permanent imprisonment. See id., 472-73. But, the court noted, this determination is fundamentally ‘‘at odds with a child's capacity for change, '' so it presents a contradiction when applied to juvenile offenders. Id., 473; see also id., 472-73 (‘‘[d]eciding that a juvenile offender forever will be a danger to society would require mak-[ing] a judgment that [he] is incorrigible-but incorrigibility is inconsistent with youth'' [internal quotation marks omitted]).

         Second, the court ‘‘liken[ed] life-without-parole sentences imposed on juveniles to the death penalty itself.'' Id., 474. The two ‘‘share some characteristics . . . that are shared by no other sentences, '' such as irrevocability by ‘‘[i]mprisoning an offender until he dies . . . .'' (Internal quotation marks omitted.) Id., 474-75. The comparison is even more apt in the juvenile context: a life-without-parole sentence is ‘‘especially harsh'' for juveniles ‘‘because [a juvenile offender] will almost inevitably serve more years and a greater percentage of his life in prison than an adult offender.'' (Internal quotation marks omitted.) Id., 475. Moreover, life imprisonment without parole is the ‘‘harshest possible penalty'' available for a juvenile, after Roper barred capital punishment for juveniles. Id., 479. Therefore, the court ‘‘treated [life imprisonment without parole] similarly to that most severe punishment'' by adopting ‘‘a distinctive set of legal rules'' that had been applied only in death penalty cases. Id., 475. These rules required individualized sentencing, thereby ensuring that the most severe punishments were not inevitable but were ‘‘reserved only for the most culpable [juvenile] defendants committing the most serious offenses.'' Id., 476.

         But when a juvenile is eligible for parole, the punishment is no longer irrevocable, and, therefore, these rationales no longer apply (or, at least, not nearly with as much force). The first reason collapses if state law permits a juvenile to become parole eligible because the punishment expressly acknowledges that the offender might one day change and reenter society. Similarly, the justification for individualized sentencing-the harshness of a life sentence without parole, which will often mean a much longer period of incarceration than an adult will have with the same sentence-weakens considerably when state law provides an offender the chance for early release. A punishment with the possibility of parole is surely less harsh than one without it.

         Not only was Miller's reasoning limited to sentences that do not include parole eligibility, but its holding was as well. Id., 479 (‘‘[w]e therefore hold that the [e]ighth [a]mendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders''). In Montgomery, the court took the opportunity to reiterate that life-with-parole sentences were constitutional, as it expressly permitted states to remedy Miller violations with parole eligibility. ‘‘Allowing those offenders [sentenced in violation of Miller] to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity-and who have since matured-will not be forced to serve a disproportionate sentence . . . . The opportunity for release will be afforded to those who demonstrate the truth of Miller's central intuition-that children who commit even heinous crimes are capable of change.'' Montgomery v. Louisiana, supra, 136 S.Ct. 736.

         In sum, the United States Supreme Court's juvenile sentencing cases rest as much on the diminished moral culpability and enhanced capacity for rehabilitation of a juvenile offender as on the irrevocability of a punishment of death or life imprisonment without parole. To dismiss the effect of parole eligibility-which makes a punishment less severe by affording the opportunity to demonstrate change-would undercut their reasoning entirely.

         2

         Connecticut Constitutional Text and History

         Textually, article first, §§ 8 and 9, of the state constitution establish principles of due process and serve as the basis for Connecticut's prohibition against cruel and unusual punishments but provide no insight into Miller. See State v. Santiago, supra, 318 Conn. 16 (‘‘the constitution of Connecticut prohibits cruel and unusual punishments under the auspices of the dual due process provisions contained in article first, §§ 8 and 9''). The defendant does not contend, and we have not held, that the text of these provisions of Connecticut's constitution itself, compared with the text of the federal constitution, suggests any enhanced protection under the state constitution. Moreover, although neither due process provision expressly differentiates between juveniles and adults, we draw no conclusion from the fact that ‘‘the framers of the 1818 constitution decided to embed these traditional [freedoms from cruel and unusual punishments] in our dual due process clauses . . . rather than in an express punishments clause.'' (Citation omitted.) Id., 39.

         Neither does Connecticut's constitutional history support the defendant's argument. In the early 1800s, Connecticut accounted for the differences between juvenile and adult offenders, but in ways plainly distinguishable from Miller.

         One seminal distinction was the availability of the infancy defense: an offender less than seven years of age was conclusively presumed incapable of committing a crime, whereas an offender between the ages of seven and fourteen was presumed incapable, but the presumption was rebuttable. Offenders older than fourteen were treated as adults. In re Tyvonne M., 211 Conn. 151, 156, 558 A.2d 661 (1989). Other distinctions were less formal. Legislative pardons for juveniles were inconsistent but not uncommon; N. Steenburg, Children and the Criminal Law in Connecticut, 1635-1855: Changing Perceptions of Childhood (2005) p. 189 (from 1810 to 1830, General Assembly granted nine of twenty petitions for clemency by juvenile offenders, which was a higher percentage than granted to adult offenders); see also A. Kean, ‘‘The History of the Criminal Liability of Children, '' 53 Law. Q. Rev. 364, 364-66 (1937) (discussing common-law recognition in England as early as thirteenth century of lesser moral culpability of child offenders and development of tendency to pardon them); and juries even may have hesitated to find juveniles guilty during this era. See N. Steenburg, supra, p. 31 (‘‘[t]he General Assembly heard reports that underage criminals were aware that juries did not want to send them to the state prison''). Eventually, juveniles began to receive special treatment in criminal proceedings beyond the infancy defense, such as the appointment of guardians. Id., pp. 23-24, 186-87. By 1843, the legislature had enacted a discretionary sentencing scheme allowing courts to send offenders under age seventeen to less harsh county facilities instead of the state run prisons mandated for adult offenders. Id., p. 200; see Public Acts 1843, c. 21. And, in 1851, it established a separate reform school to house offenders under age sixteen. N. Steenburg, supra, pp. 204-205; see Public Acts 1851, c. 46.

         But these protections did not always apply. The laws in place to protect juveniles at the time of ratification were inconsistently followed in practice. See, e.g., N. Steenburg, supra, p. 192 (‘‘the use of . . . guardians was inconsistent and often ineffective''). And the most significant reforms-discretionary sentencing and a reform school-occurred well after the state constitution had been adopted. Even then, although the location where an offender would serve his sentence could be modified, the duration could not: ‘‘Because state sentencing guidelines did not specifically allow consideration of mitigating circumstances, many children served what appeared to be excessively harsh sentences . . . for crimes of youthful disobedience or heedlessness. Judges often had no choice in assigning jail or prison sentences because the General Assembly mandated specific sentences for many crimes.'' Id., pp. 31-32. This meant juveniles often received the same criminal punishments as adults, including life imprisonment at the state's most notorious prison, Newgate, and even death. See W. Bailey, Children Before the Courts in Connecticut (1918) p. 19 (‘‘it was legally possible for a boy barely over [seven] years of age to be committed to Newgate for life''); 2 Z. Swift, A System of the Laws of the State of Connecticut (1796) p. 368 (‘‘[a] boy of eight years of age, has been executed for burning two barns''); V. Streib & L. Sametz, ‘‘Executing Female Juveniles, '' 22 Conn. L. Rev. 3, 13-15 (1989) (describing execution of twelve year old girl in 1786).

         Thus, although Connecticut historically acknowledged that juvenile offenders are different from their adult counterparts and developed measures to allow courts to account for the disparity, the measures Connecticut has used are distinguishable from the one required by Miller. In the early 1800s, juvenile status appeared to end at an offender's fourteenth birthday. When protections were technically available, they were discretionary, inconsistently applied, or both. And when protections were actually invoked, most addressed criminal liability (e.g., the infancy defense) or criminal procedure (e.g., the appointment of guardians), but not criminal punishment. Even the state's later sentence mitigation reforms were merely permissive and only allowed a court to change the location where a defendant would serve a sentence. Mandatory consideration of age and the hallmarks of adolescence prior to imposing certain punishments on juvenile offenders is a much more recent development. Therefore, Connecticut constitutional history does not support the defendant's argument that only resentencing, and not parole eligibility, can remedy a Miller violation.

         3

         Connecticut Precedent

         This court has not yet addressed Miller as a matter of substantive state law. Our prior decisions on the subject have been limited to procedural state law and federal law. We, therefore, consider these cases as persuasive precedent but conclude that they do not support a rule that requires resentencing for punishments that include parole eligibility.

         Casiano is the only case in which we have addressed cruel and unusual punishment as it relates specifically to juveniles under state law, as opposed to federal law. In that case, we concluded that Miller was a watershed rule of criminal procedure, and, therefore, it applied retroactively to cases arising on collateral review. Casi-ano v. Commissioner of Correction, supra, 317 Conn. 69, 71. As the defendant notes, we stated broadly that consideration of the Miller factors in sentencing was ‘‘implicit in the concept of ordered liberty'' and ‘‘central to an accurate determination that the sentence imposed is a proportionate one.'' (Internal quotation marks omitted.) Id., 69. But our interpretation of Miller was clearly more limited. We recognized that Miller ‘‘set forth a presumption that a juvenile offender would not receive a life sentence without parole''; id., 70; and repeatedly recognized that the rule was limited to that ‘‘particular punishment.'' Id., 71.

         As a matter of federal law, this court expressly and recently has held that parole eligibility is an adequate remedy for a Miller violation. In State v. Delgado, supra, 323 Conn. 810, the defendant originally had been sentenced without consideration of the Miller factors to the functional equivalent of life imprisonment without parole. With the enactment of P.A. 15-84, § 1, however, he became parole eligible. Id. Weheld that this remedied the constitutional violation: ‘‘[U]nder Miller, a sentencing court's obligation to consider youth related mitigating factors is limited to cases in which the court imposes a sentence of life, or its equivalent, without parole. . . . As a result [of P.A. 15-84, § 1], the defendant's sentence no longer falls within the purview of Miller, Riley and Casiano, which require consideration of youth related mitigating factors only if the sentencing court imposes a sentence of life without parole. . . . Miller simply does not apply when a juvenile's sentence provides an opportunity for parole . . . .'' (Citations omitted; emphasis altered.) Id., 811; see also part II of this opinion.

         This court also has stated more broadly that Miller does not apply to sentences that ‘‘lack the severity of the sentences at issue in Roper, Graham and Miller.'' State v. Taylor G., 315 Conn. 734, 744-45, 110 A.3d 338 (2015). In Taylor G., we concluded that a juvenile offender's mandatory total effective sentence of ten years of incarceration followed by three years of special parole did not violate Miller. The court emphasized that the punishment was ‘‘far less severe'' than those at issue in the United States Supreme Court's juvenile punishment cases because it was not ‘‘final and irrevocable . . . .'' Id. We stated: ‘‘Although the deprivation of [a juvenile's] liberty for any amount of time, including a single year, is not insignificant, Roper, Graham and Miller cannot be read to mean that all mandatory deprivations of liberty are of potentially constitutional magnitude.'' Id., 745.[6]

         The defendant notes that this court has twice-in Riley and Casiano-interpreted Miller to apply to punishments that it does not expressly include. Although these cases reflect this court's determination that the phrase ‘‘life imprisonment without parole'' should be construed beyond its literal meaning, we have applied Miller only to punishments that have a substantially similar practical effect. Thus, the punishments at issue in Riley and Casiano are distinguishable from punishments that include parole eligibilityunder P.A. 15-84, § 1.

         In the first case, State v. Riley, supra, 315 Conn. 637, in which we reasoned that Miller ‘‘logically reaches beyond its core holding, '' we concluded that it applied to discretionary sentences and to sentences for terms of years that were the ‘‘functional equivalent'' of a sentence of life without parole. Id., 642, 654. But many of the reasons we cited for why Miller should apply to these types of punishments do not apply when the juvenile is parole eligible. For example, we relied on the fact that the defendant's sentence of 100 years imprisonment with the possibility of parole after ninety-four years left him ‘‘no possibility of parole before his natural life expires'' and ensured that he ‘‘would undoubtedly die in prison . . . .'' Id., 640, 643 n.2, 660. Parole eligibility after thirty years under P.A. 15-84, § 1, however, contemplates release when most juvenile offenders will be in their late forties, thereby offering a realistic opportunity for a life outside of prison.

         Similarly, in Casiano, apart from the retroactivity holding described previously, we held that Miller applied to a sentence of fifty years imprisonment without the possibility of parole. Casiano v. Commissioner of Correction, supra, 317 Conn. 79. Although we stated that ‘‘the concept of ‘life' in Miller and Graham [was] more [broad] than biological survival''; id., 78; we were ultimately concerned with ‘‘the sense of hopelessness'' that accompanies a life-without-parole sentence, which ‘‘means that good behavior and character improvement are immaterial . . . .'' (Internal quotation marks omitted.) Id., 78-79, quoting Graham v. Florida, supra, 560 U.S. 70. Conversely, parole eligibility offers hope and makes an offender's future conduct relevant.[7]

         Thus, Connecticut precedent indicates only that this court has been willing to interpret Miller beyond its literal meaning, but not so far as to require resentencing for punishments that include parole eligibility under P.A. 15-84, § 1.

         4

         Sibling State Precedent

         The defendant argues that sibling state comparisons are not helpful in our analysis because certain aspects of Connecticut's juvenile punishment scheme-most notably, a parole system in which eligibility is based in part on the length of the sentence-are unique to this state. Although Connecticut's parole system appears to be distinct in this respect, we note that our essential holding in Delgado that Miller does not require resentencing for a punishment that includes parole eligibility is consistent with other jurisdictions. See State v. Delgado, supra, 323 Conn. 811-12 n.7 (citing jurisdictions); see also, e.g., Talbert v. State, No. 64486, 2016 WL 562778, *1 (Nev. February 10, 2016) (parole eligibility ‘‘within [offender's] lifetime''); State v. Charles, 892 N.W.2d 915, 920-21 (S.D.) (parole eligibility at age sixty), cert. denied, U.S., 138 S.Ct. 407, 199 L.Ed.2d 299 (2017). Similarly, other jurisdictions have held that their state constitutions do not require a court to consider the Miller factors before imposing a punishment that includes parole eligibility. E.g., State v. Propps, 897 N.W.2d 91, 102 (Iowa 2017) (punishment including ‘‘realistic and meaningful'' parole eligibility); Diatchenko v. District Attorney, 466 Mass. 655, 673, 1 N.E.3d 270 (2013) (life imprisonment with possibility of parole after thirty-one years); State v. Vang, 847 N.W.2d 248, 262-63 (Minn. 2014) (life imprisonment with possibility of early release after thirty years).

         5

         Public Policy

         Nor does Connecticut's public policy compel a conclusion that resentencing is the sole remedy for a Miller violation. ‘‘[O]ur legislature . . . has the primary responsibility for formulating the public policy of our state.'' Doe v. Hartford Roman Catholic Diocesan Corp., supra, 317 Conn. 435. In both Riley and Casiano, this court declined to address issues related to the recent constitutional developments in juvenile punishment in deference to the legislature. See Casiano v. Commissioner of Correction, supra, 317 Conn. 79 (‘‘we have every reason to expect that our decisions in Riley and in the present case will prompt our legislature to renew earlier efforts to address the implications of . . . Graham and Miller''); State v. Riley, supra, 315 Conn. 662 (‘‘there is every reason to believe that the legislature will take definitive action regarding these issues'').

         In response, the legislature passed P.A. 15-84. See Proposed Senate Bill No. 796, 2015 Sess. (‘‘Statement of Purpose: [t]o comply with the decisions of the Supreme Court of the United States in Miller v. Alabama [supra, 567 U.S. 460] and Graham v. Florida [supra, 560 U.S. 48]''). Section 2 of P.A. 15-84, in relevant part, requires a court to consider the Miller factors when imposing certain sentences upon juvenile offenders. The legislature determined, however, that this requirement would not be retroactive. See State v. Delgado, supra, 323 Conn. 814 and n.9. Therefore, it does not apply to the defendant. Section 1 of P.A. 15-84, however, does apply to him and does provide a remedy. As set forth previously, the legislature provided retroactive parole eligibility to juvenile offenders sentenced to more than ten years in prison.

         The defendant and amici cite abundant evidence of the differences between juveniles and adults, which they contend weighs in favor of requiring consideration of the Miller factors at sentencing, even retrospectively and in addition to parole eligibility.[8] We are not persuaded. First, our legislature considered this perspective alongside other evidence that weighed against a broader application of P.A. 15-84, § 2, such as public safety, [9] the impact on victims, [10] and feasibility.[11] Second, more broadly, we have recognized that certain policy based aspects of criminal punishment are best left to the legislature. See, e.g., State v. Bell, 303 Conn. 246, 267, 33 A.3d 167 (2011) (‘‘to the extent that the economic costs of incarceration are a factor in determining an appropriate sentence, they are to be considered not by the sentencing authority but by the legislature when it is enacting sentencing provisions''); see also part II B of this opinion. Third, legislatures from other jurisdictions also have chosen to remedy Miller violations with parole eligibility. E.g., Cal. Penal Code § 3051 (b) (4) (Deering Supp. 2018); Nev. Rev. Stat. §§ 176.025 and 213.12135 (2017); Tex. Penal Code Ann. § 12.31 (a) (West 2013); Wyo. Stat. Ann. § 6-10-301 (c) (2013).

         Fourth, and finally, both a belated resentencing hearing and a parole hearing can provide a meaningful remedy to this newly declared constitutional violation, although neither is ideal. ‘‘Under Miller, bear in mind, the inquiry is whether the inmate was seen to be incorrigible when he was sentenced-not whether he has proven corrigible and so can safely be paroled today.'' Montgomery v. Louisiana, supra, 136 S.Ct. 744 (Scalia, J., dissenting). As with any factual issue, the passage of time often makes this finding difficult. ‘‘For example, [if the defendant waived a presentence investigation report at his original sentencing], a resentencing court would be called on to determine, without the benefit of a presentence investigation conducted at the time of the defendant's conviction, what the defendant's character was . . . years ago when he was sentenced. Without such information, the court would likely need to principally rely upon the defendant's subsequent rehabilitation or lack thereof since his sentencing. . . . Resentencing in such cases would be cumbersome and would in reality be more akin to a parole hearing.'' State v. Williams-Bey, 167 Conn.App. 744, 778-79, 144 A.3d 467 (2016), modified in part on other grounds, 173 Conn.App. 64, 164 A.3d 31 (2017), aff'd, 333 Conn. 468, A.3d (2019). The same situation arises in the present case because the parties cannot locate the presentence investigation report authored for the defendant's original sentencing in 2003. Although it is ‘‘not impossible''; Songster v. Beard, 201 F.Supp.3d 639, 641 (E.D. Pa. 2016); even in cases in which only a few years have passed, ‘‘[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.'' (Internal quotation marks omitted.) Graham v. Florida, supra, 560 U.S. 68. Asking sentencing judges to make this determination years after the fact might, in these cases, be asking too much.

         The parole board, under P.A. 15-84, § 1, on the other hand, bases its decisions on more recent evidence and more ascertainable outcomes. Although parole and resentencing hearings share many of the same characteristics-e.g., the right to counsel, the offender's right to make a statement and present evidence, each victim's right to make a statement, the availability of expert testimony-the parole board relies more on evidence of actual rehabilitation and focuses more on the offender's ability to succeed outside of prison at the most relevant moment, just before he will, potentially, be released. For example, it considers the probability that he will ‘‘remain at liberty without violating the law, '' the continuing ‘‘benefits to [the offender] and society that would result from [the offender's] release, '' and the offender's ‘‘substantial rehabilitation . . . .'' P.A. 15-84, § 1, codified at General Statutes (Supp. 2016) § 54-125a (f) (4). It does not overlook the value of the Miller factors, though. Alongside these forward-looking factors described previously, the board also considers a juvenile offender's ‘‘age and circumstances . . . as of the date of the commission of the crime, '' ‘‘remorse and increased maturity since the date of the commission of the crime, '' and ‘‘efforts to overcome . . . obstacles that such person may have faced as a child . . . .'' General Statutes (Supp. 2016) § 54-125a (f) (4).[12] It considers not whether a juvenile is capable of change in the distant future but, rather, from the best possible vantage point, whether he has actually changed.

         These considerations highlight a truth about the retroactive application of Miller that appears to animate the dissent and its frustration with our decisions in this case and in Delgado-that no remedy will put the defendant in the same position he would have been in if his youth had been considered when he was sentenced. In the present case, the defendant was effectively sentenced to life imprisonment, and state law did not provide an opportunity for parole for such crimes. See footnote 17 of this opinion. A sentence of life without parole improperly denies the juvenile offender of ‘‘a chance to demonstrate growth and maturity'' because the court's judgment that he is ‘‘incorrigible'' ‘‘was made at the outset, '' before he had the opportunity to show any capacity for change. (Internal quotation marks omitted.) State v. Riley, supra, 315 Conn. 648, quoting Graham v. Florida, supra, 560 U.S. 73. Without the possibility of parole, the defendant was denied hope; Graham v. Florida, supra, 70; and had no incentive to ‘‘demonstrate growth and maturity'' that he might use in support of a ‘‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.'' (Internal quotation marks omitted.) State v. Riley, supra, 648.

         Neither the remedy this state provides (parole eligibility), which Montgomery has held to be constitutionally sufficient, nor the dissent's proposed remedy of resentencing can reinstate to the defendant the opportunities for demonstrated growth that he lost during those years. That is not to say that resentencing is not a meaningful, practical, and constitutionally sufficient remedy. All we are saying is that parole eligibility also is a meaningful, practical, and constitutionally sufficient remedy in light of the fact that no remedy can travel back in time and provide the defendant with a Miller compliant sentencing hearing at the time of his original sentencing. No one has lost their courage, shrugged their shoulders, or not tried to remedy the constitutional violation at issue. Rather, the legislature, this court in Delgado, and the United States Supreme Court in Montgomery recognized that remedying this violation is not as simple as recalculating a sentence on the basis of retroactive changes to sentencing guidelines or vacating a sentence enhancement that has been deemed unconstitutionally vague, analogies that the dissent finds apt. Unlike those circumstances, the remedy of resentencing in this case is an incomplete remedy. The legislature chose to rectify this problem by providing juvenile defendants with the possibility of parole, a meaningful remedy consistent with Miller that ‘‘ensures that juveniles whose crime reflected only transient immaturity- and who have since matured-will not be forced to serve a disproportionate sentence.''Montgomery v. Louisiana, supra, 136 S.Ct. 736.

         We acknowledge that a defendant's parole eligibility date under P.A. 15-84, § 1, is determined by the length of his original sentence, which, in some cases, was imposed without consideration of the Miller factors. See P.A. 15-84, § 1, codified at General Statutes (Supp. 2016) § 54-125a (f) (1) (juvenile offender parole eligible [A] ‘‘if such person is serving a sentence of [between ten and fifty years] . . . after serving sixty per cent of the sentence or twelve years, whichever is greater, or [B] if such person is serving a sentence of more than fifty years . . . after serving thirty years''). But this alone does not completely nullify the significance of parole eligibility under P.A. 15-84, § 1. See Graham v. Florida, supra, 560 U.S. 75 (‘‘[a] [s]tate is not required to guarantee eventual freedom to a juvenile offender''). It still offers a meaningful opportunity to ‘‘demonstrate the truth of Miller's central intuition-that children who commit even heinous crimes are capable of change.'' Montgomery v. Louisiana, supra, 136 S.Ct. 736.

         Ultimately, we do not believe that we are better situated than the legislature to strike an appropriate balance among these competing policies, particularly in an area that is traditionally within the purview of the legislature and when we have called the legislature's attention to these specific issues. Therefore, we do not conclude that the considerations identified by the defendant and the amici compel a particular constitutional rule beyond what the legislature requires.

         B

         The preceding Geisler analysis informs our application of the substantive legal test under our state constitution. See State v. Santiago, supra, 318 Conn. 18-19 n.14. (‘‘our consideration of the relevant Geisler factors is interwoven into our application of the legal framework that properly governs such challenges''). ‘‘[T]he constitution of Connecticut prohibits cruel and unusual punishments under the auspices of the dual due process provisions contained in article first, §§ 8 and 9.'' Id., 16. In evaluating challenges under this prohibition, we apply the two part federal framework that we adopted in State v. Ross, 230 Conn. 183, 252, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995). State v. Santiago, supra, 19, 21. First, we consider ‘‘whether the punishment at issue comports with contemporary standards of decency.'' Id., 21. Second, we also must exercise our independent judgment to determine whether the punishment is constitutional. Id., 22.

         In the first part-evolving standards of decency-we look for consensus based on five objective criteria: ‘‘(1) the historical development of the punishment at issue; (2) legislative enactments; (3) the current practice of prosecutors and sentencing juries; (4) the laws and practices of other jurisdictions; and (5) the opinions and recommendations of professional associations.'' Id., 52.

         We conclude that it does not categorically offend contemporary standards of decency to remedy a Miller violation with parole eligibility. Historically, although Connecticut enacted some measures to permit courts to mitigate punishment of juvenile offenders, the specific protections used were distinguishable from the sentencing practice at issue, limited, and inconsistently applied. See part I A 2 of this opinion. Currently, the prospective-only sentencing provisions in P.A. 15-84, § 2, reflect the reasoned judgment of the legislature, which is a reliable indicator of our public policy. This approach to Miller violations is also in accord with that of other jurisdictions. Finally, although a consensus of professional associations[13] agrees that the Miller factors are relevant in determining a juvenile offender's culpability and capacity for rehabilitation, we note that P.A. 15-84, § 2, instructs a parole board to consider similar factors, as well as any additional evidence put forth by the offender, in determining whether the offender is entitled to early release.

         In the second part of the federal framework-the exercise of independent judgment-we consider judicial precedents and ‘‘our own understanding of the rights secured by the constitution, '' which encompasses ‘‘whether the penalty at issue promotes any of the penal goals that courts and commentators have recognized as legitimate: deterrence, retribution, incapacitation, and rehabilitation.'' State v. Santiago, supra, 318 Conn. 22. Although ‘‘this court cannot abdicate its nondelegable responsibility for the adjudication of constitutional rights'' by giving unwarranted deference to the legislature, ‘‘we should exercise our authority with great restraint . . . .'' (Internal quotation marks omitted.) Id., 42, quoting State v. Ross, supra, 230 Conn. 249.

         Our independent judgment does not compela conclusion that a Miller violation may not be remedied by parole eligibility under P.A. 15-84, § 1. Like the federal constitution, our state constitution secures the right to proportionality in the punishment of juveniles. In analyzing proportionality, the characteristics of the offender must be balanced against the severity of the punishment. Thus, in juvenile sentencing cases, courts have emphasized the severity of the sentences at issue -death and life without parole-as much as the diminished culpability and greater capacity for reform of juvenile offenders. Moreover, as distinguished from sentences of death and life without parole, sentences contemplating early release do not necessarily negate all penological justification. Incapacitation and rehabilitation may continue to justify sentences with parole eligibility because they account for the fact that juveniles can change.

         For the previously stated reasons, we conclude that parole eligibility afforded by P.A. 15-84, § 1, is an adequate remedy for a Miller violation under the Connecticut constitution.

         II

         In State v. Delgado, supra, 323 Conn. 801, we held that in light of P.A. 15-84, which provided juvenile offenders with the possibility of parole, Miller no longer applied because it did not apply to juvenile offenders who are serving a sentence of life imprisonment, or its equivalent, as long as those offenders have the possibility of parole. Id., 811; see also State v. Boyd, 323 Conn. 816, 151 A.3d 355 (2016) (companion case to Delgado decided on same grounds). The defendant claims that this court should overrule Delgado because it renders P.A. 15-84, ยง 1, unconstitutional under the separation of powers doctrine embodied in the ...


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