Opinion
U04WCR1504433503S
06-29-2018
STATE of Connecticut v. Anthony E. BROOKS, Jr.
UNPUBLISHED OPINION
Jon M. Alander, Judge of the Superior Court
I
BACKGROUND
This matter arises from the criminal appeal of the defendant, Anthony E. Brooks Jr. Following the defendant’s jury trial before the Superior Court, Murphy, J., in the Judicial District of Waterbury, the defendant was convicted of criminal possession of a firearm in violation of General Statutes § 53a-217(a), criminal possession of ammunition in violation of General Statutes § 53a-217(a), carrying a pistol without a permit in violation of General Statutes § 29-35(a), illegal transfer of a firearm in violation of General Statutes § 29-33(b), illegal possession of a weapon in a motor vehicle in violation of General Statutes § 29-38(a), and interfering with an officer in violation of General Statutes § 53a-167a. He was sentenced to fifteen years’ incarceration, suspended after ten years, three years of which was a mandatory minimum sentence, and three years’ probation. The defendant’s appeal was filed on May 9, 2017. The defendant was assigned Attorney S. Max Simmons as appellate counsel on September 11, 2017.
On November 14, 2017, Attorney Simmons moved to withdraw as appellate counsel claiming no non-frivolous issues exist on which to appeal. On February 14, 2018, this court directed counsel to brief the issue of whether the defendant could have legally been convicted under § 29-33(b), given that no evidence was submitted at trial that he purchased the pistol at issue or that it was delivered or transferred to him by another person. Rather, the only evidence was that he merely possessed it at the time of his arrest. Attorney Simmons filed a supplemental brief addressing this issue on March 28, 2018, and contends that there is no argument to be made on the merits that criminal liability under § 29-33(b) requires more than mere possession. After consideration, this court disagrees and finds that a non-frivolous appealable issue exists, but, nonetheless, pursuant to Practice Book § 43-37, allows counsel to withdraw and refers this matter to the Office of the Chief Public Defender for the appointment of new appellate counsel.
II
DISCUSSION
Appointed counsel on appeal from a criminal matter must represent his client unless such an appeal would be frivolous, whereupon he may withdraw upon motion and a proper determination by the court. "[I]f counsel finds [the appellant’s] case to be wholly frivolous ... he should so advise the court and request permission to withdraw." Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Pascucci, 161 Conn. 382, 385, 288 A.2d 408 (1971); Practice Book § 43-35. Practice Book § 43-34 provides in relevant part: "When the defendant ... has counsel appointed to prosecute the appeal under the provisions of Section 43-33 and such public defender or counsel, after a conscientious examination of the case, finds that such an appeal would be wholly frivolous, counsel shall advise the presiding judge by filing a motion for leave to withdraw from the case." Such a motion "must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal." Anders v. California, supra, 744; State v. Pascucci, supra, 385; Practice Book § 23-41(b). A copy of such brief must be provided to the client and a reasonable time given for the client to respond. State v. Pascucci, supra, 385; Practice Book § 43-35. The court "then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous." Anders v. California, supra, 744; State v. Pascucci, supra, 385. If the court so finds, it may grant counsel’s request to withdraw. Anders v. California, supra, 744; State v. Pascucci, supra, 385; Practice Book § 43-36. If the court finds, however, that any of the legal points are arguable on the merits and, therefore, not frivolous, the court must afford an indigent defendant the assistance of counsel. Anders v. California, supra, 386 U.S. at 744; Practice Book § 43-37.
General Statutes § 29-33(b) provides in relevant part: "[N]o person may purchase or receive any pistol or revolver unless such person holds a valid permit to carry a pistol or revolver issued pursuant to subsection (b) of section 29-28, a valid permit to sell at retail a pistol or revolver issued pursuant to subsection (a) of section 29-28 or a valid eligibility certificate for a pistol or revolver issued pursuant to section 29-36f or is a federal marshal, parole officer or peace officer." (Emphasis added.)
The dispositive issue in this matter is whether the word "receive" within § 29-33(b) is susceptible of a definition that requires more than simple possession, that is whether some form of transaction or transfer must be involved. Attorney Simmons contends that the word "receive," in light of how it is defined in other statutes, and according to a proffered dictionary definition, must be read to mean mere possession. For the reasons to follow, the court finds that a cogent argument can be made that the plain language of § 29-33(b), when read in context, supports an interpretation that the term "receive" requires a transaction or transfer of some kind, and concludes that an appeal raising such a claim is not frivolous.
The resolution of this matter requires the court to interpret § 29-33. "In construing a statute, the first objective is to ascertain the intent of the legislature ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of the case, including the question of whether the language actually does apply ... General Statutes § 1-2z directs this court to first consider the text of the statute and its relationship to other statutes to determine its meaning. Only if we determine that the statute is not plain and unambiguous and yields absurd or unworkable results may we consider extratextual evidence of its meaning, such as the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common-law principles governing the same general subject matter ... The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation ... We presume that the legislature did not intend to enact meaningless provisions ... [S]tatutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant ..." (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Ward, 306 Conn. 698, 707-08, 52 A.3d 591 (2012).
Additionally, "[w]hen the statute being construed is a criminal statute, it must be construed strictly against the state and in favor of the accused ... [C]riminal statutes [thus] are not to be read more broadly than their language plainly requires and ambiguities are ordinarily resolved in favor of the defendant ... Rather, penal statutes are to be construed strictly and not extended by implication to create liability which no language of the act purports to create ... Further, if, after interpreting a penal provision, there remains any ambiguity regarding the legislature’s intent, the rule of lenity applies. It is a fundamental tenet of our law to resolve doubts in the enforcement of a Penal Code against the imposition of a harsher punishment." (Citations omitted; internal quotation marks omitted.) Id., 708-09.
It should also be noted that, in construing 29-33(b), the court is "guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law ... [T]his tenet of statutory construction ... requires us to read statutes together when they relate to the same subject matter ... Accordingly, [i]n determining the meaning of a statute ... we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction." (Citation omitted; internal quotation marks omitted.) Wiseman v. Armstrong, 269 Conn. 802, 814, 850 A.2d 114, 121 (2004).
Section § 29-33(b) provides that "no person may purchase or receive any pistol or revolver" without the proper certificates or accreditation. The word "receive" is not defined anywhere within Title 29. While it is defined in General Statutes § 53a-118(a)(6) and General Statutes § 53a-128a(f), these definitions are not necessarily indicative of how the legislature intended this term to read within § 29-33(b). Indeed, both of those statutes carry express limitations on the applicability of their definitions. Section § 53a-118(a) specifically provides "the following definitions are applicable to this part ..." (Emphasis added.) Similarly, § 53a-128a provides an itemization limiting the application of the definitions contained therein to "this section and sections 53a-128b to 53a-128i, inclusive ..."
General Statutes § 53a-118(a)(6) defines receive as "to acquire possession, control or title, or lend on the security of a property."
General Statutes § 53a-128a(f) provides: " ‘Receives’ or receiving’ means acquiring possession, custody or control."
As the application of these definitions is expressly limited, neither of them are probative of what the term "receive" means as used in § 29-33(b). "Unless there is evidence to the contrary, statutory itemization indicates that the legislature intended the list to be exclusive." (Footnote omitted; internal quotation marks omitted.) Commissioner of Environmental Protection v. Mellon, 286 Conn. 687, 693, 945 A.2d 464 (2008). Thus, definitions located in statutes found within another title, which were presumably enacted for different purposes, do not aid the court in interpreting the meaning of the term "receive" as it is used in § 29-33. See, e.g., Republican Party of Connecticut v. Merrill, 307 Conn. 470, 492-94, 55 A.3d 251 (2012) (definitions from another statute which were limited by their terms did not aid court in clarifying ambiguity of similar language in different statute); State v. Zapadka, 49 Conn.Supp. 248, 252-53, 873 A.2d 270 (2004) (defined term of "firearm" in § 53a-3 was not relevant in determining meaning of same term within § 29-33 because "[t]he plain and unambiguous terms of the two statutes indicate that they have distinct statutory purposes, and that their provisions are not interdependent").
Accordingly, the meaning of the term "receive" must be assessed first, if possible, through its plain meaning. Because "receive" is not defined anywhere within the statute or title, "General Statutes § 1-1(a) requires that we construe the term in accordance with the commonly approved usage of the language ... If a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary." State v. Ward, supra, 306 Conn. 709. Some sources define "receive" to involve a predicate act: "To take (something offered, given, sent, etc.); to come into possession of or get from some outside source < to receive presents> " Black’s Law Dictionary (10th Ed. 2014); and "To take or acquire (something given or offered); get or be given: receive a present." American Heritage Dictionary of the English Language (5th Ed. 2011). Others appear to define it as mere possession: "to take into one’s possession, e.g., a letter, a gift, one’s salary or earnings." Ballentine’s Law Dictionary (3d. Ed. 1969); and "to come into possession of: ACQUIRE < a gift> ." Meriam-Webster’s Collegiate Dictionary (10th Ed. 1997). Such a lack of unanimity is not extraordinary. "[A]ny word in the English language- except for words of specialized contexts, such as mathematics or science- will ordinarily have multiple meanings, depending on the context in which it has been used." Community Renewal Team, Inc. v. United States Liability Ins. Co., 128 Conn.App. 174, 180, 17 A.3d 88, cert. denied, 301 Conn. 918, 21 A.3d 463 (2011). Indeed, "[t]hat is why we have dictionaries: not to determine the meaning of a given word, or even the preferred meaning of a given word, but simply to give us a lexicon of the various meanings that the word has carried depending on the various contexts of its use." (Emphasis in original.) Id., 180-81. See also State v. Ruocco, 151 Conn.App. 732, 752, 95 A.2d 573 (2014), aff’d, 322 Conn. 796, 144 A.3d 354 (2016) ("[a] dictionary is nothing more than a compendium of the various meanings and senses in which words have been and are used in our language. A dictionary does not define the words listed in it in the sense of stating what the words mean universally. Rather, it sets out the range of meanings that may apply to those words as they are used in the English language, depending on the various contexts of those uses." [Internal quotation marks omitted] ). Therefore, the applicability of a dictionary definition to a term within a statute is to be determined through the context in which the term is used.
In the present case, a non-frivolous argument can be made that the word "receive" within § 29-33(b), should be construed to involve a transfer or conveyance based upon the entire language of § 29-33, the separate use of the terms "receive" and "possess" within the chapter, and the relationship of § 29-33 to other statutes.
First, virtually every subsection of § 29-33 expressly refers to the selling, delivery or transfer of a pistol or revolver to a person. Consequently, the word "receive" in § 29-33(b) must be construed within that context.
For instance, § 29-33(a) prohibits the sale, delivery or transfer of any pistol or revolver to any person unless such person holds a valid permit or certificate or is a federal marshal, parole officer or peace officer. Subsection (c) regulates the manner in which sales, deliveries and transfers of pistols and revolvers are to be conducted, requiring certain formalities, applications, and procedures to be followed. Subsection (d) requires that any pistol or revolver sold, delivered and transferred have certain safety features. Subsection (e) requires that the person making the purchase or "to whom the same is delivered or transferred sign a receipt and provide identifying information which can include, inter alia, registration information from their permit to carry, their permit to sell, or their eligibility certificate. Lastly, subsection (i) provides that a violation of the chapter shall constitute a class C felony, but "any person who sells, delivers or otherwise transfers a pistol or revolver in violation of the provisions of this section knowing that such pistol or revolver is stolen or that the manufacturer’s number or other mark of identification on such pistol or revolver has been altered, removed or obliterated, shall be guilty of a class B felony ..." (Emphasis added.)
The remaining subsections do not add much to the analysis. Section 29-33(f) exempts antique pistols or revolvers. Subsection (g) provides that the provisions shall not apply to the sale, delivery or transfer of pistols between federal arms dealers and similar persons and entities. Lastly, subsection (h) provides a mechanism by which the court may suspend the prosecution of offenses under § 29-33.
Thus, it can be argued that § 29-33 by its plain terms governs the sale, delivery and transfer of pistols and revolvers. It does not regulate mere possession. Accordingly, the dictionary definitions of the term "receive" that define it as involving a transfer or conveyance are consistent with the context in which the word is used within § 29-33(b), as illuminated by its sister subsections.
Moreover, the fact that the terms "receive" and "possess" are used separately within § 29-33 as well as other sections of Chapter 529 supports an interpretation that they have distinct meanings. "[T]he use of ... different terms ... within the same statute suggests that the legislature acted with complete awareness of their different meanings ... and that it intended the terms to have different meanings." (Internal quotation marks omitted.) Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838, 850, 937 A.2d 39 (2008).
Within § 29-33, variations of the word "possess" are used three times. First, § 29-33(a) provides that no person shall sell, deliver, or transfer any pistol who is "prohibited from possessing a pistol or revolver as provided in § 53a-217c." (Emphasis added.). Second, subsection (c), similarly, provides that no sale, delivery or transfer of any pistol shall be made until the person making such a transfer obtains an authorization from the Commissioner of Emergency Services and Public Protection, who shall perform a criminal background check to "to determine whether there is any reason that would prohibit such applicant from possessing a pistol or revolver as provided in section 53a-217c." (Emphasis added.). Third, and lastly, subsection (i) provides that "any pistol or revolver found in the possession of any person in violation of any provision of this section shall be forfeited." (Emphasis added.). The only place in which the term "receive" is used is in § 29-33(b), the subsection at issue here.
Furthermore, the words "receive" and "possess" are used consistently in a non-synonymous manner throughout chapter 529. See, e.g., General Statutes § 29-28(b) (solicitation of firearm purchase by one who "[8] is prohibited from shipping, transporting, possessing or receiving a firearm pursuant to 18 U.S.C. 922[g][4], [9]" [emphasis added] ); General Statutes § 29-37j(b) (forbidding solicitation of firearm purchase by persons prohibited from "purchasing or otherwise possessing or receiving a firearm"); General Statutes § 29-36l(e) (stating that no civil liability shall attach to any person that contacts Department of Emergency Services and Public Protection to access database to determine if "a person is eligible to receive or possess a firearm" [emphasis added] ); General Statutes § 29-38d(a) ("The provisions of sections 29-35 and 29-38 shall not apply to the interstate transportation of firearms through this state in accordance with 18 U.S.C. 926A and 927, as amended from time to time, by any person who is not otherwise prohibited from shipping, transporting, receiving or possessing a firearm").
Consequently, the legislature’s separate use of the words "possess" and "receive" within the same statute, and throughout the entire chapter, indicates that they intended these words to have separate and distinct meanings. Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, supra, 284 Conn. 850. If the legislature had intended to criminalize mere possession through § 29-33(b), they would have simply done so by using the appropriate language.
Finally, construing the term "receive" in § 29-33(b) to mean mere possession renders General Statutes § 29-35 superfluous. Section 29-35(a) provides in relevant part: "No person shall carry any pistol or revolver upon his or her person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same issued as provided in section 29-28 ..." The term "carry," as it is used in § 29-35(a) is not defined, but our Appellate Court has addressed this issue. The court in State v. Crespo, 145 Conn.App. 547, 76 A.3d 664 (2013), aff’d, 317 Conn. 1, 115 A.3d 447 (2015), stated that, while carrying and possession are separate concepts, carrying is a form of possession, in that the person must have actual possession of the pistol or revolver on their person to be criminally liable. Id., 573. Consequently, construing the word "receive" in § 29-33(b) to mean possession would render § 29-35(a) unnecessary. To illustrate, under such an interpretation, carrying a pistol or revolver upon one’s person without a permit would not only invoke liability under § 29-35(a), but would also constitute possession under § 29-33(b) and subject an individual to prosecution under its enhanced penalties as a class C felony with a two-year mandatory minimum sentence. There would be no need to have two separate statutes that punish the exact same conduct. This militates against the interpretation that "receive" within § 29-33(b) means possession. Interpreting otherwise would conflict with the presumption that our legislature intended to create "a harmonious body of law." Wiseman v. Armstrong, supra, 269 Conn. 814. "[J]ust as the legislature does not intend to enact meaningless provisions, [neither] does it intend to enact meaningless statutes." Lagueux v. Leonardi, 148 Conn.App. 234, 252, 85 A.3d 13, 25 (2014).
A violation of § 29-35 is a class D felony with a one-year mandatory minimum sentence.
III
CONCLUSION
In light of the foregoing, a worthy argument exists that the defendant did not violate § 29-33(b) as he did not "receive" the pistol as that term is used within the statute. Therefore, the court concludes that the defendant’s appeal is not wholly frivolous. Pursuant to Practice Book § 43-37, in light of Attorney Simmons’s expressed lack of confidence in this claim, his motion to withdraw as counsel is hereby granted, and the matter is referred to the Office of the Chief Public Defender for the appointment of new appellate counsel.