Opinion
(SC 18522)
Argued September 9, 2011
Officially released November 1, 2011
Two part amended information charging the defendant, in the first part, with the crimes of robbery in the second degree, robbery in the third degree and larceny in the sixth degree, and, in the second part, with being a persistent larceny offender, brought to the Superior Court in the judicial district of New Haven, geographical area number twenty-three, where the first part of the information was tried to the jury before Vitale, J.; after the court granted the defendant's motion for judgment of acquittal on the charge of robbery in the second degree, verdict of guilty of larceny in the sixth degree; thereafter, the second part of the information was tried to the jury before Vitale, J.; judgment of guilty and sentence enhanced for being a persistent larceny offender, from which the defendant appealed to the Appellate Court; subsequently, the trial court, Vitale, J., granted the defendant's motion to modify the sentence and vacated the enhanced sentence; thereafter, the Appellate Court, Harper, Alvord and Mihalakos, Js., dismissed the appeal, and the defendant, on the granting of certification, appealed to this court. Appeal dismissed.
Deborah G. Stevenson, special public defender, for the appellant (defendant).
Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, David J. Strollo, supervisory assistant state's attorney, Helen McClellan, assistant state's attorney, and Karen Roberg, deputy assistant state's attorney, for the appellee (state).
Opinion
The defendant, William McElveen appeals, upon our grant of his petition for certification, from the judgment of the Appellate Court dismissing his appeal as moot. State v. McElveen, 117 Conn. App. 486, 493, 979 A.2d 604 (2009). The Appellate Court determined that the trial court's grant of the defendant's motion to modify his sentence and its vacation of the defendant's sentence enhancement for being a persistent larceny offender, while his appeal was pending before the Appellate Court, rendered the appeal moot. Id., 491. The Appellate Court concluded that the jury's finding that the defendant is a persistent larceny offender is not a conviction, but rather an enhanced sentence, and that vacating the sentence enhancement eliminated the only legal consequence of the persistent larceny offender finding. Id. In this certified appeal, the defendant contends that this case is not moot under the collateral consequences doctrine. He argues that he could be subjected to enhanced penalties as a result of his persistent larceny offender "conviction" if he were to commit a crime in the future because his criminal history record does not adequately and meaningfully reflect the trial court's action in vacating the persistent larceny offender finding.
We granted the defendant's petition for certification to appeal limited to the following issues: "1. Whether the sole appropriate relief in the present case was the elimination of the sentence enhancement pursuant to General Statutes § 53a-40?
"2. If the answer to the first question is `no,' did the Appellate Court properly dismiss the appeal as moot?" State v. McElveen, 294 Conn. 924, 985 A.2d 1063 (2010).
The jury found the defendant to be a persistent larceny offender under General Statutes § 53a-40 (e), which provides in relevant part: "A persistent larceny offender is a person who (1) stands convicted of larceny in the . . . sixth degree, and (2) has been, at separate times prior to the commission of the present larceny, twice convicted of the crime of larceny." The defendant had previously been convicted of larceny in the sixth degree and attempt to commit larceny in the sixth degree. State v. McElveen, supra, 117 Conn. App. 488 n. 2.
After examining the entire record on appeal and considering the briefs and oral arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was improvidently granted.
The appeal is dismissed.