Opinion
No. CR03-0023375
May 18, 2006
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR REDUCTION OF SENTENCE
The defendant in the above-captioned matter has moved for a reduction of his sentence. For the reasons set forth below, the court concludes that it does not have jurisdiction to entertain the defendant's motion. Accordingly, the defendant's motion is hereby dismissed.
I PROCEDURAL HISTORY
On November 8, 2004, the defendant appeared before this court in GA 23 and entered pleas of guilty to the charges of Risk of Injury to a Minor, General Statutes § 53-21(a)(2), and Sexual Assault in the Fourth Degree, General Statutes § 53a-73a. Thereafter, on January 27, 2005, the defendant was sentenced on these charges to a total effective sentence of six years, execution suspended after two years, and ten years' probation. He began service of that sentence on that day.
Specifically, on the risk of injury charge, the court imposed a sentence of six years, execution suspended after two years, and ten years' probation. On the sexual assault in the fourth degree charge, the court imposed a sentence of two years, to run concurrently with the sentence imposed on the risk of injury charge.
On February 24, 2006, the defendant filed a motion to modify his sentence seeking to suspend the execution of the remainder of the two-year sentence he is currently serving. On March 7, 2006, the assistant state's attorney noted her opposition to the defendant's request for modification of his sentence. On March 9, 2006, the defendant submitted a memorandum of law in support of his motion. The matter was then referred to this court for decision.
The court heard argument on the motion on April 6, 2006. At argument, the parties agreed that the primary issue before the court is one of jurisdiction. In sum, the defendant contends that the court possesses both a rule-based and an inherent jurisdiction to modify the sentences it has previously imposed. The state, on the other hand, argues that the specific terms of the defendant's sentence are such that the court lacks jurisdiction to modify that sentence, given that the state has opposed the defendant's request to seek such modification.
II DISCUSSION
Connecticut case law has clearly delineated the parameters of a trial court's authority to modify its sentences. As our Supreme Court recently noted, "[t]he jurisdiction of the sentencing court terminates when the sentence is put into effect, and that court may no longer take any action affecting the sentence unless it has been expressly authorized to act." (Emphasis omitted; internal quotation marks omitted.) State v. Waterman, 264 Conn. 484, 491, 825 A.2d 63 (2003). Thus, in this case, absent specific legislative authorization, this court was without jurisdiction to modify in any way the sentence of the defendant after that sentence went into effect on January 27, 2005.
A
One of the limited circumstances in which "the legislature has granted the trial courts continuing jurisdiction to act on their judgments after the commencement of sentence;" State v. Waterman, supra, 264 Conn. 491; is set forth in General Statutes § 53a-39. Subsection (a) of § 53a-39 specifies that "[a]t any time during the period of a definite sentence of three years or less, the sentencing court or judge may, after hearing and for good cause shown, reduce the sentence . . ." Subsection (b) of § 53a-39 provides that "[a]t any time during the period of a definite sentence of more than three years, upon the agreement of the defendant and the state's attorney to seek review of the sentence, the sentencing court or judge may, after hearing and for good cause shown, reduce the sentence . . . Thus, "[t]he critical difference between subsections (a) and (b) of § 53a-39 is that under subsection (a), the sentencing court may review the sentence of a defendant sentenced to three years or less upon a showing of good cause, whereas if the defendant is sentenced to more than three years, under subsection (b), the state's attorney must agree to the modification of the sentence." State v. Boyd, CT Page 9196 272 Conn. 72, 77, 861 A.2d 1155 (2004).
Because the state here does not agree to a modification of the defendant's sentence, the jurisdiction of this court to entertain the defendant's motion turns on the question of whether subsection (a) or subsection (b) of § 53a-39 applies to this case. In order to determine which subsection applies, this court must decide whether the sentence imposed upon the defendant — a split sentence of six years, execution suspended after two years — constitutes a "definite sentence" of three years or less (in which case, subsection (a) will apply and agreement of the state is not required), or is more than three years (in which case, subsection (b) will apply and the state's agreement is required). Given that the defendant's sentence consists of a "top" number of greater than three years and a "bottom" number of less than three years, the question of whether subsection (a) or (b) applies in this case necessarily depends on the part of the split sentence which is properly characterized as the "definite sentence" referred to in the statute.
As the defendant has candidly conceded in his brief and at argument, this precise issue of whether the "definite sentence" referred to in § 53a-39 refers to the "top" number or the "bottom" number of a split sentence has been decided by our Appellate Court in State v. Adam H., 54 Conn.App. 387, 735 A.2d 839, cert. denied, 251 Conn. 905, 738 A.2d 1091 (1999). In considering the trial court's jurisdiction to modify a split sentence of nine years, execution suspended after three years, the Appellate Court stated that the specific question before it was "whether the portion of the sentence to be executed [the "bottom" number of three years] constitutes a `definite sentence of three years or less,' bringing the defendant within the authority of § 53a-39(a), or whether the full sentence of nine years, consisting of the executed and unexecuted portions, constitutes a `definite sentence,' thereby making the permission of the state's attorney a prerequisite to sentence modification pursuant to § 53a-39(b)." State v. Adam H., supra, 388-89.
The court in State v. Adam H., supra, 54 Conn.App. 387, held that "the legislature intended a definite sentence to include both the executed and suspended portions of a sentence;" id., 392; and that, as a result, the defendant's split sentence there constituted a "definite sentence" of nine years. Because the defendant's sentence was therefore greater than three years, the court went on to hold that subsection (b) of § 53a-39 applied and barred a petition for a sentence reduction without the permission of the state's attorney. Id., 394. On the basis of these conclusions, and noting that the "sole issue raised in th[e] appeal [was] whether the trial court had jurisdiction to modify [this] sentence . . . when the state did not agree to seek review of the sentence," the Appellate Court affirmed the trial court's judgment that the trial court lacked such jurisdiction. Id., 388.
This court, of course, is bound by the Appellate Court's reasoning in State v. Adam H., supra, 54 Conn.App. 387; reasoning which our Supreme Court examined in State v. Boyd, supra, 272 Conn. 75-77. These cases compel the conclusion that the sentence imposed upon the defendant in the present case is a "definite sentence" of six years, and that, accordingly, subsection (b) of § 53a-39 applies. Under subsection (b), this court lacks jurisdiction to entertain a motion to modify a sentence unless the state's attorney agrees to the defendant's request for review. It is undisputed that the state's attorney does not agree, and in fact expressly opposes, the defendant's motion to seek review of his sentence. In such circumstances, this court has not been granted the continuing jurisdiction to modify a sentence pursuant to § 53a-39, or, for that matter, even to entertain a motion seeking such relief. Accordingly, the defendant's motion for a reduction of his sentence must be dismissed.
Of course, in the present case the court would have the authority pursuant to General Statutes § 53a-39(a), even without agreement of the state, to modify the two-year concurrent sentence the defendant received on the charge of Sexual Assault in the Fourth Degree. See n. 1, supra. But such a modification would provide the defendant no practical relief given that his sentence on the Risk of Injury charge — six years, execution suspended after two years — is unmodifiable for the reasons stated herein.
B
Given the clear holding of State v. Adam H., supra, 54 Conn.App. 387, and its equally clear application to this case, the defendant seeks relief not only pursuant to § 53a-39, but also pursuant to Practice Book § 43-21. Citing the separation of powers provision of the Connecticut constitution, the defendant urges the court to limit State v. Adam H., supra, to modifications sought pursuant to § 53a-39, and to construe the contours of the Practice Book provision more broadly so as to permit the court to consider the present motion. The language of § 43-21 of the Practice Book is, for all intents and purposes, identical to the language contained in subsection (a) of § 53a-39. Thus, § 43-21 of the Practice Book, like subsection (a) of § 53a-39 of the General Statutes, applies to "definite sentence[s] of three years or less," and grants the court the authority to reduce such a sentence — with no requirement that the state's attorney agree to the review of the sentence.
"The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another." Conn. Const., art. II.
Interestingly, unlike subsection (b) of § 53a-39 of the General Statutes, § 43-21 of the Practice Book contains no language pertaining to definite sentences of greater than three years, and thus does not provide any authority to modify such sentences, with or without the agreement of the state.
The defendant in essence contends that the phrase "definite sentence," as it is used in the Practice Book, should refer to the "bottom" number of a split sentence, even though State v. Adam H., supra, 54 Conn.App. 387, has interpreted the same phrase in § 53a-39 to refer to the "top" number of such a sentence. This court simply does not agree. The defendant is correct that State v. Adam H., supra, only discusses modifications in the context of § 53a-39, and only interprets the phrase "definite sentence" as it is used in that statute. However, the defendant has provided this court with no rational reason nor legitimate legal basis for interpreting the phrase differently in the rules of practice than in the general statutes — other than, of course, as a means of affording this court jurisdiction over his motion to modify, even without the agreement of the state's attorney.
Indeed, even if this court were inclined — which it is not — to attempt to find broader jurisdiction in the provisions of the Practice Book, such an interpretation of the rules of practice likely would be impermissible given that "provisions of the Practice Book cannot confer jurisdiction on this court." Simms v. Warden, 229 Conn. 178, 184, 640 A.2d 601 (1994); see General Statutes § 51-14. In State v. Morrison, 39 Conn.App. 632, 635, 665 A.2d 1372, cert. denied, 235 Conn. 939, 668 A.2d 376 (1995), the Appellate Court rejected the contention that Practice Book § 934, the predecessor to the current § 43-21, could be read to confer jurisdiction for sentence modifications in situations where § 53a-39 clearly did not afford a defendant such a remedy. Noting that "[t]he judiciary simply cannot confer jurisdiction on itself through its own rule-making power," the Morrison court held that "General Statutes § 53a-39 does not violate the separation of powers doctrine and takes precedence over Practice Book § 934." Id., 635. For these reasons, this court declines the defendant's invitation to construe Practice Book § 43-21 in a manner at odds with the statutory interpretation set forth in State v. Adam H., supra, 54 Conn.App. 387, and thus denies the relief sought pursuant to § 43-21 of the Practice Book.
General Statutes § 51-14 provides in pertinent part that: "The judges of the Supreme Court, the judges of the Appellate Court, and the judges of the Superior Court shall adopt and promulgate and may from time to time modify or repeal rules and forms regulating pleading, practice and procedure in judicial proceedings in courts in which they have the constitutional authority to make rules, for the purpose of simplifying proceedings in the courts and of promoting the speedy and efficient determination of litigation upon its merits . . . Such rules shall not abridge, enlarge or modify any substantive right nor the jurisdiction of any of the courts . . ." (Emphasis added.)
C
The defendant also claims that the laws governing sentence modification and review (1) are arbitrary and irrational, (2) are in violation of his state and federal right to due process and equal protection, and (3) are not in accordance with the legislature's intent. The first two of these contentions, or at least very similar claims, were considered and rejected by our Supreme Court in Mainiero v. Liburdi, 214 Conn. 717, 573 A.2d 1207 (1990). The petitioner in that case, who was then serving a twelve-year sentence, sought to modify his sentence. However, because the version of § 53a-39 then in effect precluded modification when a sentence exceeded five years (regardless of the position of the state's attorney), the petitioner could not seek relief pursuant to the statute. Id., 722. As a result, in a subsequent petition for a writ of habeas corpus, the petitioner challenged the constitutionality of the statutory sentence modification scheme. The trial court denied the petition. Id., 723. The petitioner then appealed the trial court's decision, challenging the constitutionality of the "statutory [sentence modification] scheme . . . because it deprive[d] him of a forum in which to argue that his sentence should be modified." Id., 723.
On appeal, our Supreme Court noted first that "[a] party contesting a statute's constitutionality has a heavy burden to prove unconstitutionality beyond a reasonable doubt." (Internal quotation marks omitted.) Id., 724. The court then went on to hold as follows: "The petitioner has failed to cite any authority that supports his assertion that the eligibility restrictions that the legislature has imposed upon . . . sentence modification and sentence review are unconstitutional. We conclude that the legislature's establishment of such eligibility restrictions was both rational and reasonable. As the habeas court correctly stated: `The legislature has a rational basis to impose whatever guidelines and procedures it deemed appropriate. Section 53a-39 used the severity of the crime and length of incarceration as guidelines for rehabilitation and public safety . . . Accordingly, the distinctions drawn between sentences of different lengths and corresponding available alternatives or reduced punishments are rationally related. Section 53a-39 (rev'd 1989) is neither irrational nor arbitrary.' In sum, the legislature has prescribed a statutorily harmonious and constitutional scheme for sentence modification [and] sentence review . . ." Id., 724.
In light of Mainiero v. Liburdi, supra, 214 Conn. 717, and because the defendant here, like the petitioner in that case, has failed to cite (and the court has failed to find in its own research) any authority in support of his claims, the court concludes that the defendant has not met his burden of proving that the statutory scheme for sentence modification is unconstitutional.
The third prong of the defendant's final claim is that the laws governing sentence modification are not what the legislature intended them to be. In this regard, the defendant is correct that most offenders have an absolute right, even without the agreement of the state's attorney, to seek at least one review of their sentences — either with the trial court, pursuant to General Statutes § 53a-39(a), or with the Sentence Review Division of the Superior Court, pursuant to General Statutes § 51-195. The defendant is also correct that he, in fact, does not have such an unfettered right. Rather, solely because of the nature of the sentence he received — that is, a split sentence with a "top" number of more than three years and a "bottom" number of less than three years — he falls in a relatively small class of offenders whose only opportunity to seek sentence modification requires and is dependent upon the agreement of the state.
Indeed, as the defendant correctly points out, certain offenders may even be entitled to seek review in both forums. Defendant's Memorandum, p. 6.
Contrary to the defendant's claim, he is not within "a class of offenders (those sentenced to a term of confinement of less than three years, but with an unexecuted term consisting of a number higher than "three") who are not eligible to seek a review of their sentence in any forum." (Emphasis in original.) Defendant's Memorandum, p. 6. More accurately, the defendant is in a class of offenders who can seek review of their sentence from the trial court, but only with the agreement of the state's attorney.
The defendant's restricted opportunity for sentence modification arises for the following reason. As discussed in detail above, our Appellate Court in State v. Adam H., supra, 54 Conn.App. 387, determined that the phrase "definite sentence" in § 53a-39 referred to the "top" number of a split sentence, and that, accordingly, only split sentences with a "top" number of three years or less can be modified without the agreement of the state's attorney, pursuant to subsection (a) of that statute. The defendant here, who received a split sentence with a "top" number of six years, therefore was entitled to seek modification from the trial court only pursuant to subsection (b) of the statute, and thus only with the agreement of the state. Given that the state has opposed modification in this case, the defendant has been effectively denied the opportunity to seek such a modification from the trial court.
The only other forum under Connecticut law available to a defendant seeking a sentence modification is the Sentence Review Division of the Superior Court. Pursuant to § 51-195, the Sentence Review Division has jurisdiction, even without the state's attorney agreement, to reduce the sentence of "[a]ny person sentenced . . . to a term of imprisonment for which the total sentence . . . amounts to confinement for three years or more." General Statute § 51-195. In light of the holding in State v. Adam H., supra, 54 Conn.App. 387, it might appear at first blush that the defendant here could seek review of his sentence at Sentence Review — and indeed, he did pursue that course in the first instance. Defendant's Memorandum, p. 3. However, what the defendant came to learn is that our Sentence Review Division, in cases involving split sentences, has long interpreted (and even after State v. Adam H., supra, 54 Conn.App. 387, continues to interpret) the phrase "confinement for three years or more" in § 51-195 to limit its jurisdiction to sentences in which the "bottom" number of the split sentence is three years or greater. For this reason, the Sentence Review Division dismissed the defendant's application on jurisdictional grounds, deeming his split sentence of six years, execution suspended after two years, to be a two-year sentence and thus not one involving "confinement for three years or more."
It is the gist of the defendant's claim that the legislature could not have intended that certain defendants, simply because their particular split sentences consist of a "top" number of more than three years and a "bottom" number of less than three years, would effectively "fall into the cracks" of our sentence modification and review structure in the sense that, unlike all other offenders, they must obtain state's attorney approval before seeking any sentence reduction. Though he provides no law or evidence in support of his claim, the defendant asks this court to conclude that the legislature, by necessity, must have intended to afford all defendants the same unrestricted opportunity for sentence modification, and on this basis to entertain the defendant's motion in the present case notwithstanding the state's objection.
Simply stated, this court is unwilling and unable to reach the conclusion proposed by the defendant. "The intent of the legislature . . . is to be found not in what the legislature meant to say, but in the meaning of what it did say . . . It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is a function of the legislature." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 350, 890 A.2d 1289 (2006); General Statutes § 1-2z. Given that "the eligibility restrictions that the legislature has imposed upon . . . sentence modification and sentence review," Mainiero v. Liburdi, supra, 214 Conn. 724, are "neither irrational nor arbitrary . . . [and] prescribe a statutorily harmonious and constitutional scheme," CT Page 9202 id., there is no legitimate reason for this court to conclude that the legislature did not mean precisely what it said, or that the statutes are not in accordance with the legislature's intent.
Like the defendant here, the petitioner in Mainiero v. Liburdi, supra, 214 Conn. 717, was statutorily precluded from seeking modification of his sentence from either the trial court or from the Sentence Review Division.
If, in fact, it is determined at some point that the defendant, and those sentenced in the manner he was, should be afforded either a right to seek sentence reduction from the trial court without the state's agreement, or, alternatively, an opportunity to be heard at the Sentence Review Division, then it is the exclusive province of the legislature to amend the law to achieve that result. However, until such time as the statutes are amended in this regard, it is the opinion of this court that it lacks the authority to modify the type of sentence at issue here, unless the state expressly agrees to the defendant's request to seek such a modification.
It would appear that the defendant's "predicament" may not have been fully recognized or considered in State v. Boyd, supra, 272 Conn. 72. In Boyd, the Court held that a sentence of two years and one day followed by two years of special parole constituted a "definite sentence" of two years and one day (which could be modified without agreement of the state), and not a sentence of four years and one day (which could not have been modified without such state's agreement). In addressing the difference between subsections (a) and (b) of § 53a-39, the Court correctly noted that "if [a] defendant is sentenced to more than three years, under subsection (b), the state's attorney must agree to the modification of the sentence." Id., 77. However, the court then went on to say the following: " If a defendant is sentenced to more than three years and the state's attorney does not agree to a proposed modification, the defendant may seek review by the sentence review division of the Superior Court. See General Statutes § 51-195." (Emphasis added) Id., 77 n. 4. For the reasons set forth in the accompanying text, this dicta, though undoubtably true for some offenders, clearly does not apply to those offenders who receive the type of split sentence the defendant received here.
III CONCLUSION
For the reasons stated, the court concludes that it does not have jurisdiction to consider the defendant's Motion for Reduction of Sentence. Therefore, the motion is hereby dismissed.
Although in rejecting a claim for relief, a court more commonly may order a motion `denied,' rather than `dismissed,' it is this court's understanding that "a lack of jurisdiction requires a dismissal, rather than a denial of [a] defendant's motion." State v. Taylor, 91 Conn.App. 788, 791, 882 A.2d 682, cert. denied, 276 Conn. 928, 889 A.2d 819 (2005). To the extent that the court is in error in its reading of the law, then, for the reasons stated in this decision, the defendant's motion is hereby denied.