Opinion
No. CR 10-638756
July 14, 2010
MEMORANDUM OF DECISION RE STATE'S MOTION TO TRANSFER TO THE REGULAR CRIMINAL DOCKET
I. NATURE OF THE PROCEEDINGS
On March 16, 2010, the State of Connecticut filed a Motion for Transfer, pursuant to General Statutes Sec. 54-76c(b)(1), seeking the transfer of the case of S.T., the defendant, from the youthful offender docket to the adult criminal docket of the Superior Court.
In accordance with the spirit and intent of General Statutes Sec. 46b-142(b) and Practice Book Sec. 79-3, the names of the parties involved are not disclosed.
The defendant filed a Memorandum of Law in Opposition to the State's Motion to Transfer (Defendant's memo.) dated March 16, 2010. In the memorandum, the defendant claims, inter alia, the authority to transfer is not that of the state but that of the judicial officer after a hearing.
The state filed a Memorandum of Law in Support of the Motion to Transfer (State's memo.) dated April 26, 2010, claiming, inter alia, the state's unilateral authority to transfer the matter without a hearing.
On April 8, 2010, the court granted the state's motion for transfer from the youthful offender docket to the adult criminal docket (without a hearing) and indicated a written memorandum of decision would follow.
II. ISSUE PRESENTED
Does General Statutes Sec. 54-76c(b)(1) confer upon the state prosecutor the unilateral authority to transfer a case which alleges the commission of a felony from the youthful offender docket to the adult criminal docket of Superior Court without benefit of a hearing? The court answers the inquiry in the affirmative.
CT Page 14520
III. FACTS
On January 19, 2010, the defendant, S.T., age fourteen, was arrested and charged with Robbery in the Second Degree, Larceny in the Second Degree, Assault in the Second Degree, each a class C felony. He was also charged with Robbery in the First Degree, a class B felony. On that date, the defendant was presented in juvenile court and the matter was transferred from the juvenile court to the regular criminal docket of the Superior Court.The court takes judicial notice that on March 16, 2010, this court presided over the youthful offender docket and the subject case was presented to this court on said docket. Likewise, the court takes judicial notice of a document in the defendant's file entitled "Order of Transfer from the Juvenile to Criminal Docket" (JD-JM-105 Rev.6-05) and finds that the defendant was transferred to the adult criminal docket pursuant to General Statutes Sec. 46b-127(a), the mandatory automatic transfer section of the juvenile statutes, based upon his being charged, inter alia, with a class B felony. The court takes judicial notice of the defendant's file and has reviewed the police incident report (#10-2607) contained therein and finds probable cause for the charges enumerated. It is unclear from the record the manner in which, and on what basis, the subject case was assigned to the youthful offender docket.
There is nothing in the record, in any oral claims by the defendant or in his memorandum which refers to that which took place in the juvenile court relevant to the transfer proceedings. In any event, the defendant is not challenging the transfer of his case from the juvenile court. The defendant is challenging the transfer from the youthful offender docket to the regular criminal docket of the Superior Court.
IV. DISCUSSION
The defendant advances a four-prong attack on the authority of the prosecuting official to transfer the matter from the youthful offender docket to the regular criminal docket and claims: 1) the clear and unambiguous language of the statute (Sec. 54-76c(b)(1)) allows the judicial authority the discretion to order the case to remain on the youthful offender docket; 2) there is a violation of the separation of powers doctrine in that the legislature cannot mandate a specific order of the court; 3) there is a due process violation in that prior to a transfer to the adult docket there must be a hearing held in order for the court to determine, in its discretion, whether transfer is appropriate; and 4) the defendant claims State v. Fernandes, 115 Conn.App. 180, cert. granted, 293 Conn. 917 (2009), holds that a transfer from the juvenile court, pursuant to Sec. 46b-127(b), without a judicial hearing, is a violation of due process and binding on this court.
A. The Intent of the Legislature 1. Plain Language
The defendant claims, inter alia, that Sec. 54-76c(b)(1) mirrors the juvenile transfer statute (Sec. 46b-127(b)) and advances the statement that "the language of the [youthful offender] statute likewise vests the discretion [for transfer] in the Court and not with the prosecutor." Defendant's memo., p. 3. There is no factual basis provided by the defendant in support of this conclusion.
The defendant contends "that [Sec. 54-76c(b)(1)] is clear and unambiguous and therefore legislative commentary is not relevant and cannot be considered under the plain language of General Statute Sec. 1-2z." Defendant's memo., p. 4. The defendant then opines that the state may revert to the legislative history and asserts that the documented history of that legislation is simply wrong. The defendant claims: "While commenting on the legislation, Representative Lawlor indicated `the discretion to remove a case from the youthful offender docket lies with the prosecution . . .' Lawlor's position was clearly erroneous, since the discretion of whether to transfer a case from the juvenile docket to the adult docket lies solely with the court." Defendant's memo., p. 5. Again, there is no basis provided by the defendant in support of these conclusions.
The state, in its memorandum, makes no claim relevant to the plain language of the subject statute and simply skips the threshold inquiry of whether the language of the statute is clear and unambiguous, and, contrary to Sec. 1-2z, engages in a discussion of the "clear and unambiguous" legislative history. The state concludes that the legislative history makes it clear that Sec. 54-76c "was designed to provide a swift, efficient transfer mechanism that was solely within the prosecutor's discretion, and not to vest defendants with any right to youthful offender status." State's memo., pp. 2-3.
Whether Sec. 54-76c(b)(1) allows the state to unilaterally transfer a case from the youthful offender docket to the adult criminal docket is a question of statutory construction. The Connecticut Supreme Court has commented: "When construing a statute, [the] fundamental objective is to ascertain and give effect to the apparent 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. In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. if, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to 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 . . ." (Citation omitted; internal quotation marks omitted.) State v. Tabone, 292 Conn. 417, 431-32 (2009).
The statute at issue, Sec. 54-76c(b)(1) reads in relevant part: "Upon motion of the prosecuting official and order of the court, the case of any defendant who is a youth and is charged with the commission of a felony . . . shall be transferred from the youthful offender docket to regular criminal docket of the superior court, provided the court finds that there is probable cause to believe the defendant has committed the act for which he or she is charged." (Emphasis added.)
The use of the word "shall" in the statute is instructive. This court interprets the word to connote an act that is mandated. In the event any discretion was intended to repose with the judicial authority, the legislature would have replaced the word "shall" with "may" in order to give effect to that discretion. The word "shall" implies and lends support to the conclusion that the act is mandated and the legislature intended no discretion in the court, relevant to transfer, once the prosecuting authority makes a motion for transfer of the case to the adult docket and the court finds probable cause for the charges. Once probable cause is found by the court the prosecuting authority has the unilateral authority to transfer the matter to the adult docket.
The defendant claims, inter alia, that the phrase in Sec. 54-76c(b)(1) "and order of the court" refers necessarily to the authority of the court relevant to the issue of transfer. The defendant claims that this language clearly demonstrates that the legislature intended the court to possess the discretion to effectuate the transfer.
There are two acts referred to in said statute in order to consummate a transfer: 1) the motion of the prosecutor to transfer; and 2) the court's finding of probable cause. The statute should be construed in view of established legislative policy and in consideration of that policy, and the language employed, the court finds that the phrase "and order of the court" refers to that task, in which the authority is clearly reposed in the judicial officer, to make the requisite finding of probable cause.
It may be claimed that because the subject statute does not define any discretion in the court, relevant to the authority to transfer, the statute is ambiguous and therefore grounds exist to review the legislative history. The lack of discretion in the court may more simply, and reasonably, be explained as the legislative intent not to bestow any discretion in the judicial authority beyond the finding of probable cause for the crime(s) charged.
The court's inquiry must include reference to the authority upon which the state relied for the initial transfer from the juvenile court. The statutory authority for any transfer from the juvenile court, provided by General Statutes Sec. 46b-127(a) or (b), clearly asserts that the subject case must be directed to the "regular criminal docket" of the Superior Court. There is no reference to any transfer to the youthful offender docket.
2. Legislative History
It is apparent to this court that Sec. 54-76c(b)(1) could have been drafted with greater clarity concerning the authority, if any, ascribed to the judicial officer relevant to the issue of transfer. It may, reasonably, be claimed that the subject language is unclear and ambiguous. Accordingly, the court will revert to a review of the legislative history.
A review of the legislative history of the 2005 Public Act 05-232 (H.B. 5212) which amended the subject statute (Sec. 54-76c(b)(1)), demonstrates the clear and unequivocal intent of the legislature. It must be noted that the subject of the bill is to vest complete authority in the prosecutor in the handling of the 16 and 17 year olds relevant to their treatment in the juvenile court and on the youthful offender docket and to render their treatment commensurate with that already provided 14 and 15 year olds.
Representative Michael Lawlor, co-chairman of the judiciary committee and a co-sponsor of the bill, knowing full well that he was providing the legislative intent and informing his colleagues on the interpretation of the amendment, explained the transfer statute provisions in the following manner: "[A]ll of the others [those defendants not excluded pursuant to CGS Sec. 54-76c(a)] would remain in the status of youthful offender unless a prosecutor wanted that case to be instead handled as a normal, adult case. And the prosecutors would have unbridled discretion to exercise that option for all felony charges . . . and in those cases, a prosecutor would be able to treat that case as an adult case no questions asked, no ability of a Judge or anyone else to block that from actually taking place." (Emphasis added). 48 H.R. Proc., Pt. 25, 2005 Sess., pp. 7616-17.
Representative Lawlor continued: "And, in fact . . . that is identical to the rules we adopted ten years ago to deal with the juvenile offenders who were aged 14 and 15. We have since that time, given prosecutors in the juvenile court the option to transfer those cases to the adult court and there is no procedural mechanism to stop that from happening." (Emphasis added.) Id.
Representative Lawlor further added: "In the past, prior to 1995, there had to be a hearing and there had to be a showing made that this was the right thing to do (the transfer) and the Judge would make the decision as to yes or no. That's not the case in the juvenile system, and if this is to be adopted in the law, a prosecutor for any felony would be able to treat any 16 and 17 year old as a typical, normal adult case, not a youthful offender case, simply based on that prosecutor's exercising their decision." Id., p. 7617.
Representative Lawlor elaborated: "And a prosecutor would always have the sole discretion to treat an individual case as a regular adult case, which, of course, would expose that 16 or 17 year old to whatever the maximum penalty is provided for a particular crime. So I think what you get here . . . is you get the protections that many states already afford to 16 and 17 year olds, most states, in fact, and at the same time entrust in our prosecutors the discretion that they will exercise when they really have someone who is, in fact, dangerous, ought to be handled as an adult and face all the adult punishments that go along with adult crimes." Id., p. 7620.
Later during the June 2, 2005 session, Representative Lawlor noted: "And it is our intent that a prosecutor, in the case of felony charges, would have complete discretion to treat, by filing, would activate this, would sort of exercise the discretion by filing a motion with the court and that the court, assuming that there's probable cause for the charges etc., would, would automatically transfer this to the normal adult docket . . ." Id., p. 7630.
To repeat for clarity, Representative Lawlor added: "And to emphasize one more time, we are talking about only decisions being made by the prosecutor. This is not a motion anyone else can file. And once filed, the courts are, in essence, obligated to comply with it . . ." Id., p. 7636.
Representative Cafero commented: "This particular Amendment with regard to this sole issue doesn't seem like a massive change so long as we all have the assurances that it's upon a prosecutor's motion that cannot be denied. So I'm satisfied with that . . ." Id., pp. 7643-44.
Representative Lawlor continued: "[T]his proposed change would switch back to the prosecutors total control over who is a youthful offender and who is not, the logic is that if a prosecutor wants to seek a longer sentence, the option she or he has is simply to treat it as an adult case." Id., p. 7649.
The defendant's out of hand dismissal of the legislative history cannot stand. A review of that history is clear, concise and unequivocal. Accordingly, the court finds that pursuant to the language of Sec. 54-76c(b)(1) and its legislative history, the intent of the legislature is to: deprive the judicial authority of any discretion in the transfer of any felony matter from the youthful offender docket to the adult criminal docket — the legislature only provided the court with the limited authority to determine whether probable cause exists for the charges enumerated; to repose in the prosecutor sole authority to transfer a felony matter once the court exercised its limited authority for the finding of probable cause. Upon a finding of probable cause, the court can do nothing to thwart a transfer by the state from the youthful offender docket to the adult criminal docket.
B. Separation of Powers
The defendant sets out the necessary criteria that must be established in order to support a claim of a violation of the separation of powers doctrine by referencing the Supreme Court which said, "A legislative enactment violates the separation of powers provision if it either governs subject matter that falls within the exclusive control of the judiciary, or, if the statute creates a significant interference with the orderly functioning of the Superior Court's judicial role." (Citation omitted; emphasis in the original.) Defendant's memo., pp. 6-7, quoting State v. McCahill, 261 Conn. 492, 509 (2002).
The defendant claims that in the event "the legislature is able to statutorily require that the superior courts must mandatorily grant all prosecutorial motions to transfer youthful offenders to the adult docket, then the legislature has both governed subject matter that falls within the exclusive control of the judiciary and has significantly interfered with the orderly functioning of the Superior Court's judicial role." (Emphasis in the original.) Defendant's memo., p. 7.
In the event that the defendant demonstrates that the legislature has intruded improperly on the judicial function, the defendant is claiming a matter of constitutional magnitude. Yet, the defendant makes no reference to that section of the constitution which he claims has been violated.
The burden the defendant bears in challenging the constitutionality of a statute must be noted. "[B]ecause a validly enacted statute carries with it a strong presumption of constitutionality, those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt." State v. Rizzo, 266 Conn. 171, 291 (2003).
Our Supreme Court has said: "The law is well established with respect to evaluating challenges to statutes whose constitutional infirmity is claimed to flow from impermissible intrusion upon the judicial power . . . Because the powers of the three branches of government inevitably overlap, this court has consistently held that the doctrine of the separation of powers cannot be applied rigidly . . . and has refused to find constitutional impropriety in a statute simply because it affects the judicial function . . . A statute violates the constitutional mandate for a separate judicial magistracy only if it represents an effort by the legislature to exercise a power which lies exclusively under the control of the courts . . . In accordance with these principles, a two part inquiry has emerged to evaluate the constitutionality of a statute that is alleged to violate separation of powers principles by impermissibly infringing on the judicial authority . . . A statute will be held unconstitutional on those grounds if: (1) it governs subject matter that not only falls within the judicial power, but also lies exclusively within judicial control; or (2) it significantly interferes with the orderly functioning of the Superior Court's judicial role.
"[C]ontrol of the criminal docket is not an exclusive judicial function. By this we mean only that the prosecution, by exercising its core function of determining which cases to prosecute, obviously exercises some `control' over the criminal docket. That, however, does not infringe on the separation of powers principle; it flows from that principle . . . The legislature, by enacting laws that define criminal conduct, in large part already affects which cases will appear on the criminal docket. A prosecutor's decision whether to charge or whether to take a plea bargain also affects the docket. Although these actions affect the docket, they do not control the time and manner of scheduling. Similarly, the decision whether to request that an individual be transferred . . . might affect, but does not control, the docket." State v. Angel C., 245 Conn. 93, 130-32 (1998).
It is incumbent on the defendant, in order to succeed in his claim of a violation of the separation of powers doctrine, to demonstrate that the subject matter (the docketing process) falls exclusively within the judicial control or the legislative mandate significantly interferes with the orderly function of the superior court's judicial role. The defendant has failed to demonstrate either.
No violation of the separation of powers doctrine has been demonstrated by the moving party, the defendant.
C. Due Process
The defendant, in making his due process claim, makes no mention, reference, or analysis, under either Article I, Sec. 8 of the constitution of Connecticut or the 14th amendment to the United States Constitution.
Our Supreme Court has said, that "[t]he requirements for a successful due process claim are well established. The fourteenth amendment to the United States constitution provides that the State [shall not] deprive any person of life, liberty, or property, without due process of law . . . In order to prevail on his due process claim, the [defendant] must prove that: (1) he has been deprived of a property [or liberty] interest cognizable under the due process clause; and (2) the deprivation of the property [or liberty] interest has occurred without due process of law . . ." (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Matos, 240 Conn. 743, 749, 694 A.2d 775 (1997); see State v. Morales, 240 Conn. 727, 739, 694 A.2d 758 (1997). As a threshold matter, therefore, the defendant must show that he has a vested liberty interest in their [youthful offender] status that is cognizable under the due process clause. Frillici v. Westport, 231 Conn. 418, 437-38, 650 A.2d 557 (1994). "Liberty interests protected by the Fourteenth Amendment may arise from two sources — the Due Process Clause itself and the laws of the States. Meachum v. Fano, 427 U.S. 215, 223-27 [ 96 S.Ct. 2532, 49 L.Ed.2d 451], (1976). Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)." (Internal quotation marks omitted.) State v. Matos, supra, 749; see also State v. Angel C., supra, 245 Conn. 104.
It must be noted that the youthful offender statutes confer certain benefits on those youths eligible to be adjudged youthful offenders. For instance, all proceedings, except the motion for investigation of eligibility, are private. Gen. Stat. Sec. 54-76h. If confined, a youth is segregated from other defendants over the age of eighteen years before and during trial and before sentencing. Gen. Stat. Sec. 54-76h. A youthful offender is also eligible to receive a more lenient sentence; compare Gen. Stat. Sec. 54-76j, with, e.g. Gen. Stat. Sec. 53a-35; is not disqualified from later holding public office, and does not forfeit any right or privilege to receive a license granted by a public authority. Gen. Stat. Sec. 54-76k. Moreover, a youthful offender is not considered a criminal, and a determination that a defendant is a youthful offender is not deemed a conviction. Gen. Stat. Sec. 54-76k. Moreover, a youthful offender is not considered a criminal, and a determination that a defendant is a youthful offender is not deemed a conviction. Gen. Stat. Sec. 54-76k. A youthful offender's records are kept confidential; and are automatically erased "when such person attains twenty one years of age, provided such person has not subsequent to being adjudicated a youthful offender been convicted of a felony . . . prior to [having] attained such age." Gen. Stat. Sec. 54-76o. State v. Matos, supra, 240 Conn. 750-53.
Apparently, these youthful offender benefits identified are the liberty interests to which the defendant lays claim.
The liberty interests claimed in the instant matter do not emanate directly from the state or federal constitutions. See State v. Angel C., supra, 245 Conn. 104. Any special treatment accorded a youth because of his age with respect to criminal matters results from statutory authority, rather than any inherent or constitutional right. See id. Accordingly, because the right to special treatment emanates from the legislature and does not involve any fundamental right, that right can be withdrawn or limited to certain classes of youth by the legislature provided the classifications are founded upon a rational basis. See id., 104-05.
The defendant conclusively asserts, that he "has a vested liberty interest in his Youthful Offender status that is cognizable under the due process clause that arises from the laws of the State of Connecticut." Defendant's memo., p. 7. The defendant generally cites the youthful offender statute for his authority. There is no specific reference to any language within the youthful offender statute (presumably Sec. 54-76b et seq.) to which the court's attention is referred.
The defendant further claims that due to the liberty interest having vested in the defendant by the youthful offender statute the judicial authority must conduct a hearing as a condition precedent to a transfer of the case to the regular criminal docket. According to the defendant, a judicial hearing is the only manner in which the defendant's liberty interest can be protected, and that authority reposes in the court. Any transfer to the regular criminal docket without such a hearing and order of the court, claims the defendant, is a violation of the defendant's due process rights. Defendant's memo., pp. 7-8. Again, the defendant provides no supporting authority for the conclusions he advances.
The record is silent as to what transpired in the juvenile court relevant to the transfer proceedings. The defendant makes no claim that any liberty interests vested in the defendant in the juvenile court.
Pursuant to Sec. 54-76b(a)(1), in relevant part, a "youth means . . . (B) a child who has been transferred to the regular criminal docket of the Superior Court pursuant to Sec. 46b-127 . . ." Pursuant to Sec. 54-76c(a), a "youth" who is charged with the commission of a crime (exempted from eligibility is any youth charged with certain enumerated crimes not relevant here) shall be "presumed to be eligible to be judged as a youthful offender."
In support of his claim the defendant relies heavily on State v. Fernandes, 115 Conn.App. 180 cert. granted, 293 Conn. 917 (2009). In Fernandes, the prosecuting authority executed a unilateral transfer of the defendant's case from the juvenile court docket to the regular criminal docket of the superior court without the defendant having the benefit of a due process hearing. Upon subsequent conviction and appeal, the appellate court reversed the conviction of the trial court and held that due process requires a hearing prior to transfers from the juvenile docket (pursuant to Sec 46b-127(b)) to the regular criminal docket.
The court finds that Fernandes is distinguishable from the case at bar. First, the defendant herein was transferred pursuant to subsection (a) — the mandatory transfer section — for a class B felony — and not the discretionary transfer pursuant to subsection (b) as in Fernandes. Second, the operative statute before this court Sec. 54-76c(b)(1) and not the juvenile transfer statute as in Fernandes. Third, the holding in the Fernandes case is contrary to our Supreme Court's holding in State v. Angel C. (no vesting of a liberty interest in the juvenile court for a youth charged with a felony) and thus not binding on this court.
The defendant also relies on Kent v. United States, 383 U.S 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), and claims that "the holding in Kent has been interpreted in Connecticut to mean that certain juveniles, and by logical extension, certain `youths,' have a vested liberty interest." Defendant's memo., p. 9. The defendant's reliance on Kent, however, is misplaced.
In Kent, the United States Supreme Court held that the Juvenile Court Act vested "original and exclusive jurisdiction" in the juvenile court, and permitted the juvenile court to waive jurisdiction only after "full investigation." Kent v. United States, supra, 383 U.S. 556, 558. The Court went on to conclude that by placing jurisdiction over all juveniles initially, and, presumptively permanently, in the juvenile court, and permitting the court to waive its jurisdiction only after a full investigation, the statute created a substantial and vested liberty interest in juvenile status. Id., 561. That liberty interest could be divested by means of transfer to the criminal docket, but only after the requirements of procedural due process were met. Id.
The defendant overstates the applicability of Kent to youthful offender matters in Connecticut. According to the Connecticut Supreme Court, " Kent simply stands for the proposition that if a statute vests a juvenile with the right to juvenile status, then that right constitutes a liberty interest, of which the juvenile may not be deprived without due process, i.e., notice and a hearing. State v. Angel C., supra, 245 Conn. 106, citing Kent v. United States, supra, 383 U.S. 556-58. If the statute at issue does not create a liberty interest, Kent is inapposite. State v. Angel C., supra, 245 Conn. 107. The statute at issue does not create a liberty interest in juvenile status and the defendant makes no such claim.
In furtherance of its inquiry as to whether a liberty interest vests in youthful offender status the count considers subsections (a) and (b) of Sec. 54-76c and the manner in which each relates to the other.
Sec. (a) says simply, in relevant part: "[W]here an information . . . (charges) a defendant with the commission of a crime, and where it appears that the defendant is a youth, such defendant shall be presumed to be eligible to be adjudged a youthful offender . . ."
Sec. (b) says simply, in relevant part: "Upon the motion of the prosecuting official and order of the court, the case of any defendant who is a youth and is charged with the commission of a felony . . . shall be transferred from the youthful offender docket to the regular criminal docket of the Superior Court, (provided probable cause for the charges is found)."
There appears to be a tension between the two subsections. Subsection (a) accords a youth, charged with "crimes," the presumption of eligibility for youthful offender benefits. Subsection (b), on the other hand, denies the youth, charged with a "felony," those benefits and authorizes the prosecuting official to treat the youth as an adult with adult penalties, based upon the prosecuting attorney's discretion. Although the respective subsections are not necessarily inconsistent, each stands for a distinctive policy consideration that creates tension one with the other.
In the event subsection (a) is interpreted as vesting a liberty interest in a youth on the youthful offender docket, as the defendant claims, subsection (b) would appear to allow the state to deny the youth his or her vested benefits without a hearing, at the discretion of the states' attorney. This apparent interpretation of subsection (a), which the defendant advances, would result in subsection (b) being superfluous.
We are mindful that "we must, if possible, construe two statutes in a manner that gives effect to both, eschewing an interpretation that would render either ineffective. In construing two seemingly conflicting statutes, we are guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law . . . Accordingly, [i]f two statutes appear to be in conflict but can be construed as consistent with each other, then the court should give effect to both. If a court can by any fair interpretation find a reasonable field of operation for two allegedly inconsistent statutes, without destroying or preventing their evident meaning and intent, it is the duty of the court to do so. Therefore, [w]e must, if possible, read the two statutes together and construe each to leave room for the meaningful operation of the other. In addition, [i]f two constructions of a statute are possible, we will adopt the one that makes the statute effective and workable . . ." (Internal quotation marks omitted.) Rainforest Cafe v. Dept. of Revenue Services, 293 Conn. 363, 377-78 (2009).
In reviewing subsections (a) and (b) the court is not dealing with two distinct statutes that at promulgation were separated by time, place and subject matter. The court is considering two subsections which descend directly from the same act of the legislature.
The legislature did not intend the "presumption of eligibility" under Sec. 54-76c(a) to result in the automatic vesting of a liberty interest in youthful offender status. Had this been the legislature's intent subsection (b)(1) of Sec. 54-76c would, in effect, be rendered superfluous. By enacting subsection (b)(1) which allows the prosecuting official to transfer youthful offender felony cases to the regular criminal docket — the legislature empowered the prosecuting authority, in furtherance of the police powers of the state, to deny to the defendant the benefits of youthful offender status. Thus, Kent is inapplicable to the present matter because Sec. 54-76c(b)(1) allows the prosecutor to transfer unilaterally a youth to the regular docket of the Superior Court, thus divesting a youth of youthful offender status. The only reasonable interpretation, in this court's opinion, is that subsection (b) trumps the presumption of youthful offender eligibility that subsection (a) provides. This interpretation can only be reasonable in the event the court concludes that the legislature did not intend to have a liberty interest vest in a youth simply by his or her being placed on the youthful offender docket.
The rational basis for the legislature empowering the prosecuting official to determine, in his or her discretion, what youth is to be exposed to greater penalties is found in the police powers of the state that the legislature has recognized. In accord with the police powers, the legislature is empowered to provide that certain youths charged with the more serious classification of crimes, i.e. felonies, can be treated as adults with the resultant greater exposure to penalties. This is the rational basis for the authority of the legislature to deprive certain youths who are accused of the more serious of crimes from the benefits of youthful offender status. Relevant to the less serious "crimes" of subsection (a), a youth will be eligible to enjoy the benefits of youthful offender status. It is noteworthy that in the case at bar the court is dealing with a youth who is charged with a class B felony, the most serious classification of crime to which the discretionary statute applies.
In exercising [the state's] police power the legislature has a broad discretion, both in determining what the public welfare requires, and in fashioning legislation to meet that need. (Citations omitted.) State v. Angel C., supra, 245 Conn. 105.
There is a vast difference between the exercise of judicial discretion without a hearing and the exercise of executive, i.e., prosecutorial, discretion without a hearing. The former has been held to violate due process, while the latter has not. "Judicial proceedings must be clothed in the raiment of due process, while the processes of prosecutorial decision-making wear very different garb . . . The character of the proceeding, rather than its consequences to the accused, are largely determinative of his rights . . . The guaranty of a hearing found in the due process clause of the Fifth [and Fourteenth] Amendment[s] has traditionally been limited to judicial and quasi-judicial proceedings. It has never been held applicable to the processes of prosecutorial decision-making. State v. Angel C., supra, 118.
There is no presumption that judicial review of a prosecutor's discretionary decision is essential or even desirable. The Supreme Court reiterated the principle that "prosecutors are vested with broad, albeit not unlimited, discretion and that undue judicial interference in the exercise of their discretion is to be eschewed. Prosecutors . . . have a wide latitude and broad discretion in determining when, who, why and whether to prosecute for violations of the criminal law . . . This broad discretion, which necessarily includes deciding which citizens should be prosecuted and for what charges they are to be held accountable . . . rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review." (Citations omitted.) We have recognized that "the basis of prosecutorial charging decision is one area not generally well suited for broad judicial oversight because it involve[s] exercises of judgment and discretion that are often difficult to articulate in a manner suitable for judicial evaluation . . . The judicial branch . . . [is] not in the best position to consider the various factors that prosecutors weigh, such as the strength of the evidence, the visibility of the crime, the availability of resources and possible deterrent effects. Nor is the judicial branch anxious to consider the validity of various rationales advanced for particular charging decisions." (Citations omitted.) State v. Angel C., supra, 119.
In State v. B.B., Superior Court, New Haven G.A. at New Haven, Docket No. CR09-94323 (September 24, 2009, Vitale, J.), in determining whether a liberty interest vested on the youthful offender docket, Judge Vitale made a cogent observation by stating, "[T]he court finds that the language of the mandatory transfer provision of C.G.S. Sec. 54-76c(a) defines as ineligible a significant number of individuals who would otherwise be eligible as the result of their age. Those individuals deemed ineligible by Sec. 54-76c(a) are far greater than comparable exclusions found in C.G.S. Sec. 46b-127(c). The number of exclusions found in C.G.S. Sec. 54-76c(a) support the conclusion that there is no vested liberty interest on youthful offender status." State v. B.B., supra, p. 8. In State v. B.B., the court found that the statute in issue is a "mandatory" transfer statute.
Furthermore, claims the court in State v. B.B., "Sec. 54-76c(b)(2), which addresses the procedure for transferring a case from the regular criminal docket back to the youthful offender docket states in relevant part: `The court sitting for the regular criminal docket of the Superior Court shall, after hearing and not later than ten working days, after the filing of such motion, decide such motion.' The court concludes that had the legislature wanted to confer the same discretion to transfers pursuant to pursuant to subsection (b)(1) as it did to transfers pursuant to subsection (b)(2), it would have also used `shall' in conjunction with `decide.' Simply put, subsections (b)(1) and (b)(2) do not contain the same juxtaposition of words. The language in subsection (b)(2) contemplates a hearing in which judicial discretion appears to be recognized; the language in subsection (b)(1) fails to distinctly state the same recognition." Id., p. 9.
The defendant herein was transferred from the juvenile court pursuant to 46b-127(a), the automatic mandatory transfer statute. Accordingly, no liberty interests were vested in the defendant in his time in the juvenile court for limited administrative purposes.
In State v. R.W., 51 Conn.Sup. 342 (2009), the trial court ruled that "due process requires [the court] to provide notice and hold a hearing to determine independently whether the state's motion to transfer . . . is appropriate." The court noted that the transfer was sought under the "discretionary transfer statute [Sec. 54-76c(b)(1)] that vests the subject liberty interests in eligible defendants." Id. 353. The trial court distinguished the "automatic transfer provision [Sec 54-76c(a)] that prevents the subject liberty interests from ever vesting in a defendant." Id.
This court finds R.W. distinguishable. In the case at bar the transfer took place pursuant to the automatic mandatory transfer section not under the discretionary section as in R.W. The court notes in R.W.: "[T]he statutory provision that is at issue in this case does not involve an automatic transfer provision that prevents the subject liberty interests from ever vesting in a defendant, but involves, instead, a discretionary transfer statute that vests the subject liberty interests in eligible defendants." Id.
It is noteworthy, in this context, that the supreme court has said that, "the existence of discretion creates nothing more than the possibility of the future vesting of [youthful offender] status in certain of these offenders, which is not adequate to create a liberty interest." State v. Angel C., supra, 245 Conn. 106.
The language of Sec. 54-76(b)(1), combined with its legislative history, makes it clear that the legislature intended the prosecuting authority, upon its own motion, to be empowered to cause that "the case of any defendant who is a youth and is charged with the commission of a felony (except for certain charges not relevant here) shall be transferred from the youthful offender docket to the regular criminal docket of the Superior Court, provided the court finds that there is probable cause . . ." Thus, the action of the prosecuting authority and upon a finding of probable cause, precludes the vesting of any liberty interest in youthful offender status.
For the reasons hereinabove stated the court finds that the defendant has failed to demonstrate that he has a vested liberty interest in his youthful offender status that is cognizable under the due process clause. The court further finds that pursuant to the police powers of the state, under the circumstances of this case, the prosecutor has the ultimate authority to determine the charges to lodge against an individual and whether to seek an increase in any exposure to punishment. The authority of the state to unilaterally transfer the matter from the youthful offender docket to the adult criminal court, upon the finding of probable cause is an exercise of that empowerment provided, clearly, by the legislature.
The defendant has failed to demonstrate any violation of his due process rights under either Article I, Sec. 8 of the constitution of Connecticut, or under the 14th Amendment to the U.S. Constitution.
V. CONCLUSION
For the reasons hereinabove indicated, the court finds that the language of the statute and a consideration of its legislative history clearly establishes the legislative intent to repose in the states attorney the unilateral authority to transfer certain enumerated classes of crimes, upon a finding of probable cause, from the youthful offender docket to the adult criminal docket. The defendant has failed to demonstrate any vested liberty interest in the juvenile court or youthful offender status and therefore no hearing is mandated prior to such transfer.
The State of Connecticut's Motion to Transfer from the youthful offender docket to the adult criminal docket, without a hearing, is GRANTED, effective April 8, 2010.