***********************************************
The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. NICO GONZALEZ
(AC 44630)
Moll, Cradle and Eveleigh, Js.
Syllabus
The defendant, who had been convicted, on a plea of guilty, of the crimes
of assault in the first degree and carrying a pistol without a permit,
appealed to this court from the judgment of the trial court denying his
motion to correct an illegal sentence. The defendant was sentenced in
2017 to a term of incarceration followed by a period of special parole.
Subsequently, the legislature enacted No. 18-63, § 2, of the 2018 Public
Acts (P.A. 18-63), which repealed and replaced subsection (b) of the
special parole statute ((Rev. to 2017) § 54-125e), to require a trial court,
when sentencing a person, to determine, based on various factors,
whether a period of special parole was necessary to ensure public safety.
The defendant alleged in his motion to correct an illegal sentence that
P.A. 18-63 applied retroactively to his sentence of special parole and
that the court should vacate that part of his sentence and hold a new
sentencing hearing. The court denied the defendant’s motion, concluding
that P.A. 18-63 did not apply retroactively. On the defendant’s appeal
to this court, held:
1. The defendant could not prevail on his claim that § 2 of P.A. 18-63 was
intended to apply retroactively to his sentence of special parole on the
basis that § 54-125e is procedural in nature rather than substantive: this
court concluded that the defendant’s claim was governed by its decision
in State v. Omar (209 Conn. App. 283), in which it determined that,
because P.A. 18-63 repealed and replaced the imposition of a form of
punishment for a criminal conviction, the plain meaning analysis set
forth in State v. Bischoff (337 Conn. 739) controlled and the criminal
savings statutes (§§ 54-194 and 1-1 (t)) applied to P.A. 18-63, and, having
considered the plain language of § 2 of P.A. 18-63, determined that
the act clearly and unambiguously prohibited retroactive application;
moreover, this court determined in Omar that, in the absence of a clear
and unequivocal expression of legislative intent that an amendment to
a criminal penalty applied retroactively, an act repealing and replacing
the imposition of a form of punishment is governed by the presumption
in the criminal savings statutes against retroactivity.
2. The defendant could not prevail on his claim that P.A. 18-63 was intended
to apply retroactively to his sentence of special parole because the
legislative history and amendatory language of P.A. 18-63 demonstrated
that it was meant to clarify § 54-125e, rather than effect a change in the
law: this court concluded that its decision in State v. Smith (209 Conn.
App. 296) controlled this claim, this court having held in Smith that the
legislature, in passing P.A. 18-63, did not intend to clarify § 54-125e, that
the language in the prior version of § 54-125e (b) was already clear prior
to the amendment, and the language that was added changed § 54-125e
(b) by narrowing its application; moreover, contrary to the defendant’s
contention that Smith was concerned primarily with § 1 and not § 2 of
P.A. 18-63, it was clear that this court in Smith considered both sections
of P.A. 18-63 and determined that neither was intended to clarify the
statutes at issue, including § 54-125e.
Argued May 11—officially released August 23, 2022
Procedural History
Substitute information charging the defendant with
the crimes of assault in the first degree, attempt to
commit murder, illegal discharge of a firearm, illegal
possession of a weapon in a motor vehicle, and carrying
a pistol without a permit, brought to the Superior Court
in the judicial district of Waterbury, where the defendant was presented to the court, Fasano, J., on a plea
of guilty to assault in the first degree and carrying a
pistol without a permit; judgment of guilty; thereafter,
the court, Hon. Roland D. Fasano, judge trial referee,
denied the defendant’s motion to correct an illegal sentence, and the defendant appealed to this court.
Affirmed.
Vishal K. Garg, for the appellant (defendant).
Kayla A. Steefel, certified legal intern, with whom
were Michele C. Lukban, senior assistant state’s attorney, and, on the brief, Maureen Platt, state’s attorney,
and Cynthia S. Serafini, senior assistant state’s attorney, for the appellee (state).
Opinion
CRADLE, J. The defendant, Nico Gonzalez, appeals
from the judgment of the trial court denying his motion
to correct an illegal sentence. On appeal, the defendant
claims that the court improperly determined that No.
18-63, § 2, of the 2018 Public Acts (P.A. 18-63), which
amended General Statutes (Rev. to 2017) § 54-125e (b)
to require that a trial court determine that a period of
special parole is necessary to ensure public safety
before imposing a period of special parole, did not retroactively apply to his 2017 sentence. See General Statutes
§ 54-125e (b) (1). Specifically, the defendant claims that
(1) § 54-125e, as amended by § 2 of P.A. 18-63, is a
procedural statute presumed to apply retroactively, and
(2) the legislature, through passing § 2 of P.A. 18-63,
intended to clarify § 54-125e, rather than change the
law. We affirm the judgment of the trial court.
The record reveals the following relevant procedural
history. In connection with the defendant’s commission
of a shooting on January 2, 2017, the defendant was
charged, by way of a substitute information, with one
count of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), one count of attempt to
commit murder in violation of General Statutes §§ 53a-
49 (a) (2) and 53a-54a, one count of illegal discharge
of a firearm in violation of General Statutes § 53-203,
one count of illegal possession of a weapon in a motor
vehicle in violation of General Statutes § 29-38, and one
count of carrying a pistol without a permit in violation
of General Statutes § 29-35 (a).
On October 11, 2017, the defendant pleaded guilty,
under the Alford doctrine,1 to one count of assault in
the first degree in violation of § 53a-59 (a) (1); and one
count of carrying a pistol without a permit in violation
of § 29-35 (a). On December 15, 2017, the court, Fasano,
J., imposed a total effective sentence of five years of
incarceration, followed by five years of special parole.
At the time the defendant was convicted, General
Statutes (Rev. to 2017) § 54-125e authorized a court to
impose a period of special parole ‘‘as a sentencing
option in cases [in which] the judge wanted additional
supervision of a defendant after the completion of his
prison sentence.’’ (Internal quotation marks omitted.)
State v. Victor O., 320 Conn. 239, 252,
128 A.3d 940
(2016). Specifically, special parole was intended by the
legislature to ‘‘[ensure] intense supervision of convicted
felons after they’re released to the community and
[allow] the imposition of parole stipulations on . . .
released inmate[s] to ensure their successful incremental [reentry] into society or if they violate their stipulations, speedy [reincarceration] before they commit
[other] crime[s].’’ (Internal quotation marks omitted.)
Id.
After the defendant was sentenced, our legislature
enacted P.A. 18-63, which eliminated special parole as
a punishment for certain offenses.2 See State v. Smith,
209 Conn. App. 296, 299,
268 A.3d 127 (2021), cert.
denied,
342 Conn. 905,
270 A.3d 691 (2022). Relevant
to the present appeal is § 2 of P.A. 18-63, which amended
General Statutes (Rev. to 2017) § 54-125e (b) by adding,
in relevant part, that ‘‘the court may not impose a period
of special parole unless the court determines, based
on the nature and circumstances of the offense, the
defendant’s prior criminal record and the defendant’s
history of performance on probation or parole, that a
period of special parole is necessary to ensure public
safety.’’ (Emphasis omitted.) Public Act 18-63 lists an
effective date of October 1, 2018.
In July, 2020, the defendant, as a self-represented
party, filed a motion to correct an illegal sentence, pursuant to Practice Book § 43-22.3 The defendant subsequently was appointed counsel4 and, on December 18,
2020, filed an amended motion to correct an illegal
sentence, alleging that § 2 of P.A. 18-63 applied retroactively to his sentence of special parole. Specifically,
the defendant claimed that because P.A. 18-63 was a
‘‘procedural rule . . . intended to clarify a preexisting
statute,’’ the legislature intended that it apply retroactively. Accordingly, because the sentencing court never
determined that a period of special parole was necessary to ensure public safety, the defendant claimed that
the court should vacate that part of his sentence and
hold a new sentencing hearing in order to consider the
factors now set forth in § 54-125e (b) (1).
In response, the state filed an opposition to the defendant’s motion to correct an illegal sentence arguing,
inter alia, that the legislature did not intend P.A. 18-63
to apply retroactively. The state also contended that,
even under the amended statute, the defendant would
still qualify for a period of special parole due to his
criminal history and the violent nature of the underlying
offense. The court heard argument from both parties
on February 10, 2021.
On February 23, 2021, the court denied the defendant’s motion to correct an illegal sentence. In its memorandum of decision, the court found that there was
‘‘neither any evidence of an intent that [P.A. 18-63] be
retroactive nor any authority in the case law for [that]
proposition’’ and determined that ‘‘[t]he nature of the
change to [§ 54-125e] [was] clearly substantive in that
factual findings must be made by the court relative to
[the defendant’s] history and circumstances in order to
place [the defendant] on special parole under the current guidelines.’’ In addition, the court relied on our
Supreme Court’s decision in State v. Bischoff,
337 Conn.
739, 761–62,
258 A.3d 14 (2021), for the proposition
that, in the absence of clear legislative intent, criminal
statutes that prescribe or define punishment apply prospectively. Accordingly, the court concluded that P.A.
18-63 did not apply retroactively. This appeal followed.
We begin by setting forth the standard of review
applicable to this claim. ‘‘Ordinarily, claims that the
trial court improperly denied a defendant’s motion to
correct an illegal sentence are reviewed pursuant to an
abuse of discretion standard. . . . Nonetheless, a trial
court’s determination of whether a new statute is to be
applied retroactively or only prospectively presents a
question of law over which this court exercises plenary
review.’’ (Citation omitted.) State v.
Smith, supra,209
Conn. App. 301.
I
The defendant first claims that § 2 of P.A. 18-63 was
intended to apply retroactively to his sentence of special
parole because § 54-125e, as amended by § 2 of P.A. 18-
63, is procedural in nature, rather than substantive. See
State v. Nathaniel S., 323 Conn. 290, 294–96,
146 A.3d
988 (2016) (explaining that, in absence of clear expression of legislative intent, procedural statutes are presumed to apply retroactively whereas substantive statutes apply only prospectively). We are not persuaded.
The defendant’s claim is governed by this court’s
decision in State v. Omar,
209 Conn. App. 283,
268 A.3d
726 (2021), cert. denied,
342 Conn. 906,
270 A.3d 691
(2022). In Omar, the defendant argued, as does the
defendant in the present case, that § 54-125e (b), as
amended by § 2 of P.A. 18-63, is procedural in nature and
therefore presumed to apply retroactively. Id., 289–90.
Specifically, the defendant in State v.
Omar, supra, 290,
contended that this court should apply to P.A. 18-63
the retroactivity analysis set forth in State v. Nathaniel
S., supra,
323 Conn. 295, which provides, in relevant
part, that ‘‘[p]rocedural statutes have been traditionally
viewed as affecting remedies, not substantive rights,
and therefore leave the preexisting scheme intact. . . .
[Accordingly] we have presumed that procedural . . .
statutes are intended to apply retroactively absent a
clear expression of legislative intent to the contrary
. . . .’’ (Internal quotation marks omitted.) This court
rejected the argument that P.A. 18-63 is procedural in
nature. Rather, this court determined that, unlike the
court in Nathaniel S., which concluded that No. 15-183
of the 2015 Public Acts (P.A. 15-183) was procedural
due to the act’s ‘‘automatic transfer’’ provision5; State
v. Nathaniel S., supra, 301; the special parole statutes
at issue merely provided the ‘‘option of imposing special
parole as one of multiple punishments.’’ State v.
Omar,
supra, 290–91. This court proceeded to clarify that
‘‘choosing to impose special parole was an act of discretion, as opposed to the automatic transfer statute at
issue in Nathaniel S., which applies to every fifteen year
old charged with certain types of crimes.’’
Id., 291–92.
This court then determined that, because P.A. 18-
63 repealed and replaced the imposition of a form of
punishment for a criminal conviction, this court’s retroactivity analysis was controlled by our Supreme Court’s
decisions in State v. Kalil,
314 Conn. 529,
107 A.3d 343
(2014), and State v.
Bischoff, supra,337 Conn. 739,6 as
well as our criminal savings statutes, General Statutes
§§ 54-1947 and 1-1 (t).8 State v.
Omar, supra, 290–92;
see also State v.
Smith, supra,209 Conn. App. 307.
Specifically, this court noted that the decisions in Kalil
and Bischoff established that, in the absence of a clear
and unequivocal expression of legislative intent that an
amendment to a criminal penalty applies retroactively,
an act repealing and replacing the imposition of a form
of punishment is governed by the criminal savings statutes’ presumption against retroactivity. State v.
Omar,
supra, 292–96. Accordingly, this court concluded that
the proper test for determining whether § 2 of P.A.
18-63, applied retroactively was pursuant to the plain
meaning rule set forth in General Statutes § 1-2z.9 Id.,
295. After analyzing the text of P.A. 18-63, as well as
the act’s effective date, this court determined that the
plain language of § 2 of P.A. 18-63 ‘‘clearly and unambiguously prohibits retroactive application and that this
interpretation [did] not lead to an absurd or unworkable
result, especially when viewed in context of the related
savings statutes, §§ 54-194 and 1-1 (t).’’ Id., 296.
The defendant argues that the present case is distinguishable from Omar because the court in that decision
did not consider ‘‘whether P.A. 18-63, § 2 (as opposed
to § 1 or P.A 18-63 as a whole) applies retroactively in
isolation.’’ Specifically, the defendant contends that the
analysis in Omar ‘‘turned heavily on the statutory
change enacted by [§ 1 of P.A. 18-63],’’ which modified
General Statutes (Rev. to 2017) § 53a-28 by prohibiting
courts from imposing special parole for narcotics
offenses, rather than § 2 of P.A. 18-63, which amended
General Statutes (Rev. to 2017) § 54-125e to require that
a trial court determine that a period of special parole
is necessary to ensure public safety. We conclude that
the defendant relies upon an incorrect reading of Omar.
Indeed, this court in Omar found that P.A. 18-63, §§ 1
and 2, repealed and replaced both subsection (b) of
§ 53a-28 and subsection (b) of § 54-125e, respectively.
State v.
Omar, supra,209 Conn. App. 294. As such,
this court correctly determined that the plain meaning
analysis set forth in State v.
Bischoff, supra,337 Conn.
739, as well as our criminal savings statutes, §§ 54-194
and 1-1 (t), applied to both §§ 1 and 2 of P.A. 18-63.
State v.
Omar, supra, 294. This court then explicitly
considered the plain language of both §§ 1 and 2 of
P.A. 18-63 and determined that the act ‘‘clearly and
unambiguously prohibits retroactive application
. . . .’’ Id., 296. In light of this court’s decision in Omar,
we conclude that the defendant’s claim must fail.
II
The defendant’s second claim is that P.A. 18-63 was
intended to apply retroactively because the legislative
history and amendatory language of P.A. 18-63 demonstrate that the act was meant to clarify § 54-125e, rather
than effect a change in the law. See Estate of Brooks
v. Commissioner of Revenue Services, 325 Conn. 705,
720,
159 A.3d 1149 (2017) (‘‘An amendment which in
effect construes and clarifies a prior statute must be
accepted as the legislative declaration of the meaning
of the original act. . . . Furthermore, an amendment
that is intended to clarify the intent of an earlier act
necessarily has retroactive effect.’’ (Internal quotation
marks omitted.)), cert. denied, U.S. ,
138 S. Ct.
1181,
200 L. Ed. 2d 314 (2018). We disagree.
The defendant’s claim is controlled by this court’s
decision in State v.
Smith, supra,209 Conn. App. 296.
In Smith, this court held that the legislature, through
passing P.A. 18-63, did not intend to clarify § 54-125e
and, therefore, that the doctrine of clarifications did not
govern the court’s retroactivity analysis.10 Id., 306–307.
Specifically, this court determined that P.A. 18-63 did
not resolve any ambiguity in the text of § 54-125e, but
rather ‘‘eliminated a punishment that the plain language
of [§] . . . 54-125e explicitly allowed the courts to
impose . . . prior to its enactment.’’ Id., 306. Stated
otherwise, ‘‘the language in the prior [revision] of [§ 54-
125e] was already clear prior to the [amendment], and
the legislature added language to change [it] by narrowing [its] application.’’ (Emphasis added.) Id., 307.
This court then reaffirmed its holding in Omar, namely,
that the retroactivity analysis for P.A. 18-63 was controlled by State v. Kalil, supra,
314 Conn. 529, and State
v.
Bischoff, supra,337 Conn. 739, along with our savings
statutes, §§ 54-194 and 1-1 (t). State v.
Smith, supra,
307–308. Accordingly, this court concluded that ‘‘when
the legislature enacted P.A. 18-63, which changed the
law by prohibiting special parole as a sentence for certain . . . offenses, it did so prospectively, not retroactively.’’
Id., 298.
Although the defendant’s claim appears to be plainly
governed by this court’s decision in Smith, the defendant again attempts to distinguish the present case by
arguing that his claim requires this court to consider
‘‘whether § 2 of P.A. 18-63, standing alone, was enacted
with the intent to clarify the special parole statute,’’
whereas the court in Smith considered ‘‘whether §§ 1
and 2 [of P.A. 18-63] collectively were clarifying legislation.’’ (Emphasis in original.) Specifically, the defendant
argues that this court’s analysis in Smith was concerned
primarily with § 1 of P.A. 18-63, rather than § 2 of P.A.
18-63, when considering whether the act was clarifying
in nature. In concluding that P.A. 18-63 was not clarifying, however, this court explicitly stated that ‘‘the legislature did not incorporate into the title or text of P.A.
18-63 an explicit statement of its intent to clarify §§ 53a-
28 (b) and 54-125e (b)’’ and that, ‘‘in enacting P.A. 18-
63, the legislature eliminated a punishment that the
plain language of §§ 53a-28 (b) and 54-125e explicitly
allowed courts to impose on . . . offenders prior to
its enactment.’’ (Emphasis added.) State v.
Smith,
supra,209 Conn. App. 306. It is clear, therefore, that
this court in Smith considered both §§ 1 and 2 of P.A.
18-63 and determined that neither section was intended
to clarify § 53a-28 (b) or § 54-125e (b). Id., 306–307.
Accordingly, we conclude that Smith controls the present appeal to the extent that the defendant argues that
§ 2 of P.A. 18-63 was intended to clarify § 54-125e.
In the alternative, the defendant requests that we
reconsider and overrule this court’s decision in Smith.
Specifically, the defendant contends that Smith is
‘‘inconsistent with binding Supreme Court precedent’’
insofar as it precludes this court from examining extratextual evidence when considering the retroactive
effect of amendments to criminal statutes that prescribe
or define a punishment. See footnote 9 of this opinion.
It is well established, however, that ‘‘one panel of this
court cannot overrule the precedent established by a
previous panel’s holding. . . . As we often have stated,
this court’s policy dictates that one panel should not,
on its own, reverse the ruling of a previous panel. The
reversal may be accomplished only if the appeal is heard
en banc. . . . Prudence, then, dictates that this panel
decline to revisit such requests.’’ (Citations omitted;
internal quotation marks omitted.) Staurovsky v. Milford Police Dept.,
164 Conn. App. 182, 202–203,
134 A.3d
1263 (2016), appeal dismissed,
324 Conn. 693,
154 A.3d
525 (2017). Accordingly, we decline to revisit this
court’s well reasoned analysis regarding the retroactive
effect of P.A. 18-63 set forth in Smith.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘Under North Carolina v. Alford, 400 U.S. 25,
91 S. Ct. 160,
27 L. Ed.
2d 162 (1970), a criminal defendant is not required to admit his guilt . . .
but consents to being punished as if he were guilty to avoid the risk of
proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial
oxymoron in that the defendant does not admit guilt but acknowledges that
the state’s evidence against him is so strong that he is prepared to accept
the entry of a guilty plea nevertheless.’’ (Internal quotation marks omitted.)
State v. Celaj,
163 Conn. App. 716, 718–19 n.3,
141 A.3d 870 (2016).
2
Public Act 18-63 provides in relevant part: ‘‘Be it enacted by the Senate
and House of Representatives in General Assembly convened:
‘‘Section 1. Subsection (b) of section 53a-28 of the general statutes is
repealed and the following is substituted in lieu thereof (Effective October
1, 2018):
‘‘(b) Except as provided in section 53a-46a, when a person is convicted
of an offense, the court shall impose one of the following sentences . . .
(9) a term of imprisonment and a period of special parole as provided in
section 54-125e, as amended by this act, except that the court may not
impose a period of special parole for convictions of offenses under chapter 420b.
‘‘Sec. 2. Subsection (b) of section 54-125e of the general statutes is repealed
and the following is substituted in lieu thereof (Effective October 1, 2018):
‘‘(b) (1) When sentencing a person, the court may not impose a period
of special parole unless the court determines, based on the nature and
circumstances of the offense, the defendant’s prior criminal record and
the defendant’s history of performance on probation or parole, that a period
of special parole is necessary to ensure public safety. . . .’’ (Emphasis
in original.)
3
Practice Book § 43-22 provides: ‘‘The judicial authority may at any time
correct an illegal sentence or other illegal disposition, or it may correct a
sentence imposed in an illegal manner or any other disposition made in an
illegal manner.’’
4
On October 23, 2020, the court, Hon. Roland D. Fasano, judge trial
referee, appointed a special public defender to determine whether the defendant had a ‘‘sound basis’’ for filing his motion to correct an illegal sentence.
See State v. Casiano, 282 Conn. 614, 627–28,
922 A.2d 1065 (2007) (holding
that General Statutes § 51-296 (a) entitles indigent defendant to appointment
of counsel for purpose of determining whether sound basis exists for him
or her to file motion to correct illegal sentence, and, if such basis exists,
to counsel for purpose of pursuing motion to its conclusion). The special
public defender subsequently determined that the defendant’s claim had
merit and filed an amended motion to correct an illegal sentence on the
defendant’s behalf. The court thereafter appointed the special public
defender to continue representing the defendant through the conclusion of
the proceedings.
5
Section 1 of P.A. 15-183 amended the juvenile transfer statute, General
Statutes (Rev. to 2013) § 46b-127 (a) (1), by ‘‘increas[ing] the age of a child
whose case was subject to an automatic transfer by one year, [from fourteen]
to fifteen years old. . . . Prior to this amendment, the court was required
to transfer a case from the juvenile docket to the regular criminal docket
[of the Superior Court] in which a child . . . had been charged with the
commission of certain felonies and had attained the age of fourteen years
prior to the commission of such offenses.’’ (Citation omitted; emphasis
omitted.) State v. Nathaniel S., supra, 323 Conn. 292. On appeal, our Supreme
Court concluded that P.A. 15-183 was procedural in nature and therefore
presumed to apply retroactively. Id., 296. Specifically, our Supreme Court
noted that it previously had characterized the juvenile transfer statute as
‘‘akin to a change of venue,’’ which, ‘‘by its nature, [is] procedural,’’ and
that ‘‘[t]he only change effectuated by P.A. 15-183 is to narrow the class
of persons to whom this procedure applies.’’ (Emphasis added; internal
quotation marks omitted.) Id.
6
In State v. Kalil, supra, 314 Conn. 550, our Supreme Court considered
whether No. 09-138, § 2, of the 2009 Public Acts (P.A. 09-138), which
increased the minimum value element of the second degree larceny statute
from $5000 to $10,000, and which would have resulted in a downgrade of
the defendant’s second degree larceny charge to third degree larceny and
a reduction in his sentence, applied retroactively under the amelioration
doctrine. In declining to adopt the amelioration doctrine, our Supreme Court
noted that, in determining whether a change in a criminal statute prescribing
punishment applies retroactively, the court is bound by the presumption
against retroactivity contained in our criminal savings statutes, General
Statutes §§ 54-194 and 1-1 (t). Id., 552–53. Specifically, our Supreme Court
rejected the argument that the criminal savings statutes did not apply to
ameliorative changes in the law, holding instead that the savings statutes
applied to all changes to criminal statutes defining or prescribing punishment, even if the change benefits defendants, unless the legislature explicitly
provides otherwise. Id., 553–56.
In State v.
Bischoff, supra, 337 Conn. 766–68, our Supreme Court reaffirmed its decision in Kalil, noting that the plain meaning rule set forth
in General Statutes § 1-2z governs the retroactivity analysis for statutory
amendments that define or prescribe the punishment for a crime. Accordingly, our Supreme Court concluded that our criminal savings statutes
require that the legislature ‘‘use explicit—i.e., ‘plain’—language to express
its intent to apply such a statute retroactively . . . [and that §] 1-2z is . . .
evidence of the legislature’s intent that its statutes be taken at face value,
and not only supports, but requires our conclusion that, unless explicitly
stated otherwise, acts governed by §§ 54-194 and 1-1 (t) must be presumed
to apply only prospectively.’’ Id., 767.
7
General Statutes § 54-194 provides: ‘‘The repeal of any statute defining
or prescribing the punishment for any crime shall not affect any pending
prosecution or any existing liability to prosecution and punishment therefor,
unless expressly provided in the repealing statute that such repeal shall
have that effect.’’
8
General Statutes § 1-1 (t) provides: ‘‘The repeal of an act shall not affect
any punishment, penalty or forfeiture incurred before the repeal takes effect,
or any suit, or prosecution, or proceeding pending at the time of the repeal,
for an offense committed, or for the recovery of a penalty or forfeiture
incurred under the act repealed.’’
9
General Statutes § 1-2z provides: ‘‘The meaning of a statute shall, in the
first instance, be ascertained from 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.’’
10
The defendant cites our Supreme Court’s decision in Estate of Brooks
v. Commissioner of Revenue Services, supra, 325 Conn. 719–21, for the
proposition that this court is bound to consider the legislative history, alongside the plain text, when determining whether § 2 of P.A. 18-63 was intended
to clarify § 54-125e. In particular, the defendant relies on language set forth
in Estate of Brooks: ‘‘Resolution of the question of whether amendatory
language is clarifying in nature does not first require full statutory construction of the original language or a predicate finding of ambiguity. . . . Rather,
courts apply the multifactor test set forth and applied in this opinion.’’
(Citation omitted.) Id., 724 n.18. This test includes, but is not limited to ‘‘(1)
the amendatory language . . . (2) the declaration of intent, if any, contained
in the public act . . . (3) the legislative history . . . and (4) the circumstances surrounding the enactment of the amendment, such as, whether it
was enacted in direct response to a judicial decision that the legislature
deemed incorrect . . . or passed to resolve a controversy engendered by
statutory ambiguity . . . .’’ (Internal quotation marks omitted.) Id., 721.
This court rejected that argument in Smith, holding that the multifactor
analysis did not apply to amendatory legislation relating to the punishment
for crimes. State v. Smith, supra, 209 Conn. App. 303–304 (rejecting defendant’s contention that multifactor test set forth in Middlebury v. Dept. of
Environmental Protection,
283 Conn. 156,
927 A.2d 793 (2007), governed
retroactivity analysis). Rather, this court concluded that the interpretation
of amendments to criminal statutes that prescribe or define a punishment
is controlled by our Supreme Court’s decisions in State v. Kalil, supra,
314
Conn. 529, and State v.
Bischoff, supra,337 Conn. 739, along with our savings
statutes, §§ 54-194 and 1-1 (t), which require that reviewing courts interpret
the legislature’s intent pursuant to § 1-2z. State v.
Smith, supra, 307–308;
see also State v.
Omar, supra, 209 Conn. App. 292–96. In Smith, this court
explicitly determined that the plain text of P.A. 18-63 was not intended to
clarify § 54-125e but, rather, changed the statutory scheme governing special
parole by narrowing its application. State v.
Smith, supra, 307. Because the
plain text of P.A. 18-63 was not ambiguous, our principles of statutory
interpretation precluded this court from considering the legislative history
behind the act.
Id., 304, 307. Accordingly, the defendant’s argument that this
court is bound to consider the legislative history behind P.A. 18-63, pursuant
to the multifactor test set forth in Estate of Brooks, must fail.
The defendant also relies on State v. Evans, 329 Conn. 770, 803–808,
189
A.3d 1184 (2018), cert. denied, U.S. ,
139 S. Ct. 1304,
203 L. Ed. 2d
425 (2019), for the proposition that this court in Smith should have considered the legislative history underlying P.A. 18-63 when determining whether
P.A. 18-63 was intended to clarify § 54-125e (b). Although our Supreme Court
in Evans did probe the legislative history underlying No. 17-17 of the 2017
Public Acts (P.A. 17-17) in determining whether that act was intended to
be clarifying or substantive, it did so in the context of stare decisis, and
not in determining whether P.A. 17-17 was intended to apply retroactively.
To reiterate, the proper retroactivity analysis for amendments to criminal
statutes that prescribe or define a punishment is controlled by our Supreme
Court’s decisions in State v. Kalil, supra,
314 Conn. 529, and State v.
Bischoff,
supra,337 Conn. 739, along with our savings statutes, §§ 54-194 and 1-1 (t).
‘‘It is axiomatic that, [a]s an intermediate appellate court, we are bound by
Supreme Court precedent and are unable to modify it . . . . [W]e are not
at liberty to overrule or discard the decisions of our Supreme Court but are
bound by them. . . . [I]t is not within our province to reevaluate or replace
those decisions.’’ (Internal quotation marks omitted.) State v. Montanez,
185 Conn. App. 589, 605 n.5,
197 A.3d 959 (2018), cert. denied,
332 Conn.
907,
209 A.3d 643 (2019). We conclude, accordingly, that the clarification
analysis set forth in Evans does not govern the present appeal.
