Opinion
Nos. MV07-0397369S, MV08-0222556T
February 19, 2009
MEMORANDUM OF DECISION
This is the defendant's Motion to Vacate Plea and Sentence. In support of the motion, the defendant asserts that he now believes the pleas and sentences were improperly and illegally entered.
PROCEDURAL HISTORY
There is no dispute as to the following: On May 14, 2007, the defendant was arrested in Waterbury and charged with illegal operation of a motor vehicle while under the influence of intoxicating liquor (DUI). On July 25, 2007, the court granted the defendant's application for the alcohol education program until July 25, 2008.
On June 2, 2008, defendant was arrested in North Haven and charged with DUI. On June 4, 2008, the defendant was arrested again in Plainville, and charged with DUI. The defendant was revoked from the AEP Program.
On October 16, 2008, counsel for the defendant and the state reported to the court the defendant had three DUI cases and they were looking to consolidate them for disposition in Waterbury. Counsel also reported there had been an accident in one incident, but no injuries.
On November 24, 2008, counsel reported to the court that they had reached an agreement and inquired whether the court would approve it. The parties agreed the defendant would be sentenced as a first offender twice and as a second offender once. The total effective sentence would be two years, executed suspended after 120 days, mandatory, two years probation and the mandatory minimum fines. The court indicated it would impose a total effective sentence of two years suspended after 124 days, mandatory, two years probation, with conditions, and the mandatory minimum fines.
Subsequently, counsel reported to the court that the case in Meriden would not be transferred unless the defendant entered a guilty plea. On December 15, 2008, the defendant entered a guilty plea to DUI and the file was transferred to Waterbury sentencing.
On December 22, 2008, counsel reported the following changed plea agreement: The defendant would be treated as a first offender in the case transferred from the Meriden court, and a second offender twice on the two remaining cases. On December 22, 2008, the Clerk advised the defendant of the enhanced penalty as a second offender (Part B).
On January 12, 2009, the defendant entered guilty pleas on two counts of DUI and a Part B. The defendant was then sentenced on three files as follows: total effective sentence 18 months execution suspended after 122 days, mandatory, 2 years probation with conditions and $2,500.00 in fines.
1. Six (6) months ES after 2 consecutive days, 1 years probation. 2. One (1) year ES after 120 consecutive days, consecutive two (2) years probation. 3. One (1) year ES after 120 consecutive days concurrent, two (2) years probation.
As of the sentencing date, January 12, 2009, the state had been represented by Attorney Elena Palerno.
On January 14, 2009, the Clerk notified the court that the defendant had to be informed he would be required to submit a sample for DNA analysis. The Clerk notified counsel and the defendant was returned to court on January 16, 2009.
On January 16, 2009, the state, represented by Attorney Therkildson (not Attorney Palerno), reported to the court that the sentence was illegal because the defendant should not have been subjected to the enhanced penalty as a second offender, but should have been sentenced as a first offender three times. He also reported that the state should not have filed the Part B because the defendant had not been convicted and sentenced before he had committed the second and third violation.
On January 16, 2009, the state, by Attorney Thirkildsen, made an oral motion to vacate the pleas and sentence. The court directed the state to file a written motion. Subsequently, the state and the defendant agreed that the defendant would file the written motion. The state never filed a written motion. On February 20, 2009, at 4:32 p.m., the defendant filed the subject motion.
On January 23, 2009, the defendant argued that the defendant could not be charged as a second offender because he had not been convicted, sentenced and completed the sentence before the second arrest.
The state, by Attorney Therkildsen, agreed with the motion to vacate, but further argued that the defendant had not been convicted of the first offense at the time of the commission or the second and third violations and therefore was not a second offender.
DISCUSSION
The defendant and the state rely on State v. Ledbetter, 240 Conn. 317 (1997) and State v. Davis, 51 Conn.App. 171 (1998) to support their arguments. In its brief, and at argument, the defendant also relied on C.G.S. 53a-40(d) and referred the court to C.G.S. 53a-40f.
The defendant corrected the reference. It should be 53a-40(f).
C.G.S. 53a-40(f) provides: "A persistent felony offender is a person who (1) stands convicted of a felony other than a Class D felony and (2) has been, at separate times prior to the commission of the present felony, twice convicted of a felony other than a Class D felony."
C.G.S. 53a-40f states: A persistent operating while under the influence felony offender is a person who (1) stands convicted of a violation of Section 53a-56b or 53a-60d and (2) has, prior to the commission of the present crime and within the preceding ten years, been convicted of a violation of Section 53a-56b or 53a-60d or subsection (a) of Section 14-227a or been convicted in any other state of an offense the essential elements of which are substantially the same as Section 53a-56b or 53a-60d or subsection (a) of Section 14-227a."
53a-56b — Manslaughter in the second degree with a motor vehicle.
53a-60d — Assault in the second degree with a motor vehicle.
C.C.S. 14-227(g)(2) states in pertinent part: Any person who violates any provision of subsection (a) of this section shall: (2) for a conviction of a second violation within ten years after a prior conviction for the same offense, (A) be fined not less than one thousand dollars or more than four thousand dollars, (B) be imprisoned not more than two years, one hundred twenty consecutive days of which may not be suspended or reduced in any manner, and sentenced to a period of probation . . ."
In State v. Ledbetter, the defendant had entered simultaneous pleas to two separate felonies. The defendant was subsequently charged with felonies and the State charged the defendant as a persistent felony offender. The Supreme Court affirmed that the statutory language of 53a-40(f) precludes the use of two felony convictions rendered simultaneously as the basis for a conviction as a persistent felony offender. The court further stated that to advance the legislative intent of affording an opportunity to reform in addressing recidivism, there must be a sequence of conviction and punishment for each prior offense.
The persistent felony offender statute required the two prior convictions to be at separate times prior to the commission of the present felony. In Ledbetter, the defendant was convicted at the same time on the two prior felonies.
The defendant also relied on Davis. In that case, the state charged the defendant as a persistent dangerous felony offender. C.G.S. § 53a-49(a) includes a list of predicate felonies which triggers the enhanced penalties. The state conceded in Davis, that the defendant had not been convicted of one of the predicate felonies and therefore could not be charged as a persistent dangerous felony offender. The court vacated the sentence and remanded for re-sentencing, in the interests of perceived or actual fairness because it was unknown whether the improper finding played a role in the sentencing. The court did not vacate the conviction. The reliance on Ledbetter and Davis is misplaced. The sentencing scheme in those cases are distinguished from the present case.
In this case, the defendant was never charged as persistent operating under the influence felony offender and the defendant agrees this statute does not apply.
C.G.S. 14-227g provides its own sentencing enhancement scheme to address repeat offenders charged with DUI. The statute requires that the defendant had a prior conviction within the past ten years.
"A plea of guilty is in effect, a conviction, the equivalent of a guilty verdict by a jury . . ." State v. Siminausky, 112 Conn.App. 33, 36 (2009). A court should consider only the date of conviction when applying the sentencing enhancement scheme or 14-227a(g). State v. Howell, 98 Conn.App. 369, 377-81, 908 A.2d 1145 (2006). In State v. Surette, 98 Conn.App. 177, 876 A.2d 582 (2005) the defendant was convicted simultaneously to three violations of 14-227a (DUI). He was treated in three separate files as being a firer offender. He was not charged with being a subsequent offender. On May 23, 2003, the defendant was again charged with DUI. The state also filed a Part B information charging the defendant as a fourth offender.
The Court concluded that 14-227(g) was plain and unambiguous and speaks in terms of prior convictions. In this case, the defendant had been arrested on three separate violations. The defendant argued and the state agreed, that he should be sentenced on the three separate counts as a first offender three times.
In the sentence enhancement scheme in 14-227(g) the date of conviction controls. On December 15, 2008, the defendant was convicted in Meriden (DUI) and the case was transferred for sentencing as agreed. On December 22, 2008, he was advised on the Part B, and on January 12, 2009, he entered pleas simultaneously to two counts of DUI as a second offender. The defendant was not charged as a second and third offender.
The defendant, under 14-227a(g) was therefore subject to the enhanced penalty as a second offender and was sentenced as a second offender twice. Furthermore, the defendant was sentenced pursuant to a plea agreement.
The court is not persuaded that the defendant had to be convicted, sentenced, completed the sentence, and then subsequently arrested before being subjected to the enhanced penalty as a second offender. The court is also not persuaded by the state's argument that the defendant had to have been convicted before the arrest on a second violation before being subjected to the enhanced penalty. As previously stated, under the statutory scheme of § 14-227a(g) the date of conviction controls not the date of the commission of the violation.
CONCLUSION
Judicial acceptance of a guilty plea constitutes a conviction. When the court accepted the guilty pleas on January 15, 2009, the defendant was burdened with the conviction of December 15, 2008. Additionally, the defendant was sentenced pursuant to a plea agreement and was sentenced as a second offender twice.
Furthermore, 14-227a(g) is clear and unambiguous. The defendant was convicted on December 15, 2008, and subsequent to that conviction entered guilty pleas, simultaneously, on two additional counts of DUI and was sentenced as a second offender twice, not as a second and third offender. Under the statutory scheme, the date of the conviction controls.
Accordingly, the Motion to Vacate pleas and sentence is denied.