Summary
concluding that mandatory sentences of five and ten years do not violate the eighth amendment pursuant to Miller
Summary of this case from State v. Williams-BeyOpinion
No. 19222.
03-17-2015
STATE of Connecticut v. TAYLOR G.
Mark Rademacher, assistant public defender, for the appellant (defendant). Robin S. Schwartz, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Michael Pepper, senior assistant state's attorney, for the appellee (state).
Mark Rademacher, assistant public defender, for the appellant (defendant).
Robin S. Schwartz, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Michael Pepper, senior assistant state's attorney, for the appellee (state).
ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.
Opinion
ZARELLA, J.The defendant, Taylor G., appeals from the judgments of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(2), one count of sexual assault in the fourth degree in violation of General Statutes (Rev. to 2007) § 53a–73a (a)(1)(A), as amended by Public Acts 2007, No. 07–143, § 2, and one count of risk of injury to a child in violation of General Statutes (Rev. to 2007) § 53–21(a)(2), as amended by Public Acts 2007, No. 07–143, § 4. The defendant claims that (1) the trial court's imposition of the ten year mandatory minimum sentence for the first degree sexual assault conviction and the five year mandatory minimum sentence for the risk of injury conviction, even though the defendant was only fourteen and fifteen years old when he committed the crimes, violates the requirement under the eighth amendment to the United States constitution that a child offender receive a proportionate and individualized sentence from a sentencer empowered to consider and give effect to the mitigating qualities of the child's youth, (2) the state's expert witness improperly vouched for the credibility of the victim, C, and (3) the trial court improperly admitted evidence of sexual misconduct committed by the defendant when he was thirteen years old. The state responds that (1) the trial court considered the defendant's status as a juvenile offender when it imposed the mandatory minimum sentences, which were proportional to the crimes, (2) the state's expert witness did not vouch for C's credibility, and (3) the court properly admitted evidence of the defendant's sexual misconduct when he was thirteen years old. We affirm the judgments of the trial court.
General Statutes § 53a–70 (b)(3) provides: “Any person found guilty under this section shall be sentenced to a term of imprisonment and a period of special parole pursuant to subsection (b) of section 53a–28 which together constitute a sentence of at least ten years.”
General Statutes (Rev. to 2007) § 53–21(a), as amended by Public Acts 2007, No. 07–143, § 4, provides in relevant part: “[I]f the violation is of subdivision (2) of this subsection and the victim of the offense is under thirteen years of age, such person shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”
We note that the sexual abuse that formed the basis for the defendant's convictions occurred over a span of time during which the defendant was either fourteen or fifteen years old. For purposes of our analysis, we refer to the defendant as fourteen and fifteen years old.
The eighth amendment to the United States constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The cruel and unusual punishments clause of the eighth amendment is made applicable to the states through the due process clause of the fourteenth amendment. E.g., Tuilaepa v. California, 512 U.S. 967, 970, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994).
The jury reasonably could have found the following facts. On November 13, 2009, the defendant was arrested for sexually assaulting his cousin, C. The assaults occurred between July 17, 2007, and February, 2009, at the home of the defendant's mother in the city of New Haven and at the homes of the defendant's relatives in the town of Hamden. At the time of the assaults, the defendant was fourteen and fifteen years old, and C was six and seven years old. When C finally told his mother about the assaults, she immediately reported them to the police.
Due to the serious nature of the charges, the defendant's cases were transferred from the juvenile docket to the regular criminal docket pursuant to General Statutes § 46b–127 (a)(1). On June 5, 2012, following a jury trial, the defendant was found guilty of all three offenses. On November 2, 2012, while awaiting his sentence, the defendant filed a motion requesting a sentence below the mandatory minimums of ten years and five years, respectively, for first degree sexual assault and risk of injury to a child, claiming that imposition of the mandatory minimums for crimes he had committed when he was fourteen and fifteen years old would violate the eighth amendment prohibition against cruel and unusual punishment and the equal protection clause of the fourteenth amendment to the United States constitution. On that date, the defendant also filed a motion for a new trial, claiming that the trial court improperly had admitted the testimony of an expert witness who impermissibly had vouched for C's credibility, which was critical to the outcome of the case. At a hearing in January, 2013, the trial court considered both motions. On February 27, 2013, the court denied the motion for a new trial, and, on March 12, 2013, it denied the motion to sentence the defendant below the mandatory minimums. On March 13, 2013, the court imposed a total effective sentence of ten years incarceration followed by three years of special parole. This appeal followed.
General Statutes § 46b–127 (a)(1) provides in relevant part: “The court shall automatically transfer from the docket for juvenile matters to the regular criminal docket of the Superior Court the case of any child charged with the commission of ... a class A or B felony ... provided such offense was committed after such child attained the age of fourteen years and counsel has been appointed for such child if such child is indigent....”
Although § 46b–127 has been the subject of several amendments since the alleged crimes in the present case occurred, those amendments have no bearing on the merits of this appeal. For convenience, we refer to the current revision of § 46b–127.
As we note subsequently in this opinion, the trial court sentenced the defendant to mandatory terms of incarceration for both the first degree sexual assault and risk of injury counts but ordered that they be served concurrently.
I
The defendant first claims that the ten and five year mandatory minimum sentences for first degree sexual assault and risk of injury to a child, respectively, when applied to a juvenile offender, violate the eighth amendment right to an individualized, proportionate sentence because the sentencing court is unable to consider and give effect to relevant mitigating evidence of the offender's youth and immaturity. The state rejects the defendant's claim on the ground that he overstates the scope of the governing federal law. We agree with the state.The following additional facts are relevant to our resolution of this claim. In its memorandum of decision on the motion to sentence the defendant below the mandatory minimums, the court discussed the applicable federal law and concluded that the mandatory minimum sentences in the defendant's case “lack[ed] the severity necessary to be considered constitutionally disproportionate.” The court also concluded that the mandatory minimum sentences did not “strip the court of its ability to exercise broad discretion in fashioning an appropriate sentence.” The court explained that, “[f]or his three convictions, the defendant faces up to fifty-five ... years incarceration. The court may impose this maximum sentence, or may choose to impose a sentence considerably more lenient. In making that determination, the court may consider the mitigating effects of the defendant's youth, including ... a juvenile's diminished culpability and greater prospects for reform.... The court thereby may ensure that the defendant receives the individualized sentencing consideration to which he is entitled.” (Citation omitted; internal quotation marks omitted.)
During the sentencing hearing on March 3, 2013, the court expressed reservations as to whether mandatory minimum sentences were appropriate in a juvenile setting, especially when an offender, like the defendant, was only fourteen and fifteen years old at the time he committed the crimes. The court observed that it appeared that the defendant had experienced abuse as a child, and that such a child sometimes becomes an abuser as an adult. The court also noted that, when the legislature enacted the mandatory minimum sentencing provisions, it was not contemplating fourteen year old offenders but, rather, offenders who were significantly older. The court nonetheless concluded: “I still feel duty bound under my role in our criminal justice system to follow the rules and the sentences the legislature has enacted. But to the extent that people have asked me to be as lenient as I can, that's what I'm being. I'm being as lenient as I can. I suspect not lenient enough in the view of those who spoke on [the defendant's] behalf, but, to quote what somebody said, I am being as lenient as I possibly can, but I think that's adequate punishment for an individual who commits crimes when he's fourteen years of age.” The court then sentenced the defendant to the mandatory minimum of ten years incarceration on the first degree sexual assault count followed by three years of special parole, one year incarceration on the fourth degree sexual assault count, and ten years incarceration, five of which were mandatory, on the risk of injury count. The court ordered that the latter two sentences be served concurrently with the first sentence, for a total effective sentence of ten years incarceration followed by three years of special parole.
The standard of review is well established. “A challenge to [t]he constitutionality of a statute presents a question of law over which our review is plenary.” (Internal quotation marks omitted.) Keane v. Fischetti, 300 Conn. 395, 402, 13 A.3d 1089 (2011). With respect to the governing legal principles, the defendant relies on Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Miller v. Alabama, –––U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), in which the United States Supreme Court established a series of rules to be applied in the sentencing of juvenile offenders.
The term “juvenile offenders” refers in all three cases to offenders who were under the age of eighteen when they committed their crimes.
In explaining the evolution and development of these rules, the court in Miller began by noting that “[t]he [e]ighth [a]mendment's prohibition of cruel and unusual punishment guarantees individuals the right not to be subjected to excessive sanctions ... [and] flows from the basic precept of justice that punishment for crime should be graduated and proportioned to both the offender and the offense.” (Citation omitted; internal quotation marks omitted.) Miller v. Alabama, supra, 132 S.Ct. at 2463. The court then described “two strands of precedent reflecting [its] concern with proportionate punishment.” Id. The first strand consisted of cases in which the court had “adopted categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty.... Several of the cases in this group ... specially focused on juvenile offenders, because of their lesser culpability. Thus, Roper held that the [e]ighth [a]mendment bars capital punishment for children, and Graham concluded that the [a]mendment also prohibits a sentence of life without the possibility of parole for a child who committed a nonhomicide offense. Graham further likened life without parole for juveniles to the death penalty itself, thereby evoking a second line of ... precedents. In those cases, [the court] ... prohibited mandatory imposition of capital punishment, requiring that sentencing authorities consider the characteristics of a defendant and the details of his offense before sentencing him to death.” (Citations omitted; internal quotation marks omitted.) Id., at 2463–64. The court thus concluded that, due to “the confluence of these two lines of precedent ... mandatory life-without-parole sentences for juveniles violate the [e]ighth [a]mendment.” Id., at 2464.
The court elaborated that “Graham and Roper and [its] individualized sentencing cases alike teach that in imposing a [s]tate's harshest penalties, a sentencer misses too much if he treats every child as an adult.... Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys.... And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.” (Citations omitted.) Id., at 2468. The court thus determined: “[A] judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without [the] possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before [the court] violate this principle of proportionality, and so the [e]ighth [a]mendment's ban on cruel and unusual punishment.” Id., at 2475.
In sum, all three federal cases recognized that, because the eighth amendment prohibition against cruel and unusual punishment is based on the principle that punishment should be graduated and proportioned to the offender and the offense, courts must consider mitigating evidence of youth and immaturity when sentencing juvenile offenders. Thus, applying this principle, the death penalty is a disproportionate sentence for juvenile offenders, regardless of the crime; see Roper v. Simmons, supra, 543 U.S. at 573–75, 125 S.Ct. 1183; life imprisonment without the possibility of parole is a disproportionate sentence for juveniles convicted of a nonhomicide crime; Graham v. Florida, supra, 560 U.S. at 74, 130 S.Ct. 2011; and mandatory life imprisonment without the possibility of parole is a disproportionate sentence for juveniles convicted of a homicide, although a sentence of life imprisonment without the possibility of parole may be deemed appropriate following consideration of the child's age-related characteristics and the circumstances of the crime. See Miller v. Alabama, supra, 132 S.Ct. at 2469; see also id., at 2475 (“Graham, Roper , and [the court's] individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without [the] possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes [at issue] violate this principle of proportionality....” [Emphasis added.] ).
In light of this precedent, we disagree with the defendant that his ten and five year mandatory minimum sentences violated the eighth amendment prohibition against cruel and unusual punishment. The defendant's sentences not only were far less severe than the sentences at issue in Roper, Graham and Miller, but were consistent with the principle of proportionality at the heart of the eighth amendment protection because the mandatory minimum requirements, while limiting the trial court's discretion to some degree, still left the court with broad discretion to fashion an appropriate sentence that accounted for the defendant's youth and immaturity when he committed the crimes.
A
We first agree with the trial court that the defendant's ten and five year mandatory minimum sentences lack the severity of the sentences at issue in Roper, Graham and Miller. In those cases, the court concluded there was a constitutional violation because the sentences consisted of death or life imprisonment without the possibility of parole, the two most severe punishments courts are able to impose. See Miller v. Alabama, supra, 132 S.Ct. at 2467–68; Graham v. Florida, supra, 560 U.S. at 70, 130 S.Ct. 2011; Roper v. Simmons, supra, 543 U.S. at 568, 125 S.Ct. 1183. The difference between these and other sentences is not merely quantitative. There is also a qualitative difference. Death is final and irrevocable, unlike any other sentence. Life in prison without the possibility of parole is also final and irrevocable in the sense that it deprives the offender of all hope of future release and of living a normal life, even if he or she is successfully rehabilitated and capable of returning and making a positive contribution to society. These differences were recognized by the courts in all three cases, each of which described the punishment in question as unique in its severity. See Miller v. Alabama, supra, at 2465, 2466, 2468 (repeatedly characterizing life imprisonment without possibility of parole as “harshest” possible penalty for juveniles); Graham v. Florida, supra, at 69–70, 130 S.Ct. 2011 (stating that “life without parole is ‘the second most severe penalty permitted by law’ ” and that “life without parole sentences share some characteristics with death sentences that are shared by no other sentences” because “the sentence alters the offender's life by a forfeiture that is irrevocable ... without giving hope of restoration”); Roper v. Simmons, supra, at 568, 125 S.Ct. 1183 (“[b]ecause the death penalty is the most severe punishment, the [e]ighth [a]mendment applies to it with special force”).
Although the deprivation of liberty for any amount of time, including a single year, is not insignificant, Roper, Graham and Miller cannot be read to mean that all mandatory deprivations of liberty are of potentially constitutional magnitude. In the present case, the ten and five year mandatory minimum sentences, under which the defendant is likely to be released before he reaches the age of thirty, do not approach what the court described in Roper, Graham and Miller as the two harshest penalties. Thus, the defendant's sentences do not implicate the factors deemed unacceptable in Roper, Graham and Miller when those penalties are imposed on juveniles, namely, the futility of rehabilitation and the permanent deprivation of all hope to become a productive member of society, both of which occur when the court is prevented from taking a second look at the incarcerated offender's demonstrated growth and maturity. Rather, the defendant in the present case will be able to work toward his rehabilitation and look forward to release at a relatively young age. Accordingly, from the standpoint of the severity of the mandatory ten and five year sentences at issue in this case, Roper, Graham and Miller provide no support for the defendant's claim that the sentences constitute cruel and unusual punishment when applied to a juvenile offender.
B
We also agree with the trial court that the mandatory minimum sentences, as applied to the defendant, did not otherwise violate the principle of proportionality articulated in Roper, Graham and Miller. That is because, unlike in those cases, the sentencing provisions at issue in the present case left the trial court with discretion to choose from a wide range of sentencing possibilities that equaled or exceeded the minimum term of imprisonment. Although the defendant was subject to a maximum sentence of fifty-five years incarceration on all charges, the court stated at the sentencing hearing that it intended to be as lenient as possible, considering the defendant's age at the time he committed the crimes, and it thus sentenced the defendant to a total effective sentence of only ten years incarceration, followed by three years of special parole.
Insofar as the defendant argues that the mandatory minimum sentencing provisions prevented the court from fully exercising its discretion, the trial court stated that it did not view the sentences as “strip[ping] the court of its ability to exercise broad discretion in fashioning an appropriate sentence.” All mandatory minimum sentences limit, to some extent, the discretion of courts to craft a sentence that accounts for the special characteristics of the offender and the offense. Even mandatory minimum sentences of one or two years limit the discretion of courts by precluding the imposition of lesser sentences on offenders regarded as deserving of a lesser penalty because of compelling mitigating factors. See, e.g., General Statutes § 53a–61a (d) (requiring mandatory minimum sentence of one year incarceration for third degree assault of elderly, blind, disabled or pregnant person, or person with intellectual disability); see also General Statutes § 29–35(a) (requiring mandatory minimum sentence of one year incarceration for carrying pistol without permit). The limitations that mandatory minimum sentences place on a trial court's discretion, however, do not automatically constitute an eighth amendment violation. A mandatory minimum sentence is, by definition, the least punitive sentence that may be imposed under a sentencing statute. The question thus becomes whether the mandatory minimum sentences in the present case were so disproportionate, despite the court's decision to impose a total effective sentence amounting to a fraction of the maximum possible sentence, that they subjected the defendant to cruel and unusual punishment under Roper, Graham and Miller. In order to answer this question, we consider the defendant's total effective sentence in light of the crimes of which he was convicted.The defendant received mandatory minimum sentences of ten years incarceration for sexual assault in the first degree and five years incarceration for risk of injury to a child. Under the first degree sexual assault statute, the defendant was charged with “engag[ing] in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person....” General Statutes § 53a–70 (a)(2). Under the risk of injury to a child statute, the defendant was charged with “[having] contact with the intimate parts, as defined in section 53a–65, of a child under the age of sixteen years or subject [ing] a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child....” General Statutes (Rev. to 2007) § 53–21(a)(2), as amended by Public Acts 2007, No. 07–143, § 4. General Statutes § 53a–65 (8) defines “ ‘[i]ntimate parts' ” as “the genital area or any substance emitted therefrom, groin, anus or any substance emitted therefrom, inner thighs, buttocks or breasts.”
In the present case, C testified that the defendant put his hand down C's pants and “pushed [C's] penis in ... [with] [h]is finger,” “put his finger in [C's] butt,” and “put his hand on [C's] penis and ... rub[bed] it.” C also testified that the defendant sometimes lay on top of him when their clothes were on and “hump[ed]” him. The assaults took place over a period of approximately eighteen or nineteen months when C was six and seven years old.
Given the gravity of these offenses, the tender age of C when they occurred, and the likelihood that C will suffer from the effects of the abuse for the remainder of his life, the mandatory minimum sentences cannot be said to be disproportionate under Roper, Graham and Miller. In Graham, the court made clear that juveniles convicted of nonhomicide crimes, such as the crimes committed by the defendant in the present case, are not immune from very harsh punishments, including life in prison, merely because of their youth when they committed the crimes. The court explained: “A [s]tate is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the [s]tate must do ... is give defendants ... some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.... It bears emphasis, however, that while the [e]ighth [a]mendment forbids a [s]tate from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the [s]tate to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The [e]ighth [a]mendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid [s]tates from making the judgment at the outset that those offenders never will be fit to reenter society.” Graham v. Florida, supra, 560 U.S. at 75, 130 S.Ct. 2011.
From this passage, it is clear that the court in Graham did not disapprove of lengthy sentences for juvenile offenders convicted of nonhomicide crimes. The court instead objected to the fact that a sentence of life imprisonment without the possibility of parole would eliminate at the outset any future opportunity for such offenders to demonstrate growth and maturity by using their time in prison to rehabilitate and become productive members of society. The court in Miller went even further when it endorsed the imposition of a life sentence without the possibility of parole for juvenile offenders convicted of homicide, provided the sentencing court first consider mitigating evidence relating to the offender's personal history and the nature of the crime. See Miller v. Alabama, supra, 132 S.Ct. at 2470–72.
In the present case, the trial court's decision to impose a sentence for first degree sexual assault that did not exceed the mandatory minimum and to allow the sentences for fourth degree sexual assault and risk of injury to be served concurrently with the sentence for first degree sexual assault was based on its consideration of the defendant's relative youth and immaturity when he committed the crimes, and will guarantee the defendant's future release at a relatively young age. The sentences were therefore consistent with the principles of individualized sentencing and proportionality articulated in Roper, Graham
and Miller, and did not constitute cruel and unusual punishment under the eighth amendment.
Justice Eveleigh's lengthy analysis of the constitutionality of mandatory minimum sentences for juvenile offenders is deeply flawed. Among other things, Justice Eveleigh improperly (1) construes Roper, Graham and Miller as requiring “individualized, fully discretionary sentencing” for all juvenile offenders, “including the ability to depart downward from a mandatory minimum sentence,” (2) relies on a recent Iowa case in which the court concluded that mandatory minimum sentences for juvenile offenders are impermissible under the Iowa constitution; see State v. Lyle, 854 N.W.2d 378, 400 (Iowa 2014) ; and (3) attributes views and conclusions to the majority that find no support in this opinion. We discuss each of these flaws in turn.
We begin with Justice Eveleigh's repeated claim that Roper, Graham and Miller require “individualized, fully discretionary sentencing” for all juvenile offenders because Miller allegedly suggests that “neither the crime nor its mandatory minimum-punishment should be a factor in a sentencing court's ability to comply with the eighth amendment to the United States constitution....” (Emphasis added.) The language in Miller on which Justice Eveleigh relies provides that “[n]one of what [Roper and Graham ] said about children—about their distinctive (and transitory) mental traits and environmental vulnerabilities—is crime specific.” Miller v. Alabama, supra, 132 S.Ct. at 2465. Justice Eveleigh's broad interpretation of this language, however, is unsupportable. The full passage from which it is taken provides: “Graham 's flat ban on life without parole applied only to nonhomicide crimes, and the [c]ourt took care to distinguish those offenses from murder, based on both moral culpability and consequential harm.... But none of what it said about children—about their distinctive (and transitory) mental traits and environmental vulnerabilities—is crime-specific. Those features are evident in the same way, and to the same degree, when (as in [Miller] ) a botched robbery turns into a killing. So Graham 's reasoning implicates any life-without-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses.” (Citation omitted; emphasis added.) Id. From this more complete rendition of the passage, it is clear that the court in Miller was referring only to the fact that Graham 's reasoning regarding a sentence of life without the possibility of parole applied equally to both homicide and nonhomicide offenses committed by juvenile offenders. There is nothing in the passage suggesting that the court was also referring to less severe punishments or that trial courts should have unfettered discretion in sentencing juvenile offenders. Accordingly, to the extent Justice Eveleigh adopts a far more expansive interpretation of Miller, it is utterly lacking in support, and all other conclusions that flow from his interpretation are also lacking in support.
Second, although Justice Eveleigh relies extensively on a recent Iowa Supreme Court decision holding that mandatory minimum sentences for juvenile offenders are impermissible, he omits the fact that the Iowa court chose not to decide the defendant's claim in that case under federal law, as the defendant originally argued, but, rather, under the Iowa constitution after requesting additional briefing from the parties on that issue. See State v. Lyle, supra, 854 N.W.2d at 380, 382. Justice Eveleigh also omits the fact that, in interpreting the Iowa constitution, the Iowa Supreme Court relied in part on the state legislature's decision in 2013 to expand the discretion of state courts in juvenile matters by amending Iowa's sentencing statutes to remove mandatory sentencing for juveniles in most cases; id., at 387–88; on other provisions in the Iowa criminal statutes vesting considerable discretion in courts when deciding juvenile matters; id., at 388; and on a trilogy of recent juvenile cases decided by the court under the Iowa constitution. Id., at 395. Finally, Justice Eveleigh omits the fact that the Iowa court recognized that “no other court in the nation has held that its constitution or the [f]ederal [c]onstitution prohibits a statutory schema that prescribes a mandatory minimum sentence for a juvenile offender”; (emphasis added) id., at 386; and that “no ... national consensus exists against the imposition of mandatory sentences on juvenile offenders; the practice is common across jurisdictions.” (Internal quotation marks omitted.) Id., at 387, quoting A. Dutton, comment, “The Next Frontier of Juvenile Sentencing Reform: Enforcing Miller 's Individualized Sentencing Requirement Beyond the JLWOP Context,” 23 Temp. Pol. & Civ. Rts. L.Rev. 173, 195 (2013). Justice Eveleigh thus ignores key aspects of the Iowa court's analysis that render its decision inapplicable in resolving the defendant's claim in the present case that his mandatory minimum sentences were unconstitutional under federal law.
Third, Justice Eveleigh overlooks the fact that the defendant seeks review of his sentences only under Roper, Graham and Miller, and, therefore, Justice Eveleigh improperly castigates the majority for failing to consider unrelated factors that have no bearing on the limited issue before this court. For example, Justice Eveleigh suggests that the majority should have applied Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 2160, 186 L.Ed.2d 314 (2013), a sixth amendment case in which the United States Supreme Court determined, according to Justice Eveleigh, that “the floor of a sentencing range mattered just as much to the defendant as the ceiling in giving effect to the protections afforded by the constitution,” even though that case has no relevance in this eighth amendment appeal involving juvenile sentencing. Similarly, in claiming that the majority should have compared the severity of the sentences in the present case with the sentences for other crimes within this and other jurisdictions, and should have considered objective indicia of society's standards, as expressed in legislative enactments and state practice, Justice Eveleigh would have this court go far beyond the defendant's limited claim that his mandatory minimum sentences are unconstitutional under Roper, Graham and Miller.
Justice Eveleigh also greatly simplifies and misconstrues our analysis when he suggests that the majority believes that the “dispositive” factor under the three United States Supreme Court cases is the severity of the punishment and that the rationales of those cases apply with less force when the sentence imposed is not death or life imprisonment without the possibility of parole. Contrary to Justice Eveleigh's view, the majority does not believe that the severity of the punishment is the dispositive factor under the three Supreme Court cases but that it is an important factor in understanding the extent to which the holdings in those cases apply to this court's analysis of the mandatory minimum sentences in the defendant's case. The majority also does not believe that the three cases apply with less force when the sentence is not one of the two most extreme punishments available to the court. The principle of proportionality that lies at the heart of the three Supreme Court cases applies with equal force to all sentencing decisions. Because the severity of the sentences was an important consideration in the three Supreme Court cases, however, this court is not required to reach the same conclusion regarding the proportionality of the defendant's far more lenient sentence in the present case.
II
The defendant next claims that Theresa Montelli, the state's expert witness on child abuse victims, improperly vouched for C's credibility. The defendant specifically claims that Montelli directly and indirectly vouched for C's credibility by making substantive use of C's out-of-court statements in her testimony regarding the general characteristics of sexually abused children. The state responds that Montelli did not vouch, directly or indirectly, for C's credibility but, rather, testified regarding the general characteristics of sexually abused children, offered no indirect opinions about C, and never testified that she previously had treated, or was currently treating, C for any reason. We agree with the state.The following additional facts are relevant to our resolution of this claim. Prior to commencement of the trial, the state informed the court that it intended to offer testimony by Montelli relating to her interview with C and her knowledge of the general characteristics of sexually abused children, such as delayed reporting of the abuse and the ways in which a child victim recalls events. Although defense counsel objected to admission of this testimony, the court advised counsel that a specific objection should be made when the testimony was offered at trial.
Thereafter, C testified that, in the spring of 2007, when he was five years old and the defendant was thirteen years old, he was in the care of multiple family members and legal guardians. During the week, he lived in Hamden with three sisters, who were close friends of his mother, and an uncle. On Friday nights, he went to New Haven to stay with one of his mother's brothers. The rest of the weekend he spent with his mother, who was living in New Haven with her second brother, his wife and their three sons, one of whom was the defendant.
During this time, C had a good relationship with the defendant, thought of him as a big brother, and frequently watched television and played video games with him. One day, however, when C was visiting his mother at the defendant's home, the defendant put his hand inside C's pants and touched him sexually, conduct that continued during other visits. Because C, who was only five years old at the time, did not understand that this conduct was “wrong,” he did not tell anyone about it.
In June, 2007, just before C turned six years old, his mother moved out of the defendant's home and into her own apartment in New Haven. After the move, C's visiting schedule with his mother continued. During the week, he lived with the three sisters; on Friday nights, he went to the home of his mother's brother; and during the remainder of the weekend, he visited his mother at her new apartment.
Even though C's mother was no longer living with the defendant's family, C and the defendant continued to see each other regularly. Throughout that summer, the defendant visited the home of the three sisters three or four times a week, sometimes with his parents to help with chores, and other times for holidays and family parties. C also continued to see the defendant at the home of his mother's brother on Friday nights and at his mother's new apartment. Although C liked spending time and playing games with the defendant, the defendant continued to sexually abuse C at all three locations for the next eighteen or nineteen months. Finally, in February, 2009, when C was seven years old, he told his mother that the defendant had been inappropriately touching him and that the defendant had said he would kill C if C told anybody about what had happened. When asked why he finally told his mother, C explained: “I just couldn't take it anymore.” One week later, Montelli interviewed C.
When the state was ready to call Montelli as an expert witness the following day, defense counsel objected by way of a motion in limine, in which he argued that she should not be allowed to give testimony regarding her forensic interview with C and the general characteristics of children who have been sexually abused. Counsel argued that allowing Montelli to testify about the general characteristics of sexually abused children immediately before showing the jury her video-recorded interview with C would compromise her appearance of impartiality as an expert witness and bolster C's allegations that he had been sexually abused by the defendant. In other words, allowing Montelli to testify for both purposes would amount to her giving an opinion that C's allegations were credible. Counsel thus suggested that the state call another equally qualified expert witness who had not conducted a forensic interview with C to testify regarding the general characteristics of sexually abused children.
The court denied the defendant's motion in limine, stating that it was unaware of any legal authority that would preclude an expert witness from testifying on both matters. The court stated that defense counsel was free to object if the state crossed the line in questioning Montelli and that it could cross-examine Montelli to reduce the risk of any possible confusion caused by her testimony. The court also informed counsel that it would entertain a request to give the jury a limiting instruction immediately before its deliberations delineating Montelli's two roles so that the jury would understand that her testimony describing the general characteristics of sexually abused children was not intended to identify any of C's particular characteristics.
Thereafter, Montelli testified that she was a clinical social worker and forensic interviewer for Yale–New Haven Hospital's Child Sexual Abuse Clinic (clinic) and explained that her office functioned as part of an interdisciplinary team. She stated that the purpose of forensic interviews was to collect facts in order to understand the alleged abuse from the child's perspective, to obtain information for use in the child's medical treatment, if treatment was deemed necessary, and to protect the child from further trauma by minimizing the number of times the child was required to speak with others about the experience.
Montelli next discussed the protocol for interviewing children brought to the clinic and her understanding of the general characteristics of children who have been sexually abused. With respect to the issue of delayed reporting, she noted that most sexually abused children do not report the abuse immediately and, in some cases, never report the abuse, often because they have a close relationship with the abuser. For example, an abuser may be a family friend or a family member to whom the child feels loyalty, such as a mother, father, uncle or cousin. In some cases, the child may delay disclosure if the perpetrator is an authority figure who has threatened or intimidated the child. In still other cases, the child may delay disclosure because of shame or embarrassment. Montelli also testified that a child's delayed disclosure may be due to a perceived lack of maternal support.
Montelli next discussed the effect of age on delays in reporting. She explained that children seven years old or younger may not know initially that what is happening is wrong because they have little or no understanding of sex or sexual abuse. Younger victims also have a limited understanding of time, and, therefore, the information they report may be unreliable because time is an abstract concept and multiple incidents often blend together. Thus, if a child has been exposed to more than one incident of sexual abuse, the child may not be able to recall correctly the number of times the abuse occurred, the exact locations where it occurred, and the exact details of the abuse on each occasion.
When queried regarding her forensic interview with C, Montelli stated that she had conducted the interview at the clinic, the interview had been recorded, and a colleague had performed a medical examination of C following the interview. The jury then was shown the video recording of the interview. After the video recording was played, Montelli returned to the stand, where she testified briefly that she had not seen C since the interview, had not assisted in preparing C for trial, and had showed C anatomically correct dolls and diagrams during the interview for C to use in describing the abuse.On cross-examination, Montelli stated that a delay in reporting or a limited understanding of the concept of time did not mean that a child's allegation of sexual abuse was truthful. She also agreed with counsel that some young children have a limited understanding of sexual activities. In response to a question regarding her personal knowledge as to whether C had been abused, Montelli testified: “My job isn't to say that allegations are true or not, or that ... this child just told me the truth.... I don't make that determination.” Defense counsel responded: “So, the answer is that you do not have any personal knowledge, and that's the question, any personal knowledge of whether these [allegations] are true or not?” Montelli replied: “No.... It was only what I heard from [C].” On redirect examination, Montelli reiterated that she did not “witness anything” connected with C's factual allegations.
During closing argument, defense counsel was the first to refer to Montelli's testimony, noting that a “so-called expert witness” for the state had described the general characteristics of abused children and then had appeared in the video-recorded interview with C, which might have suggested to the jury that what had happened to C was consistent with being sexually abused. Counsel directly refuted any such suggestion, however, by emphasizing Montelli's testimony that a delay in disclosure has nothing to do with whether a child is telling the truth or lying. He also argued that Montelli's testimony that children typically wait until the abuser is out of the house before disclosing the abuse did not apply in the present case because C did not live in the same house as the defendant for most of the time the alleged abuse occurred. Counsel dismissed Montelli's testimony that children often fail to timely disclose abuse if they are threatened by reminding the jury of C's testimony that no one ever had threatened him or told him not to tell anyone about the abuse while it was occurring, except for the very last time, after which he reported the abuse to his mother.
In rebuttal, the assistant state's attorney (prosecutor) reminded the jury that Montelli was not permitted to testify as to whether C exhibited any of the general characteristics of sexually abused children and that she was not permitted to testify that C was telling the truth because that issue was for the jury to decide. The prosecutor explained that Montelli's role was to describe, on the basis of her training and experience, the general characteristics of sexually abused children. The prosecutor then referred to many of the traits Montelli had discussed, including a child's concept of time, the impossibility of accurate recall by very young children when there have been multiple incidents of abuse, the reasons for a child's delay in reporting the abuse, and the types of relationships that commonly exist between perpetrators and victims.
Following the jury's determination that the defendant was guilty but before he was sentenced, the defendant filed a motion for a new trial on the ground that Montelli had vouched for C's credibility by giving the type of expert testimony this court deemed inadmissible in State v. Favoccia, 306 Conn. 770, 780, 51 A.3d 1002 (2012), namely, examples of the behavior of sexual assault victims closely resembling C's behavior, thus directly or indirectly connecting C's behavior with the behavioral characteristics of a sexual assault victim. The defendant argued that Montelli's testimony that children (1) often delay disclosing the abuse because of their close relationship with the abuser, (2) may fail to disclose or may choose to disclose the abuse when threats are made, (3) may fail to disclose the abuse when they feel a lack of maternal support or have a poor relationship with their mothers, (4) do not understand what is happening to them or that the abuse is wrong when they are seven years old or younger, and (5) have poor concepts of time and thus may incorrectly describe the number of incidents, where they occurred, and the details of the abuse when they are seven years old or younger, was similar to C's testimony that he (1) was abused by his cousin, the defendant, (2) did not disclose the abuse until the defendant threatened to kill him, (3) did not have a close relationship with his mother when the abuse occurred, (4) did not understand that the defendant's conduct was wrong, and (5) could not recall the exact number of incidents or the dates on which they occurred.
In denying the motion, the trial court disagreed with the defendant's characterization of the disputed testimony as the type of testimony at issue in Favoccia. The court observed that Favoccia stands for the proposition that, “although expert witnesses may testify about the general behavioral characteristics of sexual abuse victims, they cross the line into impermissible vouching and ultimate issue testimony when they opine that a particular complainant has exhibited those general behavioral characteristics.” (Internal quotation marks omitted.) The court then noted that neither the prosecutor, in his questions regarding the general characteristics of abused children, nor Montelli, in her responses, made any reference to C or sought to compare or link those general characteristics to C.
On appeal, the defendant renews his claim that Montelli's testimony regarding the general characteristics of sexually abused children was similar to the testimony at issue in Favoccia. The defendant specifically claims, as he did in his motion for a new trial, that Montelli's description of the general characteristics of abused children was based on her knowledge of C's allegations, thereby improperly linking the two and, in effect, vouching for C's credibility. The defendant thus claims that Montelli's general testimony directly or indirectly supported C's allegations that he was sexually abused by suggesting that (1) he delayed disclosure because of his close family relationship with his cousin, his lack of a strong maternal bond and his lack of knowledge that the touching was wrong, (2) he disclosed the abuse only after being threatened, and (3) he could not describe or distinguish specific incidents or say how often the abuse occurred because children similar in age have a poor concept of time and an inability to connect events and places. The state responds that the fact that Montelli testified regarding the general characteristics of abused children immediately before the video-recorded interview was shown to the jury did not result in improper vouching for C's credibility because Montelli never testified about C specifically or linked C to her other testimony about abused children generally.
We begin with the standard of review and the governing legal principles. “The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions.... The court's decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law.... Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues....
“The determination of the credibility of a witness is solely the function of the jury.... It is the trier of fact which determines the credibility of witnesses and the weight to be accorded their testimony.... Expert witnesses cannot be permitted to invade the province of the jury by testifying as to the credibility of a particular witness or the truthfulness of a particular witness' claims.... An expert witness ordinarily may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact.... Experts can [however] sometimes give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass....
“Additionally, in cases that involve allegations of sexual abuse of children, we have held that expert testimony of reactions and behaviors common to victims of sexual abuse is admissible.... Such evidence assists a jury in its determination of the victim's credibility by explaining the typical consequences of the trauma of sexual abuse on a child.... It is not permissible, however, for an expert to testify as to his opinion of whether a victim in a particular case is credible or whether a particular victim's claims are truthful.... In this regard, we have found expert testimony stating that a victim's behavior was generally consistent with that of a victim of sexual or physical abuse to be admissible, and have distinguished such statements from expert testimony providing an opinion as to whether a particular victim had in fact suffered sexual abuse....
“Moreover, we have noted that even indirect assertions by an expert witness regarding the ultimate issue in a case can serve inappropriately to validate the truthfulness of a victim's testimony.... Finally, in cases in which an expert witness reaches a conclusion on the ultimate issue in part based upon statements made by the victim, we note that Connecticut case law has previously recognized the general rule of law that the expert is necessarily making a determination about the victim's credibility.... Such credibility determinations are more properly within the sole province of the jury.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. Iban C., 275 Conn. 624, 634–36, 881 A.2d 1005 (2005).In Favoccia, this court considered “whether an expert witness' testimony that the complainant has exhibited behaviors, which were identified as those characteristic of [child] sexual assault victims, constitutes inadmissible vouching for the credibility of the complainant or opinion as to the ultimate issue of whether the complainant had been sexually assaulted”; State v. Favoccia, supra, 306 Conn. at 772, 51 A.3d 1002; and concluded that it did. Id., at 772–73, 51 A.3d 1002. In that case, the expert witness was allowed to respond to four questions posed by the prosecutor relating to whether the complainant's disclosure of abuse was accidental or purposeful, as those concepts are understood in the context of sexual abuse; id., at 782–83, 51 A.3d 1002; whether the complainant's disclosure fit the characteristics of a delayed disclosure by sexual abuse victims; id., at 783–84, 51 A.3d 1002; whether the complainant's respectful behavior toward the abuser was consistent with the tendency of an abused child to continue to show respect toward the abuser after the abuse has occurred; id., at 784–85, 51 A.3d 1002; and whether the complainant fit the profile of a female abuse victim who attempts to make herself look unattractive to the abuser as a coping mechanism. Id., at 785, 51 A.3d 1002.
After considering these facts, we noted that the expert testimony at issue occupied “a delicate middle ground”; id., at 790, 51 A.3d 1002; between the type of expert testimony deemed admissible in State v. Spigarolo, 210 Conn. 359, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989), because it sought “to demonstrate or explain in general terms the behavioral characteristics of child abuse victims in disclosing alleged incidents”; id., at 380, 556 A.2d 112; and the type of expert testimony deemed inadmissible in State v. Grenier, 257 Conn. 797, 806, 778 A.2d 159 (2001), because it improperly involved an opinion as to the complainant's credibility, and in State v. Iban
C., supra, 275 Conn. at 635–36, 881 A.2d 1005, because it improperly involved an opinion about whether the complainant had been sexually abused. See State v. Favoccia, supra, 306 Conn. at 788–90, 51 A.3d 1002. We ultimately concluded that “our concerns about indirect vouching expressed in [Grenier ] and [Iban C. ] require us to limit expert testimony about the behavioral characteristics of child sexual assault victims admitted under [Spigarolo ] to that which is stated in general or hypothetical terms, and to preclude opinion testimony about whether the specific complainant has exhibited such behaviors.... [T]here is no material distinction between express testimony that the child has been sexually abused, and implicit testimony that outlines the unreliable behavioral reactions found with sexually abused victims, followed by a list of the complainant's own behavioral reactions, that points out that the two are consistent, and then invites the jury to add up the points to conclude that the child has been sexually abused.... Generalized testimony is sufficient to provide the jury with the valuable knowledge, which it is unlikely to have otherwise, specifically that [child] victims typically fail to provide complete or consistent disclosures of the alleged sexual abuse.... Thus, we agree with those authorities observing that more specific testimony yields returns that increase in prejudice to the defendant as they diminish in value with respect to the edification of the jury as to behaviors that might affect the complainant's credibility.... Accordingly, we ... conclude that, although an expert witness may testify generally about the behavioral characteristics of child sexual assault victims, an expert witness may not opine about whether the specific complainant has exhibited such behaviors.” (Citations omitted; footnotes omitted; internal quotation marks omitted.) Id., at 803–805, 51 A.3d 1002.
In the present case, Montelli's testimony bears no resemblance to the testimony at issue in Favoccia. After testifying about her qualifications, the work of the clinic, the purpose of forensic interviews, and the protocol she followed in conducting them, Montelli testified regarding the general characteristics of sexually abused children, including children seven years old or younger, and the reasons why they may delay disclosure of the abuse. At no time during this portion of her testimony did she refer to C or attempt to link him in any way to her general description of children who are victims of sexual abuse. Immediately before the video recording of the forensic interview was played for the jury, she also testified briefly regarding the circumstances surrounding the interview, and, after the video recording was shown, she answered several minor questions regarding interview procedures wholly unrelated to the content of C's testimony. Furthermore, when asked directly on cross-examination if she had any personal knowledge that C had been sexually abused, Montelli testified: “My job isn't to say that allegations are true or not, or that ... this child just told me the truth.... I don't make that determination.” On redirect examination, Montelli again stated she had not “witness[ed] anything” with respect to C's abuse. Thereafter, during closing arguments, defense counsel contended that C did not fit the profile of a sexually abused child, and the prosecutor reminded the jury that Montelli could not testify as to whether any of the examples she had given regarding the behavioral characteristics of sexually abused children applied to C. In addition, the prosecutor advised that Montelli was not permitted to testify as to whether C was telling the truth because that determination was reserved for the jury. The prosecutor explained that Montelli's role was to describe, on the basis of her training and experience, the general characteristics of sexually abused children. In light of this record, we agree with the trial court that the difference between the testimony in this case and the improper testimony in Favoccia was “quite stark,” because the opinion testimony in Favoccia, unlike the expert testimony in the present case, was given in response to specific questions regarding whether the complainant demonstrated the general characteristics of a sexually abused child.
The defendant claims that it is the substance of what is conveyed that matters, and not the use of triggering words, and that, in answering questions regarding the general behavioral characteristics of sexual abuse victims seven years of age and under, Montelli relied on specific facts and examples she had learned from her interview with C. The defendant therefore claims that Montelli's testimony improperly linked the behavior of C with that of children who are sexually abused. We disagree.
The purpose of expert testimony regarding the general characteristics of sexually abused children is to provide information that will assist the jury in evaluating the credibility of the complainant. As we stated in Spigarolo, this type “of expert testimony is admissible because the consequences of the unique trauma experienced by [child] victims of sexual abuse are matters beyond the understanding of the average person.... Consequently, expert testimony ... is of valuable assistance to the trier in assessing the ... victim's credibility.” (Citations omitted.) State v. Spigarolo, supra, 210 Conn. at 378, 556 A.2d 112. It is thus to be expected that a complainant will demonstrate behavior similar or identical to the behavior of other children who have been sexually abused. Indeed, if that were not the case, expert testimony on the subject would have no relevance. More significantly, Montelli, unlike the expert in Favoccia, never drew a comparison between C and the characteristics she described as typical of child sexual abuse victims generally. Accordingly, we conclude that the defendant's claim must fail.III
The defendant's final claim is that the trial court improperly permitted the state to offer evidence of the defendant's prior misconduct when he was thirteen years old because sexual misconduct committed by a juvenile who is under the age of fourteen cannot be indicative of a propensity to engage in aberrant and compulsive criminal sexual behavior. The defendant specifically claims that children under fourteen years of age are presumed to be incapable of committing a crime, and, therefore, in the absence of a threshold determination that he had the capacity to commit a sex offense when he was thirteen years old, the state was barred by the incapacity or infancy doctrine from using prior sexual misconduct evidence to show propensity and to prove that he committed sexual abuse after his fourteenth birthday. The state responds that the trial court did not admit the prior misconduct evidence to show propensity and that the defendant did not properly preserve his claim because there is no indication in the record that defense counsel objected to admission of the testimony on propensity grounds. Moreover, even if defense counsel did object on those grounds, the state argues that the claim fails on the merits. We agree with the state that the defendant's claim is unpreserved.
The following additional facts are relevant to our resolution of this claim. Prior to commencement of the trial, an on-the-record conversation occurred between the parties and the court referring to a lengthy meeting held in chambers the previous day to discuss several pending issues. According to the court, the prosecutor indicated during the meeting that he had changed the date in the information indicating when the defendant allegedly began to sexually abuse C from a few months before the defendant's fourteenth birthday to the day after his fourteenth birthday because he could not be charged as a juvenile for sexual misconduct he committed before the age of fourteen. The court also stated for the record that the prosecutor had requested permission to introduce C's testimony regarding incidents of sexual abuse committed before the defendant's fourteenth birthday and that defense counsel had objected to admission of this testimony. The court then announced that it had decided to overrule defense counsel's objection.
The court explained: “The case law does permit, in these circumstances involving the same victim, and I think particularly in cases of this nature, where the cutoff date is so artificial, [C] ... to describe acts that took place before the defendant's fourteenth birthday. I'm going to permit that, although I have told the state ... and the defense that I will be instructing the jury that they must find [that the charged] conduct took place after the date alleged in the information. And ... that's a date certain. If ... the jury cannot find, beyond a reasonable doubt, that any misconduct occurred after July, 2007, then the defendant would have to be found not guilty.” The court did not explain the evidentiary basis on which the prosecutor had relied in seeking to introduce this testimony, nor did it refer to the reasons that defense counsel had given for objecting to the testimony.
At the start of trial, the court informed the jury that the state was alleging that the defendant had committed the charged offenses “between the period of July 17, 2007, and the month of February, 2009, at various locations....” In accordance with the court's pretrial decision, however, C testified, without objection by defense counsel, that he had been sexually abused by the defendant in the spring of 2007 before the defendant's fourteenth birthday in July, 2007. To prevent any possible confusion due to this discrepancy, the prosecutor later explained during closing arguments that, although the abuse had begun before the date indicated in the information, C's testimony regarding the prior abuse “gives you the whole picture, when it happened, more importantly, how ... it started. And it also explains the arbitrary [start date of] July 17” contained in the information. In his closing argument, defense counsel also referred to the prior misconduct testimony when he twice described the defendant as a “thirteen year old, fourteen year old boy at the time....”
Thereafter, the trial court gave the jury a limiting instruction regarding the proper use of the prior sexual misconduct evidence. The court first advised that, to the extent the jurors might wonder why the information indicated that the sexual abuse began on July 17, 2007, the law provides that the “conduct of a person can constitute a crime only if it is committed after the person reaches the age of fourteen.” The court then continued: “So, in this case, you may recall, the parties stipulated that the defendant was born on July 16, 1993. He therefore attained the age of fourteen on July 16, 2007. As a result, the state is only permitted to prosecute the defendant for allegations after that date. That is why the period alleged in the information starts on July 17, 2007, because it is the first full day after the defendant turned fourteen.“Now, it is true, during the course of the trial, you may recall, that [C] testified [as] to certain behavior of the defendant that is alleged to have occurred in the months before July 17, 2007. And you were allowed to hear that testimony concerning pre-July 17, 2007 behavior so you could learn of the entirety of the sequence of events that [C] claims occurred.
“However, insofar as your verdict in this case is concerned, pre-July 17, 2007 conduct cannot be the basis of a guilty verdict. Rather, as I said earlier, in order for the state to prove any of the charges in this case, the state must prove beyond a reasonable doubt that at least one act that constitutes a crime was committed by the defendant on or after July 17, 2007.
“Now, if you find, based on the evidence, that the defendant did engage in prohibited behavior after July 17, 2007, and also before that date, then the defendant would be guilty based on the post-July 17, 2007 conduct. However, if you do not find that the state has proven beyond a reasonable doubt that at least one act constituting a crime was committed on or after July 17, 2007, then your verdict on that charge must be not guilty.
“In sum, therefore, while you are entitled to consider the evidence presented concerning the pre-July 17, 2007 behavior in order better to understand the events that are alleged to have occurred, your verdict as to each charge must be based solely upon conduct you find to have occurred within the specific time period in the information.”
We first set forth the legal principles that govern our resolution of preservation claims. “[T]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. This court is not bound to consider claims of law not made at the trial.... In order to preserve an evidentiary ruling for review, trial counsel must object properly.... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling.... Once counsel states the authority and ground of [the] objection, any appeal will be limited to the ground asserted....
“These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act.... Assigning error to a court's evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush.... Thus, because the sina qua non of preservation is fair notice to the trial court ... the determination of whether a claim has been properly preserved will depend on a careful review of the record to ascertain whether the claim on appeal was articulated below with sufficient clarity to place the trial court on reasonable notice of that very same claim.” (Citations omitted; internal quotation marks omitted.) State v. Jorge P., 308 Conn. 740, 753–54, 66 A.3d 869 (2013).
In the present case, the meeting in which the prosecutor requested permission to present the prior misconduct testimony was held in chambers, and the court's on-the-record description of the meeting the following day contains no information regarding the basis for the prosecutor's request or for defense counsel's objection. Moreover, when the court explained its reasons for overruling the objection, it provided no legal authority in support of its ruling. It merely stated: “The case law does permit, in these circumstances involving the same victim, and I think particularly in cases of this nature, where the cutoff date is so artificial, [C] ... to describe acts that took place before the defendant's fourteenth birthday.” At that point, defense counsel could have articulated the basis for his objection on the record, but he failed to do so. Defense counsel also made no further objection to the prior misconduct testimony when C testified at trial. In fact, defense counsel referred to the defendant on two occasions during his closing argument as a thirteen and fourteen year old boy when the misconduct occurred. Accordingly, our careful review of the record indicates that counsel failed to articulate a basis for his objection to the prior misconduct evidence with “sufficient clarity to place the trial court on reasonable notice of that very same claim.” State v. Jorge P., supra, 308 Conn. at 754, 66 A.3d 869.Moreover, our review of the record indicates that the prior misconduct testimony was not admitted to show propensity but to assist the jury in understanding the meaning of the dates in the information defining the period of time during which the alleged abuse took place. See, e.g., State v. Ali, 233 Conn. 403, 427, 660 A.2d 337 (1995) (“[prior] misconduct evidence may be used to complete the story of the charged crime by placing it in the context of nearby and nearly contemporaneous happenings” [internal quotation marks omitted] ). The prosecutor contended in his closing argument that the prior misconduct testimony gave the jury “the whole picture, when it happened, more importantly, how ... it started. And it also explains the arbitrary [start date of] July 17” contained in the information. The trial court likewise noted in its final jury instructions that the prior misconduct testimony would allow the jury to “learn of the entirety of the sequence of events that [C] claims occurred.” The court later added: “[W]hile you are entitled to consider the evidence presented concerning the pre-July 17, 2007 behavior in order better to understand the events that are alleged to have occurred, your verdict as to each charge must be based solely upon conduct you find to have occurred within the specific time period in the information.” It is thus apparent that the trial court admitted the prior misconduct testimony to complete the story of why the state had alleged July 17, 2007, as the date when the crimes began, and not to show the defendant's general propensity to commit sexual abuse, including his alleged abuse of C.
Because there is nothing in the record to indicate the basis for defense counsel's objection to admission of the challenged testimony, there is no way of knowing whether the trial court considered and rejected an argument by the defense that the testimony was inadmissible on propensity grounds, as the defendant argues on appeal. If defense counsel did not object to admission of the evidence on propensity grounds, the defendant cannot ask this court to review the trial court's decision on those grounds, because such a review would result in trial by ambuscade. See, e.g., Ferraro v. Ridgefield European Motors, Inc., 313 Conn. 735, 759, 99 A.3d 1114 (2014) (“[f]or us [t]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge” [internal quotation marks omitted] ). If defense counsel did object on those grounds, he could have explained his reasoning at several points during the proceeding, including when the trial court initially overruled his objection before trial and when C testified. Because he failed to do so, this court has no authority to review the defendant's claim because it is unpreserved. The judgments are affirmed.
We also reject the defendant's claim that the trial court committed plain error in admitting the prior misconduct testimony to show propensity. “[The plain error] doctrine, codified at Practice Book § 60–5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy.... In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.... Plain error is a doctrine that should be invoked sparingly.” (Internal quotation marks omitted.) State v. Sanchez, 308 Conn. 64, 76–77, 60 A.3d 271 (2013).
In the present case, there is nothing in the record to indicate that the trial court admitted testimony regarding the defendant's prior misconduct to demonstrate propensity, just as there is nothing in the record to indicate that defense counsel objected to admission of the testimony on that ground. Rather, the record indicates that the trial court admitted the testimony to complete the story of why the state had charged the defendant with criminal conduct that began on the day after his fourteenth birthday. We therefore conclude that there is no basis for the defendant's claim that the trial court committed plain error in admitting the testimony to show the defendant's propensity.
In this opinion ROGERS, C.J., and PALMER, McDONALD, ESPINOSA and ROBINSON, Js., concurred.
PALMER, J., concurring.
I agree with and join the majority opinion because I am not persuaded that the mandatory minimum sentences imposed on the defendant, Taylor G., violated his eighth amendment right to an individualized sentencing decision that takes into account the youth and immaturity of a person who, like the defendant, commits a crime or crimes while under the age of eighteen. In fact, as the majority notes, there appears to be no case in which any court, state or federal, has held that the eighth amendment categorically bars the imposition of a mandatory minimum sentence on a juvenile. But cf. State v. Lyle, 854 N.W.2d 378, 386, 400 (Iowa 2014) (recognizing such prohibition under Iowa state constitution but acknowledging that “no other court in the nation has held that its constitution or the [f]ederal [c]onstitution prohibits a statutory schema that prescribes a mandatory minimum sentence for a juvenile offender”). Furthermore, in the present case, the defendant has not raised a claim under the Connecticut constitution.
I write separately, however, only to point out that, although the federal constitution does not prevent the legislature from subjecting juvenile offenders to certain kinds of mandatory minimum sentences, the legislature may wish to revisit the question of whether such mandatory prison terms are appropriate for juveniles, as a matter of sound public policy, in light of the marked differences between juveniles and adults. The United States Supreme Court recently reiterated these differences in Miller v. Alabama, –––U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), explaining that, “[b]ecause juveniles have diminished culpability and greater prospects for reform [than adults] ... they are less deserving of the most severe punishments.” (Internal quotation marks omitted.) Id., at 2464. As the court in Miller further explained, this conclusion is founded on “three significant gaps between juveniles and adults. First, children have a lack of maturity and an underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risk-taking.... Second, children are more vulnerable ... to negative influences and outside pressures, including from their family and peers; they have limited contro[l] over their own environment and lack the ability to extricate themselves from horrific, crime-producing settings.... And third, a child's character is not as well formed as an adult's; his traits are less fixed and his actions less likely to be evidence of irretrievabl[e] deprav[ity].” (Citations omitted; internal quotation marks omitted.) Id.
The court continued: “[D]evelopments in psychology and brain science continue to show fundamental differences between juvenile and adult minds—for example, in parts of the brain involved in behavior control.... [T]hose findings—of transient rashness, proclivity for risk, and inability to assess consequences—both lessened a child's moral culpability and enhanced the prospect that, as the years go by and neurological development occurs, his deficiencies will be reformed.” (Citation omitted; footnote omitted; internal quotation marks omitted.) Id., at 2464–65.
The court then “emphasized that the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes. Because [t]he heart of the retribution rationale relates to an offender's blameworthiness, the case for retribution is not as strong with a [child] as with an adult.... Nor can deterrence do the work in this context, because the same characteristics that render juveniles less culpable than adults—their immaturity, recklessness, and impetuosity—make them less likely to consider potential punishment.” (Citations omitted; internal quotation marks omitted.) Id., at 2465. Finally, the court observed that imposing the harshest of sentences on juvenile offenders because of their perceived dangerousness would be incompatible with the fact that “incorrigibility is inconsistent with youth”; (internal quotation marks omitted) id.; and, “for the same reason, rehabilitation could not justify [such a] sentence” because it would be “at odds with a child's capacity for change.” Id.
As the experienced and highly regarded trial judge in the present case noted in his comments during the defendant's sentencing, mandatory minimum sentences for juvenile offenders pose a real risk of unduly limiting the ability of the court to impose a sanction that fairly accounts for the lack of maturity and diminished responsibility of such offenders. For that reason, our legislature may find it appropriate to reconsider the efficacy of subjecting juveniles to mandatory minimum sentences, even when, as in the present case, the federal constitution does not categorically prohibit them.
EVELEIGH, J., dissenting.
I respectfully dissent. I disagree with part I of the majority opinion and, in particular, the majority's interpretation of Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Miller v. Alabama, –––U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).
I disagree with the majority's conclusion that the rationales of Roper, Graham , and Miller —that juvenile offenders are constitutionally different than adults because of their decreased culpability—apply with less force when the sentence imposed is not the death penalty or life without parole. Indeed, the majority omits language in Miller that expressly precludes its analysis: “[N]one of what [Graham ] said about children—about their distinctive (and transitory) mental traits and environmental vulnerabilities—is crime-specific.” Miller v. Alabama, supra, 132 S.Ct. at 2465. In my view, and in the view of the Supreme Court of Iowa in State v. Lyle, 854 N.W.2d 378 (Iowa 2014), neither the crime nor its mandatory minimum punishment should be a factor in a sentencing court's ability to comply with the eighth amendment to the United States constitution and, therefore, a sentencing court possesses discretion to fashion a constitutionally permissible sentence, even if that sentence departs downward from a mandatory minimum sentence. In Miller, the United States Supreme Court agreed that a juvenile's features are “evident in the same way, and to the same degree” regardless of the crime or the punishment. Miller v. Alabama, supra, at 2465. Additionally, I disagree with the majority's conclusion that a sentencing court always retains constitutionally sufficient sentencing discretion merely because it is free to impose a sentence harsher than the mandatory minimum set by the legislature.
Instead, I would conclude that the eighth amendment's prohibition against cruel and unusual punishment precludes imposition of any mandatory minimum sentence on a juvenile offender because such offender's status triggers the requirement of individualized, fully discretionary sentencing. Therefore, I respectfully dissent.
In part I of this opinion, I review the decisions of the United States Supreme Court in Roper, Graham , and Miller, and detail how those cases were applied by the Supreme Court of Iowa in Lyle. In part II of this opinion, I discuss the analysis proffered by the majority. In part III of this opinion, I explain how Roper, Graham , and Miller should have dictated a different outcome in the present case.I
In Roper, Graham , and Miller, the United States Supreme Court examined juvenile sentencing through the lens of the eighth amendment to the United States constitution. In those cases, the court declared unconstitutional the imposition on juvenile offenders of the death penalty; Roper v. Simmons, supra, 543 U.S. at 568, 125 S.Ct. 1183; life without parole for nonhomicide offenses; Graham v. Florida, supra, 560 U.S. at 82, 130 S.Ct. 2011; and mandatory life without parole for homicide offenses. Miller v. Alabama, supra, 132 S.Ct. at 2465. The court so concluded because of the marked physiological and psychological differences between juveniles and adults and, accordingly, the reduced penological justifications associated with sentencing juveniles as adults. The court's jurisprudence in these three cases leads to the inescapable conclusion, adopted by the Supreme Court of Iowa in State v. Lyle, supra, 854 N.W.2d 378, that individualized, fully discretionary sentencing of juvenile offenders, including the ability to depart downward from a mandatory minimum sentence, is the only way to comport with the eighth amendment's strictures and appropriately account for the ways in which juveniles differ from adults.
A
The United States Supreme Court's trilogy of juvenile sentencing cases explored the multitude of reasons why “children are constitutionally different from adults for purposes of sentencing.” Miller v. Alabama, supra, 132 S.Ct. at 2464.
The first of these cases, Roper v. Simmons, supra, 543 U.S. at 568, 125 S.Ct. 1183, highlighted the differences that exist between juveniles and adults when it concluded that the death penalty could not constitutionally be applied to juvenile offenders. The court noted “[t]hree general differences between juveniles under [eighteen] and adults.... First, as any parent knows and as the scientific and sociological studies ... confirm, ‘[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.’ ” Id., at 569, 125 S.Ct. 1183. Second, “juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.” Id. at “The third broad difference is that the character of a juvenile is not as well formed as that of an adult.” Id., at 570, 125 S.Ct. 1183.
The court in Roper noted that “[t]he susceptibility of juveniles to immature and irresponsible behavior means ‘their irresponsible conduct is not as morally reprehensible as that of an adult.’ ... The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed. Indeed, ‘[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.’ ... [See L. Steinberg & E. Scott, “Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty,” 58 Am. Psychologist 1009, 1014 (2003) ] (‘For most teens, [risky or antisocial] behaviors are fleeting; they cease with maturity as individual identity becomes settled. Only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into adulthood’).” (Citation omitted.) Roper v. Simmons, supra, 543 U.S. at 570, 125 S.Ct. 1183.The Supreme Court in Roper concluded that “[t]he differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability. An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender's objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death.... It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.... As we understand it, this difficulty underlies the rule forbidding psychiatrists from diagnosing any patient under [eighteen] as having antisocial personality disorder.... If trained psychiatrists with the advantage of clinical testing and observation refrain, despite diagnostic expertise, from assessing any juvenile under [eighteen] as having antisocial personality disorder, we conclude that [s]tates should refrain from asking jurors to issue a far graver condemnation—that a juvenile offender merits the death penalty.” (Citations omitted.) Id., at 572–73, 125 S.Ct. 1183.
Just five years later, in Graham, the Supreme Court reaffirmed its understanding of juveniles and expounded on its discussion of the differences between juveniles and adults, concluding that it is unconstitutional for juveniles to be discretionarily sentenced to life without parole for nonhomicide crimes. Graham v. Florida, supra, 560 U.S. at 82, 130 S.Ct. 2011. The court noted that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence.” Id., at 68, 130 S.Ct. 2011. “It follows that, when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability. The age of the offender and the nature of the crime each bear on the analysis.” Id., at 69, 130 S.Ct. 2011.
The court in Graham also cautioned that the immaturity of juveniles contributes to “special difficulties encountered by counsel in juvenile representation.... [T]he features that distinguish juveniles from adults also put them at a significant disadvantage in criminal proceedings. Juveniles mistrust adults and have limited understandings of the criminal justice system and the roles of the institutional actors within it. They are less likely than adults to work effectively with their lawyers to aid in their defense.... Difficulty in weighing long-term consequences; a corresponding impulsiveness; and reluctance to trust defense counsel seen as part of the adult world a rebellious youth rejects, all can lead to poor decisions by one charged with a juvenile offense.... These factors are likely to impair the quality of a juvenile defendant's representation.” (Citations omitted.) Id., at 78, 130 S.Ct. 2011.
Two years later, the Supreme Court yet again considered the psychological and physiological differences between juveniles and adults in Miller, concluding that juveniles convicted of homicide crimes cannot constitutionally be sentenced to mandatory life without parole. Miller v. Alabama, supra, 132 S.Ct. at 2469. The court in Miller explained: “The evidence presented to us in these cases indicates that the science and social science supporting Roper 's and Graham 's conclusions have become even stronger.” Id., at 2464 n. 5. The court, quoting an amicus brief filed by the American Psychological Association, then noted that “[i]t is increasingly clear that adolescent brains are not yet fully mature in regions and systems related to higher-order executive functions such as impulse control, planning ahead, and risk avoidance....” Internal quotation marks omitted.) Id., at 2465 n. 5. The conclusions in “Graham and Roper and [the] individualized sentencing cases alike teach that in imposing a [s]tate's harshest penalties, a sentencer misses too much if he treats every child as an adult.... Indeed, [mandatory life without parole] ignores that [the juvenile offender] might have been charged and convicted of a lesser offense if not for the incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys.” Id., at 2468. The court in Miller noted that “none of what [Graham ] said about children—about their distinctive (and transitory) mental traits and environmental vulnerabilities—is crime-specific. Those features are evident in the same way, and to the same degree, when (as in both cases here) a botched robbery turns into a killing. So Graham 's reasoning implicates any [life without parole] sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses.” Id., at 2465.
The Roper, Graham , and Miller cases thus chronicle the Supreme Court's ever strengthening conclusion that juveniles cannot be treated as adults in the sentencing context.
B
After expounding on the physiological and psychological differences inherent in juveniles, the decisions of the Supreme Court in Roper, Graham, and Miller each concluded that such differences erode much of the penological justifications for harsh punishments on juveniles. Specifically, the court discussed how retribution, deterrence, incapacitation, and rehabilitation may not squarely justify harsh punishments of juveniles in all cases. The court's rationales over the span of years encompassing Roper, Graham , and Miller lead to the conclusion that an individualized, fully discretionary sentencing is the only process by which a sentencing court can appropriately account for the differences inherent in juveniles.
The first penological justification, retribution, could not be justified as “strong[ly] with a minor [charged with a homicide offense] as with an adult. Retribution is not proportional if the law's most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity.” Roper v. Simmons, supra, 543 U.S. at 571, 125 S.Ct. 1183. As to nonhomicide crimes, the court in Graham noted that “retribution does not justify imposing the second most severe penalty [of life without parole] on the less culpable juvenile nonhomicide offender.” Graham v. Florida, supra, 560 U.S. at 72, 130 S.Ct. 2011. Even though “[s]ociety is entitled to impose severe sanctions on a juvenile nonhomicide offender to express its condemnation of the crime and to seek restoration of the moral imbalance caused by the offense ... ‘[t]he heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender.’ [Tison v. Arizona, 481 U.S. 137, 149, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) ].” Graham v. Florida, supra, at 71, 130 S.Ct. 2011. The personal culpability of such a juvenile offender may be questionable given the fact that his or her “transgression ‘is not as morally reprehensible as that of an adult.’ ” Id. at 68, 130 S.Ct. 2011, quoting Thompson v. Oklahoma, 487 U.S. 815, 835, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) (plurality opinion). Even with respect to homicide crimes, retribution could not justify imposition of mandatory life without parole because a juvenile's “moral culpability” and “blameworthiness ... ‘[are] not as strong with a minor as with an adult.’ ” Miller v. Alabama, supra, 132 S.Ct. at 2465, quoting Graham v. Florida, supra, at 71, 130 S.Ct. 2011.The second penological justification, deterrence of future crime committed by juveniles, “is premised on the belief that one evaluates the consequences of one's actions....” State v. Riley, 140 Conn.App. 1, 30, 58 A.3d 304 (2013) (Borden, J., dissenting). With respect to deterrence, the United States Supreme Court questioned “whether the death penalty has a significant or even measurable deterrent effect on juveniles.... [T]he absence of evidence of deterrent effect is of special concern because the same characteristics that render juveniles less culpable than adults suggest as well that juveniles will be less susceptible to deterrence.” (Citations omitted.) Roper v. Simmons, supra, 543 U.S. at 571, 125 S.Ct. 1183. The court reasoned that, “[t]o the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person.” Id., at 572, 125 S.Ct. 1183. As with retribution, the deterrence rationale similarly did not hold up with respect to life without parole. “Because juveniles' ‘lack of maturity and underdeveloped sense of responsibility ... often result in impetuous and ill-considered actions and decisions,’ Johnson v. Texas, [509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) ], they are less likely to take a possible punishment into consideration when making decisions. This is particularly so when that punishment is rarely imposed. That the sentence deters in a few cases is perhaps plausible ... [but] any limited deterrent effect provided by life without parole is not enough to justify the sentence.” (Citation omitted.) Graham v. Florida, supra, 560 U.S. at 72, 130 S.Ct. 2011; see also Miller v. Alabama, supra, 132 S.Ct. at 2465.
The third penological justification for punishment, incapacitation, addresses recidivism. “Recidivism is a serious risk to public safety, and so incapacitation is an important goal.” Graham v. Florida, supra, 560 U.S. at 72, 130 S.Ct. 2011. Imposition of life without parole operates on the “assumption that the juvenile offender forever will be a danger to society [and] requires the sentencer to make a judgment that the juvenile is incorrigible. The characteristics of juveniles make that judgment questionable. ‘It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’ ” Id., at 72–73, 130 S.Ct. 2011, quoting Roper v. Simmons, supra, 543 U.S. at 573, 125 S.Ct. 1183. “Even if the [s]tate's judgment that [a juvenile offender] was incorrigible were later corroborated by prison misbehavior or failure to mature, the sentence [of life without parole] was still disproportionate because that judgment was made at the outset. A life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity. Incapacitation cannot override all other considerations, lest the [e]ighth [a]mendment's rule against disproportionate sentences be a ity.” Graham v. Florida, supra, at 73, 130 S.Ct. 2011; see also Miller v. Alabama, supra, 132 S.Ct. at 2465.
The last penological justification for punishment, rehabilitation, implicates our legislature's judgment. The court in Graham noted that “[i]t is for legislatures to determine what rehabilitative techniques are appropriate and effective.” Graham v. Florida, supra, 560 U.S. at 73–74, 130 S.Ct. 2011. Although “the fixing of prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is properly within the province of legislatures, not courts”; (internal quotation marks omitted) State v. Higgins, 265 Conn. 35, 63, 826 A.2d 1126 (2003), quoting Harmelin v. Michigan, 501 U.S. 957, 998, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) ; the United States Supreme Court nevertheless found cause to second-guess the wisdom of the legislature in imposing life without parole on nonhomicide juvenile offenders because doing so entailed “the [s]tate mak[ing] an irrevocable judgment about that person's value and place in society. This judgment is not appropriate in light of a juvenile nonhomicide offender's capacity for change and limited moral culpability.” Graham v. Florida, supra, at 74, 130 S.Ct. 2011; see also Miller v. Alabama, supra, 132 S.Ct. at 2465.
C
Year after year, the Supreme Court has chipped away at sentences that harshly punish juveniles, but only if those sentences—or sentencing schemes—fail to allow a sentencing court to consider the fundamental differences of juvenile offenders before imposing the sentence or to meaningfully tailor the sentence to suit those differences. This process of erosion began with the prohibition of the death penalty in Roper, continued with the prohibition of life without parole for nonhomicide offenders in Graham, and more recently continued with the prohibition of mandatory life without parole in Miller. The common theme of these cases is the need for individualized, fully discretionary sentencing of all juvenile offenders.
Roper, Graham , and Miller each focus on the importance of a sentencing court's ability to weigh the factors of youth and determine whether those factors compel a lesser sentence. After all, “[t]he concept of proportionality is central to the [e]ighth [a]mendment. Embodied in the [c]onstitution's ban on cruel and unusual punishments is the ‘precept of justice that punishment for crime should be graduated and proportioned to [the] offense.’ ” Graham v. Florida, supra, 560 U.S. at 59, 130 S.Ct. 2011, quoting Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910).
A juvenile's sentence would be disproportionate and, thus, violate the eighth amendment if that sentence were the product of “mandatory penalty schemes ... [that] prevent the sentencer from taking account of these central considerations [of youth]. By removing youth from the balance—by subjecting a juvenile to the same [life without parole] sentence applicable to an adult—these laws prohibit a sentencing authority from assessing whether the law's harshest term of imprisonment proportionately punishes a juvenile offender. [This lack of proportionality] contravenes Graham 's (and also Roper 's) foundational principle: that imposition of a [s]tate's most severe penalties on juvenile offenders cannot proceed as though they were not children.” (Emphasis added.) Miller v. Alabama, supra, 132 S.Ct. at 2466. “Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender's age and the wealth of characteristics and circumstances attendant to it. Under these schemes, every juvenile will receive the same sentence as every other—the [seventeen year old] and the [fourteen year old], the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one.” Id., at 2467–68. “By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” Id., at 2469.
Other state courts have similarly noted the importance of individualized, fully discretionary sentencing of juvenile offenders. When vacating a sentence of life without parole imposed on a juvenile convicted of first degree murder, the Wyoming Supreme Court stated that “[t]he key to achieving proportional punishment is for the sentencing court to inquire into the facts and circumstances surrounding the juvenile offender and the crime.” Bear Cloud v. State, 294 P.3d 36, 46 (Wyo.2013) ; see also Bear Cloud v. State, 334 P.3d 132, 141–42 (Wyo.2014) (“[w]e hold that the teachings of [Roper, Graham , and Miller require] sentencing courts to provide an individualized sentencing hearing to weigh the factors for determining a juvenile's ‘diminished culpability’ ”). As I discuss subsequently in this opinion, a similar conclusion was reached by the Supreme Court of Iowa in State v. Lyle, supra, 854 N.W.2d at 378. See part I D of this opinion.
In order to comply with the eighth amendment's strictures, in my view, this court must find unconstitutional all mandatory minimum sentences imposed upon juveniles tried as adults, for such mandatory sentences can never properly take into account the effect of juvenile differences on the culpability of the juvenile and, thus, the proportionality of the sentence imposed. See Miller v. Alabama, supra, 132 S.Ct. at 2470 (“[w]e have by now held on multiple occasions that a sentencing rule permissible for adults may not be so for children”). After all, a juvenile's decreased culpability neither depends on the crime charged; see id., at 2465 (“[N]one of what [Graham ] said about children—about their distinctive [and transitory] mental traits and environmental vulnerabilities—is crime-specific. Those features are evident in the same way, and to the same degree, when [as in both cases here] a botched robbery turns into a killing.”); nor the particular penalty imposed. See id., at 2471 (“Our decision does not categorically bar a penalty for a class of offenders or type of crime—as, for example, we did in Roper or Graham. Instead, it mandates only that a sentencer follow a certain process—considering an offender's youth and attendant characteristics—before imposing a particular penalty. And in so requiring, our decision flows straightforwardly from our precedents: specifically, the principle of Roper, Graham , and our individualized sentencing cases that youth matters for purposes of meting out the law's most serious punishments.”).
It is therefore clear to me that the rationales of Roper, Graham , and Miller mandate that a sentencing court be permitted to give effect to the protections afforded by the eighth amendment with individualized, fully discretionary sentencing of juvenile offenders, which include, if warranted, the ability to depart downward from a mandatory minimum sentence. The United States Supreme Court's jurisprudence requiring individualized, fully discretionary sentencing applies to all juvenile offenders with equal force, regardless of the crimes for which such offenders are convicted and the punishments associated therewith.
D
The Supreme Court of Iowa has concluded, as I would, that the rationales of Roper, Graham , and Miller render unconstitutional all mandatory minimum sentences imposed on juvenile offenders. State v. Lyle, supra, 854 N.W.2d at 403–404. The defendant in Lyle, a juvenile at the time of his offense, had been charged as an adult with second degree robbery after a fight in a high school parking lot. Id. He challenged an Iowa statute that precluded his eligibility for parole until he had served a minimum of seven-tenths of the sentence imposed. Id. The Supreme Court of Iowa held that the mandatory minimum sentence statute, as applied to juveniles, violated the juvenile defendant's right to be free from cruel and unusual punishment pursuant to the Iowa constitution, which mirrors the language of the federal eighth amendment in that it provides that “[e]xcessive bail shall not be required; excessive fines shall not be imposed, and cruel and unusual punishment shall not be inflicted.” (Internal quotation marks omitted.) Id., at 383. In coming to its conclusion, the court “follow[ed] the federal analytical framework” for eighth amendment jurisprudence, though it relied upon the Iowa constitution's “prohibition against cruel and unusual punishment in reaching [its] conclusion.” Id., at 384.
Iowa's mandatory transfer statute required the defendant in Lyle to be tried and sentenced as an adult. Iowa's transfer statute, like Connecticut's, requires that juveniles charged with certain enumerated crimes be automatically tried and sentenced as adults. See General Statutes § 46b–127 ; Iowa Code Ann. § 232.8.1(c) (West 2015). Iowa's transfer scheme differs with Connecticut's, however, in that its automatic transfer provisions become applicable at age sixteen, compared with age fourteen in Connecticut, and that a defendant is empowered to challenge such transfer, compared with the defendant's inability to challenge such transfer in Connecticut. See General Statutes § 46b–127 ; Iowa Code Ann. § 803.5.2 (West 2015).
The Supreme Court of Iowa began by interpreting the precedents set by Roper, Graham , and Miller, particularly the framework under which to analyze the defendant's eighth amendment challenge to the mandatory minimum sentence. The court identified two lines of United States Supreme Court precedent: (1) cases addressing the proportionality of a sentence of imprisonment for a term of years given all the circumstances in a particular case; see, e.g., Harmelin v. Michigan, supra, 501 U.S. 957, 111 S.Ct. 2680; Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) ; and (2) cases implementing proportionality by imposing a categorical restriction on a certain type of punishment, on the basis of (A) the nature of the offense; see, e.g., Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) ; (B) the characteristics of the offender; see, e.g., Roper v. Simmons, supra, 543 U.S. 551, 125 S.Ct. 1183; Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) ; or, (C) as in Graham and Miller, the sentencing practice implicating the characteristics of the offender. State v. Lyle, supra, 854 N.W.2d at 385–86; see Graham v. Florida, supra, 560 U.S. at 61, 130 S.Ct. 2011 (“[H]ere a sentencing practice itself is in question. This case implicates a particular type of sentence as it applies to an entire class of offenders ....”); see also Miller v. Alabama, supra, 132 S.Ct. at 2471. The court in Lyle categorized the defendant's challenge to the mandatory minimum sentence, as applied to juveniles, into that last category: “a categorical challenge to a [term of years] sentence based on the underlying sentence practice.” State v. Lyle, supra, at 385.The court in Lyle then synthesized Roper, Graham , and Miller, as well as its own jurisprudence interpreting those three cases. See State v. Ragland, 836 N.W.2d 107, 109–10 (Iowa 2013) (unconstitutional sixty year sentence); State v. Pearson, 836 N.W.2d 88, 96 (Iowa 2013) (unconstitutional thirty-five year sentence); State v. Null, 836 N.W.2d 41, 45 (Iowa 2013) (unconstitutional fifty-two year sentence). Though recognizing that the sentences involved in Roper , Graham , and Miller had been the state's harshest penalties—the death penalty and life without parole—the Supreme Court of Iowa interpreted Roper, Graham , and Miller as requiring the invalidation of “a sentence with parole that is the practical equivalent of a life sentence without parole.” (Emphasis added.) State v. Ragland, supra, at 121. In its view, the rationales of Roper, Graham , and Miller did not cease to apply merely because of the label attached to any particular sentence: “[T]here was no meaningful difference between a mandatory [life without parole] sentence—commanding the juvenile to spend the entirety of his life in prison and then die there—and a sentence styled as a mere mandatory term of years that, as a practical matter, would obtain the same result.” State v. Lyle, supra, 854 N.W.2d at 395. The court continued: “While emerging neuroscience painted a compelling picture of the juvenile's diminished culpability ‘in the context of the death penalty and [life without parole] sentences, [we recognized that the same reasoning] also applies, perhaps more so, in the context of lesser penalties as well.’ ” Id., at 396, quoting State v. Pearson, supra, at 98.
It followed that, if the court in Lyle truly recognized the veracity of the rationales of Roper, Graham , and Miller, “children are constitutionally different from adults for purposes of sentencing” because of their diminished culpability; Miller v. Alabama, supra, 132 S.Ct. at 2464; with respect to sentences that fell short of the state's harshest sentences, the court must also recognize these same rationales during “the sentencing of juveniles according to [other] statutorily required mandatory minimums [because they, too, do] not adequately serve the legitimate penological objectives in light of the child's categorically diminished culpability.” State v. Lyle, supra, 854 N.W.2d at 398. “[T]he [United States] Supreme Court has emphasized [in Miller ] that nothing it has said [about juveniles] is ‘crime-specific,’ suggesting the natural concomitant that what it said is not punishment-specific either.” Id., at 399.
Therefore, the court in Lyle concluded, it was the defendant's status as a juvenile and not the sentence's label or length that triggered the constitutional protections of Roper, Graham , and Miller. “We must comply with the spirit of Miller ... and to do so requires us to conclude [that its] reasoning applies to even a short sentence that deprives the [sentencing] court of discretion in crafting a punishment that serves the best interests of the child and of society.” Id., at 402; see also Miller v. Alabama, supra, 132 S.Ct. at 2470 (“We have by now held on multiple occasions that a sentencing rule permissible for adults may not be so for children.... So if ... ‘death is different,’ children are different too. Indeed, it is the odd legal rule that does not have some form of exception for children.” [Citations omitted; emphasis in original.] ).
The court in Lyle, like the United States Supreme Court in Roper, Graham, and Miller, then analyzed the penological justifications for sentencing juveniles to mandatory terms, concluding that, “[s]imply put, attempting to mete out a given punishment to a juvenile for retributive purposes irrespective of an individualized analysis of the juvenile's categorically diminished culpability is an irrational exercise.” State v. Lyle, supra, 854 N.W.2d at 399. As for deterrence, “[i]f a juvenile will not engage in the kind of cost-benefit analysis involving the death penalty that may deter [him or her] from committing a crime, there is no reason to believe a comparatively minor sentence of a term of years subject to a mandatory minimum will do so.” Id. Finally, “[r]ehabilitation and incapacitation can justify criminally punishing juveniles, but mandatory minimums do not further these objectives in a way that adequately protects the rights of juveniles within the context of the constitutional protection from the imposition of cruel and unusual punishment for a juvenile.” (Emphasis in original.) Id.
“Mandatory minimum sentences for juveniles are simply too punitive for what we know about juveniles”; id., at 400; because “our constitutional prohibition against cruel and unusual punishment ... stirred by what we all know about child development demands some assurance that imprisonment is actually appropriate and necessary. There is no other area of the law in which our laws write off children based only on a category of conduct without considering all background facts and circumstances.” Id., at 401. Therefore, “[m]andatory minimum sentencing results in cruel and unusual punishment due to the differences between children and adults. This rationale applies to all crimes, and no principled basis exists to cabin the protection only for the most serious crimes.” Id., at 402.
The court in Lyle thus concluded that its mandatory transfer statute requiring certain juveniles to be tried as adults, combined with mandatory minimum sentences, did not allow judges “to carefully consider all of the circumstances of each case to craft an appropriate sentence and give each juvenile the individual sentencing attention [he or she] deserve[s] and our constitution demands.” Id., at 403. The court in Lyle interpreted Graham and Miller as “properly read to support a new sentencing framework that reconsiders mandatory sentencing for all children.” Id., at 402. Allowing a sentencing court to depart downward from a mandatory minimum sentence, the court reasoned, “carries with it the advantage of simultaneously being more flexible and responsible to the demands of justice than outright prohibition of a particular penalty while also providing real and substantial protection for the offender's right to be sentenced accurately according to [the juvenile's actual] culpability and prospects for rehabilitation.” Id., at 386.
Finally, the court concluded by noting that its decision did not prohibit the imposition of sentences set forth by the legislature. Contrary to claims that invalidation of mandatory minimum sentences imposed on juveniles would cause upheaval in the criminal courts, “juveniles can still be sentenced to long terms of imprisonment, but not mandatorily.” Id., at 401. “[T]he holding in this case does not prohibit judges from sentencing juveniles to prison for the length of time identified by the legislature for the crime committed, nor does it prohibit the legislature from imposing a minimum time that youthful offenders must serve in prison before being eligible for parole. [The constitution] only prohibits the one-size-fits-all mandatory sentencing for juveniles. Our constitution demands that we do better for youthful offenders—all youthful offenders, not just those who commit the most serious crimes.” Id., at 403. The court thus ordered the resentencing of the defendant in Lyle “so a judge can at least consider [another] sentencing option....” Id. “On remand, judges will do what they have taken an oath to do. They will apply the law fairly and impartially, without fear. They will sentence those juvenile offenders to the maximum sentence if warranted and to a lesser sentence if warranted.” Id., at 404.
II
Having set forth the relevant precedent, I now turn to the analysis proffered by the majority. The majority begins by discussing the well established principle that, in sentencing, juvenile offenders are constitutionally different from adults because of their lesser culpability. The majority then, however, distinguishes Roper, Graham , and Miller from the present case, concluding that there was no eighth amendment violation because “[t]he defendant's sentences not only were far less severe than the sentences at issue in Roper, Graham and Miller, but [they also] were consistent with the principle of proportionality at the heart of the eighth amendment protection because the mandatory minimum requirements, while limiting the trial court's discretion to some degree, still left the court with broad discretion to fashion an appropriate sentence that accounted for the defendant's youth and immaturity when he committed the crimes.” The majority then undertakes an analysis of the defendant's eighth amendment claim that is neither a gross disproportionality analysis nor a categorical analysis.
I respectfully disagree with the majority opinion for several reasons. First, I disagree with the majority's conclusion that Roper, Graham , and Miller are distinguishable because neither the death penalty nor life without parole are at issue in the present case. Second, I disagree with the majority's contention that the trial court retained constitutionally sufficient discretion merely because the trial court retained discretion to sentence the defendant, Taylor G., to a longer term of imprisonment. Third, I would have analyzed this claim using the categorical approach set forth in Graham and followed in Miller by considering objective indicia of society's standards, as expressed in legislative enactments and state practice, and whether, in this court's own independent judgment, the punishment in question violates the constitution in light of the standards elaborated by controlling precedents and by the United States Supreme Court's understanding and interpretation of the eighth amendment's text, history, meaning, and purpose. See e.g., State v. Lyle, supra, 854 N.W.2d at 378; Ellmaker v. State, 329 P.3d 1253 (Kan.App.2014).
I address each of these points in turn.
A
I first disagree with the majority's conclusion that Roper, Graham, and Miller are distinguishable from the present case merely because the defendant's punishment—a term of years—is less severe than the sentences at issue in Roper, Graham , and Miller (i.e., not the death penalty or life without parole). The majority explains that, in Roper, Graham , and Miller, the United States Supreme Court “concluded there was a constitutional violation because the sentences consisted of death or life imprisonment without the possibility of parole, the two most severe punishments courts are able to impose.” I respectfully disagree. In Roper, Graham , and Miller, the court concluded that there had been constitutional violations because “ ‘objective indicia of society's standards, as expressed in legislative enactments and state practice’ ” determined that there was a “national consensus against the sentencing practice at issue”—namely, the practice of sentencing juveniles pursuant to sentencing schemes crafted for adults—and because the court, in its independent judgments and guided by “ ‘the standards elaborated by controlling precedents and by the [c]ourt's own understanding and interpretation of the [e]ighth amendment's text, history, meaning, and purpose,’ ” determined that the punishments at issue violated the constitution. Graham v. Florida, supra, 560 U.S. at 61, 130 S.Ct. 2011.
Roper, Graham , and Miller did not hinge their analyses of the eighth amendment's protections solely on the severity of the punishment involved. See id. (“a threshold comparison between the severity of the penalty and the gravity of the crime does not advance the analysis”). To be sure, “the severity of the punishment in question”; id., at 67, 130 S.Ct. 2011; informed the analysis, but it was not dispositive as the majority would suggest. The court in Miller expressly noted that the trigger for heightened eighth amendment protection in these juvenile cases is not the severity of the punishment, but rather the “ ‘offender's age’....” Miller v. Alabama, supra, 132 S.Ct. at 2462, citing Graham v. Florida, supra, 560 U.S. at 76, 130 S.Ct. 2011; see State v. Allen, 289 Conn. 550, 585, 958 A.2d 1214 (2008) (“[t]he eighth amendment affords heightened significance to the ‘diminished culpability’ of juveniles”); see also Miller v. Alabama, supra, at 2470 (“We have by now held on multiple occasions that a sentencing rule permissible for adults may not be so for children.... So if ... ‘death is different,’ children are different too. Indeed, it is the odd legal rule that does not have some form of exception for children.” [Citations omitted; emphasis in original.] ). The court in Miller expressly stated that “none of what [Graham ] said about children—about their distinctive (and transitory) mental traits and environmental vulnerabilities—is crime-specific.” Miller v. Alabama, supra, at 2465.In my view, because it is the juvenile offender's age that triggers the United States Supreme Court's specific eighth amendment analysis and heightened eighth amendment protection, and because neither the characteristics of juveniles nor the eighth amendment's protections differ on the basis of the crime charged, it follows that the eighth amendment's protections with respect to juvenile offenders do not differ on the basis of the punishment imposed. “[T]he Supreme Court has emphasized [in Miller ] that nothing it has said [about juveniles] is ‘crime-specific,’ suggesting the natural concomitant that what it said is not punishment-specific either.” State v. Lyle, supra, 854 N.W.2d at 399, quoting Miller v. Alabama, supra, 132 S.Ct. at 2465. A juvenile's traits bear on his or her culpability regardless of the crime charged, which then bears on the proportionality of the sentence imposed: “[a juvenile's] features are evident in the same way, and to the same degree” regardless of the crime committed. Miller v. Alabama, supra, at 2465. As the Supreme Court of Iowa concluded, I, too, would conclude that the same is true regardless of the range of punishment to which a juvenile is exposed. See State v. Lyle, supra, at 402 (recognizing its duty to “comply with the spirit of Miller ... and [noted that doing] so requires us to conclude [its] reasoning applies to even a short sentence that deprives the [sentencing] court of discretion in crafting a punishment that serves the best interests of the child and of society”). Neither the crime, nor its mandatory minimum punishment should bear on a sentencing court's ability to comply with the eighth amendment or, therefore, a sentencing court's discretion to fashion a constitutionally permissible sentence, even if that sentence departs downward from a mandatory minimum sentence.
Nevertheless, the majority concludes that the sentence in the present case, not being one of those two most severe penalties, does “not implicate the factors deemed unacceptable in Roper ....” The majority then defines the “factors” the court in Roper “deemed unacceptable” in imposing the death penalty on juvenile offenders as “the futility of rehabilitation and the permanent deprivation of all hope to become a productive member of society, both of which occur when the court is prevented from taking a second look at the incarcerated offender's demonstrated growth and maturity.” I respectfully disagree with the majority's analysis of Roper.
The court in Roper utilized the “factors” identified by the majority—factors illustrating why the death penalty is so severe—in discussing why, categorically, a sentencing court's discretionary imposition of the death penalty on a juvenile offender should be barred. The sentencing scheme at issue in Roper was not mandatory in nature, but rather a discretionary one that allowed a judge or jury to decide, on a case-by-case basis, that a harsher—indeed, the harshest—penalty should be imposed on a juvenile defendant despite the defendant's youth. The court concluded that, although sentencing courts could undertake case-by-case analyses before imposing the death penalty on juvenile offenders, and although sentencing courts generally “seek with diligence and professionalism to take account of the human existence of the offender and the just demands of a wronged society”; Graham v. Florida, supra, at 560 U.S. at 77, 130 S.Ct. 2011; a categorical bar against imposition of the death penalty was necessary because even “expert psychologists [struggle] to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Roper v. Simmons, supra, 543 U.S. at 573, 125 S.Ct. 1183; id., at 572–73, 125 S.Ct. 1183 (“[t]he differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability”).
The court in Roper thus deemed unacceptable any likelihood that, despite a discretionary sentencing scheme that allowed a sentencing court to impose the most severe penalty—the death penalty—after a careful review of all of the particular circumstances in a particular case, a sentencing court could still get it wrong. Put another way, categorically barring the discretionary imposition of the harshest penalty on juveniles was constitutionally necessary because, although discretionary sentencing works most of the time, the court's confidence in the sentencing court's ability to accurately and correctly gauge the juvenile's culpability in every case in which it discretionarily imposed the harshest penalty was outweighed by the risk of disproportionate punishment imposed on a juvenile in even one case, given the severity of the penalty and the difficulty in accurately identifying a juvenile's culpability. Thus, the “factors” cited by the majority militated in favor of removing the discretion of any sentencing court to impose the upper limit of the range to which a juvenile is exposed, the state's harshest penalty, in order to avoid the possibility of a disproportionate sentence.
It does not follow, however, that the lack of such “factors” in the present case—because the harshest penalties are not at issue and thus there is no impermissible risk of discretionarily imposing the harshest penalties—means that under Roper, Graham , or Miller the United States Supreme Court would refuse to vest sentencing courts with the discretion to modify mandatory minimum sentences downward in order to avoid the impermissible imposition of overly harsh, even if not the harshest, penalties. The court's cases do not support such a conclusion. This case is not about usurping discretion from the sentencing court, as was the case in Roper and Graham, to impose a penalty at the upper limits of the total penalty to which the defendant is already exposed; instead, this case is about granting a sentencing court the discretion that it otherwise lacks to impose a lesser sentence than the sentence to which the defendant is mandatorily exposed by the legislature.
In other words, where Roper prevents a sentencing court from getting it wrong by imposing the harshest penalty in a discretionary sentencing scheme, Miller empowers a sentencing court to get it right by vesting it with the discretion to impose a lesser penalty in a mandatory sentencing scheme. See Miller v. Alabama, supra, 132 S.Ct. at 2469 n. 8 (“Our holding requires fact-finders ... to take into account the differences among defendants and crimes. By contrast, [mandatory] sentencing schemes ... altogether preclude considering [the] factors [of youth].”). In my view, the United States Supreme Court's categorical bans on species of punishments, despite the availability of discretionary sentencing in those cases, only bolsters the argument for discretionary sentencing in the present case: the court would not have taken the harshest penalty off the table and then have precluded a sentencing court's ability, on a case-by-case basis, to exercise any discretion in the other direction—the direction of a lesser penalty—should the sentencing court determine, after carefully undertaking an analysis of the juvenile's maturity, that a lesser sentence were warranted in order to avoid an eighth amendment violation.The majority does state that “deprivation of liberty for any amount of time, including a single year, is not insignificant....” I agree. See Gonzalez v. Commissioner of Correction, 308 Conn. 463, 482–83, 68 A.3d 624 (2013) (“there is nothing more critical than the denial of liberty, even if the liberty interest is one day in jail”). The majority thereafter implies, however, that it cannot safeguard against the deprivation of liberty in this case because of the factual differences between the present case and Roper, Graham , and Miller. The majority implies that the rationales of Roper, Graham , and Miller —that juvenile offenders are constitutionally different than adults because of their decreased culpability—apply with less force when the sentence imposed is not the death penalty or life without parole. I respectfully disagree. See part I of this opinion; see also Furman v. Georgia, 408 U.S. 238, 329, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Marshall, J., concurring) (“[p]erhaps the most important principle in analyzing ‘cruel and unusual’ punishment questions is one that is reiterated again and again in the prior opinions of the [c]ourt: i.e., the cruel and unusual language ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society’ ”); State v. Lyle, supra, 854 N.W.2d at 396 (“emerging neuroscience paint[s] a compelling picture of the juvenile's diminished culpability ‘in the context of the death penalty and [life without parole] sentences, [and] it also applies, perhaps more so, in the context of lesser penalties as well’ ”), quoting State v. Pearson, supra, 836 N.W.2d at 98.
If this court truly recognizes the veracity of the rationales of Roper, Graham , and Miller —that “children are constitutionally different from adults for purposes of sentencing” because of their diminished culpability; Miller v. Alabama, supra, 132 S.Ct. at 2464; then this court must also recognize these same rationales in the present case despite the fact that the sentence at issue is not the harshest sentence possible. The discretionary sentencing requirement set forth in Miller, meant to meaningfully account for the mitigating qualities of youth, is equally applicable to all mandatory sentences, regardless of their label or length, “which by definition remove a judge's or jury's discretion....” Id., at 2471 n. 10.
Applying Miller to the present case would not preclude sentencing courts from imposing sentences on juvenile offenders that adhere to the once mandatory sentences propounded by the legislature. Applying Miller merely permits sentencing courts to do so, or not, in their full discretion and in accordance with our eighth amendment jurisprudence giving effect to what we know about juveniles.
B
I next disagree with the majority's conclusion that the defendant's eighth amendment challenge fails because the sentencing court retained constitutionally sufficient discretion “to choose from a wide range of sentencing possibilities that equaled or exceeded the minimum term of imprisonment.” A sentencing court's mere ability to impose a sentence harsher than the mandatory minimum does not satisfy the mandates of Roper, Graham , and Miller, which require that a sentencing court take into consideration a juvenile's unique characteristics in each case and, if warranted, depart downward from a mandatory minimum sentence in order to give effect to its consideration of the juvenile's youth. Moreover, it does not comport with our state constitution, which affords greater rights for eighth amendment purposes than the federal constitution.
The majority claims that the sentencing court had sufficient discretion to take the defendant's qualities of youth into account because it could have sentenced the defendant to a greater penalty than that to which he had been sentenced. This argument—that discretion to sentence above the floor renders the floor less important under the constitution—has already been explicitly rejected by the United States Supreme Court in an analogous context.
In Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 2160, 186 L.Ed.2d 314 (2013), the United States Supreme Court discussed whether the sixth amendment required a prosecutor to prove, beyond a reasonable doubt, facts with respect to a sentencing enhancement that increased the mandatory minimum sentence to which a defendant was already exposed. The court in Alleyne noted that, in a prior case, it had drawn “a distinction between ‘facts increasing the defendant's minimum sentence and facts extending the sentence beyond the statutory maximum,’ ” concluding that facts increasing the minimum sentence by way of a sentencing enhancement needed only to be proven by a preponderance of the evidence. Id., at 2158, quoting Harris v. United States, 536 U.S. 545, 566, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). In Harris, the court had reasoned that, where the facts authorizing the defendant's original sentencing range, without regard to any sentencing enhancements, were proven beyond a reasonable doubt, a sentencing court, in its discretion, could impose a sentence in the middle of such range. Harris v. United States, supra, at 563, 122 S.Ct. 2406. Accordingly, under Harris, if a sentencing enhancement, proven only by a preponderance of the evidence, subsequently raised the mandatory minimum sentence and such minimum were in the middle of the range already authorized by the original sentencing range, there would be no sixth amendment violation because the new sentencing range “merely limited the judge's ‘choices within the authorized range.’ ” Alleyne v. United States, supra, at 2157–58, quoting Harris v. United States, supra, at 567, 122 S.Ct. 2406.
The court in Alleyne held that Harris had been wrongly decided. Alleyne v. United States, supra, 133 S.Ct. at 2158. The court concluded that, pursuant to the sixth amendment, the floor of a sentencing range mattered just as much to the defendant as the ceiling in giving effect to the protections afforded by the constitution. See id., at 2161–62 (“It is impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime.... [It is an] obvious truth that the floor of a mandatory range is as relevant to wrongdoers as the ceiling.” [Citations omitted.] ). Although raising the floor “merely limited the judge's choices within the authorized range”; id., at 2157–58; it was “impossible to dispute that ... increasing the legally prescribed floor aggravate [s ] the punishment.... Elevating the low-end of a sentencing range heightens the loss of liberty associated with the crime: the defendant's ‘expected punishment has increased as a result of the narrowed range’ and ‘the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish. ’ ” (Citations omitted; emphasis altered.) Id., at 2161.
In the present case, the majority agrees that “[a]ll mandatory minimum sentences limit, to some extent, the discretion of courts to craft a sentence that accounts for the special characteristics of the offender and the offense. Even mandatory minimum sentences of one or two years limit the discretion of courts by precluding the imposition of lesser sentences on offenders regarded as deserving of a lesser penalty because of compelling mitigating factors.” Nevertheless, the majority reasons that, because mandatory minimum sentences allow for the imposition of longer sentences, adult courts sentencing juvenile offenders have sufficient discretion “to choose from a wide range of sentencing possibilities that [equal] or [exceed] the minimum term of imprisonment.” According to the majority, that the sentencing court in the present case chose the most lenient sentence possible, even though “the defendant was subject to a maximum sentence of fifty-five years incarceration on all charges,” does not indicate that the defendant was subjected to cruel and unusual punishment.
The sentencing court rejected this claim in its entirety:
“[The Prosecutor]: And your discretion overall, Judge, is ten to fifty [years].
“The Court: I don't know—I'm not certain whether looking at other charges is—as sort of extending my discretion is an appropriate analysis though. If I'm looking at the constitutionality of a sentence available under a particular charge, to say that my discretion has only been marginally narrowed, because there's other charges that I could give consecutive time on, might not be on the mark.”
The majority's logic did not prevail in the context of the sixth amendment; see Alleyne v. United States, supra, 133 S.Ct. at 2162–63 (rejecting analogous argument); it follows that, with respect to juveniles, it cannot prevail here, in the context of the eighth amendment. The mandatory transfer statute automatically transferring the defendant from juvenile court—where the court had no sentencing floor—to adult court—where a sentencing floor of ten years of incarceration was automatically imposed without regard to the defendant's individual characteristics—raised the floor of the sentencing range and “ ‘require[d] the judge to impose a higher punishment than he might wish.’ ” Id., at 2161. This violates the mandates of the United States Supreme Court's juvenile sentencing jurisprudence of Roper, Graham , and Miller. See Miller v. Alabama, supra, 132 S.Ct. at 2466 (“[T]he mandatory penalty schemes at issue here prevent the sentencer from taking account of these central considerations [of youth]. By removing youth from the balance—by subjecting a juvenile to the same ... sentence applicable to an adult—these laws prohibit a sentencing authority from assessing whether the [sentence] proportionately punishes a juvenile offender.”); see also id., at 2471 n. 10 (“mandatory sentencing schemes ... by definition remove a judge's or a jury's discretion”).
Imposing a floor to which the juvenile defendant would not otherwise have been subject, despite Miller 's mandate to consider “an offender's youth and attendant characteristics—before imposing a particular penalty”; Miller v. Alabama, supra, 132 S.Ct. at 2471; “alter[s] the prescribed range of sentences to which a defendant is exposed and do[es] so in a manner that aggravates the punishment.” Alleyne v. United States, supra, 133 S.Ct. at 2158. In both Alleyne and the present case, the sentencing courts desired and yet were precluded from sentencing their defendants below the newly raised sentencing floors. This “[elevation of] the low-end of a sentencing range heightens the loss of liberty associated with the crime”; id., at 2161 ; and renders such sentences unconstitutional.
I would remand this case for resentencing and allow the sentencing court to depart downward from the mandatory minimum sentence it was constrained to impose. The United States Supreme Court's jurisprudence empowers a sentencingcourt to depart downward from a mandatory minimum sentence when sentencing a juvenile offender. The court, in Harmelin v. Michigan, supra, 501 U.S. at 996, 111 S.Ct. 2680, concluded that the eighth amendment contained no guarantee of proportionality with respect to a mandatory minimum sentence and that a sentencing court could not depart downward from a mandatory minimum sentence. Miller, however, explicitly carved out an exception to this rule for juvenile offenders. “Harmelin had nothing to do with children and did not purport to apply its holding to the sentencing of juvenile offenders. We have by now held on multiple occasions that a sentencing rule permissible for adults may not be so for children.... So if (as Harmelin recognized) ‘death is different,’ children are different too.... Our ruling thus neither overrules nor undermines nor conflicts with Harmelin. ” (Citations omitted.) Miller v. Alabama, supra, 132 S.Ct. at 2470. After Miller, sentencing courts were therefore empowered to depart downward from mandatory minimum sentences imposed on juveniles, which, in some cases, may be the only way a sentence imposed on a juvenile will comport with the eighth amendment. Cf. People v. Hill, 192 Mich.App. 102, 105, 119, 480 N.W.2d 913 (1991) (“[t]he mandatory minimum is a barrier; it is not a [straightjacket]”), appeal denied, 439 Mich. 922, 480 N.W.2d 909 (1992).
In the present case, in light of the remarks of the sentencing court set forth more fully in part III of this opinion, it is reasonable to conclude that the sentencing court would have departed downward from the mandatory minimum sentence. The sentencing court stated that, “based on its reading of [Roper, Graham , and Miller ] and those cases' interpretation of the eighth amendment, [the sentencing court] therefore feels constrained pursuant to those mandatory minimum sentences to impose a sentence in this case which is consistent with the provisions of those mandatory statutes.” In my view, the eighth amendment empowers the sentencing court in the present case to depart downward from the mandatory minimum sentence; this court should accordingly remand the case for resentencing.
C
Lastly, I disagree with the framework applied by the majority to resolve the defendant's eighth amendment claim. The majority does not fully undertake either a gross disproportionality analysis or a categorical analysis, though its analysis appears to lean more toward a gross disproportionality analysis of the defendant's sentence, “comparing the gravity of the offense and the severity of the sentence.” Graham v. Florida, supra, 560 U.S. at 60, 130 S.Ct. 2011; see also State v. Higgins, supra, 265 Conn. at 62–65, 826 A.2d 1126 (applying same analysis). I respectfully disagree with the majority's analysis of the defendant's claim.
As discussed previously in part I D of this opinion, there are generally two lines of eighth amendment jurisprudence: (1) cases addressing the proportionality of a term of years sentence given all the circumstances in a particular case; and (2) cases implementing proportionality by imposing a categorical restriction on a certain type of punishment, on the basis of (A) the nature of the offense, (B) the characteristics of the offender, or, (C) as in Graham and Miller, the sentencing practice implicating the characteristics of the offender. State v. Lyle, supra, 854 N.W.2d at 385–86; see Graham v. Florida, supra, 560 U.S. at 61, 130 S.Ct. 2011 (“[H]ere a sentencing practice itself is in question. This case implicates a particular type of sentence as it applies to an entire class of offenders ....”); see also Miller v. Alabama, supra, 132 S.Ct. at 2471.
A claim under the first category requires gross disproportionality review which “compar[es] the gravity of the offense and the severity of the sentence.” Graham v. Florida, supra, 560 U.S. at 60, 130 S.Ct. 2011. This type of review is appropriate if no categorical eighth amendment restrictions apply. See Adams v. State, 288 Ga. 695, 701, 707 S.E.2d 359 (2011). A claim under the second category—a categorical challenge to a certain type of punishment on the basis of the sentencing practice—requires a different type of review that includes an analysis of objective indicia of society's standards, as expressed in legislative enactments and state practice, and consideration, in this court's own independent judgment, of whether the punishment in question violates the constitution in light of the standards elaborated by controlling precedents and by the Supreme Court's understanding and interpretation of the eighth amendment's text, history, meaning, and purpose. See Miller v. Alabama, supra, 132 S.Ct. at 2470.
The majority's analysis appears to blend the two standards, though it leans more toward gross disproportionality review. After describing the defendant's crime, the majority analyzes the severity of the defendant's sentence, concluding that, “[i]n Graham, the court made clear that juveniles convicted of nonhomicide crimes, such as the crimes committed by the defendant in the present case, are not immune from very harsh punishments ... merely because of their youth when they committed the crimes.... [I]t is clear that the court in Graham did not disapprove of lengthy sentences for juvenile offenders convicted of nonhomicide crimes.... In the present case, the trial court's decision to impose a sentence for first degree sexual assault that did not exceed the mandatory minimum and to allow the sentences for fourth degree sexual assault and risk of injury to be served concurrently with the sentence for first degree sexual assault was based on its consideration of the defendant's relative youth and immaturity when he committed the crimes.... The sentences were therefore consistent with the principle of individualized sentencing and proportionality articulated in Roper, Graham and Miller, and did not constitute cruel and unusual punishment under the eighth amendment.” (Citations omitted.) If the majority indeed applied a gross disproportionality analysis, however, it did not indicate whether its review of the crime committed and the sentence imposed led to an inference of gross disproportionality, as is required by our jurisprudence. See State v. Higgins, supra, 265 Conn. at 63–65, 826 A.2d 1126 (comparing sentence under review with sentences for other crimes, both within this jurisdiction and in other states, only if review of crime and sentence led to inference of gross disproportionality).
Moreover, while the case specific gross disproportionality analysis set forth in Harmelin might have been appropriate for an adult's as applied eighth amendment challenge, it is not appropriate in the present case. See Miller v. Alabama, supra, 132 S.Ct. at 2470 (“Harmelin had nothing to do with children and did not purport to apply its holding to the sentencing of juvenile offenders.... So if [as Harmelin recognized] ‘death is different,’ children are different too. Indeed, it is the odd legal rule that does not have some form of exception for children.” [Citations omitted; emphasis in original.] ); Graham v. Florida, supra, 560 U.S. at 77, 130 S.Ct. 2011 (“Another possible approach would be to hold that the [e]ighth [a]mendment requires courts to take the offender's age into consideration as part of a case-specific gross disproportionality inquiry, weighing it against the seriousness of the crime.... [E]ven if we were to assume that some juvenile nonhomicide offenders might have ‘sufficient psychological maturity, and at the same time demonstrat[e] sufficient depravity,’ ... it does not follow that courts taking a case-by-case proportionality approach could with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many that have the capacity for change.” [Citation omitted.] ). The challenge in Miller is identical to the challenge in the present case: “The cases before us implicate ... categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty.” Miller v. Alabama, supra, at 2463.
If, instead of performing a gross disproportionality review, the majority performed a categorical review, it omitted any analysis of objective indicia of society's standards, as expressed in legislative enactments and state practice, and consideration, in this court's own independent judgment, of whether the punishment in question violates the constitution in light of the standards elaborated by controlling precedents and by the Supreme Court's understanding and interpretation of the eighth amendment's text, history, meaning, and purpose. See Graham v. Florida, supra, 560 U.S. at 61, 130 S.Ct. 2011. If the majority had performed such a review, it would have shown that our evolving standards no longer support mandatory sentencing schemes for juvenile offenders.
This case is functionally identical to Miller and Lyle, in which both courts identified the challenges as categorical and analyzed the factors including objective indicia of society's standards, and the like. See Miller v. Alabama, supra, 132 S.Ct. at 2463 (“categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty”); State v. Lyle, supra, 854 N.W.2d at 385 (“a categorical challenge to a term-of-years sentence based on the underlying sentence practice”).
I therefore respectfully disagree with the majority's analysis of the defendant's claim.
III
The sentencing of the defendant in the present case illustrates all of the reasons why this court should adhere to the rationales of Roper, Graham, and Miller and allow sentencing courts to depart downward from mandatory minimum sentences when sentencing juvenile offenders.
The defendant was fourteen and fifteen years old during the series of events leading up to his convictions. A clinical forensic psychologist testified at the defendant's sentencing, noting that the defendant had had a difficult upbringing based on “the number of disruptions in it, [and] the number of traumatic events that occurred in it....” The psychologist detailed the defendant's placements in foster care beginning at age two, and allegations that the defendant had been physically abused, neglected, and mistreated. The sentencing court agreed that this was “another case, it sounds to me, where the abused becomes the abuser.”
As described in Graham and Miller, and with hindsight as a lens, the sentencing court heard testimony about how the defendant might have “impair[ed] the quality of [his own] representation.” See Graham v. Florida, supra, 560 U.S. at 78, 130 S.Ct. 2011. The defendant rejected multiple plea offers, exhibiting a “[d]ifficulty in weighing long-term consequences; a corresponding impulsiveness; and reluctance to trust defense counsel ... [that] lead to [his] poor decisions.” Id.; see Miller v. Alabama, supra, 132 S.Ct. at 2468 (“[mandatory sentencing ignores the reality] that [the juvenile offender] might have been charged and convicted of a lesser offense if not for incompetencies associated with youth-for example, his inability to deal with ... prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys ” [emphasis added] ).
The defendant in the present case may indeed have impaired his own representation by virtue of his youth: the defendant's mother noted that “[the defendant had been] offered a plea deal by [the prosecutor] and he refused that plea deal. What person in their right mind doesn't take a year and a half, two years knowingly knowing they could get fifty-five years? Does that make any sense to anybody? But I could not talk him into taking a plea deal. No one could talk him into taking it....” The defendant's father also mentioned the defendant's rejection of the plea offers: “[The defendant] had a couple of chances of taking the plea deals. I wish he took them now.” The defendant's attorney addressed the issue “about there being an offer and [the defendant] rejecting it, and I would say that is precisely the problem with having fourteen year olds and fifteen year olds in adult court facing the consequences of twenty, twenty-five years maximum incarceration on one count with ten years mandatory minimums. They're idiots. They're kids. They don't make rational decisions. If they did, we wouldn't be here.”
The defendant, armed with the hindsight that comes only after a few years of maturity, yet still only nineteen years old, addressed the sentencing court: “Your Honor, I'd like to point out that at the time that I was accused of this stuff, I was a kid. I still am a kid. I'm sorry. I was offered two years and a half or however long it was and thinking about that is, like—thinking about it now is crazy, but it was just back then I was so focused on the fact that I was going to become some kind of monster. I was going to become a sex offender. I was going to become someone that you Google online and there they are. And I didn't want to become that type of person because that's not who I am. I was offered two years and three months and now I'm facing ten years. I mean, it's just such a huge gap. It's not fair. That is my whole young life. I mean, I'm sorry this all happened, but I didn't want to go to a trial. I mean, I wanted to prove my innocence, Your Honor, and I wasn't found innocent. I don't know what else to say.”Even if the sentencing court had specifically found that the defendant in the present case had materially impaired the quality of his own defense because of his youth, the majority expressly prevents the sentencing court from acting on such a finding. The sentencing court expressly noted that “we can ... disagree on what youth means, [but] I think we would all agree that the defendant is not particularly experienced in the criminal justice system and the decision that he [made to go to trial instead of plead] was a difficult one.” The majority, instead, acquiesces to the realities identified in Graham and Miller, and exhibited in the present case, that a juvenile defendant very well might have been charged with a lesser offense or received or taken a plea if he or she had not failed to adequately aid in his or her defense because of the incompetencies of youth.
Even if the defendant had not been offered a plea deal, the appropriateness of his punishment cannot be established by reference to the judgment of our legislature. This court should not acquiesce to the use of mandatory minimum sentences on juvenile offenders because such minimums were crafted to punish adult offenders. This violates the United States Supreme Court's mandate “that a sentencer follow a certain process—considering an offender's youth and attendant characteristics—before imposing a particular penalty.” Miller v. Alabama, supra, 132 S.Ct. at 2471; see also id., at 2473 (imposition of mandatory penalties on juveniles having been mandatorily transferred to adult court “ ‘does not indicate that the penalty has been endorsed through deliberate, express, and full legislative consideration’ ”); Graham v. Florida, supra, 560 U.S. at 67, 130 S.Ct. 2011 (“[T]he fact that transfer ... laws make [adult sentences] possible for some juvenile nonhomicide offenders does not justify a judgment that many [s]tates intended to subject such [juvenile] offenders to [adult] sentences. ... [States with these transfer laws] should not be treated as if they have expressed the view that the [adult] sentence is appropriate.” [Citation omitted.] ); State v. Lyle, supra, 854 N.W.2d at 403 (“[the constitution] prohibits the one-size-fits-all mandatory sentencing for juveniles”). Such mandatory sentences “overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender's objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe....” (Emphasis added.) Roper v. Simmons, supra, 543 U.S. at 573, 125 S.Ct. 1183. As the defendant's attorney noted, neither “justice [n]or anybody is served by taking a [thirteen year old] and fourteen year old boy and saying to him that you have to be incarcerated as an adult in an adult correctional facility....”
With respect to the penological justifications of the defendant's sentence, the defendant, seemingly having lacked the maturity to prepare his defense, can hardly be said to have possessed the maturity to appreciate his actions at the time of the offenses. As for deterrence, juveniles “are less likely to take a possible punishment into consideration when making decisions [and][t]his is particularly so when that punishment is rarely imposed.” Graham v. Florida, supra, 560 U.S. at 72, 130 S.Ct. 2011; see also State v. Lyle, supra, 854 N.W.2d at 399 (“[A] deterrence rationale is actually even less applicable when the crime [and concordantly the punishment] is lesser [than that of Graham or Miller ]. If a juvenile will not engage in the kind of cost-benefit analysis involving the death penalty that may deter them from committing a crime, there is no reason to believe a comparatively minor sentence of a term of years subject to a mandatory minimum will do so.” [Emphasis in original.] ). Despite the rarity of the sentence imposed in the present case, despite the decreased deterring effect of this sentence on others, and despite the mandates of Roper, Graham , and Miller requiring this court to “take into account how children are different, and how those differences counsel against” a mandatory sentence; Miller v. Alabama, supra, 132 S.Ct. at 2469; the majority nevertheless finds no reason to question the soundness of the penological justification of the sentence. The majority precludes the sentencing court from considering that the defendant's sentence may do little to deter future juvenile offenders from committing the same crime.
According to the information provided in the defendant's appendix, for incarcerated juvenile offenders in 2013, the defendant was the youngest child, in terms of his age at the time of the offense, sentenced in this state for the crime charged.
As for retribution for the crime charged, the majority agrees that a juvenile's culpability may indeed be lesser than that of an adult. See Id., at 2465; Graham v. Florida, supra, 560 U.S. at 68, 130 S.Ct. 2011; Roper v. Simmons, supra, 543 U.S. at 571, 125 S.Ct. 1183. Nevertheless, the majority believes that, despite a juvenile offender's categorically decreased culpability, a sentencing court's discretion to impose a greater sentence than a mandatory minimum sentence sufficiently safeguards a juvenile's constitutional right to proportionate punishment. No matter that a sentencing court, to adequately proportion the punishment to the juvenile's actual culpability, wishes instead to depart downward from the mandatory minimum sentence.
The majority specifically focuses, however, on “the gravity of these offenses, the tender age of [the complainant] when they occurred, and the likelihood that [the complainant] will suffer from the effects of the abuse for the remainder of his life” in concluding that “the mandatory minimum sentences cannot be said to be disproportionate under Roper, Graham and Miller. ” While these considerations make a strong case for retribution, absent from this review is any mention of the defendant's characteristics, particularly the sentencing court's clear view that the defendant's characteristics weighed in favor of a lesser sentence. See Graham v. Florida, supra, 560 U.S. at 71, 130 S.Ct. 2011 (“ ‘[t]he heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender ’ ” [emphasis added] ), quoting Tison v. Arizona, supra, 481 U.S. at 149, 107 S.Ct. 1676.
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With respect to incapacitation, the majority precludes the sentencing court from being able to impose a sentence that would incapacitate the juvenile defendant on the basis of his actual proclivities for future crime in light of the characteristics of his youth and any demonstrated maturity brought on by just a few years of time. Instead, the majority acquiesces to a sentence that incapacitates the juvenile defendant on the basis of the length of time an adult should be incapacitated. See State v. Lyle, supra, 854 N.W.2d at 400 (“[a] close reading of Graham demonstrates the fact that the Supreme Court views the incapacitation rationale even more limitedly: the [c]ourt recognized Florida needed to incapacitate the youthful offender to the extent he ‘posed an immediate risk’ of ‘escalating [his] pattern of criminal conduct’ ”), quoting Graham v. Florida, supra, 560 U.S. at 73, 130 S.Ct. 2011.
As for rehabilitation, the majority maintains that the legislature's judgment for how to rehabilitate an adult offender, made at the outset of a juvenile offender's sentencing and without adjustment for such juvenile's traits, is penologically sound. Yet, the legislature's judgment about how to rehabilitate a juvenile offender, if made on the basis of the same judgment it uses for adult offenders, “is not appropriate in light of a juvenile nonhomicide offender's capacity for change and limited moral culpability.” Graham v. Florida, supra, 560 U.S. at 74, 130 S.Ct. 2011. Imposing the same adult sentence both ignores and perpetuates “ ‘[t]he inadequacy of the adult criminal system to address the emotional and developmental needs of teenagers [which] is substantiated through research demonstrating that youth incarcerated in adult facilities are more likely to reoffend and commit more serious crimes than youth who are tried and treated in the juvenile system for the same crimes.’ ” In re Tyriq T., 313 Conn. 99, 132, 96 A.3d 494 (2014) (Eveleigh, J., dissenting), quoting Conn. Joint Standing Committee Hearings, Judiciary, Pt. 19, 2007 Sess., p. 6096; see also State v. Lyle, supra, 854 N.W.2d at 400 (“[j]uvenile offenders who are placed in prison at a formative time in their growth and formation ... can be exposed to a life that can increase the likelihood of recidivism” [citation omitted; emphasis added] ).Unfortunately, despite the sentencing court's own “misgivings about the appropriateness of mandatory minimum sentences particularly within the context of the sentencing of juvenile offenders, the court [was] compelled, based upon its own reading of the relevant law”—a reading adopted by the majority—to impose a mandatory minimum sentence that wholly ignored the defendant's youth despite the fact that the United States Supreme Court “requires [us] to take into account how children are different” during the sentencing process. Miller v. Alabama, supra, 132 S.Ct. at 2469. With all that Roper, Graham , and Miller explained about how juveniles are constitutionally different than adults in the sentencing context, how juveniles, categorically, may be less culpable than adults, and how the eighth amendment “mandates only that a sentencer follow a certain process—considering an offender's youth and attendant characteristics—before imposing a particular penalty”; id., at 2471; the majority would hold that the sentencing court should be unable to adjust a juvenile defendant's sentence downward because of such juvenile's age, in the sentencing court's words, “even if the defendant's young age counseled in favor of a more lenient sentence.” (Emphasis in original.)
It is reasonable to conclude that the sentencing court would have departed downward from the mandatory minimum sentence in light of its remarks during sentencing. After hearing testimony, the sentencing court appeared unable to justify, penologically, the sentence the court felt constrained to impose on the basis of its reading of the law: “Regardless of the extent to which the state had discretion to act otherwise [in transferring the case to the regular criminal docket pursuant to General Statutes § 46b–127 ], regardless [of] the extent that the law should be different than it is, regardless of whether ... there should be an age at which offenders are ... brought to the adult court, whatever personal opinions may be on that subject, the court has ruled that there is no constitutional violation in the Connecticut sentencing scheme or in the fact that we do authorize the transfer of certain offenses committed by persons fourteen years ... and older to adult court.
“What is not before me now and what has never been before me is the question of whether ... this was a case that should have come here, should have stayed here. The fact is it came here, in the court's view ... so that issue was also really one that's beyond the court's ability or authority to effect. It ... is a decision that was made by [the state's attorney in] whom that discretion was placed.
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“I, frankly, don't know whether many judges have been previously in this state confronted with a situation where an offender as young as your client at the time of the offenses was in the position that I am now which is to be required to impose a sentence where there is a mandatory minimum like that which is at issue here. So a certain part of me shares your ... wish to be somewhere else, but this is what I have the duty to do.
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“[A]s I said in my ... memorandum, I have, frankly, certain misgivings about the appropriateness of mandatory minimum sentences in the juvenile setting .... So I'm not speaking out of school, so to speak, by saying that sitting up here now with a mandatory minimum in place doesn't make things easier. But there are ... rules that all of us have to follow and, under our system of law, the legislature enacts the laws and the courts are duty bound to enforce them....“Of course, with a mandatory minimum, there's a point at which I have to impose a certain sentence. It's always hard to say what would be the right number of years to compensate someone for what [the complainant] went through. There's no right number. There's no magic to this. But I still have to impose what the legislature tells me to impose. I don't have any other choice.... But, very candidly, in this case, the sentence that I have to impose, at least the minimum sentence I have to impose, is set by the legislature.
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“[D]espite my own misgivings about the appropriateness of mandatory minimum sentences particularly within the context of the sentencing of juvenile offenders and of the belief, as I am, that when the legislature enacted this mandatory minimum they were not contemplating, frankly, a fourteen year old, but probably someone significantly older, I still feel duty bound under my role in our criminal justice system to follow the rules and the sentences the legislature has enacted. But to the extent that people have asked me to be as lenient as I can, that's what I'm being. I'm being as lenient as I can. ” (Emphasis added.)
The sentencing court's words speak volumes, eloquently focusing our attention on the inequities, of a constitutional magnitude, that arise when we treat juvenile offenders as adults. In my view, these words amount to a finding that the sentence imposed on the defendant was unconstitutionally disproportionate, constituting cruel and unusual punishment.
The majority's review of the proportionality of the defendant's sentence is devoid of any mention of all that the sentencing court saw, firsthand, to be an inappropriate application of our age blind mandatory minimum sentences to this particular juvenile defendant. I would agree with the majority that, in the abstract, a ten year sentence may not be a per se cruel and unusual punishment, and that such a punishment is certainly less severe than those at issue in Roper, Graham , and Miller. See Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (“To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract.”). “Even one day in prison would be a cruel and unusual punishment” if the punishment did not fit the offense or the offender. Id.
However, by stepping back and abstractly reviewing the length of the defendant's sentence with the length of the sentences in Graham and Miller, the majority fails to recognize the reality that the sentencing court found this sentence to be disproportionate for this juvenile offender, after a nuanced review of all of the particular circumstances in this defendant's case. Despite that finding, the trial court was precluded from adjusting the sentence downward from the mandatory minimum sentence that the legislature had crafted for an adult convicted of this crime to account for this juvenile defendant's diminished culpability. Respectfully, in my view, this is a step backward from what was, and is, a national trend of recognizing that juveniles cannot be treated the same as adults when meting out punishments.
In my view, there is an inherent contradiction in the conclusion that, on the one hand, we must protect juveniles convicted of the most terrible crimes from life sentences because juveniles possess characteristics that render them in need of our special protection, and yet, on the other hand, these same juveniles, possessing the same characteristics that render them in need of our special protection, are not entitled to the same protection on the basis of their having committed different crimes. It was this inconsistency that the court in Miller attempted to avoid when it stated, in no uncertain terms, that “none of what [Graham ] said about children—about their distinctive (and transitory) mental traits and environmental vulnerabilities—is crime-specific.” Miller v. Alabama, supra, 132 S.Ct. at 2465. I respectfully dissent.