Opinion
No. CV10-4003610
September 15, 2010
MEMORANDUM OF DECISION
THE COURT: All right. The issue here is one of statutory interpretation. While I've asked some other questions this morning regarding prejudice and notice and the like, it really comes down to which interpretation of the statute makes more sense.
I've read the statute, and I believe the statute is clear, as enlightened by State v. Prazeres and by the Supreme Court's decision in State v. Strickland.
The defendant, in this case, the petitioner, clearly has a right to seek sentence review if her probation were ever to be revoked and she was sentenced to a term of confinement of three years or more. And she would be entitled to notice at that time of that right.
The way the statute is structured, the notice requirement and the right to sentence review is tied to the imposition of a period of confinement and not just the imposition of a sentence. And part of the reason I reach that conclusion is for the reason that Attorney Weissman said, most of our sentencing statutes do not discuss confinement. They discuss the imposition of a sentence.
So where the legislature inserted the word confinement into the statute as it did in 51-195, I have to conclude that it did it for a reason; and the reason it did it is because that's what triggers the sentence review, the confinement, not the initial sentence. And if you read the structure of the statute, it's consistent with that interpretation.
The first part says that where the amount of confinement is three years or more, you may, within thirty days from when the sentence is imposed, seek sentence review, or if the offender received a suspended sentence with a maximum confinement of three years or more, within thirty days of the revocation.
So in both situations, the thirty-day period is tied to when the confinement is imposed, not to when the sentence is imposed. Furthermore, the legislative history pointed out by Attorney Weissman supports that conclusion.
There is case law, and it's in the annotations to 51-195. If you go — it's at 27 Conn.Sup. 108. And I forget the name of the case, and I don't have my computer on here.
But if you look at 27 Conn.Sup. 108, it was a case where a defendant sought sentence review after his probation had been — it's a 1967 case, if I remember correctly. The defendant sought sentence review after his probation had been revoked and he was given a period of confinement.
The Sentence Review Board at the time said, well, the statute says you have to file it within thirty days of when you are sentenced. You were sentenced more than thirty days ago; therefore, we have no jurisdiction.
The change to the statute in 1978 appears to eliminate that apparent inequity by tying the sentence review period to the confinement as opposed to the imposition of sentencing, which supports the state's interpretation of the statute and my conclusion as to what the statute means.
So given that, I don't — reading the statute, I don't believe that Ms. Lavigne had a right to sentence review upon the imposition of sentence; that her right to sentence review would only exist if and when she — her probation was revoked and she was given a sentence of three years or more of confinement.
In light of that, it could not be ineffective assistance of counsel for failure to advise her of a right she didn't have. So for that reason, there is no basis upon which the petitioner could succeed in this case, and for that reason the motion to dismiss is granted.