Opinion
CR830103671 CR830103670
10-10-2017
State of Connecticut v. Earl Arnold
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Roland D. Fasano, J.
By way of its Motion To Correct Illegal Sentence, petitioner moves to vacate its conviction and sentence on the charge of capital felony as illegal pursuant to Public Act 15-84 Sections 6-9 and, in conjunction with its conviction and sentence on the charge of murder, illegal as a double jeopardy violation.
Additionally, by way of its Motion to File Late Response, petitioner moves for a new sentencing hearing, claiming that the sentencing court never imposed a valid sentence on the charge of murder and never expressed any specific sentencing intention with regard to the murder conviction. Petitioner further contends that the convictions and sentences for larceny and robbery also violate the protection against double jeopardy.
The state, by way of its Memorandum Of Law In Response To Defendant's Motion To Correct Illegal Sentence, concedes the issue with respect to the need to vacate the conviction and sentence on the charge of capital felony pursuant to Public Act 15-84, but requests that the court deny any further relief.
On September 13, 2017 a hearing was held on the above stated motions.
FACTUAL BACKGROUND
On June 14, 1984, after convictions by jury, the presiding Judge, Glass, J., imposed the following sentences with respect to charges presented in two separate informations: In the First Information, Third Count, charging capital felony, a definite sentence of (60) years; First Count, charging murder, a definite sentence of (60) years to run concurrently; Second Count, charging kidnapping, first degree, (25) years to run concurrently; In the Second Information, First Count, charging larceny, first degree, (10) years to run consecutively to the first three counts of the First Information; Second Count, charging robbery, first degree, (10) years to run concurrently with the count of larceny and consecutive to the other three sentences.
The total effective sentence was (70) years to serve.
At the hearing of September 13, 2017, based on the concession of the state regarding the conviction and imposition of sentence for capital felony and the agreement of the parties, this court vacated the conviction and sentence for capital felony and continued the matter for its decision with respect to the remaining issues raised by the parities.
LAW AND ANALYSIS
Petitioner argues that simply vacating the capital felony conviction and sentence does not remedy the illegal sentence. Petitioner is entitled to a new sentencing hearing because a valid sentence for the murder charge was never imposed since the conviction and sentence for murder in conjunction with the conviction and sentence for capital felony constituted a violation of the double jeopardy clause and because the murder charge constituted a lesser included offense of capital felony.
Connecticut's policy with respect to multiple convictions for murder and manslaughter involving a single episode of homicide had not been clearly set and in place at the time of petitioner's sentencing in 1984. See State v. John, 210 Conn. 652, 696-97, 557 A.2d 93 (1989). However, the test for determining lesser included offenses, Blockburger v. United States, 284 U.S 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), was, in fact, in place. As petitioner notes in its brief, the test for determining whether one offense is a lesser included of another, is whether it is possible to commit the greater offense in the manner described in the information or bill of particulars without having first committed the lesser offense. State v. Brown, 163 Conn. 52, 61-62, 301 A.2d 547 (1972).
In this matter, Count One of the information charges, in a single count, murder and felony murder committed during the course of the commission of a robbery. Count Three charges capital felony for murder by a kidnapper of kidnapped person. Clearly, the capital felony charge, as alleged, could be committed without committing the felony murder, as alleged. In fact, our Supreme Court determined there was sufficient evidence for the jury to find petitioner guilty of either murder or felony murder in the context of Count One of the First Information and affirmed petitioner's convictions, State v. Arnold, 201 Conn. 276, 514 A.2d 330 (1986); suggesting the validity of the convictions, at least, as of the date of the decision.
The state notes the lack of authority for petitioner's claim that, under the circumstances of this case, petitioner is entitled to a new sentencing hearing and cites State v. Graham, 149 Conn.App. 334, 346, 87 A.3d 1182 (2014) for the proposition that where multiple convictions result, some of which are later determined to be invalid, only the affected convictions must be vacated while the lawful convictions may stand. In State v. Wood, 208 Conn. 125, 145, 545 A.2d 1026 (1988), where the defendant was convicted of capital felony for multiple murders committed in the course of a single transaction as well the underlying murders that formed the basis for the charge, the case was remanded to the trial court with direction to vacate the underlying murder convictions. No re-sentencing was required and, clearly, the conviction and sentence on the capital offense was deemed valid.
In further support of its position that a new sentencing hearing must be ordered, petitioner cites the petitions of Anthony Allen (HHD-CR05-0588501) and Jamaal Coltherst (HHD-CR99-0170354) where capitol felony charges were vacated pursuant to Public Act 15-84 and new sentencing hearings ordered. As the state noted in argument, both situations involved the re-sentencing of murder charges that had been merged by the trial court so that, in fact, no sentences had been imposed with respect to those charges at the time of the original sentencing.
Petitioner's second point in connection with the invalidity of the sentence imposed for murder is that the sentencing court never expressed any specific sentencing intention with regard to that charge.
The state responds that the trial court's intent in imposing the sentence for murder was clear, not only from the court's sentencing comments but also from the fact that the sentence imposed for the non-capital convictions exceeded the sentence imposed for capital felony.
A review of the sentencing transcript of June 14, 1984 suggests that the court, Glass, J., viewed the offenses as some of the most brutal and vicious conduct it had ever dealt with.
" . . . this is one of the most brutal, perhaps savage, and cruel murders that we have had here in this community, perhaps in the state . . . I think that the murder has just got out of hand, absolutely out of hand . . . what started off as a simple purse snatching escalated and ended up into a brutal and vicious murder. There is no justification for it whatsoever. This savage and brutal number of stab wounds that this woman suffered, there is actually no justification for that whatsoever that came out during the course of the trial in the evidence." (Transcript, p. 28)
" And, of course, for the purposes of this case, I have to say this that we have to, as judges, attempt to try to impose punishment that is commensurate with the severity of the offense and look at this particular individual that is before us and impose punishment accordingly, . . ." (Transcript, pp. 31-32.)
The court then deals with the mandatory life sentence to be imposed with respect to the count of capital felony.
" The law in this case has been made rather simple for me to some extent, because, you see, as to count three, the jury made a finding that the defendant was guilty of count three, and also made a finding that the defendant is guilty of count one and as to count two. Because of count three, the maximum punishment that can be imposed in these two informations is the capitol murder count." (Transcript, p. 33.)
The court goes on to discuss its intent with respect to the remaining non-capital charges in the First Information, making its intent clear that the sentences be imposed separately and concurrently and not simply merge with the capital felony.
" And, of course, the court is of the opinion, . . . that for the purposes of punishment in this matter, that the court, because of the components and the parts of count three, that appropriately count one and count two for the purposes of punishment, the court should impose the same punishment and let it run concurrently with the punishment that it imposed in count three . . . To that extent, I give and yield not to the theory that you advanced that all these counts merge legally for the purposes of charging or for the purposes of punishment." (Transcript, pp. 33-34.)
The court goes on to sentence petitioner on the count of murder in a manner that clearly reflects the court's full understanding of the sentence it is imposing.
" As to count one of the three-count information, where you have been found guilty of murder . . . you are committed to the Commissioner of Corrections for the term of your natural life which . . . is a definite sentence of (60) years. This sentence is to run concurrently with the sentence imposed in count three of the three-count information." (Transcript, p. 39.)
Additionally, with respect to the Second Information charging robbery and larceny, the court makes clear its intent to impose a (10)-year consecutive sentence to the sentences of the First Information.
" The larceny count, the Court is of the opinion that this count is a count that is separate and distinct from all of the rest of them. And, particularly when you think about the automobile and the personal property that was taken from the person of Mrs. DiChiara . . . So, the Court is of the opinion that counts two and count one, these counts should run concurrently, but they should run consecutively with counts one, two and three of the three-count information . . . So, you see, this is the thinking of the Court in regards to the sentencing structure of these counts, not because of the fact that there has been a merger, but because of the fact that the Court thinks that this will satisfy the ends of justice." (Transcript, pp. 35-36.)
" As to count one of the two-count information wherein the defendant was found guilty of larceny in the first degree . .., you are committed to the Commissioner of Correction for a period of ten years. This sentence is to run consecutively with the sentences imposed in counts one, two and three of the three-count information, making a total effective sentence . . . a total sentence of seventy years . . . As to count two of the two-count information where in you have been found guilty of robbery in the first degree you are committed to the Commissioner of Corrections for a period of ten years. This sentence is to run consecutively with the sentences imposed in counts one, two and three of the three-count information, and concurrently with the sentence imposed in count one of the two-count information, making a total effective sentence on all five counts of seventy years . . . That is the intent of the Court, and that is the intent of all of the sentences on each of the respective counts of which I have enumerated here. " (Emphasis added.) (Transcript, pp. 40-41.)
Based on the trial court's perception of the senseless brutality of the crimes, the court, knowingly and intentional, imposed sentences on the non-capital offenses ten years in excess of the mandatory sentence for capital felony.
Finally, at the hearing of September 13, 2017, petitioner conceded that once the capital felony conviction was vacated there was no longer a double jeopardy issue with respect to the murder and kidnapping convictions nor the robbery and murder convictions.
Petitioner does claim, however, a double jeopardy violation with respect to the robbery and larceny counts of the Second Information. Petitioner argues, pursuant to State v. Troynack, 174 Conn. 89, 96-97, 384 A.2d 326 (1977), that looking to the information and bill of particulars only, they fail to specify that different acts formed the basis for the robbery and larceny convictions.
The state responds that, as the court noted in its sentencing remarks, the defendant stole multiple objects at different points in time and, pursuant to State v. Porter, 167 Conn.App. 281, 293, 142 A.3d 1216 cert. granted, 323 Conn. 920, 150 A.3d 1152 (2016), the evidence permitted the jury to conclude that the crimes did not stem from the same conduct.
The bill of particulars dated October 27, 1983 charges larceny in the first degree in that the petitioner did " . . . wrongfully take and obtain a motor vehicle having a value exceeding two thousand dollars . . ." A motor vehicle having a value in excess of two thousand dollars is an element of the crime that elevates a larceny to a larceny in the first degree. The same bill of particulars charges robbery in the first degree based on the alleged commission of a robbery using a dangerous instrument, to wit, a knife.
Applying the traditional Blockburger analysis, it is possible to commit robbery in the first degree as charged in the information and bill of particulars without first committing the elements of larceny in the first degree. Thus, pursuant to a Porter analysis or Blockburger analysis the convictions for robbery and larceny do not constitute a double jeopardy violation.
CONCLUSION
If the sentencing court, Glass, J., had simply merged the count of murder with the count of capital felony in 1984, this court would have no recourse other than to require a re-sentencing in the absence of the judge who was present for the entire body of trial evidence, the original trial attorneys and other participants to the original trial and sentencing process, many of whom have died or otherwise become unavailable.
In fact, however, the court refused to merge the murder count with the capital murder count and fully articulated its position and intent to impose a (70)-year sentence; (10) years greater than the mandatory (60)-year sentence for capital felony.
Murder as charged in the information was not a lesser included offense to capital felony as charged; there was, at the time, no set policy with respect to multiple murder-related charges for a single homicide; and, in fact, the convictions were affirmed by our Supreme Court in 1986.
The only basis for the double jeopardy claim with respect to the murder count is the sentence and conviction for capital felony and, pursuant to Public Act 15-84, that conviction and sentence has been vacated.
Under the above stated circumstances, there is no basis in law or fact to further subject the families and other participants to this matter to the ordeal of a re-hashing of the horrific events and circumstances of this case.
Petitioner's request for relief, additional to vacating the capital felony conviction and sentence, is Denied .