Opinion
CR94100508
04-29-2016
State of Connecticut v. Keith Belcher
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO CORRECT ILLEGAL SENTENCE
ROBERT J. DEVLIN, JR., JUDGE.
The defendant, Keith Belcher, was convicted after a jury trial of kidnapping first degree in violation of General Statutes § 53a-92(a)(2)(B) (two counts), sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1) (two counts), robbery in the first degree in violation of General Statutes § 53a-134(a)(2) (one count), burglary in the first degree in violation of General Statutes § 53a-101(a)(1) (one count), and attempted sexual assault in the first degree in violation of General Statutes § § 53a-49 and 53a-70(a)(1) (one count). The sentencing court (Hartmere, J.) imposed a total effective sentence of sixty years. At the time of the crimes, December 24, 1993, the defendant was fourteen years old. His conviction was affirmed on direct appeal. State v. Belcher, 51 Conn.App. 117, 721 A.2d 899 (1998).
In the present motion, the defendant asserts that his sentence is illegal because (1) the sentencing court relied on inaccurate information, (2) the sentence is disproportionate, and (3) the sentence violates the holding in State v. Riley, 315 Conn. 637, 110 A.3d 1205 (2015), cert. denied, 136 S.Ct. 1361, 194 L.Ed.2d 376 (2016). The defendant seeks a new sentencing hearing. The state objects to the motion asserting that the present availability of parole cures any possible defects in the original sentencing. A hearing on the motion was held on April 27, 2016. At the conclusion of that hearing, this court issued an oral ruling granting the motion in part and ordering a resentencing. The following shall constitute a written articulation of the court's oral ruling.
Although the defendant advances three grounds in support of his motion to correct illegal sentence, this court views the Riley claim as dispositive. Accordingly, it is unnecessary to address the claims that the sentencing judge relied on inaccurate information or that the sentence is constitutionally disproportionate.
The defense asserts that at sentencing, the sentencing court described the defendant as a " superpredator" and referenced the work of Princeton Professor John DiLulio. That work coined the term " superpredator" to describe a particularly vicious and sociopathic class of young criminals. Professor DiLulio has since disavowed this work and the concept of superpredator.
It is noted that the defendant never sought review of his sentence by the Sentence Review Division of the Superior Court.
In State v. Riley, supra, the defendant was convicted of participating in a drive-by shooting that resulted in the death of a sixteen-year-old innocent bystander and the serious wounding of two other persons. The defendant was seventeen years old at the time of the crime. The trial court imposed a total effective sentence of 100 years. On appeal, our Supreme Court considered whether the sentence violated United States Supreme Court jurisprudence regarding the sentencing of juvenile offenders. Specifically, our Supreme Court considered the 100-year sentence against the backdrop of Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (no capital punishment for juvenile offenders); Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (no life without parole for juvenile non-homicide offenders); and Miller v. Alabama, 567 U.S., 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (mandatory sentencing schemes that impose life imprisonment without parole on juvenile homicide offenders, thus precluding consideration of youth as mitigating, violate the eighth amendment of the federal constitution).
The Riley opinion make clear that the defendant in that case was advancing two separate claims--one based on Miller and one based on Graham . State v. Riley, supra, 315 Conn. at 641. In the Miller claim, the defense asserted that the trial court, when exercising its sentencing discretion, was required to consider the defendant's youth and the circumstances attendant to youth as mitigating against the imposition of the functional equivalent of a life sentence. Id. In the Graham claim, the defense asserted that if the functional equivalent of a life sentence was imposed, the defendant had to be afforded a subsequent opportunity to obtain release based on a demonstration of maturity and rehabilitation. Id. Stated differently, the Miller claim related to the sentencing itself whereas the Graham claim related to a post sentencing opportunity for release.
In the Riley opinion, our Supreme Court expressly stated that it was not addressing the Graham claim in light of the recommendations of the sentencing commission to the legislature regarding reforms to the parole eligibility of juveniles. Id. In fact, following the release of the Riley opinion, the legislature acted favorably on those recommendations through the enactment of Public Act 15-84.
In its focus on the Miller claim, the Riley opinion ruled that the constitutional concerns arising out of the imposition of a life sentence on a juvenile offender apply even where the sentencing court has discretion to impose a lesser sentence. Id., 658. Moreover, the court further ruled that if a sentencing scheme permits imposition of a life sentence, the trial court must consider the " chronological age and its hallmark features" as mitigating and the record must reflect that the trial court considered and gave due mitigating weight to such factors. Id. Our Supreme Court examined the record in Riley and concluded that the Miller factors were not sufficiently considered by the trial court and remanded the case for a new sentencing proceeding that conforms to Miller .
In the present case, the state objects to a resentencing asserting that the defendant's opportunity to seek parole under PA 15-84 cures any constitutional defect in his sixty year sentence and the manner of its imposition. In support of this position, the state points to language in Montgomery v. Louisiana, 577 U.S., 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). Montgomery ruled that Miller announced a substantive rule of constitutional law and therefore was retroactive. After announcing its holding, the majority in Montgomery stated the following:
Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than resentencing them . . . Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflect only transient immaturity--and who have matured--will not be forced to serve a disproportional sentence in violation of the Eighth Amendment.Montgomery v. Louisiana, supra, 136 S.Ct. 736 (emphasis added).
The state correctly points out that this permissive language from the United States Supreme Court provides a path to address Miller issues in cases involving juvenile offenders whose convictions were final before Miller was decided. For this court, however, this language has to be considered in light of the precedential effect of Riley which clearly goes further than Miller in several significant respects. Riley applies the dictates of Miller to (1) discretionary sentencing schemes and (2) sentences that are the functional equivalent of life in addition to sentences of life without parole. The Riley opinion also provided specific direction to trial courts as to the manner in which the Miller factors must be reflected in the record of a juvenile sentencing proceeding.
More generally, as noted above, our Supreme Court in Riley saw the availability of parole as a solution to the Graham problem. The Riley decision dealt with the Miller problem by ordering a new sentencing hearing.
The state makes no claim that the sentencing transcript in the present case demonstrates that the sentencing court gave mitigating effect to the defendant's young age and its hallmarks. The state also does not contest that the sixty year sentence imposed meets the definition of the functional equivalent of life imprisonment under current Connecticut law. See General Statutes § 53a-35b (a sentence of life imprisonment means a definite sentence of sixty years). Accordingly, the defendant in the present case is in the same position as the defendant in Riley and, based on the binding precedential effect of Riley, is entitled to be resentenced at a new sentencing proceeding. The resentencing will be conducted before either the original sentencing court or this court.
So Ordered.