Opinion
AC 41367
04-02-2019
STATE of Connecticut v. Haji Jhmalah BISCHOFF
James B. Streeto, senior assistant public defender, with whom, on the brief, was Emily H. Wagner, assistant public defender, for the appellant (defendant). Jennifer F. Miller, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Craig P. Nowak, senior assistant state's attorney, for the appellee (state).
James B. Streeto, senior assistant public defender, with whom, on the brief, was Emily H. Wagner, assistant public defender, for the appellant (defendant).
Jennifer F. Miller, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Craig P. Nowak, senior assistant state's attorney, for the appellee (state).
DiPentima, C.J., and Lavine and Harper, Js.
PER CURIAM.
The defendant, Haji Jhmalah Bischoff, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. After reviewing the record and the parties' briefs, we conclude that the defendant's claim is barred by appellate precedent. We further conclude that the form of the judgment is improper, and, accordingly, we reverse the judgment dismissing the defendant's motion to correct an illegal sentence and remand the case to the trial court with direction to render judgment denying the defendant's motion.The defendant was convicted of possession of heroin in violation of General Statutes (Rev. to 2013) § 21a-279 (a), possession of cocaine in violation of § 21a-279 (a), and possession of less than four ounces of a cannabis-type substance (marijuana) in violation of General Statutes (Rev. to 2013) § 21a-279 (c). State v. Bischoff , 182 Conn. App. 563, 569, 190 A.3d 137, cert. denied, 330 Conn. 912, 193 A.3d 48 (2018). The trial court merged the conviction of possession of heroin and possession of cocaine into a single conviction of possession of narcotics in violation of § 21a-279 (a), and sentenced the defendant to seven years incarceration, execution suspended after five years, and three years of probation. Id. On the defendant's conviction of possession of less than four ounces of marijuana, the court sentenced the defendant to a concurrent term of one year incarceration. Id.
In his direct appeal, this court considered and rejected the defendant's claim that he was entitled to be resentenced as a result of the legislative amendment to the crime of possession of narcotics. Specifically, we stated: "The defendant finally claims that he is entitled to resentencing on his conviction of possession of narcotics because the legislature has retroactively reclassified the violation of § 21a-279, for a first offense, as a class A misdemeanor, which carries a maximum sentence of one year of incarceration. See Public Acts, Spec. Sess., June, 2015, No. 15-2, § 1. The defendant concedes, as he must, that this court's holding in State v. Moore , 180 Conn. App. 116, 124, [182 A.3d 696, cert. denied, 329 Conn. 905, 185 A.3d 595] (2018), in which this court held that the 2015 amendment to § 21a-279 (a), which took effect October 1, 2015, does not apply retroactively and is dispositive of his claim. The defendant's claim that he is entitled to be resentenced must therefore fail." State v. Bischoff , supra, 182 Conn. App. at 579–80, 190 A.3d 137. This court released the decision in the defendant's direct appeal on June 12, 2018. Id., 563, 190 A.3d 137. On September 20, 2018, our Supreme Court denied the defendant's petition for certification to appeal. State v. Bischoff , 330 Conn. 912, 193 A.3d 48 (2018).
On May 11, 2017, the defendant filed the present motion to correct an illegal sentence. He argued that the legislature had intended the 2015 amendment to apply retroactively. According to the defendant, the sentence imposed for his violation of § 21a-279 (a) was illegal because it exceeded the maximum sentence allowed under the 2015 amendment.
On December 22, 2017, the trial court issued a memorandum of decision dismissing the motion to correct an illegal sentence. It concluded that, in the absence of any language indicating that the amendment was to be applied retroactively to crimes committed prior to its effective date, the general rule in Connecticut is that courts apply the law in effect at the time of the offense. It also rejected the defendant's argument as to the amelioration doctrine, which provides that amendments that reduce a statutory penalty for a criminal offense are applied retroactively. Specifically, the trial court stated: "[B]oth our Supreme and Appellate Courts have rejected application of the amelioration doctrine based on the plain language of the savings statutes." See General Statutes §§ 54-194 and 1-1 (t).
In his principal appellate brief, the defendant acknowledges that the present case is controlled by State v. Moore , supra, 180 Conn. App. 116, 182 A.3d 696, and State v. Kalil , 314 Conn. 529, 107 A.3d 343 (2014). In Moore , this court rejected a claim that the 2015 amendment to § 21a-279 (a) applied retroactively. State v. Moore , supra, 120–25, 182 A.3d 696. Specifically, we concluded that the 2015 amendment contained no language indicating a retroactive application and that the absence of such language was informative as to the legislature's intent. Id., 123–24, 182 A.3d 696. "Thus, if the legislature had intended the 2015 amendment to apply retroactively, it could have used clear and unequivocal language indicating such intent. It did not do so. A prospective only application of the statute is consistent with our precedent and the legislature's enactment of the savings statutes ... and, therefore, the statutory language is not susceptible to more than one plausible interpretation." (Citation omitted.) Id., 123, 182 A.3d 696 ; see also State v. Bischoff , supra, 182 Conn. App. at 579–80, 190 A.3d 137. Additionally, in accordance with State v. Kalil , supra, 314 Conn. at 552–53, 107 A.3d 343, this court rejected the applicability of the amelioration doctrine in Connecticut. State v. Moore , supra, 124.
In the present appeal, the defendant expressly asks us to overrule State v. Kalil , supra, 314 Conn. 529, 107 A.3d 343, State v. Moore , supra, 180 Conn. App. 116, 182 A.3d 696, and State v. Bischoff , supra, 182 Conn. App. 563, 190 A.3d 137. We reject this invitation. First, "[i]t is axiomatic that, [a]s an intermediate appellate court, we are bound by Supreme Court precedent and are unable to modify it .... [W]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them.... [I]t is not within our province to reevaluate or replace those decisions." (Internal quotation marks omitted.) State v. Montanez , 185 Conn. App. 589, 605 n.5, 197 A.3d 959 (2018) ; see also State v. Corver , 182 Conn. App. 622, 638 n.9, 190 A.3d 941, cert. denied, 330 Conn. 916, 193 A.3d 1211 (2018). Second, "[i]t is this court's policy that we cannot overrule a decision made by another panel of this court absent en banc consideration." State v. Joseph B. , 187 Conn. App. 106, 124 n.13, 201 A.3d 1108 (2019) ; State v. Carlos P. , 171 Conn. App. 530, 545 n.12, 157 A.3d 723, cert. denied, 325 Conn. 912, 158 A.3d 321 (2017) ; see also State v. Houghtaling , 326 Conn. 330, 343, 163 A.3d 563 (2017) (Appellate Court panel appropriately recognized it was bound by that court's own precedent), cert. denied, ––– U.S. ––––, 138 S.Ct. 1593, 200 L.Ed.2d 776 (2018). For these reasons, we conclude that the defendant's appeal has no merit. The form of the judgment is improper, the judgment dismissing the defendant's motion to correct an illegal sentence is reversed and the case is remanded with direction to render judgment denying the defendant's motion.
Due in part to the timing of the ultimate resolution of the defendant's direct appeal and the filing of the motion to correct an illegal sentence, the state claimed, for the first time on appeal, that the defendant's claim is barred by res judicata. While we have considered a res judicata defense under similar circumstances; see State v. Martin M. , 143 Conn. App. 140, 150–57, 70 A.3d 135, cert. denied, 309 Conn. 919, 70 A.3d 41 (2013) ; State v. Osuch , 124 Conn. App. 572, 580–84, 5 A.3d 976, cert. denied, 299 Conn. 918, 10 A.3d 1052 (2010) ; we decline to travel that path in the present case.
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