Opinion
No. N07-MCR04-2292981
July 29, 2008
MEMORANDUM OF DECISION RE MOTION TO VACATE CONVICTION FOR CRIMINAL USE OF FIREARM
This memorandum of decision addresses the issues raised in the defendant's Motion to Vacate Conviction for Criminal Use of Firearm (Motion to Vacate). After trial, the jury returned its verdict of guilty on fourteen counts brought against the defendant, including the underlying felony charge of risk of injury to a minor, in violation of § 53a-21, and the charge at issue, General Statutes § 53a-216(a). Through his motion, the defendant argues that by operation of law, he cannot stand convicted of both criminal use of a firearm and an underlying felony that served as an element of the § 53a-216(a) charge brought against him. For the following reasons, the court finds this issue in favor of the defendant. However, as the defendant has not yet been sentenced on either § 53a-216(a) or any underlying felony, he is entitled to relief not by way of vacating a conviction. In the present procedural context, the court instead vacates the jury's verdict on the sixth count of the operative information, through which the violation of § 53a-216(a) was charged, and enters a judgment of dismissal on that count. State v. Matos, 240 Conn. 743, 747, 694 A.2d 775 (1997).
Section 53a-216 provides as follows: "(a) A person is guilty of criminal use of a firearm . . . when he commits any class A, B or C or unclassified felony as defined in section 53a-25 and in the commission of such felony he uses . . . a pistol, revolver, machine gun, shotgun, rifle or other firearm . . . No person shall be convicted of criminal use of a
firearm . . . and the underlying felony upon the same transaction but such person may be charged and prosecuted for both such
offenses upon the same information. (b) Criminal use of a firearm . . . is a class D felony for which five years of the sentence imposed may not be suspended or reduced by the court."
The prosecution arose from incidents of domestic violence that the jury found to have occurred on or about May 16, 2004 at the residence the defendant shared with his family. On May 17, 2004, the defendant was first charged in a five-count information alleging that he then had committed: unlawful restraint in the first degree in violation of § 53a-95; illegal discharge of a firearm in violation of § 53a-203; breach of peace in the second degree in violation of § 53a-181; reckless endangerment in the first degree in violation of § 53a-63; and risk of injury to a minor in violation of § 53-21. On December 11, 2007, during pretrial proceedings, the state filed an amended eight-count information, deleting the breach of peace charge, and adding to the three risk of injury charges and a charge of disorderly conduct in violation of § 53a-182. On April 3, 2008, at the commencement of jury selection, the state filed a second amended information, charging the
defendant with fourteen counts by adding: a second charge of unlawful restraint in the first degree; a second count of reckless endangerment in the first degree; a charge of assault in the third degree against an elderly person in violation of § 53a-61a; a charge of assault in the first degree with criminal negligence in violation of § 53a-61(a)(3); and for the first time bringing forth a charge of criminal use of a firearm in violation of § 53a-216. On April 29, 2008, at the commencement of trial before the jury, the state filed a third amended information presenting the same fourteen counts but refining certain language and charges. Without objection, the state took like action with its fourth amended information filed on May 1, 2008, and in its fifth amended, and operative, information filed on May 2, 2008.
On May 6, 2008, the jury returned its verdict of guilty on each of the fourteen counts brought against the defendant through the operative amended information. The jury found the defendant guilty on the sixth count charging criminal use of a firearm, and guilty on the second through fourth counts charging risk of injury to a minor, each count being competent to serve as an element of the § 53a-216 conviction. No post-verdict motions were submitted at that time. The parties and counsel returned to court on June 17, 2008, when sentencing was scheduled to occur; that proceeding was deferred, however, to provide additional time for submission of the requisite pre-sentencing investigation.
On July 11, 2008, the defendant filed the present motion asking "the court to vacate the conviction for Criminal Use of a Firearm . . ." (Motion to Vacate.) In support of his motion, the defendant correctly relies upon the clear language of § 53a-216 which allows the state to use a single information to charge and prosecute both an underlying felony and that statute, yet prohibits conviction for both offenses. The defendant also correctly relies upon the Appellate Court's opinion in State v. Hardy, 85 Conn.App. 708, 858 A.2d 845 (2004), which applied § 53a-216 so as to eliminate the defendant's conviction under that statute, while he remained convicted of and subject to sentencing for the underlying felony. Hardy thus informs the court's decision in the present case, as does the Supreme Court's limited attention to this issue in State v. Hardy, 278 Conn. 113, 118 and n. 5, 896 A.2d 755 (2006) (affirmed on other grounds).
The defendant does not argue that § 53a-216 merely establishes a sentencing enhancement for crimes in which a firearm has been used, as does § 53-202k; instead, he apparently acknowledges that this legislation creates "a separate felony offense" which allows the imposition of a separate penalty upon proper conviction. (Citation omitted; internal quotation marks omitted.) See State v. Edwards, 100 Conn.App. 565, 598, 918 A.2d 1008, cert. denied, 282 Conn. 928, 926 A.2d 660 (2007).
In Hardy, the defendant was charged with, and the jury found him guilty of, both robbery in the first degree pursuant to § 53a-134(a)(2), involving use of a firearm, and of § 53a-216. Id., 712. By imposing sentence on both counts, the defendant was thereby effectively convicted
and judgment entered against him upon both charges. The defendant's
"The [trial] court sentenced the defendant to twenty years incarceration, suspended after ten years, on the robbery conviction, five years incarceration to run concurrent to his twenty year sentence on his conviction of criminal use of a firearm . . . and five years probation." State v. Hardy, supra, 85 Conn.App. 712. Both § 53a-134(a)(2) and § 53a-216 contemplate five years of incarceration that may not be suspended or reduced by the court.
first appeal sought to have the criminal use of a firearm conviction vacated. In reliance upon the clear text of § 53a-216, the Appellate Court agreed that "[i]t was improper for the court to have convicted the defendant of both crimes charged in light of the statutory prohibition against such a double conviction." Id., 713. Accordingly, "[t]he judgment [was] reversed only as to the conviction of criminal use of a firearm . . . in violation of § 53a-216 and the case [was] remanded with direction to render judgment of acquittal on that charge and to resentence the defendant on the conviction of robbery in the first degree in violation of § 53a-134(a)(2)." Id., 719. The Hardy decision was subsequently appealed to the Supreme Court, which did not directly examine the "double conviction" issue. Nonetheless, the Supreme Court's Hardy opinion restates without criticism, and thus tacitly condones, the Appellate Court's proposed method of rectifying a case in which a defendant has been convicted of both § 53a-216 and the underlying felony, so that judgment has entered against the defendant on both counts in violation of the express legislative proscription against such a result. State v. Hardy, supra, 278 Conn. 118 and n. 5, citing State v. Hardy, supra, 85 Conn.App. 713, 719.
This order to render a judgment of acquittal, contained within the Appellate Court's rescript, expands upon a directive stated within the opinion itself: "[W]e reverse the judgment as to the conviction of criminal use of a firearm . . . in violation of § 53a-216, and remand the case with direction to vacate that conviction and to resentence the defendant accordingly." (Emphasis added.) State v. Hardy, supra, 85 Conn.App. 713.
The obvious goal of both Hardy opinions is to apply § 53a-216 so as to avoid the "`adverse collateral consequences may result from the fact of an additional conviction . . .' State v. John, 210 Conn. 652, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989)." State v. Edwards, 100 Conn.App. 565, 596 n. 17, 918 A.2d 1008, cert. denied, 282 Conn. 928, 926 A.2d 666 (2007). Thus, both Hardy opinions require the trial court to take such action as is necessary to ensure that a "double conviction" is not reflected upon the present defendant's criminal record. The state may complain that any action taken by the court in contravention of the jury's verdict would inappropriately interfere with its prosecutorial discretion, and that the court must sentence the defendant for an offense that was returned upon sufficient evidence. It is clear that neither the statute itself nor Hardy's protocol prevents the state from prosecuting and charging violations of both § 53a-216 and the underlying felony. However, as a practical matter, pursuant to both the legislation at issue and related jurisprudence, should the state seek not merely a guilty verdict but also a conviction for criminal use of a firearm, the state must elect to prosecute that charge alone, in the absence of a count charging the underlying felony but utilizing that underlying felony as an element of § 53a-216.
The specific language of § 53a-216 thus contrasts with "the general principle that an accused may be charged with and convicted of more than one crime arising out of the same act or acts, as long as all of the elements of each crime are proven." State v. Salamon, 287 Conn. 509, 548 (2008).
Courts have employed divers protocols to remediate the prejudice that
results from dual guilty verdicts based upon the state's decision to prosecute, in a single information, both the underlying felony and
criminal use of a firearm. As noted above, in Hardy, after sentence on both charges had been imposed and a double conviction had thus effectively been rendered, the § 53a-216 conviction was ordered vacated and a judgment of acquittal was ordered on that count, so the defendant could be resentenced on the underlying felony, alone. State v. Hardy, supra, 85 Conn.App. 719; see also State v. Hardy, supra, 278 Conn. 118. Where the jury had rendered a guilty verdict on charges of both criminal use of a firearm and underlying felonies, the § 53a-216 mandate was fulfilled when, prior to the imposition of sentence, "[t]he trial court vacated the conviction of criminal use of a firearm . . . and rendered a judgment of guilty" only on the underlying charges, imposing sentence on those felonies alone. (Footnote omitted.) See State v. Carrasco, 259 Conn. 581, 586, 791 A.2d 511 (2002). In other cases in which the defendant has been found guilty of violating § 53a-216 and underlying felony charges, the trial court has dismissed the criminal use of a firearm count prior to the imposition of sentence upon the remaining charges. State v. Matos, supra, 240 Conn. 747; State v. Eagles, 74 Conn.App. 332, 333 n. 1, 812 A.2d 124 (2002), cert. denied, 262 Conn. 953, 818 A.2d 781 (2003). This procedural dismissal has the effect of avoiding a record of "double conviction," meeting the goal promoted by both the Appellate and Supreme Court opinions in Hardy, notwithstanding the jury's verdict of guilty upon the § 53a-216 count.
The defendant in the present case has not yet been sentenced in response to any of the guilty verdicts returned by the jury. Guided by the post-verdict procedures followed in the cases referenced above, and in conformance with the statutory prohibition against a double conviction, the court adopts the protocols utilized in State v. Carrasco, supra; State v. Matos, supra; and State v. Eagles, supra. Accordingly, the jury's verdict of guilty upon the sixth count of the information charging criminal use of a firearm in violation of § 53a-216 is hereby VACATED. State v. Carrasco, supra, 259 Conn. 586; State v. Hardy, 85 Conn.App. 719. That count is hereby DISMISSED, rendering the defendant subject to imposition of sentencing on the remaining thirteen counts for which the jury returned its verdict of guilty. State v. Matos, supra, 240 Conn. 747; State v. Eagles, supra, 74 Conn.App. 333 n. 1.