Opinion
LLICR130143598S
03-13-2017
State of Connecticut v. Hiral Patel
UNPUBLISHED OPINION
RULING RE MOTION TO REVOKE BOND
John A. Danaher, III, J.
This case was tried to a jury beginning on January 4, 2017 through February 1, 2017. The jury found the defendant guilty on all eight counts charged against him. Those counts included charges of murder in violation of General Statutes § 53a-54a and felony murder in violation of General Statutes § 53a-54c.
Following the return of the jury's verdict, the state moved for a bond increase of four million dollars, beyond the one million dollar cash or surety bond that was in place up to that point. The defendant opposed the motion. The court granted the motion to increase the bond, but increased it from one million dollars to one million, five hundred thousand dollars. Thereafter, the defendant expressed his intention to post the bond, and did so on February 6, 2017. The defendant was then released, subject to conditions of release that include home confinement with limited exceptions, electronic monitoring, and an eight p.m. to eight a.m. curfew. A report presented to this court indicates that, to date, the defendant is in full compliance with all conditions of release. A presentence investigation report is being prepared and the defendant is scheduled to be sentenced on April 28, 2017.
On February 6, 2017, the defendant moved for a new trial and moved for judgment of acquittal. The state has not yet responded to either motion. On February 21, 2017, three weeks after the jury returned its verdict, the state moved to revoke the defendant's bond, not on the basis that he has violated any condition of release, but because the state now takes the position that bond is not available to the defendant. The defendant objected to the motion in a memorandum filed on March 2, 2017. The parties came before the court and were heard on March 6, 2017. The state's motion is granted.
DISCUSSION
General Statutes § 54-63f provides, in relevant part, as follows, " A person who has been convicted of any offense, except a violation of section 53a-54a, 53a-54b, 53a-54c or 53a-54d or any offense involving the use, attempted use or threatened use of physical force against another person, and is either awaiting sentence . . . may be released pending final disposition of the case unless the court finds custody to be necessary to provide reasonable assurance of such person's appearance in court . . ." The prohibition against releasing on bond a person convicted of violating General Statutes Sections 53a-54a through 53a-54d reflects a revision to General Statutes Section 54-63f by Public Act 98-51. The prohibition against releasing on bond a person convicted of " any offense involving the use, attempted use or threatened use of physical force against another person, " reflects a revision to General Statutes Section 54-63f by Public Act 00-200.
Our Supreme Court, in State v. McCahill, 261 Conn. 492, 811 A.2d 667 (2002), addressed a challenge to the prohibition on bail, after conviction and before sentencing, when a defendant is found guilty of an offense " involving the use, attempted use or threatened use of physical force against another person." Specifically, McCahill was convicted of burglary in the first degree and also sexual assault in the first degree, in violation of General Statutes § 53a-70(a)(1). Both of the foregoing statutes include, as elements, the use or attempted use of force against another.
In its examination of Section 54-63f, the Supreme Court noted that the statute initially provided for enhanced opportunities for bail for defendants, permitting bail to an individual convicted of any offense. Thereafter, the court's discretion was curtailed, permitting bail only to those defendants who had not been convicted of murder, capital felony, felony murder, arson murder, or crimes involving physical force against another. State v. McCahill, supra, 261 Conn. 507-08.
The Supreme Court, in McCahill, referred to its decision in State v. Vaughan, 71 Conn. 457, 42 A. 640 (1899) for the proposition that " bail is then a matter of absolute discretion, to be exercised by the court, however, with great caution, and rarely to be allowed when the crime is serious." (Emphasis in original.) State v. McCahill, supra, 261 Conn. 511. The Supreme Court then held, " [w]e have never departed from the principles announced in Vaughan . That case, therefore, presents compelling evidence of the inherent, common-law powers possessed by the Superior Court to exercise its discretion to grant postconviction bail 'in all cases . . .'" Id., 512.
McCahill has been read to mean that Section 54-63f, in its entirety, was found to be unconstitutional in that case. See, e.g., State v. Fabricatore, 89 Conn.App. 729, 744, 875 A.2d 48 (2005) (" [t]he Supreme Court's determination that the statute was unconstitutional essentially restored to the trial court the discretion to allow a defendant to post bond even if the crime committed was violent." (Emphasis added.)) aff'd, 281 Conn. 469, 915 A.2d 469 (2007). See also Prac. Bk. § 43-2(a) (" A person who has been convicted of any offense and who either is awaiting sentencing or has given oral or written notice of his or her intention to appeal or file a petition for certification or a writ of certiorari may be released, subject to General Statutes § 54-95, pending final disposition of his or her case upon sentence or appeal . . ." (Emphasis added.))
The state acknowledged, at oral argument, that no reported decision since McCahill has addressed the question of whether McCahill ruled unconstitutional the entirety of Section 54-63f or merely the part of the statute that prohibited bail for " any offense involving the use, attempted use or threatened use of physical force against another person . . ." The defendant disagrees with the state's view of McCahill and argues that, under the principles articulated in that decision, the entirety of Section 54-63f is unconstitutional in that it violates the separation of powers doctrine because it " impermissibly and significantly interferes with the operation of the judicial branch."
This court concludes that the state is correct. McCahill focused on the Public Act 00-200 amendment to Section 54-63f and not on the entire statute. See State v. McCahill, supra, 261 Conn. 494-95 n.2 (" Hereafter, unless otherwise indicated, all references to P.A. 00-200, § 5, are to the language prohibiting release for an individual convicted of 'any offense involving the use, attempted use or threatened use of physical force against another person . . ."). The Supreme Court made clear that it was examining the constitutionality " of P.A. 00-200, § 5." Id., 506. The Supreme Court then held that " P.A. 00-200, § 5, violates the separation of powers provision . . ." Id., 509.
Most significantly, the Supreme Court also ruled that " we do not disagree with the assertion that the legislature may act in the area of postconviction release without violating the separation of powers provision . . . [W]e discern no interference with the Superior Court's role when the legislature enacted P.A. 98-51, to prevent release for those who have been convicted of some of the most serious crimes . . ." Id., 519.
This court recognizes that unconstitutional provisions of a statute are severable, and the defendant has not offered any evidence that, when the Supreme Court invalidated a portion of Section 54-63f, the legislature would have preferred for the Supreme Court to have invalidated the statute in its entirety. See State v. Bell, 303 Conn. 246, 260-62, 33 A.3d 167 (2011).
The defendant offers an alternative argument. He claims, independent of the decision in McCahill, that the entirety. Section 54-63f is unconstitutional in that Article First, Section 8 of the Constitution of the State of Connecticut provides that in " all criminal prosecutions, the accused shall have a right . . . to be released on bail upon sufficient security, except in capital cases where the proof is evident or the presumption great . . ." The defendant contends, based on a comparison among bail provisions in the 1818, 1955, and 1965 Connecticut Constitutions, as well as the proceedings before the 1965 constitutional convention that ultimately resulted in the foregoing version of Article First, Section 8, that the Connecticut Constitution provides that bail must be available until a criminal prosecution is at an end. The defendant argues that a criminal prosecution does not end until the imposition of sentence, citing State v. Parker, 194 Conn. 650, 653, 485 A.2d 139 (1984).
A constitutional challenge to a statute cannot be undertaken lightly. " Because a validly enacted statute carries with it a strong presumption of constitutionality, those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt . . . In construing a statute, moreover, [the court] will search for an effective and constitutional construction that reasonably accords with the legislature's underlying intent." (Citations omitted.) Bartholomew v. Schweizer, 217 Conn. 671, 675-76, 587 A.2d 1014 (1991). " When a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear." Snyder v. Newtown, 147 Conn. 374, 390, 161 A.2d 770 (1960). Further, " [c]onstitutional issues are not considered unless absolutely necessary to the decision of a case . . ." State v. Cofield, 220 Conn. 38, 49-50, 595 A.2d 1349 (1991). It is the latter principle of constitutional analysis in particular that, when applied to this case, requires the rejection of the defendant's argument.
Even if the court were to accept the defendant's argument that the Connecticut Constitution requires that he has a right to bail until the time of conviction, he is incorrect in his contention that a defendant is not convicted until sentence is rendered. On the contrary, it is clear that a conviction occurs when a jury returns a verdict of guilty. Our Supreme Court has made clear that " [u]nless the context indicates the contrary, the word 'conviction' means a finding of the party guilty by verdict or plea of guilty, and not to a sentence in addition." (Internal quotation marks omitted.) State v. Ross, 230 Conn. 183, 278, 646 A.2d 1318 (1994).
State v. Parker, supra, 194 Conn. 650, is not to the contrary. In Parker, the Supreme Court focused on the question of when a trial court decision is appealable, which is not the issue before this court.
This defendant was found guilty, and thus convicted of, inter alia, murder and felony murder on February 1, 2017. Since the defendant's argument depends on his erroneous conclusion that a conviction does not occur until sentencing, it is not necessary to otherwise consider his claim that the entirety of section 54-63f is unconstitutional. State v. Cofield, supra, 220 Conn. 49-50.
For all of the foregoing reasons, the state's motion is granted. The defendant's bail is revoked.
So ordered.