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STATE OF CONNECTICUT v. SETH WILLIAM APT
(SC 19266)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Robinson and Mullins, Js.*
Argued January 13—officially released November 10, 2015
Melissa Patterson, assistant state’s attorney, with
whom, on the brief, were Matthew C. Gedansky, state’s
attorney, and Charles W. Johnson, assistant state’s
attorney, for the appellant (state).
Adele V. Patterson, senior assistant public defender,
for the appellee (defendant).
Opinion
PALMER, J. General Statutes § 54-142a1 mandates the
erasure of records pertaining to certain charges that
do not lead to a conviction and further provides that,
when such records are erased, the person charged shall
be deemed to have never been arrested with respect
to the erased proceedings. See General Statutes § 54-
142a (e) (3). General Statutes § 53a-40b2 provides that
a trial court may enhance the sentence of a defendant
who, while on pretrial release following an arrest for
another offense, commits the crime for which the sen-
tence is imposed. The dispositive issue in this certified
appeal is whether the erasure provisions of § 54-142a
preclude a trial court from enhancing a defendant’s
sentence pursuant to § 53a-40b after the records per-
taining to the charges for which the defendant was on
pretrial release have been erased. We conclude that,
although the state may not use the erased records to
prove the basis for the sentence enhancement under
§ 53a-40b, the erasure provisions of § 54-142a do not
prohibit the imposition of a sentence enhancement in
such circumstances.
A jury found the defendant, Seth William Apt, guilty
of larceny in the third degree in violation of General
Statutes § 53a-124 (a) (2),3 and the state sought to have
the defendant’s sentence enhanced under § 53a-40b
because the defendant had committed the larceny while
he was released on bond following a number of previous
arrests for various offenses. Prior to the hearing on
the sentence enhancement, the records relating to the
defendant’s previous arrests had been erased in accor-
dance with § 54-142a. Nevertheless, the trial court
allowed the state to introduce those records into evi-
dence to prove the factual basis for the enhancement
under § 53a-40b and then relied on those records in
finding that the defendant had committed the larceny
while he was on pretrial release. The defendant
appealed from the trial court’s judgment to the Appel-
late Court, which concluded that the trial court improp-
erly had permitted the state to introduce the erased
records into evidence and, further, that the state could
not seek to establish the basis for the sentence enhance-
ment on remand because a trial court lacks the authority
to impose such an enhancement when the records relat-
ing to the arrest that led to the defendant’s release have
been erased pursuant to § 54-142a. State v. Apt, 146
Conn. App. 641, 643, 650, 78 A.3d 249 (2013). We granted
the state’s petition for certification to appeal, limited
to the issue of whether the Appellate Court properly
concluded that the erasure statute precludes the imposi-
tion of a sentence enhancement under § 53a-40b in such
circumstances. State v. Apt, 311 Conn. 902, 902–903, 83
A.3d 604 (2014).4 Although we agree with the Appellate
Court that the trial court improperly permitted the state
to introduce the erased records to prove the basis for
the sentence enhancement under § 53a-40b, we also
conclude that the state is not foreclosed from seeking
to have the defendant’s sentence enhanced on remand
under that provision, as long as its proof does not
include the erased records. We therefore reverse in part
the judgment of the Appellate Court.
The record reveals the following relevant facts and
procedural history. Prior to the incident that gave rise
to this appeal, the defendant was arrested in three sepa-
rate cases on three separate dates, namely, September
10, 2007, December 19, 2008, and January 16, 2009. The
defendant was released on bond following all three
arrests. In addition, following the September 10, 2007
arrest, the defendant applied for accelerated pretrial
rehabilitation pursuant to General Statutes § 54-56e,5
which the court, Ward, J., granted.
On November 20, 2009, the defendant committed the
larceny at issue in the present case, and he was arrested
for that offense on March 31, 2010. On May 7, 2010,
prior to trial on the larceny charge, the defendant was
found to have successfully completed his program of
accelerated rehabilitation in the case stemming from
his September 10, 2007 arrest, and the charges in that
case were dismissed. Consequently, the records relating
to that arrest were erased in accordance with General
Statutes §§ 54-56e (f) and 54-142a.6 On May 7, 2010,
the state also entered a nolle prosequi on the charges
brought in connection with the December 19, 2008 and
January 16, 2009 arrests.
On May 6, 2011, following a trial, the jury found the
defendant guilty of larceny in the third degree. Prior to
trial, the state had notified the court that it intended to
seek a sentence enhancement under § 53a-40b. Because
the defendant had filed a written objection to the
enhancement, the parties agreed to postpone the hear-
ing on the enhancement to a later date so that the court
and the state could review the defendant’s objection.
On June 7, 2011, prior to the hearing on the enhance-
ment, the records relating to the defendant’s December
19, 2008 and January 16, 2009 arrests were erased in
accordance with § 54-142a (c) (1); see footnote 1 of this
opinion; because thirteen months had passed since the
state nolled the charges brought in connection with
those arrests.
On June 24, 2011, the trial court held a sentencing
hearing at which the state sought to prove, pursuant to
§ 53a-40b, that the defendant had committed the larceny
while he was released on bond. To that end, the state
introduced into evidence the informations from the
defendant’s three previous cases that had been subject
to erasure, as well as an appearance bond form from
one of those cases. Defense counsel objected to the
enhancement, arguing, first, that the defendant had a
right to a jury determination of whether he had commit-
ted the larceny while he was released on bond and,
second, that the records were inadmissible because
they had been erased pursuant to § 54-142a. The court
overruled the objection and, relying solely on those
records, found that the defendant had committed the
larceny while he was on release.
On appeal to the Appellate Court, the defendant
claimed that the trial court improperly had allowed the
state to offer records that had been erased pursuant to
§ 54-142a and that he was prejudiced thereby because
those records constituted the sole evidence offered by
the state to prove the basis for the sentence enhance-
ment under § 53a-40b. The defendant further main-
tained that, because § 54-142a bars the state from intro-
ducing those records, the state could not prove that he
was released on bond when he committed the larceny
of which he was convicted. Finally, the defendant
argued in the alternative that he was denied due process
of law because he had a right to a jury determination
of whether he committed the larceny while he was on
pretrial release.
The Appellate Court agreed with the defendant that
the trial court improperly had allowed the state to intro-
duce the erased records and also agreed that the state
could not seek to prove the basis for the sentence
enhancement at a new hearing. State v. Apt, supra,
146 Conn. App. 650. In concluding that the trial court
improperly had permitted the state to introduce the
erased records, the Appellate Court first observed that,
‘‘[i]n this case, it is undisputed that the necessary
amount of time had elapsed to subject records relating
to the defendant’s prior arrests to erasure as a matter
of law’’; id., 648; and that the records offered by the
state to prove the basis for the enhancement, namely,
the informations and the appearance bond form,
‘‘clearly qualify as the type of police and court records
to which the erasure statute applies. [Those] records did
not fall [within] any exception listed under the erasure
statute.’’ (Internal quotation marks omitted.) Id. The
Appellate Court concluded, therefore, that the records
had been erased before the state introduced them. See
id. The Appellate Court further concluded that the intro-
duction ‘‘of erased records in a court proceeding against
the subject of those erased records is exactly the type
of disclosure that the erasure statute is designed to
prevent. . . . Thus, the [trial] court erred in [allowing
the state to introduce] these records into evidence. Like-
wise, the court’s error was harmful, as the erased
records were the only evidence in support of the court’s
determination that the defendant had committed a
crime while [he was] released on bond.’’ (Citation omit-
ted.) Id., 649.
Turning to the issue of the appropriate remedy, the
Appellate Court concluded that the state could not seek
to prove the basis for the sentence enhancement at a
new hearing. See id., 650. The Appellate Court rejected
the state’s argument that the case ‘‘should be remanded
for a new hearing as to the sentence enhancement, [at
which] the prosecution [could] introduce alternative
evidence that the defendant was released on bond at the
time he committed the . . . larceny.’’ Id., 649. Although
recognizing that ‘‘the erasure statute does not preclude
certain alternative forms of evidence, such as testimony
from personal knowledge, [as] long as it is not derived
from the erased records’’; id.; the Appellate Court
observed that, ‘‘[i]n this case . . . the sole subject of
the trial court’s inquiry on remand would be the defen-
dant’s pretrial release status on the particular date in
question. This status is inextricably related to the defen-
dant’s prior arrests. The erasure statute provides that
‘[a]ny person who shall have been the subject of such
an erasure shall be deemed to have never been arrested
within the meaning of the general statutes with respect
to the proceedings so erased and may so swear under
oath.’ General Statutes § 54-142a (e) (3). Thus, the
defendant is no longer considered to have been arrested
for the alleged crimes to which the records pertained.
It would be wholly inconsistent to enhance the defen-
dant’s sentence for committing a crime while [he was]
released on bond for charges on which, as far as the law
is concerned, he was never arrested. Doing so would run
counter to the erasure statute’s purpose of ‘insulating
[the defendant] from the consequences of the prior
prosecution.’ . . . Accordingly, a new hearing is
unnecessary as, regardless of the evidence produced by
the state, any determination of guilt as to the sentence
enhancement would violate the erasure [statute].’’
(Citation omitted; footnote omitted.) State v. Apt, supra,
146 Conn. App. 649–50. The Appellate Court further
observed that the trial court had enhanced the defen-
dant’s sentence pursuant to § 53a-40b by adding two
years to the underlying sentence for the larceny charge.
Id., 650. Thus, rather than vacating the defendant’s sen-
tence and remanding the case for resentencing, the
Appellate Court concluded that ‘‘the proper remedy is
to vacate the sentence enhancement and to remove the
additional two years from the defendant’s sentence.’’
Id. Because the Appellate Court concluded that the state
could not pursue the sentence enhancement on remand
as a matter of law, it declined to reach the defendant’s
claim that he had a right to a jury determination on the
sentence enhancement issue. Id., 646 n.4.
On appeal to this court following our grant of certifi-
cation, the state does not challenge the Appellate
Court’s conclusion that the trial court improperly had
allowed the state to introduce the erased records of
the defendant’s prior charges. Rather, the state claims
only that the Appellate Court improperly determined
that the state could not seek to prove the basis for the
sentence enhancement on remand. According to the
state, the erasure statute does not preclude the trial
court from seeking to enhance the defendant’s sentence
pursuant to § 53a-40b after the records relating to the
arrest for which the defendant was on pretrial release
have been erased, and, because there is alternative evi-
dence that the state can use to prove that the defendant
was on pretrial release when he committed the larceny,
the case should be remanded to the trial court for a
new hearing at which the state can prove the basis
for the sentence enhancement. The defendant contends
that the Appellate Court correctly concluded that the
state could not pursue the sentence enhancement mat-
ter further. Alternatively, the defendant maintains that,
if we permit the state to prove the basis for the sentence
enhancement at a new hearing, he has a right to a jury
trial at which the state would be required to prove its
case beyond a reasonable doubt. For the reasons set
forth hereinafter, we agree with the state that, on
remand, it is not barred from pursuing the sentence
enhancement on the basis of evidence other than the
erased court records. With respect to the defendant’s
contention that he has the right to a jury determination
regarding the sentence enhancement matter, we decline
to reach that claim. Accordingly, we reverse in part the
judgment of the Appellate Court.
I
The state first claims that the Appellate Court incor-
rectly concluded that the state could not prove on
remand the basis for the defendant’s sentence enhance-
ment under § 53a-40b because § 54-142a categorically
bars the trial court from imposing such an enhancement
when, as in the present case, the records pertaining to
the charges for which the defendant was on pretrial
release have been erased.7 We conclude that the state
is not precluded from pursuing a sentence enhancement
on remand.
The parties agree that, as a general rule, when an
appellate court reverses a judgment of conviction due
to the improper admission of evidence, the appropriate
remedy is to vacate the judgment and to remand the
case for a new trial. See, e.g., State v. Gray, 200 Conn.
523, 539, 512 A.2d 217, cert. denied, 479 U.S. 940, 107
S. Ct. 423, 93 L. Ed. 2d 373 (1986). This is true even
when there would have been insufficient evidence to
sustain the conviction in the absence of the improperly
admitted evidence. See id., 538–39. ‘‘[When] a reversal
of a conviction is not a result of insufficiency of evi-
dence but is predicated on . . . the reception of inad-
missible evidence . . . a remand for a new trial is
proper, and an appellate court should not review the
remaining evidence to determine whether it is sufficient
to sustain the conviction.’’ Id., 539. As we observed in
Gray, without the benefit of this rule, the state ‘‘would
have to assume every ruling by the trial court on the
evidence to be erroneous and [marshal] and offer every
bit of relevant and competent evidence,’’ which ‘‘would
adversely affect the administration of justice . . . .’’
Id., 538. Thus, merely because the only evidence on
which the state relied in the present case to prove the
sentence enhancement, namely, the erased court
records, subsequently has been determined to be inad-
missible would not, ordinarily, preclude the state from
proving the basis for that enhancement on remand.
In the present case, however, the Appellate Court
interpreted § 54-142a to prohibit the trial court from
imposing the sentence enhancement under § 53a-40b
because the records relating to the arrest for which the
defendant was on pretrial release had been erased prior
to the imposition of the enhancement. Thus, for present
purposes, our inquiry focuses on the proper interpreta-
tion of §§ 53a-40b and 54-142a. ‘‘When construing a stat-
ute, [o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature. . . . In
other words, we seek to determine, in a reasoned man-
ner, the meaning of the statutory language as applied
to the facts of [the] case, including the question of
whether the language actually does apply. . . . In seek-
ing to determine that meaning, General Statutes § 1-2z
directs us first to consider the text of the statute itself
and its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered. . . . When a statute is not plain and unam-
biguous, we also look for interpretive guidance to the
legislative history and circumstances surrounding its
enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter . . . .’’ (Internal quotation marks omit-
ted.) State v. Moulton, 310 Conn. 337, 357, 78 A.3d 55
(2013).
Section 53a-40b authorizes the trial court to impose
an additional term of imprisonment when a person is
‘‘convicted of an offense committed while released pur-
suant to sections 54-63a to 54-63g, inclusive, or sections
54-64a to 54-64c, inclusive . . . .’’ In turn, General Stat-
utes §§ 54-63a through 54-63g and 54-64a through 54-
64c set forth the procedures to be followed for the
release of a person pending trial, sentencing or appeal.
In the present case, the trial court found that the defen-
dant was subject to the enhancement because the state
had proven that he committed the underlying felony,
larceny in the third degree, while he was on release
pending trial on other offenses.
Section 54-142a (e) (3) provides that ‘‘[a]ny person
who shall have been the subject of . . . an erasure
shall be deemed to have never been arrested within the
meaning of the general statutes with respect to the
proceedings so erased and may so swear under oath.’’
As we have explained, the Appellate Court concluded
that the state could not retry the defendant under § 53a-
40b because ‘‘the sole subject of the trial court’s inquiry’’
when deciding whether to impose an enhancement is
‘‘the defendant’s pretrial release status on the particular
date in question,’’ which, the court reasoned, ‘‘is inextri-
cably related to the defendant’s prior arrests.’’ State v.
Apt, supra, 146 Conn. 649. We understand the reasoning
of the Appellate Court to be that, because a person may
be on pretrial release only if he is first arrested, a finding
that the defendant was on pretrial release necessarily
includes the subsidiary finding that the defendant had
been arrested. In light of the fact that § 54-142a (e) (3)
provides that a person whose records are erased ‘‘shall
be deemed to have never been arrested within the mean-
ing of the general statutes with respect to the proceed-
ings so erased,’’ the Appellate Court concluded that any
determination by the trial court that the defendant was
on pretrial release would violate § 54-142a (e) (3). See
id., 650.
The state challenges this analysis, claiming that the
language in § 54-142a (e) (3) on which the Appellate
Court relied operates only to restore a person’s arrest
record to the status quo, thus insulating him from the
adverse societal effects that otherwise might result
from such a record. In the state’s view, however, § 54-
142a (e) (3) does not purport to alter the historical fact
that a person was on pretrial release on a specific date.
The state further contends that the finding required by
§ 53a-40b—that the defendant committed an offense
while he was on pretrial release—relates only to the
historical fact that the defendant was on pretrial release
at a point in time, and not to the fact of the arrest that
preceded it. Under this interpretation of § 54-142a (e)
(3), which hinges on the distinction between the defen-
dant’s status as an arrestee and his status as a person
who has been released pending trial, the state is not
barred from proving the basis for the defendant’s sen-
tence enhancement under § 53a-40b on remand.
We agree with the state that § 54-142a does not pro-
hibit the imposition of a sentence enhancement in the
present case. As an initial matter, we note that, although
logic dictates that a person cannot be on pretrial release
without first having been arrested, the language of
§ 53a-40b focuses only on the fact of the release, and
not the arrest that preceded it. Section 53a-40b does,
however, require a finding that the defendant was
‘‘released pursuant to sections 54-63a to 54-63g, inclu-
sive, or sections 54-64a to 54-64c, inclusive . . . .’’
(Emphasis added.) With respect to persons released
pending trial, these statutes expressly apply only to
arrested persons. In addition, although § 54-142a (e) (3)
provides that a person whose records have been erased
is ‘‘deemed to have never been arrested within the
meaning of the general statutes with respect to the
proceedings so erased,’’ it is unclear whether this lan-
guage prohibits a court from making any finding that
relates to those proceedings. Although it may be reason-
able to conclude that a person who is ‘‘deemed to have
never been arrested . . . with respect to the proceed-
ings so erased’’; General Statutes § 54-142a (e) (3); also
cannot be found to have been on pretrial release in
connection with those proceedings, it is also reasonable
to read that language as only barring the use of that
person’s erased arrest records and not precluding all
proof of the fact that he was on pretrial release on
a specific date while the proceedings that had been
commenced as a result of the arrest were pending.
Because the relevant statutory language does not pro-
vide a definitive answer, we turn to extratextual evi-
dence in an effort to discern the intent of the legislature.
See, e.g., State v. Brown, 310 Conn. 693, 703, 80 A.3d
878 (2013) (when statute susceptible to more than one
interpretation, court may look to extratextual sources
to ascertain its meaning).
The legislative history of the erasure statute, and of
§ 54-142a (e) (3) in particular, strongly supports the
state’s position. That legislative history indicates that
the erasure statute was intended to insulate people
who are arrested but never convicted from the adverse
societal consequences that result from having an arrest
record, and that the specific provision at issue in the
present case, namely, § 54-142a (e) (3), was designed
to further that purpose. Initially enacted in 1963; see
Public Acts 1963, No. 482; the original version of the
erasure statute merely provided that, upon the petition
of a person who was acquitted of an offense or whose
charges were nolled, the court could order the erasure
of the records relating to the proceedings in question.
See General Statutes (Cum. Supp. 1963) § 54-90.8 As
Representative Richard J. Duda explained, the act was
necessary because ‘‘an individual who is arrested car-
ries a penalty or a stigma of a sort despite the fact that
he has not been guilty of any crime.’’ 10 H.R. Proc., Pt.
9, 1963 Sess., p. 3499; see also 10 S. Proc., Pt. 8, 1963
Sess., p. 2730, remarks of Senator Morgan K. McGuire
(indicating that, without such legislation, person who is
arrested but never convicted nonetheless retains record
that ‘‘often affect[s] his ability to get a job and so on’’).
Because the original version of the erasure statute
provided only for the erasure of the records relating to
a person’s arrest, and did not expressly address the fact
of the arrest itself, the question arose as to whether a
person whose arrest records were erased lawfully could
attest that he never had been arrested. See 12 H.R. Proc.,
Pt. 5, 1967 Sess., pp. 1760–61, remarks of Representative
John A. Carrozzella (speaking in support of clarification
of erasure statute ‘‘because there was some question
as to exactly how [the] . . . statute operated,’’ Repre-
sentative Carrozzella noted that proposed clarifying
amendment provided ‘‘that any person who has had his
record so erased can answer a question have you been
arrested by saying no and not be guilty of any deceit
. . . by saying no [to] the effect that he has been
arrested’’); id., p. 1761, remarks of Representative Carl
R. Ajello (‘‘[t]his becomes particularly important when
a young person is attempting to either enter the armed
forces or secure employment in a contract, defense
contract, I should say, where they have got to certify
as to their previous records and as to whether they
have ever been arrested’’). To address this concern,
the legislature amended the erasure statute in 1967 to
provide that ‘‘[n]o person who shall have been the sub-
ject of such an erasure order shall be deemed to have
been arrested ab initio within the meaning of the general
statutes with respect to the proceedings so erased.’’
Public Acts 1967, No. 181, codified at General Statutes
(Rev. to 1968) § 54-90. The 1967 amendment therefore
clarified that, when a person has his arrest records
erased, he may state that he never has been arrested
and not be exposed to accusations that he lied about
his record.9 In 1974, the legislature again amended the
statute to further clarify this point by expressly provid-
ing that such a person ‘‘may . . . swear under oath’’
that he never has been arrested.10 Public Acts 1974, No.
74-163, § 2, codified at General Statutes (Rev. to 1975)
§ 54-90 (e).
This history makes clear that ‘‘the purpose of the
erasure statute . . . is to protect innocent persons
from the harmful consequences of a criminal charge
[that] is subsequently dismissed. . . . The statute does
not and cannot insulate him from the consequences
of his prior actions.’’ (Citations omitted; emphasis in
original; internal quotation marks omitted.) State v.
Morowitz, 200 Conn. 440, 451, 512 A.2d 175 (1986). As
the state maintains, § 53a-40b does not purport to pun-
ish a defendant for a previous criminal charge. Rather,
it provides for an enhanced sentence when a defendant
violates a condition of his release, namely, that he not
commit a crime during the period of release. See Gen-
eral Statutes § 54-64e (a) (‘‘[w]hen any person is
released pursuant to the provisions of sections 54-63a
to 54-63g, inclusive, or sections 54-64a to 54-64c, inclu-
sive, it shall be a condition of such release that the
person released not commit a federal, state or local
crime during the period of release’’). Indeed, §§ 53a-
40b and 54-64e were both enacted in 1990 as part of a
bail reform effort aimed at preventing the commission
of violent crimes by persons who are released on bail.
The purpose of the legislation was to ‘‘provide society
at large, and victims and witnesses in particular, with
greater protection from criminal acts by person[s] who
are on release while waiting trial or following convic-
tion.’’ 33 H.R. Proc., Pt. 23, 1990 Sess., pp. 8212–13,
remarks of Representative Thomas D. Ritter. In addition
to imposing as a condition of release that the defendant
not commit a crime while he is on pretrial release and
authorizing the court to enhance the defendant’s sen-
tence when he violates that condition, the legislation
required trial judges to consider the safety risk posed
by the defendant when the judges set conditions of
release for persons charged with most felonies; Public
Acts 1990, No. 90-261, § 9, codified at General Statutes
(Rev. to 1991) § 54-64a (b) (1); and to impose additional
conditions or to revoke the release of a defendant who
violates the conditions of his release. Public Acts 1990,
No. 90-213, § 53, codified at General Statutes (Rev. to
1991) § 54-64f. Thus, it is apparent that the legislature’s
purpose in enacting § 53a-40b was to penalize those
who commit additional crimes while they are on pretrial
release, and it would thwart that purpose to interpret
§ 54-142a to immunize the defendant from a sentence
enhancement for reasons that have nothing to do with
his culpability for violating the conditions of his
release.11
The Appellate Court’s interpretation of § 54-142a (e)
(3) as precluding a trial court from finding that the
defendant was on pretrial release because that finding
‘‘is inextricably related to the defendant’s prior arrests’’;
State v. Apt, supra, 146 Conn. App. 649; is also inconsis-
tent with another related provision of the General Stat-
utes, namely, the accelerated pretrial rehabilitation
statute. See General Statutes § 54-56e. Specifically, § 54-
56e (b)12 requires that, before a court may grant acceler-
ated rehabilitation, the defendant must state under oath
in open court either that (1) he has never had such a
program invoked on his behalf, (2) he has had the pro-
gram invoked on his behalf but only for certain minor
offenses or violations for which a term of imprisonment
of one year or less could be imposed and that at least
ten years have passed since the charges for which the
program was invoked were dismissed, or (3) if the
defendant is a veteran of the armed forces, that he
previously has not had the program invoked on his
behalf more than one time. Section 54-56e (b) also
provides that ‘‘[n]o defendant shall be allowed to partici-
pate in the pretrial program for accelerated rehabilita-
tion more than two times.’’ As we mentioned previously,
upon dismissal of the charges after successful comple-
tion of the program of accelerated rehabilitation, ‘‘all
records of such charges shall be erased pursuant to
section 54-142a.’’ General Statutes § 54-56e (f). Thus,
§ 54-56e plainly requires the trial court to inquire into
whether a defendant previously has participated in the
accelerated rehabilitation program. Under the Appel-
late Court’s interpretation of § 54-142a (e) (3), however,
a trial court would be precluded from conducting such
an inquiry because, as when a defendant is on pretrial
release, participation in an accelerated rehabilitation
program ‘‘is inextricably related to the defendant’s prior
arrests.’’ State v. Apt, supra, 649. We therefore believe
that, although the legislature has banned the use of
certain arrest records by providing for their erasure, it
did not intend that § 54-142a also would be used to
shield a defendant from the consequences of his actions
while he is on pretrial release following an arrest for
which the records have been erased.
The statutory interpretation that the defendant
advances also would lead to untenable results in other
situations. For example, under that interpretation, if a
defendant committed an assault on a judicial marshal
while being presented in court for arraignment, and the
charges for which the defendant was being arraigned
subsequently were dismissed and the related court
records erased, the state could not introduce evidence
explaining why the defendant was present in court at
the time he assaulted the marshal. There simply is no
reason to think that the legislature, in passing the era-
sure statute, would have intended to limit the state’s
proof in that way.
The defendant nevertheless argues that our decision
in State v. Fagan, 280 Conn. 69, 905 A.2d 1101 (2006),
cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed.
2d 236 (2007), in which we concluded that, when a
defendant pleads guilty under § 53a-40b, the trial court
need not canvass the defendant to ensure that the plea
is knowing and voluntary; see id., 101–102; precludes
the state from proving the basis for a sentence enhance-
ment under § 53a-40b when the court records have been
erased. We disagree with this claim.
In Fagan, after a jury found the defendant, Damon
Fagan, guilty of several crimes, he entered a plea of
guilty under § 53a-40b to committing the offenses while
he was on pretrial release. Id., 75, 84–85. On appeal,
Fagan claimed that his plea was invalid because the
trial court had failed to inform him that he had a right
to a jury determination on the sentence enhancement
issue, which, he maintained, rendered his plea involun-
tary in violation of his right to due process.13 Id., 89.
Because the trial court would be required to so inform
the defendant only if he did have a right to a jury deter-
mination on that issue; see id., 90–91; our analysis
focused on that threshold question.
We first explained that, in Apprendi v. New Jersey,
530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000), and Blakely v. Washington, 542 U.S. 296, 301–
304, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the United
States Supreme Court held that the due process clause
of the fourteenth amendment provides criminal defen-
dants the right to a jury determination of any fact, other
than that of a prior conviction, that increases a defen-
dant’s punishment beyond the statutory maximum. See
State v. Fagan, supra, 280 Conn. 93. We then noted that
‘‘numerous federal courts that have applied Apprendi
[and Blakely] have understood that these cases clearly
do not limit a judge’s authority to make legal determina-
tions that precede a jury’s fact-finding and [the] imposi-
tion of sentence.’’ Id., 95. We also observed that ‘‘several
state courts have concluded that other facts, such as
the defendant’s status as being on probation or parole
and the defendant’s release date from prison, which
may be used as a basis for a sentence enhancement,
also fall within [the prior conviction] exception because
they arise from and essentially are legal determinations
analogous to a prior conviction.’’ Id., 96. We then analo-
gized the determination of a defendant’s pretrial release
status to a defendant’s probation or parole status,
explaining that ‘‘a defendant’s status under [§ 53a-40b]
arises out of some antecedent encounter with the crimi-
nal justice system. The record of that antecedent
encounter is a judicial record of which a court may take
judicial notice.’’ (Internal quotation marks omitted.) Id.,
97–98. We also observed that Fagan’s pretrial release
status was ‘‘a fact that he not only reasonably could
not dispute but conceded in his [appellate] briefs
. . . .’’ Id., 100. Finally, we stated that ‘‘[w]hether
[Fagan] was [on pretrial release] . . . and when he was
so released are questions that properly can be answered
by mere reference to the court file’’; id., 100–101; and,
consequently, the fact of Fagan’s pretrial release status
‘‘properly could have been the subject of judicial
notice.’’ Id., 101. We therefore concluded that ‘‘[Fagan’s]
status at the time he committed [the] crimes [in ques-
tion] involved a legal determination, not a factual one,
and . . . accordingly, he was not entitled to a jury trial
on the issue of his status.’’ Id., 94.
The defendant asserts that our conclusion in Fagan
precludes the state from pursuing a new hearing on
the sentence enhancement in the present case because
Fagan ‘‘is properly read to constitute a determination
that the enhancement presents a legal question to be
determined by the judge based on the court records,
rather than a question of fact that could be proved by
any type of evidence.’’ (Emphasis added.) According to
the defendant, because, in Fagan, we based our conclu-
sion that Fagan did not have a right to a jury finding
as to the sentence enhancement under § 53a-40b on the
fact that his pretrial release status could be determined
by mere reference to the court file, a trial court is
precluded from making that determination when that
file has been erased.
The defendant misreads Fagan. In explaining that
Fagan was not entitled to a jury finding under § 53a-
40b because the determination of his status could be
made by taking judicial notice of the court file, we did
not suggest that the trial court is limited to making that
determination on the basis of court records in all cases.
See State v. Fagan, supra, 280 Conn. 100–101. Rather,
we were addressing the specific factual circumstances
presented by that case, in which the court file from the
previous arrest was still available, and Fagan actually
conceded that he was on pretrial release when he com-
mitted the subsequent offenses. See id., 101. We merely
explained that, when the court can take judicial notice
of the court file to determine a defendant’s pretrial
release status, the defendant is not entitled to a jury
determination of that issue because that determination
is similar to the fact of a prior conviction that the court
in Apprendi expressly stated need not be submitted to
a jury. See Apprendi v. New Jersey, supra, 530 U.S. 490.
We note, as well, that the defendant’s reading of
Fagan as requiring the trial court to make the determi-
nation of a defendant’s pretrial release status solely
and exclusively on the basis of the court file does not
withstand scrutiny because it would unnecessarily limit
the trial court’s authority to impose an enhancement
for reasons that have nothing to do with the purpose
of § 53a-40b. Under the defendant’s reading of Fagan,
for example, that case would preclude the state from
seeking an enhancement in cases in which the court
file from the case in which the defendant was on pretrial
release is missing. Thus, we reject the defendant’s claim
that Fagan precludes the state from pursuing a sentence
enhancement pursuant to § 53a-40b when the court file
has been erased.
We also reject the defendant’s contention that, on
remand, the state should be precluded from pursuing
a new hearing on the sentence enhancement issue
because the admission of any evidence concerning the
defendant’s pretrial release status would violate Gen-
eral Statutes § 54-142c (a). Section 54-142c (a) provides
in relevant part that ‘‘any criminal justice agency having
information contained in such erased records shall not
disclose to anyone the existence of such erased records
or information pertaining to any charge erased under
any provision of this part, except as otherwise provided
in this chapter.’’ The defendant argues that the setting
of bail is a judicial proceeding that occurred during the
case for which the records were erased, and, therefore,
any evidence concerning that proceeding is ‘‘informa-
tion pertaining to’’ the erased charges that cannot be
disclosed under § 54-142c (a).
The defendant’s argument ignores the fact that § 54-
142c (a) excepts from its nondisclosure provisions
information that may be disclosed ‘‘as otherwise pro-
vided in this chapter.’’ As the state has aptly observed,
the erasure statute expressly provides that transcripts
from the proceedings related to the erased charges are
not considered ‘‘court records’’ for purposes of that
statute. (Internal quotation marks omitted.) General
Statutes § 54-142a (h); see footnote 1 of this opinion.
Transcripts of the erased proceedings, therefore, are
not subject to erasure and may be disclosed without
violating § 54-142c.14 Moreover, we previously have con-
cluded that § 54-142a does not preclude the state from
eliciting the testimony of private parties whose knowl-
edge of the events related to a case is not derived from
the erased records. For example, in State v. Morowitz,
supra, 200 Conn. 440, the defendant, Lawrence J. Moro-
witz, a podiatrist, was charged with sexually assaulting
a female patient. See id., 441. Morowitz previously had
been arrested for a similar sexual assault on another
female patient, but the charges in that case were dis-
missed and the records erased after he successfully
completed accelerated rehabilitation. Id., 442. The state
introduced the testimony of the alleged victim from the
dismissed case, who testified about the details of the
assault. Id., 443–44. In rejecting Morowitz’ claim that
the erasure statute prohibited the state’s use of that
testimony, we observed that ‘‘[t]here is no reference in
the [erasure] statute to disclosures by private parties
or to matters extraneous to the records themselves.’’ Id.,
450. Recognizing the ‘‘distinction between testimony
based on independent personal knowledge and testi-
mony based on inadmissible records’’; id.; we concluded
that, ‘‘[b]ecause the disputed testimony was based on
personal knowledge independent of the erased records,
§ 54-142a did not bar its admission.’’15 Id., 451.
As the foregoing demonstrates, §§ 54-142a and 54-
142c do not establish a per se bar on the disclosure of
information relating to a case for which the records
have been erased. Although the defendant argues that,
in the present case, any evidence the state may offer
would be inadmissible because it would have no way of
procuring such evidence without disclosing information
contained in the erased records, that claim is not ripe
for review. We do not yet know what evidence the state
will rely on if it ultimately decides to prove the basis
for the defendant’s sentence enhancement on remand,
and it would be premature for us to determine the
admissibility of evidence that the state may or may not
offer in a future proceeding. Cf. State v. Kemah, 289
Conn. 411, 436–37, 957 A.2d 852 (2008) (in interlocutory
appeal in which this court remanded case to trial court
for it to determine, inter alia, whether complainant con-
sented to disclosure of mental health records, defen-
dant’s claim that he had right to review records to
determine whether they contained exculpatory materi-
als, irrespective of complainant’s consent, was not ripe
for review). Although, as the state acknowledges, it may
not use the erased records on remand, we express no
opinion regarding the admissibility of any other evi-
dence it may offer. We merely conclude that §§ 54-142a
and 54-142c do not categorically preclude the state from
seeking to establish the basis for the defendant’s sen-
tence enhancement in the present case by use of evi-
dence other than the erased records.16 Accordingly, we
reject the defendant’s contention that the state is barred
as a matter of law from proving the basis for the defen-
dant’s sentence enhancement at a new hearing on
remand.17
II
The defendant also claims that, if the state is permit-
ted to reestablish the basis for the defendant’s sentence
enhancement under § 53a-40b, he has a right both to a
jury determination of the elements of that enhancement
and to a finding of guilt beyond a reasonable doubt.
We decline to address this claim.
The following additional facts and procedural history
are relevant to this issue. Prior to sentencing, defense
counsel objected to the trial court’s imposition of the
sentence enhancement. Defense counsel maintained
that, under Apprendi v. New Jersey, supra, 530 U.S.
466, and its progeny, any fact that could result in an
increase in his sentence must be proven to a jury beyond
a reasonable doubt and, therefore, that the trial court
could not impose the enhancement in the absence of
such a jury determination.18 The trial court overruled
the objection and, after finding that the defendant had
committed the larceny while on pretrial release, added
two years to the defendant’s underlying sentence pursu-
ant to § 53a-40b. On appeal to the Appellate Court, the
defendant claimed that he was denied due process of
law because the trial court enhanced his sentence for
his larceny conviction without first submitting the issue
of the enhancement to the jury. See State v. Apt, supra,
146 Conn. App. 646 n.4. The Appellate Court declined
to address that claim, however, because it concluded
that the trial court did not have the authority to impose
the enhancement in the first instance. See id. There-
after, we granted the state’s petition for certification to
address whether the Appellate Court improperly con-
cluded that the state could not pursue the sentence
enhancement at a new hearing. See State v. Apt, supra,
311 Conn. 902–903. Although the defendant did not file
a statement of adverse rulings to be considered in the
event of a new hearing; see Practice Book § 84-11; he
argued in his brief that, if we conclude that the state
has a right to pursue the sentence enhancement issue
at a new hearing, we should address his claim under
Apprendi.
As we discussed previously, in State v. Fagan, supra,
280 Conn. 69, this court concluded that a jury finding
as to a defendant’s pretrial release status was not consti-
tutionally required because the trial court in that case
determined that Fagan was on pretrial release by taking
judicial notice of the court records. See id., 100–101.
In the present case, the defendant does not contend
that we should overrule Fagan and, in fact, concedes
that Fagan controls when court records are available
to prove a defendant’s pretrial release status. Rather,
the defendant argues that, if the state is afforded the
opportunity to prove the basis for the sentence enhance-
ment with evidence other than court records, ‘‘then it
will be necessary to ascertain the import of Apprendi
when the state seeks to introduce evidence subject to
determinations of credibility and accuracy to prove the
[basis for the enhancement].’’ Thus, although the defen-
dant couches his claim as one challenging the propriety
of the trial court’s imposition of the enhancement, it
appears that what he actually seeks is a ruling that he
is entitled to a jury determination on remand. At this
point, however, we do not know what evidence the
state will offer on remand if it ultimately decides to
prove the basis for the defendant’s sentence enhance-
ment at a new hearing. Without knowing the state’s
evidence, we cannot assess the merits of the defen-
dant’s claim that Apprendi requires a jury determina-
tion of his pretrial release status when the evidence
that may be offered at a new hearing to prove that
status requires credibility determinations by the fact
finder. See State v. Riley, 315 Conn. 637, 661–63, 110
A.3d 1205 (2015) (although this court concluded that
defendant was entitled to new sentencing hearing, it
declined to address defendant’s claim that trial court
could not impose sentence of life imprisonment without
affording him opportunity to obtain early release, rea-
soning that, ‘‘[b]ecause the defendant’s claim rest[ed]
on the factual predicate of a sentence that is the func-
tional equivalent to life imprisonment without parole,
it [potentially was] unnecessary to decide whether the
defendant [was] entitled to a second look’’). Our conclu-
sion in this regard finds further support in the general
rule that ‘‘[c]onstitutional issues are not considered
unless absolutely necessary to the decision of a case.’’
(Internal quotation marks omitted.) State v. Cofield, 220
Conn. 38, 49–50, 595 A.2d 1349 (1991). Accordingly, we
will not address the defendant’s claim at this time.
The judgment of the Appellate Court is reversed inso-
far as it precluded the state from seeking a new hearing
to establish the basis for the defendant’s sentence
enhancement, and the case is remanded to that court
with direction to remand the case to the trial court
for a new hearing on the sentence enhancement and,
thereafter, for resentencing; the judgment of the Appel-
late Court is affirmed in all other respects.
In this opinion ROGERS, C. J., and EVELEIGH and
MULLINS, Js., concurred.
* This appeal originally was argued before a panel of this court consisting
of Chief Justice Rogers and Justices Palmer, Zarella, Eveleigh, McDonald
and Robinson. Thereafter, Judge Mullins was added to the panel, read the
briefs and appendices, and listened to a recording of oral argument prior
to participating in this decision.
1
General Statutes § 54-142a provides in relevant part: ‘‘(a) Whenever in
any criminal case, on or after October 1, 1969, the accused, by a final
judgment, is found not guilty of the charge or the charge is dismissed, all
police and court records and records of any state’s attorney pertaining to
such charge shall be erased upon the expiration of the time to file a writ
of error or take an appeal, if an appeal is not taken, or upon final determina-
tion of the appeal sustaining a finding of not guilty or a dismissal, if an
appeal is taken. . . .
***
‘‘(c) (1) Whenever any charge in a criminal case has been nolled in the
Superior Court . . . if at least thirteen months have elapsed since such
nolle, all police and court records and records of the state’s or prosecuting
attorney or the prosecuting grand juror pertaining to such charge shall be
erased . . . .
***
‘‘(e) (1) The clerk of the court or any person charged with retention and
control of such records in the records center of the Judicial Department or
any law enforcement agency having information contained in such erased
records shall not disclose to anyone, except the subject of the record, upon
submission pursuant to guidelines prescribed by the Office of the Chief Court
Administrator of satisfactory proof of the subject’s identity, information
pertaining to any charge erased under any provision of this section and
such clerk or person charged with the retention and control of such records
shall forward a notice of such erasure to any law enforcement agency to
which he knows information concerning the arrest has been disseminated
and such disseminated information shall be erased from the records of such
law enforcement agency. Such clerk or such person, as the case may be,
shall provide adequate security measures to safeguard against unauthorized
access to or dissemination of such records or upon the request of the
accused cause the actual physical destruction of such records, except that
such clerk or such person shall not cause the actual physical destruction
of such records until three years have elapsed from the date of the final
disposition of the criminal case to which such records pertain.
***
‘‘(3) Any person who shall have been the subject of such an erasure shall
be deemed to have never been arrested within the meaning of the general
statutes with respect to the proceedings so erased and may so swear
under oath.
***
‘‘(h) For the purposes of this section, ‘court records’ shall not include a
record or transcript of the proceedings made or prepared by an official
court reporter, assistant court reporter or monitor.’’
Although § 54-142a was the subject of a recent amendment; see Public
Acts 2012, No. 12-133, § 23; that amendment has no bearing on the merits
of this appeal. We thus refer to the current revision of § 54-142a for conve-
nience.
2
General Statutes § 53a-40b provides: ‘‘A person convicted of an offense
committed while released pursuant to sections 54-63a to 54-63g, inclusive,
or sections 54-64a to 54-64c, inclusive, other than a violation of section 53a-
222 or 53a-222a, may be sentenced, in addition to the sentence prescribed
for the offense to (1) a term of imprisonment of not more than ten years
if the offense is a felony, or (2) a term of imprisonment of not more than
one year if the offense is a misdemeanor.’’
Although § 53a-40b was the subject of a recent amendment; see Public
Acts 2010, No. 10-36, § 21; that amendment has no bearing on the merits of
this appeal. We thus refer to the current revision of § 53a-40b for conve-
nience.
3
General Statutes § 53a-124 (a) provides in relevant part: ‘‘A person is
guilty of larceny in the third degree when he commits larceny, as defined
in section 53a-119, and . . . (2) the value of the property or service exceeds
two thousand dollars . . . .’’
4
Specifically, we granted certification to appeal on the following issue:
‘‘Did the Appellate Court, having held that the trial court committed harmful
evidentiary error by admitting erased records into evidence in support of
a sentence enhancement, properly determine that the state could not pursue
a rehearing on sentence enhancement?’’ State v. Apt, supra, 311 Conn.
902–903.
5
General Statutes § 54-56e provides in relevant part: ‘‘(a) There shall be
a pretrial program for accelerated rehabilitation of persons accused of a
crime or crimes or a motor vehicle violation or violations for which a
sentence to a term of imprisonment may be imposed, which crimes or
violations are not of a serious nature. Upon application by any such person
for participation in the program, the court shall, but only as to the public,
order the court file sealed.
‘‘(b) The court may, in its discretion, invoke such program on motion of
the defendant or on motion of a state’s attorney or prosecuting attorney
with respect to a defendant (1) who, the court believes, will probably not
offend in the future, (2) who has no previous record of conviction of a
crime or of a violation of section 14-196, subsection (c) of section 14-215,
section 14-222a, subsection (a) or subdivision (1) of subsection (b) of section
14-224 or section 14-227a, and (3) who states under oath, in open court or
before any person designated by the clerk and duly authorized to administer
oaths, under the penalties of perjury, (A) that the defendant has never had
such program invoked on the defendant’s behalf or that the defendant was
charged with a misdemeanor or a motor vehicle violation for which a term
of imprisonment of one year or less may be imposed and ten or more years
have passed since the date that any charge or charges for which the program
was invoked on the defendant’s behalf were dismissed by the court, or (B)
with respect to a defendant who is a veteran, that the defendant has not had
such program invoked in the defendant’s behalf more than once previously,
provided the defendant shall agree thereto and provided notice has been
given by the defendant, on a form approved by rule of court, to the victim
or victims of such crime or motor vehicle violation, if any, by registered or
certified mail and such victim or victims have an opportunity to be heard
thereon. Any defendant who makes application for participation in such
program shall pay to the court an application fee of thirty-five dollars.
No defendant shall be allowed to participate in the pretrial program for
accelerated rehabilitation more than two times. For the purposes of this
section, ‘veteran’ means any person who was discharged or released under
conditions other than dishonorable from active service in the armed forces
as defined in section 27-103. . . .’’
6
General Statutes § 54-56e (f) provides in relevant part: ‘‘If a defendant
released to the custody of the Court Support Services Division satisfactorily
completes [accelerated rehabilitation], such defendant may apply for dis-
missal of the charges against such defendant and the court, on finding such
satisfactory completion, shall dismiss such charges. . . . Upon dismissal,
all records of such charges shall be erased pursuant to section 54-142a. . . .’’
7
We reiterate that, because the state concedes that the trial court improp-
erly allowed the state to introduce the erased records into evidence and
that the defendant was prejudiced thereby, the issue presented is whether
the state is precluded from proving the basis for the sentence enhancement
on remand.
8
General Statutes (Cum. Supp. 1963) § 54-90 provides in relevant part:
‘‘Whenever any criminal case is nolled or the accused is found not guilty
. . . the court having jurisdiction, upon petition of the arrested person or
his heirs, may order all police and court records and records of the state’s
or prosecuting attorney pertaining to such case to be erased, provided at least
three years have elapsed from the date of the arrest.’’ (Emphasis omitted.)
9
Number 181 of the 1967 Public Acts further amended the erasure statute
to provide that cases resulting in a dismissal are subject to erasure, and to
prohibit court clerks from disclosing information pertaining to erased
charges.
10
Despite the repeated statements by legislators explaining that the era-
sure statute was intended to further ensure that individuals who have had
their charges dismissed did not face the negative societal consequences that
result from an arrest record, the dissent asserts that this history does not
provide ‘‘much guidance’’ on the ‘‘topic presented by this appeal’’ because
no legislator expressly addressed the interplay between the two statutes.
Footnote 6 of the dissenting opinion. In light of the aforementioned state-
ments in the legislative record, it seems highly likely that the legislature
never addressed the effect of the erasure statute on § 53a-40b simply because
it never contemplated that the erasure statute would be used in this manner.
This is particularly true in view of the fact that the legislative history is
devoid of any suggestion that the erasure statute was intended to immunize
a defendant from the consequences of conduct in which he engages after
an arrest that is subsequently erased, or to prevent a court from inquiring
into matters that have nothing to do with the erased records.
11
The dissent suggests that, in determining how to apply §§ 54-142a and
53a-40b to the facts of this case, we should not consider the legislative
purpose underlying § 53a-40b but, rather, that our focus should be on the
meaning of § 54-142a. See footnote 5 of the dissenting opinion. Ignoring the
purpose of § 53a-40b, however, is contrary to the fundamental principle of
statutory interpretation that ‘‘[o]ur fundamental objective is to ascertain
and give effect to the apparent intent of the legislature’’ by ‘‘determin[ing],
in a reasoned manner, the meaning of the statutory language as applied to
the facts of [the] case . . . .’’ (Internal quotation marks omitted.) State v.
Moulton, supra, 310 Conn. 357. Thus, when construing statutes with objec-
tives that seem to conflict, we must do so with an eye toward effectuating
the policies of both statutes. See, e.g., DiLieto v. County Obstetrics &
Gynecology Group, P.C., 297 Conn. 105, 148–55, 998 A.2d 730 (2010). That
is what we have done in the present case.
The problem that results from the dissent’s refusal to consider the purpose
of § 53a-40b is apparent in its conclusion that allowing the state the opportu-
nity to prove the basis for the sentence enhancement in this case ‘‘is at
odds with the legislature’s intent, in enacting § 54-142a, namely, to protect
people from the collateral consequences of arrests that [do] not lead to
convictions.’’ Text accompanying footnote 10 of the dissenting opinion. It
is quite clear from a review of the statutory scheme that, contrary to the
dissent’s characterization, a sentence enhancement pursuant to § 53a-40b
is not a collateral consequence of an arrest. The event that triggers a defen-
dant’s obligation to refrain from committing additional crimes during the
pretrial period is his release following an arrest, not the arrest itself. This
obligation is imposed as a condition of a defendant’s pretrial release pursuant
to § 54-64e, which also requires that a defendant be given written notice of
the consequences of failing to abide by that condition. General Statutes
§ 54-64e (b). Because this condition is imposed only on those who are
released, a person who is arrested and unable to post bond is not subject
to a sentence enhancement under § 53a-40b if, for example, he commits a
crime while he is incarcerated pending trial. Thus, the enhancement is not
a collateral consequence of the arrest; rather, it is a consequence of the
defendant’s failure to abide by the express conditions of his release.
Finally, because a defendant is given written notice that he will be subject
to a sentence enhancement if he commits a crime while he is on release,
there can be no claim that it is unfair to impose that penalty on a defendant
when the initial arrest is erased after he commits the crime for which
he receives the enhancement. In fact, the dissent’s interpretation would
incentivize those in the defendant’s position to delay any hearing on the
sentence enhancement so as to reap a benefit of erasure that plainly was
not contemplated by the legislature.
12
See footnote 5 of this opinion.
13
Before accepting a guilty plea, a trial court is required to canvass a
defendant to ensure he understands that, by pleading guilty, he ‘‘is waiving
several constitutional rights, including his privilege against self-incrimina-
tion, his right to trial by jury, and his right to confront his accusers.’’ State
v. Andrews, 253 Conn. 497, 503, 752 A.2d 49 (2000). Failure to do so renders
a guilty plea involuntary in violation of the defendant’s due process rights.
See id., 502–503.
14
We reject the defendant’s argument that § 54-142a (h) applies only to
transcripts created prior to erasure. In addition to the fact that the language
of the statute contains no such qualification, under the defendant’s interpre-
tation, the classification of transcripts as court records would depend on
the date on which they were created, and we can discern no indication on
the part of the legislature that the determination of whether a transcript
may be disclosed is dependent on the date of its creation. Moreover, as the
state observes, § 54-142a (h) also provides that records of a proceeding
made by the court reporter or monitor are not considered court records.
Thus, under the defendant’s interpretation, audio recordings and notes of
the proceedings made by the court reporter could be disclosed even after
erasure has taken effect, but transcripts produced from those records would
be subject to disclosure only if they were created prior to erasure. There
is no indication in the statute that the legislature intended such an absurd
result, and we decline to assign this strained reading to the statutory
language.
15
The dissent reads Morowitz to support its conclusion that ‘‘the erasure
statute is aimed at protecting persons from the collateral effects of criminal
proceedings resulting from . . . the status of having been arrested’’; text
accompanying footnote 7 of the dissenting opinion; and contends that our
conclusion leads to an absurd result founded on what it sees as a tension
between the defendant’s legal status, pursuant to § 54-142a (e) (3), as a
person who has not been arrested, and the notion that the state may present
evidence that is not derived from the erased records to establish that the
defendant was on pretrial release when he committed the larceny. According
to the dissent, our interpretation results in ‘‘two parallel realities [that are] at
odds with the legislature’s intent’’ because ‘‘any evidence of the defendant’s
status as a person on pretrial release necessarily derive[s] from erased
records.’’ (Internal quotation marks omitted.) The dissent misreads Moro-
witz and misconstrues the statutes at issue in this case.
First, as we noted previously, the purported inconsistency that the dissent
identifies simply does not exist. There is no conflict between treating a
defendant as having never been arrested under § 54-142a, on the one hand,
and finding that that same defendant was on pretrial release on a certain
date for purposes of a sentence enhancement under § 53a-40b, on the other,
because the enhancement has nothing to do with the defendant’s arrest.
Second, as the dissent acknowledges, Morowitz endorsed a distinction
between ‘‘evidence based on personal knowledge and evidence based on
the erased records,’’ concluding that ‘‘[p]rohibiting the subsequent use of
records of the prior arrest and court proceedings adequately fulfills [the]
purpose [of the erasure statute] . . . .’’ (Emphasis omitted; internal quota-
tion marks omitted.) It is quite clear that evidence of the fact that the
defendant was on pretrial release need not be derived from erased records.
As we have explained, pursuant to § 54-142a (h), transcripts of the proceed-
ings related to erased records are not court records for purposes of the
erasure statute. The dissent fails to explain why, in light of the fact that the
transcripts are not subject to erasure, the state would be precluded from
relying on those transcripts to prove the defendant’s pretrial release status.
In addition, contrary to the dissent’s suggestion, it may be possible for the
state to introduce the testimony of third-party witnesses whose knowledge
of the defendant’s pretrial release status is not derived from the court
records. For example, if the defendant’s roommate posted the defendant’s
bond and was aware of the defendant’s cases, his knowledge of the defen-
dant’s pretrial release status would be derived not from the erased records
but from his memory of the events to which he testified. This evidence falls
squarely within the distinction we set forth in Morowitz, and the dissent
offers no reason why it would be barred by the erasure statute.
16
We also reject the defendant’s contention that the state should be judi-
cially estopped from arguing that § 53a-40b requires a finding of historical
fact that may be proven by evidence other than court records. The defendant
argues that the state’s position is contrary to its argument in the Appellate
Court that the issue of sentence enhancement under § 53a-40b need not be
submitted to a jury because it requires a legal determination as to the
defendant’s status. As the state notes, it consistently has argued both that
a jury finding as to the defendant’s status is not required and that the proper
remedy for the trial court’s improper admission of evidence is to remand
the case for a new hearing on the sentence enhancement issue. Because
the state has not changed its position on appeal, the doctrine of judicial
estoppel does not apply. See, e.g., Dougan v. Dougan, 301 Conn. 361, 372,
21 A.3d 791 (2011) (‘‘[j]udicial estoppel prevents a party in a legal proceeding
from taking a position contrary to a position the party has taken in an earlier
proceeding’’ [internal quotation marks omitted]).
In a similar vein, the defendant argues that the state should be precluded
from seeking the sentence enhancement on remand because ‘‘the state
forfeited any possible entitlement to a new hearing by inducing the trial
court to erroneously admit the erased records.’’ The defendant cites no
authority for the proposition that the state should be penalized for relying
on the evidentiary rulings of the trial court, and, as we discussed previously,
our case law is clear that, when a case is reversed due to the improper
admission of evidence, the proper remedy is to remand the case for a new
trial. See State v. Gray, supra, 200 Conn. 538 (‘‘The prosecution in proving its
case is entitled to rely [on] the rulings of the court and proceed accordingly. If
the evidence offered by the [s]tate is received after challenge and is legally
sufficient to establish the guilt of the accused, the [s]tate is not obligated
to go further and [to] adduce additional evidence that would be, for exam-
ple, cumulative.’’).
17
We therefore remand the case for a new hearing on the sentence
enhancement issue. Consistent with our holding in State v. Miranda, 260
Conn. 93, 129–30, 794 A.2d 506 (adopting aggregate package theory of sen-
tencing), cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002),
the trial court must sentence the defendant anew irrespective of whether
the state proves the basis for the sentence enhancement under § 53a-40b
on remand.
18
The defendant also argued that the state failed to provide adequate
notice that it intended to pursue the enhancement. That claim is not before
us in this appeal.