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STATE OF CONNECTICUT v. JEFFREY SMITH
(AC 40398)
DiPentima, C. J., and Lavine and Bishop, Js.
Syllabus
The defendant, who had been convicted of two counts of the crime of
kidnapping in the first degree, and of felony murder, robbery in the first
degree, and manslaughter in the first degree, appealed from the trial
court’s denial of his motion to correct an illegal sentence. Held:
1. The defendant’s claim that his sentence violated his fifth amendment
protection against double jeopardy was unavailing: the defendant’s sen-
tence for both felony murder and the underlying offenses of kidnapping
and robbery did not violate double jeopardy, as the legislature clearly
intended multiple punishments for felony murder and the predicate
offenses, and although a conviction for felony murder and manslaughter
required proof that the defendant caused the victim’s death, there was
no such requirement for the counts charging robbery and kidnapping;
furthermore, although the defendant was convicted of two counts of
kidnapping of a single victim, each count alleged a violation of a different
subdivision of the kidnapping statute (§ 53a-92 [a] [2] [A] and [B]), which
were separate offenses for double jeopardy purposes given that they
each required proof of a fact that the other did not.
2. The trial court did not abuse its discretion in denying the defendant’s
motion to correct an illegal sentence and determining that the sentencing
court did not improperly merge the defendant’s convictions for felony
murder and manslaughter in the first degree instead of vacating the
manslaughter conviction; although the defendant claimed that vacatur
was required pursuant to State v. Polanco (308 Conn. 242), which estab-
lished that the proper remedy for a defendant convicted of greater and
lesser included offenses in violation of double jeopardy was vacatur
and not merger, and State v. Miranda (317 Conn. 741), which extended
the rule of Polanco to cases involving cumulative homicide convictions
arising from the killing of a single victim, the rules announced in Polanco
and Miranda did not apply retroactively to the defendant’s sentence,
as the defendant’s conviction had long been final at the time when the
rules in Polcano and Miranda were established, and both Polanco and
Miranda involved the exercise of our Supreme Court’s supervisory
authority and announced rules that were based strictly on policy consid-
erations that did not carry constitutional implications.
Argued December 7, 2017—officially released March 27, 2018
Procedural History
Substitute information charging the defendant with
two counts of the crime of kidnapping in the first
degree, and with the crimes of capital felony, murder,
felony murder and robbery in the first degree, brought
to the Superior Court in the judicial district of New
London and tried to the jury before the court, Schimel-
man, J.; verdict and judgment of guilty of two counts
of kidnapping in the first degree, and of felony murder,
robbery in the first degree and the lesser included
offense of manslaughter in the first degree; thereafter,
the court, Strackbein, J., denied the defendant’s motion
to correct an illegal sentence, and the defendant
appealed. Affirmed.
Jeffrey Smith, self-represented, the appellant
(defendant).
Michael L. Regan, state’s attorney, for the appellee
(state).
Opinion
BISHOP, J. The defendant, Jeffrey Smith, appeals
from the judgment of the trial court denying his motion
to correct an illegal sentence. On appeal, the defendant
argues that the court abused its discretion in denying
his motion. Specifically, the defendant claims that his
sentence violates his fifth amendment protection
against double jeopardy, which is applied to the states
through the fourteenth amendment to the United States
constitution. The defendant also argues that the princi-
ples our Supreme Court established in State v. Polanco,
308 Conn. 242, 61 A.3d 1084 (2013), and State v.
Miranda, 317 Conn. 741, 120 A.3d 490 (2015), should
be applied retroactively to the circumstances of his
case. We affirm the judgment of the trial court.
The court’s memorandum of decision sets out the
relevant facts and procedural history. ‘‘The defendant
. . . was charged in a six count information dated July
9, 2001, with capital felony . . . in violation of [General
Statutes (Rev. to 1997) § 53a-54b (5)], murder in viola-
tion of [General Statutes (Rev. to 1997) § 53a-54a], fel-
ony murder in violation of [General Statutes (Rev. to
1997)] § 53a-54c, [two counts of] kidnapping in the first
degree . . . in violation of [General Statutes §§] 53a-
92 (a) (2) (A) [and (B)] and robbery in the first degree
in violation of [General Statutes] § 53a-134 (a) (1).1
‘‘On August 18, 2005, after a jury trial before the Hon.
Stuart Schimelman, the jury returned verdicts of guilty
on felony murder, manslaughter [in the first degree in
violation of General Statutes § 53a-55], both kidnapping
counts and the robbery count. [The defendant] was
acquitted on capital felony and murder.2
‘‘The trial court merged the conviction on manslaugh-
ter with the felony murder [conviction] and sentenced
the defendant to sixty years [of] imprisonment. The
defendant was also sentenced to concurrent sentences
of twenty-five years on each kidnapping count concur-
rently and twenty years on the robbery count all concur-
rent to each other but consecutive to the felony murder
sentence. The total effective sentence was eighty-five
years to serve.’’ (Footnotes added.)
On August 6, 2015, the defendant, representing him-
self,3 filed a motion to correct an illegal sentence pursu-
ant to Practice Book § 43-22, and filed an amended
motion on November 10, 2015. In his motions, the defen-
dant made the following claims to support his double
jeopardy argument: (1) he was unconstitutionally
charged with three homicide offenses for a single act of
homicide; (2) his acquittal on the capital felony charge
barred prosecution on the kidnapping charges because
the capital felony incorporated the kidnapping counts;
(3) he was unlawfully convicted of felony murder as
well as the underlying predicate offenses of kidnapping
and robbery; (4) he was unlawfully convicted of two
counts of kidnapping for a single act of kidnapping;
and (5) the court’s merger of the felony murder and
manslaughter convictions was improper under Polanco
and Miranda, and the court instead should have
vacated the manslaughter conviction. For relief, the
defendant requested that the court vacate the convic-
tion as to the offenses that he alleged violated double
jeopardy and release him on the basis of time served
on the robbery conviction.
The court denied the defendant’s motion on June 27,
2016. In its decision, the court stated: ‘‘The defendant
believes that the [s]tate cannot charge him with multiple
counts of murder and/or kidnapping. This is erroneous.
The information in a criminal prosecution may charge
various aspects of the crimes alleged. The jury, after
hearing the evidence and the instructions to the jury
by the judge may find a defendant guilty or not guilty
on any or all of the charges. Here, the jury found the
defendant guilty of felony murder, manslaughter, rob-
bery and two counts of kidnapping. The jury did not
find the defendant guilty of capital felony and murder.
The defendant erroneously believes [that] an acquittal
on capital felony murder should exonerate him on all
counts of murder. The elements of the charges for
which the defendant was found guilty were met and
the judge sentenced him accordingly.’’ The court also
determined that, based on principles of retroactivity,
‘‘the 2013 decision in Polanco and 2015 decision in
Miranda, which were based on our Supreme Court’s
supervisory authority, do not apply retroactively to the
defendant’s case.’’ This appeal followed.
‘‘We review claims that the court improperly denied
the defendant’s motion to correct an illegal sentence
under an abuse of discretion standard. . . . The juris-
diction of the sentencing court terminates when the
sentence is put into effect, and that court may no longer
take any action affecting the sentence unless it has been
expressly authorized to act. . . . The judicial authority
may at any time correct an illegal sentence or other
illegal disposition, or it may correct a sentence imposed
in an illegal manner or any other disposition made in
an illegal manner. . . . An illegal sentence is essen-
tially one which exceeds the relevant statutory maxi-
mum limits, violates the defendant’s right against
double jeopardy, is ambiguous, or is internally contra-
dictory.’’ (Citations omitted; internal quotation marks
omitted.) State v. Pagan, 75 Conn. App. 423, 429, 816
A.2d 635, cert. denied, 265 Conn. 901, 829 A.2d 420
(2003).
I
On appeal, the defendant argues that the court abused
its discretion in denying his motion to correct an illegal
sentence and he asserts several claims to support the
alleged double jeopardy violations. The state responds
that the defendant’s double jeopardy arguments are
without merit. We agree with the state.
‘‘The double jeopardy clause of the fifth amendment
to the United States constitution provides: [N]or shall
any person be subject for the same offence to be twice
put in jeopardy of life or limb. The double jeopardy
clause [applies] to the states through the due process
clause of the fourteenth amendment. . . . This consti-
tutional guarantee prohibits not only multiple trials for
the same offense, but also multiple punishments for
the same offense in a single trial. . . . Although the
Connecticut constitution does not include a double
jeopardy provision, the due process guarantee of article
first, § 9, of our state constitution encompasses [the]
protection against double jeopardy. . . .
‘‘Double jeopardy analysis in the context of a single
trial is a two-step process. First, the charges must arise
out of the same act or transaction. Second, it must be
determined whether the charged crimes are the same
offense. Multiple punishments are forbidden only if
both conditions are met. . . .
‘‘Traditionally we have applied the Blockburger [v.
United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306
(1932)] test to determine whether two statutes crimi-
nalize the same offense, thus placing a defendant prose-
cuted under both statutes in double jeopardy: [W]here
the same act or transaction constitutes a violation of
two distinct statutory provisions, the test to be applied
to determine whether there are two offenses or only
one, is whether each provision requires proof of a fact
which the other does not. . . . This test is a technical
one and examines only the statutes, charging instru-
ments, and bill of particulars as opposed to the evidence
presented at trial.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) State v. Nixon, 231
Conn. 545, 549–51, 651 A.2d 1264 (1995).
‘‘[T]he Blockburger rule is not controlling when the
legislative intent is clear from the face of the statute
or the legislative history. . . . Double jeopardy protec-
tion against cumulative punishments is only designed
to ensure that the sentencing discretion of the courts
is confined to the limits established by the legislature.
. . . Where . . . a legislature specifically authorizes
cumulative punishment under two statutes, regardless
of whether those two statutes proscribe the same con-
duct under Blockburger, a court’s task of statutory con-
struction is at an end and the prosecutor may seek and
the trial court or jury may impose cumulative punish-
ment under such statutes in a single trial. . . . The
Blockburger test is a rule of statutory construction, and
because it serves as a means of discerning [legislative]
purpose the rule should not be controlling where, for
example, there is a clear indication of contrary legisla-
tive intent. . . . The language, structure and legislative
history of a statute can provide evidence of this intent.’’
(Citations omitted; internal quotation marks omitted.)
State v. Greco, 216 Conn. 282, 292–93, 579 A.2d 84 (1990).
A defendant properly may be convicted and sentenced
for the crimes of felony murder and the predicate
offenses. See id., 297–98; see also State v. Gonzalez,
302 Conn. 287, 318, 25 A.3d 648 (2011).
The defendant’s double jeopardy claim fails with
respect to the convictions for felony murder and its
predicate offenses. In State v. Greco, supra, 216 Conn.
297, our Supreme Court concluded that the legislature
clearly intended multiple punishments for felony mur-
der and the underlying predicate offenses. This conclu-
sion relieves us of the need to apply the Blockburger
test to this aspect of the defendant’s claim. See id.,
292–93. Therefore, the defendant’s kidnapping and rob-
bery convictions do not violate double jeopardy even
though they are the predicate offenses for the defen-
dant’s felony murder conviction.4
The defendant’s alleged double jeopardy violations
regarding his remaining convictions lack merit because
each crime with which the defendant was charged and
of which he was convicted requires proof of a fact that
the others do not. For example, the capital felony count
pursuant to § 53a-54b (5) requires proof of an intent to
kill. In contrast, a conviction for manslaughter in the
first degree and felony murder, in violation of §§ 53a-
55 and 53a-54c, respectively, does not require proof of
such an intent and, instead, requires proof that the
defendant caused the victim’s death. It goes without
saying that the kidnapping and robbery counts neither
require proof of an intent to kill nor proof that the
defendant caused the victim’s death. See General Stat-
utes §§ 53a-92 (a) (2) (A) and (B) (kidnapping in first
degree) and 53a-134 (a) (1) (robbery in first degree).
Finally, we reject the defendant’s claim that his con-
victions for two counts of kidnapping of a single victim
violate double jeopardy. The defendant was convicted
of one count under § 53a-92 (a) (2) (A), and one count
under § 53a-92 (a) (2) (B).5 Our Supreme Court has held
that subdivisions (A) and (B) are separate offenses for
double jeopardy purposes. State v. Tweedy, 219 Conn.
489, 496, 594 A.2d 906 (1991) (‘‘the charged crimes of
kidnapping in the first degree under subdivisions [A]
and [B] of § 53a-92 [a] [2] are separate offenses for
double jeopardy purposes’’ because each requires proof
of element that other does not). Accordingly, the defen-
dant’s claim of a double jeopardy violation is
unavailing.
II
The defendant also claims that the court abused its
discretion in denying his motion to correct an illegal
sentence because during the sentencing phase, the
court merged his convictions for felony murder and
manslaughter in the first degree. The defendant argues
that Polanco and Miranda require vacatur, not merger,
when sentencing a defendant for cumulative homicide
convictions. The state responds that, because our
Supreme Court acted pursuant to its supervisory
authority when it established the rules of Polanco and
Miranda, the guidance of these cases does not apply
retroactively to the defendant’s case. Although our
Supreme Court has not addressed the issue of whether
Polanco and Miranda apply retroactively, we conclude
that, on the basis of well established principles of retro-
activity, Polanco and Miranda do not apply retroac-
tively and, accordingly, they provide no relief to the
defendant.
‘‘It is well settled that [a]ppellate courts possess an
inherent supervisory authority over the administration
of justice. . . . The exercise of our supervisory powers
is an extraordinary remedy to be invoked only when
circumstances are such that the issue at hand, while
not rising to the level of a constitutional violation, is
nonetheless of utmost seriousness, not only for the
integrity of the particular trial but also for the perceived
fairness of the judicial system as a whole. . . .
‘‘We recognize that this court’s supervisory authority
is not a form of free-floating justice, untethered to legal
principle. . . . Rather, the rule invoking our use of
supervisory power is one that, as a matter of policy, is
relevant to the perceived fairness of the judicial system
as a whole, most typically in that it lends itself to the
adoption of a procedural rule that will guide lower
courts in the administration of justice in all aspects of
the [adjudicatory] process. . . . Indeed, the integrity
of the judicial system serves as a unifying principle
behind the seemingly disparate use of [this court’s]
supervisory powers.’’ (Citations omitted; internal quota-
tion marks omitted.) In re Yasiel R., 317 Conn. 773,
789–90, 120 A.3d 1188 (2015).
‘‘Our Supreme Court has specifically stated: In exer-
cising our supervisory power we have frequently given
only prospective effect to changes strictly on policy
considerations that do not carry constitutional implica-
tions.’’ (Internal quotation marks omitted.) Holloway v.
Commissioner of Correction, 72 Conn. App. 244, 250,
804 A.2d 995, cert. denied, 261 Conn. 944, 808 A.2d 1136
(2002); see also In re Daniel N., 323 Conn. 640, 150
A.3d 657 (2016) (holding retroactive application of rule
would exceed scope of supervisory authority). ‘‘In the
past, we have not been consistent in how we have
applied such new rules. In some cases, we have
announced rules under the court’s supervisory power
only prospectively. . . . Yet, in other cases, we have
applied such rules retroactively to the facts of the case
in which the rule is announced. . . . [T]here has been
no rhyme or reason as to when the court has applied
a new rule prospectively or retroactively.’’ (Citations
omitted; footnote omitted.) In re Yasiel R., supra, 317
Conn. 799–801 (Zarrella, J., concurring in part and dis-
senting in part).
‘‘We undermine the rule of law when we promulgate
a new rule under the court’s supervisory authority and
then reverse a trial court’s judgment on the ground that
the trial court had failed to comply with that new rule,
which did not exist at the time of trial.’’ Id., 802 (Zarella,
J., concurring in part and dissenting in part). ‘‘Most
importantly, whatever the cost to individual litigants of
not applying a rule retroactively, it would be vastly
outweighed by the benefits of adhering to the rule of
law.’’ Id., 804 (Zarella, J., concurring in part and dis-
senting in part). ‘‘Limiting our use of supervisory author-
ity to creating only prospective rules therefore will not
constrain our ability to appropriately oversee and
administer the system of justice.’’ (Footnote omitted.)
Id., 805 (Zarella, J., concurring in part and dissenting
in part).
‘‘[J]udgments that are not by their terms limited to
prospective application are presumed to apply retroac-
tively . . . [and] this general rule applies to cases that
are pending and not cases that have resulted in final
judgments.’’ (Internal quotation marks omitted.) State
v. Elias G., 302 Conn. 39, 45, 23 A.3d 718 (2011). ‘‘State
convictions are final for purposes of retroactivity analy-
sis when the availability of direct appeal to the state
courts has been exhausted and the time for filing a
petition for a writ of certiorari [to the United States
Supreme Court] has elapsed or a timely petition has
been finally denied.’’ (Internal quotation marks omit-
ted.) Beard v. Banks, 542 U.S. 406, 411, 124 S. Ct. 2504,
159 L. Ed. 2d 494 (2004). Where the court has not
announced a constitutional procedural rule, it should
not be given retroactive application. Johnson v. War-
den, 218 Conn. 791, 797–98, 591 A.2d 407 (1991).
The application of these norms leads us to the conclu-
sion that the rule of Polanco and Miranda should not
be accorded retroactive application. The following addi-
tional procedural facts are relevant to this conclusion.
The defendant was convicted and sentenced in 2005.
After this court affirmed his conviction, our Supreme
Court denied his petition for certification in 2008. See
State v. Smith, 107 Conn. App. 746, 946 A.2d 926, cert.
denied, 288 Conn. 905, 953 A.2d 650 (2008). There is
nothing in the record showing that the defendant filed
a petition for a writ of certiorari to the United States
Supreme Court, and pursuant to rule 13 of the Rules of
the Supreme Court of the United States, such a petition
must be filed within ninety days after entry of the judg-
ment by our Supreme Court. Accordingly, when the
rules in Polanco and Miranda were established in 2013
and 2015 respectively, the defendant’s 2005 conviction
had long been final.
In State v. Polanco, supra, 308 Conn. 259–60, our
Supreme Court exercised its supervisory authority to
establish that the proper remedy for a defendant con-
victed of greater and lesser included offenses in viola-
tion of double jeopardy was vacatur and not merger.
The court concluded that ‘‘[i]n the present case . . .
we are not inclined to express an opinion on the consti-
tutionality of the merger of convictions approach, spe-
cifically, whether after Rutledge [v. United States, 517
U.S. 292, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996)],
that approach remains a constitutionally permissible
alternative to vacatur. . . . [O]ur supervisory powers
are invoked only in the rare circumstance where [the]
traditional protections are inadequate to ensure the fair
and just administration of the courts . . . . In the pre-
sent case, invocation of those powers is appropriate,
because, first, the jurisprudential underpinnings to this
court’s approval of the merger approach . . . have
since been repudiated, and, second, [that] remedy . . .
is now at odds with the remedy utilized almost uni-
formly by the Circuit Courts of Appeals.’’ (Citations
omitted; internal quotation marks omitted.) Id., 256–58.
Later, in State v. Miranda, supra, 317 Conn. 751, the
court extended the rule of Polanco to cases involving
cumulative homicide convictions arising from the kill-
ing of a single victim. In so doing, the court cited the
same policy considerations that bore on its decision in
Polanco. See id., 750–53.
The court in Polanco expressly declined to opine on
the constitutional aspect of the merger of convictions
approach. Instead, the court made clear that it was for
policy reasons that vacatur was preferred over merger
in a situation involving multiple homicide convictions.
Similarly, in Miranda, the court ruled on the basis of
policy, not constitutional considerations. In order to
avoid ‘‘undermin[ing] the rule of law’’; In re Yasiel R.,
supra, 317 Conn. 802 (Zarrella, J., concurring in part
and dissenting in part); and because our Supreme Court
decided Polanco and Miranda on the basis of policy
considerations, we decline to apply Polanco and
Miranda retroactively in this case. Accordingly, the
court did not abuse its discretion in denying the defen-
dant’s motion to correct and concluding that the sen-
tencing court did not improperly merge the defendant’s
convictions for felony murder and manslaughter in the
first degree instead of vacating the manslaughter con-
viction as Polanco and Miranda now require.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Hereinafter, unless otherwise indicated, all references to §§ 53a-54a, 53a-
54b, and 53a-54c are to the 1997 revision of the statutes.
2
Although acquitted on the murder charge, the defendant was convicted
of the lesser included offense of manslaughter in the first degree.
3
On November 10, 2015, the Public Defender’s Office filed an Anders
brief, moving to withdraw from representing the defendant on his motion
to correct an illegal sentence, concluding that the motion was without merit.
See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493
(1967). After the court granted counsel’s motion to withdraw, the defendant
continued to pursue the motion to correct as a self-represented party.
4
The defendant also argues that his sixty year sentence for felony murder
exceeded the statutory maximum. We reject this claim pursuant to State v.
Adams, 308 Conn. 263, 273, 63 A.3d 934 (2013), which concluded that felony
murder was punishable as a class A felony. See id., 274 (The appropriate
sentence ‘‘for the class A felony of murder, [is] a term not less than twenty-
five years nor more than life . . . . General Statutes § 53a-35b, in turn,
provides that [a] sentence of life imprisonment means a definite sentence
of sixty years . . . .’’ [Internal quotation marks omitted.]).
5
General Statutes § 53a-92 (a) provides in relevant part: ‘‘A person in
guilty of kidnapping in the first degree when he abducts another person
and . . . (2) he restrains the person abducted with intent to (A) inflict
physical injury upon him or violate or abuse him sexually; or (B) accomplish
or advance the commission of a felony . . . .’’