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STATE OF CONNECTICUT v. BEN B. OMAR
(AC 44263)
Prescott, Moll and Flynn, Js.
Syllabus
The defendant, who previously had been convicted of various drug related
offenses, appealed to this court following the trial court’s denial of his
motion to correct an illegal sentence. In 2016, after the defendant had
provided information to the state in connection with another case, the
trial court granted the defendant’s application for sentence modification,
reducing his sentence to eight years of incarceration followed by five
years of special parole. In 2018, our legislature enacted a public act
(P.A. 18-63), which amended certain statutes (§§ 53a-28 (b) and 54-125e
(b)) to eliminate special parole as a punishment for certain drug related
offenses, including those for which the defendant had been convicted
and sentenced, and to require that the trial court make certain determina-
tions prior to the imposition of a period of special parole. Thereafter,
the defendant filed a motion to correct his sentence, requesting that his
term of special parole be eliminated. The trial court denied the motion,
stating that the amendments to §§ 53a-28 (b) and 54-125e (b) required
by P.A. 18-63 did not apply retroactively, and the defendant appealed
to this court. Held that the trial court properly denied the defendant’s
motion to correct an illegal sentence: contrary to the defendant’s claim,
State v. Nathaniel S. (323 Conn. 290) did not control this court’s retroac-
tivity analysis because our Supreme Court found that the juvenile trans-
fer statute at issue in that case was automatic and, by its nature, proce-
dural, permitting the amendment to that statute to be applied
retroactively, whereas the special parole punishment at issue in the
present case was not automatic, rather, prior to the enactment of P.A.
18-63, choosing to impose it was an act of judicial discretion; moreover,
in accordance with State v. Bischoff (337 Conn. 739) and State v. Kalil
(314 Conn. 529), certain statutes (§§ 54-194 and 1-1 (t)), which create
the presumption that changes to criminal statutes prescribing or defining
punishment apply prospectively only unless such statutes expressly state
otherwise, applied to § 53a-28 (b), a criminal statute that prescribes or
defines a punishment; furthermore, the effective date of P.A. 18-63 is
the only textual reference to the date of applicability found in the act
and the act does not reference retroactivity, which, in light of §§ 54-194
and 1-1 (t), evidenced a legislative intent for prospective application only;
accordingly, the plain language of P.A. 18-63 clearly and unambiguously
prohibited retroactive application and such an interpretation did not
lead to an absurd or unworkable result, especially when viewed in the
context of §§ 54-194 and 1-1 (t).
Argued October 4—officially released December 14, 2021
Procedural History
Substitute information charging the defendant with
the crimes of possession of narcotics with intent to sell
by a person who is not drug-dependent, sale of narcotics
by a person who is not drug-dependent, conspiracy to
sell narcotics by a person who is not drug-dependent,
sale of a controlled substance within 1500 feet of a
school, and possession of a controlled substance within
1500 feet of a school, brought to the Superior Court
in the judicial district of Waterbury, geographical area
number four, and tried to the jury before Adelman, J.;
verdict and judgment of guilty; thereafter, the court,
Fasano, J., granted the defendant’s application for a
sentence modification; subsequently, the court, Hon.
Roland D. Fasano, judge trial referee, denied the defen-
dant’s motion to correct an illegal sentence, and the
defendant appealed to this court. Affirmed.
Gary A. Mastronardi, assigned counsel, for the
appellant (defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Maureen T. Platt, state’s
attorney, and Alexandra Arroyo, former special deputy
assistant state’s attorney, for the appellee (state).
Opinion
FLYNN, J. This is an appeal from the judgment of
the trial court denying the amended motion to correct
an illegal sentence filed by the defendant, Ben B. Omar,
pursuant to Practice Book § 43-22. On appeal, the defen-
dant claims that the court erred in concluding that cer-
tain amendments to Connecticut’s special parole stat-
ute, embodied in No. 18-63, §§ 1 and 2, of the 2018
Public Acts (P.A. 18-63), which became effective on
October 1, 2018, did not apply retroactively to render
his 2016 modified sentence imposing special parole
void.1 We disagree and, accordingly, affirm the judg-
ment of the trial court.
We conclude that when the legislature enacted P.A.
18-63, which changed the law by prohibiting special
parole as a sentence for certain narcotics offenses, it
did so prospectively, not retroactively. We also con-
clude that the silence in P.A. 18-63 regarding retroactiv-
ity is evidence of intent for prospective application only;
see State v. Bischoff, 337 Conn. 739, 756, 258 A.3d 14
(2021); that prospective application creates neither an
absurd nor an unworkable result; and that General Stat-
utes §§ 54-194 and 1-1 (t) apply and, when read together,
provide that the repeal of a statute prescribing the pun-
ishment for a crime shall not affect any liability for
punishment incurred before the repeal is effective,
unless a contrary legislative intent is expressed within
an amendatory statute.
The following facts are pertinent to our resolution
of this appeal. On April 22, 2010, the defendant was
convicted, after a jury trial, of the following drug offenses,
which occurred on March 25, 2009: in count one, posses-
sion of narcotics with intent to sell by a person who is
not drug-dependent in violation of General Statutes
(Rev. to 2009) § 21a-278 (b);2 in count two, sale of nar-
cotics by a person who is not drug-dependent in viola-
tion of § 21a-278 (b); in count three, conspiracy to sell
narcotics by a person who is not drug-dependent in
violation of § 21a-278 (b) and General Statutes § 53a-
48 (a); in count four, sale of a controlled substance
within 1500 feet of a school in violation of General
Statutes § 21a-278a (b); and in count five, possession
of a controlled substance within 1500 feet of a school
in violation of § 21a-278a (b). Under what was then the
authority of State v. Chicano, 216 Conn. 699, 725, 584
A.2d 425 (1990) (overruled by State v. Polanco, 308
Conn. 242, 61 A.3d 1084 (2013)), cert. denied, 501 U.S.
1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991), the trial
court merged the second count with the first count and
the fifth count with the fourth count.3 On all charges, the
defendant was sentenced to a total effective sentence
of twenty-one years of incarceration, eight of which
were mandatory, execution suspended after twelve
years, followed by five years of probation.
On March 2, 2016, due to his cooperation in providing
unsolicited information to the state that produced a
guilty plea in the case of a person who had been charged
in connection with a shooting, the defendant submitted
an application for sentence modification. His coopera-
tion resulted in a proceeding on that same date before
the court, Fasano, J., in which the defendant moved
to modify his sentence, to which the state agreed. The
new sentence modified his original sentence to a total
effective sentence of eight years of incarceration fol-
lowed by five years of special parole. It is the imposition
of special parole that creates the principal issue in
this appeal.
After the defendant’s sentence was modified to
include a term of special parole, our legislature enacted
P.A. 18-63, effective October 1, 2018, which eliminated
special parole as a punishment for certain drug
offenses. Public Act 18-63 is titled ‘‘An Act Concerning
Special Parole for High-Risk, Violent and Sexual Offend-
ers’’ and contains three sections. Relevant to the present
appeal are §§ 1 and 2 of P.A. 18-63,4 which amended
General Statutes (Rev. to 2009) §§ 53a-28 (b) and 54-
125e (b),5 respectively. Prior to the enactment of P.A.
18-63 and at the time of the defendant’s sentence modifi-
cation, § 53a-28 (b) (9) authorized a court to impose as
a punishment ‘‘a term of imprisonment and a period of
special parole as provided in section 54-125e.’’ Section
1 of P.A. 18-63 amended that portion of § 53a-28 (b) (9)
by adding in relevant part that ‘‘the court may not
impose a period of special parole for convictions of
offenses under chapter 420b.’’ Sections 21a-278 and 21a-
278a, two of the statutes under which the defendant was
convicted, are included in chapter 420b of the General
Statutes. Section 2 of P.A. 18-63 amended § 54-125e (b)
by adding in relevant part that ‘‘the court may not
impose a period of special parole unless the court deter-
mines, based on the nature and circumstances of the
offense, the defendant’s prior criminal record and the
defendant’s history of performance on probation or
parole, that a period of special parole is necessary to
ensure public safety.’’ Public Act 18-63 lists an effective
date of October 1, 2018.
The defendant, in a self-represented capacity, filed
an amended motion to correct the March 2, 2016 sen-
tence with the clerk on June 28, 2019. On November
25, 2019, his counsel filed a newly amended motion to
correct his sentence.6 In effect, the motion asked that
Judge Fasano’s modification of the defendant’s sentence
be corrected to eliminate the term of special parole,
which had been imposed three years earlier, in 2016,
because P.A. 18-63, effective October 1, 2018, had elimi-
nated special parole as a possible sentence for the kind
of drug offenses for which the defendant had been
convicted and sentenced. On January 6, 2020, the state
filed an objection to the amended motion to correct.
On June 9, 2020, the court, Hon. Roland D. Fasano,
judge trial referee, denied the defendant’s amended
motion to correct an illegal sentence and issued a mem-
orandum of decision. The court stated in relevant part:
‘‘[T]here is no language in the modified statute nor
in the case law to support the proposition that the
modification of the special parole statute applies retro-
actively. Such an application would result in a multitude
of cases returned for resentencing.’’ This appeal fol-
lowed. Additional facts and procedural history will be
set forth as necessary.
We now turn to the principal issue to be decided in
this appeal, namely, whether P.A. 18-63, §§ 1 and 2,
should be applied retroactively to the defendant’s
March 2, 2016 sentence. We agree with the trial court
that P.A. 18-63 does not apply retroactively.
We begin by setting forth the standard of review
applicable to this claim. Ordinarily, claims that the trial
court improperly denied a defendant’s motion to correct
an illegal sentence are reviewed pursuant to an abuse
of discretion standard. State v. Fairchild, 155 Conn.
App. 196, 210, 108 A.3d 1162, cert. denied, 316 Conn.
902, 111 A.3d 470 (2015). Nonetheless, a trial court’s
determination of whether a new statute is to be applied
retroactively or only prospectively presents a question
of law over which this court exercises plenary review.
See State v. Bischoff, supra, 337 Conn. 745, citing Walsh
v. Jodoin, 283 Conn. 187, 195, 925 A.2d 1086 (2007).
The defendant, relying on State v. Nathaniel S., 323
Conn. 290, 295, 146 A.3d 988 (2016), argues that the
statutes amended by P.A. 18-63 are procedural in nature
and, thus, that the amendments are intended to apply
retroactively in the absence of a clear expression of
legislative intent to the contrary. The state argues that
the defendant’s reliance on Nathaniel S. is misplaced.
It argues that, because P.A. 18-63, §§ 1 and 2, repealed
and replaced the imposition of a form of punishment
for a criminal conviction, this court’s retroactivity anal-
ysis is controlled by State v. Kalil, 314 Conn. 529, 107
A.3d 343 (2014), and State v. Bischoff, supra, 337 Conn.
739, along with our savings statutes, §§ 54-194 and 1-1
(t). The state contends that, because the legislature
did not clearly and unequivocally express an intent for
retroactive application of §§ 1 and 2 of P.A. 18-63, they
should apply prospectively only. We agree with the
state.
In State v. Nathaniel S., supra, 323 Conn. 292, our
Supreme Court addressed the retroactivity of No. 15-
183, § 1, of the 2015 Public Acts, which amended the
juvenile transfer statute by increasing the age of a child
from fourteen to fifteen whose case is subject to auto-
matic transfer from the docket for juvenile matters to
the regular criminal docket of the Superior Court. The
defendant in Nathaniel S. was fourteen years old when
he allegedly committed an offense that was subject to
automatic transfer, and his case was transferred to the
criminal docket in accordance with the statute in effect
at that time. Id., 292–93. The amendment, however, went
into effect before his case was tried. Id. On appeal,
our Supreme Court addressed whether the amendment
applied retroactively, such that a child’s case that
already had been transferred to the criminal docket
should be transferred back to the juvenile docket. Id.
Our Supreme Court stated: ‘‘Several rules of pre-
sumed legislative intent govern [a court’s] retroactivity
analysis. Pursuant to those rules, [a court’s] first task
is to determine whether a statute is substantive or pro-
cedural in nature.’’ Id., 294. The court added that ‘‘[p]ro-
cedural statutes have been traditionally viewed as
affecting remedies, not substantive rights, and therefore
leave the preexisting scheme intact. . . . [Accordingly]
we have presumed that procedural . . . statutes are
intended to apply retroactively absent a clear expres-
sion of legislative intent to the contrary . . . .’’ (Inter-
nal quotation marks omitted.) Id., 295. The court con-
cluded that the juvenile transfer statute was procedural
in nature and held that the amendment applied retroac-
tively. Id., 293, 296. The court stated that ‘‘the amended
statute, on its face, dictates only a procedure—auto-
matic transfer . . . .’’ Id., 296. It further stated that,
in a previous case, it had ‘‘characterized the juvenile
transfer statute as akin to a change of venue and, ‘by
its nature, procedural.’ ’’ Id.
In the present case, P.A. 18-63, § 1, eliminates a class
of people on whom a judge can impose the punishment
of special parole. Specifically, it modifies § 53a-28 (b)
so that a person convicted of narcotics offenses under
chapter 420b will no longer be exposed to this punish-
ment. P.A. 18-63, § 1. Furthermore, unlike in Nathaniel
S., there is nothing ‘‘automatic’’ about special parole.
Rather, prior to the enactment of P.A. 18-63, judges
merely had the option of imposing special parole as
one of multiple punishments. Thus, choosing to impose
special parole was an act of discretion, as opposed to
the automatic transfer statute at issue in Nathaniel S.,
which applies to every fifteen year old charged with
certain types of crimes. Accordingly, we reject the
defendant’s claim that Nathaniel S. governs this court’s
retroactivity analysis.
We now turn to the retroactivity analysis that our
Supreme Court has applied in cases such as State v.
Kalil, supra, 314 Conn. 529, and State v. Bischoff, supra,
337 Conn. 739. ‘‘In criminal cases, to determine whether
a change in the law applies to a defendant, we generally
have applied the law in existence on the date of the
offense, regardless of its procedural or substantive
nature.’’ (Internal quotation marks omitted.) State v.
Kalil, supra, 552. In contrast to Nathaniel S., amend-
ments that change the punishment structure for certain
crimes instead implicate the savings clauses codified
in §§ 54-194 and 1-1 (t), ‘‘which apply to changes to
criminal statutes prescribing punishment and create a
presumption against retroactivity.’’ State v. Bischoff,
supra, 748 n.4. Section 54-194 provides: ‘‘The repeal of
any statute defining or prescribing the punishment for
any crime shall not affect any pending prosecution or
any existing liability to prosecution and punishment
therefor, unless expressly provided in the repealing stat-
ute that such repeal shall have that effect.’’ Section 1-
1 (t) provides: ‘‘The repeal of an act shall not affect
any punishment, penalty or forfeiture incurred before
the repeal takes effect, or any suit, or prosecution, or
proceeding pending at the time of the repeal, for an
offense committed, or for the recovery of a penalty or
forfeiture incurred under the act repealed.’’ Our
Supreme Court ‘‘has interpreted [the plain meaning of]
these statutes to mean that there is a presumption that
changes to criminal statutes prescribing or defining
punishment apply prospectively only, unless the statute
expressly states otherwise.’’ State v. Bischoff, supra,
749.
In State v. Bischoff, supra, 337 Conn. 742, the defen-
dant was convicted of, among other crimes, possession
of narcotics in violation of General Statutes (Rev. to
2013) § 21a-279 (a). After he was arrested and charged
with the crime, but prior to his conviction and sentenc-
ing, the legislature enacted Public Acts, Spec. Sess.,
June, 2015, No. 15-2, §1 (Spec. Sess. P.A. 15-2), which
amended § 21a-279 to reclassify a first offense for pos-
session of narcotics from a class D felony subject to a
maximum sentence of imprisonment of seven years, to
a class A misdemeanor subject to a maximum sentence
of one year of incarceration. Id., 741–42. The defendant
argued that, although the amendment did not mention
retroactivity, ‘‘a prospective-only application of the
amendment would lead to an absurd or unworkable
result . . . .’’ Id., 742. The court disagreed and con-
cluded that the language of Spec. Sess. P.A. 15-2, § 1,
‘‘clearly and unambiguously’’ prohibited retroactive
application. Id., 761.
In reaching its conclusion, our Supreme Court, quot-
ing Nathaniel S., stated that the question of whether a
criminal statute has retroactive application ‘‘is one of
legislative intent and is governed by well established
rules of statutory construction.’’ (Internal quotation
marks omitted.) Id., 746. General Statutes § 1-2z directs
that ‘‘[t]he meaning of a statute shall, in the first
instance, be ascertained from the text of the statute
itself and its relationship to other statutes. . . .’’ In
Bischoff, the court stated: ‘‘In enacting amendments
. . . our legislature explicitly repeals the prior version
of the amended statute. . . . Thus, this court consis-
tently has held . . . that amendments and substitu-
tions to statutes are the equivalent of repeals, and, thus,
the savings statutes apply to any change—amendment,
substitution, or repeal—to a criminal statute prescrib-
ing or defining punishment.’’ (Emphasis added.) State
v. Bischoff, supra, 337 Conn. 748 n.5.
Our Supreme Court in Bischoff first looked to the
effective date of the amendment, which was ‘‘the only
textual reference to the date of applicability’’ found in
the bill. Id., 747. The court noted that, although the
effective date of an amendment is not dispositive of
the legislature’s intent regarding retroactivity, it ‘‘con-
sider[s] the effective date in light of the applicable sav-
ings statutes and the legislature’s lack of any reference
to retroactivity.’’ Id., 748. Additionally, the court noted
that §§ 54-194 and 1-1 (t) applied because Spec. Sess.
P.A. 15-2, § 1, ‘‘repealed and replaced the penalty struc-
ture for the crime of possession of narcotics . . . .’’
(Footnote omitted.) Id., 748–49.
Our Supreme Court in Bischoff also rejected the
defendant’s argument that the legislature did not intend
for §§ 54-194 and 1-1 (t) to apply to ameliorative changes
to sentencing schemes. Id., 750. It stated that, ‘‘[s]ince
at least 1936, this court has held that changes to criminal
sentencing schemes, even those that provide a benefit
to defendants, are subject to these savings statutes.’’
Id., 751–52. In concluding that the amendment did not
apply retroactively, the court stated that its interpreta-
tion of the statute ‘‘does not lead to an absurd or
unworkable result, especially when viewed in context
of the related savings statutes, §§ 54-194 and 1-1 (t).’’
Id., 761.
In the present case, P.A. 18-63, §§ 1 and 2, both pro-
vide that subsection (b) of § 53a-28 and subsection (b)
of § 54-125e are ‘‘repealed and the following is substi-
tuted in lieu thereof . . . .’’ (Emphasis added.) Further-
more, special parole is a form of punishment and § 53a-
28 (b) (9) sets forth the circumstances in which a court
can impose this punishment. Thus, it is fair to character-
ize § 53a-28 (b) as a criminal statute that prescribes or
defines a punishment. Accordingly, pursuant to
Bischoff, §§ 54-194 and 1-1 (t) apply to the present case.
Having concluded that our savings statutes apply to
the present case, we must interpret the plain meaning
of the amendments to §§ 53a-28 (b) and 54-125e (b). As
stated previously, § 1-2z directs us to first look at the
text of the statutes themselves and their relationships
to other statutes. ‘‘If, after examining such text and
considering such relationship[s], the meaning of such
text is plain and unambiguous and does not yield absurd
or unworkable results, extratextual evidence of the
meaning of the statute[s] shall not be considered.’’
(Internal quotation marks omitted.) State v. Heredia,
310 Conn. 742, 756, 81 A.3d 1163 (2013). ‘‘[T]he fact
that . . . relevant statutory provisions are silent . . .
does not mean that they are ambiguous. . . . [O]ur
case law is clear that ambiguity exists only if the statu-
tory language at issue is susceptible to more than one
plausible interpretation.’’ (Internal quotation marks
omitted.) State v. Jackson, 153 Conn. App. 639, 644, 103
A.3d 166 (2014), cert. denied, 315 Conn. 912, 106 A.3d
305 (2015).
The effective date of P.A. 18-63 is October 1, 2018.
As in Bischoff, this date is the only textual reference
to the date of applicability found in the act, and there
is no mention of retroactivity. The silence of P.A. 18-
63 regarding retroactivity does not mean that the act
is ambiguous. As our Supreme Court stated in State v.
Bischoff, supra, 337 Conn. 756, ‘‘because we must
assume that the legislature is aware that we have inter-
preted §§ 54-194 and 1-1 (t) as requiring an explicit
expression of intent regarding retroactivity to overcome
this presumption, we likewise must assume that the
legislature’s silence regarding retroactivity in [a particu-
lar act] is evidence of an intent for prospective applica-
tion only.’’ If the legislature had intended the amend-
ments in the present case to apply retroactively, it
would have used ‘‘ ‘clear and unequivocal’ language to
evince such an intent.’’ State v. Kalil, supra, 314 Conn.
558. In the absence of any express language in the
statute stating otherwise, the amendments apply pro-
spectively only. In light of our well established interpre-
tation of §§ 54-194 and 1-1 (t), the fact that P.A. 18-63,
§§ 1 and 2, are silent regarding retroactivity does not
create ambiguity. See State v. Bischoff, supra, 756. Thus,
there is no ambiguity in P.A. 18-63, §§ 1 and 2, that
would require us to examine the act’s legislative history.
Accordingly, we conclude that the plain language of
P.A. 18-63, §§ 1 and 2, clearly and unambiguously pro-
hibits retroactive application and that this interpreta-
tion does not lead to an absurd or unworkable result,
especially when viewed in context of the related savings
statutes, §§ 54-194 and 1-1 (t). See id., 761. Therefore,
we conclude that the trial court properly denied the
defendant’s amended motion to correct an illegal sen-
tence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
At the time of oral argument of this case, defense counsel withdrew the
defendant’s claim that the trial court erroneously concluded that it lacked
jurisdiction to hear his claim of improper or insufficient canvassing. At the
same time, defense counsel withdrew the defendant’s claim that the trial
court abused its discretion in concluding that the defendant’s special parole
term had not been imposed in a manner that violated federal due process.
2
Our references in this opinion to § 21a-278 (b) are to the 2009 revision
of the statute.
3
We note that, pursuant to State v. Polanco, supra, 308 Conn. 245, which
was decided after the defendant in the present case was sentenced, when
a defendant has been convicted of greater and lesser included offenses, the
trial court must vacate, rather than merge, the judgment of conviction for
the lesser included offense.
4
Public Act 18-63 provides in relevant part: ‘‘Be it enacted by the Senate
and House of Representatives in General Assembly convened:
‘‘Section 1. Subsection (b) of section 53a-28 of the general statutes is
repealed and the following is substituted in lieu thereof (Effective October
1, 2018):
‘‘(b) Except as provided in section 53a-46a, when a person is convicted
of an offense, the court shall impose one of the following sentences . . .
(9) a term of imprisonment and a period of special parole as provided in
section 54-125e, as amended by this act, except that the court may not
impose a period of special parole for convictions of offenses under chap-
ter 420b.
‘‘Sec. 2. Subsection (b) of section 54-125e of the general statutes is repealed
and the following is substituted in lieu thereof (Effective October 1, 2018):
(b) (1) When sentencing a person, the court may not impose a period
of special parole unless the court determines, based on the nature and
circumstances of the offense, the defendant’s prior criminal record and
the defendant’s history of performance on probation or parole, that a period
of special parole is necessary to ensure public safety. . . .’’ (Emphasis
in original.)
5
Unless we state otherwise, our references in this opinion to §§ 53a-28
(b) and 54-125e are to the 2009 revisions of those statutes.
6
In his November 25, 2019 motion to correct an illegal sentence, the
defendant stated: ‘‘On or about December 10, 2018, while on his special
parole, [the defendant] was charged with [assault in the third degree] which
violated his special parole. Significantly, he was free in the community for
about three years when this new charge took place. On or about April 22,
2019, he was sentenced [to] a charge of reckless endangerment and was
sentenced to one year [of incarceration], execution suspended, followed by
three years of probation.
‘‘Following his conviction . . . he was then presented to the parole board
on or about June 11, 2019, and was incarcerated for one year to serve with
the earliest discharge date being February 4, 2020.’’