State v. Ledbetter

SCHALLER, J.

dissenting. I agree with parts I and II of the majority decision. I disagree, however, with part III, in which the majority holds that the persistent felony offender provision of General Statutes § 53a-40 (d) requires that the convictions of prior felonies must have occurred at separate times from each other even when the convictions arose out of entirely distinct incidents that occurred at separate times.

It is important to emphasize what is involved in this case. As the trial court indicated: “Each [prior conviction] emanated from a separate incident committed against different victims on different dates and was the subject of a separate information.” By virtue of the fortuities of the scheduling process, the defendant pleaded guilty to the two crimes on the same day and received concurrent sentences. My analysis of § 53a-40 *407(d) leads me to conclude that persistent felony offender status arises when the first two felonies were committed at separate times, that is, arose out of separate incidents. This position is consistent with a reasonable interpretation of the statutoiy language, and is supported by the reasoning of our Supreme Court in State v. Clemons, 168 Conn. 395, 408-409, 363 A.2d 33, cert. denied, 423 U.S. 855, 96 S. Ct. 104, 46 L. Ed. 2d 80 (1975), and State v. Dolphin, 203 Conn. 506, 523, 525 A.2d 509 (1987).

My disagreement is based on fundamental principles of statutory interpretation. “ ‘[0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.’ ” State v. Burns, 236 Conn. 18, 22, 670 A.2d 851 (1996), quoting State v. Spears, 234 Conn. 78, 86-87, 662 A.2d 80 (1995). “ ‘It is axiomatic that, where the statutory language is clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary. Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 538, 582 A.2d 1184 (1990). That axiom applies in full force, however, only “[w]here . . . the language of a statute is . . . absolutely clear” on its face and where no ambiguity is raised in applying the statute in a particular case. . . . Anderson v. Ludgin, 175 Conn. 545, 554, 400 A.2d 712 (1978) ....’” (Citation omitted; emphasis in original.) Rose v. Freedom of Information Commission, 221 Conn. 217, 225, 602 A.2d 1019 (1992).

I disagree with the majority — but agree with the trial court — that the language of § 53a-40 (d) is ambiguous.1 *408I note initially that the language of the statute can be read in a variety of ways. A literal reading appears to require the conviction of two felonies (“twice convicted”) at more than one time (“at separate times”).2 Could the legislature have intended a minimum of four prior convictions before persistent felony status attached? Aside from that literal reading, it is unclear whether the language “at separate times” creates a time differential between the two prior convictions or merely a time differential between the present conviction and both prior convictions. Common sense and logic suggest that the legislature would have anticipated that, under normal circumstances, prior convictions involving separate incidents would occur on separate dates. On the basis of that premise, the legislature logically adopted the present language to cover such a situation.

Moreover, this is a situation in which “application of the statute . . . reveals a latent ambiguity in seemingly unambiguous language”; Rose v. Freedom of Information Commission, supra, 221 Conn. 227; because it creates “unworkable results.” State v. Cain, 223 Conn. 731, 744, 613 A.2d 804 (1992). Our Supreme Court stated that “even if a statute is considered clear on its face if a literal interpretation of that statute would lead to unworkable results, resort to other aids to determine legislative intent is appropriate.” Id., 744. The result reached by the majority in the present case is clearly unworkable. Persistent felony offender status would hinge on the fortuities and uncertainties of the criminal plea and sentencing process — not to mention being subject to potential manipulations by participants in the process. A defendant who was convicted on different days of two offenses that arose out of a single incident *409could be charged as a persistent felony offender. On the other hand, a defendant in the present situation could not be so charged. I cannot believe that the legislature contemplated such an unpredictable and absurd result.

The majority cites a Maryland Court of Appeals decision, Lett v. State, 51 Md. App. 668, 677-80, 445 A.2d 1050 (1982), in support of its conclusion that § 53a-40 (d) is unambiguous and has a plain meaning. That case is distinguishable, however, because the Maryland court applied a different standard of statutory construction.3 That court was bound by an earlier Maryland decision in which it was held that, even though the persistent felony offender statute before it was “ ‘neither sensible nor reasonable and manifestly leads to an absurdity,’ ” the court was “ ‘not at liberty to depart from’ ” a strict construction of the statute. Id., 678. Under the strict rules of statutory construction in Maryland, therefore, it could not render a common sense interpretation.

Fortunately, we are not so constrained. The law of our state permits us to look further in order to ascertain the legislative meaning where unartful statutory language creates an inherent ambiguity. State v. Cain, supra, 223 Conn. 744; Rose v. Freedom of Information Commission, supra, 221 Conn. 227. In People v. Preuss, 436 Mich. 714, 461 N.W.2d 703 (1990), the Supreme Court of Michigan was also not so constrained. In interpreting Michigan’s fourth time habitual offender statute, Michigan Compiled Laws § 769.12, the court “recogniz[ed] the well-established principle that a literal reading of a statute may be modified if that reading leads to a clear or manifest contradiction of the apparent *410purpose of the act, or if necessary to correct an absurd and unjust result . . . .” People v. Preuss, supra, 721. After examining the statute’s legislative history, purpose and cases from other jurisdictions,4 the court concluded: “The statute requires only that the fourth offense be preceded by three convictions of felony offenses, and that each of those three predicate felonies arise from separate criminal incidents.” Id., 717.5

I now undertake a similar examination of § 53a-40 (d). Unfortunately, the legislative history provides minimal illumination. Whereas the trial court found support in the legislative history to formulate a theory that the statute has a rehabilitative purpose, I conclude that the legislative history suggests a punitive purpose for the statute.6 Because the legislative history is essentially *411inconclusive, however, we must turn to other methods of statutory construction.

In ascertaining the legislative puipose, my analysis differs from that of the majority and the trial court concerning the puipose of the statute and the degree of strictness with which the statute should be read. First, our Supreme Court’s decision in State v. Clemons, supra, 168 Conn. 395, while not directly on point, is analogous to the present situation. In that case, which involved a prior statute, General Statutes (Rev. to 1969) § 54-121, our Supreme Court rejected a defendant’s claim that because he was given concurrent sentences on two convictions, one in 1966 and one in 1968, he could not be found to have been twice sentenced. State v. Clemons, supra, 408-409. The court held that they clearly were “separate judgments” and “separate terms of imprisonment” because, even if one could be modified, the defendant still would have to serve the entirety of the other. Id., 407-408. That reasoning, whereby the court rejected the idea that third offenders must have two separate chances to reform, is highly persuasive here. Id., 407-409.

Second, both the majority and the trial court rely on the rule of lenity in order to bolster their interpretations. The rule of lenity seems oddly out of place in this situation, however, in view of our Supreme Court’s decision in State v. Dolphin, supra, 203 Conn. 506, in which the court made it clear that General Statutes (Rev. to 1987) § 53a-40 (a)7 is designed to provide increased *412punishment. The court stated that “it is clear that the purpose of this statute is to provide increased punishment for those who have committed dangerous felonies and have been deemed dangerous to society, regardless of the date of conviction and imprisonment.” Id., 523. The court, therefore, rejected the defendant’s argument that because § 53a-40 is a penal statute, any ambiguity should be resolved in favor of lenity, preferring instead to apply the “presumption that the legislature intends to accomplish a reasonable and rational result rather than a ‘ “difficult and possibly bizarre” ’ one.” Id., 524, quoting State v. Blasko, 202 Conn. 541, 558, 522 A.2d 753 (1987).8

Clemons and Dolphin lead me to conclude that neither the rule of lenity nor any claimed rehabilitative purpose can serve as an appropriate basis for an interpretation of § 53a-40 (d). Without support for the trial *413court’s theory that rehabilitation is the primary purpose of this statute, there is no basis whatever on which to conclude that the first two convictions must be rendered on separate occasions. It would be anomalous to have one person found guilty of being a persistent felony offender because he committed two felonies in separate incidents and was convicted on separate occasions, while another person, who also committed two felonies in separate incidents, not be considered a persistent felony offender because, by mere happenstance, he was convicted of both felonies on one occasion. Compare State v. Dolphin, supra, 203 Conn. 524.

The only sensible way of reading the statute is to interpret it as requiring that the first two convictions arise out of separate criminal incidents, as they did here. That interpretation fulfills the punitive purpose that appears in the legislative history and that was underscored by our Supreme Court in Dolphin. “In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Internal quotation marks omitted.) State v. Guckian, 226 Conn. 191, 201, 627 A.2d 407 (1993), quoting Warkentin v. Burns, 223 Conn. 14, 20, 610 A.2d 1287 (1992).

Accordingly, I would reverse the judgment of acquittal on the persistent felony count and remand for a new trial on that count alone.

For all the foregoing reasons, I respectfully dissent.

The trial court stated that “most jurisdictions that have determined the issue of chronology of convictions have resorted to statutory construction, the legislative history of the statute and the case law of other jurisdictions with other similar provisions. . . . However, the most decisive factor appears to be the courts’ determination of the purpose behind their persistent felony offender provisions.” Thus, while the trial court did not expressly state that it found § 53a-40 (d) ambiguous, it clearly resorted to tools of statutory construction beyond the language of the statute.

Section 53a-40 (d) provides that in order to be punished as a persistent felony offender, the defendant must have been “at separate times prior to the commission of the present felony, twice convicted of a felony other than a class D felony.” (Emphasis added.)

Article 27, § 643B (c), of the Michigan Compiled Laws provides in pertinent part: “Anyperson who (1) has been convicted on two separate occasions of a crime of violence where the convictions do not arise from a single incident” may be sentenced as a persistent felony offender.

The court specifically cited holdings from Hawaii, Nevada, and every United States Court of Appeals. People v. Preuss, supra, 436 Mich. 735.

In examining this issue, the Supreme Court of Michigan evaluated both its existing law and its predecessor statute. People v. Preuss, supra, 436 Mich. 721. Michigan’s existing law, § 769.12, provides in pertinent part: “If a person has been convicted of 3 or more felonies, attempts to commit felonies, or both . . . and that person commits a subsequent felony within this state, the person shall be punished upon conviction as follows . . . .” “Before that, the language was somewhat different: ‘A person who after having been 3 times convicted ... of felonies or attempts to commit felonies .. . commits any felony within this state . . . may be sentenced upon conviction of such fourth or subsequent offense to ... . [1949 P.A. 56; 1929 P.A. 24; 1927 P.A. 175.]” People v. Preuss, supra, 720-21. The court continued: “While the original language of the statute clearly requires that the fourth offense be committed after the three prior convictions, and the present language probably requires the same, neither contains any requirement that a fourth offender’s three prior offenses, convictions, or sentences occur in any particular sequence.” Id., 721.

In responding to a question of the effect of No. 80-422 of the 1980 Public Acts, Representative Alfred Onorato stated: “Well, it seems what it would do is lock somebody up on the third offense if it is a felony.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 6, 1980 Sess., p. 1148. In addition, Chief State’s Attorney Austin McGuigan stated that the “persistent felony offender statute . . . recognizes the need that some people, who are committing violent predatory street crimes, must be incarcerated for the streets to be safe.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 5,1980 Sess., p. 1161.1 conclude that the trial court’s theory that the statute *411has exclusively a rehabilitative purpose excludes “other penal goals such as taking repeat offenders off the streets for especially long periods, or simply visiting society’s retribution upon repeat offenders more severely.” Deal v. United States, 508 U.S. 129, 136, 113 S. Ct. 1993, 124 L. Ed. 2d 44 (1993).

General Statutes (Rev. to 1987) § 53a-40 (a) provides: “A persistent dangerous felony offender is a person who (1) stands convicted of manslaughter, arson, kidnapping, sexual assault in the first or third degree, sexual assault in ihe first or third degree with a firearm, robbery in the first or second degree, or assault in the first degree; and (2) has been, prior to the commis*412sion of the present crime, convicted of and imprisoned, under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution for any of the following crimes: (A) The crimes enumerated in subdivision (1), the crime of murder, or an attempt to commit any of said crimes or murder; or (B) prior to October 1, 1975, any of the crimes enumerated in section 53a-72, 53a-75 or 53a-78 of the general statutes, revision of 1958, revised to 1975, or prior to October 1, 1971, in this state, assault with intent to kill under section 54-117, or any of the crimes enumerated in sections 53-9, 53-10, 53-11, 53-12 to 53-16, inclusive, 53-19, 53-21, 53-69, 53-78 to 53-80, inclusive, 53-82, 53-83, 53-86, 53-238 and 53-239 of the general statutes, revision of 1958, revised to 1968, or any predecessor statutes in this state, or an attempt to commit any of said crimes; or (C) in any other state, any crimes the essential elements of which are substantially the same as any of the crimes enumerated in subdivision (1) or (2).”

The court specifically found that: “It would be anomalous to have one person found guilty of being a persistent dangerous felony offender because he committed the crime of assault with intent to kill, was convicted and imprisoned prior to October 1, 1971, while another person, who committed the same crime on the same day, not be considered a persistent dangerous felony offender because, by mere happenstance, he was not convicted and imprisoned until after October 1, 1971. Such a result would undermine the legislative intent of § 53a-40 and would frustrate the purpose of the persistent dangerous felony offender statute.” State v. Dolphin, supra, 203 Conn. 524.