State v. Johnson

ESPINOSA, J.

Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Kevin Lawlor, state's attorney, and Paul O. Gaetano, supervisory assistant state's attorney, for the appellant (state).

Annacarina Jacob, senior assistant public defender, for the appellee (defendant).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD and ESPINOSA, Js.

ESPINOSA, J.At the Appellate Court, the defendant claimed, inter alia, that the “separate conspiracy convictions of possession and possession with intent to sell must be reversed because they represent but one agreement and violate the constitutional double jeopardy clause ....” Id., at 736, 49 A.3d 1046. Relying on the decision of the United States Supreme Court in Rutledge v. United States, 517 U.S. 292, 307, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996), the Appellate Court held that because conspiracy to possess narcotics is a lesser included offense of conspiracy to possess narcotics with intent to sell, the defendant could not properly be convicted and sentenced on both counts. State v. Johnson, supra, 137 Conn.App. at 757, 49 A.3d 1046. Accordingly, the court reversed the judgment with respect to the conviction of conspiracy to possess narcotics and remanded the case to the trial court with direction to vacate both the conviction and the sentence for that lesser included offense. Id., at 766, 49 A.3d 1046. The Appellate Court also vacated the defendant's sentence for the greater offense of conspiracy to possess narcotics with intent to sell, and “remanded for resentencing on that charge in accordance with the aggregate package theory....” Id. The court did not vacate the sentences for the remaining counts. Id. This certified appeal followed.

The state does not challenge that portion of the judgment of the Appellate Court vacating the defendant's conviction and sentence on the lesser included offense of conspiracy to possess narcotics. Instead, the state appeals only with respect to the Appellate Court's decision to vacate the defendant's sentence for conspiracy to possess narcotics with intent to sell and to remand the case to the trial court with direction to resentence the defendant on that charge. Disturbing the defendant's sentence for the conviction of the greater offense, the state argues, conflicts with this court's decision in State v. Polanco, supra, 308 Conn. at 242, 61 A.3d 1084 and theory of sentencing. The defendant responds that, because the record does not clearly indicate the trial court's original sentencing intent, the Appellate Court properly remanded for resentencing under the aggregate package theory. Because we conclude that under the facts of the present case, there is no evidence in the record that the Appellate Court's decision vacating the conviction and sentence of the lesser included offense of conspiracy to commit possession of narcotics altered the original sentencing intent of the trial court, we reverse in part the judgment of the Appellate Court.

Before we proceed to the merits of the appeal, we note our agreement with the position that both the state and the defendant expressed during oral argument before this court, namely, that this court's decision in State v. Polanco, supra, 308 Conn. at 242, 61 A.3d 1084 did not address the question presented in this appeal. In Polanco, we revisited the appropriate remedy to which a defendant should be entitled upon establishing that he had been convicted of and sentenced on both a greater and lesser included offense in violation of the double jeopardy clause. Our prior precedent had followed the merger of convictions approach, vacating the sentence for the lesser included offense, but leaving the conviction for that offense intact and merging it with the conviction for the greater offense. State v. Chicano, 216 Conn. 699, 725, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S.Ct. 2898, 115 L.Ed.2d 1062 (1991), overruled in part by State v. Polanco, 308 Conn. 242, 245, 61 A.3d 1084 (2013). The defendant in Polanco relied on Rutledge v. United States, supra, 517 U.S. at 292, 116 S.Ct. 1241 to argue that the proper remedy was to vacate both the conviction and the sentence for the lesser included offense. We declined to resolve the issue on constitutional grounds, instead exercising our supervisory authority to conclude that “when a defendant has been convicted of greater and lesser included offenses, the trial court must vacate the conviction for the lesser offense rather than merging the convictions pursuant to Chicano. ” State v. Polanco, supra, at 245, 61 A.3d 1084. Because the defendant in Polanco did not request to be resentenced when his case was remanded to the trial court, this court did not consider in that decision whether, after vacating the defendant's conviction and sentence for a lesser included offense on double jeopardy grounds, a reviewing court properly should remand the case for resentencing pursuant to the aggregate package theory. Accordingly, Polanco does not govern the issue before us in the present appeal. Instead, the issue is controlled by our case law discussing the aggregate package theory of sentencing.

The purpose of the aggregate package theory of sentencing is to ensure that, notwithstanding the judgment of the reviewing a defendant who has been convicted in a multiple count case and who faces a permissible range of punishment based on the individual counts. [W]hen a defendant is found guilty on a multicount indictment, there is a strong likelihood that the ... court will craft a disposition in which the sentences on the various counts form part of an overall plan. When the conviction on one or more of the component counts is vacated, common sense dictates that the judge should be free to review the efficacy of what remains in light of the original plan, and to reconstruct the sentencing architecture ... within applicable constitutional and statutory limits, if that appears necessary in order to ensure that the punishment still fits both crime and criminal.” (Citations omitted; internal quotation marks omitted.) When we endorsed the Appellate Court's adoption of the aggregate package theory, we explained that a defendant “in appealing his conviction and punishment, has voluntarily called into play the validity of the entire sentencing package....” (Internal quotation marks omitted.) State v. Miranda, 260 Conn. 93, 129, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S.Ct. 224, 154 L.Ed.2d 175 (2002).

Although we also stated that “the proper remedy is to vacate [the sentence] in its entirety”; (internal quotation marks omitted) id.; that statement must be understood in the context of the question that we confronted in adopting the aggregate package theory, which was limited to the extent of the trial court's authority on remand to resentence a defendant. We concluded that the trial court does indeed have such power, and characterized the court's authority as permissive, rather than mandatory. Id. We clarified that “[a]lthough the court may reconstruct the sentencing package to conform to its original intent, it is not required to do so. It may, therefore, simply eliminate the sentence previously imposed for the vacated conviction, and leave the other sentences intact; or it may reconstruct the sentencing package so as to reach a total effective sentence that is less than the original sentence but more than that effected by the simple elimination of the sentence for the vacated conviction. The guiding principle is that the court may resentence the defendant to achieve a rational, coherent [sentence] in light of the remaining convictions, as long as the revised total effective sentence does not exceed the original.” (Internal quotation marks omitted.) Id., at 129–30, 794 A.2d 506.

Contrary to the state's position, however, a reviewing court need not direct the trial court to apply the aggregate package theory in order for the original sentence to be restructured. Our decisions already have established that the trial court has the authority to restructure the original sentence pursuant to the aggregate package theory, even if not ordered to do so, if the judgment of the reviewing court has disturbed the trial court's original sentencing intent. State v. Michael A., 297 Conn. 808, 815, 1 A.3d 46 (2010). Although that authority more typically would be exercised to increase the sentence(s) on the conviction(s) remaining after a conviction and sentence have been vacated, such authority also may be exercised to decrease the remaining sentence(s).

The precise question in this appeal, therefore, is not whether the trial court has authority to resentence the defendant. The narrow issue before us is whether under the facts of the present case the Appellate Court properly ordered the trial court to resentence the defendant on remand. Because the trial court always retains authority to restructure the original sentence if the court determines that the judgment of the reviewing court altered its original sentencing intent, common sense and principles of judicial economy dictate that, in a case in which the judgment of the reviewing court does not change the total effective sentence, the reviewing court should not order the trial court to resentence a defendant on the remaining convictions unless there is some evidence or some other basis in the record supporting the conclusion that the judgment of the reviewing court altered the original sentencing intent. Adopting a default rule requiring the trial court to revisit the entire sentence, even when there is no evidence in the record suggesting that the court's original sentencing intent was affected by the decision of the reviewing court, would waste valuable judicial resources.

Under the facts of the present case, the Appellate Court's decision to vacate the defendant's sentence for conspiracy to possess narcotics with intent to sell, and remand for resentencing on that count in accordance with the aggregate package theory is simply not supported by the record. The decision of the Appellate Court had no effect on the total effective sentence. On each of the narcotics counts, the trial court sentenced the defendant to five years of incarceration, execution suspended after eighteen months, and three years of probation, to run concurrently. Because the sentences on the remaining counts were shorter, and ran concurrently to the sentences for the narcotics counts, the concurrent sentences for the narcotics counts resulted in a total effective sentence of five years of incarceration, execution suspended after eighteen months, and three years of probation. The decision of the Appellate Court affected only one conviction and one sentence, for the lesser included offense of conspiracy to possess narcotics. The total effective sentence, therefore, was not altered by the Appellate Court's decision.

The Appellate Court's decision also did not affect any of the conduct that served as the predicate for the defendant's sentence. Although the court vacated the defendant's conviction and sentence for the lesser included offense of conspiracy to possess narcotics, the court left standing the conviction for the greater lack of awareness of her addiction to prescription medication and her failure to take responsibility for her addiction.

Under the facts of this record, which reflect that after the judgment of the Appellate Court, the same total effective sentence remains in place, based on the same conduct on which the trial court relied in the first instance, there is no basis for the reviewing court to conclude that the trial court's original sentencing intent has been disturbed. Accordingly, although the trial court retains authority to restructure the defendant's entire sentence if that court determines that doing so is necessary to retain its original sentencing intent, it is neither necessary nor appropriate under these particular facts for a reviewing court to require the trial court to conduct a new sentencing hearing.The judgment of the Appellate Court is reversed only with respect to its orders vacating the sentence for conspiracy to possess narcotics with intent to sell and remanding the case to the trial court for resentencing; the judgment is affirmed in all other respects.

In this opinion the other justices concurred.