STATE v. ANTHONY FLEMKE, SC 19244

Judicial District of Tolland

 

      Criminal; Accessorial Liability; Whether Sentence of Unarmed Accessory Properly Enhanced Under General Statutes § 53-202k . The defendant was charged with conspiracy to commit robbery and robbery in the first degree as an accessory.  The state claimed that the defendant and Kelly Ann Danforth conspired with Chadwick Matzdorff to rob prescription drugs from a woman.  Neither the defendant nor Danforth were present during the robbery; Matzdorff was armed during the robbery with a pellet gun.  The defendant was convicted as charged, and his sentence on the first degree robbery charge was enhanced pursuant to General Statutes § 53-202k, which mandates an additional five year prison term for “[a]ny person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm. . . .”  On appeal, the defendant urges the Supreme Court, in light of the plain meaning rule of General Statutes § 1-2z, to reconsider its decision in State v. Davis, 255 Conn. 782 (2001).  In Davis, the court held that an unarmed accessory’s sentence was properly enhanced under § 53-202k where the principal used a firearm because it is clearly established that, for purposes of criminal liability, there is no distinction between a conviction as a principal and a conviction as an accessory.  The defendant contends that an unarmed accessory who was not present during the commission of a felony should not be subject to the sentence enhancement merely because the principal used a firearm.  The defendant also argues that his sentence should not have been enhanced absent the jury’s finding that he provided the pellet gun to Matzdorff with knowledge that it would be used in the robbery.