STATE v. MARK BANKS, SC 19246

Judicial District of Hartford

 

      Criminal; Whether General Statutes § 54-102g, Which Requires Incarcerated Felons to Submit DNA Samples, Applied to Defendant; Whether State Properly Allowed to Use Reasonable Force to Obtain DNA Sample.  General Statutes § 54-102g was enacted in 1994 to require those incarcerated on convictions of certain sexual offenses to provide a DNA sample.  In 2003, the statute was amended to apply to all incarcerated felons.  The defendant remains incarcerated after being convicted of felony robbery and other nonsexual offenses in 1997 (the robbery related convictions).  In 2010, the defendant was ordered to provide a sample under the statute, and he refused to comply.  The state filed a motion seeking permission to use reasonable force to obtain the sample, which the trial court granted.  The state also charged the defendant under the statute with failure to submit to the taking of a sample, and he was found guilty of that charge.  The defendant appealed, challenging the order granting the motion to use reasonable force and his conviction of failing to submit to the taking of a sample.  The Appellate Court (143 Conn. App. 485) affirmed the judgments.  It rejected the defendant’s claim that the trial court lacked subject matter jurisdiction to rule on the motion to use reasonable force because he had already begun serving his sentence on the robbery related convictions when the motion was filed.  The court held that, while a court generally can no longer take any action affecting a defendant’s sentence once the sentence has begun, requiring the defendant to submit to the taking of a DNA sample did not affect his sentence on the robbery related convictions.  The Appellate Court concluded that § 54-102g is regulatory, not punitive, and that the enforcement of the statute against the defendant had no effect on or relationship to his sentence, especially given that the conduct at issue—his refusal to submit to the taking of a sample—occurred after his sentence had begun.  The Appellate Court also rejected the claim that enforcement of the statute against the defendant violated the ex post facto clause of the federal constitution where he was convicted of nonsexual felony offenses before the 2003 statutory amendment, again noting that the statute was not penal and that, insofar as the defendant’s refusal to provide a DNA sample occurred subsequent to the 2003 amendment, the statute was applied prospectively rather than retroactively.  Finally, the Appellate Court found that the trial court properly granted the state’s motion to use reasonable physical force even though § 54-102g did not, at that time, contain language permitting the use of such force.  It determined that permitting the use of reasonable force was implicit in the statute in order to carry out the legislature’s overarching objective of establishing a state DNA bank to assist with future criminal prosecutions and that a 2011 amendment to § 54-102g expressly permitting the state to use reasonable force constituted a clarification of the original legislative intent.  The Supreme Court will now determine whether the Appellate Court correctly concluded that (1) the state may obtain a DNA sample from an inmate who was convicted of nonsexual felonies prior to the 2003 amendment of § 54-102g and (2) it was permissible for the trial court to authorize reasonable force to obtain a DNA sample even prior to passage of the 2011 amendment to § 54-102g expressly authorizing such use of force.