Judicial District of New Haven


      Criminal; Sentence Enhancement; Whether the Supreme Court Rendered a Sentence Enhancement Statute, General Statutes § 53a-40, Inoperable when it Excised a Portion that it Found Unconstitutional.  After a jury found the defendant guilty of various criminal offenses, it also determined that he was a persistent dangerous felony offender pursuant to a sentence enhancement statute, General Statutes (Rev. to 2003) § 53a-40.  The trial court subsequently found, under § 53a-40 (h), that it would best serve the public interest to impose extended incarceration.  On appeal, the Supreme Court concluded that § 53a-40 (h) was unconstitutional to the extent that it permitted the trial court, rather than the jury, to determine whether imposing extended incarceration would best serve the public interest.  Accordingly, it excised the unconstitutional language from § 53a-40 (h), and it remanded the matter for a new sentencing proceeding at which the jury would make the required determination.  On remand, the defendant filed a motion to dismiss the new sentencing proceeding, arguing that, in light of the Supreme Court's deletion of the unconstitutional language from § 53a-40 (h), the statute was rendered inoperable because it no longer identified the fact finder responsible for making the required determination.  He maintained that the Supreme Court's retroactive designation of the jury as the appropriate fact finder violated the ex post facto clause of the United States constitution and that only the legislature could fill the void.  The trial court denied the motion to dismiss, concluding that, as a lower court, it was not at liberty to contravene the Supreme Court's remand order.  The defendant also filed motions in which he requested, among other things, that he be permitted to introduce evidence regarding the financial cost to the taxpayers of his extended incarceration.  He claimed that evidence of that cost was relevant to whether his extended incarceration would be in the "public interest" under § 53a-40 (h).  He also contended that, even if "public interest" refers only to public safety, he should be permitted to submit expert testimony regarding the date on which a concurrent forty-seven year federal sentence that he is serving will likely expire.  Contending that the sentence would probably isolate him from the public until he is nearly 78 years old, he argued that a jury could reasonably conclude that extended incarceration would not be necessary to protect the public.  The trial court rejected his claims.  It first concluded that "public interest" means only the interest of the public in protecting itself from dangerous individuals.  The court further found, in any event, that evidence of the cost of the defendant's future incarceration would be entirely speculative.  In addition, it found that expert testimony as to the defendant's anticipated release date from the federal sentence would also be purely speculative.  Thereafter, the jury found that extended incarceration would best serve the public interest.  In this appeal, the Supreme Court will determine whether the trial court's rulings were correct.