STATE v. JASON B., SC 19446

Judicial District of Fairfield


      Criminal; Sentencing; Whether Trial Court, in Correcting Illegal Sentence for First Degree Sexual Assault, Improperly Imposed New Sentence that Exceeded  Parameters of Original Sentence; Whether General Statutes § 53a-70 (b) (3) Requires that Sentence for First Degree Sexual Assault Include a Period of Special Parole.  The defendant was convicted of the class B felony of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and sentenced to twenty years of incarceration, execution suspended after ten years, and thirty-five years of probation.  He moved to correct his sentence, claiming that it was illegal because General Statutes § 53a-70 (b) (3) mandated that his sentence include a period of special parole.  That subsection provides that any person found guilty of first degree sexual assault “shall be sentenced to a term of imprisonment and a period of special parole pursuant to [§ 53a-28 (b)] which together constitute a sentence of at least ten years.”  The trial court granted the defendant's motion, concluding that the Supreme Court's decision in State v. Victor O., 301 Conn. 163 (2011), was dispositive.  In Victor O., the Supreme Court ruled that the defendant's sentence for first degree sexual assault in violation of General Statutes § 53a-70 (a) (2), a class A felony, was illegal under § 53a-70 (b) (3) because it included a period of probation rather than a period of special parole.  The trial court noted, however, that Victor O. did not address the competing legislative directive of General Statutes § 53a-29 (f), which requires at least ten years of probation on a conviction for first degree sexual assault.  It nevertheless found that Victor O. controlled, noting that the sentence here, like the one in Victor O., involved (1) imprisonment for more than ten years, (2) an extended term of probation, and (3) no special parole.  The trial court resentenced the defendant to fifteen years of incarceration, followed by ten years of special parole.  Both the defendant and the state appeal the trial court’s judgment.  The defendant argues that the trial court improperly imposed a new sentence that exceeded the parameters of the original sentence in substituting a period of special parole for a period of probation.  He claims that the ten years of special parole increased the incarceration portion of his sentence and placed more onerous conditions on him than the original sentence of probation in that special parole is more akin to imprisonment than to probation.  The state argues that the original sentence was lawful because § 53a-70 (b) (3) requires a minimum ten year sentence of either incarceration or a combination of incarceration and special parole and that when, as here, a defendant is sentenced to ten years or more of incarceration, no special parole is required.  The state further claims that the trial court wrongly deemed Victor O. dispositive because the Supreme Court was not called on in that case to analyze § 53a-70 (b) (3) or the purported tension between that subsection and § 53a-29 (f).