STATE v. VICTOR O., SC 19459

Judicial District of Fairfield


      Criminal; Sentencing; 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 A felony of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and sentenced to twenty years of imprisonment, execution suspended after twelve years, and twenty years of probation.  In State v. Victor O., 301 Conn. 163 (2011), the Supreme Court found that the defendant’s sentence was illegal under General Statutes § 53a-70 (b) (3) because it included a period of probation rather than a period of special parole.  Section 53a-70 (b) (3) 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.”  On remand, the trial court resentenced the defendant to a “flat” twelve years of incarceration.  The defendant moved to correct the new sentence, claiming that it was illegal because it did not include a period of special parole as mandated by § 53a-70 (b) (3) and the Supreme Court’s decision.  The trial court denied the motion to correct an illegal sentence and upheld the new sentence.  The court interpreted the Supreme Court’s decision as not mandating the imposition of a period of special parole and read the decision and § 53a-70 (b) (3) as requiring a “special parole component” only for sentences of less than ten years incarceration so that, for such sentences, the periods of incarceration and special parole would together comprise a sentence of at least ten years.  The defendant appeals, claiming that his flat twelve year sentence is illegal because it does not include a period of special parole as mandated by the plain language of § 53a-70 (b) (3) and by General Statutes § 54-125e (c), which the defendant contends requires that a defendant convicted of first degree sexual assault be sentenced to at least one year of special parole.  The defendant argues that, on resentencing, the period of special parole should be deducted from the period of imprisonment imposed by the trial court.  The state, in turn, argues that § 53a-70 (b) (3) is ambiguous and that reading it as not requiring a period of special parole harmonizes that subsection with other sentencing statutes, particularly General Statutes § 53-29, and comports with a legislative intent to give a sentencing court wide latitude in crafting an appropriate sentence.  The state also argues that, if a period of special parole is required, it can be imposed on top of the defendant’s twelve year term of imprisonment for the conviction of first degree sexual assault.