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STATE OF CONNECTICUT v. JAMAR HEATH

(AC 38027)

Keller, Mullins and Beach, Js.

Argued February 23—officially released June 6, 2017

(Appeal from Superior Court, judicial district of New

Haven, Damiani, J. [judgment]; Clifford, J. [motion to

correct illegal sentence].)

Laurie N. Feldman, special deputy assistant state’s

attorney, with whom, on the brief, were Patrick Griffin,
state’s attorney, Michael Dearington, former state’s

attorney, and Lisa D’Angelo, assistant state’s attorney,

for the appellant-appellee (state).

Stephan E. Seeger, with whom, on the brief, was Igor

G. Kuperman, for the appellee-appellant (defendant).
Opinion

MULLINS, J. The state appeals and the defendant,

Jamar Heath, cross appeals from the judgment of the

trial court granting in part the defendant’s motion to

correct an illegal sentence.1

In its appeal, the state, in

reliance on State v. Victor O., 320 Conn. 239, 128 A.3d

940 (2016) (Victor O. II), and State v. Jason B., 320

Conn. 259, 128 A.3d 937 (2016), claims that the trial

court incorrectly concluded that General Statutes (Rev.

to 2007) § 53a-70 (b) (3)2

required the court to sentence

the defendant to a period of special parole for his conviction of sexual assault in the first degree. In his cross

appeal, the defendant claims that the court improperly

resentenced him to a total effective sentence that

exceeds his original sentence.3 We agree with the state

and, accordingly,reverse the judgment of the trial court.

The following factual and procedural history informs

our review. In 2008, the defendant pleaded guilty to

two class B felonies, sexual assault in the first degree

in violation of § 53a-70 (a) (1) and assault in the first

degree in violation of General Statutes § 53a-59 (a) (3).

The court imposed the following agreed upon sentence:

On the count of sexual assault in the first degree, the

court sentenced the defendant to twenty years incarceration, execution suspended after fifteen years, with ten

years of probation; on the count of assault in the first

degree, the court sentenced the defendant to five years

incarceration, execution suspended, with five years of

probation, ordered to run consecutive to the other sentence. The total effective sentence, therefore, was

twenty-five years incarceration, execution suspended

after fifteen years, with ten years of probation.

Subsequently, the defendant filed a motion to correct

an illegal sentence, alleging that his sentence for sexual

assault in the first degree was illegal because it included

a period of probation rather than a period of special

parole. In support of this claim, the defendant relied

on State v. Victor O., 301 Conn. 163, 166, 193, 20 A.3d

669, cert. denied, U.S. , 132 S. Ct. 583, 181 L. Ed.

2d 429 (2011) (Victor O. I), and § 53a-70 (b) (3). The

defendant argued that, for his sentence to comply

legally with § 53a-70 (b) (3), as interpreted by Victor

O. I, the trial court was required to do each of the

following: (1) add a term of special parole to the sexual

assault in the first degree conviction, (2) eliminate any

term of probation, and (3)reduce his unsuspended term

of incarceration by the length of the added term of

special parole.

During the hearing on the motion, the state argued

that § 53a-70 (b) (3) and Victor O. I do not require the

imposition of a period of special parole for a conviction

of sexual assault in the first degree. The court, however,

agreed with the defendant and vacated the original sentence.4 Thereafter, the court resentenced the defendant
to a term of fifteen years incarceration followed by five

years of special parole. The court left intact the original

sentence on the assault conviction of five years incarceration, execution suspended, with five years of probation, which was ordered to run concurrent with the

sexual assault sentence. The new total effective sentence instituted by the court was twenty years incarceration, execution suspended after fifteen years, with five

years of special parole and five years of probation,

ordered to run concurrent. Both parties appealed.

On appeal, the state claims that the trial court incorrectly determined that it was required to resentence

the defendant to a period of special parole for his conviction of sexual assault in the first degree pursuant to

§ 53a-70 (b) (3). Although acknowledging that ‘‘it is

now clear that in cases involving class B felony sexual

assault in the first degree, a period of special parole is

not a required sentence component’’; see Victor O. II,

supra, 320 Conn. 239; State v. Jason B., supra, 320 Conn.

259; the defendant argues, nonetheless, that we should

not give retroactive effect to the Supreme Court decisions in Victor O. II and Jason B. because they

amounted to a change in the law and he had relied on

the law as it existed at the time he filed his motion. We

conclude that this case is controlled by our decision

today in the companion case of State v. Ruiz, 173 Conn.

App. , A.3d (2017), in which we fully addressed

the retrospective applicability of Victor O. II and Jason

B. under similar arguments and rejected the claims that

those cases amounted to a change in the law. Therefore,

the trial court improperly granted the defendant’s

motion to correct an illegal sentence.

The judgment is reversed and the case is remanded

with direction to reinstate the defendant’s original sentence and to deny his motion to correct an illegal

sentence.

In this opinion the other judges concurred.

1 Although the parties initially filed separate appeals, this court ordered

that the appeals be combined and be treated as cross appeals. This court

also granted a motion filed by the state to stay briefing in this appeal pending

the decisions of our Supreme Court in State v. Victor O., 320 Conn. 239,

128 A.3d 940 (2016), and State v. Jason B., 320 Conn. 259, 128 A.3d 937 (2016).

2 General Statutes (Rev. to 2007) § 53a-70 (b) (3) provides: ‘‘Any person

found guilty [of sexual assault in the first degree] shall be sentenced to a

term of imprisonment and a period of special parole pursuant to subsection

(b) of section 53a-28 which together constitute a sentence of at least ten

years.’’ Hereinafter, unless otherwise indicated, all references to § 53a-70

(b) (3) in this opinion are to the 2007 revision of the statute.

3 Because we conclude that the defendant’s original sentence was not

illegal and, therefore, should be reinstated, we need not determine whether

his new sentence exceeds his original sentence.

4 The state also requested that the court defer its ruling because Victor

O. II was pending before our Supreme Court. The trial court, however,

declined to defer its ruling. It then concluded that, although it did not

necessarily agree with what it considered to be the Supreme Court’s interpretation of § 53a-70 (b) (3) in Victor O. I, the decision in Victor O. I could

only be read as requiring the imposition of a period of special parole.