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STATE OF CONNECTICUT v. ROBERT T. MADERA

(AC 35198)

DiPentima, C. J., and Prescott and Bear, Js.

Argued April 7—officially released November 3, 2015

(Appeal from Superior Court, judicial district of

Waterbury, Crawford, J.)

Glenn W. Falk, assigned counsel, with whom, on the

brief, was Deborah M. Frankel, legal fellow, for the

appellant (defendant).

Timothy F. Costello, assistant state’s attorney, with

whom, on the brief, were Maureen Platt, state’s attorney, and Don E. Therkildsen, Jr., senior assistant state’s

attorney, for the appellee (state).
Opinion

PRESCOTT, J. The defendant, Robert T. Madera,

appeals from the judgment of conviction,rendered after

a jury trial, of conspiracy to commit burglary in the

first degree in violation of General Statutes §§ 53a-48

(a) and 53a-101 (a) (3); burglary in the first degree as

an accessory in violation of General Statutes §§ 53a-8

and 53a-101 (a) (3); robbery in the first degree as an

accessory in violation of General Statutes §§ 53a-8 and

53a-134 (a) (4); and home invasion as an accessory in

violation of General Statutes §§ 53a-8 and 53a-100aa

(a) (1). In addition, the jury also found unanimously,

pursuant to a separate interrogatory for each count of

the information, that the state had proven beyond a

reasonable doubt that a firearm had been used in the

commission of the crimes. On appeal, the defendant

claims that the court improperly imposed ‘‘a five year

sentence enhancement on each count pursuant to [General Statutes § 53-202k].’’1 Specifically, the defendant

argues that the § 53-202k sentence enhancement provision does not apply (1) to an unarmed coconspirator

and (2) to an unarmed accomplice who was not present

during the commission of the felony. We agree with

the defendant that the court improperly enhanced his

sentence with respect to his conviction of conspiracy

to commit burglary in the first degree in accordance

with our decision in State v. VanDeusen, 160 Conn.

App. 815, A.3d (2015), which also was released

today. We affirm the judgment of the court in all

other respects.

The following facts, which the jury reasonably could

have found, and procedural history are relevant to this

appeal. In early June, 2011, brothers Shawn Kinnel and

Marquis Kinnel decided to rob two Waterbury drug dealers, D.O. and his roommate, I.T.2

In order to ascertain

where D.O. and I.T. resided at that time, the Kinnels

approached the defendant, who was D.O’s first cousin.

On the night of June 13, 2011, the trio drove to D.O.’s

and I.T’s condominium complex and parked their vehicle on a nearby side street. The Kinnel brothers got out

of their car, retrieved two handguns from under the

hood of the vehicle, and walked into the complex. The

defendant remained inside the vehicle, but moved to

the driver’s seat and waited for the Kinnels to return.

Inside the complex, the Kinnels entered D.O.’s and

I.T’s condominium. At that time, D.O. and I.T. were

out buying groceries. Once D.O. and I.T. returned, the

Kinnels seized them at gunpoint and forced them to lie

on the floor with their shirts pulled over their heads to

block their vision.

The Kinnels then searched D.O., I.T., and the condominium, taking currency, drugs, jewelry, cell phones,

and other valuables. During the search of the condominium, Marquis Kinnel encountered D.O’s girlfriend, D.M.,
in her bedroom downstairs. Kinnel ordered D.M. to take

off her clothes at gunpoint and then sexually assaulted

her. Thereafter, Kinnel ordered D.M. to put on a bathrobe, brought her upstairs, and forced her to lie down

on the floor next to D.O. and I.T. with her head covered

to block her vision. While she was lying on the floor

upstairs, D.M. was sexually assaulted again. Having collected all of the valuables, the Kinnels then fled the

condominium in a vehicle they had stolen from D.O.

The defendant followed them, driving the vehicle in

which the trio had initially arrived. After the perpetrators had left, D.O. called the police.

On June 14, 2011, police tracked one of the stolen

cell phones to a Waterbury barbershop. When officers

converged there, they found the defendant and Marquis

Kinnel inside. Thereafter, the defendant was arrested

on an unrelated outstanding warrant and transported

to the Waterbury police station, where he eventually

gave a voluntary, signed statement detailing his involvement in the crime. In the statement, the defendant

attempted to minimize his involvement, claiming that

he did not know about the Kinnels’ plan regarding D.O.

and I.T.

Thereafter, the defendant was charged in a long form

substitute information, filed April 30, 2012, with one

count of conspiracy to commit burglary in the first

degree in violation of §§ 53a-48 (a) and 53a-101 (a) (3)

(count one); one count of burglary in the first degree

as an accessory in violation of §§ 53a-8 and 53a-101 (a)

(3) (count two); one count of conspiracy to commit

robbery in the first degree in violation of §§ 53a-48 (a)

and 53a-134 (a) (4) (count three); one count of robbery

in the first degree as an accessory in violation of §§ 53a8 and 53a-134 (a) (4) (count four); one count of conspiracy to commit home invasion in violation of §§ 53a-48

(a) and 53a-100aa (a) (1) (count five); and one count

of home invasion as an accessory in violation of §§ 53a8 and 53a-100aa (a) (1) (count six). In addition, on April

30, 2012, the state filed a notice of its intent to seek a

sentence enhancement ‘‘on each A, B and C felony that

results in a conviction.’’

The defendant elected to stand trial, and the jury

found him guilty as charged on counts one, two, four,

and six.3 The jury also considered and answered in the

affirmative four separate interrogatories, each of which

posited the following question: ‘‘Has the state proven

to all of you unanimously beyond a reasonable doubt

that a firearm was used in the commission of this

crime?’’

The court sentenced the defendant as follows: On

count one, to twenty years of incarceration, suspended

after five years (mandatory), and five years of probation; on count two, to twenty years of incarceration,

suspended after five years (mandatory), and five years

of probation; on count four, to twenty years of incarcer-
ation, suspended after five years (mandatory), and five

years of probation; and on count six, to twenty-five

years of incarceration, suspended after ten years (mandatory), and five years of probation. In addition, the

court enhanced each of the defendant’s sentences pursuant to § 53-202k, by the mandatory consecutive five

year period of incarceration. The court ordered the

primary sentences for counts one, two and four to run

consecutive with the primary sentence for count six.

The sentence enhancements on counts one and six were

to run consecutively, with the enhancements on counts

two and four to run concurrently. Accordingly, the total

effective sentence rendered by the court was twentyfive years of incarceration, execution suspended after

twenty years, followed by five years of probation.4 This

appeal followed.5

I

The defendant first claims that, pursuant to our

Supreme Court’s decision in State v. Patterson, 276

Conn. 452, 476–84, 886 A.2d 777 (2005), a sentence

enhancement should not have been imposed with

respect to his conviction of conspiracy to commit burglary in the first degree because § 53-202k does not

apply to unarmed coconspirators. We agree with the

defendant that the court improperly enhanced the

defendant’s sentence on this count.

The defendant failed to preserve this claim at trial.

He, therefore, now seeks to prevail under State v. Golding, 213 Conn. 233. 239–40, 567 A.2d 823 (1989).6 We

review the defendant’s claim because the record is adequate for review, and the issue is of constitutional magnitude.7

Our resolution of the defendant’s first claim is controlled by our decision in State v. VanDeusen, supra,

160 Conn. App. 815, released this same day. In VanDeusen, the defendant also raised the issue of whether an

unarmed coconspirator’s sentence properly could be

enhanced pursuant to § 53-202k. In VanDeusen, the

state argued on appeal that, despite our Supreme

Court’s decision in State v. Patterson, supra, 276 Conn.

473–84, holding that § 53-202k does not apply to

unarmed coconspirators pursuant to the Pinkerton doctrine,8

the state, nevertheless, could seek a sentence

enhancement under ‘‘Connecticut’s long-standing common-law theory of vicarious coconspirator liability,

which existed for decades prior to our court’s adoption

of Pinkerton.’’ State v. VanDeusen, supra, 844. We

rejected that argument, concluding that the state’s common-law theory of vicarious coconspirator liability was

‘‘nothing more than an early species of Pinkerton without that label’’ and, thus, subject to much of the same

reasoning as was applied by our Supreme Court in Patterson when it declined to interpret § 53-202k to include

unarmed coconspirators charged pursuant to the Pinkerton doctrine. Id., 846. We further noted that if we
were to accept the state’s argument, it would allow the

state ‘‘to avoid Patterson’s holding by claiming that it

was not seeking to hold a defendant liable under the

Pinkerton doctrine, but rather, under the common-law

theory of vicarious coconspirator liability,’’ rendering

‘‘our Supreme Court’s decision in Patterson a virtual

nullity . . . .’’ Id., 846–47. On the basis of this reasoning, we held that ‘‘a § 53-202k enhancement does not

apply to an unarmed coconspirator . . . .’’ Id., 847.

Guided by our analysis in VanDeusen, we conclude

in this case that the defendant has demonstrated that

a constitutional violation exists and that this violation

deprived him of a fair trial. Accordingly, the defendant

is entitled to have the sentence enhancement under

§ 53-202k on count one vacated.

II

The defendant next claims that, with respect to his

conviction on the remaining charges as an accessory

to burglary, robbery and home invasion, the court

improperly enhanced his sentence on each count pursuant to § 53-202k.9 According to the defendant, because

he was not physically present during the commission

of those crimes and there was no finding by the jury

that he knew that his codefendants would use a firearm,

§ 53-202k was inapplicable. The defendant further

argues that our Supreme Court’s decision in State v.

Davis, 255 Conn. 782, 787, 772 A.2d 559 (2001), should

be reconsidered. In Davis, the court held that unarmed

accessories are subject to having their sentences

enhanced under § 53-202k. More specifically, the defendant, relying on General Statutes § 1-2z, which was

enacted after Davis was decided, contends that ‘‘[t]he

expansive meaning attributed to § 53-202k in Davis,

sweeping in all persons whether armed with a firearm

or not, cannot be squared with the plain language [of

§ 53-202k].’’ During the pendency of the present appeal,

however, our Supreme Court decided two appeals that

raised virtually identical arguments regarding the

Supreme Court’s interpretation of § 53-202k in Davis.

See State v. Flemke, 315 Conn. 500, 516, 108 A.3d 1073

(2015), and State v. Danforth, 315 Conn. 518, 536, 108

A.3d 1060 (2015). We conclude that those decisions,

each of which reaffirmed Davis and its holding that

enhancement of sentences for unarmed accomplices is

permissible under § 53-202k, are fully dispositive of the

claim raised by the defendant in the present appeal.10

In Flemke, the defendant claimed that his sentence

for robbery in the first degree as an accessory had been

improperly enhanced pursuant to § 53-202k because,

by its terms, § 53-202k applies only to a person or persons who actually use a firearm during the commission

of a class A, B or C felony, and it was undisputed that

only his accomplice was armed during the commission

of the robbery at issue. Like the defendant in the present

case, the defendant in Flemke urged the court to over-
rule its earlier decision in Davis because of the legislature’s subsequent enactment of § 1-2z, or, alternatively,

to limit Davis’ holding to cases in which the jury is

instructed to find beyond a reasonable doubt that the

defendant intended that a firearm be used by another

participant in the commission of the offense.

Our Supreme Court rejected the claim in Flemke,

stating: ‘‘We decline the defendant’s invitation to overrule or otherwise limit Davis for several reasons. First,

this court previously has concluded that the legislature,

in enacting § 1-2z, did not intend to overrule any case

decided prior to its enactment that construed a statute

in a manner that conflicts with the dictates of § 1-2z.

. . . Second, contrary to the defendant’s claim, our conclusion in Davis that § 53-202k applies to unarmed

accomplices is in no way inconsistent with the plain

meaning rule set forth in § 1-2z. Third, even if we agreed

with the defendant that we should reconsider our interpretation of § 53-202k in Davis, the legislature has given

no indication since Davis was decided that it disagrees

with our construction of § 53-202k in that case, thereby

giving rise to an inference that the legislature approves

of our reading of the statute. Finally, our reasoning in

Davis forecloses the defendant’s contention that we

should limit our holding in that case by construing § 53-

202k to apply to an unarmed accomplice only if that

accomplice intends that another participant in the

underlying class A, B or C felony would use a firearm

in the commission of the offense.’’ (Citation omitted.)

State v. Flemke, supra, 315 Conn. 506–507. The Supreme

Court thereafter concluded that ‘‘[i]n light of Davis . . .

it is perfectly clear that, under § 53-202k, the state was

required to prove only that the defendant was guilty

of being an accessory to the underlying [crime] and

that a firearm was used in the commission of the

[crime]; the state was not required to also prove that

the defendant intended that a firearm would be used

during the robbery.’’ (Emphasis added.) Id., 516.

Similarly, in Danforth, the defendant claimed that

the trial court improperly enhanced her sentence pursuant to § 53-202k because § 53-202k does not apply to

unarmed accomplices and it was undisputed that she

was not armed during the commission of the robbery

for which she was charged as an accessory. She also

sought to have the court overrule Davis or limit its

applicability to cases in which the jury expressly found

that the defendant intended that a firearm be used by

another participant in the underlying felony. The court,

on the basis of its decision in Flemke, released that

same day, rejected the claim.

In the present case, the jury expressly found beyond

a reasonable doubt that a firearm had been used in

the commission of each of the crimes of which the

defendant was found guilty as an accessory. Pursuant

to Davis, as reaffirmed in Flemke, that finding provided
a sufficient basis for the court to impose a sentence

enhancement pursuant to § 53-202k. See id. It is axiomatic that, ‘‘[a]s an intermediate appellate court, we are

bound by Supreme Court precedent and are unable to

modify it . . . . [W]e are not at liberty to overrule or

discard the decisions of our Supreme Court but are

bound by them. . . . [I]t is not within our province to

reevaluate or replace those decisions.’’ (Citation omitted; internal quotation marks omitted.) State v. Smith,

107 Conn. App. 666, 684–85, 946 A.2d 319, cert. denied,

288 Conn. 902, 952 A.2d 811 (2008). In light of our

Supreme Court’s decision in Flemke, the defendant cannot demonstrate that a constitutional violation exists,

and, therefore, his claim fails under Golding’s third

prong.

The judgment is reversed only as to the sentence

enhancement under § 53-202k of the sentence on the

conviction of conspiracy to commit burglary in the first

degree and the case is remanded with direction to

vacate that enhancement and to resentence the defendant in accordance with this opinion.11 The judgment

is affirmed in all other respects.

In this opinion the other judges concurred.

1 General Statutes § 53-202k provides: ‘‘Any person who commits any class

A, B or C felony and in the commission of such felony uses, or is armed

with and threatens the use of, or displays, or represents by his words or

conduct that he possesses any firearm, as defined in section 53a-3, except

an assault weapon, as defined in section 53-202a, shall be imprisoned for a

term of five years, which shall not be suspended or reduced and shall

be in addition and consecutive to any term of imprisonment imposed for

conviction of such felony.’’

2 As we will set forth in this opinion, a sexual assault occurred during

the commission of the crimes at issue in the present appeal. Thus, in accordance with our policy of protecting the privacy interests of the victims of

the crime of sexual assault, we decline to identify the victim or others

through whom the victim’s identity may be ascertained. See General Statutes

§ 54-86e.

3 The jury found the defendant not guilty on counts three and five.

4 Both the defendant and the state are in agreement that the court imposed

the sentence as indicated, which comports with the sentence as stated by

the court at the sentencing hearing. The clerk’s handwritten file entry as

well as the judgment mittimus and the draft judgment file prepared by

the clerk, nevertheless incorrectly indicate that the court imposed a total

effective sentence of forty-five years of incarceration, execution suspended

after twenty years, followed by five years of probation. Although that error

has not been raised as an issue on appeal, this court has the inherent

authority to ‘‘direct correction of [a] mittimus so that it comports with

the trial court’s unambiguous judgment of conviction.’’ Commissioner of

Correction v. Gordon, 228 Conn. 384, 393, 636 A.2d 799 (1994). Nevertheless,

because we remand this matter for resentencing, it is unnecessary to order

that a corrected mittimus or judgment file be prepared in the present case.

5 We note that after reviewing the issues on appeal, this court sua sponte

stayed argument of the appeal pending a final disposition by our Supreme

Court of State v. Danforth, 315 Conn. 518, 108 A.3d 1060 (2015), and State

v. Flemke, 315 Conn. 500, 108 A.3d 1073 (2015), each of which raised similar

issues concerning the interpretation of § 53-202k.

6

‘‘Under Golding, a defendant can prevail on an unpreserved claim of

constitutional error only if all of the following condition are met: (1) the

record is adequate to review the alleged claim of error; (2) the claim is of

constitutional magnitude alleging the violation of a fundamental right; (3)

the alleged constitutional violation . . . exists and . . . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state

has failed to demonstrate harmlessness ofthe alleged constitutional violation

beyond a reasonable doubt. . . . The first two questions relate to whether

a defendant’s claim is reviewable, and the last two relate to the substance
of the actual review.’’ (Citations omitted; internal quotation marks omitted.)

State v. Otero, 49 Conn. App. 459, 463 n.6, 715 A.2d 782, cert. denied, 247

Conn. 910, 719 A.2d 905 (1998); see In re Yasiel R., 317 Conn. 773, 781,

A.3d (2015) (modifying Golding’s third prong).

7 We conclude that this claim is of constitutional magnitude because if

the defendant is correct that § 53-202k does not apply to an unarmed coconspirator, then the jury would have been obligated to find that the defendant

possessed a firearm in the commission of a class A, B or C felony—a finding

it could not make on this record. See State v. Patterson, supra, 276 Conn.

484; see also State v. Hill, 201 Conn. 505, 512, 523 A.2d 1252 (1986) (‘‘[a]n

accused has a fundamental right, protected by the due process clauses of

the federal and Connecticut constitutions, to be acquitted unless proven

guilty of each element of the charged offense beyond a reasonable doubt’’).

8

‘‘In Pinkerton v. United States, [328 U.S. 640, 647–48, 66 S. Ct. 1180, 90

L. Ed. 1489 (1946)], the United States Supreme Court concluded that under

the federal common law, a conspirator may be held liable for criminal

offenses committed by a coconspirator if those offenses are within the scope

of the conspiracy, are in furtherance of it, and are reasonably foreseeable

as a necessary or natural consequence of the conspiracy.’’ State v. Diaz,

237 Conn. 518, 526, 679 A.2d 902 (1996).

We note that our Supreme Court first recognized the Pinkerton theory

of liability as a matter of state law in State v. Walton, 227 Conn. 32, 40–54,

630 A.2d 990 (1993).

9 We note that the defendant failed to preserve this claim at trial and now

seeks to prevail under Golding. We review the defendant’s claim because

the record is adequate and the claim is of a constitutional magnitude. See

State v. Davis, 255 Conn. 782, 787–93 and 787 n.6, 772 A.2d 559 (2001).

10 At oral argument before this court, defense counsel conceded that our

Supreme Court’s decisions in Flemke and Danforth were dispositive of his

claims in this appeal regarding the imposition of sentence enhancements

on those counts in which the defendant was charged as an accessory.

11 During oral argument, we raised the issue of resentencing with the

parties. The state argued that, if any of the defendant’s sentence enhancements are vacated, the case should be remanded to the trial court for

resentencing pursuant to the aggregate package theory articulated by this

court in State v. Raucci, 21 Conn. App. 557, 563–64, 575 A.2d 234, cert.

denied, 215 Conn, 817, 576 A.2d 546 (1990). The defendant opposed the

state’s position, arguing that, if any of the enhancements are vacated, the

enhancement on that count should simply be vacated.

As our Supreme Court explained recently, ‘‘[t]he purpose of the aggregate

package theory of sentencing is to ensure that, notwithstanding the judgment

of the reviewing court, the original sentencing intent of the trial court is

effectuated. . . . It is axiomatic that a trial court has wide discretion to

tailor a just sentence in order to fit a particular defendant and his crimes,

as long as the final sentence falls within the statutory limits. . . . This same

wide sentencing discretion equally applies to a trial court’s restructuring of

a sentencing plan for a defendant who has been convicted in a multiple

count case and who faces a permissible range of punishment based on

the individual counts. [W]hen a defendant is found guilty on a multicount

indictment, there is a strong likelihood that the . . . court will craft a

disposition in which the sentences on the various counts form part of an

overall plan. When the conviction on one or more of the component counts

is vacated, common sense dictates that the judge should be free to review

the efficacy of what remains in light of the original plan, and to reconstruct

the sentencing architecture . . . within applicable constitutional and statutory limits, if that appears necessary in order to ensure that the punishment

still fits both crime and criminal.’’(Citation omitted; internal quotation marks

omitted.) State v. Johnson, 316 Conn. 34, 40–41, 111 A.3d 447 (2015).

Here, the court’s original sentencing plan included running the defendant’s

four primary sentences concurrently. The longest of those primary sentences, and thus the controlling sentence for purposes of calculating the total

effective sentence, was the sentence for home invasion, for which the defendant received twenty-five years incarceration, execution suspended after

the statutory minimum of ten years, with five years probation. To each of

the primary sentences, the court added a sentence enhancement pursuant

to § 53-202k of five additional years of incarceration. By statute, those

enhancements had to run consecutive to the primary sentence, but the court

had discretion to determine whether the enhancements themselves were to

run concurrently or consecutively with each other. The court chose to run

two of the enhancements consecutively and the other two concurrent with
the consecutive enhancements, the overall effect of which was to enhance

by a total of ten years the total effective primary sentence of ten years to

serve, thus resulting in a total effective sentence of twenty years to serve.

Our decision today requires the court to vacate one of the two consecutive

sentence enhancements, thereby altering the court’s original sentencing

architecture by reducing the mandatory time the defendant must serve from

twenty to fifteen years. In light of that disposition and the sentencing court’s

legitimate interest in reviewing the efficacy of the original sentencing plan,

we agree with the state that a remand to the trial court for resentencing

is appropriate.