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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, andDonE. Therkildsen, Jr., seniorassistantstate’s attorney, for the appellee (state).Opinion PRESCOTT, J. The defendant, Robert T. Madera, appealsfromthejudgmentofconviction, renderedafter
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 enhancementoneachcountpursuantto [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 anunarmedaccomplice who wasnotpresent 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 thejury reasonably could have found, and procedural history are relevant to this appeal. In earlyJune, 2011, brothers Shawn Kinnel and MarquisKinneldecidedtorobtwoWaterburydrugdealers, 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 ofJune 13, 2011, the trio drove to D.O.’s and I.T’s condominium complex and parked theirvehicle on a nearby side street. The Kinnel brothers got out of their car, retrieved two handguns from under the hood ofthe 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, andothervaluables. Duringthesearchofthecondominium, Marquis Kinnel encounteredD.O’s girlfriend, D.M.,inherbedroomdownstairs. Kinnel orderedD.M. totake offher 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
onthe floornextto D.O. and I.T. with herhead covered to block her vision. While she was lying on the floor upstairs, D.M. was sexuallyassaultedagain. 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 convergedthere, theyfoundthe 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 avoluntary, signedstatementdetailinghisinvolvement 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 defendantwas charged in along 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 ofrobbery inthe first degree as an accessoryinviolation of§§ 53a8 and 53a-134 (a) (4) (countfour); one count ofconspiracy to commit home invasion in violation of §§ 53a-48 (a) and 53a-100aa (a) (1) (count five); and one count ofhome invasion as an accessory inviolation of §§ 53a8 and 53a-100aa (a) (1) (count six). In addition, onApril 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 Thejury also considered and answered in the affirmative fourseparate interrogatories, each ofwhich 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 twentyyears ofincarceration, 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 ofprobation; on countfour, totwentyyears ofincarcer-ation, suspended after five years (mandatory), and five years of probation; and on count six, to twenty-five years ofincarceration, suspended aftertenyears (mandatory), and five years of probation. In addition, the court enhanced each ofthe 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. Thesentenceenhancementsoncountsoneandsixwere to run consecutively, withthe enhancements on counts two andfourto run concurrently. Accordingly, the total effective sentence rendered by the court was twentyfive years of incarceration, execution suspended after twentyyears, followed by five years ofprobation.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 underStatev. Golding, 213 Conn. 233. 239–40, 567 A.2d 823 (1989).6 We reviewthe defendant’s claimbecause the record is adequate forreview, andthe issue is ofconstitutional magnitude.7
Our resolution of the defendant’s first claim is controlled by our decision in State v. VanDeusen, supra, 160 Conn. App. 815, releasedthis 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 inState v. Patterson, supra, 276 Conn. 473–84, holding that § 53-202k does not apply to unarmedcoconspiratorspursuanttothePinkertondoctrine,8 the state, nevertheless, could seek a sentence enhancement under ‘‘Connecticut’s long-standing common-law theory of vicarious coconspirator liability, which existed for decadespriorto our court’s adoption of Pinkerton.’’ State v. VanDeusen, supra, 844. We rejectedthatargument, concludingthatthe state’s common-lawtheory ofvicarious coconspiratorliabilitywas ‘‘nothing more than an early species ofPinkerton without that label’’ and, thus, subject to much of the same reasoning as was applied by our Supreme Court inPattersonwhenitdeclinedto interpret § 53-202kto include unarmed coconspirators charged pursuant to the Pinkerton doctrine. Id., 846. We further noted that if wewere 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 improperlyenhancedhissentence oneachcountpursuant 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 thathe knewthathis codefendantswoulduse afirearm, § 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. InDavis, the court held that unarmed accessories are subject to having their sentences enhancedunder § 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].’’ Duringthe pendency ofthepresent 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 ofsentences for unarmed accomplices is permissible under § 53-202k, are fully dispositive ofthe claim raised by the defendant in the present appeal.10
In Flemke, the defendant claimed that his sentence forrobberyinthe first degree as an accessoryhadbeen improperly enhanced pursuant to § 53-202k because, by its terms, § 53-202k applies only to a person or persons who actually use afirearm during the commission of a class A, B or C felony, and it was undisputed that only his accomplice was armed during the commission oftherobberyatissue. Likethe defendantinthepresent case, the defendant in Flemke urged the court to over-rule its earlier decision inDavis because ofthe 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 limitDavis for several reasons. First, this courtpreviouslyhas concludedthatthe 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, contraryto the defendant’s claim, our conclusion in Davis that § 53-202k applies to unarmed accomplices is in no way inconsistent with the plain meaningrule setforthin § 1-2z. Third, evenifwe agreed withthe defendantthatwe should reconsider ourinterpretationof§ 53-202kinDavis, thelegislaturehasgiven
no indication sinceDavis 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 ourholding inthat 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.) Statev.Flemke, supra, 315 Conn. 506–507. The Supreme Court thereafter concluded that ‘‘[i]n light ofDavis

. . . it is perfectly clearthat, under§ 53-202k, thestate 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 thetrialcourtimproperlyenhancedhersentencepursuant 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 applicabilityto cases in which thejury expressly found that the defendant intended that a firearm be used by anotherparticipant 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, thejury 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 toDavis, as reaffirmed inFlemke, thatfindingprovideda sufficient basis for the court to impose a sentence enhancementpursuant 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 decisioninFlemke, the defendantcannot 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 ofconspiracyto commitburglaryinthe 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 otherjudges concurred.

1 General Statutes § 53-202kprovides: ‘‘Anypersonwho commits anyclass 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 ofthe 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 throughwhomthevictim’sidentitymaybe ascertained. See General Statutes § 54-86e.

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

4 Boththe defendantandthe state areinagreementthatthe courtimposed 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 offorty-five years ofincarceration, execution suspended after twenty years, followed by five years ofprobation. 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 Correctionv. Gordon, 228 Conn. 384, 393, 636A.2d 799 (1994). Nevertheless, because we remand this matter for resentencing, it is unnecessary to order that a corrected mittimus orjudgment 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 ofState v. Danforth, 315 Conn. 518, 108 A.3d 1060 (2015), and State

v. Flemke, 315 Conn. 500, 108 A.3d 1073 (2015), each ofwhich 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 hasfailedtodemonstrateharmlessnessoftheallegedconstitutionalviolation beyond a reasonable doubt.

. . . The first two questions relate to whether

a defendant’s claim is reviewable, and the last two relate to the substanceofthe 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 YasielR., 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 correctthat § 53-202k does not applyto an unarmed coconspirator, then thejury would have been obligated to find that the defendant possessed afirearm inthe commission ofa class A, B or C felony—afinding 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 ofeach element ofthe 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 committedbyacoconspiratorifthose offenses arewithinthe 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 ofthe aggregate packagetheoryofsentencingistoensurethat, notwithstandingthejudgment 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 ajust 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 ofthe component counts is vacated, common sense dictates that the judge should be free to review the efficacy ofwhat remains in light ofthe original plan, and to reconstruct the sentencing architecture

. . . within applicable constitutional and statutory limits, ifthat appears necessary in order to ensure that the punishment stillfitsbothcrimeandcriminal.’’ (Citationomitted; internalquotationmarks omitted.) State v. Johnson, 316 Conn. 34, 40–41, 111 A.3d 447 (2015). Here, the court’soriginalsentencingplanincludedrunningthe 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, wasthe sentence forhome invasion, forwhichthe 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 hadto run consecutive tothe primarysentence, butthe court had discretion to determine whether the enhancements themselves were to

run concurrently or consecutively with each other. The court chose to run two ofthe enhancements consecutively and the other two concurrent withthe 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 ofthe two consecutive sentence enhancements, thereby altering the court’s original sentencing architecture byreducing the mandatorytime the defendant must serve from twentyto fifteenyears. In light ofthat disposition andthe sentencing court’s legitimate interest in reviewing the efficacy ofthe original sentencing plan,

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