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STATE OF CONNECTICUT v. NATHANIEL S.*

(SC 19592)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.

Argued May 2—officially released September 27, 2016

Kathryn W. Bare, assistant state’s attorney, with

whom, on the brief, was Maureen Platt, state’s attorney,

for the appellant (state).

Alice Osedach, assistant public defender, for the

appellee (defendant).
Opinion

McDONALD, J. A person convicted of a class A or

class B felony on the regular criminal docket of the

Superior Court may be subject to a lengthy mandatory

minimum sentence and may suffer various adverse consequences attendant to a felony conviction. By contrast,

a child adjudicated a delinquent on the juvenile docket

for committing that same offense is subject to at most

four years confinement at the Connecticut Juvenile

Training School and is spared many of those attendant

consequences. Our juvenile justice statutory scheme

requires the automatic transfer of certain cases involving children who have been charged with the commission of a class A or class B felony from the docket for

juvenile matters to the regular criminal docket. In 2015,

the legislature amended the juvenile transfer statute to

increase the age of a child whose case was subject to

an automatic transfer by one year, to fifteen years old.

Public Acts 2015, No. 15-183, § 1 (P.A. 15-183, or act),

codified at General Statutes (Supp. 2016) § 46b-127 (a)

(1). Prior to this amendment, the court was required

to transfer a case from the juvenile docket to the regular

criminal docket in which a child, such as the defendant,

Nathaniel S., had been charged with the commission

of certain felonies and had attained the age of fourteen

years prior to the commission of such offenses. See

General Statutes (Rev. to 2011) § 46b-127 (a) (1). The

question presented by this reserved question of law is

whether that amendment applies retroactively, so that

the case of a child who has been charged with committing a class A or class B felony prior to the enactment

of P.A. 15-183, and whose case already has been transferred to the regular criminal docket, should now have

his case transferred back to the juvenile docket. We

conclude that the legislature intended that P.A. 15-183

apply retroactively and, accordingly, we answer the

reserved question in the affirmative.

The parties agree on the relevant procedural facts.

By juvenile arrest warrant dated August 14, 2012, the

defendant was charged with, among other crimes, sexual assault in the first degree in violation of General

Statutes (Rev. to 2011) § 53a-70 (a) (2), a class A felony,

and risk of injury to a child in violation of General

Statutes (Rev. to 2011) § 53-21 (a) (2), a class B felony,

for acts allegedly committed in early May, 2012. The

defendant was fourteen years old at the time of the

alleged crimes. On August 4, 2014, the defendant’s case

was automatically transferred from the juvenile docket

of the Superior Court to the regular criminal docket

pursuant to General Statutes (Rev. to 2011) § 46b-127

(a) (1). Both at the time of the alleged crimes and at

the time of transfer, the transfer statute provided in

relevant part: ‘‘The court shall automatically transfer

from the docket forjuvenile matters to the regular criminal docket of the Superior Court the case of any child
charged with the commission of . . . a class A or B

felony . . . provided such offense was committed after

such child attained the age of fourteen years . . . .’’

General Statutes (Rev. to 2011) § 46b-127 (a) (1).

On October 1, 2015, while the defendant’s case was

pending on the regular criminal docket, P.A. 15-183 took

effect. Among other things, the act amended § 46b-127

(a) (1) by raising the age of defendants whose cases

are subject to automatic transfer from the juvenile

docket to the regular criminal docket from fourteen

years to fifteen years. See P.A. 15-183, § 1. In response,

the state and the defendant jointly requested that the

trial court reserve the following question of law for the

advice of this court pursuant to General Statutes § 52-

235 (a) and Practice Book § 73-1: ‘‘Does [P.A. 15-183]

apply to the defendant, who is charged with committing

[c]lass A and B felonies when he was fourteen years

old and had not yet reached the age of fifteen, whose

case was transferred to the regular criminal docket of

the Superior Court prior to [the act’s] effective date,

but whose case has not yet been adjudicated and will

be adjudicated now that [P.A.] 15-183 has taken effect?’’

The trial court, Fasano, J., granted the request.

The following principles govern our resolution of the

reserved question. With respect to criminal statutes, a

statute is said to have retroactive application if it applies

to crimes allegedly committed prior to its date of enactment. Robinson v. Commissioner of Correction, 258

Conn. 830, 836 n.7, 786 A.2d 1107 (2002). Whether a

new statute is to be applied retroactively or only prospectively presents a question of statutory interpretation over which we exercise plenary review. Walsh v.

Jodoin, 283 Conn. 187, 195, 925 A.2d 1086 (2007). The

question is one of legislative intent and is governed by

well established rules of statutory construction. Id.

Several rules of presumed legislative intent govern

our retroactivity analysis. Pursuant to those rules, our

firsttask is to determine whether a statute is substantive

or procedural in nature. In re Daniel H., 237 Conn. 364,

373, 678 A.2d 462 (1996). ‘‘[Although] there is no precise

definition of either [substantive or procedural law], it

is generally agreed that a substantive law creates,

defines and regulates rights while a procedural law

prescribes the methods of enforcing such rights or

obtaining redress.’’ (Internal quotation marks omitted.)

D’Eramo v. Smith, 273 Conn. 610, 621, 872 A.2d 408

(2005).

If a statute is substantive, then our analysis is controlled by General Statutes § 55-3, which provides: ‘‘No

provision of the general statutes, not previously contained in the statutes of the state, which imposes any

new obligation on any person or corporation, shall be

construed to have retrospective effect.’’ ‘‘[W]e have uniformly interpreted § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall
apply prospectively only. . . . [I]n the absence of any

clear expression of legislative intent to the contrary

[changes to statutes that create or impose substantive

new obligations are therefore] presumptively prospective.’’1

(Citation omitted; footnote omitted; internal quotation marks omitted.) Walsh v. Jodoin, supra, 283

Conn. 195–96.

By contrast, ‘‘[p]rocedural statutes have been traditionally viewed as affecting remedies, not substantive

rights, and therefore leave the preexisting scheme

intact. . . . [Accordingly] we have presumed that procedural . . . statutes are intended to apply retroactively absent a clear expression of legislative intent to

the contrary . . . .’’2

Id., 196. ‘‘We have noted, however,

that a procedural statute will not be applied retroactively if considerations of good sense and justice dictate

that it not be so applied.’’ (Internal quotation marks

omitted.) Narayan v. Narayan, 305 Conn. 394, 403, 46

A.3d 90 (2012). Because, in the absence of clear statutory guidance, these default rules provide a conclusive

expression of the presumed intent of the legislature, it

rarely will be necessary to consult legislative history

or other extratextual sources to ascertain the legislative

intent with respect to retroactivity. See State v. Kalil,

314 Conn. 529, 558–59, 107 A.3d 343 (2014).

Turning our attention to the present case, the parties

agree that P.A. 15-183 has both procedural and substantive elements. The defendant, however, contends that

the act is primarily procedural in nature and, therefore,

presumptively retroactive in its application, whereas

the state characterizes the act as having significant substantive effects and, therefore, is presumptively prospective in its application. We agree with the defendant.

There is no doubt that the amended statute, on its

face, dictates only a procedure—automatic transfer—

for adjudicating the cases of certain children accused

of committing class A or class B felonies. For that reason, in State v. Kelley, 206 Conn. 323, 332, 537 A.2d 483

(1988), this court characterized the juvenile transfer

statute as akin to a change of venue and, ‘‘by its nature,

procedural.’’ The only change effectuated by P.A. 15-

183 is to narrow the class of persons to whom this

procedure applies. A child who had only attained the

age of fourteen when he allegedly committed such

crimes is no longer subject to automatic transfer to the

regular criminal docket pursuant to General Statutes

(Supp. 2016) § 46b-127 (a) (1) and thus his case will

remain on the juvenile docket unless other circumstances dictate transfer, pursuant to General Statutes

§ 46b-145.3

The state offers several arguments as to why P.A.

15-183 should be deemed substantive for purposes of

retroactivity, notwithstanding its facially procedural

nature. We consider each argument in turn.
First, the state argues that the act should be applied

on a solely prospective basis because, although the

act is facially procedural, it carries various substantive

consequences for children accused of committing criminal offenses at the age of fourteen. One consequence

of the act, for example, is to mitigate the potential

punishment and dispositional options for fourteen year

olds charged with class A and B felonies. A fourteen

year old transferred to the regular criminal docket pursuant to General Statutes (Rev. to 2011) § 46b-127 (a)

will be sentenced as an adult if convicted; see General

Statutes (Rev. to 2011) § 46b-127 (c); and may be subject

to a lengthy period of incarceration, mandatory minimum sentences, and other consequences attendant to

conviction. See General Statutes § 53a-28 et seq. In the

present case, for example, if the defendant is convicted

on the regular criminal docket of having violated General Statutes (Rev. to 2011) § 53a-70 (a) (2), he will be

subject to a mandatory minimum sentence of ten years

imprisonment; see General Statutes (Rev. to 2011)

§ 53a-70 (b) (2) and (3); and may be required to register

as a sex offender. See General Statutes § 54-251. By

contrast, if he were found guilty of violating a criminal

statute following adjudication on the juvenile docket,

he would be subject to a maximum period of commitment of four years at the Connecticut Juvenile Training

School; see General Statutes (Rev. to 2011) §§ 46b-140

(j) and 46b-141 (a); and would be entitled to receive

various rehabilitative and treatment services while so

confined. See, e.g., General Statutes §§ 46b-121i through

46b-121l. Another consequence of the act, the state

notes, is that whether a child is adjudicated on the

regular criminal docket or the juvenile docket dictates

the nature of the proceedings against him. A conviction

of a felony offense on the regular criminal docket is a

conviction of having committed a crime; see General

Statutes § 53a-24 (a); whereas a child found guilty of

violating a criminal statute following adjudication on

the juvenile docket is convicted of delinquency and is

not subject to the various consequences attendant to

a felony conviction. See General Statutes (Supp. 2016)

§ 46b-146.

The problem with the state’s argument is that many,

if not most,rules of legal procedure have the potential to

be outcome determinative, and thus to have substantive

effects, under certain circumstances. See, e.g., See State

v. Skakel, 276 Conn. 633, 684–86, 888 A.2d 985

(addressing retroactive application of statute of limitations), cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166

L. Ed. 2d 428 (2006). If we treat as substantive any

procedural statute that impacts substantive rights, then

the line between substantive and procedural will

become hopelessly blurred. That in turn defeats the

purpose of default rules—such as the rule that procedural statutes are presumptively retroactive—which is

to maximize the likelihood that, in the absence of
express statutory guidance, a reviewing court will be

able to discern the actual intent of the legislature. By

contrast, if we retain the rule that facially procedural

statutes are presumptively retroactive, then a reviewing

court can apply the presumption with a reasonable

degree of predictability and the legislature, in turn, can

draft legislation with a clear understanding of how it

will be interpreted by the courts.4

The state’s second argument is that In re Daniel H.,

supra, 237 Conn. 364, and its progeny, stand for the

proposition that the substantive/procedural distinction

applies only to the civil law, and that all changes to the

criminal law are presumptively prospective regardless

of whetherthey are substantive or procedural in nature.

The state misreads In re Daniel H. In that case, as in our

other cases addressing the retroactive or prospective

application of criminal statutes, we made clear that

purely procedural changes to the criminal law presumptively apply retroactively, subject of course to the

requirements imposed by the ex post facto clause of

the federal constitution. See id., 372–73; see also Mead

v. Commissioner of Correction, 282 Conn. 317, 323, 920

A.2d 301 (2007); State v. Tabone, 279 Conn. 527, 537

n.13, 902 A.2d 1058 (2006); State v. Skakel, supra, 276

Conn. 680; State v. Ross, 230 Conn. 183, 282, 646 A.2d

1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133,

130 L. Ed. 2d 1095 (1995). When this court stated in In

re Daniel H. that ‘‘[i]n criminal cases, to determine

whether a change in the law applies to a defendant, we

generally have applied the law in existence on the date

of the offense, regardless of its procedural or substantive nature’’; In re Daniel H., supra, 377; it was in the

context of discussing not the default presumptions but,

rather, the predicate determination of whetherthe issue

of retroactivity is even implicated. See id., 376–77. That

is to say, whereas certain of our sister states take the

position that a substantive criminal statute has retroactive application if it applies to crimes committed before

the statute was enacted but that a procedural criminal

statute is deemed to have retroactive application only

if it applies under circumstances (such as the present

case) in which the procedures dictated by the prior

law already have been undertaken; see M. Gilmore,

‘‘Application of Statutory Changes to Cases in Progress:

The Crossroads of the Legislative and Judicial Power—

An Analysis of Federal and Idaho Law,’’ 34 Idaho L.

Rev. 517, 562 (1998); Connecticut follows the rule that

the date of the offense is the touchstone for both substantive and procedural changes to the law. Accordingly, In re Daniel H. does not require prospective

application of the act.

The state also argues that: (1) retroactive application

of the act is barred by the savings statutes; see General

Statutes §§ 1-1 (t) and 54-194; (2) applying the act retroactively would lead to the ‘‘absurd’’ consequence that

child defendants such as the defendant would receive
the benefit of its application whereas other children

who offended at the same time, but who were tried and

convicted prior to its enactment, would not; and (3)

other states have not applied similar statutory changes

retroactively. We are not persuaded.

First, it is well established that § 1-1 (t) does not

bar the retroactive application of procedural statutes

except to the extent that such application would offend

considerations of good sense and justice. See Investment Associates v. Summit Associates, Inc., 309 Conn.

840, 866 n.16, 74 A.3d 1192 (2013). Moreover, § 54-194,

by its terms, governs only those statutes that define

or prescribe criminal punishments, which P.A. 15-183

does not.

Second, we perceive no absurdity in the fact that

retroactive application of the act will affect pending

cases but not those that already have reached a final

judgment, as this will be true of mostretroactive amendments to procedural rules. If the legislature wishes to

avoid such a result, it need only specify that a particular

procedural change is to be applied only prospectively.

Third, we observe that our sister states, in considering whether changes to their juvenile transfer statutes

applied retroactively or only prospectively, have

reached differing conclusions. Compare, e.g., Watts v.

Commonwealth, 468 Mass. 49, 59, 8 N.E.3d 717 (2014)

(prospective application only), with State v. Walls, 96

Ohio St. 3d 437, 442, 775 N.E.2d 829 (2002) (retroactive

application). Because of the differences in the statutory

language, governing statutory regimes, and controlling

legal precedents, those decisions are of limited use in

construing the intent of the Connecticut legislature with

respect to P.A. 15-183.

For these reasons, we conclude that P.A. 15-183 is

procedural in nature and that the changes to the automatic transfer provisions of General Statutes (Supp.

2016) § 46b-127 (a) are presumptively to be applied

retroactively to all pending cases. We turn next to the

text of the act, wherein we perceive nothing that would

overcome this presumption of retroactive application.

The language of the act itself is silent in this respect,

providing an effective date of October 1, 2015, but no

express guidance as to retroactive or prospective application. ‘‘Because all public acts not specifying an effective date automatically are assigned to take effect on

the first day of October following the session of the

General Assembly at which they are passed; General

Statutes § 2-32; we never have ascribed particular significance to such dates in ascertaining the legislature’s

intent.’’ (Internal quotation marks omitted.) Investment

Associates v. Summit Associates, Inc., supra, 309

Conn. 867.

The state argues that the text of other contemporaneous legislation addressed to juvenile sentencing speci-
fies that those amendments are to be applied

retroactively, and that the absence of such express language in P.A. 15-183 suggests that the act is intended

to apply only prospectively. We disagree.

One week before P.A. 15-183 was signed into law,

the governor signed No. 15-84 of the 2015 Public Acts

(P.A. 15-84), which made various changes to Connecticut’s juvenile sentencing laws. Most sections of P.A.

15-84 merely provide an effective date of October 1,

2015. Unlike P.A. 15-183, however, four sections of P.A.

15-84 contain the following language: ‘‘Effective October 1, 2015, and applicable to any person convicted

prior to, on or after said date . . . .’’ (Emphasis

altered.) P.A. 15-84, §§ 6 through 9. The state contends

that the fact that the legislature expressly made certain

changes to the juvenile sentencing laws applicable retroactively in contemporaneous legislation, but did not

include such language in the relevant provisions of P.A.

15-183, indicates that it did not intend the latter changes

to apply retroactively. See State v. Rupar, 293 Conn.

489, 509, 978 A.2d 502 (2009).

The flaw in this argument is that all the amendments

contained in P.A. 15-84 that the state highlights are

plainly substantive changes in the law. For example,

they specify that juvenile offenders will no longer be

subject to the death penalty or to mandatory life imprisonment without the possibility of parole. P.A. 15-84,

§§ 6 through 9. Because substantive amendments are

presumptively prospective, in order to afford those

changes retroactive effect the legislature was required

to include express language to that effect. By contrast,

because P.A. 15-183 amends the state’s criminal procedure, the act is presumptively retroactive, and there was

no need forthe legislature to so specify. Accordingly, we

conclude that the plain language of the act, as informed

by the statutory presumptions, unambiguously indicates that the amendments to the juvenile transfer statute contained in P.A. 15-183 apply retroactively to cases

pending on the effective date of October 1, 2015.5

Lastly, we are not aware of any ‘‘ ‘considerations of

good sense and justice’ ’’ that would preclude retroactive application of P.A. 15-183 in the present case. See

Narayan v. Narayan, supra, 305 Conn. 403. The parties

and the trial court sought the guidance of this court at

the outset, prior to trial, and there is no indication in

the record that the state has relied to its detriment

on the defendant’s transfer status as an alleged adult

offender.6 Moreover, the rationales that appear to have

motivated the adoption of the act apply with equal force

to children such as the present defendant who allegedly

committed felony offenses prior to its enactment. See

footnote 5 of this opinion. Accordingly, we conclude

that the legislature intended P.A. 15-183 to apply retroactively to cases such as this.

The reserved question is answered ‘‘yes.’’
No costs shall be taxed in this court to either party.

In this opinion the other justices concurred.

* In accordance with our policy of protecting the privacy interests of the

victims of sexual assault and the crime of risk of injury to a child, we decline

to use the defendant’s full name or to identify the alleged victim or others

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

Statutes § 54-86e.

1 Because we conclude that P.A. 15-183 is procedural rather than substantive, we need not determine whether § 55-3 would barretroactive application

of a statute that, while substantive in nature, affords only benefits to a

criminal defendant and imposes no new obligations on either the defendant

or other persons. See Welch v. Wadsworth, 30 Conn. 149, 158 (1861).

2 Although at times we have equated procedural rules with those that

govern remedies rather than rights, we also have cautioned that reliance

on the term ‘‘remedial’’ in this context may unnecessarily confuse the issue,

because most statutes—both substantive and procedural—can be considered remedial insofar as they seek to solve a problem, cure an ill, or repair

a defect in existing legislation. See, e.g., Narayan v. Narayan, 305 Conn.

394, 405, 46 A.3d 90 (2012).

3 Section 46b-145, which was not affected by P.A. 15-183, provides that

no child shall be prosecuted for an offense before the regular criminal

docket of the Superior Court except as provided in General Statutes (Supp.

2016) § 46b-127 and General Statutes (Supp. 2016) § 46b-133c (f). General

Statutes (Supp. 2016) § 46b-133c (f) still permits the transfer of a proceeding

involving a child who has attained the age of fourteen to the regular criminal

docket if the child has been adjudicated a serious juvenile repeat offender.

4 We recognize that certain of our cases have indicated that a statute that,

‘‘in form, provides but a change in remedy but actually brings about changes

in substantive rights is not subject to retroactive application.’’ (Internal

quotation marks omitted.) Walsh v. Jodoin, supra, 283 Conn. 196. That

language, however, is better understood as an outgrowth of the well established principle that even new procedural rules will not be applied retroactively when to do so would impair vested rights and thus implicate

considerations of good sense and justice. See State v. Skakel, supra, 276

Conn. 684–86 (connecting these principles).

5 Even if the statutory language were ambiguous, nothing in the legislative

history of P.A. 15-183 compels a different result. It is reasonable to assume

that the amendments to § 46b-127 were motivated by an emerging understanding of youth behavior and a recognition that fourteen year olds are

more amenable than adults to rehabilitation and that their needs may more

effectively be served within the juvenile justice system. See 58 H.R. Proc.,

Pt. 11, 2015 Sess., pp. 5090–93, remarks of Representative Robyn Porter.

Such purposes apply with equal force to children whose offenses were

committed prior to the effective date of the act.

6 We need not, and do not, decide whether retroactive application of P.A.

15-183 might be barred as unjust in a case in which a trial on the regular

criminal docket already had commenced at the time the act came into effect.