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*********************************************** 
STATE OF CONNECTICUT v. RICHARD BUSH

(AC 34886)

DiPentima, C. J., and Sheldon and Mullins, Js.

Syllabus

Convicted of the crimes of sale of narcotics, sale of narcotics within 1500 feet

of a school, conspiracy to sell narcotics and racketeering, the defendant

appealed to this court, which reversed the trial court’s judgment and

remanded the case to the trial court with direction to render a judgment

of acquittal on the charge of racketeering and for a new trial on all of

the other charges of which the defendant was convicted. Thereafter,

the state, on the granting of certification, appealed to the Supreme Court,

which disagreed with this court’s conclusion that the defendant was

entitled to a new trial on the remaining charges and remanded the case

to this court for consideration of his remaining claims on appeal. The

defendant claimed, inter alia, that the trial court committed structural

error when it failed to grant his initial request to represent himself and

unlawfully sentenced him to twenty years incarceration on his conviction

for conspiracy, which, he claimed, exceeded by five years the maximum

possible term of incarceration for conspiracy to sell cocaine. On

remand, held:

1. The trial court did not abuse its discretion when it failed to grant the

defendant’s initial request to represent himself and suggested to him

that his trial counsel continue to represent him through voir dire; the

defendant could not reasonably be found to have made a clear and

unequivocal request to proceed without counsel, the defendant having

agreed with the court’s suggestion after the court canvassed him to

determine whether he had the capacity to represent himself.

2. The defendant could not prevail on his claim that the jury was misled by

the trial court’s instructions on the conspiracy charge, which was based

on his assertion that the court failed to instruct the jury on the elements

of possession of narcotics and possession of narcotics with intent to

sell, and to determine which of the underlying crimes charged against

him that he conspired to commit: it was not likely that the jury was

misled by the court’s failure to mention or describe other offenses listed

in the information as alleged objects of the conspiracy, as the guilty

verdict was necessarily based on the only theory of liability on which

the jury was instructed, which was conspiracy to sell cocaine, and,

although the information listed four offenses as alleged objects of the

conspiracy, there was no reasonable possibility that the jury was confused or misled by the court’s failure to mention in its instructions the

charges of possession of narcotics or possession of narcotics with intent

to sell as other alleged objects of the conspiracy, the court having limited

the scope of the charged conspiracy to the sale of narcotics.

3. The trial court improperly sentenced the defendant to twenty years incarceration on the conspiracy conviction, as the most serious crime of

which he was convicted that was proved to have been an object of the

conspiracy was the sale of cocaine by a drug-dependent person, which

carried a maximum possible prison sentence of fifteen years for a first

offense, and, contrary to the state’s claim that the twenty year sentence

was lawful because the defendant testified that he had a prior conviction

for sale of cocaine, which exposed him, as a repeat offender, to a

maximum possible prison sentence of thirty years, there never was a

trial or other proceeding or a factual finding as to his alleged status as

a repeat offender, as the state initially informed the court, defense

counsel and the defendant that it would not prosecute a part B information with respect to the conspiracy charge and thereafter withdrew the

part B information after the jury returned its verdict; accordingly, the

sentence on the conspiracy conviction was vacated and the case was

remanded for resentencing.

Argued September 18, 2017—officially released January 9, 2018

Procedural History
Substitute information charging the defendant with

six counts each of the crimes of sale of narcotics by a

person who is not drug-dependent and sale of narcotics

within 1500 feet of a school by a person who is not

drug-dependent, and with one count each of the crimes

of conspiracy to sell narcotics and racketeering,

brought to the Superior Court in the judicial district of

Fairfield, geographical area number two, and tried to

the jury before Thim, J.; verdict and judgment of guilty

of six counts each of the lesser included offenses of

sale of narcotics within 1500 feet of a school by a person

who is drug-dependent and sale of narcotics by a person

who is drug-dependent, and one count each of conspiracy to sell narcotics and racketeering, from which the

defendant appealed to this court, which reversed the

trial court’s judgment and remanded the case with direction to render judgment of not guilty on the racketeering

charge and for a new trial on the other charges; thereafter, the state, on the granting of certification, appealed

to the Supreme Court, which reversed this court’s judgment in part and remanded the case to this court for

further proceedings. Reversed in part; further proceedings.

Pamela S. Nagy, assistant public defender, for the

appellant (defendant).

Adam E. Mattei, assistant state’s attorney, with

whom, on the brief, were John C. Smriga, state’s attorney, and C. Robert Satti, supervisory assistant state’s

attorney, for the appellee (state).
Opinion

SHELDON, J. This case is before us on remand from

our Supreme Court following its affirmance of our

determination that insufficient evidence was presented

at trial to sustain the conviction of the defendant, Richard Bush, for racketeering in violation of General Statutes § 53-393 et seq. The Supreme Court disagreed,

however, with this court’s determination that the defendant was entitled to a new trial on the other charges

of which he had been found guilty—six counts each of

sale of narcotics and sale of narcotics within 1500 feet of

a school, and one count of conspiracy to sell narcotics—

because the trial court’s denial of his motion for a continuance to review voluminous discovery documents

after granting his second request to represent himself

had effectively deprived him of his constitutional right

to self-representation. Before us now are the defendant’s additional claims of error as to his remaining

convictions. The defendant claims that the trial court:

(1) violated his constitutional right to self-representation by not granting his initial request to represent himself on the second day of voir dire; (2) improperly

instructed the jury on the charge of conspiracy; and (3)

improperly sentenced him to a term of twenty years

incarceration on his conviction for conspiracy. We

reject the defendant’s first two claims of error, and thus

conclude that he is not entitled to a new trial. We agree

with the defendant, however, that he was improperly

sentenced to a term of twenty years incarceration on

his conviction for conspiracy. Accordingly, we remand

this case for resentencing on that conviction.

The Supreme Court recounted the following relevant

factual and procedural background, as previously set

forth by this court. ‘‘The charges upon which the defendant was brought to trial were based upon his alleged

involvement in seven separate sales of cocaine to a

police informant, David Hannon, during an undercover

police investigation of illegal drug activity in the area

of Pembroke and Ogden Streets in Bridgeport between

late June [and] early November, 2010. . . . [D]uring

that time period, the investigating task force of officers

from the Bridgeport Police Department and the Connecticut State Police obtained extensive audiotape and

videotape surveillance footage of these sales, in which

the defendant, working from the porch of his duplex

home, which directly abutted the sidewalk on Pembroke Street, sold cocaine to Hannon, or facilitated

sales to Hannon by six other drug dealers, namely,

David Moreland, Jason Ortiz, Willie Brazil, Raymond

Mathis, Carlos Lopez, and Kenneth Jamison.

‘‘In an amended long form information dated January

3, 2012, the state charged the defendant, more particularly, with: one count each of sale of narcotics by a

person who is not drug-dependent and sale of narcotics

within 1500 feet of a school by a person who is not
drug-dependent in connection with six of the seven

alleged sales; and one count each of conspiracy to sell

narcotics and racketeering based upon his alleged

involvement in all seven such alleged sales, as specially

pleaded both in the conspiracy count, as overt acts

in furtherance of the alleged conspiracy, and in the

racketeering count, as incidents of racketeering activity

claimed to prove his involvement in a pattern of racketeering activity, as required by [General Statutes] § 53-

396 (a). The jury found the defendant guilty of the lesser

included offenses of sale of narcotics by a person who

is drug-dependent and sale of narcotics within 1500 feet

of a school by a person who is drug-dependent based

upon his proven involvement in sales of cocaine to

Hannon on the six dates he was charged in the information with committing such offenses, particularly June

30, July 14, July 16, August 6, August 24, and November

9, 2010. The jury also found the defendant guilty of both

conspiracy to sell narcotics and racketeering, specifying as to the latter charge, in a special verdict returned

pursuant to § 53-396 (b), that the sole basis for its finding that the defendant had engaged in a pattern of racketeering activity as a member of an enterprise was his

involvement in the sale of cocaine on two of the seven

dates specified in the information, June 30 and November 9, 2010, which it found to have constituted incidents

of racketeering activity. The trial court later sentenced

the defendant on all charges of which he was convicted

to a total effective sentence of twenty years incarceration.’’ (Citation omitted; footnote omitted; internal quotation marks omitted.) State v. Bush, 325 Conn. 272,

277–78, 157 A.3d 586 (2017). Specifically, the defendant

was sentenced to: twenty years incarceration on his

conviction for conspiracy in violation of General Statutes §§ 53a-48 and 21a-278 (b); fifteen years incarceration on each of his six convictions for sale of narcotics

by a drug-dependent person in violation of General Statutes § 21a-277 (a), to run concurrently with his sentence

for conspiracy; and three years incarceration on each

of his six convictions for sale of narcotics by a drugdependent person within 1500 feet of a school in violation of General Statutes § 21a-278a (b), to run concurrently with one another and with his sentence for

conspiracy, but consecutively to his concurrent sentences for sale of narcotics.

The defendant appealed from his conviction to this

court. This court, as previously noted, reversed his racketeering conviction and directed that a judgment of

acquittal be entered on that charge. This court further

determined that he was entitled to a new trial on the

other charges of which he had been convicted because

he had effectively been denied his right to represent

himself when the trial court, after granting his request

to represent himself, denied his motion for a continuance to review voluminous discovery documents before

the start of trial. State v. Bush, 156 Conn. App. 256, 112
A.3d 834 (2015), rev’d, 325 Conn. 272, 157 A.3d 586

(2017). Our Supreme Court affirmed the reversal of the

defendant’s racketeering conviction, but disagreed with

this court’s conclusion that the defendant was entitled

to a new trial on the remaining charges because the

trial court violated his constitutional right to self-representation when it denied his request for a continuance

to examine the state’s disclosure on the eve of trial. We

now address his remaining claims on appeal. Additional

facts will be set forth as necessary.

I

The defendant first claims that the trial court violated

his constitutional right to represent himself at trial by

denying his initial request to do so. Although the court

ultimately granted the defendant’s second request to

represent himself, and the defendant subsequently withdrew that request and elected to proceed with his attorney’s representation after his motion for a continuance

was denied, he claims that the court committed structural error by denying his initial request to represent

himself. We disagree.

The following additional procedural history is relevant to this claim. ‘‘On the first day of voir dire, March

12, 2012, the defendant told the court that he and [his

court-appointed counsel, Vicki Hutchinson] ‘don’t connect at all,’ and that he was ‘very uncomfortable’ with

her. In response, the court told the defendant: ‘Sir, this

case is over a year old . . . approximately a year old,

you were arrested about a year ago, around July. You

were brought to this courthouse in July of [2011], you

plead[ed] not guilty, and . . . Hutchinson has represented you since then. This is . . . and we’re ready to

start picking the jury, and this is the first request, [a]

request to have someone other than . . . Hutchinson

represent yourself. . . . Hutchinson is an extremely

well experienced defense attorney, we’re going forward

with the trial at this time.’

‘‘The next day, March 13, 2012, the defendant again

voiced his dissatisfaction with Hutchinson’s representation. The defendant also complained that he had not

had the opportunity to review with his attorney various

documents and videotapes she had procured through

discovery. In response, the court reiterated that the

defendant’s trial had already begun and that Hutchinson

was a very experienced attorney. The court explained

that the trial would proceed with jury selection that

morning, but that the defendant would be given the

afternoon to meet with Hutchinson. At that point, the

state suggested that the court may have an obligation,

pursuant to State v. Flanagan, 293 Conn. 406, 978 A.2d

64 (2009), to canvass the defendant as to his request

to represent himself. The court responded, ‘[w]e’re not

at that point yet.’ Voir dire resumed.

‘‘Shortly thereafter, when the defendant interrupted
the voir dire proceedings, the court asked him if he

wanted to represent himself. When the defendant

responded in the affirmative, the court canvassed him

both to determine if he had the desire and the capacity

to represent himself, and to warn him of the dangers

and disadvantages of self-representation. After asking

the defendant several questions on these subjects, the

court proposed to the defendant that he agree to have

Hutchinson pick the jury, and then it would revisit the

issue of whether he should be allowed to represent

himself going forward. The defendant initially agreed

to that proposal. Voir dire thus continued until 1:15

p.m., with Hutchinson still representing the defendant.

Thereafter, as promised, the defendant was afforded

the rest of the day to meet with Hutchinson to review

the state’s disclosure.

‘‘The next day, March 14, 2012, the defendant notified

the court that technical difficulties prevented him from

being able to watch certain of the videotapes that he

had sought to watch on the previous afternoon. Following an exchange with the defendant and a discussion

with counsel, the court decided not to proceed with

voir dire that day so as to give the defendant another

opportunity to view the videotapes that he had not been

able to view the day before.

‘‘After the defendant reviewed the videotapes, the

court revisited the defendant’s request to represent himself, and the defendant reiterated his desire to do so.

The court then thoroughly canvassed the defendant and

determined that he validly waived his right to counsel.

The court asked Hutchinson to remain present as

standby counsel for the defendant, and then adjourned

for the day.’’ State v. Bush, supra, 325 Conn. 306–308.

On the next day, March 15, 2012, the court denied

the defendant’s request for a continuance to review

approximately 900 pages of documents that the state

had provided to Hutchinson. After the court denied

his request for a continuance, the defendant elected to

proceed with Hutchinson as his attorney.

The defendant now claims that the court committed

structural error when it failed to grant his initial request

to represent himself on the second day of voir dire.

We disagree.

‘‘The sixth amendment to the United States constitution provides in relevant part: In all criminal prosecutions, the accused shall enjoy the right . . . to have

the assistance of counsel for his defense. The sixth

amendment right to counsel is made applicable to state

prosecutions through the due process clause of the

fourteenth amendment. . . . In Faretta v. California,

[422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562

(1975)], the United States Supreme Court concluded

that the sixth amendment [also] embodies a right to

self-representation and that a defendant in a state crimi-
nal trial has a constitutional right to proceed without

counsel when he voluntarily and intelligently elects to

do so. . . . In short, forcing a lawyer upon an unwilling

defendant is contrary to his basic right to defend himself

if he truly wants to do so. . . .

‘‘It is well established that [t]he right to counsel and

the right to self-representation present mutually exclusive alternatives. A criminal defendant has a constitutionally protected interest in each, but since the two

rights cannot be exercised simultaneously, a defendant

must choose between them. When the right to have

competent counsel ceases as the result of a sufficient

waiver, the right of self-representation begins. . . . Put

another way, a defendant properly exercises his right

to self-representation by knowingly and intelligently

waiving his right to representation by counsel. . . .

‘‘The inquiry mandated by Practice Book § 44-3 is

designed to ensure the knowing and intelligent waiver

of counsel that constitutionally is required. . . . We

ordinarily review for abuse of discretion a trial court’s

determination, made after a canvass pursuant to . . .

§ 44-3, that a defendant has knowingly and voluntarily

waived his right to counsel. . . . [W]here the defendant

claims that the trial court improperly failed to exercise

that discretion by canvassing him after he clearly and

unequivocally invoked his right to represent himself

. . . whether the defendant’s request was clear and

unequivocal presents a mixed question of law and fact,

over which . . . our review is plenary. . . .

‘‘State and federal courts consistently have discussed

the right to self-representation in terms of invoking or

asserting it . . . and have concluded that there can be

no infringement of the right to self-representation in

the absence of a defendant’s proper assertion of that

right. . . . The threshold requirement that the defendant clearly and unequivocally invoke his right to proceed pro se is one of many safeguards of the

fundamental right to counsel. . . . Accordingly, [t]he

constitutional right of self-representation depends . . .

upon its invocation by the defendant in a clear and

unequivocal manner. . . . In the absence of a clear and

unequivocal assertion of the right to self-representation,

a trial court has no independent obligation to inquire

into the defendant’s interest in representing himself

. . . . [Instead] recognition of the right becomes a matter entrusted to the exercise of discretion by the trial

court. . . . Conversely, once there has been an

unequivocal request for self-representation, a court

must undertake an inquiry [pursuant to Practice Book

§ 44-3], on the record, to inform the defendant of the

risks of self-representation and to permit him to make

a knowing and intelligent waiver of his right to counsel. . . .

‘‘Although a clear and unequivocal request is

required, there is no standard form it must take. [A]
defendant does not need to recite some talismanic formula hoping to open the eyes and ears of the court to

[that] request. Insofar as the desire to proceed pro se

is concerned, [a defendant] must do no more than state

his request, either orally or in writing, unambiguously

to the court so that no reasonable person can say that

the request was not made. . . . Moreover, it is generally incumbent upon the courts to elicit that elevated

degree of clarity through a detailed inquiry. That is, the

triggering statement in a defendant’s attempt to waive

his right to counsel need not be punctilious; rather, the

dialogue between the court and the defendant must

result in a clear and unequivocal statement. . . .

‘‘Finally, in conducting our review, we are cognizant

that the context of [a] reference to self-representation

is important in determining whether the reference itself

was a clear invocation of the right to self-representation. . . . The inquiry is fact intensive and should be

based on the totality of the circumstances surrounding

the request . . . which may include, inter alia, whether

the request was for hybrid representation . . . or

merely for the appointment of standby or advisory counsel . . . the trial court’s response to a request . . .

whether a defendant has consistently vacillated in his

request . . . and whether a request is the result of an

emotional outburst . . . .’’ (Emphasis omitted; internal

quotation marks omitted.) State v. Pires, 310 Conn. 222,

230–32, 77 A.3d 87 (2013).

As explained herein, on the second day of voir dire,

following a colloquy with the defendant, the court canvassed him to determine whether he had the capacity

to represent himself. Upon hearing the defendant’s

responses to its inquiries, the court stated that it would

not be ‘‘a wise decision’’ for him to represent himself

and suggested that Hutchinson continue to represent

him through voir dire, after which his request to represent himself would be revisited. The defendant agreed

to the court’s suggestion, stating, ‘‘[o]kay, we could do

that. That’s no problem . . . I mean fair is fair.’’ In

these circumstances, the defendant cannot reasonably

be found to have made a clear and unequivocal request

to proceed without counsel at that time. Moreover, in

light of the defendant’s agreement with the trial court’s

suggestion that he proceed with the assistance of counsel during voir dire, we cannot conclude that the court

abused its discretion in proceeding with voir dire with

Hutchinson representing the defendant.

II

The defendant next claims that the court erred in two

ways in instructing the jury on the charge of conspiracy

against him. First, he claims that the court erred by

failing to instruct the jury on the elements of possession

of narcotics in violation of General Statutes § 21a-279

and possession of narcotics with intent to sell in violation of § 21a-277 (b), two of the four offenses that were
listed in the information as alleged objects of the

charged conspiracy. Second, he claimed that the court

erred in failing to instruct the jury to specify in its

verdict, if it found him guilty of conspiracy, which of

those listed offenses had been proved beyond a reasonable doubt to be the intended object or objects of the

conspiracy. The defendant claims that these alleged

infirmities in the court’s instructions likely misled the

jury. We are not persuaded.

‘‘[I]n reviewing a constitutional challenge to the trial

court’s instruction, we must consider the jury charge

as a whole to determine whether it is reasonably possible that the instruction misled the jury. . . . The test

is whether the charge as a whole presents the case to

the jury so that no injustice will result. . . . We will

reverse a conviction only if, in the context of the whole,

there is a reasonable possibility that the jury was misled

in reaching its verdict. . . . A jury instruction is constitutionally adequate if it provides the jurors with a clear

understanding of the elements of the crime charged, and

affords them proper guidance for their determination

of whether those elements were present.’’ (Internal quotation marks omitted.) State v. Frasier, 169 Conn. App.

500, 509–10, 150 A.3d 1176 (2016), cert. denied, 324

Conn. 912, 153 A.3d 653 (2017).

On the conspiracy charge, the court instructed the

jury that ‘‘the state must prove three elements beyond

a reasonable doubt. First: there was an agreement

between the defendant and one or more persons to

engage in the sale of—of cocaine. Second: there was

an overt act in furtherance of the subject of the

agreement by one of those persons who are part of the

agreement. Third: the defendant specifically intended

to commit the crime; that is, to sell cocaine.

‘‘As to the first element, an agreement between the

defendant and one or more persons that criminal conduct be performed, the state must prove that [the defendant] came to an understanding with at least one other

person to further the criminal purpose of selling of

cocaine. The state . . . need not prove a formal or

express agreement. The state may rely on circumstantial evidence if such evidence is sufficient to prove

beyond a reasonable doubt the existence of an

agreement.

‘‘The second essential element is that after the

agreement was formed, one or more of the conspirators

carried out an overt act in furtherance of the conspiracy.

An overt act is any step, action or conduct taken to

achieve the objective of the conspiracy. It makes no

difference which member of the conspiracy commits

the act; it need not be the defendant. The state must

prove beyond a reasonable doubt at least one member

of the conspiracy carried out the overt act.

‘‘The third essential element is that when the defen-
dant entered into the conspiratorial agreement, he

intended to violate the drug laws. The state must prove

beyond a reasonable doubt that [the defendant] had the

intent, the conscious objective to violate the criminal

laws, and the sale of cocaine. The state claims that the

conspirators agreed and the defendant had the intent

to sell . . . cocaine.

‘‘I have previously discussed the essential elements

of the sale of cocaine laws. Essentially, the state must

prove [that the defendant] intended to sell or deliver

cocaine to persons who are not members of the conspiracy.

‘‘To summarize this charge, the state must prove

beyond a reasonable doubt that [the defendant]

intended to sell cocaine, and acting with that intent he

agreed with one or more persons to pursue conduct

that involve[d] the sale of cocaine. The state must further prove that at least one of the conspirators did an

overt act in furtherance of the conspiracy. If you find

beyond a reasonable doubt all these elements are

proven, you shall find [the defendant] guilty of conspiracy. If you find the state has failed to prove any element

beyond a reasonable doubt, you should find him not

guilty of the conspiracy charge.’’

In so instructing the jury, the court narrowed the

description of the charged conspiracy, and thus the

legal basis upon which the defendant could lawfully be

found guilty of that offense as charged, of conspiracy

to sell cocaine. It thereby effectively eliminated, as possible objects of the charged conspiracy, both possession

of cocaine in violation of § 21a-279 and possession of

cocaine with intent to sell in violation of § 21a-277 (b).

Because the jury’s guilty verdict, and thus the defendant’s conspiracy conviction, were necessarily based

on the only theory of liability on which the jury was

instructed—that of conspiracy to sell cocaine—it is not

likely that the jury was misled by the court’s failure to

mention or describe other offenses listed in the information as alleged objects of the conspiracy in its final

instructions.

The defendant also argues that the trial court improperly failed to charge the jury that it must determine

which underlying crime or crimes he conspired to commit. In support of this argument, the defendant cites to

State v. Toth, 29 Conn. App. 843, 618 A.2d 536, cert.

denied, 225 Conn. 908, 621 A.2d 291 (1993), in which the

defendant allegedly conspired to commit three separate

crimes. There, because the trial court allegedly failed

to instruct the jury that it must find which specific

crime or crimes the defendant and his coconspirators

had conspired to commit, the trial court could not know

from the jury’s verdict which offense or offenses the

defendant had been convicted of conspiring to commit.

The court in Toth thus held that, ‘‘in the absence of an

instruction to the jury that it must determine beyond
a reasonable doubt which of several object offenses

the defendant conspired to commit, the jury was misled

by the charge.’’ Id., 864.

The reasoning in Toth is plainly inapposite to this

case, however, for here, although four offenses were

listed in the information as alleged objects of the

charged conspiracy, the court instructed the jury that

it could find the defendant guilty of conspiracy only on

the theory of conspiracy to sell cocaine. Because the

court thereby limited the scope of the charged conspiracy to the sale of narcotics, there was no reasonable

possibility that the jury was confused or misled by the

court’s failure to mention possession of narcotics or

possession of narcotics with intent to sell as other

alleged objects of the charged conspiracy.

III

The defendant’s final claim of error is that the trial

court unlawfully sentenced him to twenty years incarceration on his conviction for conspiracy. The defendant claims that the challenged sentence exceeds by

five years the maximum possible term of incarceration

for conspiracy to sell cocaine, as that crime was charged

and proved against him in this case. He thus asks that

his sentence for conspiracy be vacated and that this

case be remanded to the trial court for resentencing

on that charge in accordance with law.

Our Penal Code has long provided, in § 53a-48 (a),

that ‘‘[a] person is guilty of conspiracy when, with intent

that conduct constituting a crime be performed, he

agrees with one or more persons to engage in or cause

the performance of such conduct, and any one of them

commits an overt act in pursuance of such conspiracy.’’

Under that statute, the three essential elements of conspiracy, are (1) that the defendant agreed with one or

more persons to engage in or cause the performance

of conduct constituting one or more crimes, which are

referred to as the ‘‘objects’’ of the conspiracy; (2) that

any one of the coconspirators committed an overt act

in pursuance of such conspiracy; and (3) that the defendant specifically intended, at the time of the conspiratorial agreement, to commit or cause the performance of

conduct constituting one or more crimes that were the

objects of the conspiracy.

The crime of conspiracy, so defined, does not carry

a specific maximum punishment that is the same in all

cases. Instead, the maximum punishment imposable for

conspiracy is made to depend upon the seriousness of

the crime or crimes that is/are proved to have been the

object(s) of the conspiracy. On this score, our Penal

Code further provides, in General Statutes § 53a-51, that

‘‘conspiracy . . . [is a crime] of the same grade and

degree as the most serious offense which is . . . an

object of the conspiracy, except that [a] conspiracy to

commit a class A felony is a class B felony.’’
To implement this relational rule of sentencing for

conspiracy, it is well settled that the state must prove

not only which particular crimes were the agreed and

intended objects of the charged conspiracy, but also

that the defendant, when entering into the conspiratorial agreement, specifically intended to commit or cause

the performance of conduct constituting such object

crimes, and that the overt act upon which the state relies

to obtain a conviction was committed in pursuance of

an agreement to commit such object crimes. Without

such specificity in the jury’s guilty verdict, the court

cannot determine, without impermissible speculation,

what particular type of conspiratorial agreement underlies that verdict, or thus what maximum sentence can

lawfully be imposed on the defendant on the basis of

that verdict.

In this case, the defendant was brought to trial on

an information charging him, in the second count, with

conspiracy to violate several listed provisions of the

State Dependency Producing Drug Law, particularly

§§ 21a-278 (b), 21a-277 (a), 21a-277 (b) and 21a-279,

while acting with the intent to violate those statutes.

The second count further alleged that, ‘‘in the performance of such conspiracy,’’ the defendant and/or one

or more other named coconspirators committed at least

one of seven overt acts, each a sale of cocaine on a

particular date and at a particular location in the city

of Bridgeport. The six alleged overt acts in which the

defendant was alleged to have participated conformed

precisely, as to date, location, and persons participating,

to the six alleged sales of cocaine on which the state

based separate substantive charges of one count each of

sale of cocaine by a person who is not drug-dependent

in violation of § 21a-278 (b) and sale of cocaine by a

person who is not drug-dependent within 1500 feet of

a school, in violation of § 21a-278a (b), in the third

through the fourteenth counts of the information.

The defendant defended himself at trial on his substantive charges of sale of cocaine by a person who is

not drug-dependent and sale of cocaine by a person

who is not drug-dependent within 1500 feet of a school,

inter alia, by claiming and attempting to prove, in the

manner of an affirmative defense, that he was drugdependent throughout the period in which he was

alleged to have made the sales of cocaine here at issue.

On the basis of that defense, which the defendant supported at trial by his own testimony and that of others

who knew him as to his long-standing drug addiction,

the trial court instructed the jury as to each alleged

sale of cocaine both on the charged offenses of sale of

cocaine by a person who is not drug-dependent and

sale of cocaine by a person who is not drug-dependent

within 1500 feet of a school and on the lesser included

offenses of sale of cocaine by a drug-dependent person

and sale of cocaine by a drug-dependent person within
1500 feet of a school. So instructed, the jury found the

defendant not guilty on each charge of sale of cocaine

by a person who is not drug-dependent and sale of

cocaine by a person who is not drug-dependent within

1500 feet of a school, but found him guilty on each

charge of sale of cocaine by a drug-dependent person

and sale of cocaine by a drug-dependent person within

1500 feet of a school.

In light of the defendant’s acquittal on all charges of

sale of cocaine by a person who is not drug-dependent

under § 21a-278 (b), pursuant to his affirmative defense

of drug dependency, the defendant claims that the most

serious crime which was proved at trial to have been

an object of the charged conspiracy was sale of cocaine

by a drug-dependent person in violation of § 21a-277

(a), which carries with it, for a first offense, a maximum

possible prison sentence of fifteen years. He argues, on

that basis, that his twenty year prison sentence for

conspiracy must be vacated because it exceeds the

statutory maximum prescribed by law.

The state does not dispute the defendant’s claim that,

in light of the jury’s finding on the issue of drug dependency, the most serious crime he was found to have

conspired to commit was sale of cocaine by a drugdependent person in violation of § 21a-277 (a). It argued

in its brief, however, that that sentence was entirely

lawful because the defendant has a prior conviction for

sale of cocaine, as he admitted in his testimony at trial,

and thus was exposed, as a repeat offender, to a maximum possible prison sentence of thirty years, both on

each of his substantive charges of sale of cocaine by a

drug-dependent person and on the charge of conspiracy

to sell cocaine in violation of §§ 53a-48 and 21a-277 (a).

On this record, however, there are two important

reasons why the state’s argument must be rejected.

First, although the state specially pleaded in a part B

information that the defendant was subject to enhanced

penalties on each of his charges of sale of cocaine

because he was a repeat offender, the state’s trial prosecutor expressly informed the trial court, defense counsel and the defendant, at an in-court proceeding

designed to warn the defendant about the dangers and

disadvantages of representing himself at trial, that the

state had not filed and would not prosecute the part B

information with respect to the charge of conspiracy.

For that reason, the trial court acknowledged on the

record that the defendant’s maximum possible prison

sentence on the still-pending charge of conspiracy to

sell cocaine by a person who is not drug-dependent in

violation of §§ 53a-48 and 21a-278 (b) was twenty years,

as prescribed by the latter statute for a first offense.

Therefore, upon the defendant’s acquittal on each

charge of sale of cocaine by a person who is not drugdependent, and his resulting conviction of the lesser

included offense of sale of cocaine by a drug-dependent
person, the most serious prison sentence the defendant

could have received on the charge of conspiracy to sell

cocaine at the time of such cocaine sales was a term

of fifteen years.

The second reason why the state is incorrect in its

argument that the defendant’s maximum possible sentence on each charge of sale of cocaine by a drugdependent person was thirty years is that the state

withdrew the part B information in this case shortly

after the jury returned its guilty verdict. As a result,

there never was a trial or other fact-finding proceeding,

before the jury or the trial court, as to the defendant’s

alleged status as a repeat offender, and thus there was

no factual finding that he had that status despite his

testimony on the record on that subject. For the foregoing reasons, the defendant’s maximum possible prison

sentence on the charge of conspiracy to sell cocaine

as a drug-dependent person in violation of §§ 53a-48

and 21a-277 (a) is a term of fifteen years.

The judgment is reversed only as to the sentence on

the conspiracy conviction and the case is remanded for

resentencing in accordance with law. The judgment is

affirmed in all other respects.

In this opinion the other judges concurred.