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STATE OF CONNECTICUT v. RONNIE OVESEN

(AC 37630)

Beach, Sheldon and Harper, Js.*

Submitted on briefs December 1, 2016—officially released April 11, 2017

(Appeal from Superior Court, judicial district of

Waterbury, Damiani, J. [judgment]; Fasano, J. [motion

to correct])

Stephan E. Seeger, assigned counsel, filed a brief for

the appellant (defendant).

Maureen Platt, state’s attorney, Catherine Brannelly

Austin, supervisory assistant state’s attorney, and Lisa

A. Riggione, senior assistant state’s attorney, filed a

brief for the appellee (state).
Opinion

BEACH, J. The defendant, Ronnie Ovesen, appeals

from the trial court’s judgment granting his motion to

correct an illegal sentence. The defendant had been

convicted of one count of sexual assault in the first

degree in violation of General Statutes (Rev. to 2008)

§ 53a-70 (a) (1)1 and one count of strangulation in the

second degree in violation of General Statutes § 53a64bb. On appeal, the defendant argues that, upon granting his motion and resentencing him, the court imposed

an illegal sentence. We reverse the judgment of the trial

court and remand the case with direction to reinstate

the defendant’s original sentence.

In September, 2009, the defendant pleaded guilty pursuant to the Alford doctrine2

to one count of sexual

assault in the first degree and one count of strangulation

in the second degree. The defendant was sentenced on

the first count to twenty years incarceration, suspended

after eleven and one-half years, with ten years probation, and on the second count to one year of incarceration to run concurrently, for a total effective sentence

of twenty years incarceration, suspended after eleven

and one-half years, with ten years probation. Approximately four years later, the defendant filed a motion to

correct an illegal sentence, alleging that because his

sentence included a period of probation, rather than a

period of special parole, it violated our Supreme Court’s

holding in State v. Victor O., 301 Conn. 163, 193–94, 20

A.3d 669 (Victor O. I), cert. denied, U.S. , 132 S.

Ct. 583, 181 L. Ed. 2d 429 (2011), and was unlawful

under § 53a-70. The state conceded before the trial court

that the defendant’s original sentence was illegal, and

the court, Fasano, J., vacated the defendant’s original

sentence and imposed a new total effective sentence

of eleven and one-half years incarceration followed by

eight and one-half years of special parole. The defendant appealed, claiming that the new sentence was illegal, as well.

At the time of the defendant’s resentencing, both the

parties and the court interpreted our Supreme Court’s

holding in Victor O. I to mean that a person convicted

of sexual assault under § 53a-70 must be sentenced

to a period of imprisonment and special parole. Our

Supreme Court has since clarified that Victor O. I

should not be interpreted in this manner. State v. Victor

O., 320 Conn. 239, 247, 128 A.3d 940 (2016) (Victor O.

II) (‘‘[t]o the extent that anything we may have said [in

Victor O. I] can be construed as deciding the somewhat

challenging question of statutory interpretation presented by the present appeal, it was not our intention

to do so’’); see id., 247–48 n.9. Instead, the court in

Victor O. I ‘‘intended only to explain that probation

was prohibited and that special parole was the only

form of supervised release that could be imposed’’; Victor O. II, supra, 248 n.9; in sentencing a defendant
convicted of a class A felony. Id., 246. Victor O. II held

that § 53a-70 does not require a court to impose any

period of special parole.Id., 242, 258. Because the defendant in the present case was convicted of a class B

felony, there is no such restriction on the imposition of

probation. Accordingly, the original sentence of twenty

years incarceration, suspended after eleven and onehalf years, with ten years of probation to follow, did

not violate § 53a-70, and the sentence therefore was

not illegal.3

The judgment is reversed and the case is remanded

with direction to vacate the defendant’s second sentence and to reinstate his original sentence.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 General Statutes § 53a-70 was amended by No. 15-211, § 16, of the 2015

Public Acts. The events underlying the defendant’s conviction occurred in

2008. Accordingly, unless otherwise indicated, all references to § 53a-70 in

this opinion are to the 2008 revision of the statute.

2 North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d

162 (1970).

3 Although this construction does not appear to have been advanced in

the trial court, we understand that the parties and the court relied on a

reasonable, but ultimately mistaken, interpretation of Victor O. I. In its brief,

the state advanced the argument, which we now adopt, and the defendant

had the opportunity to respond. Although the error was not preserved, we

nonetheless reach the issue pursuant to our supervisory authority because,

in light of our Supreme Court’s decision in Victor O. II, there functionally

has been an intervening change in the law. See Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123,159, 84

A.3d 840 (2014).