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STATE OF CONNECTICUT v. JENNIFER JOHNSON

(SC 19139)

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

Argued October 29, 2014—officially released March 31, 2015

Melissa L. Streeto, senior assistant state’s attorney,

with whom, on the brief, were Kevin Lawlor, state’s

attorney, and Paul O. Gaetano, supervisory assistant

state’s attorney, for the appellant (state).

Annacarina Jacob, senior assistant public defender,

for the appellee (defendant).
Opinion

ESPINOSA, J. In this certified appeal, we consider

whether a trial court is required to hold a resentencing

hearing when a defendant’s conviction and sentence

for a lesser included offense is vacated because it constituted a violation of the double jeopardy clause, but

there is no evidence in the record that leaving the defendant’s sentences intact for the remaining offenses

undermines the trial court’s original sentencing intent.

The state appeals from the judgment of the Appellate

Court, upon our grant of its petition for certification,

limited to the following issue: ‘‘In view of our recent

decision in State v. Polanco, 308 Conn. 242, 61 A.3d

1084 (2013), did the Appellate Court properly determine

that the defendant had to be resentenced, under the

aggregate package theory, on the greater offense of

conspiracy to possess narcotics with intent to sell?’’

State v. Johnson, 308 Conn. 938, 66 A.3d 881 (2013).

We conclude that, although the trial court has the discretion to resentence the defendant, Jennifer Johnson,

it was improper under the circumstances of the present

case to order it to hold a resentencing hearing. We

answerthe certified question in the negative and reverse

in part the judgment of the Appellate Court.1

The record reveals the following factual background

and procedural history.2 The defendant was convicted,

following a jury trial, of conspiracy to possess narcotics

with intentto sell in violation of General Statutes §§ 21a277 (a) and 53a-48 (a), conspiracy to possess narcotics

in violation of General Statutes §§ 21a-279 (a) and 53a48 (a), possession of narcotics in violation of § 21a-279

(a), possession of less than four ounces of marijuana

in violation of § 21a-279 (c), and possession of drug

paraphernalia in violation of General Statutes § 21a-267

(a). State v. Johnson, 137 Conn. App. 733, 736, 49 A.3d

1046 (2012). For each of the three narcotics counts, the

trial court sentenced the defendant to five years of

incarceration, execution suspended after eighteen

months, and three years of probation, all sentences to

run concurrently. As to the remaining counts, the court

sentenced the defendant to one year of incarceration

for the count of possession of less than four ounces of

marijuana, and to three months of incarceration for

the count of possession of drug paraphernalia, to run

concurrently with the sentences for the narcotics

counts. The defendant’s total effective sentence for all

charges was five years of incarceration, execution suspended after eighteen months, and three years of probation.

At the Appellate Court, the defendant claimed, inter

alia, that the ‘‘separate conspiracy convictions of possession and possession with intent to sell must be

reversed because they represent but one agreement and

violate the constitutional double jeopardy clause

. . . .’’ Id., 736. Relying on the decision of the United
States Supreme Court in Rutledge v. United States, 517

U.S. 292, 307, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996),

the Appellate Court held that because conspiracy to

possess narcotics is a lesserincluded offense of conspiracy to possess narcotics with intent to sell, the defendant could not properly be convicted and sentenced on

both counts. State v. Johnson, supra, 137 Conn. App.

757. Accordingly, the court reversed the judgment with

respect to the conviction of conspiracy to possess narcotics and remanded the case to the trial court with

direction to vacate both the conviction and the sentence

for that lesser included offense. Id., 766. The Appellate

Court also vacated the defendant’s sentence for the

greater offense of conspiracy to possess narcotics with

intent to sell, and ‘‘remanded for resentencing on that

charge in accordance with the aggregate package theory

. . . .’’ Id. The court did not vacate the sentences for

the remaining counts. Id. This certified appeal followed.

The state does not challenge that portion of the judgment of the Appellate Court vacating the defendant’s

conviction and sentence on the lesser included offense

of conspiracy to possess narcotics. Instead, the state

appeals only with respect to the Appellate Court’s decision to vacate the defendant’s sentence for conspiracy

to possess narcotics with intent to sell and to remand

the case to the trial court with direction to resentence

the defendant on that charge. Disturbing the defendant’s sentence forthe conviction of the greater offense,

the state argues, conflicts with this court’s decision in

State v. Polanco, supra, 308 Conn. 242, and is neither

necessary nor appropriate under the aggregate package

theory of sentencing. The defendant responds that,

because the record does not clearly indicate the trial

court’s original sentencing intent, the Appellate Court

properly remanded for resentencing under the aggregate package theory.3 Because we conclude that under

the facts of the present case, there is no evidence in

the record that the Appellate Court’s decision vacating

the conviction and sentence of the lesser included

offense of conspiracy to commit possession of narcotics

altered the original sentencing intent of the trial court,

we reverse in part the judgment of the Appellate Court.

Before we proceed to the merits of the appeal, we

note our agreement with the position that both the

state and the defendant expressed during oral argument

before this court, namely, that this court’s decision in

State v. Polanco, supra, 308 Conn. 242, did not address

the question presented in this appeal. In Polanco, we

revisited the appropriate remedy to which a defendant

should be entitled upon establishing that he had been

convicted of and sentenced on both a greater and lesser

included offense in violation of the double jeopardy

clause. Our prior precedent had followed the merger

of convictions approach, vacating the sentence for the

lesser included offense, but leaving the conviction for

that offense intact and merging it with the conviction
for the greater offense. State v. Chicano, 216 Conn. 699,

725, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254,

111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991), overruled in

part by State v. Polanco, 308 Conn. 242, 245, 61 A.3d 1084

(2013). The defendant in Polanco relied on Rutledge v.

United States, supra, 517 U.S. 292, to argue that the

proper remedy was to vacate both the conviction and

the sentence for the lesser included offense. We

declined to resolve the issue on constitutional grounds,

instead exercising our supervisory authority to conclude that ‘‘when a defendant has been convicted of

greater and lesserincluded offenses, the trial court must

vacate the conviction for the lesser offense rather than

merging the convictions pursuant to Chicano.’’ State v.

Polanco, supra, 245. Because the defendant in Polanco

did not request to be resentenced when his case was

remanded to the trial court, this court did not consider

in that decision whether, after vacating the defendant’s

conviction and sentence for a lesser included offense

on double jeopardy grounds, a reviewing court properly

should remand the case for resentencing pursuant to

the aggregate package theory. Accordingly, Polanco

does not govern the issue before us in the present

appeal. Instead, the issue is controlled by our case law

discussing the aggregate package theory of sentencing.

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

of the reviewing court, the original sentencing intent

of the trial court is effectuated. In State v. Raucci, 21

Conn. App. 557, 563–64, 575 A.2d 234, cert. denied, 215

Conn. 817, 576 A.2d 546 (1990), in which the Appellate

Court first adopted the aggregate package theory, the

court explained: ‘‘It is axiomatic that a trial court has

wide discretion to tailor a just sentence in order to fit

a particular defendant and his crimes, as long as the

final sentence falls within the statutory limits. . . .

This same wide sentencing discretion equally applies

to a trial court’s restructuring of a sentencing plan for

a defendant who has been convicted in a multiple count

case and who faces a permissible range of punishment

based on the individual counts. [W]hen a defendant is

found guilty on a multicount indictment, there is a

strong likelihood that the . . . court will craft a disposition in which the sentences on the various counts

form part of an overall plan. When the conviction on one

or more of the component counts is vacated, common

sense dictates that the judge should be free to review

the efficacy of what remains in light of the original plan,

and to reconstruct the sentencing architecture . . .

within applicable constitutional and statutory limits,

if that appears necessary in order to ensure that the

punishment still fits both crime and criminal.’’ (Citations omitted; internal quotation marks omitted.) When

we endorsed the Appellate Court’s adoption of the

aggregate package theory, we explained that a defendant ‘‘in appealing his conviction and punishment, has
voluntarily called into play the validity of the entire

sentencing package . . . .’’ (Internal quotation marks

omitted.) State v. Miranda, 260 Conn. 93, 129, 794 A.2d

506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L.

Ed. 2d 175 (2002).

Although we also stated that ‘‘the proper remedy

is to vacate [the sentence] in its entirety’’; (internal

quotation marks omitted) id.; that statement must be

understood in the context of the question that we confronted in adopting the aggregate package theory,

which was limited to the extent of the trial court’s

authority on remand to resentence a defendant. We

concluded that the trial court does indeed have such

power, and characterized the court’s authority as permissive, rather than mandatory. Id. We clarified that

‘‘[a]lthough the court may reconstruct the sentencing

package to conform to its original intent, it is not

required to do so. It may, therefore, simply eliminate

the sentence previously imposed forthe vacated conviction, and leave the other sentences intact; or it may

reconstruct the sentencing package so as to reach a

total effective sentence that is less than the original

sentence but more than that effected by the simple

elimination of the sentence for the vacated conviction.

The guiding principle is that the court may resentence

the defendant to achieve a rational, coherent [sentence]

in light of the remaining convictions, as long as the

revised total effective sentence does not exceed the

original.’’ (Internal quotation marks omitted.) Id.,

129–30.

Contrary to the state’s position, however, a reviewing

court need not direct the trial court to apply the aggregate package theory in orderforthe original sentence to

be restructured. Our decisions already have established

that the trial court has the authority to restructure the

original sentence pursuant to the aggregate package

theory, even if not ordered to do so, if the judgment

of the reviewing court has disturbed the trial court’s

original sentencing intent. State v. Michael A., 297 Conn.

808, 815, 1 A.3d 46 (2010). Although that authority more

typically would be exercised to increase the sentence(s)

on the conviction(s) remaining after a conviction and

sentence have been vacated, such authority also may

be exercised to decrease the remaining sentence(s).

The precise question in this appeal, therefore, is not

whether the trial court has authority to resentence the

defendant. The narrow issue before us is whether under

the facts of the present case the Appellate Court properly ordered the trial court to resentence the defendant

on remand. Because the trial court always retains

authority to restructure the original sentence if the

court determines that the judgment of the reviewing

court altered its original sentencing intent, common

sense and principles of judicial economy dictate that,

in a case in which the judgment of the reviewing court
does not change the total effective sentence, the

reviewing court should not orderthe trial courtto resentence a defendant on the remaining convictions unless

there is some evidence or some other basis in the record

supporting the conclusion that the judgment of the

reviewing court altered the original sentencing intent.

Adopting a defaultrule requiring the trial court to revisit

the entire sentence, even when there is no evidence in

the record suggesting that the court’s original sentencing intent was affected by the decision of the reviewing

court, would waste valuable judicial resources.

Under the facts of the present case, the Appellate

Court’s decision to vacate the defendant’s sentence for

conspiracy to possess narcotics with intent to sell, and

remand for resentencing on that count in accordance

with the aggregate package theory is simply not supported by the record. The decision of the Appellate

Court had no effect on the total effective sentence. On

each of the narcotics counts, the trial court sentenced

the defendant to five years of incarceration, execution

suspended after eighteen months, and three years of

probation, to run concurrently. Because the sentences

on the remaining counts were shorter, and ran concurrently to the sentences for the narcotics counts, the

concurrent sentences for the narcotics counts resulted

in a total effective sentence of five years of incarceration, execution suspended after eighteen months, and

three years of probation. The decision of the Appellate

Court affected only one conviction and one sentence,

for the lesser included offense of conspiracy to possess

narcotics. The total effective sentence, therefore, was

not altered by the Appellate Court’s decision.

The Appellate Court’s decision also did not affect any

of the conduct that served as the predicate for the

defendant’s sentence. Although the court vacated the

defendant’s conviction and sentence for the lesser

included offense of conspiracy to possess narcotics,

the court left standing the conviction for the greater

offense of conspiracy to possess narcotics with intent

to sell. By definition, ‘‘[a] lesser included offense is one

that does not require proof of elements beyond those

required by the greater offense.’’ State v. Johnson,

supra, 137 Conn. App. 753. Accordingly, because the

conviction for the greater offense required proof of

all of the elements that comprised the lesser included

offense, the judgment of the Appellate Court vacating

the defendant’s conviction and sentence for conspiracy

to possess narcotics had no effect on the conduct on

which the trial court relied in sentencing the defendant.

That is, all of the conduct that served as a predicate

forthe defendant’s conviction for conspiracy to possess

narcotics also formed the basis for the defendant’s conviction for the greater offense of conspiracy to possess

narcotics with intent to sell. It was that conduct that

the court relied on in determining the appropriate sentence for the defendant. The trial court’s remarks at
the sentencing hearing indicate that the court based

its determination of the appropriate sentence on the

defendant’s lack of awareness of her addiction to prescription medication and her failure to take responsibility for her addiction.

Under the facts of this record, which reflect that after

the judgment of the Appellate Court, the same total

effective sentence remains in place, based on the same

conduct on which the trial court relied in the first

instance, there is no basis for the reviewing court to

conclude that the trial court’s original sentencing intent

has been disturbed. Accordingly, although the trial

court retains authority to restructure the defendant’s

entire sentence if that court determines that doing so

is necessary to retain its original sentencing intent, it

is neither necessary nor appropriate under these particular facts for a reviewing court to require the trial court

to conduct a new sentencing hearing.

The judgment of the Appellate Court is reversed only

with respect to its orders vacating the sentence for

conspiracy to possess narcotics with intent to sell and

remanding the case to the trial court for resentencing;

the judgment is affirmed in all other respects.

In this opinion the other justices concurred.

1

In the defendant’s certified appeal from the Appellate Court’s judgment,

Docket No. SC 19062, which we heard concurrently with the state’s certified

appeal, this court held that the Appellate Court improperly determined that

the defendant implicitly waived her instructional claim as to nonexclusive

possession and constructive possession, and concluded that although the

instruction on possession was deficient, the impropriety was harmless

beyond a reasonable doubt in light of the evidence and the state’s theory

of the case. State v. Johnson, 316 Conn. 45, A.3d (2015).

2 For a more detailed summary of the factual background, see State v.

Johnson, 137 Conn. App. 733, 736–38, 49 A.3d 1046 (2012).

3 The defendant claims that the remand order was improper, however,

insofar as the Appellate Court only vacated the sentence for conspiracy to

possess narcotics with intent to sell. The defendant contends that the sentences on all of the remaining convictions should have been vacated, thereby

permitting the trial court to resentence her on the remaining convictions

consistent with the trial court’s original sentencing intent. See State v.

Miranda, 260 Conn. 93, 129, 794 A.2d 506 (indicating that, when reviewing

court remands case for resentencing pursuant to aggregate package theory,

‘‘the proper remedy is to vacate [the sentence] in its entirety’’ [internal

quotation marks omitted]), cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L.

Ed. 2d 175 (2002). We note that the defendant did not file a cross appeal

raising this claim. In any event, our resolution of the state’s claim negates

the factual predicate for this claim.