Opinion
MMXCR08185982
05-18-2016
State of Connecticut v. Reginald Holley
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S SECOND AMENDED MOTION TO CORRECT ILLEGAL SENTENCE
ELPEDIO N. VITALE, JUDGE.
By amended motion dated February 9, 2016, the defendant, Reginald Holley, moves this court to correct his sentence of twenty years of incarceration, execution suspended after twelve years (ten years of which is mandatory) followed by five years of probation. The sentence was imposed by the court (Handy, J.) on February 11, 2011. The defendant's motion is made pursuant to " P.B. § 43-22, the Eighth and Fourteenth Amendments to the United States Constitution, Article First, § § 8 and 9 of the Connecticut Constitution, Miller v. Alabama [132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)], Graham v. Florida, [560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010)], State v. Riley, [315 Conn. 637, 110 A.3d 1205 (2015)], and Casiano v. Commissioner of Correction, [317 Conn. 52, 115 A.3d 1031 (2015)]." In the motion the defendant asserts that his sentence was imposed in an illegal manner " because it was imposed without a full consideration of the mitigating factors related to the defendant's youth. [His] sentence is illegal because it was imposed based upon inaccurate information and because it is not proportionate to the defendant's culpability." As a result, the defendant requests that " this court vacate [his] illegal sentence, grant him a new sentencing hearing, and re-sentence [him], as law and justice require."
The defendant filed a memorandum of law in support of the motion. The State objects to the motion, and filed its memorandum in opposition to the motion on April 25, 2016. The matter came before the court and was argued on April 26, 2016. This court was provided with a transcript of the defendant's guilty pleas under the Alford doctrine occurring on February 15, 2011, as well his sentencing on those pleas, occurring on May 24, 2011. The Honorable Susan B. Handy presided over both proceedings.
North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
II.
Nature of the Proceedings
The defendant pleaded guilty under the Alford doctrine on February 15, 2011 to offenses which occurred in 2008. In docket number CR-10-190087, the defendant pleaded guilty to assault in the first degree, in violation of C.G.S. § 53a-59(a)(1). The state alleged that on October 1, 2008, the defendant shot a man near a barbershop in Middletown. The gunshot severed the victim's femoral artery requiring several surgeries. In docket number CR09-186723, the defendant pleaded guilty to conspiracy to commit assault in the second degree, in violation of C.G.S. § 53a-49 and 53a-60(a)(1). The state alleged that on October 28, 2008, the defendant and a co-conspirator together shot at two intended victims. Finally, in docket number CR08-185892, the defendant pleaded guilty to home invasion, in violation of C.G.S. § 53a-100aa, and assault in the first degree, in violation of C.G.S. § 53a-59(a)(5). The state alleged that on December 6, 2008, the defendant unlawfully entered a residence with two occupants inside. While inside the residence, the defendant was armed with a firearm which he pointed at a former girlfriend. He later discharged the firearm at a second person, causing that person to sustain multiple gunshot wounds. It is undisputed that the defendant's date of birth is April 29, 1991. Thus, at the time of the commission of the aforementioned crimes, the defendant was seventeen years old.
It is also undisputed that the total effective sentence imposed was the result of a plea agreement negotiated by Judge Handy and the defendant. The State sought a lengthier period of incarceration.
Plea Transcript February 15, 2011, pgs. 13, 18-19.
At the time of his pleas of guilty, the defendant was almost twenty years old. Sentencing occurred on May 24, 2011, approximately one month after his twentieth birthday. The sentencing transcript reveals that at the time of sentencing, Judge Handy had available to her a presentence investigation. Judge Handy commented during her sentencing remarks that " I thought the state's offer was too high. I came off it by eight years. That's significant. I want you to understand why I did that. I did that because you are twenty years old. You're not a throw away. I don't want us to abandon you." The transcript of the sentencing proceeding and the presentence investigation report together make it clear that the sentencing court was fully aware of the defendant's relative youth and the circumstances of his life. Implicit in a careful reading of the sentencing transcript is the fact that Judge Handy presided over plea negotiations regarding the defendant over a period of time, during which mitigating factors, including youth, were discussed.
Sentencing Transcript May 24, 2011, pgs. 1, 9.
Sentencing Transcript May 24, 2011, p. 10.
Sentencing Transcript May 24, 2011, pgs. 7-11.
To succinctly address the defendant's arguments, the court is cognizant of the fact that the defendant essentially relies on three United State Supreme Court decisions and two Connecticut Supreme Court decisions in support of his claim that his sentencing was illegally imposed. The defendant relies, first, on the United States Supreme Court decisions in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (death penalty cannot be imposed on those who committed their crimes as juveniles), Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (juveniles cannot be sentenced to life imprisonment without possibility of parole for non-homicide offenses under a nondiscretionary sentencing scheme), and Miller v. Alabama, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (juveniles convicted of homicide offenses cannot be sentenced to mandatory sentences of life without the possibility of parole). The defendant combines the principles of the latter cases with the Connecticut Supreme Court decisions of State v. Riley, 315 Conn. 637, 110 A.3d 1205 (2015) (one-hundred-year sentence without the possibility of parole for sixty years requires an individualized sentencing proceeding), petition for cert. filed, Docket No. 14-1472, (U.S. June 8, 2015) and Casiano v. Commissioner of Correction, 317 Conn. 52, 115 A.3d 1031 (2015) (fifty-year sentence constitutes an " effective" life sentence), petition for cert. filed sub nom. Semple v. Casiano, Docket No. 15-238 (U.S. August 20, 2015) to conclude that the sentence in the present case was imposed illegally.
The defendant argues, in particular, that the combination of Roper, Graham, Miller, and Riley render his sentence illegal because, inter alia, the court was obligated to conduct an individualized sentencing hearing as " demanded by the eighth amendment . . . and required by the Connecticut constitution" because the defendant was a juvenile at the time of his commission of the crimes at issue. The defendant asserts that the sentencing court had " discretion to depart further downward from the court indicated sentence, " or could have withdrawn the recommendation completely, " exposing the defendant to the possibility of life imprisonment" if he went to trial. Finally, the defendant argues that the sentencing court " was unaware that the defendant was actually a juvenile" and thus " never had the opportunity to weigh the appropriate factors" to determine if the sentence was appropriate.
Consequently, the defendant contends that Miller, Graham, and Riley control in this case because the court could have rejected the agreement, and if the defendant thereafter went to trial he would have been exposed to the possibility of a life sentence if were to have been convicted on all original charges.
The defendant also appears to argue that " cruel and unusual punishment" under the eighth amendment is defined as the lack of an individualized sentencing hearing at which the court specifically and demonstrably considers " how children are constitutionally different from adults, " including the Roper court's observation that [t]he susceptibility of juveniles to immature and irresponsible behavior means 'their irresponsible conduct is not as morally reprehensible as that of an adult.' . . . The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed. Indeed, '[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.' Roper, supra at 570.
The state opposes the motion on multiple grounds. The state argues that the defendant's sentence was not illegal, nor was it imposed illegally, and therefore this court is without jurisdiction to consider the motion. The sentence was not illegal, the state contends, because the defendant's sentence of twenty years of incarceration, execution suspended after twelve years of incarceration is not the functional equivalent of a life sentence. The state notes that the sentence imposed was the product of an agreed-upon recommendation that did not include a right to argue for a lesser sentence; there is no claim that the sentence exceeded the applicable statutory limits; nor was the sentence ambiguous, inherently contradictory, or in violation of the defendant's right against double jeopardy. The defendant was addressed personally at sentencing, he had an opportunity to speak in mitigation of punishment, and there is no claim that the state breached the plea agreement. In short, the requirements of a legal sentence were met in this case. Since the defendant will be eligible for parole after serving 85% of his imposed definite sentence pursuant to C.G.S. § 54-125a(b)(2)(A) (less any risk reduction credit earned pursuant to C.G.S. § 18-98e), or even if denied parole will be released while still in his twenties, the sentence leaves the defendant with a real and substantial opportunity to become rehabilitated and to become a productive member of society. Consequently, the state argues, the sentence meets all constitutional requirements.
II.
Discussion
" The Superior Court is a constitutional court of general jurisdiction . . . In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law." (Internal quotation marks omitted.) State v. Lawrence, 281 Conn. 147, 153, 913 A.2d 428 (2007). Under the common law, a trial court's jurisdiction over a criminal case terminates once the defendant has begun serving his or her sentence. State v. Ramos, 306 Conn. 125, 134, 49 A.3d 197 (2012); State v. Reid, 277 Conn. 764, 775, 894 A.2d 963 (2006). An exception to this general principle exists, however, that permits a trial court to retain jurisdiction to correct an illegal sentence. State v. Parker, 295 Conn. 825, 836, 992 A.2d, 1103 (2010); State v. Daniels, 207 Conn. 374, 387, 542 A.2d 306, after remand for articulation, 209 Conn. 225, 550 A.2d 885 (1988), cert. denied, 489 U.S. 1069, 109 S.Ct. 1349, 103 L.Ed.2d 817 (1989).
This exception is recognized in Practice Book § 43-22, which provides that " [t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner."
" [A]n illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory. By contrast . . . [s]entences imposed in an illegal manner have been defined as being within the relevant statutory limits but . . . imposed in a way which violates [a] defendant's right to be addressed personally at sentencing and to speak in mitigation of punishment . . . or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises . . ." (Internal quotation marks omitted.) State v. Smith, 150 Conn.App. 623, 635, 92 A.3d 975, cert. denied, 314 Conn. 904, 99 A.3d 1169 (2014). These definitions are not exhaustive, however, and " the parameters of an invalid sentence will evolve"; State v. Parker, supra, 295 Conn. 840; as additional rights and procedures affecting sentencing are subsequently recognized under state and federal law.
Thus, to invoke the jurisdiction of a trial court to correct an illegal sentence, a defendant must allege that his or her sentence is illegal, or has been illegally imposed, for one of the reasons recognized under our common law. See State v. Lawrence, supra, 281 Conn. 155 (" for the trial court to have jurisdiction to consider the defendant's claim of an illegal sentence, the claim must fall into one of the categories of claims that, under the common law, the court has jurisdiction to review"). " Connecticut courts have considered four categories of claims pursuant to § 43-22. The first category has addressed whether the sentence was within the permissible range for the crimes charged . . . The second category has considered violations of the prohibition against double jeopardy . . . The third category has involved claims pertaining to the computation of the length of the sentence and the question of consecutive or concurrent prison time . . . The fourth category has involved questions as to which sentencing statute was applicable." (Citations omitted; internal quotation marks omitted.) State v. Lawrence, supra, 281 Conn. 156-57. " [I]f a defendant's claim falls within one of these four categories the trial court has jurisdiction to modify a sentence after it has commenced . . . If the claim is not within one of these categories, then the court must dismiss the claim for a lack of jurisdiction, and not consider its merits." (Citation omitted.) State v. Koslik, 116 Conn.App. 693, 698-99, 977 A.2d 275 (2009), cert. denied 293 Conn. 930, 980 A.2d 916 (2009).
A.
Eighth Amendment Claims
The defendant argues that his sentence was imposed in an illegal manner because the sentencing court did not apply Miller and consider his age and its hallmark features as mitigating factors at his sentencing, Miller, supra, and State v. Riley, supra, 315 Conn. 658, which therefore allows this court to exercise jurisdiction. Although the defendant vigorously points to the foregoing precedent and others in support of his claims, omitted from his argument is the holding in State v. Logan, 160 Conn.App. 282, 125 A.3d 581 (2015), cert. denied 321 Conn. 906 (2016).
In Logan, our appellate court was presented with a Miller claim and was required to determine whether a thirty-one-year sentence was the functional equivalent of a life sentence without the possibility of parole and, thus, subject to the sentencing procedures set forth in Miller . The defendant, Charles Logan, was seventeen years old at the time he committed the crimes at issue, and was nineteen at the time of his sentencing. The court in Logan began its analysis with an overview of relevant precedent.
General Statutes § 53a-35b provides in relevant part: " A sentence of life imprisonment means a definite sentence of sixty years, unless the sentence is life imprisonment without the possibility of release in which case the sentence shall be imprisonment for the remainder of the defendant's natural life." In Riley, it was undisputed that the defendant's sentence of 100 years imprisonment was the functional equivalent to a sentence of life imprisonment without the possibility of parole. State v. Riley, supra, 315 Conn. at 642, 110 A.3d 1205. In State v. Taylor G., 315 Conn. 734, 738, 741, 110 A.3d 338 (2015), the defendant was fourteen and fifteen years old when he committed nonhomicide offenses for which the trial court imposed a total effective sentence of ten years imprisonment followed by three years of special parole. Our Supreme Court concluded that " the ten and five year mandatory minimum sentences [that the defendant would serve concurrently], under which the defendant is likely to be released before he reaches the age of thirty, do not approach what the [United States Supreme Court] described in Roper, Graham and Miller as the two harshest penalties." Id., at 745-46, 110 A.3d 338. The court reasoned that " [a]lthough the deprivation of liberty for any amount of time, including a single year, is not insignificant, Roper, Graham and Miller cannot be read to mean that all mandatory deprivations of liberty are of potentially constitutional magnitude, " and that the defendant " will be able to work toward his rehabilitation and look forward to release at a relatively young age." Id.
Our Supreme Court explained: " [In Roper, Graham and Miller] the court concluded there was a constitutional violation because the sentences consisted of death or life imprisonment without the possibility of parole, the two most severe punishments courts are able to impose . . . The difference between these and other sentences is not merely quantitative. There is also a qualitative difference. Death is final and irrevocable, unlike any other sentence. Life in prison without the possibility of parole is also final and irrevocable in the sense that it deprives the offender of all hope of future release and of living a normal life, even if he or she is successfully rehabilitated and capable of returning and making a positive contribution to society. These differences were recognized by the courts in all three cases, each of which described the punishment in question as unique in its severity." (Citations omitted.) Id., at 745, 110 A.3d 338. The court concluded that " [t]he defendant's sentences [in Taylor G .] not only were far less severe than the sentences at issue in Roper, Graham and Miller, but were consistent with the principle of proportionality at the heart of the eighth amendment protection . . ." Id. At 744, 315 Conn. 734, 110 A.3d 338.
Finally, most recently in Casiano v. Commissioner of Correction, 317 Conn. 52, 55, 115 A.3d 1031 (2015) the petitioner was sixteen years old when he committed homicide and nonhomicide offenses for which the trial court imposed a total effective sentence of fifty years imprisonment without the possibility of parole pursuant to a plea agreement. Our Supreme Court determined that Miller applies retroactively to cases arising on collateral review, and that a fifty-year sentence without the possibility of parole was the functional equivalent of life imprisonment without the possibility of parole and, therefore, subject to the sentencing procedures set forth in Miller. Id., at 79, 115 A.3d 1031. The court observed that because the petitioner would be released from prison at the age of sixty-six and the average life expectancy of a male in the United States is seventy-six years, he would only have approximately ten more years to live outside of prison after his release. Id., at 76, 115 A.3d 1031. The court explained that " [a] juvenile is typically put behind bars before he has had the chance to exercise the rights and responsibilities of adulthood, such as establishing a career, marrying, raising a family, or voting. Even assuming the juvenile offender does live to be released, after a half century of incarceration, he will have irreparably lost the opportunity to engage meaningfully in many of these functional equivalent of a life sentence. The court held that if a sentencing scheme permits the imposition of [a life sentence without any possibility of parole] on a juvenile homicide offender, the trial court must consider the offender's chronological age and its hallmark features as mitigating against such a severe sentence." Id., at 658, 110 A.3d 1205. Thus, for Miller to apply, the sentence must be a literal life sentence without the possibility of parole or the functional equivalent of a life sentence without the possibility of parole. Logan, supra, 290-93.
Applying the foregoing principles, the court in Logan concluded that the thirty-one year sentence imposed on the defendant was not the functional equivalent of life imprisonment without the possibility of parole, and thus, the trial court did not have to apply Miller prior to accepting his plea and sentencing him.
The court observes parenthetically, however, that a reasonable inference from the plea and sentencing transcripts is that Judge Handy was actively involved in plea negotiations, and despite a possible momentary inadvertence, was acutely aware of the defendant's relative age and circumstances. Judge Handy clearly gave those factors mitigating effect.
Therefore, the problem with the application of the law cited by the defendant in support of his claims in the present motion is that the defendant did not receive a life sentence or its functional equivalent. The defendant's sentence of twenty years, execution suspended after twelve years, does not meet the threshhold required to invoke the requirement of the Miller line of cases. See also State v. Santiago, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CR94-0097604 (April 6, 2016, Devlin, J.). Perhaps in recognition of this infirmity in his argument, the defendant additionally points to the possible sentences that could have been imposed in his case had the agreement been rejected or the cases gone to trial.
However, there is no authority, nor is there any principled analysis, that specifically supports the defendant's theory that the defendant's sentence should be examined in light of hypothetical sentences that could have been imposed but which were not imposed. All of the United States Supreme Court and Connecticut Supreme Court cases on which the defendant relies turned on the sentence that was actually imposed in each case. Therefore, this court rejects the argument that the sentence in this case should be analyzed from any perspective other than by examining the sentence that was actually agreed upon and imposed, i.e. a twelve-year period of incarceration. The twelve-year incarcerative portion of the sentence, imposed on a twenty-year-old, who was seventeen at the time of the offenses, is not the functional equivalent of life imprisonment without the possibility of parole. Thus, even assuming arguendo, that the court did not do so, the Miller factors need not have been considered at the time of defendant's sentencing.
In Logan, supra, Logan's total maximum exposure was 86 years imprisonment. Logan, supra, 160 Conn.App. 286 n.6.
The defendant's reliance on State v. Riley, supra is similarly misplaced. Riley applies the requirements of Miller to sentences that are the functional equivalent of life in addition to sentences of life without parole. As our Supreme Court has held, " Roper, Graham and Miller cannot be read to mean that all mandatory deprivations of liberty are of potentially constitutional magnitude." State v. Taylor G., 315 Conn. 734, 745-46, 110 A.3d 338 (2015). The defendant's sentence was significantly less than that which was at issue in any case where our appellate courts have determined that a sentencing court must consider the Miller factors. See Casiano v. Commissioner of Correction, supra, 317 Conn. 52 (total effective sentence of fifty years), State v. Riley, supra, 315 Conn. 637 (total effective sentence of 100 years).
The recent United States Supreme Court decision in Montgomery v. Louisiana, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), discusses avenues of recourse in cases where defendants raise claims related to sentences imposed in an illegal manner. Although the defendant separately appears to argue that the sentence he received was " disproportionate, " relying on general eighth amendment jurisprudence that " extreme sentences that are grossly disproportionate to the crime" are forbidden, see e.g. Ewing v. California, 538 U.S. 11, 23, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003), he offers no analysis independent of a general Miller-Graham framework as to how or why the defendant's sentence in this specific case is " disproportionate" to the crimes he committed, or why State v. Logan, supra, is not dispositive of this claim. Most of the general claims raised by the defendant in this regard were addressed at the time of sentencing.
Because of its relevance to the court's later review of the defendant's state constitutional claims, as well as the defendant's general eighth amendment claims, the court will next briefly discuss Montgomery . The court in Montgomery held that Miller had announced a new substantive rule that applies retroactively to cases on collateral review. The court acknowledged that Miller recognized that " the protection against disproportionate punishment" which is " the central substantive guarantee of the eighth amendment goes far beyond the manner of determining a defendant's sentence." Montgomery, supra, 136 S.Ct. 732-33. Recognizing that " children are constitutionally different from adults for purposes of sentencing, the Montgomery court concluded that " [e]ven if a court considers a child's age before sentencing him or her to a lifetime in prison, that sentence still violates the [e]ighth amendment for a child whose crime reflects unfortunate yet transient immaturity." Id., 734. The Montgomery Court concluded that, rather than resentence every juvenile homicide offender who previously had been sentenced to mandatory life without parole, states could " remedy a Miller violation" simply by permitting these " offenders to be considered for parole . . ." Montgomery, supra, 136 S.Ct. 736. This remedy would ensure " that juveniles whose crimes reflected only transient immaturity--and who have since matured--will not be forced to serve a disproportionate sentence in violation of the [e]ighth [a]mendment." Id. Thus, Montgomery held that states may consider as a remedy for a Miller violation a parole system for juveniles who received a sentence of life without parole for a homicide. In fact, Connecticut has enacted Public Act 15-84 in response to Miller and Graham . It provides a parole hearing to defendants who have been convicted when under the age of 18 and are incarcerated on or after October 1st of last year.
If a juvenile receives a sentence of more than 10 years, they are parole eligible. If a sentence is 50 years or less, then the juvenile offender is eligible for parole at 60% of their sentence or 12 years, whichever is greater. If the sentence is over 50 years, then a juvenile defendant is parole eligible at 30 years. Included in the act is a requirement that a defendant, at the parole hearing, receive assigned counsel if indigent. The Board of Parole may hear testimony from mental health professionals or any other relevant information. Factors for consideration at the parole hearing are: the defendant's age at the time of crime, remorse and increased maturity, lack of education at the time of the crime because of age, and other factors.
The act allows for the continued opportunity for parole, not within two years of each hearing, to demonstrate growth and development.
The new act also requires a sentencing court to consider the Miller factors for any juvenile sentenced after October 1st, 2015 on A or B felonies no matter how long the sentence will be.
For the foregoing reasons, the court concludes the defendant's claims under the eighth amendment and previously cited case law are without merit.
B.
State Constitutional Claims
The defendant raises a state constitutional claim, arguing that the imposition of a prison sentence without specific and demonstrable consideration of the Miller factors constitutes cruel and unusual punishment under Article First § § 8 and 9 of the state constitution. The court concludes that a Geisler analysis does not support the defendant's contention. See State v. Ross, 230 Conn. 183, 249, 646 A.2d 1318 (listing Geisler factors).
The first Geisler factor, the text of constitutional provisions, is neutral. The state constitution does not refer to criminal defendants under the age of eighteen. State v. Rizzo, 266 Conn. 171, 212-13, 833 A.2d 363 (2003). Our State Supreme Court in State v. Santiago, 318 Conn. 1, 42, 122 A.3d 1 (2015) noted that with respect to cruel and unusual punishment as applicable to the Connecticut Constitution, there is a " relatively blank slate . . . [the] framers of the 1818 constitution decided to embody these traditional liberties in our dual due process clauses . . . rather than in an express punishments clause." Id. at 39.
The second Geisler factor concerns related Connecticut precedents. For the reasons previously discussed, the court views this factor to be adverse to the defendant's claims. The court in Casiano v. Commissioner of Corrections, supra, specified that it was not deciding " whether the imposition of a term of less than [50] years imprisonment without parole on a juvenile offender would require the procedures set forth in Miller, " and that it was " nonetheless persuaded that the procedures set forth in Miller must be followed when considering whether to sentence a juvenile offender to [50] years imprisonment without parole." Casiano, supra, 317 Conn. 79. Casiano 's focus on the sentence actually imposed or considered suggests that the Miller factors are not required to be considered unless the trial court is intending to impose a sentence of life without the possibility of parole. Such conclusion is consistent with the Court's decision in Logan, wherein the Court held that Miller 's procedures did not apply to the juvenile homicide offender's 31-year sentence, imposed pursuant to a plea, and who, thus, at that time, was exposed to a possible sentence of life without the possibility of parole. Logan, supra, 160 Conn.App. 284, 293.
The third Geisler factor is persuasive federal precedent. The court is not persuaded this factor advances the defendant's claims. Once again, as previously discussed, Miller was concerned with the imposition of a mandatory sentence of life without parole on a juvenile defendant convicted of murder and Graham was concerned with a sentence of life without the possibility of parole for non-homicide offenses. The facts presented in this case thus suggest, using a strict application of Miller and Graham, that the defendant was not entitled to a Miller-type hearing prior to the imposition of his sentence. Further, it seems that under Montgomery v. Louisiana, supra, the eighth amendment concern is whether the crime was based on " transient immaturity" rather than the sentencing procedure, and the newly enacted Public Act provides the defendant with a mechanism to make such a claim.
The fourth Geisler factor is persuasive precedents from other state courts. The defendant cites two cases in which he asserts hold that " Miller compliant sentencings are required where juvenile defendant's stand convicted of serious crimes." Bear Cloud v. State, 2014 WY 113, 334 P.3d 132 (Wyo. 2014) (ordering a Miller compliant re-sentencing after juvenile homicide offender was re-sentenced to at least 45 years in prison before becoming parole eligible); State v. Null, 836 N.W.2d 41 (2013) (Miller 's mandate applies to lengthy juvenile jail sentences, not only actual sentences of the imprisonment).
Other states have concluded that if a defendant has the possibility of parole at a period of time comparable to C.G.S. § 54-125a(f), the sentence does not violate Miller . See People v. Pantoja, No. 1-12-1159, 2016 IL.App. (1st) 121159-U, P30 (Ill.App. Mar. 28, 2016) (23-year sentence for homicide not unconstitutional under eighth amendment because Miller requires consideration of age only when sentencing to harshest possible penalty of life without parole; sentence not in violation of proportionate penalties clause of Illinois constitution when defendant exposed to range of between 20-60 years); State v. Vang, 847 N.W.2d 248, 262-64 (Minn. 2014) (mandatory life sentence with possibility of release after 30 years for homicide not cruel and/or unusual punishment in violation of eighth amendment or Minnesota constitution); Usry, supra, 2016 WL 1092654, at *1-2, *4-5 (defendants' sentences of life without parole for 30 years and life without parole for 35 years for homicide crimes not cruel and unusual punishment under federal or state constitutions); State v. Tyson, No. 85-06-2616, 2016 WL 483527, at *1-2 (N.J.Sup.App. Div. Feb. 9, 2016) (life with parole after 30 years for murder not defacto life sentence or violation of federal or state constitutions); State v. Pearson, 836 N.W.2d 88, 89, 96 (Iowa 2013) (state constitution requires individualized sentencing proceeding where defendant received 50-year sentence without parole eligibility for 35 years for nonhomicide crimes); State v. Means, 872 N.W.2d 409, *9-10 (Iowa App. 2015) (table) (defendant parole eligible; refusing to extend Iowa Supreme Court jurisprudence to require individualized sentencing proceeding where defendant not facing mandatory minimum sentences); Diatchenko v. District Attorney for Suffolk Dist., 466 Mass. 655, 667-68, 673-74, 1 N.E.3d 270 (2013) (defendant's mandatory sentence of life without parole violated state and federal cruel and unusual punishment clauses; defendant not entitled to resentencing because, pursuant to statute, he had possibility of parole); Ouk v. State, 847 N.W.2d 698, 699-702 (Minn. 2014) (mandatory life with possibility of parole after 30 years for homicide crimes not in violation of eighth amendment, as interpreted by Miller ), cert. denied, 135 S.Ct. 1429, 191 L.Ed.2d 389 (2015); State v. Springer, 2014 S.D. 80, 856 N.W.2d 460, 466, 469-70 (S.D. 2014) (261-year sentence for homicide and nonhomicide crimes with statutory parole eligibility after 33 years not in violation of eighth amendment, as interpreted in Miller and Graham; defendant would be 49 when parole eligible), cert. denied, 135 S.Ct. 1908, 191 L.Ed.2d 775 (2015).
The weight of authority would appear to be adverse to the defendant's position.
The fifth Geisler factor, historical insights into the intent of our constitutional forebears, is unhelpful to the defendant because " [a]t the time of the adoption of its 1818 Constitution, Connecticut followed the common law and treated [14 and 15 year olds] as adults when charged with a felony offense. It was not until 1921 that Connecticut established by statute a juvenile justice system." State v. Jose C., Superior Court, judicial district of New Haven, Docket No. CR 6421185, 1996 WL 165549, at *11 (March 21, 1996) (16 Conn. L. Rptr. 419), aff'd sub nom. State v. Angel C., 245 Conn. 93, 715 A.2d 652 (1998).
The sixth Geisler factor is contemporary understandings of applicable economic and sociological norms. In the court's view, the fact that juveniles have now been afforded special attention through legislative action addresses the arguments advanced by the defendant as to this factor. Public Act No. 15-84 § 1, as codified in § 54-125a(f), retroactively provides juvenile defendants facing a lengthy sentence with a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It further allows for periodic reassessment if the Board determines not to grant parole. General Statutes § 54-125a(f)(5). In addition, Public Act No. 15-84, § 2, as codified in General Statutes § 54-91g, proscribes the procedure for sentencing a defendant who is convicted of a class A or B felony and was under the age of 18 at the time of the crime. This provision mandates consideration of age and its attendant circumstances, and scientific and psychological evidence. General Statutes § § 54-91g(a)(1) and (2). Thus, our legislature has already followed and implemented Graham, Miller and Riley .
After consideration of the Geisler factors, the court is not persuaded that the defendant's state constitutional claims compel the conclusion that his sentence must be vacated and a new sentencing hearing occur.
Therefore, for all of the foregoing reasons, the court concludes that it lacks jurisdiction to correct an illegal sentence. The appropriate disposition of the defendant's motion is an order that it be dismissed. See State v. Francis, 69 Conn.App. 378, 384-85, 793 A.2d 1224, cert. denied, 260 Conn. 935, 802 A.2d 88 (2002). The defendant's motion to correct an illegal sentence is dismissed.