Criminal Jury Instructions Home

2.12-1 Persistent Offenders -- § 53a-40, § 53a- 40a, § 53a-40d and § 53a-40f

Revised to May 20, 2011

In the second part of the information, the defendant has been charged with being a <insert appropriate statute and subsection:>

• § 53a-40 (a): persistent dangerous felony offender.

• § 53a-40 (b): persistent dangerous sexual offender.

• § 53a-40 (c): persistent serious felony offender.

• § 53a-40 (d): persistent serious sexual offender.

• § 53a-40 (e): persistent larceny offender.

• § 53a-40 (f): persistent felony offender.

• § 53a-40a (a): persistent offender of crimes involving bigotry or bias.

• § 53a-40d (a): persistent offender of crimes involving (assault / stalking / trespass / threatening / harassment / criminal violation of a protective order / criminal violation of a restraining order.

• § 53a-40f (a): persistent operating while under the influence felony offender.

A person is guilty of being a <insert type of persistent offender charged> when that person stands convicted of <insert crime>, and has been, prior to the commission of that offense, convicted of <insert prior crime[s]> [and imprisoned under a sentence to a term of imprisonment of more than one year or death in (this state / any other state / a federal correctional institution)].¹

For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:

Element 1 - Current conviction
The first element is that the defendant has been convicted of <insert crime> in this case. The verdict you just rendered, finding the defendant guilty of <insert crime>, satisfies this element.

Element 2 - Prior conviction²
The second element is that prior to <insert date the current crime was committed>, the defendant was convicted of <insert prior crime³> [and imprisoned under a sentence to a term of imprisonment of more than one year or death in (this state / any other state / a federal correctional institution).] To be "convicted" of a crime means that a finding of guilty has been entered against a defendant in a criminal or motor vehicle case.

[<If applicable; see note 1.> The state need only prove that the defendant served some amount of time in confinement under a sentence having a term that exceeded one year. The crucial element of the statute is that the imposed term exceeded one year; however, the defendant is not required to actually serve one year in prison but is only required to have been imprisoned.⁴]

Conclusion

In summary, the state must prove beyond a reasonable doubt that the defendant has been convicted of <insert crime>, and that (he/she) had previously been convicted of <insert crime> [and imprisoned under a sentence to a term of imprisonment of more than one year or death in (this state / any other state / a federal correctional institution)].

You will now return to the deliberation room to consider this question.  I am sending in with you a form on which to record your answer.  Your decision must be unanimous.  Your foreperson should check the appropriate answer and sign and date the form.  Refer back to and use the instructions I previously gave you on burden of proof, presumption of innocence, and reasonable doubt.
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¹ The requirement of imprisonment applies only to § 53a-40 (a), (b), (c), and (d).

² Prior to October 1, 2010, § 53a-40d (a) (2) required that the prior conviction, or release from imprisonment, be within the 5 years before the subsequent crime. That provision was deleted by P.A. No. 10-144, § 12.

³ Sections 53a-40 (a) (1) and (2), 53a-40 (b), 53a-40d, and 53a-40f provide that the prior conviction may be a conviction in another state of "any crime the essential elements of which are substantially the same as any of the crimes" in Connecticut that qualify the defendant as a persistent offender. The determination of whether an out-of-state offense is substantially similar to a Connecticut offense is a question of law for the court to decide. State v. Commins, 276 Conn. 503, 513 (2010).

⁴ State v. Milardo, 224 Conn. 397, 419 (1993).

Commentary

In State v. Ledbetter, 240 Conn. 317, 321 (1997), the Supreme Court "interpret[ed] the language of § 53a-40 (d) and its legislative purpose to require a sequence of offense, conviction and punishment for each prior felony before a defendant may be subject to an enhanced penalty as a persistent offender." This presumably applies to the other persistent offender statutes.

In State v. Rogers, 128 Conn. App. 765, 776, cert. denied, 301 Conn. 935 (2011), the Appellate Court held that unclassified felonies qualify as prior convictions under § 53a-40 (f), which requires that a defendant be "twice convicted of a felony other than a class D felony."

It is recommended that the factual question of the defendant’s status as a persistent offender be submitted to the jury by way of an interrogatory after it has rendered its verdict on Part A of the information.  Below is an example of the text of the interrogatory.