STATE v. JOHN TABONE, SC 18119

Judicial District of Waterbury

 

      Criminal; Resentencing; Whether Trial Court, in Resentencing Defendant, Unconstitutionally Enlarged the Original Sentence by Imposing a Period of Probation in Lieu of Special Parole.  In 2000, the defendant, pursuant to a plea agreement, pleaded guilty under the Alford doctrine to sexual assault in the second degree, sexual assault in the third degree and risk of injury to a child.  He later received a total effective sentence of ten years of imprisonment followed by ten years of special parole.  Subsequently, the Supreme Court, in State v. Tabone, 279 Conn. 527 (2006), determined that the defendant's sentences for sexual assault in the second degree and sexual assault in the third degree were illegal because the total years of imprisonment and special parole exceeded the maximum allowable sentences.  It thus ordered that the defendant be resentenced in accordance with the "aggregate package" theory of resentencing, which gives the trial court the authority to revise a sentence in its entirety when any one part is invalidated.  On remand, the defendant maintained that in resentencing him, the trial court should simply eliminate the period of special parole from the original sentence and that it should not impose a period of probation in lieu of special parole because doing so would unconstitutionally enlarge the original sentence.  He reasoned that if he violated his probation, he would have to serve the entire suspended portion of his incarceration even if the violation occurs on the last day of his probationary period.  He further contended that if he were sentenced to probation, he would likely be required to undergo sexual offender treatment as a condition of such probation.  As such treatment would necessitate his having to admit his guilt of the sexual offenses, he asserted that he likely would be found in violation of probation because he has steadfastly maintained his innocence.  Moreover, he claimed that a probationary period could not be imposed as to his convictions for sexual assault in the third degree and risk of injury to a child because the original sentences for those convictions had already expired.  The trial court rejected the defendant's claims, stating that although the Supreme Court's ruling effectively precluded it from including a period of special parole, it was authorized to impose an aggregate package that effectuates the intent of the plea bargained sentence, which was to impose ten years of incarceration followed by ten years of supervision.  This could be achieved, the court determined, through its approval of a document signed by the state's attorney, which provided that if the defendant violates his probation, the state would seek a term of incarceration that would not exceed the remaining portion of the probationary period.  The court emphasized that, notwithstanding the defendant's claims to the contrary, such document would be binding upon all other prosecutors and judges.  Accordingly, the court resentenced the defendant to a total effective sentence of twenty years of imprisonment, suspended after ten years, followed by ten years of probation.  In this appeal, the Supreme Court will determine whether the new sentence was proper.