On September 11, 2007, the Connecticut Supreme Court will release an opinion in which it remands for a new sentencing hearing where the trial court, not the jury, made one of the findings necessary for a penalty enhancement pursuant to 53a-40 (h). In State v. Bell, the Court holds that Apprendi and its progeny require a jury finding as to all factors which, if found, mandate a greater penalty.

We conclude that the determination by the trial court, rather than the jury, that imposing extended incarceration would best serve the public interest clearly violated the defendant’s constitutional rights as explicated in Apprendi and its progeny. We further conclude that, because the jury must make that determination before the enhanced sentence under § 53a-40 (h) can be imposed, the case must be remanded for a new sentencing proceeding.

The Court explains Apprendi v. New Jersey and outlines the progression of the rule since that case. The Court then engages in statutory interpretation of the statute at issue, ultimately finding that subsection (h), while couched in language of what the trial court must do, creates a second finding of fact that must be made prior to imposition of the enhanced penalty, thereby necessitating a jury finding on that fact to survive a constitutional challenge.

Subsection (a) of § 53a-40 provides in relevant part: ‘‘A persistent dangerous felony offender is a person who: (1) (A) Stands convicted of manslaughter, arson, kidnapping, robbery in the first or second degree, or assault in the first degree, and (B) has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution, for any of the following crimes: (i) The crimes enumerated in subparagraph (A) of this subdivision or an attempt to commit any of said crimes . . . .’’ The defendant does not challenge his status as a persistent offender in light of the jury’s verdict in the present case of guilty on the count of assault in the first degree and his previous conviction of robbery in the first degree. Subsection (h) of § 53a-40 provides in relevant part:‘‘When any person has been found to be a persistent dangerous felony offender, and the court is of the opinion that such person’s history and character and the nature and circumstances of such person’s criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest, the court, in lieu of imposing the sentence of imprisonment authorized by section 53a-35a . . . shall sentence such person to a term of imprisonment of not more than forty years . . . .’’ (Emphasis added.) The dispositive question under Apprendi is: ‘‘[D]oes the [statute prescribe a] required finding [that] expose[d] the defendant to a greater punishment than that authorized by the jury’s guilty verdict?’’ Apprendi v. New Jersey, supra,
530 U.S. 494.

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In examining the text of the statute, we note at the outset that, by its use of the conjunctive ‘‘and,’’ the statute appears to impose two preconditions for an enhanced sentence to be imposed in lieu of the lesser sentence prescribed for the offense for which the defendant stands convicted: (1) the jury’s determination that the defendant is a persistent offender; and (2) the court’s determination that the defendant’s history and character and the nature and circumstances of his criminal conduct indicate that extended incarceration will best serve the public interest.

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The Supreme Court’s decisions subsequent to Apprendi, however, are instructive when considering the effect of discretionary authority. The mere fact that the statute may permit the court to exercise discretion in deciding on what particular facts it will rely in making its public interest determination would not insulate the statute from constitutional infirmity if it permits the trial court’s ultimate finding to subject the defendant to a higher sentence than that authorized by the jury’s verdict.

The Court rejected the State’s contention that the error was harmless, noting that although there was sufficient evidence on the record to support the trial court’s conclusion that extended incarceration will best serve public interest, the jury did not hear any of that evidence, as it was presented at a hearing only before the trial court. The Court was therefore unable to conclude that the jury would have been compelled to make such a finding as a matter of law.

Finally and perhaps most interestingly, the Court addresses the constitutionality of the statute itself, which indicates that the public interest finding is to be made by the trial court. Believing that the legislature would enact the statute as necessary to pass constitutional muster, the Court itself excises the language giving rise to the violation, i.e., “the court is of the opinion that” in order to require and ensure a jury finding of whether extended incarceration will best serve the public interest.