STATE v. JOSE POLANCO, SC 18701

Judicial District of New Haven at G.A. 23

 

     Criminal; Sentencing; Whether the Three Year Mandatory Nonsuspendable Sentence for Selling Narcotics Within 1500 Feet of a School Must be Added to Both the Suspended and Nonsuspended Portions of a Sentence for Selling Narcotics.  In June, 2006, the defendant was convicted of one count of sale of narcotics by a drug dependent person in violation of General Statutes § 21a-277 (a), and one count of sale of narcotics within 1500 feet of a school in violation of General Statutes § 21a-278a (b).  For a first violation of § 21a-277 (a), the court may impose a maximum sentence of fifteen years imprisonment.  A violation of § 21a-278a (b) carries a mandatory three year sentence of incarceration that is nonsuspendable and must be served consecutive to any sentence imposed for a conviction of § 21a-277.  Here, the court sentenced the defendant to ten years incarceration, execution suspended after four years, with three years of probation for violation of § 21a-277 (a), and to a consecutive mandatory three year term of incarceration for violation of § 21a-278a (b).  The court stated that the defendant's total effective sentence was thirteen years, execution suspended after seven years, followed by three years of probation.  Subsequently, in August, 2009, the defendant, pursuant to Practice Book § 43-22, filed a motion to correct an illegal sentence.  In the motion, the defendant claimed that his total effective sentence exceeded the limits of the maximum authorized legal sentence.  It was the defendant's position that, because the three year mandatory consecutive sentence for a violation of § 21a-278a (b) was not suspendable, it could be added only to the four year incarceration portion of the sentence imposed for violation of § 21a-277 (a), and not to the six year suspended portion of that sentence.  Therefore, the defendant asserted that his total effective sentence should be ten years, execution suspended after seven years, followed by three years of probation.  Noting that § 21a-278a (b) mandates that the three year nonsuspendable sentence is to be made consecutive to any sentence imposed under § 21a-277 (a), the court rejected the defendant's claim, ruling that the sentencing court correctly ordered the three year nonsuspendable mandatory sentence for violation of § 21a-278a (b) to run consecutive to the ten year sentence for the violation of § 21a-277 (a), for a total effective sentence of thirteen years.  In this appeal, the Supreme Court will review the trial court's decision.