State of Connecticut v. Zachary Boswell (2011)

MEMORANDUM OF DECISION RE DEFENDANT'S PETITION FOR DESTRUCTION OF RECORD OF DECRIMINALIZED OFFENSE

On June 18, 2011 the defendant, Zachary Boswell, appeared before the court on a charge of violation of probation in addition to other criminal charges.   The defendant's probation stems from a 2004 guilty plea under the Alford ¹ doctrine to sexual assault in the second degree in violation of General Statutes (Rev. to 2001) § 53a–71(a)(1).   At the time of the offense, § 53a–71(a)(1) provided that “[a] person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and ․ [s]uch other person is thirteen years of age or older but under sixteen years of age and the actor is more than two years older than such other person ․” (Emphasis added.)   In 2007, the Connecticut legislature amended subsection (a)(1), changing the difference in age between the persons to three years.²  Pursuant to General Statutes § 54–142d,³ the defendant now petitions the court for the destruction of his record of conviction under General Statues (Rev. to 2001) § 53a–71(a)(1), arguing that the offense (for which he was still serving a term of probation at the time the instant petition was filed) has been decriminalized.   The state objects to the defendant's request, relying on General Statutes § 54–194,⁴ which is commonly known as a savings statute.   The court agrees with the state.   For the following reasons, the defendant's petition for destruction of record of decriminalized offense is denied.

PROCEDURAL HISTORY

On or about October 29, 2004, the defendant appeared at the Superior Court in Hartford where he pleaded guilty to sexual assault in the second degree under General Statues (Rev. to 2001) § 53a–71(a)(1).   The defendant was sentenced to ten years (nine months of which were mandatory), execution suspended after two years, and ten years of probation.   The defendant's plea was the result of plea negotiations in which the state substituted the original information that charged the defendant with sexual assault in the first degree in violation of General Statutes (Rev. to 2001) § 53a–70 and risk of injury to a minor in violation of General Statutes (Rev. to 2001) § 53–21.   At the time of the offense, the defendant was sixteen years old and the victim was thirteen years old.   While the age difference between the defendant and victim was two years and five months, thus providing a basis for the substituted sexual assault charge, the underlying facts of the case do not support the defendant's claim that the sexual act was consensual.   According to the statement provided by the victim in the arrest warrant, the defendant is alleged to have brandished a knife and made serious threats against the victim during the offense.   The victim, now twenty years old, has continued to attend each court proceeding to voice her objection to the defendant's request for the destruction of his records pertaining to the offense and the termination of his probation.

DISCUSSION OF LAW

It is well established as a general rule that criminal defendants must be prosecuted and punished under the statute that is in effect at the time of the offense.⁵  Dealing with a similar set of facts, the Appellate Court in State v. Graham, 56 Conn.App. 507 (2000), cited two savings statutes:  the general savings statute General Statutes § 1–1(t),⁶ as well as the specific penal code savings statute General Statues § 54–194.⁷  Both savings statutes indicate that a crime, once committed, shall not affect any existing liability to punishment.   The defendant requests that the court overlook these savings statutes and instead apply the § 54–142d for the destruction of records based on the decriminalization of the underlying offense.   The court disagrees with the defendant's reliance on § 54–142d as a specific statute that necessarily overrules the savings clauses.   Instead, the court finds Graham persuasive.  “[S]avings statutes were enacted to prevent defendants from escaping punishment by allowing the state to pursue them under prior versions of a statute, regardless of whether the newer revision imposed a greater or lesser penalty.”  State v. Graham, supra, 56 Conn.App. 511.   The court is not inclined to allow the defendant to escape the reach of the savings clause.

CONCLUSION

For all of the foregoing reasons, the defendant's petition for destruction of record of decriminalized offense is DENIED.

Westbrook, J.

FOOTNOTES

FN1. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)..  FN1. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

FN2. Acts 2007, No. 07–143 § 1..  FN2. Acts 2007, No. 07–143 § 1.

FN3. Section 54–142d provides:  “Whenever any person has been convicted of an offense in any court in this state and such offense has been decriminalized subsequent to the date of such conviction, such person may file a petition with the superior court at the location in which such conviction was effected, or with the superior court at the location having custody of the records of such conviction or with the records center of the Judicial Department if such conviction was in the Court of Common Pleas, Circuit Court, municipal court or by a trial justice, for an order of erasure, and the Superior Court or records center of the Judicial Department shall direct all police and court records and records of the state's or prosecuting attorney pertaining to such case to be physically destroyed.”.  FN3. Section 54–142d provides:  “Whenever any person has been convicted of an offense in any court in this state and such offense has been decriminalized subsequent to the date of such conviction, such person may file a petition with the superior court at the location in which such conviction was effected, or with the superior court at the location having custody of the records of such conviction or with the records center of the Judicial Department if such conviction was in the Court of Common Pleas, Circuit Court, municipal court or by a trial justice, for an order of erasure, and the Superior Court or records center of the Judicial Department shall direct all police and court records and records of the state's or prosecuting attorney pertaining to such case to be physically destroyed.”

FN4. Section 54–194 provides:  “The repeal of any statute defining or prescribing the punishment for any crime shall not affect any pending prosecution or any existing liability to prosecution and punishment therefor, unless expressly provided in the repealing statute that such repeal shall have that effect.”.  FN4. Section 54–194 provides:  “The repeal of any statute defining or prescribing the punishment for any crime shall not affect any pending prosecution or any existing liability to prosecution and punishment therefor, unless expressly provided in the repealing statute that such repeal shall have that effect.”

FN5. See State v. Graham, 56 Conn.App. 507, 510 (2000);  see also United States v. Reisinger, 128 U.S. 398, 9 S.Ct. 99, 32 L.Ed. 480 (1888);  State v. Pastet, 169 Conn 13, cert. denied, 423 U.S. 937, 96 S.Ct. 297, 46 L.Ed.2d 270 (1975);  State v. DeMartin, 171 Conn. 524 (1976);  State v. Ruiz, 171 Conn. 264 (1976), overruled in part on other grounds, State v. Rodriguez, 180 Conn. 382 (1980)..  FN5. See State v. Graham, 56 Conn.App. 507, 510 (2000);  see also United States v. Reisinger, 128 U.S. 398, 9 S.Ct. 99, 32 L.Ed. 480 (1888);  State v. Pastet, 169 Conn 13, cert. denied, 423 U.S. 937, 96 S.Ct. 297, 46 L.Ed.2d 270 (1975);  State v. DeMartin, 171 Conn. 524 (1976);  State v. Ruiz, 171 Conn. 264 (1976), overruled in part on other grounds, State v. Rodriguez, 180 Conn. 382 (1980).

FN6. Section 1–1(t) provides:  “The repeal of an act shall not affect any punishment, penalty or forfeiture incurred before the repeal takes effect, or any suit, or prosecution, or proceeding pending at the time of the repeal, for an offense committed, or for the recovery of a penalty or forfeiture incurred under the act repealed.”.  FN6. Section 1–1(t) provides:  “The repeal of an act shall not affect any punishment, penalty or forfeiture incurred before the repeal takes effect, or any suit, or prosecution, or proceeding pending at the time of the repeal, for an offense committed, or for the recovery of a penalty or forfeiture incurred under the act repealed.”

FN7. See footnote four of this decision..  FN7. See footnote four of this decision.

Westbrook, Dawne, J.T.R.