State of Connecticut v. Nicholas Menditto (2012)

MEMORANDUM OF DECISION ON MOTION TO DISMISS

The defendant, by and through his counsel, has moved to dismiss a pending prosecution against him for one count of possession of marijuana, less than four ounces, pursuant to General Statutes § 21a–279(c).  The defendant argues that a dismissal is warranted because certain conduct for which he had been arrested in March 2011 is now decriminalized as a result of the legislative enactment of Public Act 11–71 which became effective July 1, 2011.   The defendant cites as additional authority the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution and Article First, Sections Eight and Nine of the Connecticut Constitution.

I. PROCEDURAL HISTORY

On or about March 25, 2011, Nicholas Menditto was arrested and charged by the Vernon Police Department with possession of marijuana.   The arrest arose out of an onsite motor vehicle traffic stop during which the police officer is alleged to have located in the defendant's vehicle less than one gram of marijuana as well as a glass smoking pipe and a second smoking device called a “one hitter.”   The defendant was subsequently charged with possession of a controlled substance, less than four ounces of marijuana, pursuant to General Statutes § 21–a–279(c), and use of drug paraphernalia in violation of General Statutes § 21–a–267(a).

At some time after the defendant's March arrest, the Connecticut legislature passed Public Act No. 11–71, an Act Concerning the Penalty for Certain Nonviolent Drug Offenses.   This Act provides, in relevant part, that “(a) Any person who possesses or has under his control less than one-half ounce of a cannabis-type substance, as defined in section 21a–240 of the general statutes ․ shall (1) for a first offense, be fined one hundred fifty dollars, and (2) for a subsequent offense, be fined not less than two hundred dollars or more than five hundred dollars.”   Public Act. No. 11–71 became effective July 1, 2011.

On or about July 19, 2011, the defendant, through his counsel, filed a “Motion for Dismissal.”   The defendant seeks dismissal of the pre-Public Act 11–71 charge pursuant to Conn. Gen Stat. § 21a–279(c) claiming that the conduct for which he has been charged, namely, possession of less than one gram of marijuana,¹ is now decriminalized under P.A. 11–71.

On or about August 1, 2011, the State filed a response to the defendant's motion and the defendant filed a reply to the State's response on or about August 12, 2011.

The court heard oral arguments on these matters on October 24, 2011.   The court denied the defendant's motion in open court on December 5, 2011.   This memorandum serves as an articulation of the court's prior ruling.

II. LAW AND DISCUSSION

The defendant is not entitled to dismissal of the charge of possession of a controlled substance, less than four ounces of marijuana, pursuant to General Statutes § 21–a–279(c) because the savings statutes preclude dismissal of these charges.   In Connecticut, there are two savings statutes, General Statutes § 1–1(t),² the general savings statute, and General Statutes § 54–194,³ the specific penal code savings statute.   Our courts have repeatedly held that these savings statutes preserve all prior offenses and liability therefor so that when a crime is committed and the statute violated is later amended or repealed, defendants remain liable under the revision of the statute existing at the time of the commission of the crime.   State v. Graham, 56 Conn.App. 507, 511 (2000);  State v. Carbone, 172 Conn. 242, 255–56, 374 A.2d 215, cert. denied, 431 U.S. 967, 97 S.Ct. 2925, 53 L.Ed.2d 1063 (1977);  State v. DeMartin, 171 Conn. 524, 528–29, 370 A.2d 1038 (1976);  Dortch v. State, 142 Conn. 18, 29, 110 A.2d 471 (1954).

It is obvious from the clear, unambiguous, plain language of the savings statutes that the legislature intended that the defendant be prosecuted in accordance with and pursuant to the statute in effect at the time of the alleged commission of the crime.   It appears that these savings 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, 56 Conn.App. at 511;  Simborski v. Wheeler, 121 Conn. 195, 198–200, 183 A. 688 (1936).   The defendant's request that this court adopt an “amelioration doctrine,” whereby amendments to statutes that lessen their penalties are applied retroactively is, in essence, asking this court to intervene in the legislative process and ignore the savings statutes.  State v. Graham, 56 Conn.App. at 511.   This court will not do that.   Since the legislature has enacted the general rule that defendants must be prosecuted and punished under the statute in effect at the time of the offense, and because it failed to override that rule with any specific amendment, the defendant may appropriately be prosecuted and punished under the version of General Statutes § 21–a–279(c) that was in effect at the time of the alleged offense.⁴

III. CONCLUSION

For the foregoing reasons, defendant's Motion to Dismiss is DENIED.

SO ORDERED.

BY THE COURT,

LAURA F. BALDINI

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. Less than one gram is less than one-half of an ounce..  FN1. Less than one gram is less than one-half of an ounce.

FN2. General Statutes § 1–1(t) provides, in relevant part, that “[t]he 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.”.  FN2. General Statutes § 1–1(t) provides, in relevant part, that “[t]he 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.”

FN3. General Statutes § 54–194 provides, in relevant part, that “[t]he 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 therefore, unless expressly provided in the repealing statute that such repeal shall have that effect.”.  FN3. General Statutes § 54–194 provides, in relevant part, that “[t]he 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 therefore, unless expressly provided in the repealing statute that such repeal shall have that effect.”

FN4. At the time of the defendant's arrest, the penalty for the offense of possession of a controlled substance, less than four ounces of marijuana, pursuant to General Statutes § 21–a–279(c) was up to one year in jail and/or a fine of $1,000..  FN4. At the time of the defendant's arrest, the penalty for the offense of possession of a controlled substance, less than four ounces of marijuana, pursuant to General Statutes § 21–a–279(c) was up to one year in jail and/or a fine of $1,000.

Baldini, Laura F., J.