State of Connecticut v. Nicholas Menditto (2012)

MEMORANDUM OF DECISIONS ON PETITIONS FOR DESTRUCTION OF RECORDS AND MOTIONS TO DISMISS

The defendant, by and through his counsel, has moved this Court for the destruction of the records of convictions for two counts of possession of marijuana in violation of General Statutes § 21a–279(c).  The basis for the defendant's petitions for erasure is that pursuant to the newly amended General Statutes § 21a–279(c) and newly enacted P.A. 11–71, the defendant's conduct which resulted in his convictions is now decriminalized under P.A. 11–71.   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.   The defendant also seeks dismissal of the two violation of probation proceedings in both files.

I. PROCEDURAL HISTORY

On or about July 28, 2009, the defendant, Nicholas Menditto, was arrested and charged by the Coventry Police Department with possession of marijuana.   According to the property inventory report prepared in connection with the arrest, .15 ounces of marijuana and a small baggie containing trace amounts of marijuana were seized in connection with the defendant's arrest.   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) in file T19R–CR09–0095007.

On or about August 14, 2009, the defendant was arrested and charged by the Vernon Police Department with possession of marijuana.   According to the property inventory report prepared in connection with the arrest, .3 grams ¹ of marijuana were seized in connection with the defendant's arrest.   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) in docket No.:  T19R–CR09–0095107.

On October 28, 2009, the defendant entered pleas of guilty on two counts of possession of a controlled substance pursuant to General Statutes § 21–a–279(c) in files T19R–CR09–0095007 and T19R–CR09–0095107.   On that same date, the defendant was sentenced in file T19R–CR09–0095007 to one year, execution suspended, eighteen months probation and in file T19R–CR09–0095107 to one year, execution suspended, eighteen months probation.   These sentences were to run consecutively for a total effective sentence of two years, execution suspended, eighteen months probation.   That same day, the defendant was issued and signed a copy of the conditions of probation which, in addition to the standard conditions of probation, included the following special conditions:  1) substance abuse evaluation, treatment and testing as recommended by the Office of Adult Probation;  and 2) random urine screens—zero tolerance;  and 3) not to use or possess illegal drugs.

After being placed on probation, the defendant was arrested for breach of peace in the second degree ² and probation proceedings were initiated in the T19R–CR09–0095107 and T19R–CR09–0095007 matters.   On October 7, 2010, the defendant admitted to violating his probation in these matters and the court (Randolph, J.) continued the defendant's probation in both of these files.

On or about March 25, 2011, the defendant was arrested again, this time, by the Vernon Police Department.   The arrest arose out of a 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) under docket No.:  T19R–CR11–009874–S.

By way of a warrant dated April 26, 2011, the defendant was charged with violation of probation pursuant to General Statutes § 53a–32 in the T19R–CR09–0095107 and T19R–CR09–0095007 files.   The warrants state several grounds for the issuance of the warrants including his violations of the following probation conditions:  1) do not violate any criminal law of the United States, this State or any other state or territory;  2) report as the Probation Officer directs, give immediate notice if arrested;  3) do not use or possess illegal drugs.

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 20, 2011, the defendant, through his counsel, filed a “Motion for Dismissal and Petition for Destruction of Record of Decriminalized Offense” in files T19R–CR09–0095107 and T19R–CR09–0095007.   In his motions and petitions, the defendant seeks destruction of the records of his convictions for possession of a controlled substance pursuant to Conn. Gen Stat. § 21a–279(c) claiming that “said conduct resulting in the conviction[s are] now decriminalized under P.A. 11–71.”   The defendant further requests that the violation of probation proceedings should be dismissed in light of the legislature's enactment of P.A. 11–71.

On or about August 23, 2011, the State filed responses to the defendant's petitions and motions and the defendant filed a reply to the State's responses on or about September 6, 2011.

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

II. LAW AND DISCUSSION

General Statutes § 54–142d provides the legal procedure for destroying records of decriminalized offenses.   This statute provides, in relevant part, that:

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 ․ 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.

It is undisputed that on October 28, 2009, the defendant entered guilty pleas to two counts of Possession of a Controlled Substance, less than four ounces of marijuana, pursuant to General Statutes § 21–a–279(c).  The evidence presented indicates that both convictions are predicated upon the defendant's possession of less than one-half ounce of marijuana.   At the time of the defendant's convictions, 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.

In considering the defendant's petitions and motions, the court must determine whether the offense of Possession of a Controlled Substance, less than four ounces of marijuana, pursuant to General Statutes § 21–a–279(c), has been decriminalized by the Legislative enactment of Public Act No. 11–71.   Connecticut's erasure statute, General Statutes § 54–142d, was enacted in 1983.   This statute, however, provides no independent definition of “offense.”   See Conn., P.A. 83–6 (1983).   In construing a statute, “a court's fundamental objective is to ascertain and give effect to the apparent intent of the legislature.”  State v. Solman, 131 Conn.App. 846, 852 (2011).   In other words, a court must seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of the case, including the question of whether the language actually does apply.  Id. In seeking to determine that meaning, General Statutes § 1–2z directs a court to first consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results extratextual evidence of the meaning of the statute shall not be considered.   State v. Solman, 131 Conn.App. at 852;  State v. Rogers, 128 Conn.App. 765, 776 (2011);  State v. Marsh & McLennan Cos., 286 Conn. 454, 464 (2008).   The Supreme Court has stated that in enacting statutes, “[t]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them.”  Hatt v. Burlington Coat Factory, 263 Conn. 279, 310 (2003).   Accordingly, a review of other sections of the Penal Code is necessary to determine the definition of the word “offense.”

The Penal Code does provide a definition of “offense.”  General Statutes § 53a–24(a) defines “offense” as “any crime or violation which constitutes a breach of the law of this state ․ for which a sentence of imprisonment or to a fine, or both, may be imposed ․ The term ‘crime’ comprises felonies and misdemeanors.   Every offense which is not a ‘crime’ is a ‘violation.’  “ See P.A. 828, S.24 (1969).   A violation is defined, in relevant part, as “[a]n offense for which the only sentence authorized is a fine ․ unless expressly designated as an infraction.”  General Statutes § 53a–27.

The inference can be reasonably and logically drawn that since the Penal Code was enacted in 1969, the decriminalization statute, Public Act 11–71 and the newly amended General Statutes § 21–a–279(c) were enacted knowing the existence of § 53a–24 and its definition of “offense.”   Accordingly, the erasure statute applies to offenses, to wit, crimes and violations, that have been decriminalized.

Possession of less than one-half ounce of marijuana, both then and today is still an offense within the meaning of General Statutes §§ 53a–24 and 54–142d.   The legislative enactment of Public Act 11–71 effectively reclassified possession of less than one-half ounce of marijuana from a crime to a violation.³  Regardless of this reclassification, possession of less than one-half ounce of marijuana still constitutes a breach of the law of this state.   Moreover, Public Act 11–71 is consistent with other statutes that prohibit, among other things, the possession, manufacture and sale and distribution of marijuana.   See e.g. General Statutes §§ 21–a–277(b), 21–a–279(c), 21a–278(b).

Defendant's reliance upon the legislative history of Public Act 11–71 in support of his petitions for erasure is misguided.   The legislative history of Public Act 11–71 indicates that this legislation was enacted as a way to prospectively reclassify possession of a controlled substance, less than four ounces of marijuana, from a crime to a violation.   This purpose is reflected in the language of the act itself and evidenced by the effective date of this act, July 1, 2011.   The legislative history also shows that Public Act 11–71 was not intended to legalize the possession or use of marijuana.

The defendant has not been convicted of an offense which has been decriminalized subsequent to the date of his convictions.   Accordingly, the defendant is not entitled to the erasure of his 2009 convictions for possession of marijuana pursuant to Conn. Gen Stat. § 21a–279(c) or to the dismissal of the violation of probation proceedings in connection with these matters.

III. CONCLUSION

For the foregoing reasons, defendant's petitions for erasure of his convictions for Possession of a Controlled Substance in files T19R–CR09–0095107 and T19R–CR09–0095007 are DENIED.   The defendant's motions to dismiss the violation of probation charges in files T19R–CR09–0095107 and Tl9R–CR09–0095007 are DENIED.

SO ORDERED.

BY THE COURT,

LAURA F. BALDINI

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. .3 grams = .01 ounces..  FN1. .3 grams = .01 ounces.

FN2. Docket No. H12M–CR10–0228999–S..  FN2. Docket No. H12M–CR10–0228999–S.

FN3. Public Act 11–71 falls squarely within the definition of a “violation” as the only sentence authorized is a fine and there is no express designation of this offense as an infraction..  FN3. Public Act 11–71 falls squarely within the definition of a “violation” as the only sentence authorized is a fine and there is no express designation of this offense as an infraction.

Baldini, Laura F., J.