STATE v. KENNETH GELORMINO, SC 18144

Judicial District of Waterbury

 Criminal; Drug Offenses; Sentencing; Departure from Mandatory Minimum Sentence Pursuant to General Statutes § 21a-283a; Whether Provisions of § 21a-283a were Previously Invoked.  To carry out an arranged sale of marijuana, the defendant drove to a parking lot in Waterbury and began transferring one hundred pounds of marijuana to the buyer.  While doing so, he was arrested.  The defendant immediately agreed to cooperate with the police, and he told them that there was a quantity of marijuana at his Torrington business.  The police then drove to that location and confiscated the marijuana.  In connection with the Waterbury arrest, the defendant was  prosecuted in the judicial district of Waterbury for sale of marijuana in violation of § 21a-278 (b), among other charges.  In connection with the Torrington seizure, the defendant was prosecuted in the judicial district of Litchfield for possession of marijuana with intent to sell in violation of § 21a-278 (b), among other charges.  Thereafter, in the Litchfield case, the defendant was found guilty of the charges.  While awaiting sentencing, the defendant pleaded guilty under the Alford doctrine to one count of sale of marijuana in the Waterbury case.  He then filed, in the Litchfield case, a motion for departure from the minimum sentence of five years that is mandated for violations of § 21a-278 (b).  The motion was filed pursuant to General Statutes § 21a-283a, which provides in relevant part that "when sentencing a person convicted of a violation of any provision of this chapter for which there is a mandatory minimum sentence . . . the court may, upon a showing of good cause by the defendant, depart from the prescribed mandatory minimum sentence, provided that the provisions of this section have not previously been invoked on the defendant 's behalf. . . ."  Subsequently, the Litchfield court granted the defendant's motion for downward departure, and he received a suspended sentence and probation.  Thereafter, he filed a motion for downward departure in the Waterbury case, which the court denied on the ground that "any defendant can only invoke his right under § 21a-283 one time" and that this right had been invoked already in the Litchfield matter, which was a separate prosecution.  After being sentenced to the mandatory minimum five years incarceration, the defendant filed this appeal, challenging the Waterbury court's conclusion that it lacked authority to depart from the mandatory minimum.  The defendant argues that even though he was given the benefit of § 21a-283 when sentenced in the Litchfield case, this did not constitute, in the Waterbury case, a "previous invocation" of his right to a downward departure because he was "convicted" of the Waterbury charges before he invoked his rights in the Litchfield case.  He contends that, consequently, the Waterbury court had the authority to depart from the mandatory minimum.  The defendant also asserts that the court should look to extratextual sources in interpreting § 21-283a and that these sources support an interpretation that the legislature intended § 21-283a to apply to cases that arise simultaneously.