STATE v. MICHAEL A., SC 18464

Judicial District of Ansonia-Milford

     Criminal; Remand Orders; Resentencing; Whether Trial Court Followed Intent of Remand Order in Resentencing the Defendant; Whether Defendant, When Pleading Nolo Contendere to Being a Persistent Serious Felony Offender, Waived his Right to a Jury Trial on the Issue of Whether Extended Period of Incarceration was Warranted.  Upon being found guilty on June 16, 2004, of second degree sexual assault and risk of injury to a child, the defendant pleaded nolo contendere to the part B information charging him, under General Statutes § 53a-40 (c), with being a persistent serious felony offender.  Thereafter, the defendant was sentenced to a term of twelve years incarceration on each count to be served consecutively.  On appeal, the Appellate Court affirmed the defendant's risk of injury conviction but reversed  his conviction for second degree sexual assault.  Its rescript stated: "The judgment is reversed only as to the conviction of sexual assault in the second degree and the case is remanded with direction to render judgment of not guilty as to that offense only.  The judgment is affirmed in all other respects."  At the remand proceeding, held on April 4, 2008, the defendant argued that the trial court was limited by the terms of the rescript to rendering a judgment of not guilty on the sexual assault charge and, accordingly, that it was not authorized to increase his sentence on the risk of injury charge.  The trial court, citing State v. Raucci, 21 Conn. App. 557 (1990), concluded that it had the discretion to resentence the defendant on the risk of injury charge, so long as the new sentence did not exceed the statutory maximum or the original total effective sentence.  Thus, the court vacated the defendant's original sentence and resentenced him to a term of seventeen years incarceration on the risk of injury charge.  In sentencing the defendant again as a persistent serious felony offender, the court, as required by General Statutes (Rev. to 1999) § 53a-40 (j), made a finding that an extended period of incarceration would best serve the public interest and that the defendant's counsel did not object to this finding.  The defendant now appeals, claiming that the trial court, under the remand order, did not have discretion to resentence him on the risk of injury charge.  In the alternative, the defendant contends that he is entitled to a new sentencing proceeding on the part B information because, although he pleaded nolo contendere to being a persistent serious felony offender at the original sentencing, the record contains no indication that he personally waived his right to a jury trial on the issue of whether enhancing his sentence was in the public interest.