STATE v. JOHN TABONE, SC 18581

Judicial District of Waterbury

     Criminal; Guilty Pleas; Sentencing; Whether Defendant Entered His Guilty Pleas Without Knowledge that Sentence Actually Imposed Could be Imposed; Whether Sentence Imposed on Remand Violates Due Process and the Prohibition Against Ex Post Facto Laws. In 2000, the defendant, pursuant to a plea agreement, pleaded guilty under the Alford doctrine to the crimes of second degree sexual assault, third degree sexual assault and risk of injury to a child.  He received a total effective sentence of ten years of imprisonment followed by ten years of special parole.  General Statutes (Rev. to 1999) § 54-125e (c) requires, for certain convictions including the three offenses committed by the defendant, that special parole, if imposed, must be for a minimum term of ten years.  General Statutes § 54-128 (c) requires that, when both special parole and a prison sentence are imposed, the combination of those two sentences cannot exceed the statutory maximum sentence for the offense for which the person was convicted.  In State v. Tabone, 279 Conn. 527 (2006) (Tabone I), the Supreme Court held that the defendant's sentences for second degree sexual assault and third degree sexual assault were illegal under § 54-128 (c) because the total combined years of imprisonment and special parole exceeded the maximum allowable sentences for those offenses.  On remand, the trial court resentenced the defendant to a total effective sentence of twenty years of imprisonment, suspended after ten years, followed by ten years of probation.  The defendant appealed, and the Supreme Court reversed, holding that the trial court, in substituting probation for special parole, illegally enlarged the defendant's original sentence.  State v. Tabone, 292 Conn. 417 (2009) (Tabone II).  Additionally, the court determined that the mandatory minimum period of special parole set out in § 54-125e (c) had to be interpreted as permissive in a situation where imposition of that mandatory period conflicts with the maximum statutory limit in § 54-128 (c).  Thus, on remand, the trial court was instructed to sentence the defendant to a term of special parole unfettered by § 54-128 (c).  Prior to resentencing, the defendant filed a motion to withdraw his pleas.  He contended that he did not have fair warning at the time he entered his pleas that he could receive less than ten years of special parole.  Thus, he claimed that the new sentencing possibilities he was now subject to - based on Tabone II - raised ex post facto and due process concerns and, as a result, he should be permitted to withdraw his pleas.  He also contended that he satisfied the requirements of Practice Book § 39-27 (2), which permits withdrawal of pleas when they are entered "without knowledge that the sentence actually imposed could be imposed."  The trial court denied the motion to withdraw, ruling that the defendant had received, and still would receive, the benefit of his plea bargain.  The court then resentenced the defendant to a total effective sentence of ten years imprisonment followed by nine years of special parole.  On appeal, the defendant claims that he is entitled to withdraw his pleas under § 39-27 (2).  He also claims that the trial court's resentencing him to a nine year period of special parole violates the ex post facto and due process clauses of the federal constitution.