STATE v. CARLOS POLANCO, SC 18771

Judicial District of Windham at G.A. 11

     Criminal; Double Jeopardy; Whether, Where the Defendant’s Convictions Violate the Double Jeopardy Clause, the Conviction for the Lesser Included Offense Should be Vacated Rather than Merged with the Conviction for the Greater Offense.  The defendant was convicted of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), and possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a).  The trial court sentenced the defendant to ten years incarceration and ten years special parole for violating § 21a-278 (b) and a concurrent term of ten years incarceration for violating § 21a-277 (a).  The court further ordered that the sentences for the two convictions be merged.  On appeal, the defendant claimed that his sentence violated the double jeopardy clause's prohibition against multiple punishments for the same offense.  Specifically, he claimed that the trial court, instead of merging the two convictions, improperly merged the sentences.  Alternatively, he argued that the double jeopardy clause required that his conviction on the lesser included offense be vacated.  The Appellate Court (126 Conn. App. 323) concluded that, because § 21a-277 (a) is a lesser included offense of § 21-278 (b) and both charges arose from the same act or transaction, the defendant’s convictions for those crimes violated the double jeopardy clause.  The court stated that the defendant's double jeopardy rights would not have been violated had the trial court merged the two convictions.  Thereafter, it held that the appropriate remedy was to remand the case to the trial court with direction to merge the conviction for the lesser included offense with the conviction for the greater offense and to vacate the sentence for the lesser included offense.  Noting that the remedy provided to the defendant was based on controlling Supreme Court precedent, the court determined that there was no need to discuss the defendant’s argument that his conviction on the lesser included offense should be vacated.  In this appeal, the Supreme Court will determine whether the defendant’s conviction on the lesser included offense should have been vacated, rather than merged with the conviction for the greater offense.