STATE v. MAX SPIELBERG, SC 19627

Judicial District of Danbury

 Criminal; Whether Record of Conviction of Possession of Less than One-Half Ounce of Marijuana Subject to Erasure under General Statutes § 54-142d Where Defendant also Convicted of Other Crimes not Subject to Erasure.  In 2011, the defendant was convicted of possession of a controlled substance in violation of General Statutes § 21a-279 (c), possession of a controlled substance within 1500 feet of a school and risk of injury to a minor.  The conviction stemmed from an incident in which probation officers found a small amount of marijuana in the home the defendant shared with his minor child.  Subsequently, No. 11-71 of the 2011 Public Acts, which was later codified at § 21a-279a, became effective and modified the penalties for possession of less than one-half ounce of marijuana to make conduct that previously was a crime under § 21a-279 (c) a violation punishable only by a fine.  As a result, the defendant filed a petition pursuant to General Statutes § 54-142d seeking erasure of the record of his conviction for possession of a controlled substance in violation of General Statutes § 21a-279 (c).  Section 54-142d provides that whenever a person has been convicted of an offense and the offense is “decriminalized” subsequent to the date of conviction, the person may petition for erasure of the records and the trial court “shall direct all police and court records and records of the state’s or prosecuting attorney pertaining to such case to be physically destroyed.”  The state argued that the erasure statute did not apply because the legislature had not decriminalized the possession of less than one-half ounce of marijuana but, rather, had merely reclassified the offense as a violation instead of a misdemeanor and lessened the penalty.  The trial court denied the defendant’s erasure petition, and the defendant filed this appeal from the ruling.  After this appeal was filed, the Supreme Court held in State v. Menditto, 315 Conn. 861 (2015), that Public Act 11-71 had decriminalized the possession of less than one-half ounce of marijuana for purposes of the erasure statute, § 54-142d.  The defendant argues on appeal that, under Menditto, he is entitled to erasure of the record of his conviction of possession of a controlled substance under § 21a-279 (c) and that his convictions of possession of a controlled substance within 1500 feet of a school and risk of injury to a minor should be vacated because they are predicated on an act—possessing less than a half ounce of marijuana—that is no longer criminal in nature.  The state argues that the defendant is not entitled to erasure of the record of his conviction for possession of a controlled substance under § 21a-279 (c) because he still stands convicted, based on the same set of facts, of two offenses that have not been decriminalized.