STATE v. WILLIAM MCELVEEN, SC 18522

Judicial District of New Haven

 Criminal; Mootness; Whether Defendant's Appeal Challenging Finding that he is a Persistent Larceny Offender Under General Statutes § 53a-40 was Rendered Moot when Trial Court Vacated Enhancement to Defendant's Sentence that was Imposed Because of Persistent Larceny Offender Finding.   The defendant was convicted of sixth degree larceny and given an enhanced sentence pursuant to General Statutes § 53a-40 because the jury found him to be a persistent larceny offender.  On appeal, the defendant challenged the sufficiency of the evidence supporting the finding that he was a persistent larceny offender, claiming that the part B information charging him with being a persistent larceny offender was defective and that the trial court improperly instructed the jury on the basis of the defective information.  While the appeal was pending, the defendant filed a motion to modify his sentence.  The trial court granted the motion and vacated the enhancement.  The state claimed that the trial court's order vacating the enhancement rendered the appeal moot.  The defendant argued that the finding that he was a persistent larceny offender constituted a "conviction," and, therefore, the Appellate Court could afford him practical relief by reversing his persistent larceny offender "conviction."  The Appellate Court (117 Conn. App. 486) held that the trial court's order rendered the defendant's appeal moot and dismissed the appeal.  It stated that the legal consequence of a finding that a defendant is a persistent larceny offender under § 53a-40 is not a conviction but, rather, an enhanced sentence.  It further stated that because the order vacating the sentence enhancement eliminated the only legal consequence of the finding that the defendant was a persistent larceny offender, there was no further practical relief that a successful appeal could provide to the defendant.  The Appellate Court rejected the defendant's claim that under the collateral consequences exception to the mootness doctrine, there was a reasonable possibility that if he were to commit a crime in the future, he could be subjected to enhanced penalties as a result of his persistent larceny offender "conviction."  The Appellate Court acknowledged that numerous collateral legal consequences, such as possible heavier penalties on subsequent convictions, are imposed as a matter of law because of a criminal conviction.  It concluded, however, that because § 53a-40 is a sentence enhancement provision and does not create an independent criminal offense, the defendant was not "convicted" under § 53a-40, and thus the collateral legal consequences that flow from a conviction are not present in this case.  The Supreme Court granted the defendant certification to appeal as to (1) whether the sole appropriate relief in the present case was the elimination of the sentence enhancement pursuant to General Statutes § 53a-40; and (2) if so, whether the Appellate Court properly dismissed the appeal as moot.