State v. Secore

485 A.2d 1280, 194 Conn. 692, 1984 Conn. LEXIS 739
CourtSupreme Court of Connecticut
DecidedDecember 25, 1984
Docket11396
StatusPublished
Cited by19 cases

This text of 485 A.2d 1280 (State v. Secore) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Secore, 485 A.2d 1280, 194 Conn. 692, 1984 Conn. LEXIS 739 (Colo. 1984).

Opinion

Santaniello, J.

The defendant was found guilty of first degree sexual assault in violation of General Statutes § 53a-70 (a) (2) and was given an enhanced sentence as a persistent dangerous felony offender under General Statutes § 53a-40 (a). He appeals, claiming that he was improperly sentenced as a persistent felony [694]*694offender because the substantive offense of which he was convicted, first degree sexual assault, was not charged in the same indictment as the persistent felony offender violation. There is no claim of error in the jury’s verdict on the sexual assault charge.

The facts relating to the defendant’s appeal are not in dispute. On August 19, 1980, a grand jury issued a two part, three count indictment charging the defendant in the first part with sexual assault in the first degree and kidnapping in the first degree, and in the second part with being a persistent felony offender, in violation of General Statutes §§ 53a-70 (a) (1),1 53a-92 [695]*695(a) (2) (A), and 53a-40 (a), respectively.2 On April 28, 1981, the state withdrew count one of the indictment and substituted an information charging the defendant with first degree sexual assault under § 53a-70 (a) (2).3 Shortly thereafter, at a trial by jury before Spada, J., the defendant was acquitted of the kidnapping charge and convicted of sexual assault in the first degree. Following the jury’s verdict the defendant motioned the trial court to dismiss part two of the indictment, claiming that he could not be sentenced as a persistent felony offender because he was convicted of a sexual assault [696]*696crime different from that set forth in part one of the indictment. After the court’s denial of the motion, the defendant pleaded nolo contendere to the persistent felony offender charge and was accordingly sentenced to a term of imprisonment of not less than fifteen years to life. In this appeal we find no error.

In order properly to address the defendant’s contention that failure to convict him under the indicted substantive offense precluded the trial court from sentencing him as a persistent felony offender, we must first determine whether the sexual assault charge contained in the indictment and that substituted by information constitute the same crime. If we find that these two charges are in fact the same, then logically we could not find error in the state’s substitution of one for the other. Our focus naturally turns to the statute under which the defendant was indicted and convicted, General Statutes § 53a-70, which at the time of the crime read in pertinent part: “sexual assault in the first degree: class b felony, (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or (2) by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.” The defendant’s indictment under subsection (1) of § 53a-70 (a) for sexual assault “by the use of force” was replaced by an information charging him under subsection (2) with sexual assault “by the threat of use of force.” We note that, although the indictment specifically charged the defendant under § 53a-70 (a) (1), prior to the time of the indictment, and at the time the crime occurred, the subsection numeral “(1)” had been removed from the statute by amendment.4 The defendant presses the claim that because [697]*697these constitute separate offenses, an indictment for one cannot be replaced by an information charging the other, but can be changed only by reindictment for the substituted offense.

The issue before us is whether § 53a-70 (a) describes two separate crimes or one crime that can be committed in two separate ways. We agree with the defendant that if sexual assault by the “use of force” and sexual assault by the “threat of use of force” as set out in § 53a-70 (a) are separate offenses, then clearly an information for one cannot be substituted for an indictment for the other. The principle that any offense carrying a life sentence must be charged by indictment is well settled in this state. See Conn. Const., art. I § 8 (“No person shall be held to answer for any offense, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury . . . .”);5 General Statutes § 54-45 (b) (“No person shall be put to plea or held to trial for any crime the punishment of which may be death or imprisonment for life unless an indictment has been found against him for such crime by a grand jury . . . .”);6 Practice Book §§ 605 (grand jury must indict for any offense punishable by death) and 616 (“A felony punishable by death or life imprisonment shall be prosecuted by indictment.”); State v. Lewis, 176 Conn. 270, 272, 407 A.2d 955 (1978) (robbery conviction raised to possible life sentence by persistent [698]*698offender conviction must be charged by indictment); State v. Holloway, 144 Conn. 295, 302, 130 A.2d 562 (1957) (indictment by grand jury required in all cases in which penalty may be life imprisonment). Since a conviction for sexual assault under § 53a-70 (a) by either the “use of force” or the “threat of use of force” in conjunction with a persistent felony offender violation carries a possible life sentence, each must be independently charged by indictment. In the present case the defendant makes no claim that he was erroneously indicted for sexual assault “by the use of force,” but argues that the substitute information charging sexual assault “by the threat of use of force” was improper. We find, however, that the language of § 53a-70 divides the statute, not into two crimes, but into two methods of committing the same crime; see State v. Wallace, 181 Conn. 237, 239, 435 A.2d 20 (1980); and that the indictment substitution made by the state in this case involved a matter of form, not substance. We conclude, therefore, that both the indictment and the substitute information charge the defendant with only one crime, sexual assault in the first degree.

Despite our conclusion that § 53a-70 (a) charges only one crime, we must still address the defendant’s additional, procedural claim that the substantive offense, sexual assault, and the persistent felony offender violation must be charged in the same indictment. The defendant argues that by charging the substantive offense in an information, the persistent felony offender and substantive violations were no longer in the same indictment and that therefore the defendant cannot be given an enhanced sentence under the persistent felony offender statute. In support of his claim the defendant relies on Practice Book §§ 605 and 616,7 and several of our decisions.

[699]*699We do not disagree with the defendant that an allegation that a person is a persistent felony offender must be included in the same indictment as a specific substantive criminal charge. “A person cannot be charged as a persistent offender under § 53a-40 in a separate . . . indictment. If the allegation of prior offenses is not included in an . . .

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Davis
185 A.3d 654 (Connecticut Appellate Court, 2018)
Hall v. Gilbert & Bennett Manufacturing Co.
695 A.2d 1051 (Supreme Court of Connecticut, 1997)
State v. Adams
662 A.2d 1327 (Connecticut Appellate Court, 1995)
State v. Chapman
632 A.2d 674 (Supreme Court of Connecticut, 1993)
State v. Tanzella
628 A.2d 973 (Supreme Court of Connecticut, 1993)
State v. Tucker
629 A.2d 1067 (Supreme Court of Connecticut, 1993)
State v. Tanzella
613 A.2d 825 (Connecticut Appellate Court, 1992)
State v. Chapman
610 A.2d 1328 (Connecticut Appellate Court, 1992)
State v. Mazzetta
574 A.2d 806 (Connecticut Appellate Court, 1990)
State v. Servello
540 A.2d 378 (Connecticut Appellate Court, 1988)
State v. Peterson
534 A.2d 1237 (Connecticut Appellate Court, 1987)
State v. Foshay
530 A.2d 611 (Connecticut Appellate Court, 1987)
State v. Scognamiglio
519 A.2d 607 (Supreme Court of Connecticut, 1987)
State v. Webb
514 A.2d 345 (Connecticut Appellate Court, 1986)
State v. Waterman
509 A.2d 518 (Connecticut Appellate Court, 1986)
State v. Franko
508 A.2d 22 (Supreme Court of Connecticut, 1986)
State v. West
491 A.2d 428 (Connecticut Appellate Court, 1985)
Circle Lanes of Fairfield, Inc. v. Fay
489 A.2d 363 (Supreme Court of Connecticut, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
485 A.2d 1280, 194 Conn. 692, 1984 Conn. LEXIS 739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-secore-conn-1984.