State v. Spielberg

150 A.3d 1118, 323 Conn. 756, 2016 Conn. LEXIS 381
CourtSupreme Court of Connecticut
DecidedDecember 20, 2016
DocketSC 19627
StatusPublished

This text of 150 A.3d 1118 (State v. Spielberg) 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. Spielberg, 150 A.3d 1118, 323 Conn. 756, 2016 Conn. LEXIS 381 (Colo. 2016).

Opinion

ESPINOSA, J.

**758In this appeal, we are asked to decide whether the defendant, Max Spielberg, is entitled to erasure of the records of his conviction of possession of less than four ounces of marijuana in violation of General Statutes (Rev. to 2009) § 21a-279 (c), despite the lack of any factual record as to the amount of marijuana he possessed at the time of his arrest. The defendant appeals from the judgment of the trial court denying his petition for an order of erasure.1 He contends that because possession of less than one-half ounce of marijuana has been decriminalized; see Public Acts 2011, No. 11-71, § 2 (P.A. 11-71); the trial court improperly concluded that he was not entitled to erasure of the records of this conviction pursuant to General Statutes § 54-142d.2 Because this court's decision in State v. Menditto , 315 Conn. 861, 110 A.3d 410 (2015), clarified Connecticut case law while this appeal was **759pending, the judgment of the trial court is reversed and the case is remanded to that court to conduct an evidentiary hearing on the defendant's petition for an order of erasure.

The record reveals the following undisputed facts. On August 18, 2010, officers from the Community Conditions Unit of the Danbury Police Department visited the defendant's residence because he was on probation and had failed to inform the Office of Adult Probation of his new address within the requisite period of time after he had moved. The officers detected a strong odor of marijuana throughout the residence and asked the defendant if he had any marijuana on his person or in the residence. He indicated that there was marijuana both on his person and in the residence. In the defendant's pockets, the officers found $44 and eight clear plastic bags containing marijuana. Elsewhere in the residence, the officers found additional marijuana, drug paraphernalia, cultivation supplies, and $380. Located near some of the drugs, drug paraphernalia, and cultivation supplies were toys and clothing that belonged to the defendant's four year old son who visited and slept at the residence. The defendant indicated that his son had left the residence moments prior to the officers' arrival.

The defendant was arrested and subsequently, on April 1, 2011, pleaded guilty to possession of less than four ounces of marijuana in violation of General Statutes (Rev. to 2009) § 21a-279 (c),3 possession of *1120marijuana **760within 1500 feet of a school in violation of General Statutes (Rev. to 2009) § 21a-279 (d), and risk of injury to a child in violation of General Statutes (Rev. to 2009) § 53-21 (a) (1).4 He received a total effective sentence of five years and one day of incarceration followed by seven years of special parole.

On July 1, 2011, P.A. 11-71 became effective, reducing the penalty for possessing less than one-half ounce of marijuana from a potential term of imprisonment and/ or a large fine to a fine of between $150 and $500. See General Statutes § 21a-279a. The enactment of P.A. 11-71 raised the question of whether the legislature had "decriminalized" the possession of small amounts of marijuana, thus entitling some defendants who had been convicted of possession of less than four ounces of marijuana in violation of § 21a-279 (c), prior to 2011, to erasure of their records by virtue of § 54-142d.5

**761The trial court considered this claim in State v. Menditto , Superior Court, judicial district of Tolland, Docket No. CR-09-0095007-S, 2012 WL 447711 (January 25, 2012) (53 Conn. L. Rptr. 415). In that case, Nicholas Menditto was arrested for possession of approximately 0.15 and 0.01 ounces of marijuana on two occasions in 2009, and subsequently pleaded guilty to two counts of possession of less than four ounces of marijuana in violation of General Statutes (Rev. to 2009) § 21a-279 (c). Id., at 416. After the legislature amended § 21a-279 through P.A. 11-71, Menditto filed petitions for erasure pursuant to § 54-142d, arguing that § 54-142d applied to his convictions because P.A. 11-71 decriminalized the possession of less than one-half ounce of marijuana. Id. The trial court concluded that P.A. 11-71 did not "decriminalize" the possession of less than one-half ounce of marijuana for purposes of § 54-142d because those convictions remained violations and, therefore, the defendant was not entitled to erasure. Id., at 417-18. The Appellate Court agreed and affirmed the judgments of the trial court. State v. Menditto , 147 Conn.App. 232, 246, 80 A.3d 923 (2013).

*1121Pursuing a similar argument as Menditto, the defendant in the present case filed a petition for erasure pursuant to § 54-142d on March 5, 2013. Consistent with the trial court's decision in State v. Menditto , supra, 53 Conn. L. Rptr. at 415, the trial court in the present case denied the defendant's petition for erasure and subsequently denied the defendant's motion for reconsideration. This appeal followed.

While this appeal was pending, the effect of P.A. 11-71 was clarified when this court decided State v. Menditto , supra, 315 Conn. at 861, 110 A.3d 410. In that case, we reversed the Appellate Court in part and concluded that P.A. 11-71 decriminalized the possession of less than one-half ounce of marijuana and, therefore, the records **762of Menditto's convictions were entitled to erasure pursuant to § 54-142d. Id., at 872-76, 110 A.3d 410.

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Related

State v. Lockhart
4 A.3d 1176 (Supreme Court of Connecticut, 2010)
State v. Menditto
80 A.3d 923 (Connecticut Appellate Court, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
150 A.3d 1118, 323 Conn. 756, 2016 Conn. LEXIS 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-spielberg-conn-2016.