State v. Burgos

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STATE OF CONNECTICUT v.

CHRISTOPHER BURGOS

(AC 38394)

DiPentima, C. J., and Beach and Alvord, Js.*

Argued September 22, 2016—officially released February 7, 2017

(Appeal from Superior Court, judicial district of

Hartford, Alexander, J. [motion for competency

examination]; Dewey, J. [motion to suppress; motion

to consolidate; judgment].)

Richard Emanuel, for the appellant (defendant).

James M. Ralls, assistant state’s attorney, with

whom, on the brief, were Gail P. Hardy, state’s attor-

ney, and Thomas Garcia, former senior assistant state’s

attorney, for the appellee (state).

Opinion

ALVORD, J. The defendant, Christopher Burgos,

appeals from the judgments of conviction, rendered

after a jury trial, of one count of sexual assault in the

first degree in violation of General Statutes § 53a-70 (a)

(2), one count of risk of injury to a child in violation of

General Statutes § 53-21 (a) (2), one count of aggravated

sexual assault of a minor in violation of General Statutes

§ 53a-70c (a) (1), and, in a separate information, one

count of attempt to escape from custody in violation

of General Statutes §§ 53a-49 (a) (2) and 53a-171 (a)

(1). On appeal, the defendant claims that the trial court

erred (1) by not sua sponte ordering pretrial and post-

trial competency hearings and canvassing him on his

purported right to testify at those hearings; (2) in joining

the sexual assault information and the escape informa-

tion for trial; (3) in denying his motion to suppress

evidence seized from his apartment; and (4) in denying

his motion to vacate his convictions for sexual assault

in the first degree and risk of injury to a child on double

jeopardy grounds. We affirm the judgment in part, and

we reverse the judgment in part.

On the basis of the evidence presented at trial, the

jury reasonably could have found the following facts.

On August 31, 2011, the eleven year old victim and

her sisters were sitting outside their home when the

defendant approached them.1 The victim did not know

the defendant, but she recalled seeing him the day

before. The defendant invited the victim and one of her

sisters to go to the store with him to get candy. The

victim agreed to go to the store with the defendant

while her sister remained behind. Once the victim and

the defendant were inside the store, however, the defen-

dant said that he did not have any money on him to

purchase anything. The defendant offered to call the

victim’s sister to ask if the victim could go with him to

his apartment nearby to get some money. The defendant

purportedly called the victim’s sister and received per-

mission for the victim to come with him, but when the

victim asked to speak to her sister, the defendant said

that her sister had already hung up the phone.

The defendant and the victim then walked to the

defendant’s apartment, which was a few blocks away

from where the victim lived. Once at the defendant’s

apartment complex, the victim told the defendant that

she wanted to wait outside on the sidewalk for him

while he retrieved his money. The defendant told the

victim to go upstairs. When she refused, he pushed her

upstairs and into his apartment on the second floor.

The victim tried to scream for help, but the defendant

covered her mouth. Once inside the defendant’s apart-

ment, the victim hit and kicked the defendant in an

attempt to get away, but she could not fight him off.2

The defendant pushed her into his bedroom and onto his

bed. Once their pants were off, the defendant retrieved a

small package from his dresser drawer. The victim again

attempted to run away from the defendant, but he

pushed her onto his bed, put a clear cream on her

vagina, and vaginally penetrated her.

After sexually assaulting the victim, the defendant

walked her home and told her that if she told anyone

what happened, he would come after her. Despite the

defendant’s threat, the victim told her mother what

happened to her once she was inside her home. The

victim’s mother called the police, and the victim

directed the police to the defendant’s apartment. The

victim was taken then to an emergency room, where a

sexual assault evidence collection kit was used.

That same day, the defendant was arrested at his

apartment. When officers initially encountered the

defendant outside of his apartment, they detained him

for investigatory purposes. While he was detained, the

defendant consented to a search of his apartment. Dur-

ing their search of the defendant’s apartment, officers

found a small packet of personal lubricant with the

corner torn off in the trash in the defendant’s bathroom

and a corner piece of foil that had been torn from the

packet of lubricant in the defendant’s bedroom. At the

police department, the defendant consented to a buccal

swab so that officers could obtain a sample of his DNA.

A comparison of the victim’s vaginal swab and the

defendant’s buccal swab confirmed the presence of the

defendant’s spermatozoa in the victim’s vaginal cavity.

For the reasons addressed later in this opinion, the

defendant was not released on bond following his

arrest. On September 26, 2012, during a pretrial hearing,

the defendant attempted to escape custody by running

for the back door of the courtroom. Judicial marshals

immediately apprehended the defendant. The state sub-

sequently charged the defendant in a separate informa-

tion with attempt to escape custody in violation of

§§ 53a-49 (a) (2) and 53a-171 (a) (1).

On October 9, 2013, a consolidated trial commenced

on a three count long form information relating to the

defendant’s sexual assault of the victim and a one count

long form information relating to the defendant’s

attempt to escape custody. On October 11, 2013, the

jury returned a guilty verdict on all counts. On June 18,

2014, the court imposed a total effective sentence of

fifty years imprisonment followed by five years special

parole for the two informations. This appeal followed.

Additional facts will be set forth as necessary.

I

The defendant raises four claims with respect to his

competency to stand trial and the process by which

he was found competent to stand trial. The following

additional facts are relevant to these claims. On Septem-

ber 1, 2011, the defendant was arraigned and appointed

counsel from the public defender’s office. During

arraignment, defense counsel noted that the defendant

was a ‘‘client’’ of a mental health facility and that ‘‘[h]e

appears to have been steady with his treatment there.’’

The court, Newson, J., stated that ‘‘mental health atten-

tion should be noted on the [mittimus].’’ During the

defendant’s first six court appearances, between Sep-

tember 1, 2011 and December 12, 2011, his courtroom

behavior was unremarkable.

On January 17, 2012, the defendant was unable to be

transported to court because ‘‘while in the custody of

[the Department of Correction] he covered himself in

feces and refused to be transported.’’ Defense counsel

moved for a competency examination pursuant to Gen-

eral Statutes § 54-56d, and the court3 granted the motion

and issued an order for a competency examination. On

March 28, 2012, the Department of Mental Health and

Addiction Services, Office of Forensic Evaluations, sub-

mitted a competency report, in which the clinical team

unanimously concluded that, while the defendant was

presently not competent to stand trial, there was a sub-

stantial probability that he could be restored to compe-

tency within the statutory time frame.4 On March 29,

2012, the court held a competency hearing, at which

the court agreed with the clinical team’s assessment,

ordered that the defendant receive treatment in an inpa-

tient setting, and continued the case until May 31, 2012.

On May 25, 2012, Dr. Mark S. Cotterell, a forensic

psychiatrist, submitted a second competency report to

the court, in which he concluded that the defendant

had not yet been restored to competency but was still

capable of restoration within the statutory time frame.

Cotterell’s report acknowledged that the defendant had

a history of mental health treatment and engaging in

behaviors indicative of mental illness. However, Cotter-

ell also observed that ‘‘there appears to be a volitional

component to [the defendant’s] presentation. It appears

that he knows more than he is willing to admit.’’ On May

31, 2012, the court held a competency reconsideration

hearing at which it concluded that the defendant was

not competent but was restorable to competency and

ordered the defendant to continue to receive treatment

in an inpatient setting. See General Statutes § 54-56d

(k).

On August 16, 2012, Cotterell submitted a third com-

petency report to the court in which he concluded that

the defendant was competent to stand trial. In that

report, Cotterell noted that the defendant had consis-

tently refused to participate in formal evaluations. How-

ever, Cotterell detailed aspects of the defendant’s

behavior that indicated that ‘‘he has the capacity to

understand his legal situation and the capacity to assist

his attorney if he were to choose to do so.’’ The report

observed that ‘‘there is definitely a volitional compo-

nent’’ to defendant’s refusal to engage in a formal evalu-

ation and that ‘‘[i]t is clear that he knows more than

he is willing to admit.’’ The report also stated that ‘‘[the

defendant] is not currently taking psychiatric medica-

tion, and he has not demonstrated any symptoms of a

serious mental illness that would require such treat-

ment.’’ On August 31, 2012, the court held a competency

reconsideration hearing to reassess the defendant’s

competency to stand trial. At the hearing, Cotterell’s

report was marked as an exhibit, and defense counsel

and the state stipulated that the defendant was compe-

tent to stand trial. The court then found that the defen-

dant was competent to stand trial based on

Cotterell’s report.

On September 26, 2012, the defendant attempted to

escape from the custody of the judicial marshals after

being brought into the courtroom. When court recon-

vened after a recess, the defendant was not present.

The court indicated that he was ‘‘not behaving in any

appropriate manner in the lockup,’’ was ‘‘spitting at the

cell door’’ and was ‘‘giving the correction officers a

difficult time . . . .’’ Defense counsel, who had repre-

sented the defendant over the last year, agreed that the

defendant ‘‘appear[ed] to be in a somewhat agitated

state.’’ The court stated that the defendant’s next court

appearance would be conducted by video conference

‘‘to minimize the further potential of any harm to any

correction[al] and/or judicial marshal staff.’’ Despite

this arrangement, the defendant’s behavior prior to the

next two court hearings prevented him from participat-

ing in those hearings, even via video conference.

Trial commenced on October 9, 2013. When court

reconvened after the first morning recess, the court5

announced that there had been ‘‘a major problem with

the defendant’’ because ‘‘[h]e decided to flush his jump-

suit down the toilet’’ and urinated on the floor. The court

directed defense counsel to find substitute clothing for

him and stated that ‘‘if [the defendant] continues to act

up, he will have handcuffs put on eventually.’’ The court

observed that ‘‘[the defendant] has been behaved in the

courtroom and I’m not concerned about his behavior in

the courtroom.’’ The court further noted that problems

arose only when he leaves the courtroom. While the

court was discussing the defendant’s conduct with

defense counsel, the defendant interjected that he was

acting out when outside the courtroom ‘‘because [the

judicial marshals] put handcuffs on me in a—in a

secured cell where they ain’t supposed to do that.’’

The court admonished the defendant that the judicial

marshals were the ones in control, not him, and gave

defense counsel an opportunity to speak with the defen-

dant. The jury was then brought back into the court

and evidence continued without the defendant being

present in the courtroom. Later that morning, after

another recess, the court observed that ‘‘[the defendant]

is back in the courtroom. . . . [He] has been very well

behaved in court. And that’s what I see and that’s what

I care about, primarily. So, there has been no problem

in the courtroom itself.’’

On October 10, 2013, the second day of trial and

the final day of evidence, the defendant testified with

respect to the escape charge. After defense counsel

declined to conduct a redirect examination of the defen-

dant, the defendant interjected: ‘‘You’re an idiot.’’ The

court excused the jury and engaged in the following

colloquy with the defendant after he was returned to

the defense table:

‘‘The Court: . . . [Y]our last comment was totally

gratuitous.

‘‘The Defendant: I’m sorry, ma’am. I’m on frustration,

I kind of lost a little control. I apologize. It’s kind of

hard, you know, to sit there and like, you know.

‘‘The Court: Your apology is accepted. You don’t have

to go any further. However, do be advised that calling

anyone [names], your attorneys, the state’s attorney,

anyone in the building, that is unacceptable, and if you

weren’t facing so much, you would be facing a contempt

charge. But you did apologize, and it’s just not worth

even considering the contempt because you are facing

so many other serious charges. All right, sir?

‘‘The Defendant: Yes.

‘‘The Court: But thank you for the apology.

‘‘The Defendant: All right.’’

The jury then was brought back into the courtroom,

and the defendant did not make any other comments

or cause any additional disruptions. On October 11,

2013, the third and final day of trial, the jury heard

closing arguments from counsel and was charged by

the court. The defendant did not make any comments

or cause any disruptions in court that day. Additional

facts will be set forth as necessary.

First, the defendant seeks Golding review6 of his

claim that the court violated his purported right to tes-

tify at a competency hearing by not canvassing him, sua

sponte, on whether he understood that by stipulating to

his competency he was waiving his right to testify at a

competency hearing. Second, the defendant claims that

the court committed plain error by permitting defense

counsel to waive the second reconsideration hearing

because § 54-56d (k) permits only the accused to waive

a reconsideration hearing. Third, the defendant claims

that the court violated his due process rights and com-

mitted plain error by accepting his stipulation to his

competency and by not ordering, sua sponte, an eviden-

tiary hearing to evaluate his competency. Finally, the

defendant claims that the court violated his due process

rights and committed plain error by failing to order, sua

sponte, a nunc pro tunc, or retrospective,7 competency

hearing to evaluate his competency at trial in light of

his erratic posttrial conduct, which we discuss in detail

later in this opinion. We reject the defendant’s claims.

We begin by setting forth the standards of review

that will guide our analysis of the defendant’s claims.

‘‘Under Golding, a defendant can prevail on a claim of

constitutional error not preserved at trial only if the

following conditions are met: (1) the record is adequate

to review the alleged claim of error; (2) the claim is

of constitutional magnitude alleging the violation of a

fundamental right; (3) the alleged constitutional viola-

tion . . . exists and . . . deprived the defendant of a

fair trial; and (4) if subject to harmless error analysis,

the state has failed to demonstrate harmlessness of the

alleged constitutional violation beyond a reasonable

doubt. In the absence of any one of these conditions, the

defendant’s claim will fail.’’ (Internal quotation marks

omitted.) State v. Dixon, 318 Conn. 495, 511, 122 A.3d

542 (2015). ‘‘The first two steps in the Golding analysis

address the reviewability of the claim, while the last

two steps involve the merits of the claim.’’ (Internal

quotation marks omitted.) State v. Britton, 283 Conn.

598, 615, 929 A.2d 312 (2007). ‘‘The appellate tribunal

is free, therefore, to respond to the defendant’s claim

by focusing on whichever condition is most relevant

in the particular circumstances.’’ (Internal quotation

marks omitted.) State v. Dixon, supra, 511.

Although Golding is a doctrine that parties invoke

to obtain review of unpreserved constitutional claims,

the plain error doctrine ‘‘is an extraordinary remedy

used by appellate courts to rectify errors committed at

trial that, although unpreserved, are of such monumen-

tal proportion that they threaten to erode our system

of justice and work a serious and manifest injustice on

the aggrieved party.’’ State v. Myers, 290 Conn. 278,

289, 963 A.2d 11 (2009). ‘‘Plain error is a doctrine that

should be invoked sparingly.’’ (Internal quotation marks

omitted.) Id. ‘‘[An appellant] cannot prevail under [the

plain error doctrine] . . . unless he demonstrates that

the claimed error is both so clear and so harmful that a

failure to reverse the judgment would result in manifest

injustice.’’ (Emphasis in original; internal quotation

marks omitted.) Id., 288.

A

The defendant first seeks Golding review of his claim

that ‘‘the trial court should have informed [him] of his

right to testify [at a competency hearing], and should

have canvassed him on that point, prior to accepting

defense counsel’s [competency] stipulation.’’ (Empha-

sis in original.) The defendant’s argument is predicated

on the assumption that he has a constitutional right to

testify at a pretrial competency hearing, that this is a

‘‘personal right’’ that can be waived only by the defen-

dant, and that only the accused personally can waive

a competency hearing as a result. Although we conclude

that the defendant’s claim is reviewable pursuant to the

first and second prongs of Golding, the defendant is

not entitled to reversal under the third prong of Golding

because he has not established that a constitutional

violation exists and deprived him of a fair trial.8

Assuming, without deciding, that there is a constitu-

tional right to testify at a pretrial competency hearing,

the outcome of this case is controlled by State v. Para-

dise, 213 Conn. 388, 567 A.2d 1221 (1990), overruled in

part on other grounds by State v. Skakel, 276 Conn. 633,

693, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S.

Ct. 578, 166 L. Ed 2d 428 (2006). In Paradise, our

Supreme Court held that the substantive right to testify

under federal constitutional law does not contain a

corollary procedural requirement that a trial court can-

vass a defendant concerning his waiver of his right to

testify unless the defendant affirmatively states that he

wishes to testify or that he did not know he could

testify. Id., 404–405; see also Ghant v. Commissioner

of Correction, 255 Conn. 1, 12 and n.10, 761 A.2d 740

(2000) (‘‘the trial court’s failure to establish that the

petitioner’s waiver of his right to testify [by pleading

guilty] was knowing, intelligent and voluntary does not

constitute a nonfrivolous ground for appeal’’ in light of

Paradise); State v. Joyner, 225 Conn. 450, 482–83, 625

A.2d 791 (1993) (declining to reconsider Paradise);

State v. Jordan, 151 Conn. App. 1, 36 and n.11, 92 A.3d

1032 (trial court may, but is not required to, canvass

defendant personally as part of its independent inquiry

into his competency to stand trial), cert. denied, 314

Conn. 909, 100 A.3d 402 (2014). In the present case, it

is undisputed that at the second reconsideration hearing

the defendant never affirmatively stated that he wished

to testify at the competency hearing or that he did not

know that he could testify. Therefore, the court had no

duty to canvass the defendant on his purported right

to testify at a competency hearing.

The defendant nevertheless urges us to distinguish

this case from Paradise because we are addressing the

purported right to testify at a competency hearing rather

than the well established right to testify at trial, which

was the subject of Paradise. The defendant reasons

that inferring a waiver of the purported right to testify

at a competency hearing is ‘‘illogical, because the defen-

dant (at that point in time) may be ‘unable to understand

the proceedings against him or her or to assist in his

or her own defense.’ ’’ Additionally, the defendant

argues that a defendant’s testimony at a competency

hearing can be particularly important because ‘‘[t]he

defendant’s demeanor and behavior in the courtroom

can often be as probative on the issue of his competence

as the testimony of expert witnesses.’’ (Internal quota-

tion marks omitted.) Although we agree that this case

is factually distinguishable from Paradise, we conclude

that Paradise is nevertheless apposite and controlling

in this circumstance. Therefore, we decline to address

this claim other than to note that ‘‘as an intermediate

appellate body, we are not at liberty to discard, modify,

reconsider, reevaluate or overrule the precedent of our

Supreme Court.’’ (Internal quotation marks omitted.)

State v. Elias V., 168 Conn. App. 321, 334 n.12, 147 A.3d

1102, cert. denied, 323 Conn. 938, A.3d (2016).

B

The defendant also claims that the court erred by

permitting defense counsel to stipulate to his compe-

tency, and thereby waive the second reconsideration

hearing, because § 54-56d (k) permits only the accused

to waive a reconsideration hearing. Because the defen-

dant failed to preserve this statutory claim at trial, he

seeks reversal pursuant to the plain error doctrine.

The application of the plain error doctrine is ‘‘appro-

priate in matters of statutory construction because the

interpretation of [a] statute and the resolution of [the]

issue does not require further fact-finding . . . .’’

(Internal quotation marks omitted.) State v. Myers,

supra, 290 Conn. 288 n.8. Nevertheless, not every statu-

tory error merits reversal under the plain error doctrine.

Id., 290 and n.10. ‘‘A trial court’s failure to comply with

a rule of criminal procedure, without more, is insuffi-

cient to require reversal for plain error.’’ Id., 290; see

also id., 295 (no plain error where ‘‘[t]here simply was

no constitutional right on which the trial court could

have trampled’’). That is, even if a defendant establishes

that the trial court failed to comply with a rule of crimi-

nal procedure, to prevail he must still establish that the

claimed error was ‘‘both so clear and so harmful that a

failure to reverse the judgment would result in manifest

injustice.’’ (Emphasis in original; internal quotation

marks omitted.) Id., 288. Our Supreme Court has held

that a violation of a rule of practice designed to protect

constitutional rights is not grounds for reversal when

the defendant was not actually deprived of his or her

constitutional rights. See, e.g., State v. Sanchez, 308

Conn. 64, 83–85, 87, 60 A.3d 271 (2013) (reversal under

the plain error doctrine not warranted where it was

‘‘exceedingly unlikely’’ that trial court’s failure to give

sua sponte an eyewitness identification instruction pur-

suant to State v. Ledbetter, 275 Conn. 534, 575, 881 A.2d

290 [2005], cert. denied, 547 U.S. 1082, 126 S. Ct. 1798,

164 L. Ed. 2d 537 [2006], harmed the defendant); State

v. Myers, supra, 289–90, 295 (reversal under plain error

doctrine not warranted based on trial court’s failure to

obtain a plea or conduct a trial, in accordance with

Practice Book § 42-2, prior to sentencing defendant as

a repeat offender because ‘‘the defendant . . . failed

to raise any doubt with respect to the validity of his

prior conviction’’ [emphasis in original]).

In the present case, we conclude that, regardless of

the meaning of § 54-56d (k), the defendant has not estab-

lished that he was deprived of his constitutional rights,

or otherwise harmed, by the court’s failure to ask him

personally whether he wanted to stipulate to his compe-

tency, and thereby waive the reconsideration hearing.

Section 54-56d codifies the constitutional standard

for legal competency and establishes the procedure for

determining whether a defendant is competent to stand

trial. State v. Dort, 315 Conn. 151, 170, 106 A.3d 277

(2014). This statutory scheme includes procedures for

initial competency evaluations as well as procedures

for determining whether a defendant who has been

found incompetent to stand trial has been restored to

competency. In particular, subsection (e) of § 54-56d,

which governs the initial competency hearing, states in

relevant part: ‘‘A defendant and the defendant’s counsel

may waive the court hearing only if the examiners, in

the written report, determine without qualification that

the defendant is competent. . . .’’ (Emphasis added.)

By contrast, subsection (k), which governs competency

reconsideration hearings, states in relevant part: ‘‘The

[reconsideration] hearing may be waived by the defen-

dant only if the report indicates that the defendant is

competent. . . .’’ (Emphasis added.)

The defendant argues that because ‘‘the word ‘defen-

dant’ as used in subsection (e) refers to the accused

person rather than his ‘counsel,’ the use of the word

‘defendant’ in subsection (k) obviously has the same

meaning.’’ Nevertheless, assuming arguendo that the

distinction noted by the defendant is meaningful and

that the court then failed to comply strictly with § 54-

56d (k), the record in this case does not establish that

the court’s failure deprived the defendant of his consti-

tutional rights or otherwise harmed him. The purpose

of § 54-56d is to ensure that the defendant is not tried,

convicted, or sentenced while legally incompetent, and

the defendant has not established that he was tried

and convicted while legally incompetent. For all of the

reasons discussed in part I C of this opinion, we con-

clude that the defendant has failed to establish that the

court violated his constitutional rights by finding him

competent to stand trial at the second reconsideration

hearing. Similarly, for all the reasons discussed in part

I D of this opinion, we conclude that the defendant has

failed to establish that there was a reasonable doubt

during trial that he was competent.

Therefore, because the defendant has failed to estab-

lish that this purported procedural error was ‘‘so harm-

ful that a failure to reverse the judgment would result

in manifest injustice,’’ he has failed to meet the exacting

standard for reversal under the plain error doctrine.

(Internal quotation marks omitted.) State v. Myers,

supra, 290 Conn. 289.

C

The defendant next seeks Golding and plain error

review of his claim that the court erroneously found him

competent to stand trial at the second reconsideration

hearing based on the third competency report. Specifi-

cally, the defendant argues that the court should have

conducted an evidentiary hearing to explore ‘‘the trou-

bling question of how the defendant’s mental health

diagnosis and treatment could change so drastically

between the first competency hearing and the final

reconsideration hearing.’’ The state responds that the

court was not required to conduct an evidentiary hear-

ing because the third competency report, which was

uncontested, provided ample evidence that the defen-

dant was competent to stand trial. We conclude that

although the defendant’s claim is reviewable under the

first and second prongs of Golding, the defendant is

not entitled to reversal under the third prong of Golding

or the plain error doctrine because he failed to establish

that the court’s finding of competency at the second

reconsideration hearing violated his constitutional

rights or constitutes a manifest injustice requiring

reversal.

‘‘The standard we use to determine whether a defen-

dant is competent under state law to stand trial . . .

is whether [the defendant] has sufficient present ability

to consult with his lawyer with a reasonable degree of

rational understanding—and whether he has a rational

as well as factual understanding of the proceedings

against him.’’ (Citations omitted; internal quotation

marks omitted.) State v. Dort, supra, 315 Conn. 170;

accord General Statutes § 54-56d (a) (‘‘a defendant is

not competent if the defendant is unable to understand

the proceedings against him or her or to assist in his

or her own defense’’); Drope v. Missouri, 420 U.S. 162,

171, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975) (a defendant

is not competent if his ‘‘mental condition is such that

he lacks the capacity to understand the nature and

object of the proceedings against him, to consult with

counsel, and to assist in preparing his defense’’). Our

courts have a ‘‘constitutional obligation, under the due

process clause, to undertake an independent judicial

inquiry . . . into a defendant’s competency to stand

trial . . . whenever [there exists] specific factual alle-

gations that, if true, would constitute substantial evi-

dence of mental impairment. . . . Substantial evidence

is a term of art. Evidence encompasses all information

properly before the court, whether it is in the form of

testimony or exhibits formally admitted or it is in the

form of medical reports or other kinds of reports that

have been filed with the court. Evidence is substantial

if it raises a reasonable doubt about the defendant’s

competency. . . . The trial court should carefully

weigh the need for [an evidentiary] hearing in each

case, but this is not to say that it should be available

on demand. The decision to grant a hearing requires

the exercise of sound judicial discretion.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Dort, supra, 170–71.

The thrust of the defendant’s argument is that

because the court knew that he had been diagnosed

previously with psychiatric conditions and prescribed

psychiatric medications, it was required to hold an evi-

dentiary hearing to explore ‘‘the dramatic change in

the defendant’s diagnosis and the total cessation of

medication.’’ As a threshold matter, it is important to

emphasize that mental illness is not the legal equivalent

of incompetency. State v. DeAngelis, 200 Conn. 224,

230, 511 A.2d 310 (1986) (‘‘Competence to stand trial,

however, is not defined in terms of mental illness. An

accused may be suffering from a mental illness and

nonetheless be able to understand the charges against

him and to assist in his own defense . . . .’’); see also

Drope v. Missouri, supra, 420 U.S. 180 (‘‘[t]here are, of

course, no fixed or immutable signs which invariably

indicate the need for further inquiry to determine fitness

to proceed’’). ‘‘The touchstone of competency, rather,

is the ability of the defendant to understand the pro-

ceedings against him and to assist in his own defense.’’

Taylor v. Commissioner of Correction, 284 Conn. 433,

452, 936 A.2d 611 (2007).

In the present case, the court found that the defen-

dant was competent to stand trial based on the third

competency report, in which Cotterell described in

detail the aspects of the defendant’s behavior that indi-

cated that he had a capacity to understand the nature

of the proceedings against him and to assist in his own

defense. For example, in the conclusions and recom-

mendations section of the report, Cotterell described

how the defendant, inter alia, ‘‘is able to pay attention

to his environment . . . and the rules of his status.

. . . He is able to communicate when he wants, and

he can use appropriate vocabulary and grammar. He can

listen to what others tell him and understand routine

instructions and guidance. . . . His long and short-

term memory functions are intact. If he wants some-

thing, he can make a plan to get it and then carry out

that plan. He can show initiative if he is sufficiently

motivated. He is able to work with others when he

perceives that he will receive a benefit from that interac-

tion. . . . He can and does pay attention to what is

going on around him. . . . He can bring information

or requests to the attention of others. . . . He knows

what he wants and he can identify things that would

help him to improve his situation. Sometimes, he makes

choices that are maladaptive, immature, and impulsive.

However, he is always aware of his options, even if he

chooses unwisely.’’

Cotterell also explained that some of the negative

aspects of the defendant’s presentation were due to the

defendant malingering to avoid the consequences of his

legal situation.9 This was not an unexpected diagnosis

either; the prior competency reports also intimated that

the defendant might be malingering. For example, the

first and second competency reports noted that while

incarcerated the defendant had a habit of threatening

suicide or engaging in self-injurious or bizarre behavior

in an attempt to change his placement to a more desir-

able housing block. The first competency report, while

concluding that the defendant’s behavior during inter-

views was indicative of psychiatric issues, also

acknowledged that ‘‘there was a volitional element to

his refusal to participate in the interview process.’’ Simi-

larly, the second competency report observed that there

was a ‘‘volitional component to [the defendant’s] pre-

sentation’’ and that ‘‘[i]t appears that [the defendant]

knows more than he is willing to admit.’’10 According

to the second competency report, the defendant’s

behavior ‘‘suggested that he was trying to find a way to

avoid facing the implications of his charges.’’ Cotterell’s

conclusion in the third competency report that the

defendant was both competent to stand trial and malin-

gering, therefore, was not as dramatic and inexplicable

as suggested by the defendant.

Finally, at the second reconsideration hearing,

defense counsel, who originally moved to have the

defendant’s competency evaluated, did not contest the

findings of the third competency report or express any

concerns about his client’s competency to stand trial.

See State v. Ouellette, 271 Conn. 740, 754, 859 A.2d 907

(2004) (‘‘[a]lthough it is true that the defendant required

treatment to restore him to competency, at no time

after the evaluation team rendered its conclusion that

the defendant was competent did defense counsel, the

state or the trial court express any concern whatsoever

about the defendant’s competence’’); United States v.

Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) (‘‘A failure by

trial counsel to indicate that the defendant had any

difficulty in assisting in preparation or in comprehend-

ing the nature of the proceedings ‘provides substantial

evidence of the defendant’s competence.’ ’’).

In sum, based on the totality of the information before

the court at the second reconsideration hearing, we

conclude that there was an adequate factual basis for

the court to determine that the defendant was compe-

tent to stand trial. Additionally, we conclude that the

court was not required to conduct an evidentiary hear-

ing at the second reconsideration hearing because there

was not substantial evidence that the defendant still

lacked legal capacity. Therefore, the defendant has

failed to meet the third prong of Golding as well as

the stringent standard for relief pursuant to the plain

error doctrine.

D

Finally, the defendant seeks Golding and plain error

review of his claim that the court violated his due pro-

cess rights by failing to order, sua sponte, a nunc pro

tunc competency hearing to evaluate his competency at

trial in light of his posttrial conduct between December,

2013 and April, 2014.11 We conclude that the defendant

is not entitled to reversal under Golding or the plain

error doctrine because he has not established that the

court’s failure to order, sua sponte, a nunc pro tunc

competency hearing violated his constitutional rights

or constitutes a manifest injustice requiring reversal.

The following additional facts are relevant to this

claim. On December 12, 2013, the defendant was sched-

uled for sentencing. When court opened that day, the

court observed the defendant’s absence. A judicial mar-

shal then explained that while the defendant was being

transported to the courthouse, ‘‘he defecated on himself

in the back of the transport van’’ and was, therefore,

transported back to the correctional facility. The court

and counsel decided to proceed with the hearing on

the defendant’s posttrial motions and to reschedule the

defendant’s sentencing. After the court heard argument

on, and denied, the defendant’s motion for a new trial

and motion to vacate, defense counsel moved to have

the defendant evaluated pursuant to General Statutes

§ 17a-566.12 Defense counsel explained that he and

cocounsel had visited the defendant the prior week, at

which time the defendant ‘‘exhibited certain behaviors,

which concerned us . . . .’’13 Specifically, defense

counsel stated that the defendant had ‘‘made certain

statements,’’ that he ‘‘had a different presentation than

he did during the trial,’’ and that his ‘‘psychiatric condi-

tion appears to be more prevalent than it did at times

during the trial . . . .’’ The court granted defense coun-

sel’s motion and ordered that the defendant be

evaluated.

On January 13, 2014, the clinical team informed the

court that they had attempted to evaluate the defendant

on two occasions but he had refused to meet with them.

The defendant was present at the next court hearing

on January 31, 2014. When the court explained to the

defendant that a competency evaluation had been

ordered, the defendant initially seemed confused about

what the court was saying, but ultimately he agreed to

participate in a competency evaluation.14

On February 28, 2014, the court held a hearing con-

cerning a motion to quash a subpoena for the defen-

dant’s mental health records, which was filed on behalf

of the Department of Mental Health and Addiction Ser-

vices. The court denied the motion because the defen-

dant had waived his confidentiality in the records at

the prior hearing. See footnote 14 of this opinion. The

court stated that while the defendant ‘‘does have some

form of a mental disability,’’ it was ‘‘not sure that it’s

a competency disability.’’ The court entered another

order for a competency evaluation of the defendant.

While discussing the appropriate continuance date with

counsel, the defendant interjected and the following

exchange occurred:

‘‘The Defendant: I’ll plead guilty of all charges.

How’s that?

‘‘The Court: You’ve already had a trial, sir. You’ve

already been found guilty of all charges.

‘‘The Defendant: Well, I plead guilty all over again.

‘‘The Court: I don’t think you—

‘‘The Defendant: Have this conversation?

‘‘The Court: —can plead guilty after you’ve been

found guilty.

‘‘The Defendant: Oh, yes I could if you’re going the

speed of light, you can.

‘‘The Court: Well, you’ve already been found guilty

by a jury and all we have to do now is sentence you,

sir. And if you want to agree to the sentence, that’s one

thing. But I don’t think—

‘‘The Defendant: Yes, I agree to the sentence.

‘‘The Court: I don’t think you’re going to agree to the

sentence the state wants.

‘‘The Defendant: Why it doesn’t make sense because

you’re on that side and I’m on this side.

‘‘The Court: That’s the way it works here. All right.

So, we’re going to have the 22nd of April, correct?

‘‘[The State’s Attorney]: The 22nd of April, that’s fine.

‘‘The Court: Yes.

‘‘[The State’s Attorney]: That’s fine with the state.

‘‘The Court: Thank you.

‘‘The Defendant: I want to save my nuts before

anything.

‘‘The Court: It’s too late to plead. The jury’s already

found you guilty, sir. We are adjourned. Thank you.’’

On April 23, 2014, Cotterell submitted a competency

report, in which he concluded that the defendant ‘‘does

not at this time have a serious mental disease or defect

that necessitates further placement at [a treatment facil-

ity],’’ and recommended that the defendant ‘‘be sen-

tenced in accordance with his conviction.’’ The

defendant did not challenge Cotterell’s report and was

sentenced on April 28, 2014. During the sentencing hear-

ing, the defendant engaged in argumentative behavior.

As the court imposed the defendant’s sentence, the

defendant’s interruptions and insults escalated. Eventu-

ally, the court ordered him to be removed from the

courtroom, found him in contempt of court, and sen-

tenced him for his contempt.15

It is well established that ‘‘[e]ven when a defendant

is competent at the commencement of his trial, a trial

court must always be alert to circumstances suggesting

a change that would render the accused unable to meet

the standards of competence to stand trial.’’ (Internal

quotation marks omitted.) State v. Johnson, 253 Conn.

1, 21, 751 A.2d 298 (2000). ‘‘[W]hen a reasonable doubt

concerning the defendant’s competency is raised, the

trial court must order a competency examination.’’

(Internal quotation marks omitted.) Id. In certain cir-

cumstances, a court may even be required to hold a

nunc pro tunc competency hearing to ensure that the

defendant was competent during an earlier proceeding.

Nevertheless, in general, nunc pro tunc competency

determinations are disfavored because there is often a

risk that the post hoc reconstruction of the defendant’s

mental state will be unduly speculative and inherently

unreliable. See Drope v. Missouri, supra, 420 U.S. 183

(noting inherent difficulties of nunc pro tunc compe-

tency determinations under even the most favorable

circumstances); Pate v. Robinson, 383 U.S. 375, 387, 86

S. Ct. 836, 15 L. Ed. 2d 815 (1966) (same); Dusky v.

United States, 362 U.S. 402, 403, 80 S. Ct. 788, 4 L. Ed.

2d 824 (1960) (same); Gold v. Warden, 222 Conn. 312,

317–18 and n.9, 610 A.2d 1153 (1992) (same); State v.

Snook, 210 Conn. 244, 253, 555 A.2d 390 (same), cert.

denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d

603 (1989).

‘‘The touchstone of competency . . . is the ability

of the defendant to understand the proceedings against

him and to assist in his own defense.’’ Taylor v. Com-

missioner of Correction, supra, 284 Conn. 452. There-

fore, a failure by defense counsel to indicate that the

defendant had any difficulty in comprehending the

nature of the proceedings or in assisting in his own

defense provides substantial evidence of the defen-

dant’s competence. United States v. Kirsh, supra, 54

F.3d 1071; see State v. Dort, supra, 315 Conn. 172; State

v. Ouellette, supra, 271 Conn. 754. Similarly, ‘‘[a] trial

court’s opinion . . . of the competency of a defendant

is highly significant’’ because ‘‘[t]he trial judge is in a

particularly advantageous position to observe a defen-

dant’s conduct during a trial and has a unique opportu-

nity to assess a defendant’s competency.’’ (Internal

quotation marks omitted.) State v. Ducharme, 134

Conn. App. 595, 602, 39 A.3d 1183, cert. denied, 305

Conn. 905, 44 A.3d 181 (2012); see also State v. Ouellette,

supra, 754. Finally, it is significant when the defendant

appears to be competent throughout the course of trial.

United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir.

1986) (‘‘failure to conduct a full competency hearing is

not a ground for reversal when the defendant appears

competent during trial’’); see State v. Caracoglia, 95

Conn. App. 95, 108–109, 895 A.2d 810 (holding that

defendant was competent to waive right to assistance

of counsel because his conduct at trial indicated that

he was, in fact, competent to stand trial), cert. denied,

278 Conn. 922, 901 A.2d 1222 (2006).

As a threshold matter, we conclude that the defen-

dant’s claim that his due process rights were violated

by the court’s failure to order sua sponte a nunc pro

tunc competency hearing is reviewable under Golding

because there is an adequate record for review and this

claim is of a constitutional magnitude. After careful

review of the record, however, we conclude that the

defendant’s posttrial conduct did not create a reason-

able doubt, in hindsight, as to his competency at trial.

Thus, the court was not obligated to order sua sponte

a nunc pro tunc competency hearing to reevaluate the

defendant’s competency at trial. Therefore, because the

defendant has not established that the court’s failure to

order, sua sponte, a nunc pro tunc competency hearing

violated his due process rights or constitutes a manifest

injustice requiring reversal, he is not entitled to reversal

under Golding or the plain error doctrine.

Our conclusion is first based on the fact that defense

counsel, who represented the defendant for approxi-

mately two years and previously had sought compe-

tency evaluations for the defendant, never raised

concerns about his client’s competency to stand trial

after he was found to be competent at the second recon-

sideration hearing. Defense counsel did raise concerns

about the defendant’s competency to be sentenced when

the defendant’s presentation became more argumenta-

tive posttrial. Notably, when defense counsel moved

for a competency hearing posttrial, he supported that

motion by highlighting the difference between the

defendant’s presentation posttrial and his presentation

at trial. Specifically, after the defendant’s conduct pre-

vented him from being transported to the courthouse

on December 12, 2013, defense counsel observed that

the defendant had ‘‘had a different presentation than

he did during the trial’’ and the defendant’s ‘‘psychiatric

condition appears to be more prevalent than it did at

times during the trial . . . .’’

It is also significant that during the trial the court did

not voice any concerns about the defendant’s compe-

tency to stand trial. Quite to the contrary, the court

expressly stated that it was ‘‘not concerned about his

behavior in the courtroom’’ and observed that ‘‘[the

defendant] has been very well behaved in court.’’

Finally, it is significant that during the trial, the defen-

dant appeared to be competent. We acknowledge that

the defendant engaged in disruptive behavior on two

occasions during trial, but neither the defendant’s

behavior nor his responses to the court’s admonitions

indicated a lack of competency. On the first day of trial,

the defendant flushed his jumpsuit down the toilet and

urinated on the floor. When asked by the court about

this behavior, he was able to articulate why he acted

that way—i.e. because the courtroom marshals ‘‘put

handcuffs on me in a—in a secured cell where they

ain’t supposed to do that.’’ On the second day of trial, the

defendant was again disruptive when he called defense

counsel ‘‘an idiot’’ for not conducting a redirect exami-

nation of him. When the court admonished the defen-

dant for his comment, however, he responded

appropriately by recognizing that ‘‘[he] kind of lost a

little control’’ and by apologizing for his remark.

Although the defendant’s conduct at trial might be

reflective of the impulsivity described by Cotterell, it

does not indicate a lack of competency.

In sum, there was significant evidence at trial that

the defendant was competent. The defendant’s posttrial

conduct did not call into question any of this contempo-

raneous evidence of competency. As defense counsel

observed, the defendant’s presentation during and after

trial was different. Therefore, because the defendant

has not established that the court’s failure to order sua

sponte a nunc pro tunc competency hearing violated

his due process rights or constitutes a manifest injustice

requiring reversal, we conclude that he is not entitled

to reversal under Golding or the plain error doctrine.

II

We next address the defendant’s claims concerning

the consolidation of the sexual assault information and

the escape information for trial. First, the defendant

claims that the court abused its discretion by granting

the state’s motion for consolidation because the evi-

dence relating to each information was not fully cross

admissible and a Boscarino factor16 was present. Sec-

ond, the defendant claims that the court unduly bur-

dened his constitutional right to remain silent in the

sexual assault case by joining that case, in which he

did not testify, with the escape case, in which he did

testify. We reject the defendant’s claims.17

The following additional facts are relevant to these

claims. On September 19, 2013, five days before the start

of jury selection, the defendant filed an anticipatory

objection to joinder of informations for trial and the

state filed a revised motion for consolidation.18 In the

revised motion to consolidate, the state argued that the

evidence in the two cases was cross admissible19 and

that no Boscarino factors were present. In his anticipa-

tory objection to the state’s motion, the defendant

argued that the motion to consolidate was untimely and

that joinder would substantially prejudice his right to

a fair trial, including his decision as to whether to testify.

On September 23, 2013, the court held a hearing at

which it addressed the state’s motion to consolidate.

On September 24, 2013, the court granted the state’s

motion.

A

The defendant claims that the court abused its discre-

tion by joining the sexual assault information and

escape information for trial because the evidence was

not cross admissible and a Boscarino factor was pre-

sent in his trial. We disagree.

We begin our analysis with a review of the law govern-

ing pretrial motions for joinder pursuant to Practice

Book § 41-19. ‘‘[I]n deciding whether to [join informa-

tions] for trial, the trial court enjoys broad discretion,

which, in the absence of manifest abuse, an appellate

court may not disturb. . . . [W]hen charges are set

forth in separate informations, presumably because

they are not of the same character, and the state has

moved in the trial court to join the multiple informations

for trial, the state bears the burden of proving that

the defendant will not be substantially prejudiced by

joinder pursuant to Practice Book § 41-19. . . . On

appeal, however, the burden shifts to the defendant to

show that joinder was improper by proving substantial

prejudice that could not be cured by the trial court’s

instructions to the jury . . . .’’ (Citations omitted; foot-

note omitted; internal quotation marks omitted.) State

v. Crenshaw, 313 Conn. 69, 83, 95 A.3d 1113 (2014).

Substantial prejudice ‘‘means something more than

that a joint trial will be less than advantageous to the

defendant,’’ and it requires the defendant to ‘‘[show]

that any prejudice from joinder may be beyond the

curative power of the court’s instructions.’’ (Internal

quotation marks omitted.) State v. Chance, 236 Conn.

31, 51, 671 A.2d 323 (1996). When resolving whether a

defendant was substantially prejudiced, we consider

whether the evidence was cross admissible and whether

any of the Boscarino factors were present. State v.

Crenshaw, supra, 313 Conn. 83. When ‘‘the evidence

would have been cross admissible in different trials

. . . we need not determine whether any of the Boscar-

ino factors was present.’’ Id., 83. ‘‘[When] evidence of

one incident can be admitted at the trial of the other

[incident], separate trials would provide the defendant

[with] no significant benefit. . . . [U]nder such circum-

stances, the defendant would not ordinarily be substan-

tially prejudiced by joinder of the offenses for a single

trial.’’ (Internal quotation marks omitted.) Id., 83–84;

see, e.g., State v. Atkinson, 235 Conn. 748, 765, 670 A.2d

276 (1996) (defendant was not substantially prejudiced

by joinder of murder charge and escape charge where

evidence concerning the escape charge would be admis-

sible in a separate murder trial as evidence of conscious-

ness of guilt). ‘‘When evidence is not cross admissible,

several factors identified in State v. Boscarino, 204

Conn. 714, 721–24, 529 A.2d 1260 (1987), are used to

determine whether the defendant has suffered substan-

tial prejudice. These factors include: (1) whether the

charges involve discrete, easily distinguishable factual

scenarios; (2) whether the crimes were of a violent

nature or concerned brutal or shocking conduct on the

defendant’s part; and (3) the duration and complexity of

the trial. . . . If any or all of these factors are present, a

reviewing court must decide whether the trial court’s

jury instructions cured any prejudice that might have

occurred.’’ (Internal quotation marks omitted.) State v.

Crenshaw, supra, 83–84 n.8.

With the foregoing legal principles in mind, we first

address whether the evidence of the sexual assault and

the escape was cross admissible. Evidence is cross

admissible for the purposes of joinder when evidence

from one information would be admissible in a separate

trial on the other information, and vice versa. In the

present case, evidence of the defendant’s attempt to

escape custody would have been admissible as evidence

of consciousness of guilt in a separate trial on the sexual

assault information. See State v. Figueroa, 257 Conn.

192, 196, 777 A.2d 587 (2001) (‘‘[f]light when unex-

plained, tends to prove a consciousness of guilt’’ [inter-

nal quotation marks omitted]); State v. Atkinson, supra,

235 Conn. 765 (‘‘[e]vidence concerning the escape

charge could properly have been admitted in a separate

trial for the murder charge because escape indicates

consciousness of guilt’’). Likewise, evidence that the

defendant was in custody and charged with a felony

would have been admissible in a separate trial on the

escape information because those are elements of the

offense. See General Statutes § 53a-171 (‘‘[a] A person is

guilty of escape from custody if such person [1] escapes

from custody . . . . [b] If a person has been arrested

for, charged with or convicted of a felony, escape from

such custody is a class C felony . . . .’’). However, the

details surrounding the sexual offense charges—i.e. the

fact that the defendant lured an eleven year old into

his apartment so that he could sexually assault her by

vaginal penetration—might not have been admissible

in a separate trial on the escape information.20 See Conn.

Code Evid. § 4-3. It is unclear from our Supreme Court’s

precedent whether evidence must be fully cross admis-

sible to permit joinder. Compare State v. Crenshaw,

supra, 313 Conn. 84 (‘‘[w]e consistently have found join-

der to be proper if we have concluded that the evidence

of other crimes . . . would have been cross admissible

at separate trials’’ [emphasis added; internal quotation

marks omitted]) with State v. Atkinson, supra, 765

(‘‘Where evidence of one incident can be admitted at

the trial of the other [incident], separate trials would

provide the defendant no significant benefit. It is clear

that, under such circumstances, the defendant would

not ordinarily be substantially prejudiced by joinder

of the offenses for a single trial.’’ [Emphasis altered;

internal quotation marks omitted.]).

Assuming arguendo that the evidence in the two cases

must be fully cross admissible and was not in this case,

we next address whether any of the Boscarino factors

were present at the consolidated trial. See State v. Cren-

shaw, supra, 313 Conn. 83 n.8. The defendant argues

that the second Boscarino factor was present at his

consolidated trial and he suffered substantially preju-

dice in the sexual assault case as a result.21 In particular,

he argues that ‘‘[o]nce the cases were joined, the jury

was more likely to conclude (based on evidence of the

attempt to escape)22 that the defendant was prone to

physical violence and thus more likely to have used

physical force in committing an ‘aggravated’ sexual

assault of a minor.’’ (Footnote added.) The defendant’s

analysis misapplies the second Boscarino factor. The

second Boscarino factor focuses on whether the brutal

or shocking nature of the defendant’s conduct in one

case might compromise the jury’s ability to consider

fairly the charges against him in the other case. State

v. Boscarino, supra, 204 Conn. 723. In the present case,

it is undisputed that the defendant’s attempt to escape

was not of a brutal or shocking nature capable of com-

promising the jury’s ability to consider fairly the charges

against him in the sexual assault case.23

Moreover, the defendant’s analysis also overlooks

the fact that at the time the state filed its motion for

consolidation, neither the parties nor the court knew

that the victim would testify that the defendant used

some physical force to sexually assault her.24 When

reviewing a trial court’s pretrial decision to join cases

we focus on the trial court’s understanding of what

evidence could be presented at trial, not what evidence

was actually presented at trial.25 The record reveals

that at the time the state filed its motion to consolidate,

the primary basis for the sexual offense charges was

the age difference between the defendant and the victim

and the fact that the defendant used deception to lure

the victim to his apartment.26 The state did not intend

to, nor did it need to, present evidence of physical force

to prove ‘‘aggravated’’ sexual assault of a minor. Thus,

it was reasonable for the court to conclude that any

risk that the jury would improperly consider evidence

that the defendant used some physical force in his

attempt to escape in its deliberations on the aggravated

sexual assault of a minor charge could be cured with

a proper limiting instruction. See State v. Chance, supra,

236 Conn. 38.

‘‘[W]hether a joint trial will be substantially prejudi-

cial to the defendant’s rights means something more

than that it will be less advantageous to [him].’’ (Internal

quotation marks omitted.) State v. Perez, 147 Conn.

App. 53, 98 n.42, 80 A.3d 103 (2013), aff’d, 322 Conn.

118, 139 A.3d 654 (2016); accord State v. Chance, supra,

236 Conn. 51–52. Because the defendant has failed to

establish that he was substantially prejudiced by a con-

solidated trial, we conclude that the court did not abuse

its discretion by granting the state’s motion to con-

solidate.

B

The defendant’s final claim concerning the consolida-

tion of the informations for trial is that the court violated

his right to remain silent, as guaranteed by the fifth and

fourteenth amendments to the federal constitution,27 by

denying his motion for a new trial after he testified as

to the escape charge but remained silent as to the sexual

assault charges. Specifically, the defendant argues that

‘‘the improper joinder effectively undermined [his] val-

ued right to remain silent—more precisely, his right to

insure that no adverse inferences were drawn from the

exercise of that constitutional privilege.’’ We disagree.

The following additional facts are relevant to this

claim. On September 19, 2013, the defendant filed an

anticipatory objection to the state’s motion to consoli-

date, in which he argued, inter alia, that joinder would

substantially prejudice his right to a fair trial, including

his decision to testify. On September 23, 2013, the court

held a hearing concerning the state’s motion to consoli-

date. At that hearing, the defendant never addressed

how joinder would affect his decision to testify as to

the sexual assault charges or the escape charges. Trial

commenced on October 9, 2013. In its preliminary

instructions to the jury, the court explained that the

trial would involve ‘‘two separate informations’’ that

had been ‘‘consolidated for purposes of the trial only.’’

The court further emphasized that the two informations

must be considered separately. That day, the state pre-

sented evidence pertaining only to the sexual assault

charges.

At the start of the second day of trial, the court

reminded the jurors that ‘‘there are two separate sets

of factors that are being considered, two separate infor-

mations’’ and that they were ‘‘still receiving information

concerning the first set, the allegations of what hap-

pened’’ at the location where the victim was sexually

assaulted. After presenting the testimony of two more

witnesses, the state rested in the sexual assault case.

The court then reminded the jurors that ‘‘the defendant

in this case is charged in two separate informations’’

and that ‘‘the state just concluded the evidence on the

first information . . . .’’ The court further reiterated

that ‘‘[t]he fact that the cases were consolidated for

trial does not mean anything other than they were con-

solidated for trial. It’s the same defendant in both. And

. . . the defendant is entitled to and has to be given

separate consideration for each.’’ The jury was then

excused for a recess.

When court resumed, the court asked the defendant

outside the presence of the jury whether he would be

testifying ‘‘for the first case.’’ The defendant responded

that he would not, and the court canvassed the defen-

dant on his election not to testify. The jury then reen-

tered the courtroom, and the defense rested as to the

sexual assault case. When the parties were ready to

proceed with the escape case, the court reminded the

jurors that ‘‘this is a separate count’’ and that the evi-

dence being presented related to only the second infor-

mation. After the state called two judicial marshals as

witnesses and had an evidentiary stipulation read to

the jury, it rested. The defendant then indicated that

he wished to testify concerning the escape case, and

the court canvassed the defendant concerning that deci-

sion. The defendant did not renew his objection to the

consolidation of the cases for trial based on his decision

to testify as to the escape charge but not the sexual

assault charges. After the defendant testified concern-

ing the escape charge, the defense rested.

On October 11, 2013, the court charged the jury.

Throughout the charge, the court emphasized that the

trial consisted of two separate informations that had

been ‘‘consolidated for the convenience of trial,’’ and

that ‘‘the defendant is entitled to and must be given

. . . a separate and independent determination of

whether he is guilty or not guilty as to each of the

counts.’’ Concerning the defendant’s decision to testify

concerning the escape charge but not the sexual assault

charges, the court gave the following instruction:

‘‘There are two separate sets of allegations, the [sexual

assault] charges and the [escape] charges. The defen-

dant has not testified in the [sexual assault] case. An

accused person has the option to testify or not to testify

at the trial. He is under no obligation to testify and he

has a constitutional right not to testify. You must draw

no unfavorable inferences from the defendant’s choice

not to testify, that is with reference to the [sexual

assault] charges.’’

After his conviction, the defendant filed a motion for

a new trial based, in part, on the consolidation of the

two cases. On December 12, 2013, the court held a

hearing on the defendant’s motion for a new trial. At that

hearing, the defendant argued that the consolidation of

the cases ‘‘impacted [his] testimony in a negative way’’

because ‘‘there is at least a possibility that one or more

of the jurors held it against [him] for not testifying on

that second trial.’’

‘‘It long has been recognized that joinder of unrelated

criminal charges can cause [substantial] prejudice when

it ‘embarrasses or confounds an accused in making his

defense.’ ’’ State v. Perez, 322 Conn. 118, 134, 139 A.3d

654 (2016). However, ‘‘[substantial] prejudice will not

invariably result from a decision to testify selectively.

Consequently, [a]n accused’s election to testify on some

but not all of the charges on trial does not automatically

require a severance. . . . Rather, the matter remains

within the trial court’s discretion . . . .’’ (Citation omit-

ted; internal quotation marks omitted.) Id., 135. ‘‘[N]o

need for a severance exists until the defendant makes

a convincing showing that he has both important testi-

mony to give concerning one count and [a] strong need

to refrain from testifying on the other. In making such

a showing, it is essential that the defendant present

enough information—regarding the nature of the testi-

mony he wishes to give on one count and his reasons

for not wishing to testify on the other—to satisfy the

court that the claim of prejudice is genuine and to

enable it intelligently to weigh the considerations of

economy and expedition in judicial administration

against the defendant’s interest in having a free choice

with respect to testifying.’’ (Internal quotation marks

omitted.) Id., 135–36. On appeal, the defendant bears

the burden of proving that joinder substantially preju-

diced his right to remain silent. See State v. Crenshaw,

supra, 313 Conn. 83. ‘‘[T]his means something more

than that a joint trial [was] less than advantageous to

the defendant,’’ and it requires the defendant to ‘‘[show]

that any prejudice from joinder may be beyond the

curative power of the court’s instructions.’’ (Internal

quotation marks omitted.) State v. Chance, supra, 236

Conn. 51; accord State v. Perez, supra, 134–35.

In the present case, the defendant has failed to show

that the consolidation of the two cases for trial substan-

tially prejudiced his right to remain silent. The jurors

were certainly aware that the trial consisted of two

separate and distinct cases that were joined only for

judicial economy. They were also undoubtedly aware

that they must consider those cases in a separate and

distinct manner. Indeed, the court expressly instructed

the jurors that they could not commingle the evidence

from the two cases or draw an unfavorable inference

from the defendant’s decision not to testify as to the

sexual assault charges. It is well established that ‘‘[t]he

jury is presumed, in the absence of an indication to the

contrary, to have followed the instructions of the trial

court.’’ (Internal quotation marks omitted). State v.

Chance, supra, 236 Conn. 51.

Therefore, we conclude that the defendant has failed

to establish that he was substantially prejudiced by

the consolidation of the sexual assault information and

escape information for trial.

III

The defendant next seeks Golding review of his claim

that the court violated his rights under the fourth

amendment to the United States constitution by denying

his motion to suppress evidence obtained during a

search of his apartment.28 We conclude that the defen-

dant’s claim is unreviewable under the first prong of

Golding because the record is inadequate for review.

The following additional facts are relevant to this

claim. On August 31, 2011, officers searched the defen-

dant’s apartment with his written consent. At the time

the defendant gave his consent for the search, he was

being detained for investigative purposes. He was not

given Miranda warnings29 prior to giving consent. Dur-

ing the search of the defendant’s apartment, officers

found a small packet of lubricant in the trash in the

defendant’s bathroom and a corner piece of foil that

had been torn from the packet of lubricant in the defen-

dant’s bedroom.

On September 19, 2013, the defendant filed a motion

to suppress ‘‘any and all statements alleged to have

been made by the defendant to or in the presence of

any law enforcement authorities and to further suppress

all evidence, tangible and intangible, obtained directly

or indirectly derived from said statements.’’ On October

7, 2013, the court conducted an evidentiary hearing

regarding the defendant’s motion to suppress. At the

hearing, the defendant argued, inter alia, that the offi-

cers violated his right against self-incrimination under

the fifth amendment to the United States constitution

by asking him to sign the consent to search form while

in custody. The defendant reasoned that the officers’

request for consent constituted an ‘‘interrogation’’ for

the purposes of Miranda because ‘‘the police should

[have known] that asking [the defendant] to sign [the

consent to search] form [was] reasonably likely to elicit

an incriminating response.’’30 Although the defendant

cited the fourth amendment in his motion to suppress,

he did not make any substantive arguments that sup-

pression was required under the fourth amendment in

that motion or at the evidentiary hearing.

On October 8, 2013, the court orally denied the defen-

dant’s motion to suppress. On October 9, 2013, the first

day of trial, the court memorialized its ruling briefly on

the record during a recess. In relevant part, the court

stated: ‘‘There was a motion to suppress that was filed

by defense counsel and I’d given an oral ruling yesterday

that the motion to suppress was denied. There was

consent for the apartment search.’’ The remainder of

the court’s brief oral ruling addressed its denial of the

motion to suppress with respect to the buccal swab

taken from the defendant with his consent. The court

concluded its oral ruling by stating: ‘‘I will put this all

in writing.’’ The court, however, did not issue a written

memorandum of decision. After the defendant’s convic-

tions, the defendant renewed his original suppression

claim in his motion for a new trial, which the court

denied.

On appeal, the defendant now claims that the court

violated his rights under the fourth amendment by deny-

ing his motion to suppress. Specifically, the defendant

claims that the fourth amendment requires law enforce-

ment to provide Miranda warnings before obtaining

consent to search from an individual that is in custody.

Alternatively, the defendant claims that he did not

knowingly and voluntarily consent to the search of his

apartment. Because the defendant failed to preserve

his fourth amendment claim, he seeks Golding review.

‘‘The first Golding requirement is that the record be

adequate to review the alleged claim of [constitutional]

error . . . . The defendant bears the responsibility for

providing a record that is adequate for review of his

claim of constitutional error. If the facts revealed by

the record are insufficient, unclear or ambiguous as to

whether a constitutional violation has occurred, we will

not attempt to supplement or reconstruct the record,

or to make factual determinations, in order to decide

the defendant’s claim.’’ (Citation omitted; internal quo-

tation marks omitted.) State v. Hampton, 293 Conn.

435, 443–44, 988 A.2d 167 (2009).

Although the court orally denied the defendant’s

motion to suppress, it did not issue a written memoran-

dum of decision or sign the transcript of its oral deci-

sion, pursuant to Practice Book § 64-1 (a). ‘‘While we do

not condone the court’s failure to comply with [Practice

Book § 64-1 (a)], and would decline in most instances

to search the transcript to ascertain the factual basis

in support of the trial court’s ruling, we would not

[ordinarily] exalt form over substance if the deficiency

were of a technical nature.’’ (Internal quotation marks

omitted.) State v. Beliveau, 52 Conn. App. 475, 480, 727

A.2d 737, cert. denied, 249 Conn. 920, 733 A.2d 235

(1999). In the present case, however, the inadequacy

of the record is not of a technical nature. The record

is devoid of any specific factual findings by the court

concerning its ruling on the defendant’s motion to sup-

press. Although the court stated that ‘‘[t]here was con-

sent for the apartment search,’’ the defendant did not

contest the validity of his consent in his motion to

suppress or at the suppression hearing. ‘‘[I]t is well

established that as an appellate tribunal, we do not find

facts.’’ State v. Daly, 111 Conn. App. 397, 400, 960 A.2d

1040 (2008), cert. denied, 292 Conn. 909, 973 A.2d 108

(2009). It is not this court’s role to make a determina-

tion, sua sponte, of whether the defendant’s consent to

search was knowing and voluntary and when, if ever,

the defendant received Miranda warnings. It is only

for this court to decide ‘‘whether [the legal conclusions

of the trial court] are legally and logically correct and

whether they find support in the facts set out in the

memorandum of decision [or the signed transcript of

the oral ruling] . . . .’’ State v. Jenkins, 298 Conn. 209,

222, 3 A.3d 806 (2010).

Therefore, because any decision made by us concern-

ing the validity of the defendant’s consent to search

would be entirely speculative without the necessary

factual and legal conclusions furnished by the trial

court, it is unreviewable under the first prong of Gold-

ing. State v. Duteau, 68 Conn. App. 248, 254, 791 A.2d

591 (record inadequate for review of fourth amendment

suppression claim where trial court did not issue memo-

randum of decision, sign the transcript, or make specific

factual findings concerning issues on appeal), cert.

denied, 260 Conn. 939, 835 A.2d 58 (2002); State v. Rios,

30 Conn. App. 712, 715–16, 622 A.2d 618 (1993) (same);

see State v. Beliveau, supra, 52 Conn. App. 481–82 (fifth

amendment claim); see also State v. Young, 76 Conn.

App. 392, 409, 819 A.2d 884 (record inadequate to review

of motion to suppress in-court identification where trial

court did not issue a memorandum of decision, sign

the transcript, or ‘‘make any findings whatsoever

regarding the suggestiveness of the arraignment pro-

ceedings’’), cert. denied, 264 Conn. 912, 826 A.2d

1157 (2003).

IV

The defendant’s final claim on appeal is that the trial

court improperly denied his motion to vacate on the

ground that his convictions and cumulative sentences

for the three sexual offenses violated his right against

double jeopardy, as guaranteed by the fifth and four-

teenth amendments to the United States constitution.31

Specifically, the defendant argues that because sexual

assault in the first degree and risk of injury to a child

are the ‘‘same offense’’ as aggravated sexual assault of

a minor, his convictions for sexual assault in the first

degree and risk of injury should have been vacated

prior to sentencing. The state responds that, although

sexual assault in the first degree and risk of injury are

factually and legally the same offense as aggravated

sexual assault of a minor in the present case, they are

not the ‘‘same offense’’ for the purposes of double jeop-

ardy because the legislature intended to authorize

cumulative punishments for individuals convicted of

aggravated sexual assault of a minor and the charged

predicate offense(s). We agree with the defendant that

his cumulative convictions and sentences for aggra-

vated sexual assault of a minor, sexual assault in the

first degree, and risk of injury to a child violates dou-

ble jeopardy.

A

We begin our analysis by addressing the defendant’s

claim that sexual assault in the first degree and risk of

injury to a child are the ‘‘same offense’’ as aggravated

sexual assault of a minor for double jeopardy purposes.

The double jeopardy clause ‘‘prohibits not only multi-

ple trials for the same offense, but also multiple punish-

ments for the same offense in a single trial. . . . Double

jeopardy analysis in the context of a single trial is a

two-step process. First, the charges must arise out of the

same act or transaction. Second, it must be determined

whether the charged crimes are the same offense. Multi-

ple punishments are forbidden only if both conditions

are met. . . . Traditionally we have applied the

Blockburger test32 to determine whether two statutes

criminalize the same offense, thus placing a defendant

prosecuted under both statutes in double jeopardy:

[W]here the same act or transaction constitutes a viola-

tion of two distinct statutory provisions, the test to be

applied to determine whether there are two offenses

or only one, is whether each provision requires proof

of a fact which the other does not.’’ (Footnote added;

internal quotation marks omitted.) State v. Gonzalez,

302 Conn. 287, 315–16, 25 A.3d 648 (2011). ‘‘In conduct-

ing this inquiry, we look only to relevant statutes, the

information, and the bill of particulars, not to the evi-

dence presented at trial.’’ (Internal quotation marks

omitted.) State v. Palmer, 206 Conn. 40, 52, 536 A.2d

936 (1988).

In the present case, it is undisputed that the sexual

offenses arose out of the same transaction, i.e. the sex-

ual assault of the victim on August 31, 2011. It is also

undisputed that sexual assault in the first degree and

risk of injury to a child are legally the ‘‘same offense’’

as aggravated sexual assault of a minor under the

Blockburger test when, as here, they are charged as

predicate offenses for aggravated sexual assault of a

minor.33 See State v. Greco, 216 Conn. 282, 292, 579 A.2d

84 (1990) (holding that first degree robbery and first

degree burglary are the ‘‘same offense’’ as felony murder

under the Blockburger test when the felony murder

count alleges ‘‘robbery and burglary’’ as predicate

offenses).

Our inquiry continues, however, as ‘‘the Blockburger

test creates only a rebuttable presumption of legislative

intent, [and] the test is not controlling when a contrary

intent is manifest.’’ (Internal quotation marks omitted.)

State v. Bernacki, 307 Conn. 1, 23, 52 A.3d 605 (2012),

cert. denied, U.S. , 133 S. Ct. 1804, 185 L. Ed. 2d

811 (2013). The ‘‘[d]ouble jeopardy protection against

cumulative punishments is only designed to ensure that

the sentencing discretion of the courts is confined to

the limits established by the legislature. . . . Where

. . . a legislature specifically authorizes cumulative

punishment under two statutes, regardless of whether

those two statutes proscribe the same conduct under

Blockburger, a court’s task of statutory construction is

at an end and the prosecutor may seek and the trial

court or jury may impose cumulative punishment under

such statutes in a single trial. . . . The Blockburger

test is a rule of statutory construction, and because it

serves as a means of discerning [legislative] purpose

the rule should not be controlling where, for example,

there is a clear indication of contrary legislative intent.

. . . The language, structure and legislative history of

a statute can provide evidence of this intent.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Greco, supra, 216 Conn. 293; accord Missouri v. Hunter,

459 U.S. 359, 368, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983)

(stating that the Blockburger test ‘‘is not a constitutional

rule requiring courts to negate clearly expressed legisla-

tive intent’’).34

In the present case, the burden is on the state to

rebut the presumption created under the Blockburger

test that aggravated sexual assault of a minor is the

same offense as sexual assault in the first degree and

risk of injury to a child for the purposes of double

jeopardy. State v. Alvaro F., 291 Conn. 1, 13 n.14, 966

A.2d 712, cert. denied, 558 U.S. 882, 130 S. Ct. 200, 175

L. Ed. 2d 140 (2009). In particular, the burden is on the

state to present evidence of clear legislative intent to

specifically authorize cumulative punishments for a

conviction under § 53a-70c and the underlying predicate

offense(s). If this court concludes that it is ambiguous

whether the legislature intended to authorize cumula-

tive punishments, the state cannot prevail. See State v.

Wright, 319 Conn. 684, 692 n.3, 127 A.3d 147 (2015).

When divining legislative intent in the double jeop-

ardy context, our Supreme Court has considered sev-

eral factors, including: (1) whether the statutes were

‘‘designed to protect separate and distinct interests of

society’’; (internal quotation marks omitted) State v.

Bernacki, supra, 307 Conn. 29; see also State v. Greco,

supra, 216 Conn. 295–96; (2) whether the statute in

question references other statutory offenses; State v.

Greco, supra, 294–95; (3) whether the statute in question

‘‘set[s] forth a separate penalty rather than using a multi-

plier of the penalty for another offense’’; id., 294; (4) the

presence of language expressly prohibiting cumulative

punishments; id., 295; (5) the placement of each offense

within the General Statutes; State v. Braswell, 42 Conn.

App. 264, 271, 679 A.2d 407 (1996), appeal dismissed, 243

Conn. 248, 701 A.2d 1057 (1997); and (6) the legislative

history of the challenged statute; State v. Greco,

supra, 296–97.

In the present case, the statutes at issue are designed

to protect the same interests of society; each of the

charged statutory provisions strives to protect children

from inappropriate sexual contact. Section 53a-70c in

particular furthers this purpose by enabling the state

to seek enhanced, mandatory penalties for sexual

offenders of children when the victim is under the age

of thirteen and an enumerated aggravating factor is

present.35 Cf. State v. Greco, supra, 216 Conn. 296–98

(holding that robbery and burglary are not the ‘‘same

offense’’ as felony murder even when they are charged

as predicate offenses because each offense has a dis-

tinct statutory purpose: ‘‘An obvious purpose of the

felony murder statute, or any murder statute, is to pro-

tect human life. . . . In contrast, [t]he basic rationale

[of the robbery statutes] is protection against the terror

of the forcible taking . . . while the primary rationale

of the crime of burglary is protection against invasion

of premises likely to terrorize occupants.’’ [Citations

omitted; internal quotation marks omitted.]).

The state responds that ‘‘while these statutes may

be ‘closely linked,’ the overlap is ‘not determinative’

because the harms targeted [by these statutes] . . .

‘do not necessarily coexist’ in every case.’’ The state

analogizes this case to State v. Wright, supra, 319 Conn.

684. In Wright, our Supreme Court addressed whether

the double jeopardy clause prohibited a defendant from

being convicted and sentenced for two counts of aggra-

vated sexual assault of a minor, which arose from the

same transaction but charged different subsections of

§ 53a-70c. Id., 685–86. It was undisputed in Wright that

the two counts were factually and legally distinct

offenses, and, therefore, that the burden was on the

defendant to rebut the Blockburger presumption. Id.,

690–92. In concluding that the defendant failed to rebut

the Blockburger presumption, the Supreme Court

observed that the two subsections at issue targeted

distinct harms: subsection (1) addresses the abduction

and restraint of child victims, whereas subsection (6)

addresses the targeting of children by strangers that

are sexual predators. Id., 695. Consequently, ‘‘the harms

targeted in the two subdivisions . . . do not necessar-

ily coexist in every aggravated sexual assault of a

minor.’’ Id.

In the present case, the state argues that the three

statutes at issue also target separate and distinct soci-

etal harms: § 53-21 (a) (2) targets ‘‘contact with intimate

parts in a sexual and indecent manner likely to impair

health or morals’’; § 53a-70 (a) (2) targets ‘‘sexual inter-

course when the actor [is] at least two years older’’

than a victim that is under thirteen; and § 53a-70c (a)

(1) targets situations where a ‘‘victim under thirteen

[is] kidnapped or restrained.’’ Because the evils of each

offense ‘‘ ‘do not necessarily coexist’ ’’ in every aggra-

vated sexual assault of a minor prosecution, the state

argues that they cannot be viewed as the same offense

for double jeopardy purposes. The state’s argument,

however, ignores the fact that §§ 53-21 (a) (2) and 53a-

70 (a) (2) are essential elements of § 53a-70c when they

are charged as predicate offenses. Therefore, the harms

targeted by §§ 53-21 (a) (2) and 53a-70 (a) (2) necessar-

ily coexist in every § 53a-70c prosecution in which they

are alleged as predicate offenses, which distinguishes

this case from Wright.

Turning to the next factor, it is unclear from the

language of the relevant statutes whether the legislature

intended to specifically authorize cumulative punish-

ments. As we previously stated, § 53a-70c requires the

state to prove that a predicate offense has been commit-

ted, and, to that end, it expressly identifies § 53-21 (a)

(2) and § 53a-70 as qualifying predicate offenses, which

suggests that they are greater and lesser offenses. Cf.

Garrett v. United States, 471 U.S. 773, 779–81, 105 S.

Ct. 2407, 85 L. Ed. 2d 764 (1985) (finding evidence of

intent to authorize cumulative punishments in the fact

that the statute in question contained no reference to

other statutory offenses). However, General Statutes

§ 53a-35a (3) sets forth a separate and distinct penalty

from other felony offenses for a conviction under § 53a-

70c.36 Our inquiry into the legislature’s intent, however,

is somewhat confounded by the absence of language

expressly prohibiting cumulative punishments for con-

duct that violates § 53a-70c because the legislature has

employed such language in at least nineteen other crimi-

nal statutes,37 including the criminal statutes for aggra-

vated sexual assault in the first degree38 and sexual

assault in the third degree with a firearm.39 ‘‘Since the

legislature has shown that it knows how to bar multiple

punishments expressly when it does not intend such

punishment, the absence of similar language [in a crimi-

nal statute] provides evidence that the legislature

intended cumulative punishment.’’ State v. Greco, supra,

216 Conn. 295.

We turn therefore to the legislative history of § 53a-

70c, which reveals that its enactment was the product

of a compromise between legislators that wanted to

limit judicial discretion when sentencing sexual offend-

ers of children and legislators that wanted to safeguard

prosecutorial discretion and the plea bargaining pro-

cess. That compromise resulted in what legislators

referred to as the ‘‘new crime’’ of aggravated sexual

assault of a minor, which enabled, but did not require,

prosecutors to pursue enhanced, mandatory sentences

for sexual offenders of children when, in their judgment,

the facts and circumstances of the particular case war-

ranted a significant mandatory minimum sentence.

Overall, although the legislative history of § 53a-70c

reveals a clear legislative intent to specifically authorize

enhanced, mandatory penalties, it does not reveal a

clear legislative intent to specifically authorize cumula-

tive punishments for § 53a-70c and its predicate

offenses.

Section 53a-70c is part of a series of statutes com-

monly referred to as Jessica’s Law. The impetus for

Jessica’s Law was the tragic murder of nine year old

Jessica Lunsford, who was abducted from her Florida

home by a registered sex offender and sexually

assaulted before being buried alive. M. Bell, ‘‘Grassroots

Death Sentences?: The Social Movement for Capital

Child Rape Laws,’’ 98 J. Crim. L. & Criminology 1, 16–17

(Fall 2007); T. Aguayo, ‘‘Sex Offender Guilty of Rape and

Murder of Florida Girl,’’ The New York Times (March 8,

2007), available at http://www.nytimes.com/2007/03/08/

us/08verdict.html (last visited January 23, 2017). One

of the many initiatives of Jessica’s Law is to create

higher mandatory penalties for first and second time

sexual offenders of children to ensure that they are

unable to reach future victims. M. Bell, supra, 17.

Jessica’s Law was first proposed in Connecticut in

2006. The original bill proposed amending the sentenc-

ing provisions of certain sexual offenses40 to create high

mandatory minimum sentences when the victim was

under the age of thirteen.41 The bill did not alter the

legal structure of the underlying sexual offenses.42 Some

legislators were concerned, however, that the proposed

bill would hamper the plea bargaining process and pros-

ecutors’ ability to pursue a lesser offense, and lesser

penalties, if the facts and circumstances of the case did

not warrant a high mandatory minimum sentence.43 In

particular, they noted the wide array of sexual offenses

encompassed by the bill and the fact that the bill (with-

out qualification) required a high mandatory minimum

sentence when the victim was under thirteen years old.44

Although the proponents of the original bill maintained

that prosecutors would retain their discretion in charg-

ing,45 the bill was held over to the next legislative

session.

In 2007, a revised bill was introduced. To address the

concerns raised about the original bill, the revised bill

consolidated the enhanced penalties for the sexual

assault of a child under the age of thirteen into the

‘‘new crime’’ of aggravated sexual assault of a minor.46

Despite the new nomenclature, the legislature contin-

ued to treat this provision as a sentencing enhancement

during legislative hearings. In particular, proponents of

the bill touted this new crime as a ‘‘tool’’ that could

be utilized by prosecutors to secure a high mandatory

minimum sentence when the facts and circumstances

of the case warranted it.47 The revised bill was ultimately

passed and codified, in relevant part, at § 53a-70c.

It is clear from the legislative history of § 53a-70c

that the legislature wanted to authorize high mandatory

minimum sentences for sexual offenders of children.

Initially, the legislature sought to obtain this result by

amending only the sentencing provisions of each rele-

vant statute. When concerns were raised about the

effect of the original bill on prosecutorial discretion

and the plea bargaining process, the legislature created

the ‘‘new crime’’ of aggravated sexual assault of a minor.

This new crime was designed to give prosecutors the

discretion to charge either the greater offense with its

high mandatory sentencing provision or the lesser

offenses with those standard sentencing provisions,

depending on the facts and circumstances of the case.

It is not clear from this legislative history, however,

that the legislature intended to specifically authorize

cumulative convictions and sentences for aggravated

sexual assault of a minor and the charged predicate

offense(s).48

Therefore, on the basis of our examination of the

language, structure, and legislative history of § 53a-70c,

we conclude that the state has failed to rebut the pre-

sumption created by the Blockburger test that § 53a-

70c is the same offense as its charged predicate offenses

for the purposes of double jeopardy. Accordingly, the

defendant’s cumulative convictions and sentences for

the three sexual offenses violates his right against dou-

ble jeopardy.

B

Having determined that the defendant’s cumulative

convictions and sentences for aggravated sexual assault

of a minor, sexual assault in the first degree, and risk

of injury to a child violate double jeopardy, we must

determine the appropriate remedy. The defendant

argues that the court must vacate his convictions and

sentences for both lesser offenses, i.e., sexual assault

in the first degree and risk of injury to a child. The

state responds that we should vacate the defendant’s

conviction and sentence for only one of the lesser

offenses because the state charged only one count of

aggravated sexual assault when it could have charged

two counts (i.e., it could have charged one count for

each predicate offense). Therefore, the state reasons

that ‘‘vacating both lesser charges would grant the

defendant a windfall he is not entitled to,’’ namely,

fifteen fewer years imprisonment. We are not persuaded

that the remedy advocated by the state is available to us.

The following facts are relevant to our resolution of

this issue. On June 18, 2014, the court imposed a total

effective sentence of fifty years imprisonment, thirty

years of which were a mandatory minimum, followed

by five years of special parole. For the sexual assault

information, the court imposed a sentence of forty years

imprisonment, thirty years of which were a mandatory

minimum, followed by five years of special parole. Spe-

cifically, on count one, sexual assault in the first degree,

the court sentenced the defendant to twenty years

imprisonment, five years of which were a mandatory

minimum, followed by five years of special parole, to

be served concurrently with count three. On count two,

risk of injury to a child, the court sentenced the defen-

dant to fifteen years imprisonment, five of which were

a mandatory minimum, to be served consecutively to

counts one and three. On count three, aggravated sexual

assault of a minor, the court sentenced the defendant

to twenty-five years imprisonment, twenty-five of which

were a mandatory minimum, to be served concurrently

with count one. For the escape information, the court

imposed a sentence of ten years imprisonment, to be

served consecutively to count two of the sexual

assault information.

Our Supreme Court’s holding in State v. Polanco,

308 Conn. 242, 61 A.3d 1084 (2013), controls in this

circumstance. In Polanco, the Supreme Court, exercis-

ing its supervisory authority, held that when a defendant

is convicted of greater and lesser offenses, the court

must vacate the lesser offense(s). Id., 255; see also State

v. Miranda, 317 Conn. 741, 751, 120 A.3d 490 (2015)

(holding that vacatur was the appropriate remedy for

the double jeopardy violation caused by cumulative

convictions and sentences for capital murder and felony

murder). In the present case, it is undisputed that it

was impossible for the defendant to commit the greater

offense (aggravated sexual assault of a minor), in the

manner charged in the long form information, without

committing the lesser offenses (sexual assault in the

first degree and risk of injury to a child).49 Therefore,

pursuant to Polanco, the convictions and sentences for

the lesser offenses must be vacated.50

Accordingly, we remand the case to the trial court

to vacate the defendant’s convictions and sentences for

risk of injury to a child and sexual assault of a minor.

We direct the trial court to resentence the defendant

for his remaining convictions of aggravated sexual

assault of a minor and attempt to escape custody.51

See State v. Wade, 297 Conn. 262, 271–72, 998 A.2d

1114 (2010).

The judgment is reversed only as to the defendant’s

convictions of sexual assault in the first degree and

risk of injury to a child, and the case is remanded to

the trial court with direction to vacate the convictions

of those offenses and to resentence the defendant on

the remaining charges. The judgment is affirmed in all

other respects.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1

In accordance with our policy of protecting the privacy interests of the

victims of sexual abuse, we decline to identify the victim, others individuals

or locations through which the victim’s identity may be ascertained. See

General Statutes § 54-86e.

2

The victim was eleven years old at the time while the defendant was

nineteen years old. At trial, the victim described the defendant as being ‘‘a

lot bigger than me’’ at the time of the defendant’s attack on her.

3

Judge Joan K. Alexander presided over all pretrial proceedings after

arraignment.

4

See General Statutes § 54-56d (i) (1) (‘‘[t]he period of placement under

the order or combination of orders shall not exceed the period of the

maximum sentence which the defendant could receive on conviction of the

charges against the defendant or eighteen months, whichever is less’’).

5

Judge Julia DiCocco Dewey presided over all trial and posttrial pro-

ceedings.

6

State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989); see In re

Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong).

7

‘‘Nunc pro tunc means ‘now for then’ and is used, inter alia, to refer to

competency determinations made after the time at which the underlying

proceeding took place, in the present case, the defendant’s criminal trial.’’

State v. Connor, 321 Conn. 350, 365 n.6, 138 A.3d 265 (2016).

8

The defendant alternatively asks this court to exercise its supervisory

authority over the administration of justice to require trial courts to canvass

defendants concerning their purported right to testify at a competency

hearing. ‘‘It is well settled that [a]ppellate courts possess an inherent supervi-

sory authority over the administration of justice.’’ (Internal quotation marks

omitted.) State v. Elson, 311 Conn. 726, 764, 91 A.3d 862 (2014). However,

‘‘[t]he exercise of our supervisory powers is an extraordinary remedy to be

invoked only when circumstances are such that the issue at hand, while

not rising to the level of a constitutional violation, is nonetheless of utmost

seriousness, not only for the integrity of a particular trial but also for the

perceived fairness of the judicial system as a whole.’’ (Internal quotation

marks omitted.) Id., 765. We are not convinced that it is necessary to the

due administration of justice for us to invoke our supervisory authority in

the present case. Our supervisory authority is meant to be utilized sparingly

and only in extraordinary circumstances, which simply are not present here.

9

Cotterell did not explicitly diagnose the defendant with malingering in

the third competency report, but this diagnosis is reflected throughout that

report. For example, Cotterell concluded his report by observing: ‘‘[The

defendant] knows about his circumstances, and can engage with staff mem-

bers on an informal basis. He has been consistent, when asked to engage

in a formal examination of his competency, in repeatedly stating that he

knows nothing. This is a reflection of his immaturity and impulsivity, and

there is definitely a volitional component to this presentation. It is clear

that he knows more than he is willing to admit. He is not currently taking

psychiatric medication, and he has not demonstrated any symptoms of a

serious mental illness that would require such treatment. Although [the

defendant] frequently refuses to participate in evaluations, his refusal is not

deemed to be secondary to a psychotic process or mood disorder, but rather

a reflection of his long-standing pattern of oppositional conduct.’’ (Emphasis

added.) Additionally, in his posttrial competency report on the defendant,

Cotterell referred to the principal diagnosis of malingering being given at

the time he determined that the defendant was competent to stand trial.

10

When discussing the defendant’s behavior during his hospitalization,

Cotterell observed: ‘‘[The defendant] demonstrated clinical stability. He no

longer voiced delusional materials, reported no perceptual problems, and

his behavior was described a[s] coherent and organized. [The defendant]

began to show some concern as his return date to the court approached.

He made vague claims that he was suicidal, but promptly retracted his

statement when faced with the prospect of safety measures that would be

applied in such cases. His behavior suggested that he was trying to find a

way to avoid facing the implications of his charges. He sometimes refused his

medications at night and claimed, ‘They kept me awake,’ in an unconvincing

manner. He asked whether he would stay longer on the unit if he were not

taking his medications. The treating psychiatrist explained that we would

petition the court to appoint a conservator with the authority to give us

permission to medicate him if such a situation presented itself. This seemed

to persuade [the defendant] not to pursue his quest for a quick way out of

facing his legal obligations.’’

When discussing his efforts to engage the defendant in a conversation

about the different elements of the legal system, Cotterell stated that ‘‘[the

defendant] did not appear to be motivated to participate in the evaluation

and did not appear to be putting forth his best effort.’’

11

The defendant also asks this court to invoke its supervisory authority.

We are not convinced that this claim presents extraordinary circumstances

warranting an exercise of our supervisory authority. See footnote 8 of

this opinion.

12

General Statutes § 17a-566 states in relevant part: ‘‘(a) . . . any court

prior to sentencing a person convicted . . . of a sex offense involving . . .

disparity of age between an adult and a minor . . . may if it appears to the

court that such person has psychiatric disabilities and is dangerous to himself

or others, upon its own motion or upon request of any of the persons

enumerated in subsection (b) of this section and a subsequent finding that

such request is justified, order the commissioner to conduct an examination

of the convicted defendant by qualified personnel of the division. . . .

‘‘(b) The request for such examination may be made by the state’s attorney

or assistant state’s attorney who prosecuted the defendant for an offense

specified in this section, or by the defendant or his attorney in his behalf.

. . .’’

13

The record indicates that, because of the defendant’s behavior during

their meetings, defense counsel had informed the court and the state that

he intended to move for a competency evaluation prior to the hearing and

prior to the defendant’s misconduct while being transported.

14

The court engaged in the following colloquy with the defendant:

‘‘The Court: Now, they’ve attempted to do the competency evaluation but

they’ve had some difficulty because you don’t wish to participate in it. That

is your option—

‘‘[The Defendant]: Participate in mental health?

‘‘The Court: The competency evaluation.

‘‘[The Defendant]: Yes.

‘‘The Court: I would like for you to participate. I can’t force you to, but

it would make the—

‘‘[The Defendant]: Nah. Nah.

‘‘The Court: —the decision easier.

‘‘[The Defendant]: I would like not to participate in mental health because

I’m not a mental health client.

‘‘The Court: Well, this isn’t to see if whether you’re a mental health client.

This is to see whether—

‘‘[The Defendant]: I’m competent to stand trial.

‘‘The Court: No. You’re competent to be sentenced. There’s a difference.

So I would not sentence you unless you’re competent to be sentenced. What

I am going to do is order the evaluator to have access to your medical and

mental health records—

‘‘[The Defendant]: I think I’m in the wrong court.

‘‘The Court: No, you’re in the right court.

‘‘[The Defendant]: No, I’m in the wrong court. This is not even the right

court. . . .

‘‘[The Defendant]: All right. I’ll cooperate.

‘‘The Court: Good. And they’re also going to have access to your records.

The fact that you’re cooperating doesn’t necessarily mean you’re going to

go to a mental health facility, but we want to know what is best for you

and best for the state in terms of the sentencing. I appreciate your coopera-

tion. Thank you very much.’’

15

On June 18, 2014, the court held a video conference to make a technical

change to the defendant’s sentence. When the defendant apologized for his

expletory remarks to the court during sentencing, the court vacated the

defendant’s sentence for contempt. After the court stated that it was impos-

ing a total effective sentence of fifty years imprisonment for the substantive

offenses, however, the defendant began arguing that he was innocent and

wrongly convicted.

16

State v. Boscarino, 204 Conn. 714, 529 A.2d 1260 (1987).

17

The defendant also claims that the court abused its discretion by granting

the state’s motion for consolidation because the motion was untimely. We

disagree. Practice Book § 41-5 states in relevant part: ‘‘Unless otherwise

provided by these rules or statute, all pretrial motions or requests shall be

made not later than ten days after the first pretrial conference in the court

where the case will be tried, or, with permission of the judicial authority,

at such later time as the judicial authority may fix.’’ (Emphasis added.)

See also Practice Book § 41-3 (4) (authorizing pretrial motions for joinder).

In the present case, by accepting the state’s motion to consolidate over the

defendant’s objection, the court permitted the state to file the motion to

consolidate later than ten days after the first pretrial conference.

The defendant nevertheless contends that the court abused its discretion

by permitting the state to file a late motion to consolidate because it hindered

his ability ‘‘to meaningfully and intelligently consider and assess the

defense options and strategies at a consolidated trial.’’ (Emphasis in origi-

nal.) However, the defendant never expressed any concerns at the hearing

or at trial about the effect consolidation would or did have on his ability

to prepare for trial. Because this claim was not distinctly raised before the

trial court, we cannot review it on appeal. See Mitchell v. Commissioner

of Correction, 156 Conn. App. 402, 408–409, 114 A.3d 168, cert. denied, 317

Conn. 904, 114 A.3d 1220 (2015).

18

The state filed its initial motion to consolidate in the morning of Septem-

ber 19, 2013 and the revised motion to consolidate in the afternoon. The

state also filed two long form informations, one for the sexual assault

case and one for the attempt to escape case. The long form sexual assault

information added the charge of aggravated sexual assault of a minor.

19

Specifically, the state argued that the defendant’s attempt to escape

would have been admissible as evidence of consciousness of guilt in a

separate trial on the sexual assault information. It also argued that evidence

that the defendant was charged with felony sexual assault offenses would

have been admissible in a separate trial on the escape information to prove

that the defendant was in custody and charged with a felony at the time he

attempted to escape.

20

The state raises two arguments on appeal concerning the cross admissi-

bility of the sexual assault evidence in a separate escape trial. First, the

state argues that ‘‘the [sexual] assault charges were relevant to show a

heightened motivation to escape . . . because the defendant faced

‘extremely serious’ charges (class A and B felonies) carrying mandatory

minimum sentences based on the victim’s age . . . .’’ Second, the state

argues that ‘‘the record shows that when the factual basis of the assault

became known to other inmates, they harassed the defendant, providing

further incentive to escape.’’ We first note that it is unclear whether the

court was aware that the defendant was being harassed by other inmates

at the time it granted the state’s motion because this fact was only mentioned

in Cotterell’s posttrial competency report. Additionally, because these argu-

ments were never presented to the trial court, and, therefore, cannot serve

as a basis for the trial court’s decision to grant the motion to consolidate,

we decline to address them now on appeal. See Practice Book § 60-5.

21

It is undisputed that the first and third Boscarino factors were not

present at the consolidated trial. The two sets of charges involve discrete

and easily distinguishable factual scenarios. Additionally, the consolidation

of the cases for trial did not increase the duration or complexity of the

trial because the escape charge required the presentation of only the brief

testimony of two judicial marshals and the defendant.

22

During the defendant’s attempt to escape, it took approximately four

judicial marshals to subdue and restrain him.

23

We reiterate that evidence concerning the escape charge could have

properly been admitted in a separate trial for the sexual assault charge

because escape indicates consciousness of guilt. ‘‘[When] evidence of one

incident can be admitted at the trial of the other [incident], separate trials

would provide the defendant . . . [with] no significant benefit. [U]nder

such circumstances, the defendant would not ordinarily be substantially

prejudiced by joinder of the offenses for a single trial.’’ (Internal quotation

marks omitted.) State v. Crenshaw, supra, 313 Conn. 83–84.

24

Only at trial did the victim testify, inter alia, that the defendant pushed

her up the stairs, that she screamed for help when he did that, that the

defendant pushed her into his bedroom, and that she tried to fight him off

by hitting and kicking him. The defendant impeached this testimony during

his cross-examination of the officer that interviewed the victim after her

sexual assault. This officer testified that the victim never told him that the

defendant pushed her up the stairs, that she screamed for help, that she

was pushed into the defendant’s apartment, or that she tried to fight off the

defendant by hitting and kicking him.

25

See State v. Crenshaw, supra, 313 Conn. 89 (‘‘it is well established that

the trial court, in making the discretionary, pretrial decision to join multiple

cases, rules on whether the evidence could be admissible, not whether the

evidence actually is admitted’’ [emphasis in original]); State v. Davis, 286

Conn. 17, 47, 942 A.2d 373 (2008) (Katz, J., concurring) (‘‘The trial court’s

rulings on such motions usually are predicated on the face of the charging

document and whatever information is provided to the court regarding

evidence to be adduced at trial. Therefore, the reviewing court necessarily

must base its determination as to whether the trial court abused its discretion

by looking to the state of the record at the time the trial court acted, not

to the fully developed record after trial.’’), overruled on other grounds in

State v. Payne, 303 Conn. 538, 549, 34 A.3d 370 (2012); State v. Perez, 147

Conn. App. 53, 128–129, 80 A.3d 103 (Lavine, J., concurring) (the trial court’s

pretrial decision to join or to sever the cases must be reviewed based only

on the information before the trial court at the time it decides the motion),

aff’d, 322 Conn. 118, 139 A.3d 654 (2013).

26

To prove aggravated sexual assault of a minor, as charged, the state

had to prove that the defendant ‘‘illegally restrained’’ the victim. See General

Statutes § 53a-70c (a) (1). ‘‘ ‘[R]estrain’ means to restrict a person’s move-

ments intentionally and unlawfully in such a manner as to interfere substan-

tially with his liberty by moving him from one place to another, or by

confining him either in the place where the restriction commences or in a

place to which he has been moved, without consent. As used herein ‘without

consent’ means, but is not limited to, (A) deception and (B) any means

whatever, including acquiescence of the victim, if he is a child less than

sixteen years old . . . and the parent . . . has not acquiesced in the move-

ment or confinement.’’ General Statutes § 53a-91 (1).

27

The defendant cites article first, § 8, of the Connecticut constitution as

an alternative source of his right to remain silent. To the extent the defendant

seeks to raise a distinct claim under the Connecticut constitution, we decline

to address it because he failed to provide an independent analysis of this

state constitutional claim. See State v. Skok, 318 Conn. 699, 701 n.3, 122

A.3d 608 (2015).

28

The defendant also invokes his rights under article first, § 7, of the

Connecticut constitution. Because the defendant failed to provide an inde-

pendent analysis of this claim under the Connecticut constitution, we decline

to address it. See State v. Skok, 318 Conn. 699, 701 n.3, 122 A.3d 608 (2005).

29

Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d

694 (1966).

30

See State v. Smith, 321 Conn. 278, 288, 138 A.3d 223 (2016) (‘‘[t]he

definition of interrogation [for purposes of Miranda] can extend only to

words or actions on the part of police officers that they should have known

were reasonably likely to elicit an incriminating response’’ [emphasis in

original; internal quotation marks omitted]).

31

The defendant cites article first, §§ 8 and 9, of the Connecticut constitu-

tion as an alternative source of his right against double jeopardy. To the

extent the defendant seeks to raise a distinct claim under the Connecticut

constitution, we decline to address it because he failed to provide an indepen-

dent analysis of this claim under the Connecticut constitution. See State v.

Skok, 318 Conn. 699, 701 n.3, 122 A.3d 608 (2015).

32

Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed.

306 (1932).

33

Count three of the long form information states in relevant part: ‘‘The

undersigned Senior State’s Attorney further accuses the defendant, CHRIS-

TOPHER BURGOS, of the crime of AGGRAVATED SEXUAL ASSAULT OF

A MINOR . . . and alleges that . . . the defendant committed a violation

of Connecticut General Statutes §§ 53a-70a (a) (2) and 53-21 (a) (2) and the

victim of such offense . . . was under thirteen years of age and the defen-

dant illegally restrained said person.’’

Notably, the long form information charges aggravated sexual assault in

the first degree, in violation of § 53a-70a (a) (2), as a predicate offense rather

than sexual assault in the first degree in violation of § 53a-70 (a) (2). This

is evidently a typographical error. At trial, the parties and the court operated

under the assumption that sexual assault in the first degree was one of the

predicate offenses for count three. When the court read the information at

the start of trial and charged the jury, it stated that sexual assault in the

first degree was one of the predicate offenses for count three. Neither party

objected to this reading of the information or the content of the jury charge.

Additionally, in their briefs on appeal, both parties have referred to sexual

assault in the first degree as being one of the predicate offenses in count

three. Therefore, we will continue to refer to sexual assault in the first

degree as the appropriate predicate offense.

34

We recognize that when interpreting the meaning of a statute we ordi-

narily begin our analysis with General Statutes § 1-2z. However, in the pre-

sent matter, we are not engaging in a linguistic analysis of § 53a-70c in

an attempt to discern the meaning and effect of specific words or phrases

contained in § 53a-70c. Instead, we are engaging in a constitutional analysis

of § 53a-70c in an attempt to discern whether the legislature clearly intended

to specifically authorize cumulative punishments for convictions under

§ 53a-70c and the charged predicate offense(s).

35

General Statutes § 53a-70c (a) provides: ‘‘A person is guilty of aggravated

sexual assault of a minor when such person commits a violation of subdivi-

sion (2) of subsection (a) of section 53-21 or section 53a-70, 53a-70a, 53a-

71, 53a-86, 53a-87 or 53a-196a and the victim of such offense is under thirteen

years of age, and (1) such person kidnapped or illegally restrained the victim,

(2) such person stalked the victim, (3) such person used violence to commit

such offense against the victim, (4) such person caused serious physical

injury to or disfigurement of the victim, (5) there was more than one victim

of such offense under thirteen years of age, (6) such person was not known

to the victim, or (7) such person has previously been convicted of a violent

sexual assault.’’

36

As discussed later in this opinion, the primary purpose of the legislation

that created § 53a-70c was to create new, enhanced mandatory minimum

sentences for individuals that sexually assault children.

37

See General Statutes §§ 53a-55a (a), 53a-56a (a), 53a-59a (b), 53a-59b

(b), 53a-60a (a), 53a-60b (b), 53a-60c (b), 53a-61a (b), 53a-61aa (a), 53a-64aa

(b), 53a-64bb (b), 53a-64cc (b), 53a-70a (a), 53a-72b (a), 53a-92a (a), 53a-

94a (a), 53a-102a (a), 53a-103a (a), and 53a-216 (a).

38

General Statutes § 53a-70a (a) states in relevant part: ‘‘No person shall

be convicted of sexual assault in the first degree and aggravated sexual

assault in the first degree upon the same transaction but such person may be

charged and prosecuted for both such offenses upon the same information.’’

39

General Statutes § 53a-72b (a) states in relevant part: ‘‘No person shall

be convicted of sexual assault in the third degree and sexual assault in the

third degree with a firearm upon the same transaction but such person may

be charged and prosecuted for both such offenses upon the same infor-

mation.’’

40

General Statutes §§ 53-21 (a) (2) (risk of injury to a child), 53a-70 (sexual

assault in the first degree), 53a-70a (aggravated sexual assault in the first

degree), 53a-71 (sexual assault in the second degree), 53a-72a (sexual assault

in the third degree), 53a-86 (promoting prostitution in the first degree), 53a-

87 (promoting prostitution in the second degree), 53a-90a (enticing a minor),

53a-196 (obscenity as to minors), 53a-196a (employing a minor in an obscene

performance), and 53a-196b (promoting a minor in an obscene performance).

41

The original bill as passed by the Senate proposed amending the sentenc-

ing provisions of several sexual offenses to impose a mandatory minimum

sentence of twenty-five years imprisonment if the victim is under thirteen

years old. For example, § 53-21 (a) (2) would have been amended to contain

the following clause: ‘‘if . . . the victim of the offense is under thirteen

years of age, [the defendant] shall be guilty of a class A felony and, for a

first offense, be sentenced to a term of imprisonment of twenty-five years

which may not be suspended or reduced by the court and, for a subsequent

offense, be sentenced to a term of life imprisonment.’’ Senate Amendment

Schedule A, LCO #4256, to Senate Bill No. 360, 2006 Sess.

42

49 S. Proc., Pt. 9, 2006 Sess., p. 2835, remarks of Senator John A. Kissel

(stating that this law would ‘‘leave the underlying constructs of the crime

of sexual assault intact. It doesn’t change what needs to occur to have the

crime occur, but what it does is it enhances the penalties. . . . What it

does is it changes significantly the mandatory minimum sentence that can

be imposed by the court.’’); id., p. 2842, remarks of Senator John A. Kissel

(‘‘[N]one of the underlying parameters of what constitutes the [predicate]

crime has changed. All we’re doing is we’re reaching in and we’re

addressing what the punishment should be.’’ [Emphasis added.]); id., p.

2849, remarks of Senator John A. Kissel (‘‘Again, we have not offered to

change the underlying statutory construct in our state by way of this amend-

ment. We are enhancing the penalties.’’ [Emphasis added.]); id., p. 2861,

remarks of Senator John McKinney (‘‘We are not changing the elements of

any crime. This amendment does not change existing law as to the elements

of the crime. All it says is that it’s going to have a harsher penalty.’’); 49 S.

Proc., Pt. 11, 2006 Sess., p. 3292, remarks of Senator Catherine W. Cook

(‘‘This is a bill about sentencing. It’s not a bill about whether someone might

or might not have committed the crime. This is about after the court, after

the jury has decided this person did such terrible things to a child.’’); id.,

pp. 3295–96, remarks of Senator Martin M. Looney (‘‘This [modification to

the bill] now clarified that the enhanced minimum mandatory [sentence] of

twenty-five years will apply if the victim is under the age of thirteen . . . .

So it establishes . . . that we do reserve our most serious penalties for the

most serious offenses. . . . This does target the crime of sexual assault in

the first degree, and aggravated sexual assault in the first degree, as suitable

for this enhanced penalty.’’ [Emphasis added.]).

43

49 S. Proc., Pt. 9, 2006 Sess., pp. 2851–52, remarks of Senator Andrew

J. McDonald (‘‘[The proposed amendment] basically incorporates the entire

spectrum of options that a prosecutor would have available to him or her.

And under this proposal that prosecutor would not have any discretion,

but, in fact, would be compelled to bring that child or adult, as the case

may be, regardless of the circumstances, and limit the discretion of the

court [in sentencing]. And that is an issue that I think every member should

have in mind when they vote on this.’’); id., p. 2854, remarks of Senator

Edward Meyer (referring to Senator McDonald’s concerns about a twelve

year old being charged with a mandatory minimum sentence for touching

inner thigh of another twelve year old, Senator Meyer asked ‘‘what would

be the plea bargain available to the prosecutor and the defense lawyer to

avoid an injustice, an excessive injustice’’); see also Conn. Joint Standing

Committee Hearings, Judiciary, Pt. 19, 2007 Sess., p. 6147, remarks of Senator

John McKinney (‘‘I think the Chief State’s Attorney is here again today, but

he expressed concern, as I know did Chairman [Representative Michael P.]

Lawlor and others, that prosecuting, if it’s twenty-five years or nothing,

people will not reach plea agreements, and you’ll have to take a lot of cases

to trial, and some people may get off’’).

44

See footnotes 40 and 41 of this opinion.

45

See 49 S. Proc., Pt. 9, 2006 Sess., p. 2853, remarks of Senator John A.

Kissel (‘‘What this does is it targets certain specific areas. But if a state’s

attorney wanted to reduce the charge to something else, there’s plenty of

other ways to go.’’); id., p. 2859, remarks of Senator John McKinney (‘‘[H]ow

is it that on the one hand mandatory minimums don’t work because prosecu-

tors can charge down, they don’t have to charge the higher crime with the

mandatory minimum. In fact, I would ask if you could read this bill to find

anywhere where it requires a prosecutor to bring charges under circum-

stances [where the offense conduct involves two young adolescents].’’

[Emphasis added.]).

46

The predicate offenses of the revised bill were General Statutes §§ 53-

21 (a) (2), 53a-70, 53a-70a, 53a-71, 53a-86, 53a-87, or 53a-196a. Cf. footnote

40 of this opinion. Although General Statutes § 53a-90a (enticing a minor)

was no longer included as a predicate offense, the revised bill did create

enhanced penalties for enticement of a minor when the victim is under the

age of thirteen. See Public Acts 2007, No. 07-143, § 5. However, the revised

bill no longer created enhanced penalties for violations of General Statutes

§§ 53a-72a (sexual assault in the third degree), 53a-196 (obscenity as to

minors), or 53a-196b (promoting a minor in an obscene performance).

47

For example, during a Judiciary Committee Hearing, Senator John

McKinney highlighted the fact that while ‘‘this new crime gives the prosecu-

tors the tool to put the most heinous of predators behind bars for a very

long time . . . it gives the prosecutors the lesser offenses in those cases

that warrant it. In that respect, it addresses the concerns raised by the Chief

State’s Attorney regarding the all or nothing approach included in prior

drafts of this bill.’’ Conn. Joint Standing Committee Hearings, Judiciary, Pt.

19, 2007 Sess., pp. 6138–39, testimony of Senator John McKinney. Similarly,

Senator John A. Kissel analogized the bill to an arrow in the prosecutor’s

quiver, stating that ‘‘in the case where they have ample evidence, and they

really want to throw the book at someone, the twenty-five year mandatory

minimum is there.’’ Conn. Joint Standing Committee Hearings, Judiciary,

Pt. 20, 2007 Sess., p. 6486, remarks of Senator John A. Kissel; see also Conn.

Joint Standing Committee Hearings, Judiciary, Pt. 21, 2007 Sess., p. 6599,

written testimony of Senator Louis C. DeLuca (‘‘This bill will put predators

where they belong—behind bars where they can do no harm to our children.

It will take those who prey on children and keep them off our streets for

twenty-five years the first time they abuse a child. If they do it again, they

will spend the next fifty years in jail.’’); id., p. 6603, written testimony of

Senator Dan Debicella (‘‘Connecticut needs a law on the books that imposes

punishment that fits the crime [of child molestation]. . . . Twenty-five

years, or more, in prison is not too much to demand of sexual predators.’’).

48

The state’s reliance on State v. Wright, supra, 319 Conn. 684, to support

its contention that the legislature clearly intended to authorize multiple

punishments is misplaced. Wright is again distinguishable from this case

for two distinct reasons. First, in Wright, our Supreme Court was never

asked to consider whether the legislature intended to authorize multiple

punishments for violations of § 53a-70c and the charged predicate offense.

Quite to the contrary, in Wright, the Supreme Court observed that ’’the trial

court vacated the defendant’s convictions of [the lesser offenses of] risk of

injury to a child and unlawful restraint pursuant to [its] decision in State

v. Polanco, 308 Conn. 242, 245, 61 A.3d 1084 (2013) . . . .’’ State v. Wright,

supra, 687 n.2. Second, it bears repeating that because the two statutory

subsections in Wright were factually and legally distinct the burden was on

the defendant to rebut the Blockburger presumption. Id., 691–92. In this

case, the Blockburger presumption is against the state, and the state bears the

burden of demonstrating that the legislature clearly intended to specifically

authorize cumulative punishments.

49

See footnote 35 of this opinion.

50

The state maintains that only one lesser offense should be vacated lest

the defendant be granted a ‘‘windfall’’ of fifteen fewer years of imprisonment.

That is, if the lesser offenses are vacated, the defendant’s effective sentence

for his convictions under the sexual assault information will be twenty-

five years imprisonment, rather than forty years imprisonment. The state’s

argument is premised on the fact that it could have charged two counts of

aggravated sexual assault of a minor—one count alleging sexual assault in

the first degree as a predicate offense and one count alleging risk of injury to

a child as a predicate offense. The fundamental flaw in the state’s argument,

however, is that it did not charge the defendant with two counts of aggra-

vated sexual assault of a minor. It charged the defendant with one count

of the greater offense and two counts of lesser offenses.

51

Resentencing for the defendant’s convictions for aggravated sexual

assault of a minor and attempt to escape custody is appropriate in the

present case because our decision alters the defendant’s total effective

sentence. State v. Wade, 297 Conn. 262, 271–72, 998 A.2d 1114 (2010). At

sentencing, the court imposed a total effective sentence of fifty years impris-

onment, followed by five years of special parole. To achieve the total effec-

tive term of imprisonment, the court imposed three consecutive sentences.

Specifically, the court ordered that the defendant’s sentence for risk of

injury to a child (fifteen years imprisonment) be served consecutively to

his sentence for aggravated sexual assault of a minor (twenty-five years

imprisonment, followed by five years special parole). The court also ordered

that the defendant’s sentence for attempt to escape (ten years) be served

consecutively to his sentence for risk of injury to a child. Therefore, vacatur

of the defendant’s risk of injury to a child conviction will alter the defendant’s

total effective sentence by reducing it from fifty years imprisonment to

twenty-five years imprisonment. Additionally, the court imposed a term

of special parole under the defendant’s sexual assault in the first degree

conviction. Therefore, vacatur of the defendant’s sexual assault in the first

degree conviction will eliminate the period of special parole imposed by

the original sentencing court.