When a defendant is convicted of a greater offense and a lesser included offense in violation of the double jeopardy clause of the federal constitution, the trial court shall vacate the conviction for the lesser offense rather than merging it with the conviction for the greater offense. Following a jury trial, Carlos Polanco was convicted, relevantly, of the greater offense of possession of narcotics with intent to sell by a person who is not drug-dependent and the lesser included offense of possession of narcotics with intent to sell. He was sentenced to 10 years’ imprisonment plus special parole for the greater offense and a concurrent 10 year imprisonment term for the lesser offense. Polanco appealed, successfully claiming that his sentence violated the double jeopardy clause due to the court’s merger of his sentences rather than convictions. Relying on the Connecticut Supreme Court’s 1991 decision in State v. Chicano and its progeny, which followed the 2nd Circuit Court of Appeals merger approach, the Appellate Court applied the merger approach and held that the defendant’s lesser conviction must be merged with his greater conviction and the lesser offense sentence vacated. The Appellate Court declined to consider whether to vacate both the conviction and sentence for the lesser offense. Obtaining certification, Polanco appealed challenging the constitutionality of Connecticut’s merger approach based on the U.S. Supreme Court’s 1996 decision in Rutledge v. U.S. The Connecticut Supreme Court reversed, in part, the Appellate Court’s judgment, finding it unnecessary and imprudent to reach the constitutional claim. The Rutledge court’s position on the constitutionality of the 2nd Circuit’s now former merger approach was difficult to discern. With the 2nd Circuit no longer providing a jurisprudential foundation for the merger approach and no compelling reason to adhere to an approach not in conformity with the vacatur approach now applied by the 2nd Circuit and other Circuit Courts of Appeals, the Connecticut Supreme Court exercised its supervisory authority over the administration of justice to adopt the rule that when a defendant is convicted of greater and lesser included offenses, the trial court shall vacate the conviction for the lesser offense rather than merging the convictions pursuant to Chicano. Such vacated conviction may be reinstated if the conviction for the greater offense subsequently is reversed for reasons unrelated to the viability of the vacated conviction.
 

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