2018 Connecticut General Statutes
Title 53a - Penal Code
Chapter 952 - Penal Code: Offenses
Section 53a-40 - Persistent offenders: Definitions; defense; authorized sentences; procedure.

(a) A persistent dangerous felony offender is a person who:

(1) (A) Stands convicted of manslaughter, arson, kidnapping, robbery in the first or second degree, assault in the first degree, home invasion, burglary in the first degree or burglary in the second degree with a firearm, and (B) has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution, for any of the following crimes: (i) The crimes enumerated in subparagraph (A) of this subdivision or an attempt to commit any of said crimes; or (ii) murder, sexual assault in the first or third degree, aggravated sexual assault in the first degree or sexual assault in the third degree with a firearm, or an attempt to commit any of said crimes; or (iii) prior to October 1, 1975, any of the crimes enumerated in section 53a-72, 53a-75 or 53a-78 of the general statutes, revision of 1958, revised to 1975, or prior to October 1, 1971, in this state, assault with intent to kill under section 54-117, or any of the crimes enumerated in sections 53-9, 53-10, 53-11, 53-12 to 53-16, inclusive, 53-19, 53-21, 53-69, 53-78 to 53-80, inclusive, 53-82, 53-83, 53-86, 53-238 and 53-239 of the general statutes, revision of 1958, revised to 1968, or any predecessor statutes in this state, or an attempt to commit any of said crimes; or (iv) in any other state, any crimes the essential elements of which are substantially the same as any of the crimes enumerated in subparagraph (A) of this subdivision or this subparagraph; or

(2) (A) Stands convicted of sexual assault in the first or third degree, aggravated sexual assault in the first degree or sexual assault in the third degree with a firearm, and (B) has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution, for any of the following crimes: (i) Murder, manslaughter, arson, kidnapping, robbery in the first or second degree, assault in the first degree, home invasion, burglary in the first degree or burglary in the second degree with a firearm, or an attempt to commit any of said crimes; or (ii) prior to October 1, 1971, in this state, assault with intent to kill under section 54-117, or any of the crimes enumerated in sections 53-9, 53-10, 53-11, 53-12 to 53-16, inclusive, 53-19, 53-21, 53-69, 53-78 to 53-80, inclusive, 53-82, 53-83 and 53-86 of the general statutes, revision of 1958, revised to 1968, or any predecessor statutes in this state, or an attempt to commit any of said crimes; or (iii) in any other state, any crimes the essential elements of which are substantially the same as any of the crimes enumerated in subparagraph (A) of this subdivision or this subparagraph.

(b) A persistent dangerous sexual offender is a person who (1) stands convicted of sexual assault in the first or third degree, aggravated sexual assault in the first degree or sexual assault in the third degree with a firearm, and (2) has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence to a term of imprisonment of more than one year, in this state or in any other state or in a federal correctional institution, for (A) any of the crimes enumerated in subdivision (1) of this subsection, or (B) prior to October 1, 1975, any of the crimes enumerated in section 53a-72, 53a-75 or 53a-78 of the general statutes, revision of 1958, revised to 1975, or prior to October 1, 1971, in this state, any of the crimes enumerated in section 53-238 or 53-239 of the general statutes, revision of 1958, revised to 1968, or any predecessor statutes in this state, or an attempt to commit any of said crimes, or (C) in any other state, any crimes the essential elements of which are substantially the same as any of the crimes enumerated in subdivision (1) of this subsection or this subdivision.

(c) A persistent serious felony offender is a person who (1) stands convicted of a felony, and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime. This subsection shall not apply where the present conviction is for a crime enumerated in subdivision (1) of subsection (a) of this section and the prior conviction was for a crime other than those enumerated in subsection (a) of this section.

(d) A persistent serious sexual offender is a person, other than a person who qualifies as a persistent dangerous sexual offender under subsection (b) of this section, who qualifies as a persistent serious felony offender under subsection (c) of this section and the felony of which such person presently stands convicted is a violation of subdivision (2) of subsection (a) of section 53-21, or section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b and the prior conviction is for a violation of section 53-21 of the general statutes, revised to January 1, 1995, involving sexual contact, committed prior to October 1, 1995, a violation of subdivision (2) of section 53-21 of the general statutes, committed on or after October 1, 1995, and prior to October 1, 2000, a violation of subdivision (2) of subsection (a) of section 53-21 or a violation of section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b.

(e) A persistent larceny offender is a person who (1) stands convicted of larceny in the third degree in violation of the provisions of section 53a-124 in effect prior to October 1, 1982, or larceny in the fourth, fifth or sixth degree, and (2) has been, at separate times prior to the commission of the present larceny, twice convicted of the crime of larceny.

(f) A persistent offender for possession of a controlled substance is a person who (1) stands convicted of possession of a controlled substance in violation of the provisions of section 21a-279, and (2) has been, at separate times prior to the commission of the present possession of a controlled substance, twice convicted of the crime of possession of a controlled substance.

(g) A persistent felony offender is a person who (1) stands convicted of a felony other than a class D felony, and (2) has been, at separate times prior to the commission of the present felony, twice convicted of a felony other than a class D felony.

(h) It shall be an affirmative defense to the charge of being a persistent offender under this section that (1) as to any prior conviction on which the state is relying the defendant was pardoned on the ground of innocence, and (2) without such conviction, the defendant was not two or more times convicted and imprisoned as required by this section.

(i) When any person has been found to be a persistent dangerous felony offender, the court, in lieu of imposing the sentence of imprisonment authorized by the general statutes for the crime of which such person presently stands convicted, shall (1) sentence such person to a term of imprisonment that is not (A) less than twice the minimum term of imprisonment authorized for such crime or (B) more than twice the maximum term of imprisonment authorized for such crime or forty years, whichever is greater, provided, if a mandatory minimum term of imprisonment is authorized for such crime, such sentence shall include a mandatory minimum term of imprisonment that is twice such authorized mandatory minimum term of imprisonment, and (2) if such person has, at separate times prior to the commission of the present crime, been twice convicted of and imprisoned for any of the crimes enumerated in subsection (a) of this section, sentence such person to a term of imprisonment that is not less than three times the minimum term of imprisonment authorized for such crime or more than life, provided, if a mandatory minimum term of imprisonment is authorized for such crime, such sentence shall include a mandatory minimum term of imprisonment that is three times such authorized mandatory minimum term of imprisonment.

(j) When any person has been found to be a persistent dangerous sexual offender, the court, in lieu of imposing the sentence of imprisonment authorized by section 53a-35a for the crime of which such person presently stands convicted, shall sentence such person to a term of imprisonment and a period of special parole pursuant to subsection (b) of section 53a-28 which together constitute a sentence of imprisonment for life, as defined in section 53a-35b.

(k) When any person has been found to be a persistent serious felony offender, the court in lieu of imposing the sentence of imprisonment authorized by section 53a-35 for the crime of which such person presently stands convicted, or authorized by section 53a-35a if the crime of which such person presently stands convicted was committed on or after July 1, 1981, may impose the sentence of imprisonment authorized by said section for the next more serious degree of felony.

(l) When any person has been found to be a persistent serious sexual offender, the court, in lieu of imposing the sentence of imprisonment authorized by section 53a-35a for the crime of which such person presently stands convicted, may impose a sentence of imprisonment and a period of special parole pursuant to subsection (b) of section 53a-28 which together constitute the maximum sentence specified by section 53a-35a for the next more serious degree of felony.

(m) When any person has been found to be a persistent larceny offender, the court, in lieu of imposing the sentence authorized by section 53a-36 for the crime of which such person presently stands convicted, may impose the sentence of imprisonment for a class D felony authorized by section 53a-35, if the crime of which such person presently stands convicted was committed prior to July 1, 1981, or authorized by section 53a-35a, if the crime of which such person presently stands convicted was committed on or after July 1, 1981.

(n) When any person has been found to be a persistent offender for possession of a controlled substance, the court, in lieu of imposing the sentence authorized by section 53a-36 for the crime of which such person presently stands convicted, may impose the sentence of imprisonment for a class E felony authorized by section 53a-35a.

(o) When any person has been found to be a persistent felony offender, the court, in lieu of imposing the sentence authorized by section 53a-35a for the crime of which such person presently stands convicted, may impose the sentence of imprisonment authorized by said section for the next more serious degree of felony; provided the sentence imposed may not be less than three years, and provided further three years of the sentence so imposed may not be suspended or reduced by the court.

(p) (1) Whenever a person is arrested for any of the crimes enumerated in subsection (a) of this section, the prosecuting authority shall investigate and ascertain whether such person has, at separate times prior to the commission of the present crime, been twice convicted of and imprisoned for any of the crimes enumerated in said subsection (a) and would be eligible to be sentenced under subsection (i) of this section if convicted of such crime.

(2) If the prosecuting authority ascertains that such person has, at separate times prior to the commission of the present crime, been twice convicted of and imprisoned for any of the crimes enumerated in subsection (a) of this section and such person has been presented to a geographical area courthouse, the prosecuting authority shall cause such person to be transferred to a judicial district courthouse.

(3) No court shall accept a plea of guilty, not guilty or nolo contendere from a person arrested for any of the crimes enumerated in subsection (a) of this section unless it finds that the prosecuting authority has complied with the requirements of subdivision (1) of this subsection.

(4) If the prosecuting authority ascertains that such person has, at separate times prior to the commission of the present crime, been twice convicted of and imprisoned for any of the crimes enumerated in subsection (a) of this section but decides not to initiate proceedings to seek the sentence enhancement provided by subsection (i) of this section, the prosecuting authority shall state for the record the specific reason or reasons for not initiating such proceedings.

(5) If the prosecuting authority ascertains that such person has, at separate times prior to the commission of the present crime, been twice convicted of and imprisoned for any of the crimes enumerated in subsection (a) of this section and initiates proceedings to seek the sentence enhancement provided by subsection (i) of this section, but subsequently decides to terminate such proceedings, the prosecuting authority shall state for the record the specific reason or reasons for terminating such proceedings.

(1969, P.A. 828, S. 40; 1971, P.A. 871, S. 15; P.A. 73-616, S. 40; P.A. 76-336, S. 20; P.A. 80-442, S. 12, 28; P.A. 83-4, S. 1, 2; P.A. 85-603; P.A. 92-260, S. 18; P.A. 94-37, S. 1; June Sp. Sess. P.A. 99-2, S. 48; P.A. 01-84, S. 18, 26; Jan. Sp. Sess. P.A. 08-1, S. 6, 7; P.A. 08-51, S. 1, 2; June Sp. Sess. P.A. 15-2, S. 19.)

History: 1971 act removed requirements that offenders under Subsecs. (a) and (b) have been previously convicted and imprisoned “two or more times” and “at separate times” and redefined persistent larceny offender as one who stands convicted of larceny in “the third or fourth degree” rather than in “the second or a lesser degree” in Subsec. (c); P.A. 73-616 corrected section reference re assault with intent to kill, substituting Sec. 54-117 for Sec. 53-117 in Subsec. (a); P.A. 76-336 substituted sexual assault in first or third degree or sexual assault in first or third degree with a firearm for “rape” in Subsec. (a) and specified applicability of conviction for crimes enumerated in Secs. 53a-72, 53a-75 or 53a-78 prior to October 1, 1975; P.A. 80-442 specified applicability of Subsec. (b) to persistent “serious” felony offenders, inserted new Subsec. (d) re persistent felony offenders, relettering as necessary, amended Subsecs. (f) to (h), formerly (e) to (g), re crimes committed on or after July 1, 1981, and added Subsec. (i) re extended incarceration effective July 1, 1981; P.A. 83-4 amended Subsec. (c) to reflect the establishment of six degrees of larceny pursuant to P.A. 82-271 by including persons convicted of larceny in the third degree “in violation of the provisions of section 53a-124 in effect prior to October 1, 1982” and larceny in the “fifth or sixth” degree; P.A. 85-603 made a technical change to Subsec. (h) and rewrote some of the language of said Subsec. to reflect said change; P.A. 92-260 amended Subsec. (a) to replace an obsolete reference to the offense of “sexual assault in the first degree with a firearm” with its revised name of “aggravated sexual assault in the first degree”, and made other minor technical changes in Subsecs. (a), (b) and (d); P.A. 94-37 amended Subsec. (f) to revise the penalty for a person found to be a persistent dangerous felony offender by replacing the provision that permitted the court to impose the sentence of imprisonment authorized for a class A felony with the provision requiring the court to sentence such person to a term of imprisonment of not more than 40 years and by adding the provision requiring the court to sentence such person to a term of imprisonment of not more than life if such person has been twice convicted and imprisoned for any of the crimes enumerated in Subsec. (a)(2); June Sp. Sess. P.A. 99-2 amended Subsec. (a) to delete from category of a persistent dangerous felony offender a person who stands convicted of sexual assault in the first or third degree, aggravated sexual assault in the first degree or sexual assault in the third degree with a firearm and has been previously convicted and imprisoned for more than one year for any of said crimes or any predecessor statutes, or an attempt to commit any of said crimes, to revise and restructure Subsec. to reflect such deletion and to revise Subdiv. and Subpara. indicators accordingly, added new Subsec. (b) re persistent dangerous sexual offender, new Subsec. (d) re persistent serious sexual offender, new Subsec. (i) re penalty for persistent dangerous sexual offender and new Subsec. (k) re penalty for persistent serious sexual offender, relettering intervening and remaining Subsecs. accordingly, and made provisions of section gender neutral; P.A. 01-84 amended Subsec. (d) to replace in provision re the offense for which the person presently stands convicted the reference to “a violation of subdivision (2) of section 53-21” with “a violation of subdivision (2) of subsection (a) of section 53-21”, to replace in provision re offenses for which the person was previously convicted the reference to “a violation of subdivision (2) of section 53-21” with “a violation of subdivision (2) of section 53-21 of the general statutes, committed on or after October 1, 1995, and prior to October 1, 2000,” and to add reference to a prior conviction for “a violation of subdivision (2) of subsection (a) of section 53-21”, effective July 1, 2001; Jan. Sp. Sess. P.A. 08-1 amended Subsec. (h) to replace reference to “subdivision (2) of subsection (a) of this section” with “subparagraph (B) of subdivision (1) of subsection (a) of this section”, amended Subsecs. (h) and (i) to delete requirement for imposition of enhanced sentence that “the court is of the opinion that such person's history and character and the nature and circumstances of such person's criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest” and amended Subsecs. (j) to (m) to delete requirement for imposition of enhanced sentence that “the court is of the opinion that such person's history and character and the nature and circumstances of such person's criminal conduct indicate that extended incarceration will best serve the public interest”, effective January 25, 2008, and amended Subsec. (a) to include the crimes of home invasion, burglary in the first degree and burglary in the second degree with a firearm in Subdivs. (1)(A) and (2)(B)(i), effective March 1, 2008; P.A. 08-51 amended Subsec. (h) to replace “the court, in lieu of imposing the sentence of imprisonment authorized by section 53a-35 for the crime of which such person presently stands convicted, or authorized by section 53a-35a if the crime of which such person presently stands convicted was committed on or after July 1, 1981,” with “the court, in lieu of imposing the sentence of imprisonment authorized by the general statutes for the crime of which such person presently stands convicted”, insert Subdiv. designators (1) and (2) and in Subdiv. (1) replace a term of imprisonment of “not more than forty years” with a term of imprisonment “that is not (A) less than twice the minimum term of imprisonment authorized for such crime or (B) more than twice the maximum term of imprisonment authorized for such crime or forty years, whichever is greater, provided, if a mandatory minimum term of imprisonment is authorized for such crime, such sentence shall include a mandatory minimum term of imprisonment that is twice such authorized mandatory minimum term of imprisonment”, and in Subdiv. (2) replace reference to “subparagraph (B) of subdivision (1) of subsection (a) of this section” with “subsection (a) of this section” and replace a term of imprisonment “of not more than life” with a term of imprisonment “that is not less than three times the minimum term of imprisonment authorized for such crime or more than life, provided, if a mandatory minimum term of imprisonment is authorized for such crime, such sentence shall include a mandatory minimum term of imprisonment that is three times such authorized mandatory minimum term of imprisonment”, and added Subsec. (n) re obligations of the prosecuting authority and the court whenever a person is arrested for any of the crimes enumerated in Subsec. (a), effective May 8, 2008; June Sp. Sess. P.A. 15-2 added new Subsecs. (f) and (n) re persistent offender for possession of controlled substance, redesignated existing Subsecs. (f) to (l) as Subsecs. (g) to (m) and existing Subsecs. (m) and (n) as Subsecs. (o) and (p), and made conforming changes.

Cited. 176 C. 270; 180 C. 660; 184 C. 215; 188 C. 27; 191 C. 180; 192 C. 471; 194 C. 573; Id., 692; 195 C. 326; 197 C. 280; 198 C. 158; Id., 273; 203 C. 506; 207 C. 619; 218 C. 273; 224 C. 397; 226 C. 601; 227 C. 751; 234 C. 324; 240 C. 317; 242 C. 143. Finding by trial court, rather than jury, that imposing extended incarceration would best serve the public interest clearly violated defendant's constitutional rights under the sixth amendment to U.S. Constitution; section is unconstitutional to the extent it does not provide that defendant is entitled to have jury make a required finding that exposes defendant to a greater punishment than that authorized by jury's guilty verdict. 283 C. 748.

Cited. 9 CA 686; 12 CA 1; 31 CA 140; 36 CA 401; 37 CA 733; 45 CA 369; Id., 390. Admission of certified copy of judgment sufficient to prove persistent dangerous felony offender. 50 CA 521. Section constitutes a sentence enhancement and not an independent criminal offense. 117 CA 486. Rule in 283 C. 748 does not apply retroactively. 130 CA 435.

Subsec. (a):

Constitutionality of dangerous felony offender statutes has long been upheld. 173 C. 545. Cited. 193 C. 273. Nothing in statute precludes state from offering probative evidence to clarify an official judgment of conviction in order to prove defendant a second offender. 194 C. 573. No viable basis for challenge to statute on the grounds of vagueness. 195 C. 326. Cited. Id., 475; 200 C. 350; Id., 453; 202 C. 509; 203 C. 81; 206 C. 621; 207 C. 276; 210 C. 573; 213 C. 97; 216 C. 220; 224 C. 445; 232 C. 455.

Cited. 17 CA 490; 19 CA 571; 29 CA 274; 37 CA 672; Id., 733; 39 CA 82; 46 CA 131. Jury improperly found defendant to be a persistent dangerous felony offender because his conviction of attempted assault in the first degree is not one of the qualifying felonies enumerated in Subsec. 51 CA 171.

Cited. 43 CS 77.

Subsec. (b):

Presentence report used to prove that defendant was not persistent felony offender under Subsec. 169 C. 263. Cited. 182 C. 176. Failure to allege imprisonment under provisions of statute not considered reversible error where proof of imprisonment was established during trial and defendant failed to request complete statement of facts. 184 C. 215. Cited. Id., 369; 187 C. 264; 224 C. 397; 227 C. 711; Id., 751; 232 C. 455.

Cited. 9 CA 133; 10 CA 279; 12 CA 375; 13 CA 438; 20 CA 586; 31 CA 178; 34 CA 1; 35 CA 405; 37 CA 733; 39 CA 82; Id., 789; 45 CA 369.

Subsec. (c):

Cited. 202 C. 369.

By pleading nolo contendere to charge of being a persistent larceny offender, defendant waived her right to appeal this issue. 4 CA 676. Cited. 14 CA 88; 21 CA 331; 37 CA 228. The word “and” in the exemption contained in subsection is used in a conjunctive manner. 168 CA 37.

Subsec. (d):

Language of section and its legislative purpose require sequence of offense, conviction and punishment for each prior felony before enhanced penalty as a persistent offender attaches. 240 C. 317.

Cited. 41 CA 391.

Subsec. (g) (former Subsec. (f)):

Cited. 169 C. 263; 187 C. 264; 200 C. 453; 207 C. 276. Purpose is to allow sentencing court to impose a more severe sentence than would be allowed for the substantive offense; Subsec. requires sentencing court to consider defendant's history and character and the nature and circumstances of his criminal conduct and whether extended incarceration and lifetime supervision will best serve the public interest; there is no requirement that sentences imposed be strictly proportional to the nature of substantive offense or offenses of which defendant was convicted; nature of substantive offense is only one factor to be considered by sentencing court. 254 C. 613.

Cited. 19 CA 571. Under plain and unambiguous language of Subsec., only class D felonies, which carry a lesser maximum punishment than unclassified felonies, are excluded as predicate felonies, the legislature having specifically chosen not to exclude unclassified felonies. 128 CA 765. When defendant knowingly, voluntarily and intelligently pleads guilty to a sentence enhancement provision, defendant waives right to jury trial thereon, and no constitutional violation occurs where defendant's increased penalty allegedly results from trial court's, rather than jury's, consideration of factors other than defendant's previous convictions. 141 CA 814.

Subsec. (i) (former Subsec. (h)):

Under 2001 revision, section clearly reflected legislature's negative view of persistent dangerous felony offenders and the degree of punishment it wished to impose on them at the time defendant committed the offenses such that defendant was on fair notice that the substantive provision of section would apply even if certain procedural provisions were later found to be unconstitutional; text and legislative history of section indicate that the term “public interest”, as used in section, does not include the public interest in minimizing costs of incarceration. 303 C. 246.

Cited. 21 CA 331; 37 CA 228. Court followed 283 C. 748 in holding that jury and not the court must make finding of whether defendant's extended incarceration will best serve the public interest. 105 CA 278. Section is not unconstitutionally vague as applied to defendant or on its face. 121 CA 672.

Subsec. (k) (former Subsec. (j)):

Under 2007 revision, and following 283 C. 748, where defendant's guilty plea effectively waived his right to a jury finding that enhancement of his sentence as a persistent serious felony offender was in the public interest, defendant was not presumed to have waived a court finding on the public interest determination and the court was the proper entity to make such public interest determination. 143 CA 76.