STATE OF CONNECTICUT v. NEMIAH ALLAN

This appeal is the companion case to State v. Evans, 329 Conn. , A.3d (2018), which we also decide today. The defendant, Nemiah Allan,1 appeals2 from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant claims that we should overrule State v. Ray, 290 Conn. 602, 966 A.2d 148 (2009), in which we interpreted General Statutes (Rev. to 2009) § 21a-278 (b)3 to render drug dependency an affirmative defense to be proven by the defendant because (1) it is no longer good law in light of the subsequent decision of the United States Supreme Court in Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), and (2) it was wrongly decided as a matter of statutory interpretation. The defendant also argues that the narcotics statutory scheme, which gives the prosecutor the sole authority to decide whether to proceed under § 21a-278 (b), rather than the otherwise identical General Statutes (Rev. to 2009) § 21a-277 (a),4 violates the separation of powers established by article second of the Connecticut constitution, as amended by article eighteen of the amendments. The state contends to the contrary, and also argues that the trial court lacked subject matter jurisdiction over the defendant’s motion tocorrectbecausethatmotionfailedtoraiseacolorable claim challenging his sentence. Although we conclude that the trial court had subject matter jurisdiction over the defendant’s motion to correct, we disagree with the merits of the defendant’sclaims. Accordingly, we affirm the judgment of the trial court denying the defendant’s motion to correct an illegal sentence. Therecordrevealsthefollowingundisputedfactsand procedural history. Following a jury trial, the defendant was convicted of conspiracy to sell narcotics in violation of § 21a-278 (b) and General Statutes § 53a-48, and interfering with a police officer in violation of General Statutes § 53a-167a (a).5 No evidence concerning the defendant’s drug dependency was presented at trial by the state or the defendant, and the trial court did not instruct the jury with respect to drug dependency. At sentencing, the court considered the defendant’s history of narcotics convictions, and defense counsel argued that the defendant was not a career criminal but, rather, a career addict as a result of a painkiller addictionfollowing aneck injurysufferedin anautomobile accident. The trial court, B. Fischer, J., sentenced the defendant to a total effective sentence of twelve years imprisonment, followed by five years of special parole, to be served concurrently with a sentence that the defendant was serving for violation of probation. His conviction was subsequently affirmed on appeal. See State v. Allan, 131 Conn. App. 433, 443, 27 A.3d 19 (2011), aff’d, 311 Conn. 1. 83 A.3d 326 (2014). PursuanttoPracticeBook§ 43-22,thedefendantfiled a motion to correct an illegal sentence, claiming, inter alia, that his sentence had been imposed in violation of Alleyne v. United States, supra, 570 U.S. 99, and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), because the fact of drug dependency, which triggered the mandatory minimum sentence under § 21a-278 (b), was not admitted by the defendant or found by the fact-finder. The trial court, S. Moore, J., denied the defendant’s motion, concluding that Alleyne and Apprendi did not control because of this court’s interpretation of § 21a-278 (b) in, among other cases, State v. Ray, supra, 290 Conn. 602, which held that drug dependency is an affirmative defense to be proven by the defendant, rather than an element of the offense to be proven by the state. The trial court denied the defendant’s subsequent motion for reconsideration and rendered judgment denying the motion to correct an illegal sentence. This appeal followed. The jurisdictional issues raised by the parties and the merits of the underlying arguments presented in this appeal are identical to those considered in State v. Evans, supra, 329 Conn. , which we also decide today. We conclude that our examination of these same issues in Evans thoroughly resolves the claims in the present appeal and that there is nothing in this case that would mandate a different result. Accordingly, we adopt the reasoning and conclusions of that opinion herein. See, e.g., State v. Drakes, 321 Conn. 857, 864, 146 A.3d 21, cert. denied, U.S. , 137 S. Ct. 321, 196 L. Ed. 2d 234 (2016). We, therefore, conclude that the trial court properly denied the defendant’s motion to correct an illegal sentence.

The judgment is affirmed.