State v. Velasco

In State v. Velasco, 253 Conn. 210, 218-19 n.9, 751 A.2d 800 (2000), the defendant claimed that facts supporting a violation of General Statutes 53-202k, which authorizes a nonsuspendable five year addition to the sentence of one who is convicted of an underlying class A, B or C felony with a firearm, must be found by the jury rather than by the sentencing court. State v. Velasco, supra, 253 Conn. at 213. Although the claim was unpreserved at trial, the Court reviewed the claim under the plain error doctrine because it determined that the claim was essentially one of statutory interpretation. Id. at 219 n.9. General Statutes 53-202k provides: "Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony." On the basis of its statutory analysis, the Velasco court held that the legislature intended for the jury, not the court, to make the factual determinations required by the statute and that to do otherwise was error. In State v. Velasco, the defendant did not object at trial to the court's determination, as opposed to a determination by the jury, that he had used a firearm in the commission of the underlying felony with which he had been charged. Id., at 218 n.9. The Velasco court determined that because its analysis was based on statutory construction, and raises questions in the public interest and of justice between the parties, the case could be reviewed under the plain error doctrine; Practice Book 60-5; even if it was not reviewable under the precepts of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). (See State v. Velasco, supra, 253 Conn. at 218-19 n.9.)