Topic:
FINES; WEAPONS; FELONIES; SENTENCING; BURGLARY; FIREARMS; SUPREME COURT DECISIONS; CRIME;
Location:
CRIME AND CRIMINALS;

OLR Research Report


May 1, 2006

 

2006-R-0286

BURGLARY WITH A FIREARM

By: Natalie Wagner, Legislative Fellow

You asked for a comparison of burglary in the first degree, CGS 53a-101(a)(1), and burglary in the second degree with a firearm, CGS 53a-102a. Specifically, you wanted to know why the potential penalty for the former is more than for the latter.

SUMMARY

A person commits 1st-degree burglary (Burglary 1) under CGS 53a-101(a)(1) if, armed with explosives, a deadly weapon, or a dangerous instrument, he enters or remains unlawfully in a building with the intent to commit a crime therein. Burglary 1 is a class B felony punishable by a maximum of 20 years imprisonment with a mandatory minimum of five years, a fine up to $15,000, or both.

A person commits 2nd-degree burglary with a firearm (Burglary 2a) under CGS 53a-102a if, armed with a firearm, he enters or remains unlawfully in a dwelling at night with the intent to commit a crime therein and uses, threatens to use, displays, or represented that he has a firearm. Burglary 2a is a class C felony punishable by a maximum of 10 years imprisonment with a mandatory minimum of one year, a fine up to $10,000, or both.

Burglary 2a appears to be a more serious crime because it requires a person to use, threaten to use, display, or represent that he posses a firearm while Burglary 1 only requires a person to be armed. Despite this, the Burglary 1 statute has a greater maximum and mandatory minimum penalty than Burglary 2a. The Connecticut Supreme Court has held that it is unconstitutional for a court to impose a greater penalty for a less serious crime. Therefore, since Burglary 2a appears to be a more serious crime, it would appear to be unconstitutional for a person convicted under section (a)(1) of the Burglary 1 statute to be subject to sentencing requirements greater than those required for Burglar 2a.

Our research revealed that 3rd-degree burglary with a firearm (Burglary 3a) seems to pose a similar sentencing dilemma because it also includes aggravating factors not required under Burglary 1 yet requires a lesser penalty (CGS 53a-103a).

The incongruity in the sentencing scheme seems to have occurred in 1976 when the legislature reduce the maximum penalty for Burglary 2a from 20 to 10 years and in 1980 when the legislature amended the sentencing requirements of Burglary 1, raising the minimum sentence from one year to a mandatory minimum of five years.

COMPARISON OF BURGLARY 1 AND BURGLARY 2A

An individual may be convicted of section (a)(1) of the Burglary 1 statute if the prosecution is able to prove:

The defendant entered or remained unlawfully in a building with intent to commit a crime there and was armed with explosives, a deadly weapon, or a dangerous instrument.

An individual may be convicted of Burglary 2a if the prosecution is able to prove:

The defendant entered or remained unlawfully in a dwelling at night (or anytime if someone is home) and intended to commit a crime there. While doing so, he was armed with a firearm. In addition, he used, threatened to use, displayed, or represented that he was armed with a firearm.

Table 1 shows the comparable elements and sentencing requirements of Burglary 1 and Burglary 2a.

TABLE 1: COMPARABLE ELEMENTS AND SENTENCING REQUIREMENT FOR
BURGLARY 1 AND BURGLARY 2A

Crime

Time of Crime

Unlawful Entry

Location of Crime

Intent

Attendant Circumstances

Weapon

Sentence

Burglary 1 (CGS 53a-101(a)(1)

Anytime

Enters or remains unlawfully

Building

to commit a crime therein

Armed with weapon

explosive, deadly weapon, or dangerous instrument

5-20 years, five years mandatory

Burglary 2a (CGS 53a-102a)

At night or anytime someone is home

Same

Dwelling (dwelling is a type of building (see State v. Perez, 78 Conn. App. 610 (2003))

Same

Armed with and uses, threatens to use, displays, or represents the he possesses a firearm

Any firearm (which is a dangerous weapon by definition (see CGS 53a-3(6) and (19))

1-10 years, one year mandatory

One difference between these statutes is that Burglary 1 requires that the crime take place in a building while Burglary 2a requires a dwelling. A dwelling is a building usually occupied by a person who sleeps there at night, whether or not that person is there at the time of the crime. Burglary 1 can take place in a dwelling or any other type of building while Burglary 2a can only take place in a dwelling (State v. Perez, 78 Conn. App. 610 (2003)).

A second difference is that Burglary 1 can take place any time of day, while Burglary 2a can only occur at night or when someone else is in the dwelling. And while they both require a person to be armed with a weapon, Burglary 2a requires the weapon to be a firearm, while Burglary 1 includes a broader category of weapons, including explosives, deadly weapons, and dangerous instruments. A firearm is a deadly weapon (CGS 52a-3(6) and (19)).

A significant difference between the statutes is that while both require the individual to be armed with a weapon, Burglary 2a additionally requires that the individual use, threaten to use, display or represent that he is armed with a weapon. This additional requirement supports the view that Burglary 2a is a more serious crime and thus should carry a more severe penalty. Despite this, Burglary 2a requires a lesser mandatory minimum (one year) and maximum sentence (10 years) than Burglary 1, which requires five and 20 years respectively.

CONSTITUTIONALITY

The imposition of this sentencing scheme is likely vulnerable to an equal protection challenge under our state and federal constitutions (CT Const. Art I, 20; US Const. Amend. XIV, 1).

In 1986, the Connecticut Supreme Court decided two cases relevant to this discussion. In the first, State v. Jenkins, the court held that it is unconstitutional to subject a person convicted of kidnapping to a mandatory minimum sentence, while a person convicted of kidnapping with a firearm faced no mandatory minimum (198 Conn. 671 (1986)). In the second, State v. O'Neill, the court held that it is unconstitutional to subject a person convicted of arson to a 10 year mandatory minimum while allowing the suspension of a sentence for arson murder, a more serious crime (200 Conn. 268 (1986)).

Under the current statutes, a person is subject to a greater penalty after being found guilty of committing burglary while simply carrying a firearm (Burglary 1) than if found guilty of additionally using, threatening to use, displaying, or representing possession of the firearm (Burglary 2a). While the legislature can set penalties, the requirements are subject to constitutional scrutiny (O'Neill, 200 Conn. at 288). And “punishment for crime should be graduated and proportioned to the offense” (Weems v. United States, 217 U.S. 349, 367 (1910)). A court would likely find it irrational to conclude that merely carrying a firearm is more serious than additionally using, threatening to use, displaying, or representing possession of a firearm.

Therefore, when a person is convicted of carrying a firearm under section (a)(1) of the Burglary 1 statute, it would appear to violate equal protection for the judge to impose the greater sentencing requirements of Burglary 1 rather than the less stringent requirements of Burglary 2a, a more serious offense. The rationale is that it is unconstitutional for a court to impose a greater sentence for a crime that is less serious because courts may only impose penalties in a manner that provides equal protection of the law (State v. O'Neill, 200 Conn. at 285-289).

Consider, for example, a person who commits burglary with a concealed firearm and is convicted under section (a)(1) of the Burglary 1 statute. That person would likely argue that he should only be subject to the less stringent sentencing requirements of Burglary 2a rather than the

more stringent requirements of Burglary 1, because it would be

irrational and thus unconstitutional for him to be subject to a harsher penalty for not using, threatening to use, displaying, or representing that he possesses a firearm.

Burglary in the Third Degree

It appears that the same rationale could be argued by a defendant regarding burglary in the third degree with a firearm (CGS 53a-103a). As discussed, for a person to be convicted under section (a)(1) of Burglary 1, the prosecution must prove that he entered or remained in a building with the intent to commit a crime while armed with a firearm, other deadly weapon, deadly instrument, or explosives. To be convicted of Burglary 3a, the prosecution must additionally prove that the defendant used, threatened, displayed or represented that he was armed with a firearm. Despite this, Burglary 3a only carries a minimum mandatory sentence of one year and a maximum sentence of five years compared to the five and 20 years respectively for Burglary 1.

Table 2 shows the comparable elements and sentencing requirements of Burglary 1, Burglary 2a, and Burglary 3a.

TABLE 2: COMPARABLE ELEMENTS AND SENTENCING REQUIREMENTS FOR
BURGLARY 1, BURGLARY 2A, AND BURGLARY 3A

Crime

Time of Crime

Unlawful Entry

Location of Crime

Intent

Attendant Circumstances

Weapon

Sentence

Burglary 1 (CGS 53a-101(a)(1)

Anytime

Enters or remains unlawfully

Building

To commit a crime therein

Armed with weapon

explosive, deadly weapon, or dangerous instrument

5-20 years, five years mandatory

Burglary 2a (CGS 53a-102a)

At night or anytime someone is home

Same

Dwelling

(dwelling is a type of building (see State v. Perez, 78 Conn. App. 610 (2003))

Same

Armed with and uses, threatens to use, displays, or represents the he possesses a firearm

Any firearm (which is a dangerous weapon by definition (see CGS 53a-3(6) and (19))

1-10 years, one year mandatory

Burglary 3a (CGS 53a-103a)

Anytime

Same

Building

Same

Armed with and uses, threatens to use, displays, or represents the he possesses a firearm

Any firearm (which is a dangerous weapon by definition (see CGS 53a-3(6) and (19))

1-5 years, one year mandatory

NW:dw