The Law Tribune previews important or interesting cases most weeks that the state Appellate Court or state Supreme Court are in session.

Case: State v. Nicholas Menditto

Court: Connecticut Appellate Court

Date: Wednesday, September 11

Time: 10 a.m.

Attorneys: Harry D. Weller; Aaron J. Romano

Summary: A man arrested several times for possessing a small amount of marijuana, an offense that has since been decriminalized, is seeking to have his criminal records destroyed and his pending charges dropped.

Background: On July 28, 2009, Nicholas Menditto was arrested and charged by the Coventry Police Department with possession of marijuana. According to court documents, Menditto was in possession of 0.15 ounces of marijuana and a small plastic bag containing trace amounts of marijuana.

A few weeks later, on August 14, 2009, Menditto was arrested and charged by the Vernon Police Department with possession of marijuana. This time he was found with 0.01 ounces of marijuana. Both times he was formally charged with possession of a controlled substance, less than four ounces of marijuana.

On October 28, 2009, Menditto entered pleas of guilty on two counts of possession of a controlled substance. He was sentenced the same day to a year in jail, the execution of which was suspended, and 18 months of probation.

On March 25, 2011, Menditto was arrested again by the Vernon Police Department. The arrest arose out of a motor vehicle traffic stop during which the police officer is alleged to have located in Menditto's vehicle about 0.03 ounces of marijuana as well as a glass smoking pipe and a second smoking device called a "one hitter." The defendant was subsequently charged with possession of a controlled substance, less than four ounces of marijuana, and use of drug paraphernalia.

The following month Menditto was charged with violating the terms of his probation due to the March 2011 arrest.

A few months later, the Connecticut legislature decriminalized the possession of less than one half ounce of marijuana. Since Menditto was now facing charges for conduct that had been decriminalized by the legislature, he filed a motion to dismiss the charges through his attorney, Aaron J. Romano, of Bloomfield.

Menditto further sought the destruction of his previous criminal records since all of the arrests stemmed from possession of an amount of marijuana that was no longer a crime. He also sought the dismissal of the probation violation charge.

On December 5, 2011, Superior Court Judge Laura Baldini denied Menditto's motions and petitions based on the generalized supposition that the possession of less than one half ounce of marijuana had not been decriminalized by the state at the time of his arrests. She said the "savings clause" — a clause in a statute limiting the scope of the repeal of prior statutes — entitled the state to continue to pursue the marijuana posession charges against Menditto.

Last year, Menditto appealed Baldini's ruling to the state Appellate Court. Attorney Romano is arguing that the trial court erroneously denied Menditto's requests to wipe his slate clean.

"It is clear that the intent of the legislature in passing [the statute] was not to burden individuals who possess a small amount of marijuana with criminal convictions," Romano writes in his brief to the appellate judges. "A record of conviction could have negative ramifications upon a person's educational and employment opportunities, with such punishment severely disproportionate with the offense. Another obvious concern was the waste of judicial resources on the prosecution of such a non-violent and minimal offense. The trial court's decisions in Mr. Menditto's cases contravene both of these intentions."

Romano further argues that once an offense has been decriminalized, "the court must order that the conviction be erased." He went on to quote the state law regarding the destruction of records of decriminalized offenses: "Whenever any person has been convicted of an offense in any court in this state and such offense has been decriminalized subsequent to the date of such conviction… the Superior Court shall direct all police and court records and records of state's or prosecuting attorney pertaining to such case to be physically destroyed."

Senior Assistant State's Attorney Harry D. Weller sees the case differently, noting that possessing a small amount of marijuana may no longer be a misdemeanor that could land someone in jail for a year but it is still a violation that could result in a ticket and a fine.

"Although the legislature removed possession of less than one-half ounce of marijuana from the definition of a 'crime,' that change did not alter the fact that possession of any amount of marijuana remains an 'offense,' and is punished on a graded scale depending on the amount a defendant possessed," Weller writes. "Thus, possession of marijuana was an 'offense' in 2009, when the defendant was prosecuted, convicted and placed on probation and when he was arrested for violating his probation, and it remained an offense after the effective date of" the law decriminalizing possession.

Weller further argues that if legislators meant to retroactively alter prosecutions and punishments that occurred before the decriminalization, then they would have specifically said so in the decriminalization law. "The savings statutes, therefore, prevent the defendant from prevailing on his claim that the records of his prior conviction must be destroyed thus nullifying his probation," wrote Weller.•