Opinion
No. CR 01-165585
August 16, 2010
MEMORANDUM OF DECISION RE MOTION TO CORRECT ILLEGAL SENTENCE
The defendant, Carl Alexander, pleaded guilty to Kidnapping in the First Degree, Commission of a Class A, B or C Felony with a Firearm, Robbery in the First Degree and Burglary in the First Degree. He received a total effective sentence of thirty years. He has filed three motions asserting that his sentence is illegal. Considered together, these motions raise four grounds. First, that the defendant's counsel provided "gross misadvice" at the time of the plea such that his guilty pleas were not knowing and voluntary. Second, that his counsel refused to file a motion to withdraw the guilty pleas prior to sentencing resulting in a conflict of interest between the defendant and his counsel. Third, that the § 53-202k sentencing enhancement was illegally applied because a jury did not make the necessary findings as required by State v. Bell, 283 Conn. 748 (2007). Fourth, the defendant's kidnapping conviction was barred by the holding of State v. Salamon, 287 Conn. 509 (2008).
The defendant applied for representation by appointed counsel. After conducting the review prescribed by State v. Casiano, 282 Conn. 614 (2007), Public Defender Joseph Bruckman filed a report indicating that his office would not appear. The defendant is therefore self-represented.
A hearing on the defendant's motions was conducted on August 16, 2010. At the hearing, the defendant supplemented his claims by adding that he misunderstood the consequences of his guilty pleas and was told by his lawyer that he would receive a sentence of twenty years when in fact he had entered an open plea.
Discussion
In considering a motion to correct illegal sentence filed pursuant to Practice Book § 43-22, the court's initial task is to determine whether it has jurisdiction to consider the claim. Jurisdiction of a sentencing court terminates once the sentence has begun unless it has been expressly authorized to act. Cobham v. Commissioner of Correction, 258 Conn. 30, 37 (2001). In State v. Lawrence, 281 Conn. 147 (2007), our Supreme Court identified four common law exceptions to the general rule cited above. Under Lawrence, a court has jurisdiction to consider: (1) whether the sentence was within the permissible range for the crimes charged, (2) whether the sentence violates double jeopardy, (3) whether the computation of the sentence's length as to concurrent/consecutive time is illegal, and (4) whether the correct sentencing statute was applied. Id., 156-57. If the claimed illegality is not within one of those four categories, a motion to correct the sentence must be dismissed because of lack of jurisdiction.
In the present case, none of the defendant's claims fit within the four exceptions identified above. To the contrary, all of the claims pertain to alleged defects in the defendant's convictions as opposed to the sentencing. The claim of ineffective counsel, either based on poor advice or refusal to file a motion to withdraw the guilty pleas, are matters properly addressed in a habeas corpus proceeding. At the hearing on the present motions, the defendant stated that he had, in fact, brought a habeas petition asserting ineffective counsel. The defendant further stated that the habeas court denied the petition. In any event, such claims may not be brought in a motion to correct illegal sentence.
The claim that the application of § 53-202k was barred by State v. Bell lacks merit. Bell concerned the persistent serious felony offender statute, § 53a-40(c); the case has no applicability to the § 53-202k enhancement involved in the present case.
The assertion that the defendant's kidnapping conviction is barred by State v. Salamon, was waived by the defendant's guilty plea. Moreover, this is a claim that attacks the defendant's underlying conviction and is therefore outside the jurisdiction of this court.
Conclusion
The defendant's motion to correct illegal sentence is dismissed based on lack of jurisdiction.
So Ordered, at Bridgeport, Connecticut this 16th day of August 2010.