Opinion
CR060214337T
03-23-2016
State of Connecticut v. Jason Behmlander
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO CORRECT ILLEGAL SENTENCE DATED FEBRUARY 2, 2016
Robert J. Devlin, J.
The defendant, Jason Behmlander, is presently serving a total effective sentence of 25 years suspended after 15 years and 35 years of probation. This sentence was imposed following a jury verdict convicting the defendant of unlawful restraint in the first degree in violation of General Statutes § 53a-95 and sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1). As noted by the state, the defendant has previously attacked his conviction in eight post-conviction matters: (1) direct appeal, (2) three petitions for writ of habeas corpus, (3) two habeas appeals, (4) one prior motion to correct Illegal sentence, (5) one appeal from the ruling on the motion to correct illegal sentence and (6) sentence review. See State Of Connecticut Notice Of Defenses And Opposition To Defendant's Second Motion To Correct His Sentence.
In the present motion, the defendant is self-represented and has not sought to have counsel appointed. His claim is that his sentence is illegal because the sentencing court (Rodriguez, J.) relied on information that was not in the record and used that information to impose consecutive sentences. The defendant seeks to have the sentences imposed on the two counts of conviction ordered to run concurrently. A hearing in the motion was held on March 9, 2016.
The defendant's claim is based on the following remarks made by counsel and the court at his December 18, 2006 sentencing hearing:
MR. HARRY: Your Honor, my only recommendation also would be that there's two charges and I'd seek that they be consecutive sentences.
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MR. CANNATELLI: I think consecutive sentences are inappropriate at this point, your Honor, and I think that there would be no need to do that in light of the charges.
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THE COURT: . . . The unlawful restraint, in my opinion given the facts of the case, was a lesser included offense of kidnapping in the first or second degree which would expose you to a greater sentence. And when your lawyer, Mr. Cannatelli, makes note of his objection to the State's request in light of the charges, I make reference to the charges for that reason because kidnapping in the first degree or the second degree would have exposed you to a greater period of incarceration for that conduct when you were driving around, lost in the dark, against her wishes in your truck, and forcing her to engage in sexual contact with you, not to mention smoking marijuana and taking Valium, which again you shift that to her as if she brought it to you for your consumption.
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With regards to the unlawful restraint in the first degree, the court imposes a sentence of 5 years of incarceration to serve. With regards to the sexual assault offense, the court will impose of 20 years which is suspended after you serve 10 years, 2 years being a mandatory minimum period. That sentence is to run consecutive to the previous sentence. And a period of probation of 35 years with special conditions that I have reviewed with Mr. Behmlander. For a total effective sentence of 25 years suspended after 15, 2 years mandatory minimum, and 35 years of probation. The sentence is imposed.
December 18, 2006 Sentencing Transcript, pp 17-23 (emphasis added).
The defendant asserts that, because he was never charged with kidnapping in the first or second degree, the court's statement that the unlawful restraint charge was a lesser included offense of those charges meant that the court relied on inaccurate information thereby making the sentence illegal.
The state opposes the motion asserting: (1) the court lacks jurisdiction to consider the merits of the defendant's claim, (2) the defendant is procedurally defaulted from raising the preset claim, (3) the defendant's claim is barred by res judicata, (4) the defendant has waived his ability to raise the present claim, and (5) the court did not rely on inaccurate information in imposing the sentence.
For the reasons set forth below, this courts finds that it lacks jurisdiction to consider the defendant's claim. Alternatively, if this court has jurisdiction, the court finds that the sentencing court did not rely on materially inaccurate information in imposing the sentence.
DISCUSSION
The defendant was sentenced only on the unlawful restraint and sexual assault charges for which he was convicted. In addition, the sentences he received were within the range of authorized sentences for those offenses. Moreover, the court's decision to impose consecutive sentences on the two counts is expressly authorized by statute. See General Statues § 53a-37 (when multiple sentences are imposed on a person at the same time the sentences shall run either concurrently or consecutively with respect to each other as the court directs at the time of sentencing).
As noted above, the defendant claims that the court's mention of kidnapping in the first or second degree suggests that the court relied on inaccurate information in imposing consecutive sentences. When read in the context of the complete sentencing remarks, however, the reference to kidnapping in the first or second degree can fairly be read as a mere rhetorical device intended to convey the court's opinion of the seriousness of the unlawful restraint charge. The remarks were akin to stating that the unlawful restraint charge was based on conduct approaching that which would constitute kidnapping; or that the defendant's conduct almost amounted to kidnapping. It is apparent that the sentencing court made these remarks to explain why it was imposing the maximum allowed sentence on the unlawful restraint count to be served consecutively with the sentence on the sexual assault count.
I
JURISDICTION
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, 779 A.2d 80 (2006). In State v. Lawrence, 281 Conn. 147, 913 A.2d 428 (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 violated 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. The defendant's claim does not fit within any of these common law exceptions.
Our Appellate Court has ruled that a trial court does have jurisdiction to review a claim that a sentencing court relied on materially inaccurate information. State v. Charles F., 133 Conn.App. 698, 704, 36 A.3d 731 (2012). That case involved alleged factual inaccuracies in the defendant's presentence report. See also, State v. Parker, 295 Conn. 825, 839, 992 A.2d 1103 (2010) (a sentence " imposed in an illegal manner" is one that violates the right to be sentenced by a judge relying on accurate information).
In the present motion, the defendant's claim is not addressed to a factual inaccuracy but rather to the court's opinion as to the seriousness of the offense conduct. In the sentencing court's opinion, the unlawful restraint offense was almost as bad as kidnapping. While the defendant may disagree with the sentencing court's view and may object to the style of the court's comments, it amounts to a difference of opinion and not fact. Such a claim is beyond the jurisdiction of this court.
The motion to correct illegal sentence must be dismissed.
II
INACCURATE INFORMATION
If this court is deemed to have jurisdiction, the motion must be denied because it lacks merit.
As discussed above, a sentence is illegal if the sentencing court relied on materially inaccurate information. In the present case, there was nothing inaccurate about the information considered by the court. Contrary to the defendant's assertion, the sentencing court did not use information not in the record to impose consecutive sentences. As discussed above, the sentencing court compared the evidence supporting the unlawful restraint charge with the type of conduct that is close to kidnapping. These were appropriate comments explaining why the court chose to impose a 5 year consecutive sentence. See Practice Book § 43-10(6) (in cases where sentence review is available, the judicial authority shall state on the record, in the presence of the defendant, the reasons for the sentence imposed).
The motion to correct illegal sentence on the basis that the sentencing judge relied on materially inaccurate information is denied.
CONCLUSION
The motion is dismissed because the court lacks jurisdiction. If this court is deemed to have jurisdiction, the motion is denied.
So Ordered at Bridgeport, Connecticut this 23rd day of March 2016.