Opinion
(AC 16910)
The defendant, who had been convicted of the crimes of kidnapping in the second degree and risk of injury to a child, appealed to this court after the trial court denied his motion, filed eighteen months after sentencing, to correct his presentence investigation report. Held that the trial court correctly determined that it did not have jurisdiction to consider the defendant's motion, the jurisdiction of the sentencing court having terminated when the sentence was put into effect; that court should, however, have dismissed the motion rather than denying it.
Argued June 1, 1998
Officially released August 11, 1998
Substitute information charging the defendant with the crimes of kidnapping in the first degree, sexual assault in the first degree, attempt to commit assault in the first degree and with three counts of the crime of risk of injury to a child, brought to the Superior Court in the judicial district of New Haven, where the defendant was presented to the court, Damiani, J., on a conditional plea of nolo contendere to one count of kidnapping in the second degree and one count of risk of injury to a child; judgment of guilty, thereafter, the court, Devlin, J., denied the defendant's motion to correct his presentence investigation report, and the defendant appealed to this court. Affirmed.
Norman A. Pattis, special public defender, for the appellant (defendant).
Leon F. Dalbec, Jr., assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Mary Reidy, assistant state's attorney, for the appellee (state).
OPINION
The defendant, Kirk Boulier, appeals from the trial court's denial of his motion to correct his presentence investigation report (PSI). He claims that the trial court improperly denied the motion for lack of jurisdiction because judgment had entered. We affirm the denial of the defendant's motion although the preferred procedure would be to dismiss the defendant's motion.
The defendant was charged by long form information with one count of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59, one count of kidnapping in the first degree in violation of General Statutes § 53a-92, one count of sexual assault in the first degree in violation of General Statutes § 53a-70 and three counts of risk of injury to a child in violation of General Statutes § 53-21. He pleaded nolo contendere to one count of kidnapping in the second degree in violation of General Statutes § 53a-94 and one count of risk of injury to a child in violation of § 53-21.
Prior to sentencing, the court ordered the preparation of a PSI prepared by the office of adult probation, as required by General Statutes § 54-91a. After the PSI was filed and considered, on March 3, 1995, the trial court sentenced the defendant to a total effective sentence of twelve years, execution suspended after five years. On September 20, 1996, eighteen months after the imposition of sentence, the defendant filed a pro se motion to correct his PSI. The motion was denied by the trial court and this appeal followed.
General Statutes § 54-91a (a) provides in relevant part: "No defendant convicted of a crime, other than a capital felony, the punishment for which may include imprisonment for more than one year, may be sentenced, or his case otherwise disposed of, until a written report of investigation by a probation officer has been presented to and considered by the court . . . ."
The trial court sentenced the defendant to a term of twelve years, suspended after five years, on the kidnapping charge and five years, to be served concurrently, on the risk of injury charge.
The defendant claims that the trial court improperly denied his motion to correct the PSI for lack of jurisdiction. He claims that, because the court has ongoing jurisdiction to correct illegal sentences, the trial court should be deemed to have jurisdiction to review the defendant's untimely motion to correct information contained in his PSI that adversely affects his penal classification. This claim is without merit.
It is important to note that the defendant does not claim that the PSI contained inaccurate information, that the trial court improperly relied on information contained therein or that the sentence imposed was excessive or illegal. Instead, the defendant seeks to delete references to sexual conduct relating to the charge of sexual assault in the first degree. The defendant concedes, however, that the references to sexual conduct would not be improper even if he was acquitted of the charge of sexual assault.
The only language contained in the PSI that relates to sexual conduct is as follows. "[I]n full view of the three minor children, the defendant dropped his pants, told the victim that before she died she was going to choke on his penis, and then forced his penis into her mouth."
Even where a defendant claims that the information in a PSI is inaccurate, the trial court does not have jurisdiction to consider a motion to correct the PSI after sentencing. Defense counsel is required to become familiar with the contents of the PSI and to bring to the attention of the judicial authority any inaccuracies. Practice Book §§ 924 and 925, now Practice Book (1998 Rev.) §§ 43-13 and 43-14. Any objection to the PSI must be made prior to sentencing because the trial court is required to consider the information contained in the PSI prior to sentencing. General Statutes § 54-91a.
"The Superior Court is a constitutional court of general jurisdiction. State v. Carey, 222 Conn. 299, 305-306, 610 A.2d 1147 (1992). In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law. Cichy v. Kostyk, 143 Conn. 688, 690, 125 A.2d 483 (1956). It is well established that under the common law a trial court has the discretionary power to modify or vacate a criminal judgment before the sentence has been executed. State v. Walzer, 208 Conn. 420, 426-28, 545 A.2d 559 (1988); State v. Nardini, 187 Conn. 109, 123, 445 A.2d 304 (1982); State v. Pallotti, 119 Conn. 70, 74, 174 A. 74 (1934); State v. Vaughan, 71 Conn. 457, 460-61, 42 A. 640 (1899)." State v. Luzietti, 230 Conn. 427, 431-32, 646 A.2d 85 (1994).
"The jurisdiction of the sentencing court terminates when the sentence is put into effect, and that court may no longer take any action affecting the sentence unless it has been expressly authorized to act. State v. Walzer, 208 Conn. 420, 424-25, 545 A.2d 559 (1988)." State v. Tuszynski, 23 Conn. App. 201, 206, 579 A.2d 1100 (1990). "The legislature has conferred on trial courts continuing jurisdiction to act on their judgments after the commencement of sentence under a limited number of circumstances. See, e.g., General Statutes §§ 53a-29 through 53a-34 (permitting the trial court to modify terms of probation after sentence is imposed); General Statutes § 52-270 (granting jurisdiction to trial court to hear a petition for a new trial after execution of original sentence has commenced); General Statutes § 53a-39 (allowing the trial court to modify sentences of less than three years provided a hearing is held and good cause shown)." State v. Luzietti, 32 Conn. App. 1, 4, 628 A.2d 8 (1993), aff'd, 230 Conn. 427, 646 A.2d 85 (1994).
The defendant cites no legislative or common-law authority that expressly authorizes the trial court to correct a PSI after the sentence is imposed. It is important to emphasize that the defendant is not challenging the legality of the sentence imposed because of an error in the PSI.
Because the trial court correctly determined that it was without jurisdiction to consider the defendant's motion, the trial court should not have denied the motion, but rather dismissed it.
In the circumstances of this case, as in State v. Brown, 40 Conn. App. 483, 487-88, 671 A.2d 1316 (1996), aff'd, 242 Conn. 389, 699 A.2d 943 (1997), we discern no practical difference between a denial and a dismissal.