Opinion
No. CR01-0092961
August 27, 2007
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO CORRECT
Pursuant to Practice Book § 43-22, the defendant filed a motion to correct his sentence, and requested the relief of the issuance of a revised mittimus. The court held a hearing on the motion on June 22, 2007 and after hearing evidence, the court denied the motion. The court files its memorandum of decision on the motion, pursuant to Practice Book § 64-1.
The defendant argues two grounds for his motion: (1) that his sentence violates his federal and state right to due process; and (2) that his sentence violates his right against double jeopardy. The court lacks jurisdiction to entertain the defendant's motion to correct his sentence on either ground; therefore, the defendant's motion is dismissed.
The court finds the following facts as proven at the June 22, 2007 hearing. On November 30, 2000, the defendant, Nathaniel Carmonas, was arrested for sale of narcotics, in violation of General Statutes § 21a-277(a). He was arraigned in Bridgeport on December 1, 2000, and posted bond shortly thereafter (the Bridgeport file). The defendant remained out on bond until April 28, 2001, when he was arrested for robbery in the second degree, in violation of General Statutes § 53a-135. The defendant was arraigned on this charge in Norwalk on April 30, 2001, and was subsequently held on bond (the Norwalk file). On June 4, 2001, the bond in the Bridgeport file was raised. On November 28, 2001, the defendant pleaded guilty in the Bridgeport file and received a sentence of five years, execution suspended after eighteen months, and three years probation. On March 18, 2002, the defendant pleaded guilty in the Norwalk file and received a sentence of five years, execution suspended after twenty months, and four years probation to run concurrently with the sentence in the Bridgeport file.
The department of correction credited both the Bridgeport and Norwalk sentences with presentence confinement credit. In the Bridgeport file, the defendant received 177 days of credit for the time he served from June 4, 2001, the date the bond was raised, to November 28, 2001, the date he was sentenced. Therefore, the defendant's discharge date was calculated to be November 29,2002. In the Norwalk file, the defendant received 212 days of credit for the time he served from April 30, 2001, the date of his arraignment in that file, to November 28, 2001, the date of his sentencing in the Bridgeport file. Accordingly, the defendant's discharge date was calculated to be May 19, 2003. On that date, the defendant was released to probation.
"[T]he purpose of the `jail-time' statutes is to give recognition to the period of presentence time served and to permit the prisoner, in effect, to commence serving his sentence from the time he was compelled to remain in custody due to a mittimus . . . or because of the court's refusal to allow bail or the defendant's inability to raise bail." (Emphasis in original; internal quotation marks omitted.) Mims v. Warden, 50 Conn.Sup. 328, 332-33 (2003).
The defendant, however, could not be released from prison on this date because of his sentence in the Norwalk file. "If more than one sentence is imposed on a prisoner, the [commissioner of correction] calculates the incarceration period and discharge date by applying the provisions of General Statutes § 53a-38(b), which provides in relevant part: `Where a person is under more than one definite sentence, the sentence shall be calculated as follows: (1) If the sentences run concurrently, the terms merge in and are satisfied by discharge of the terms which has the longest term to run . . .'" Harris v. Commissioner of Correction, 271 Conn. 808, 819, 860 A.2d 715 (2004).
The four months between the defendant's sentencing hearing in Bridgeport and his sentencing hearing in Norwalk is considered "dead time." "`Dead time' is prison parlance for presentence confinement time that cannot be credited because the inmate already is a sentenced prisoner serving time on another sentence. See State v. Hamilton, 228 Conn. 234, 255, [ 636 A.2d 760] (1994); General Statutes § 18-98d(a)(1)(B)." Ruffin v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 98 0002658 (November 10, 2003, White, J.)
Almost three years later, on April 25, 2006, the defendant was arrested for violation of probation in the Bridgeport file. The defendant was arrested for violation of probation in the Norwalk file two days later, on April 27, 2006. On July 14, 2006, the defendant admitted to the violation of probation in the Norwalk file and was sentenced to twenty months in prison. On July 18, 2006, the defendant admitted to the violation of probation in the Bridgeport file and was sentenced to one year in prison, to run concurrently with the Norwalk sentence.
The department of correction credited the defendant with seventy-eight days of presentence confinement credit on the Norwalk violation of probation sentence for the time the defendant served from his arraignment on April 27, 2006, to his sentencing on July 14, 2006. Accordingly, the defendant's discharge date for the violation of probation in Norwalk would have been December 27, 2007. The department of correction, however, added 177 days to the sentence as time owed, based on its interpretation of the Supreme Court's decision in Harris v. Commissioner of Correction, 271 Conn. 808, 860 A.2d 715 (2004), which had been decided after the defendant served his time on the underlying charges in the Bridgeport and Norwalk files, but before he violated his probation in those files. Therefore, the defendant's discharge date was calculated to be June 14, 2008.
On November 30, 2004, the Supreme Court released its decisions in Harris v. Commissioner of Correction, supra, 271 Conn. 808, Cox v. Commissioner of Correction, 271 Conn. 844, 860 A.2d 708 (2004), and Hunter v. Commissioner of Correction, 271 Conn. 856, 860 A.2d 700 (2004). This trio of cases, with Harris being the lead case, addressed the proper calculation and application of jail credits in the context of multiple sentences running concurrently. In Harris, the Supreme Court concluded that "when concurrent sentences are imposed on different dates, the presentence confinement days accrued simultaneously on more than one docket are utilized fully on the date that they are applied to the first sentence. Hence, they cannot be counted a second time to accelerate the discharge date of any subsequent sentence without violating the language of § 18-98d(a)(1)(A)." Harris v. Commissioner of Correction, supra, 271 Conn. 823. In the present case, the department of correction applied 177 presentence confinement days the defendant accrued simultaneously on the Bridgeport and Norwalk file to both sentences. In light of Harris, the department of correction decided that it should take back the 177 days of presentence confinement credit it gave to the defendant in the Norwalk file, as it was second in time, and add it to the defendant's sentence for violation of probation in that file.
In response to the addition of 177 days to his sentence by the department of correction, the defendant, on May 29, 2007, filed a motion to correct his sentence to this court. In the motion, the defendant requests that the court correct his sentence for violation of probation in the Norwalk file and issue a revised mittimus that reflects his presentence confinement credit from June 4, 2001, to November 28, 2001. The defendant seeks to have the court enforce the sentence that he agreed to and that was imposed on him at the sentencing hearing. The defendant filed a memorandum of law in support of his motion. The state has not filed a memorandum in response. On June 22, 2007, the parties presented oral argument to this court. The court orally denied the motion, and the instant memorandum of decision sets for the legal reasoning.
The defendant states that his discharge date in the Bridgeport file is not at issue because the recalculation of credit after the violation of probation sentence did not elongate his term of incarceration.
Before considering the merits of the defendant's claim, the court is first required to determine whether it has jurisdiction to entertain the motion to correct sentence. The sentencing court is without jurisdiction to modify a criminal judgment once the defendant has begun serving his sentence, unless it is expressly authorized to do so. State v. Lawrence, 281 Conn. 147, 154, 913 A.2d 428 (2007). The reason for this is "[w]hen the sentence is put into effect and the prisoner is taken in execution, custody is transferred from the court to the custodian of the penal institution. At this point jurisdiction over the prisoner terminates." (Internal quotation marks omitted.) Id. Practice Book § 43-22, however, provides a common-law exception to this rule that allows a defendant to file with the trial court a motion to correct an illegal sentence after it has been executed. Cobham v. Commissioner of Correction, 258 Conn. 30, 38, 779 A.2d 80 (2001). Practice Book § 43-22 provides: "The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner."
A criminal defendant may also seek to correct an illegal sentence via a direct appeal. State v. Casiano, 282 Conn. 614, 625, 922 A.2d 1065 (2007). "[A] defendant either must appeal the sentence directly or file a motion to correct the sentence pursuant to § 43-22 with the trial court before raising a challenge for the first time in a petition for a writ of habeas corpus." Cobham v. Commissioner of Correction, CT Page 14723 supra, 258 Conn. 39.
Nonetheless, "for the trial court to have jurisdiction to consider the defendant's claim of an illegal sentence, the claim must fall into one of the categories of claims that, under the common law the court has jurisdiction to review." State v. Lawrence, supra, 281 Conn. 155. "[A]n illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory." (Internal quotation marks omitted.) Id., 156. "The other circumstance in which a claimed illegal sentence may be reviewed is that in which the sentence is within the relevant statutory limits . . . but [is] imposed in a way which violates [the] defendant's right . . . to be addressed personally at sentencing and to speak in mitigation of punishment . . . or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises . . ." (Internal quotation marks omitted). State v. Casiano, 282 Conn. 614, 624 n. 14, 922 A.2d 1065 (2007).
Furthermore, "[i]n order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding [itself] . . . must be the subject of the attack." (Internal quotation marks omitted.) State v. Casiano, supra, 282 Conn. 625; see also State v. Lawrence, supra, 281 Conn. 158. A challenge to what transpired after the sentencing hearing is not properly addressed through a motion to correct, as it must be what transpired at the sentencing hearing itself that is claimed to be illegal. See State v. Lawrence, supra, 281 Conn. 158. In the present case, the defendant argues that the court has jurisdiction to entertain his motion to correct based on the two following claims: (1) his sentence was imposed in an illegal manner because the state breached the plea agreement, in violation of his federal and state right to due process; and (2) his sentence was illegal because it violated his rights against double jeopardy. In its oral argument, the state counters that the court lacks jurisdiction to correct the sentence because the sentence was not illegal at the time the court entered it, as the decision regarding the addition of the 177 days to the original sentence was that of the department of correction.
The first claim presented is whether the sentence violated the defendant's due process because it was imposed in an illegal manner. Due process requires that a guilty plea must be knowingly and voluntarily entered. State v. Reid, 277 Conn. 764, 780, 894 A.2d 963 (2006). "When a guilty plea is induced by promises arising out of a plea bargaining agreement, fairness requires that such promises be fulfilled by the state." (Internal quotation marks omitted.) State v. Revelo, 256 Conn. 494, 516, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S.Ct. 639, 151 L.Ed.2d 558 (2001). "If the state makes promises to the defendant in order to induce a guilty plea . . . [t]he breaking of a promise made by the prosecutor as a result of plea negotiations is sufficient to invalidate a conviction . . ." (Citation omitted; internal quotation marks omitted.) State v. Nelson, 23 Conn.App. 215, 219, 579 A.2d 1104, cert. denied, 216 Conn. 826, 582 A.2d 205 (1990), cert. denied, 499 U.S. 922, 111 S.Ct. 1315, 113 L.Ed.2d 248 (1991); see also Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).
Because the sentencing proceeding itself must be under attack for the court to have jurisdiction to entertain a motion to correct, a defendant must allege that the violation of the plea agreement that caused the denial of his due process rights occurred at the sentencing hearing. See State v. Lawrence, supra, 281 Conn. 159. It is generally held that the sentencing court lacks jurisdiction to entertain a motion to correct in which a defendant claims that his sentence was imposed in an illegal manner because of the department of correction's handling of presentence confinement credits after sentencing. Instead, issues pertaining to the way presentence confinement credits are calculated should be directed to the habeas court. See State v. Morales, Superior Court, judicial district of Hartford, Docket No. CR01 551237 (December 9, 2003, Keller, J.).
In State v. Mims, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CR 97 77276 (December 3, 2002, Kavenewsky, J.) ( 33 Conn. L. Rptr. 463), the defendant brought a motion to correct his sentence to the trial court on the ground that the sentence was imposed in an illegal manner because it did not comport with the plea agreement. The defendant claimed that pursuant to the plea agreement, he would serve no more than eight years on the total effective sentence imposed on three of his dockets; however, the department of correction, based on its interpretation of § 18-98d, added 403 days to the eight years. Id., 463-64. The court held: "[T]he defendant's claims are not appropriate for relief under a motion to correct sentence. The claims do not attack the validity of the sentence. Therefore, this court lacks jurisdiction." Id., 464.
The department of correction's interpretation of § 18-98d(a)(1)(A) was consistent with the Supreme Court's interpretation of it a year later in Harris, Hunter and Cox. Consequently, the department did not allow the defendant to apply the 403 days to docket one, since it had already been applied to two and three.
After the trial court denied his motion to correct, the defendant (hereinafter the petitioner) filed a petition for a writ of habeas corpus, claiming that his confinement had been illegally lengthened in violation of his state and federal constitutional due process through the state's failure to honor the plea bargain into which he entered with the state. Mims v. Warden, 50 Conn.Sup. 328, 329 (2003). While the habeas court granted the relief requested, it was a decision made by the habeas court and not as a result of a motion to correct a sentence.
In Zabian v. Commissioner of Correction, Superior Court, judicial district of Tolland, Docket No. CV 06 4000948 (May 14, 2007, Fuger, J.) [ 43 Conn. L. Rptr. 636], in response to writ of habeas corpus filed by the defendant in which he alleged that his sentence was imposed in an illegal manner because he was not receiving the jail credit that was a term of the pretrial agreement, the habeas court stated: "There is, to be sure, a dispute over the jail credit to be allowed, but this does not affect the legality of the sentences that were handed down by the trial court . . . Since there was and is no illegality about the sentence, the trial court quite appropriately, then, declined to grant relief [on the defendant's motion to correct] as it was without jurisdiction to do so." (Citations omitted; emphasis in original). Id. The court held, however, that it could hear the defendant's claim of a violation of the plea agreement in accordance with Santobello v. New York, supra, 404 U.S. 257. Id.; compare State v. Dixson, Superior Court, judicial district of Hartford, Docket No. CV 02 0418806 (May 21, 2004, Miano, J.) (trial court held it had jurisdiction to entertain the motion to correct because the defendant claimed the state personally promised him he would receive jail credit, so that he was denied that which he bargained for when he did not receive it at the time of the sentencing), aff'd, 93 Conn.App. 171, 888 A.2d 1088, cert. denied, 277 Conn. 917, 895 A.2d 790 (2006).
In the present case, the defendant is not alleging that there was a denial of his right to due process at the sentencing hearing, as the defendant claimed in Dixson, The exact terms of the plea bargain into which the defendant entered with the state were imposed upon him by the court at the sentencing hearing. Instead, the defendant is attacking the department of correction's addition of 177 days to his sentence after the hearing, like the defendants in Zabian and Mims. The defendant alleges that this act by the department of correction caused his sentence to be imposed in an illegal manner because it was in contravention of his plea agreement. The department of correction, however, was not a party to the plea agreement. Therefore, although the defendant's claim attacks the legality of his sentence as applied by the department of correction, the state is correct that the court lacks jurisdiction to entertain that claim by way of a motion to correct the sentence because the sentencing proceeding itself is not subject to the attack. The defendant's sentence does not violate due process, as it was not imposed in an illegal manner.
The defendant's next claim is that his sentence is illegal as it violates his rights against double jeopardy. "The fifth amendment's prohibition of double jeopardy protects persons against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction and (3) multiple punishments for the same offense in a single trial." (Internal quotation marks omitted.) State v. Culver, 97 Conn.App. 332, 336-37, 904 A.2d 283, cert. denied, 280 Conn. 935, 909 A.2d 961 (2006). In the context of a motion to correct, because the sentencing proceeding itself must be under attack for the court to have jurisdiction, the defendant must allege that the prohibition of double jeopardy was violated at the sentencing proceeding. Sec State v. Casiano, supra, 282 Conn. 625; State v. Lawrence, supra, 281 Conn. 158. Therefore, in cases in which a trial court has determined that it had jurisdiction to entertain a motion to correct based on the defendant's claim that his sentence was illegal due to a double jeopardy violation, the defendant has alleged that it was the sentencing court itself that committed the violation by handing down multiple punishments for the same offense in a single trial.
In State v. Cator, 256 Conn. 785, 804-05, 781 A.2d 285 (2001), for example, after the defendant had been convicted and sentenced for murder and felony murder, upon the state's motion to correct the sentence, the trial court concluded that the original sentence violated the defendant's right against double jeopardy and, accordingly, pursuant to § 43-22, corrected the sentence, merging the convictions and vacating one of the sentence. The Supreme Court held that "[a] sentence that punishes a defendant twice for the same action violates the prohibition against double jeopardy . . . Therefore, the original sentence imposed by the trial court was illegal, and the trial court had jurisdiction to correct the sentences pursuant to Practice Book § 43-22 . . ." (Citations omitted). Id., 804; see also State v. Mitchell, 37 Conn.App. 228, 231-32, 655 A.2d 282 (2001) (on direct appeal, court held that the sentence was illegal when the trial court sentenced the defendant to multiple punishments for same offense contrary to General Statutes § 53a-40; however, the defendant's claim was moot because the trial court already corrected the sentence).
In the present case, the defendant alleges that the addition of 177 days to his sentence for violation of probation by the department of corrections violates his right against double jeopardy because it extends his period of incarceration on the underlying charge since the violation of probation is not a new offense or a new sentence. The defendant, however, has not alleged any wrongdoing on the part of the trial court at his sentencing hearing. More specifically, he has failed to allege that the court violated his rights against double jeopardy by handing down multiple punishments for the same offense in a single trial. Therefore, the sentencing hearing itself is not the subject of the attack and the court lacks jurisdiction to entertain the defendant's motion on this claim as well.
This latter assertion by the defendant is incorrect. A violation of probation is a new offense and a defendant can be subject to a new sentence. See General Statutes § 53a-32(b). If the defendant is subject to any sentence that is different from the original sentence imposed, the original sentence is deemed revoked. General Statutes § 53a-32(b).
For all of the above reasons, the court lacks jurisdiction to entertain the defendant's motion to correct sentence on either of the two claims put forth by the defendant and the motion is dismissed.
A lack of jurisdiction requires a dismissal, rather than a denial of the defendant's § 43-22 motion. State v. Taylor, 91 Conn.App. 788, 791, 882 A.2d 682 (2005); see also State v. Lawrence, 86 Conn.App. 784, 790, 863 A.2d 235 (2005), aff'd, 281 Conn. 147, 913 A.2d 428 (2007).