Opinion
(AC 32581)
The defendant, who had been convicted, on a guilty plea, of the crimes of felony murder, robbery in the first degree and conspiracy to commit robbery in the first degree, appealed to this court from the judgment of the trial court denying his motion to correct an illegal sentence imposed for his conviction of felony murder. The trial court, during the plea canvass, had advised the defendant that the crime of felony murder carried a mandatory minimum sentence of twenty-five years and, in accordance with a plea agreement, had imposed an effective sentence of twenty-eight years imprisonment and again advised the defendant that there was a twenty-five year mandatory minimum sentence as part of the twenty-eight year sentence that the court imposed for felony murder. In his motion to correct an illegal sentence, the defendant claimed that it was improper for the court to designate any portion of the sentence for felony murder as a mandatory minimum. Held that the trial court properly denied the defendant's motion to correct an illegal sentence, the defendant's claim that the crime of felony murder does not carry a mandatory minimum sentence having lacked merit; our Supreme Court previously has determined that murder, as a class A felony, requires a mandatory minimum sentence of twenty-five years imprisonment, and the fact that the defendant pleaded guilty to felony murder rather than murder did not affect that determination because felony murder is simply one form of the crime of murder.
Argued January 3, 2011
Officially released April 5, 2011
Substitute information charging the defendant with the crimes of murder, felony murder, attempt to commit robbery in the first degree, robbery in the first degree, conspiracy to commit robbery in the first degree, robbery in the second degree, assault in the first degree, criminal possession of an assault weapon and criminal possession of a firearm, brought to the Superior Court in the judicial district of Hartford, where the defendant was presented to the court, Solomon, J., on a plea of guilty to felony murder, robbery in the first degree and conspiracy to commit robbery in the first degree; thereafter, the state entered a nolle prosequi as to the charges of murder, attempt to commit robbery in the first degree, robbery in the second degree, assault in the first degree, criminal possession of an assault weapon and criminal possession of a firearm; judgment of guilty; subsequently, the court, Gold, J., denied the defendant's motion to correct an illegal sentence, and the defendant appealed to this court. Affirmed.
Aaron J. Romano, for the appellant (defendant).
Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, Dennis J. O'Connor, supervisory assistant state's attorney, and Sandra L. Tullius, former senior assistant state's attorney, for the appellee (state).
Opinion
The defendant, Justin Cross, appeals from the denial by the trial court of his motion to correct an illegal sentence imposed eight years ago for his conviction of felony murder in violation General Statutes § 53a-54c. We affirm the judgment of the trial court.
On May 30, 2003, the defendant pleaded guilty to felony murder in violation of § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2). During the plea canvass, the court advised him that the crime of felony murder "carries a maximum sentence of up to life imprisonment, which, in the state of Connecticut, is sixty years, and a mandatory minimum of twenty-five years. Do you under stand that?" (Emphasis added.) The defendant answered in the affirmative. On August 29, 2003, in accordance with a plea agreement, the court imposed an effective sentence of twenty-eight years imprisonment. In doing so, the court again advised the defendant that there was a twenty-five year mandatory minimum sentence as part of the twenty-eight year sentence that the court imposed for felony murder. Accordingly, the mittimus notes a twenty-five year mandatory minimum sentence as part of the sentence for felony murder.
In 2009, the defendant filed this motion to correct an illegal sentence, claiming that it was improper for the court to designate any portion of the sentence for felony murder as a mandatory minimum and requesting that the mittimus be amended accordingly. The court denied the motion, and this appeal followed.
The court first rejected the state's contention that it lacked subject matter jurisdiction to correct the allegedly illegal sentence. The state does not challenge that ruling in this appeal.
The defendant claims that the crime to which he pleaded guilty, namely, felony murder, "does not carry a mandatory minimum sentence." We disagree.
This claim is controlled by State v. Lopez, 197 Conn. 337, 353-55, 497 A.2d 390 (1985). "The defendant appears to argue that it is unclear whether the legislature intended murder to have a minimum sentence of twenty-five years without suspension. A brief review of our statutory sentencing provisions demonstrates that his argument is without merit. General Statutes § 53a-28 requires that a period of probation or conditional discharge be imposed upon the entire or partial suspension of a sentence. General Statutes § 53a-29 prohibits the imposition of a period of probation or conditional discharge for a class A felony. Under General Statutes § 53a-35a, murder is defined as a class A felony requiring a mandatory minimum sentence of twenty-five years imprisonment. Thus the trial court was correct in its determination that it lacked the authority to suspend a portion of the minimum twenty-five year sentence." Id. The fact that the defendant pleaded guilty to felony murder rather than murder is of no moment because felony murder is simply one form of the crime of murder. See General Statutes § 53a-54c; State v. Jones, 234 Conn. 324, 364-65, 662 A.2d 1199 (1995) (Borden, J., concurring in part and dissenting).
The judgment is affirmed.
In this opinion the other judges concurred.