Opinion
No. CV 92-0418806
May 21, 2004
MEMORANDUM OF DECISION
I. INTRODUCTION
Ellis Dixson, defendant, moves this court pursuant to Practice Book § 43-22 to correct a sentence he claims was imposed in an illegal manner in that the sentence imposed did not conform with the original intent of the parties.
Practice Book § 43-22: 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.
The defendant claims that on September 28, 1993 prior to his entering pleas of guilty in the subject file, a separate proceeding in open court was held wherein petitioner claims Attorney Cramer, defense counsel, inquired of the court, . . . "Your Honor, does the court or the prosecution have any objections to my client not losing any jail time?" The court and the State responded, they "had no problem with that," claims the defendant.
The defendant further claims he relied on said representation by the State and court to his detriment. The defendant claims by that colloquy the defendant was promised credit on the subject file from April 9, 1992 to November 17, 1993, which he was not accorded. This the defendant claims, is a breach of what he bargained for and is a violation of his rights under the due process and equal protection clauses of both the state and federal constitutions.
II. FACTS
The court finds the following facts. On April 9, 1992, the defendant had thee criminal matters pending in the Hartford Judicial District: Docket Nos. CR 90-119896, CR 91-408137 and CR 92-418806. On said date the defendant elected to dispose of two of the criminal matters by way of guilty plea(s). Accordingly, on April 9, 1992, the defendant, in CR 90-119896 and CR 91-408137, entered pleas of guilty and was sentenced on each to a period of incarceration. Docket No. CR 92-418806, the file subject to the claim herein, remained pending, a matter in which, at all relevant times, the defendant was held in lieu of bond.
On September 21, 1993, jury selection commenced on the subject matter before Hon. Arthur L. Spada. A jury was selected and on the day evidence was to commence the defendant sought the benefit of a disposition by plea of guilty.
This court was presiding judge of the judicial district at the time and the parties sought out this court as was the established procedure when a disposition by plea was anticipated.
Accordingly, on September 28, 1993, the defendant entered pleas of guilty to the following charges in CR 92-418806: Kidnapping in the First Degree, a violation of Conn. Gen. Stat. § 53a-92(a)(2)(A); Sexual Assault in the First Degree, a violation of Conn. Gen. Stat. § 53a-70(a)(1); and Assault in the Second Degree, a violation of Conn. Gen. Stat. § 53a-60(a)(2).
The court canvassed the defendant in accordance with Practice Book § 39-19, et seq. It was agreed by the parties that the defendant would receive a 21-year sentence with the right to argue for less but that he should not be optimistic that he would receive less than the 21-year period of incarceration. The court found that the defendant intentionally, knowingly, and voluntarily waived all relevant rights.
The subject matter was continued for sentencing. On November 12, 1993, the court imposed a net effective sentence of 20 years incarceration concurrent to any sentence he was then presently serving.
III. ISSUES
1. Does this court have subject matter jurisdiction to entertain the Motion to Correct Sentence?
2. In entering his pleas of guilty on September 28, 1993 in Docket No. CR 92-418806, did the defendant receive that which he bargained for?
3. Is the defendant entitled to any sentence credit from the sentencing court?
IV. DISCUSSION A. Jurisdiction
The parties have not raised the issue of jurisdiction. The State has conceded the jurisdiction of this court. However, jurisdiction is a matter of law and can be neither waived nor conferred by consent of the parties. Craig v. Bronson, 202 Conn. 93, 101 (1987). Accordingly, the court will address the issue.
The Supreme Court has held that the jurisdiction of the sentencing court terminates once a defendant's sentence has begun, and, therefore, that court may no longer take any action affecting a defendant's sentence unless it expressly has been authorized to act. (Citations omitted.) Practice Book § 43-22, which provides the trial court with such authority, provides that "[t]he 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." "An `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." State v. McNellis, 15 Conn. App. 416, 443-44, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). Cobham v. Commissioner of Correction, 258 Conn. 30, 37-38 (2001).
The defendant herein argues that the sentence was imposed in an "illegal manner." Sentences imposed in an illegal manner have been defined as being "within the relevant statutory limits but . . . imposed in a way which violates 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 on the record, or his right that the government keep its plea agreement promises . . . "8A J. Moore, Federal Practice para. 35.03[2], pp. 35-36 though 35-37; McNellis, supra, p. 444." (Emphasis added.)
The claim of the defendant is that the defendant did not receive that which he bargained for on September 28, 1993, or put another way, that the "government failed to keep its plea agreement promises . . ."
In State v. Pagan, 75 Conn. App. 423 (2003), the Appellate Court held that under the facts of Pagan the court did have jurisdiction to entertain a motion to correct an illegal sentence pursuant to Practice Book § 43-22. In Pagan the defendant claimed that the sentencing court acted on inaccurate information provided by the State at sentencing.
The Appellate Court in Pagan related that "Sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but . . . imposed in a way which violates defendants 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. (Citations omitted; emphasis added by Appellate Court.) State v. McNellis, supra 444.
Based upon the claim of the defendant herein, that the defendant was denied that which he bargained for at the time of sentencing, this court holds, in accordance with McNellis and its progeny, that this court has jurisdiction wherein the claim involves the defendant's "right that the government keep its plea agreement promises."
B. Burden of Proof
Whoever asks the court to give judgment as to any legal right or liability has the burden of proving the existence of the facts essential to his claim. Tait's Handbook of Connecticut Evidence, Third Edition, 2001, § 3.3.1. The burden to prove that the defendant did not receive that which he bargained for is on the moving party, the defendant.
The defendant claims on September 28, 1993, there occurred a separate and distinct judicial proceeding on the record — prior to the judicial proceeding of the same day wherein the defendant entered pleas of guilty to the information and was canvassed — wherein, claims the defendant, the court and the state's attorney, in response to an inquiry by Attorney Cramer, represented that the defendant would not be ". . . losing any jail time . . ."
The defendant further claims that this colloquy at this "prior proceeding" is interpreted by the defendant to be a promise to the defendant, on which he relied, that relevant to the plea agreement the defendant will receive credit on this file retroactive from April 9, 1992 to November 12, 1993.
The April 9, 1992, date reflects when the defendant was sentenced to a period of incarceration on two other files. (Docket Nos. CR 90-119896 and CR 91-408137.) Commencing April 9, 1992, the defendant ceased to receive jail credit on the subject file (CR 92-418806) as he was then serving a jail sentence on other matters.
The November 12, 1993, date reflects the date of sentence on the subject file wherein he began to receive jail credit on the subject file.
The court conducted an evidentiary hearing and the defense called as a witness the defendant and the Assistant State's Attorney, Edward Narus.
Aside from the testimony of Mr. Dixson, the defendant offered no record, transcript or other corroborating indicia that a separate judicial proceeding, prior to the proceeding wherein pleas were entered and the defendant was canvassed, was held on September 28, 1993.
The record reflects one proceeding before this court on September 28, 1993, and one proceeding only.
The defendant failed to establish any proceeding before this court other than the proceeding of September 28, 1993, wherein pleas of guilty were entered on the subject file, a canvass was made by the court of the defendant, and the court entered findings that the pleas were knowing, intelligent and voluntary waivers of the defendant's rights. (See Transcript, September 28, 1993.)
C. Plea Canvass
Counsel for the defendant minimizes the import of the judicial proceeding on September 28, 1993, wherein the petitioner entered pleas of guilty and was canvassed by the court.
The Court: . . . What effect, if any, does the canvass have?
Ms. Krol: I — I don't think it has any impact on it, because this is outside of what that canvass was. I mean —
The Court: You don't think that by a judge inquiring if any other promises were made to this individual to induce him to plead, you don't think — you think that makes — that is something not relevant or outside?
Ms. Krol: Well, I don't think it contradicts what Mr. Dixson's claim is at all. Mr. Dixson's claim is that he believed concurrent meant fully concurrent, not just concurrent to an undischarged term. There's nothing in the record on that plea saying that it's only going to be concurrent to an undischarged term, and there's nothing in the record saying that it's going to be fully concurrent. It's supplementing the record. It's in addition to. It's not contradicting it. (Transcript, February 5, 2004, page 54.)
The record reveals that on September 28, 1993, the court made the following inquiry, inter alia, and the defendant responded:
The Court: Now, you understand, sir, that besides that recommendation of that court — indicated sentence [a net effective sentence of 21 years incarceration] with a right to argue for less — besides that — have any other promises been made to you in order to induce you to plead guilty?
Defendant: No. CT Page 8228
(Transcript September 28, 1993, page 7.)
A plea canvass wherein a defendant pleads guilty and waives certain constitutional rights and satisfies the court that his plea is a knowing, intelligent and voluntary waiver of those rights is a most significant proceeding. It, in effect, with the sentencing, is such a process that brings a prosecution to a conclusion.
The defendant wants us to believe that this "prior hearing," of which no record could be found, was most significant to the defendant because he elicited from the prosecutor and the court that he would "lose no jail time," and, the defendant wants the court to believe that it was so significant that it induced his decision to plead guilty to his detriment. It was so important to the defendant that when inquiry was made by the court during the plea canvass as to whether any other promises were made to him to induce his plea he answered in the negative.
Although the plea canvass has not been challenged, it is noteworthy that the inquiry by the court must be in substantial compliance with P.B. §§ 39-18 et seq.
"Under Boykin [ v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)], in order for a plea to be knowingly, voluntarily and intelligently made, a trial court is required to advise a defendant that his plea operates as a waiver of three fundamental constitutional rights — jury trial, confrontation and self incrimination." (Citations omitted.) There is no requirement, however, that the defendant be advised of every possible consequence of such a plea." (Citations omitted.) Mainiero v. Liburdi, 214 Conn. 717, 725 (1990).
D. A Matter for the Commissioner
The authority to grant presentence credit is vested in the Commissioner of Correction under General Statutes § 18-98d(c) which provides "The Commissioner of Correction shall be responsible for ensuring that each person to whom the provisions of this section apply receives the correct reduction in such person's sentence; provided in no event shall credit be allowed under subsection (a) of this section in excess of the sentence actually imposed."
General Statutes § 18-98d(a)(1) provides in relevant part: "Any person who is confined to . . . a correctional institution . . . because such person is unable to obtain bail . . . shall if subsequently imprisoned, earn a reduction of such person's sentence equal to the number of days which such person spent in such facility from the time such person was placed in presentence confinement to the time such person began serving the term of imprisonment imposed; provided (A) each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement . . ." (Emphasis added.)
When the defendant was sentenced to a period of incarceration on unrelated matters on April 9, 2002, credit ceased on the subject file by operation of law — "each day of pre-sentence confinement shall be counted only once" — and that credit time was applied to the files on which he was sentenced on April 9, 1992 to the time of sentence on the subject file on November 12, 1993 when credit resumed on subject file.
When a person who is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment the sentence imposed by the court shall run either concurrently or consecutively with respect to each other and to the undischarged term or terms in such a manner as the court directs at the time of sentence. CGS Sec. 53a-37. In the instant matter the court articulated the net effective sentence and ordered that it be served concurrently to other sentences the defendant was serving.
CONCLUSION
The court finds that the defense failed to demonstrate there existed a "prior proceeding" where certain promises were made to the defendant.
Arguendo, if such a "prior proceeding" had taken place and the colloquy took place as testified to by the defendant, the representation that the defendant "would lose no jail time" would not have the desired effect the defendant postulates.
The defendant received exactly that for which he bargained. In the event the parties intended to grant the defendant the credit he seeks there would have been a request of the court to either make its sentence retroactive to April 9, 1992, authority which the court may not possess or, there would be a request that there be a commensurate reduction in the 20 years (or 21 years) sentence reflecting that credit defendant claims he is due — a reduction in the sentence of some 20 months. (The period of time from April 9, 1992 to November 12, 1993.) In other words, the court would have had to fashion a sentence that would result in a sentence being imposed of 18 years and 4 months incarceration (instead of the 20-year period). There was no such request. That was neither the intent of the parties nor the court.
The defendant has no reasonable expectation of anything other than that which he received. The defendant received the exact sentence he bargained for: A net effective sentence of twenty (20) years concurrent to any other sentence he was serving.
The sentence was in conformity with the intent of the parties and in conformity with the agreement articulated in open court. The sentence was not imposed in an illegal manner.
The defendant's Motion to Correct Sentence is DENIED.
Miano, J.