Opinion
No. CR 90-391532
June 7, 2011
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO CORRECT A SENTENCE IMPOSED IN AN ILLEGAL MANNER
This motion to correct opens yet another chapter in what is already a lengthy history of attempts by the defendant to challenge his conviction, confinement and sentence. The defendant has filed multiple petitions for a writ of habeas corpus and motions to correct an illegal sentence, as well as a number of other civil actions, and has pursued appellate review of the denial of many of these claims. All of this litigation stems from, in one manner or another, the defendant's conviction for murder in violation of General Statutes § 53a-54a(a) and the corresponding fifty-year term of imprisonment imposed by the sentencing court, Miano, J., on April 15, 1992.
Francis v. Warden, Superior Court, judicial district of New Haven, Docket No. CV 97 0397398 (October 30, 1997, Freedman, J.T.R.), appeal dismissed, 51 Conn.App. 460 (1999); Francis v. Warden, Superior Court, judicial district of Hartford, Docket No. CV 95 0660706 (February 19, 1998, Corrigan, J.T.R.), aff'd, 63 Conn.App 282, cert. denied, 256 Conn. 933 (2001); Francis v. State, Superior Court, judicial district of Hartford, Docket No. CV 99 0592673 (June 8, 2000, Rittenband, J.T.R.); State v. Francis, Superior Court, judicial district of Hartford, Docket No. CR 90 391532 (December 22, 2000, Clifford, J.), rev'd and remanded to dismiss, 69 Conn.App. 378, cert. denied, 260 Conn. 935, cert. denied, 537 U.S. 1056, 123 S.Ct. 630, 154 L.Ed.2d 536 (2002); Francis v. Chevair, Superior Court, judicial district of New Britain, Docket No. CV 04 4003090 (October 17, 2005, Levine, J.), aff'd, 99 Conn.App. 789, cert. denied, 283 Conn. 901 (2007); State v. Francis, Superior Court, judicial district of Hartford, Docket No. CR 90 391532 (November 18, 2005, Espinosa, J.), aff'd, 108 Conn.App. 901, cert. denied, 289 Conn. 914 (2008), cert. denied, 129 S.Ct. 1995, 173 L.Ed.2d 1095 (2009); Francis v. State, Superior Court, judicial district of Hartford, Docket No. CV 08 4037939 (July 29, 2009, Langenbach, J.T.R.), aff'd 126 Conn.App. 907, (2011); Francis v. Lantz, Superior Court, judicial district of New Haven, Docket No. CV 09 4034844 (July 31, 2009, Cosgrove, J.), aff'd 126 Conn.App. 903, cert. denied, 300 Conn. 937 (2011); Francis v. Warden, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 00 0800883 (March 22, 2011, T. Santos, J.).
The defendant's conviction was affirmed on direct appeal. State v. Francis, 228 Conn. 118 (1993).
The instant motion arises against the following procedural backdrop. The defendant filed his first motion to correct an illegal sentence in 2001, in which he alleged that the sentencing court denied his right to speak in mitigation of punishment, relied on inaccurate information and failed to rely on information solely within the record. The trial court, Clifford, J., denied the motion on the merits. On appeal, the Appellate Court found that the trial court lacked jurisdiction to consider the motion to correct because the defendant's claims "did not attack the validity of the sentence," and remanded the case with direction that the motion be dismissed. State v. Francis, 69 Conn.App. 378, 384-85, cert. denied, 260 Conn. 935 (2002).
The defendant filed a second motion to correct that was denied on the merits by the trial court, Espinosa, J., in a memorandum of decision dated November 18, 2005. In that motion, the defendant alleged that the sentencing court improperly signed his arrest warrant and presided over his probable cause hearing. The Appellate Court summarily affirmed the judgment of the trial court in a per curiam decision. State v. Francis, 108 Conn.App. 901, cert. denied, 289 Conn. 914 (2008), cert. denied, 129 S.Ct. 1995, 173 L.Ed.2d 1095 (2009).
The present motion to correct, now the defendant's third, was filed on July 12, 2010 and amended on October 12, 2010. In it, the defendant essentially reasserts the crux of the claim he attempted to raise in his first motion to correct — that the trial court relied on inaccurate and incomplete information in imposing his sentence. Specifically, the defendant contends that the court based its sentence upon the incorrect assumption that the defendant stabbed the victim twice (rather than once), and upon an inaccurate understanding of the defendant's prior criminal record. The defendant also advances the claim that his sentencing hearing was flawed because he was unable to present (and thus the sentencing court was unable to consider) evidence that he had suffered from an impaired mental state at the time of the crime, because the existence of this condition was not known to the defendant until after his sentencing. The state filed a brief in opposition to all aspects of the defendant's motion on November 12, 2010. A hearing was held before this court on February 18, 2011.
DISCUSSION OF LAW I
Prior to any analysis of the merits of the defendant's claims, the court must first consider the claim of res judicata asserted by the state. The state argues that res judicata serves as a bar to the defendant's claims because the defendant had the opportunity to raise them in his second motion to correct considered by Judge Espinosa in 2005, and yet failed to do so. Because the court does not agree that the state of the law in 2005 made clear that these claims could be raised by way of a motion to correct, the court concludes that it is inappropriate to invoke the doctrine of res judicata to preclude the defendant from advancing these claims now.
It is well established that the doctrine of res judicata applies to criminal as well as to civil proceedings. State v. Jones, 98 Conn.App. 695, 701 (2006), cert. denied, 281 Conn. 916 (2007). "[U]nder the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim . . . [or any claim based on the same operative facts that] might have been made . . . A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose . . . [T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding . . ." (Citations omitted; internal quotation marks omitted.) State v. Osuch, 124 Conn.App. 572, 581, cert. denied, 299 Conn. 918 (2010).
The question presented here concerns whether it can fairly be said that, at the time of his second motion to correct, the defendant "had an adequate opportunity to litigate" the merits of the claims he seeks to raise here. As noted earlier, in 2001 the defendant attempted to raise the claim that the sentencing judge relied upon inaccurate information but the Appellate Court concluded that such claims could not be pursued by way of a motion to correct. State v. Francis, supra, 69 Conn.App. 384. The state contends, however, that the Appellate Court in State v. Pagan, 75 Conn.App. 423, cert. denied, 265 Conn. 901 (2003), indicated that Francis was wrongly decided and made clear that these claims indeed could be raised by way of a motion to correct. In the state's view, because Pagan was decided more than a year before the defendant filed his second motion to correct, the defendant was required in that second motion to assert all relevant claims, including those that had been raised in 2001 but dismissed at that time for lack of jurisdiction. Because the defendant did not avail himself of this earlier opportunity to litigate his claims, the state argues that res judicata precludes him from litigating them now.
The defendant responds that Pagan did not overrule Francis, but merely reflected the opinion of a different panel of the Appellate Court. As the defendant sees it, Pagan evidenced only a split of authority in the Appellate Court, and not a change in the state of the law which would have alerted him to the need to raise his claims in his 2005 motion. Therefore, the defendant contends that res judicata does not bar consideration of his claims at this time.
In the court's view, although the court in Pagan was clearly critical of the holding in Francis; id., 430 n. 9; it did not overrule the earlier decision. Three years after Pagan, and two years after the defendant filed his second motion to correct, the Appellate Court itself noted the existence of the split of authority; State v. Dixson, 93 Conn.App. 171, 176 n. 6, cert. denied, 277 Conn. 917 (2006); and, by doing so, recognized the continuing viability of Francis. In fact, it was not until State v. Parker, 295 Conn. 825 (2010), that our Supreme Court settled the law in this area and authorized trial courts to consider claims of the nature that the defendant seeks to advance here. Id., 833-34; see also State v. Carter, 122 Conn.App. 527, 530 n. 3 (2010), cert. denied, 300 Conn. 915 (2011).
For this reason, it cannot be said that at the time of the defendant's second motion to correct in 2005 the law clearly afforded the defendant an opportunity to litigate his claims. Accordingly, the court concludes that the doctrine of res judicata does not bar consideration of these claims now.
II
The defendant claims that he was sentenced in an illegal manner. "A sentence imposed in an illegal manner is one within the relevant statutory limits but . . . imposed in a way which violates [a] 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. Henderson, 93 Conn.App. 61, 67, cert. denied, 277 Conn. 927 (2006), quoting State v. McNellis, 15 Conn.App. 416, 444, cert. denied, 209 Conn. 809 (1988).
The defendant specifically asserts that the trial court relied on inaccurate and incomplete information in imposing his sentence. It is axiomatic that "[d]ue process precludes a sentencing court from relying on materially untrue or unreliable information in imposing a sentence. See Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) (defendant's sentence could not stand where trial court sentenced him on basis of `assumptions concerning his criminal record which were materially untrue.') . . ." (Citations omitted.) State v. Parker, supra, 295 Conn. 843. "To establish that his sentence was imposed in an illegal manner, the defendant is required to show that the information was materially false or unreliable and that the trial court relied substantially on the information in determining the sentence . . . A sentencing court demonstrates actual reliance on misinformation when the court gives explicit attention to it, [bases] its sentence at least in part on it, or gives specific consideration to the information before imposing sentence . . ." (Citations omitted; internal quotation marks omitted.) State v. Santos, 125 Conn.App. 766, 774 (2011).
A
The defendant's first claim concerns the number of times he stabbed the victim. During the sentencing proceeding, the court stated that the defendant "grazed" the victim by one thrust of the knife immediately prior to the infliction of a four-inch wound by a second thrust. TR, 4/15/92, pp. 48-49. The defendant claims that factual statement is inaccurate. He further asserts that the court relied on that misunderstanding in assessing the defendant's intent to cause the death of the victim — an intent which provided a basis for the imposition of the fifty year sentence.
The court does not agree. First, the fact that the defendant twice thrust the knife at the victim, as opposed to once, is neither materially false nor was substantially relied on by the sentencing court. The sentencing court's recitation of that fact was based on the various testimonial accounts given during the trial; TR, 4/15/92, pp. 47-49; and the defendant has failed to provide this court with any proof that it is materially false. In fact, the Supreme Court similarly recounted the incident in its opinion on the defendant's direct appeal, stating that the defendant "pulled the knife from behind his back and began to make stabbing motions at the victim." (Emphasis added.) State v. Francis, 228 Conn 118, 121 (1993). There was, therefore, evidence in the record that the defendant made more than one thrust with the knife. Accordingly, the statement made by the sentencing court was not materially false or inaccurate.
Additionally, when referencing the defendant's intent during sentencing the court focused on the conversation the defendant had with the victim immediately prior to the stabbing as well as the fatal wound inflicted by the defendant. TR, 4/15/92, p. 49. There is no indication in the record that the court relied minimally, let alone substantially, on the number of times the defendant thrust the knife at the victim when imposing the defendant's sentence.
B
The defendant next claims that the court imposed his sentence on the basis of an inaccurate understanding of his prior criminal record. Specifically, the defendant contends that the sentencing court misunderstood the precise nature of two of his prior convictions — one for an assault and the other for narcotics — and premised its sentence based upon this misinterpretation. Having considered the entirety of the record, however, this court rejects the defendant's contention.
"When a defendant is actually prejudiced by the prosecution's submission of misinformation regarding his prior criminal record, or by the court's careless misreading of that record, a defendant is denied due process of law and the conviction cannot be sustained. Townsend v. Burke, [ supra, 334 U.S. 740-41]. A sentence premised on a materially untrue criminal background of the defendant would be constitutionally infirm." State v. McNellis, supra, 15 Conn.App. 447-48.
As to the specific allegations presented here, it is true that the sentencing court did misstate the precise nature of the defendant's prior assault and narcotic convictions. Concerning the assault charge, it appears that court and police records incorrectly indicated that the defendant had been convicted of assault in the second degree, when in fact he had been convicted of assault in the third degree. The state's attorney, however, brought this error to the court's attention prior to the imposition of sentence and correctly informed the court that the defendant previously had been convicted of assault in the third degree. TR, 4/15/92, pp. 18-19. Therefore, as to the assault charge, the court clearly did not sentence the defendant on the basis of any misinformation.
As to the drug conviction, although the defendant had been convicted of conspiracy to possess narcotics, the sentencing court incorrectly referred to this conviction as conspiracy to sell narcotics. TR, 4/15/92 p. 50; State's Mem. in Opp'n to Def's Mot to Correct, pp. 12-13; Def.'s Am. Mot. to Correct, App. F. Unlike the prior assault charge, however, this inaccuracy was not corrected before sentence was imposed. Thus, the defendant's claim that the court's sentencing remarks contains an inaccurate statement concerning the defendant's criminal history is supported by the record and is not disputed by the state.
Because of the existence of this single inaccuracy, the defendant contends that his sentence necessarily was imposed in an illegal manner. The defendant's conclusion stems from his belief that any statement made by the court on the record is material to the imposition of a sentence and if the court speaks inaccurately in any respect, a defendant must be afforded a new sentencing hearing. This is not, however, an accurate characterization of the law. A sentencing court must do more than make an incorrect factual statement on the record in order for a due process violation to occur. As set forth above, the inaccurate information must be given explicit attention or be specifically considered by the court to render it consequential in the imposition of the sentence. See State v. Collette, 199 Conn. 308, 320-21 (1986); State v. Santos, supra, 125 Conn.App. 774.
To the extent that the sentencing court here may have wrongly believed that the defendant's prior narcotics conviction was for conspiracy to sell rather than conspiracy to possess, that misunderstanding was immaterial to the imposition of the sentence. The disputed narcotics conviction, regardless of its precise nature, was a felony offense — one of two felonies that were contained in the defendant's criminal history. In fashioning its sentence, the court emphasized the defendant's history as a felony offender, and referenced a number of other factors, including the nature of the murder for which the defendant had been convicted, the defendant's testimony at trial, the defendant's background, the impact of the crime on the victim's family and the overarching purposes of sentencing. TR, 4/15/92, pp. 47-54. The sentencing transcript makes clear that the court neither gave explicit attention to, nor specific consideration of, the disputed narcotics conviction in imposing the defendant's sentence. Under such circumstances, the defendant's contention that the court's misunderstanding of his prior criminal history violated his due process rights and rendered his sentence illegal is a claim wholly without merit.
Equally lacking in merit are two other related claims advanced by the defendant directed to alleged inaccuracies in the court's understanding of the defendant's criminal history. First, the defendant claims that the court relied on inaccurate information when it commented that the defendant's prior record made him a part "of a small segment of our criminal population which commits a disproportionally large number of crimes." TR, 4/15/92, p. 50. The court's statement, however, was not inaccurate because at the time of sentencing the defendant, who was only nineteen years of age, had three prior criminal convictions. Moreover, the defendant submitted no proof that the court's statement concerning the criminal conduct of a small segment of the population is materially false.
Second, the defendant appears to claim that because court and police records incorrectly referenced the nature of his prior assault conviction; see Def `s Am. Mot. to Correct, App. F; his probation on that charge and a narcotics charge to which he pleaded guilty on the same day is illegal. On the basis of this premise, the defendant asserts that the sentencing court's mention of the fact that he was on probation at the time of the murder demonstrates reliance on inaccurate information. The simple answer to the defendant's contention is that, notwithstanding the error in the records, the defendant was indeed on probation and validly so. The court's reference to the defendant's probationary status therefore was accurate, and fails to support in any way the defendant's claim that he was sentenced in an illegal manner.
C
Lastly, the defendant argues that the court had incomplete information at sentencing because he was unable to present evidence to the court of the extreme emotional disturbance he was suffering at the time of the crime and that stemmed from an assault he had earlier endured in prison. The defendant asserts that he was not aware at the time of sentencing that he suffered from this impairment, and thus was not in a position to bring it to the court's attention at that time. In support of his claim, the defendant attached to the instant motion a copy of portions of a November 17, 2003, psychological report, which he contends provides proof that his prior trauma could have had an impact on his mental state at the time of the murder.
Def's Am. Mot. to Correct, App. D.
Although the sentencing court did not have an official report concerning the defendant's mental state, and the defendant may not have known about any possible clinical diagnosis at the time of his sentencing, the defendant was given ample opportunity by the court to speak in mitigation of his sentence. At that time, rather than mention any distress he suffered from his prior assault in prison, the defendant stated that he had intended to harm the victim but not kill him and that he "[knew] what was in [his] head" at the time of the incident. TR, 4/15/92, p. 33. That account, as well as the defendant's current claim of emotional disturbance, is entirely inconsistent with the defendant's trial testimony that the victim was inadvertently stabbed because the defendant was blinded by juice from an ice pop being held by the victim. See State v. Francis, supra, 228 Conn. 122. Not surprisingly, the sentencing court stated that it believed the defendant committed perjury during his testimony. TR, 4/15/92, p. 51. It is therefore nothing less than pure fancy to conclude that any evidence the defendant would have offered of his alleged emotional impairment would have been deemed sufficiently credible or relevant to make a difference in the imposition of the sentence. For that reason, the defendant's claim must fail.
CONCLUSION CT Page 13212
Based on the foregoing, the defendant's motion to correct is hereby denied.