Opinion
CR12146632T
10-26-2015
State of Connecticut v. Thomas Hailey
UNPUBLISHED OPINION
Filed Date November 20, 2015
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO CORRECT AN ILLEGAL SENTENCE
Denise D. Markle, J.
On June 18, 2013, the defendant, Thomas Hailey, pleaded guilty to the following offenses: 1) In Docket No. CR12-146632-T one count of Sale of Narcotics in violation of General Statutes § 21a-278(b) and one count of Failure to Appear in the First Degree in violation of General Statutes § 53a-172; 1-32. 2) In Docket Nos. CR06-12885-T and CRO6-130985-T the defendant admitted to violating the conditions of his probation on the factual basis that he was engaged in criminal conduct while on probation. The defendant received a total sentence of seven years to serve (five years of which was a minimum mandatory) followed by eight years special parole for the sale of narcotics and five years to serve concurrently for the failure to appear; and seven years to run concurrently for both violations of probation.
Before pleading guilty to the crimes discussed above, the defendant was already on probation for two separate cases with two separate docket numbers. The first case, Docket No. CR06-12885-T, involved assault in the first degree in violation of General Statutes § 53a-59; criminal possession of a weapon in violation of General Statutes § 53a-217, and possession of narcotics in violation of General Statutes § 21a-279. The second case, Docket No. CR06-130985-T, involved possession of narcotics.
On August 5, 2015, the defendant filed a motion to correct an illegal sentence on the grounds that his sentence (1) violates the double jeopardy clause of the United States Constitution and (2) is internally contradictory. Although the defendant is now proceeding pro se, the public defender's office filed a memorandum regarding the defendant's motion on September 28, 2015. This memorandum concludes that the defendant's motion lacks merit.
The defendant expressed concern regarding his parole eligibility during his sentencing. Again, the court lacks jurisdiction to hear such a claim. That matter is within the province of the Department of Corrections and Board of Pardons and Paroles.
For the reasons set forth below, the defendant's motion is denied.
" [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 . . . Connecticut courts have considered four categories of claims . . . The first category has addressed whether the sentence was within the permissible range for the crimes charged . . . The second category has considered violations of the prohibition against double jeopardy . . . The third category has involved claims pertaining to the computation of the length of the sentence and the question of consecutive or concurrent prison time . . . The fourth category has involved questions as to which sentencing statute was applicable." (Citations omitted; internal quotation marks omitted.) State v . Lawrence, 281 Conn. 147, 156-57, 913 A.2d 428 (2007).
I
WHETHER THE DEFENDANT'S SENTENCE VIOLATES DOUBLE JEOPARDY
" The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. The double jeopardy clause [applies] to the states through the due process clause of the fourteenth amendment . . . This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial." (Internal quotation marks omitted.) State v . Polanco, 308 Conn. 242, 244 n.1, 61 A.3d 1084 (2013). " Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met." (Internal quotation marks omitted.) State v . Bernacki, 307 Conn. 1, 9, 52 A.3d 605 (2012).
The defendant relies on the case, State v . Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S.Ct. 2898, 115 L.Ed.2d 1062 (1991), overruled in part by State v . Polanco, 308 Conn. 242, 61 A.3d 1084 (2013). In Chicano , our Supreme Court held that a defendant's conviction and sentencing for three counts of felony murder and three counts of manslaughter in the first degree violated double jeopardy. Id., 703-04. This was because (1) the defendant killed three people during the same incident; id., 703-04; and (2) by being punished for manslaughter and felony murder as to each victim, he was essentially being punished twice for each homicide. See id., 710. The defendant's case is distinguishable from Chicano .
In the present case, the defendant did not receive a sentence that violates double jeopardy. First, the charges do not arise out of the same transaction. The defendant improperly argues that these convictions do involve the same transaction in that his arrest in July 2012 caused him to violate both of his probations. Rather, the violations of probation involve two separate docket numbers and the defendant was put on probation following two separate incidents that occurred on April 7, 2005, and August 3, 2005. Second, even if the two violation of probation charges arose out of the same transaction, which they did not, the crimes that the defendant was charged with are not the same offense. They are two separate charges for two separate violations of probation. Therefore, the defendant's double jeopardy claim lacks merit.
II
WHETHER THE DEFENDANT'S SENTENCE IS INTERNALLY CONTRADICTORY
Second, the defendant argues that his sentence is internally contradictory and that the state failed to abide by its plea agreement.
In the present case, the defendant pleaded guilty to one count of sale of narcotics, one count of failure to appear, and two counts of violation of probation. Judge Iannotti found his " pleas to be knowingly and voluntarily made with the assistance of competent counsel." Indeed, the transcript contains a thorough explanation of the charges the defendant pleaded guilty to and the sentence he received. Upon pleading guilty, the defendant received a total sentence of seven years to serve (five years mandatory) followed by eight years special parole for the sale of narcotics; five years to serve concurrently for the failure to appear; and seven years to run concurrently for both violations of probation. These were all separate and distinct offenses with the sale of narcotics acting as the controlling sentence. Thus, there is nothing improper or internally contradictory about the defendant's sentence.
The defendant argues that he is actually being punished for the assault and that the possession with intent to sell conviction is not operating as the controlling sentence. In particular, the defendant appears to argue that the assault charge he was on probation for should be the controlling sentence because violent offenses take precedent over nonviolent offenses. Under General Statutes § 53a-38(b), the controlling sentence is the longest sentence. There is no mention of violent offenses taking precedent over nonviolent offenses. The defendant also fails to cite any authority in support of this assertion. Regardless, as stated during his sentencing, the sale of narcotics charge is the controlling sentence because it carried a five-year minimum, and therefore, it was the longest sentence.
For the reasons set forth above, the defendant's motion to correct an illegal sentence is denied.