Opinion
No. CR 92-418290
July 24, 2009
MEMORANDUM OF DECISION IN RE DEFENDANT'S MOTION TO CORRECT AN ILLEGAL SENTENCE
In September 1993, the defendant was convicted after a jury trial of the crimes of robbery in the first degree, assault in the third degree, threatening, and attempt to escape from custody. Immediately subsequent to the jury trial, the defendant pleaded guilty under the Alford doctrine to two part B informations charging him with being a persistent dangerous felony offender (as to the robbery charge) under General Statutes § 53a-40(a) and (f), and a persistent serious felony offender (as to the attempted escape charge) under General Statutes § 53a-40(b) and (g).
At the time of the defendant's plea, Section 53a-40(a) provided in relevant part: "A persistent dangerous felony offender is a person who (1) stands convicted of . . . robbery in the first . . . degree . . . and (2) has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence to a term of imprisonment of more than one year . . . for the following crimes: (A) The crimes enumerated in subdivision (1) of this subsection . . ."
At the time of the defendant's plea, Section 53a-40(f) provided in relevant part: "When any person has been found to be a persistent dangerous felony offender, and the court is of the opinion that his history and character and the nature and circumstances of his criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest, the court, in lieu of imposing the sentence of imprisonment authorized by . . . section 53a-35a . . . may impose the sentence of imprisonment authorized by said section for a class A felony."
At the time of the defendant's plea, Section 53a-40(b) provided in relevant part: "A persistent serious felony offender is a person who (1) stands convicted of a felony, and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year . . . for a crime."
At the time of the defendant's plea, Section 53a-40(g) provided in relevant part: "When any person has been found to be a persistent serious felony offender, and the court is of the opinion that his history and character and the nature and circumstances of his criminal conduct indicate that extended incarceration will best serve the public interest, the court in lieu of imposing the sentence of imprisonment authorized by . . . section 53a-35a . . . may impose the sentence of imprisonment authorized by said section for the next more serious degree of felony."
On December 14, 1993, the court, Espinosa, J. imposed the defendant's sentence. For the crime of robbery in the first degree as a persistent dangerous felony offender, the defendant was sentenced to twenty-five years incarceration. For the crime of attempt to escape from custody as a persistent serious felony offender, the defendant was sentenced consecutively to twenty years incarceration, execution suspended after ten years, with five years of probation. In total, the defendant received an effective term of forty-five years imprisonment, execution suspended after thirty-five years, and five years probation.
The defendant also received a one-year concurrent sentence for assault in the third degree and a one-year concurrent sentence for threatening.
By motion dated December 9, 2008, the defendant seeks to correct his sentence on the ground that it is illegal. The defendant's challenge is directed to the sufficiency of the plea canvass conducted by the trial court in 1993, at the time the defendant pleaded guilty to being a persistent felony offender. Specifically, the defendant contends that the trial court failed to explain, and he at no time admitted to, an essential element under § 53a-40 — an element which was contained within the language of both subsections (f) and (g) of that statute. Section 53a-40(f) and (g) provided that a defendant could be sentenced as a persistent felony offender only if extended incarceration was found to be in the public interest. In support of his claim, the defendant relies upon the principles set forth in State v. Bell, 283 Conn. 748 (2007), and asserts that he was deprived of his constitutional rights. As relief, the defendant requests that his sentence be set aside and that he be released from custody. The state filed a brief in opposition to the defendant's motion on March 6, 2009, with various exhibits attached. The defendant filed a reply brief on April 2, 2009. A hearing was held before this court on April 7, 2009.
As used in this decision, the phrase "persistent felony offender" refers collectively to both the persistent dangerous felony offender proceedings and the persistent serious felony offender proceedings at issue in the instant case.
In Bell, the Supreme Court held that the finding required under § 53a-40, that extended incarceration of the defendant is in the public interest, must be made by the jury in accordance with the defendant's constitutional rights as explicated in Apprendi v. New Jersey, CT Page 12662 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Those exhibits include, inter alia: (1) a partial transcript containing the defendant's guilty plea on September 17, 1993; (2) a memorandum of decision by the Sentence Review Division, State v. Henderson, Superior Court, judicial district of Hartford, Docket No. CR 92-418290 (October 24, 2000, Klaczak, J. and Iannotti, J.); and (3) a memorandum of decision by the habeas court, Henderson v. Warden, Superior Court, judicial district of Hartford, Docket No. CV 94-0544836 (June 23, 1997, Corrigan, J.T.R.).
For the following reasons, the court concludes that it lacks jurisdiction to consider the defendant's motion to correct. Accordingly, the motion is hereby dismissed.
SUBJECT MATTER JURISDICTION
As an initial matter, the court must determine whether it has jurisdiction to consider the defendant's motion to correct an illegal sentence. "Jurisdiction involves the power in a court to hear and determine the cause of action presented to it . . ." (Internal quotation marks omitted.) State v. Lawrence, 281 Conn. 147, 153 (2007). "[T]he 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. 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.'" (Citations omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 37-38 (2001).
"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 . . . 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 . . ." (Citation omitted; internal quotation marks omitted.) State v. Henderson, 93 Conn.App. 61, 67, cert. denied, 277 Conn. 927 (2006). "[I]f the defendant cannot demonstrate that his motion to correct falls within the purview of § 43-22, the court lacks jurisdiction to entertain it." State v. Lewis, 108 Conn.App. 486, 488 (2008) (per curiam).
Applying these rules to the present case, it becomes clear that the defendant's motion fails to assert any claim which this court is empowered to consider within the context of a motion to correct. First, the defendant cannot seriously contend that the court imposed an "illegal sentence." The sentences the defendant received as a persistent felony offender were unquestionably within their applicable statutory limits. Moreover, the defendant's claim raises no double jeopardy issues and there is nothing ambiguous or internally contradictory about the sentences imposed.
The defendant was convicted of robbery in the first degree, a Class B felony. General Statutes § 53a-134(b). Thus, as a persistent dangerous felony offender under § 53a-40(f), the defendant was subject to a sentence of imprisonment equal to that authorized for a Class A felony — a sentence of up to twenty-five years. See footnote 2 of this decision; General Statutes § 53a-35a(3). That is precisely the sentence that was imposed by the trial court. The defendant was also convicted of the crime of attempt to escape from custody, a Class C felony. General Statutes §§ 53a-171(b) and 53a-51. As a persistent serious felony offender under § 53a-40(g), the defendant was subject to an authorized sentence for a Class B felony — a sentence of up to twenty years. See footnote 4 of this decision; General Statutes § 53a-35a(4). Again, that is precisely the sentence imposed by the trial court, with the twenty-year sentence being suspended after the service of ten years.
Second, the defendant cannot persuasively argue that his sentence was "imposed in an illegal manner." The defendant does not claim, nor could he claim, that the trial court violated his right of allocution or his right to be addressed personally at sentencing, or that the court relied on inaccurate or off-the-record information in imposing sentence. In addition, this is not a case involving a sentence that failed to conform with the terms of a plea agreement, given that the parties here had not entered into one.
Because the defendant can allege neither an illegal sentence nor a sentence imposed in an illegal manner, he cannot utilize Practice Book § 43-22 as the procedural vehicle to raise his claim. In attempting (albeit unsuccessfully) to do so, the defendant's efforts are similar to those of the defendant in State v. Mollo, 63 Conn.App. 487, cert. denied, 257 Conn. 904 (2001). In Mollo, the defendant had been convicted pursuant to a plea of guilty. After the imposition of his sentence, Mollo filed a motion to correct an illegal sentence in which he "claimed that a latent defect existed as to the factual basis for his guilty plea." Id., 489. He argued that this alleged defect rendered the resulting conviction "voidable," and the sentence imposed upon the conviction "illegal" under Practice Book § 43-22. Id., 491. As relief, he sought to have the court vacate his conviction. See id., 489. The Appellate Court, however, expressly rejected Mollo's argument that "the concept of an `illegal sentence' under Practice Book § 43-22 includes any sentence based on a `voidable' conviction." Id., 491. The court held that "the relief allowed by Practice Book § 43-22 . . . require[s], as a precondition, a valid conviction. The purpose of Practice Book § 43-22 is not to attack the validity of a conviction by setting it aside but, rather to correct an illegal sentence or disposition, or one imposed in an illegal manner." Id.
Here, if the defendant claims that he lacked a full understanding of the plea because he was not properly advised of all the elements of the charges against him, and because there was an insufficient factual basis for the plea, then it is the propriety of the plea hearing, rather than the sentencing proceeding, that is at issue. As in Mollo, such a challenge cannot be made via a motion to correct an illegal sentence. A motion to correct an illegal sentence requires that "the sentencing proceeding, and not the [proceeding] leading to the conviction, must be the subject of the [defendant's] attack." State v. Lawrence, supra, 281 Conn. 158.
That the true essence of the defendant's claim concerns not the actual sentence imposed, but rather the validity of his guilty plea, is evident not only from the precise nature of the claim, but also from the type of relief the defendant seeks — that his sentence be "set aside" and he immediately be released from custody. As stated above, the purpose of Practice Book § 43-22 is to correct an illegal sentence, "not to attack the validity of a conviction by setting it aside . . . (Internal quotation marks omitted.) State v. Lewis, supra, 108 Conn.App. 488; State v. Mollo, supra, 63 Conn.App. 491. The relief available through a motion to correct an illegal sentence includes, for example: the reconstruction of the sentence to conform to the plea agreement; the elimination of the sentence if previously imposed for a vacated conviction; or the re-sentencing of the defendant. See Cobham v. Commissioner of Correction, supra, 258 Conn. 39. The defendant here requests none of these remedies.
Def's Mot. to Correct Illegal Sentence, p. 2; Defendant's Reply Brief, p. 9.
The defendant's demand that he immediately be released from custody was made during oral argument at the hearing before this court on April 7, 2009.
Indeed, upon closer scrutiny, the defendant's motion (notwithstanding its title) is, in the court's view, more in the nature of a motion to withdraw a guilty plea than it is a motion to correct an illegal sentence. Unfortunately for the defendant, however, even if his motion were to be considered as a request to withdraw his guilty plea, the relief he seeks still could not be granted by this court. It is well established that a court is without jurisdiction to consider a motion to withdraw after sentence has been imposed. State v. Das, 291 Conn. 356, 362 (2009); State v. Reid, 277 Conn. 764, 773-76 (2006). This is so even where the post-sentencing attack on the guilty plea involves alleged constitutional violations. Id., 370. Consequently, regardless of the true nature of the defendant's claim or prayer for relief, this court lacks jurisdiction to consider the merits of the motion.
CONCLUSION
Based on the foregoing, the court concludes that the defendant's claim falls outside of the purview of Practice Book § 43-22, and that, as a result, this court lacks jurisdiction to consider the claim. Accordingly, the court hereby dismisses the defendant's motion to correct an illegal sentence for lack of subject matter jurisdiction.
In light of the court's conclusion that it lacks jurisdiction to consider the defendant's motion, the court need not resolve the question raised by the parties concerning whether State v. Bell, supra, should be applied retroactively to the defendant's case. See footnote 7 of this decision.