Opinion
No. CR 04-192203
December 30, 2008
MEMORANDUM OF DECISION IN RE DEFENDANT'S MOTION TO CORRECT AN ILLEGAL SENTENCE
On October 22, 2004, the defendant pleaded guilty to assault in the first degree in violation of General Statutes § 53a-59(a)(1) and conspiracy to commit robbery in the first degree in violation of §§ 53a-48 and 53a-134(a)(2). For each offense, the trial court imposed a sentence of fifteen years, execution suspended after seven years, with five years of probation. In imposing sentence, the court correctly noted that each conviction carried a mandatory minimum sentence of five years. The court further ordered that the sentences were to run consecutively to one another, for a total effective sentence of thirty years, execution suspended after fourteen years, ten years of which was to be considered a mandatory minimum term of imprisonment.
By pro se motion filed December 21, 2007, the defendant seeks to correct his sentence. A hearing on the matter was held on September 18, 2008. The defendant contends that his sentences for conspiracy to commit robbery in the first degree and assault in the first degree violate the constitutional prohibition against double jeopardy. The defendant further asserts that, by ordering that the two five-year mandatory minimum sentences run consecutively to one another, the court imposed an illegal sentence. For the reasons set forth below, the court rejects the defendant's contentions and denies his motion to correct.
In his original pro se motion to correct, the defendant sought the appointment of counsel pursuant to State v. Casiano, 282 Conn. 614 (2007). The court granted the defendant's request, and counsel was appointed for the limited purpose of undertaking the Casiano-required review of the potential merit of the defendant's motion to correct. On July 8, 2008, appointed counsel reported that the defendant's claim lacked merit and moved to withdraw as defendant's counsel. The court, after affording the defendant a right to be heard, granted the motion to withdraw. Since that date, the defendant has continued to pursue the instant motion to correct in a pro se capacity.
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." (Internal quotation marks omitted.) State v. McNellis, 15 Conn.App. 416, 443-44, cert. denied, 209 Conn. 809 (1988).
The defendant claims that his consecutive sentences for conspiracy to commit robbery and assault violate his right against double jeopardy. Such a claim falls within the purview of an illegal sentence. The defendant's claim concerning consecutive mandatory minimum sentences also falls within the bounds of a motion to correct an illegal sentence. See State v. Lawrence, supra, 281 Conn. 157 (recognizing that claims concerning ambiguous sentences have involved "the computation of the length of the sentence and the question of consecutive or concurrent prison time"), citing State v. Banks, 59 Conn.App. 145, 147-50 (2000).
Moreover, the defendant's claims pertain only to his sentence; they in no way attack the sufficiency of his conviction. "In order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding, and not the trial leading to the conviction, must be the subject of the attack." State v. Lawrence, supra, 281 Conn. 158. Accordingly, the court finds that it has jurisdiction to consider the merits of the defendant's motion.
DEFENDANT'S CLAIMS
The defendant claims that his right against double jeopardy was violated when the trial court sentenced him to consecutive terms of imprisonment for conspiracy to commit robbery and assault. "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 . . .' This constitutional provision is applicable to the states through the due process clause of the fourteenth amendment . . . The Connecticut constitution provides coextensive protection, with the federal constitution, against double jeopardy . . . This constitutional guarantee . . . protects against multiple punishments for the same offense [in a single trial]." (Citations omitted.) State v. Ferguson, 260 Conn. 339, 360-61 (2002).
"[I]n Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the United States Supreme Court set forth the test to determine whether two offenses are the same offense for double jeopardy purposes: [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. If the elements of one offense include the elements of a lesser offense . . . then double jeopardy attaches." (Internal quotation marks omitted.) State v. Moore, 98 Conn.App. 85, 91, cert. denied, 280 Conn. 944 (2006).
There is no dispute that the offenses the defendant was convicted of arose out of the same transaction and are set forth in distinct statutory provisions. The issue the court must determine, then, is whether each statutory provision requires proof of a fact the other does not.
The defendant was convicted of assault in the first degree under § 53a-59(a)(1), as well as conspiracy to commit robbery in the first degree under §§ 53a-48 and 53a-134(a)(2). The defendant's conviction for assault in the first degree required proof of an intent to cause serious physical injury by means of a deadly weapon. General Statutes § 53a-59(a)(1). The defendant's conviction for conspiracy to commit robbery in the first degree required proof that, in the course of committing a larceny, he used physical force on another person to prevent resistance to the taking of the property or compel the owner of property to deliver up the property while the defendant was armed with a deadly weapon; General Statutes §§ 53a-133 and 53a-134(a)(2); as well as proof of an agreement to commit the robbery. General Statutes § 53a-48.
General Statute § 53a-59(a)(1) provides in relevant part: "[a] person is guilty of assault in the first degree when . . . [w]ith intent to cause serious physical injury to another person, he causes such injury to such person . . . by means of a deadly weapon . . ."
Section 53a-48 provides: "[a] person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy."
General Statutes § 53a-134(a)(2) provides in relevant part: "[a] person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery . . . he . . . is armed with a deadly weapon . . ."
Based on a comparison of the statutory provisions applicable to each count in the information, it is apparent that each offense required proof of a fact that the other did not. See State v. Kirsch, 263 Conn. 390, 421 (2003). Thus, the defendant's consecutive sentences for assault in the first degree and conspiracy to commit robbery in the first degree did not violate the prohibition against double jeopardy.
The court recognizes, of course, that because "[t]he Blockburger test is a rule of statutory construction [which] serves as a means of discerning legislative purpose, the rule should not be controlling where . . . there is a clear indication of contrary legislative intent." State v. Kirsch, 263 Conn. 390, 421-22 (2003). Here, the defendant fails to point to any evidence (and the court has failed itself to find any evidence) that the legislature intended to preclude convictions for both assault and conspiracy to commit robbery, when the crimes arise from the same transaction. Therefore, the defendant's double jeopardy claim ultimately must be assessed by application of the traditional Blockburger analysis — an analysis which, as discussed in the text, compels the conclusion that the multiple convictions here did not violate the prohibition against double jeopardy.
The defendant also claims that his sentences violate his right against double jeopardy in that he was convicted of and sentenced for two offenses despite the fact that there was only one victim. In support of his argument the defendant cites to State v. McColl, 74 Conn.App. 545, 572-73, cert. denied, 262 Conn. 953 (2003), for the proposition that "there are as many offenses as there are victims." The defendant's reliance on McColl, however, is misplaced. In McColl, there were multiple violations of one offense, robbery in the first degree, and multiple victims. Id., 573-74. In line with those facts, the court in McColl noted, "when two or more persons are the victims of a single episode there are as many offenses as there are victims." (Internal quotation marks omitted.) Id., 572-73. Contrary to the defendant's claim, however, this language does not mean that where there is a single victim, there can be only one crime committed against that victim Rather, as in the defendant's case, there can be multiple, distinct offenses committed against one victim, and the offender in such a case can be separately punished (subject to the above-discussed Blockburger limitations) for each of such crimes. The rationale of McColl, therefore, simply does not apply here and the defendant's sentencing on multiple charges did not constitute a double jeopardy violation.
The defendant finally claims that he should not have been sentenced to two consecutive five-year mandatory minimum terms of imprisonment because § 53a-37 only allows a sentence for one mandatory minimum term. In support of his claim, the defendant relies upon that portion of § 53a-37 which provides that "when a person is sentenced for two or more counts . . . [t]he court in such cases shall not set a minimum term of imprisonment except under the first count." The defendant argues that the phrase "minimum term of imprisonment" refers to mandatory minimum sentences, and that § 53a-37 thus allows the imposition of only one mandatory minimum sentence in cases where a defendant is sentenced on multiple counts. The court does not agree.
General Statutes § 53a-37 provides: "When multiple sentences of imprisonment are imposed on a person at the same time, or 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 or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and to the undischarged term or terms in such manner as the court directs at the time of sentence. The court shall state whether the respective maxima and minima shall run concurrently or consecutively with respect to each other, and shall state in conclusion the effective sentence imposed. When a person is sentenced for two or more counts each constituting a separate offense, the court may order that the term of imprisonment for the second and subsequent counts be for a fixed number of years each. The court in such cases shall not set any minimum term of imprisonment except under the first count, and the fixed number of years imposed for the second and subsequent counts shall be added to the maximum term imposed by the court on the first count."
In the court's view, this reference in § 53a-37 to a "minimum term of imprisonment" has nothing whatsoever to do with mandatory minimum sentences. Rather, as the court sees it, the references in § 53a-37 to minimum terms of imprisonment (and, for that matter, maximum terms, as well) pertain to Connecticut's pre-1981 sentencing laws — laws which required courts to impose indefinite sentences consisting of both a maximum term and a minimum term of imprisonment. See General Statutes § 53a-35. As a result, this language from § 53a-37 has no bearing at all upon the defendant, who was sentenced in 2004 — long after Connecticut adopted its so-called "definite sentencing" structure. See General Statutes § 53a-35a.
In fact, to the extent that any portion of § 53a-37 does apply to the instant case, the statute serves to undermine the defendant's claim by providing that "[w]hen multiple sentences of imprisonment are imposed on a person at the same time, . . . [the] sentences imposed by the court shall run either concurrently or consecutively with respect to each other." See State v. King, 249 Conn. 645, 688 (1999). There is nothing in this statute, or anywhere else in the law, that even suggests that a court is stripped of this sentencing discretion where the sentences to be imposed have been classified by the legislature as mandatory minimum sentences. To the contrary, this court concludes that a sentencing court retains the authority to impose consecutive sentences even where mandatory minimum sentences are at issue. Accordingly, the trial court in this case was within its right to order that the defendant's five-year mandatory minimum sentence for assault and his five-year mandatory minimum sentence for conspiracy to commit robbery were to run consecutively.
CONCLUSION
Based on the foregoing, this court concludes that the sentence imposed by the trial court was neither illegal nor imposed in an illegal manner. The defendant's motion to correct his sentence is therefore denied.