Opinion
No. HHB-CR95-0091210-0
November 17, 2008
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO CORRECT ILLEGAL SENTENCE
The defendant, Javier Santos, pursuant to Connecticut Practice Book § 43-22, requests this Court to correct what he claims is an illegal sentence.
The defendant argues that on June 11, 2008, he was classified as a sex offender by the Department of Corrections (DOC). The defendant claims that this violates his constitutional right against double jeopardy because he is receiving additional punishment from the Department of Corrections by the classification.
The Court allowed the defendant to orally amend his motion adding a claim that his sentence imposed on April 7, 2006 on the violation of probation finding was illegal because the Court did not order a presentence investigation, or an update of his previously prepared presentence investigation. The defendant presented oral argument on this claim.
PROCEDURAL HISTORY
The defendant was presented for trial before a jury of six on the charges of sexual assault first degree, § 53a-70(a)(1), and sexual assault second degree, § 53a-71(a)(3), on April 3, 2006. The state's violation of probation allegations were tried simultaneously by the trial court (D'Addabbo, J.). After the presentation of evidence and the jury's deliberation, the defendant was acquitted of the sexual assault charges on April 7, 2006. On the same day, the trial court found the defendant in violation of his probation. Probation had been ordered on September 29, 1995, after a conviction of robbery in the first degree, Connecticut General Statutes § 53a-134(a)(4). The sentence imposed was twelve years of incarceration, execution suspended after the serving of five years, with five years probation. (Miano, J.) Following a dispositional hearing on April 7, 2006, the Court sentenced the defendant to a term of imprisonment of six years. The Appellate Court affirmed the violation of probation finding. State v. Santos, 108 Conn.App. 250, 947 A.2d 414 (2008). The defendant's request for a modification of his sentence was denied by the Sentence Review Division of the Superior Court. (February 26, 2008).
The defendant indicates in his motion and oral argument that after the Sentence Review Division decision, DOC changed his personal classification from Level I to Level III Sex Offender. The defendant filed this motion to correct illegal sentence on August 29, 2008. (See attached Exhibit A). The Court scheduled an initial hearing of his motion for September 23, 2008. On that date, pursuant to State v. Casiano, 282 Conn. 614, 922 A.2d 1065 (2007), an attorney in the Office of the Public Defender, Christopher Eddy, was appointed for the purpose of determining whether the defendant had a valid basis for filing a motion to correct an illegal sentence. On October 24, 2008, the defendant withdrew his request for legal representation. However, Attorney Eddy was appointed as standby counsel. The defendant was allowed to orally amend his motion to include a second basis, that being that the sentence was illegally imposed due to the fact that an update of his previous presentence investigation or a new presentence investigation were not ordered prior to his sentencing on the violation of probation. The Court heard the defendant's oral argument on October 24, 2008.
Editor's Note: Exhibit A has not been reproduced herein.
In his motion and argument, the defendant claims that his sentence is illegal because:
1. the sentence, when implemented by the DOC, did not conform to the trial court's original intent; and, when implemented by the DOC, constituted an increase in punishment to the defendant, and therefore, the sentence was ambiguous and it violated the defendant's rights under double jeopardy;
2. the sentence was imposed without the benefit of an updated or new presentence investigation.
LAW
Practice Book § 43-22 states that:
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.
"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. Constantopolous, 68 Conn.App. 879, 882, 793 A.2d 278, cert. denied, 260 Conn. 927, 798 A.2d 971 (2002).
( A.)
In the present matter, the defendant's first claim is that the reclassification of the defendant by DOC to a Level III Sex Offender is punishment for the same conduct that he was sentenced to on the violation of probation.
"The double jeopardy clause protects against multiple punishments for the same offense in a single trial." State v. Lewis, 245 Conn. 779, 818, 717 A.2d 1140 (1998). The defendant does not allege that his rights were violated by the Court by punishing him multiple times for the same offense in his trial. Rather, he claims that the Department of Corrections has implemented his sentence illegally after receiving the decision of the Sentence Review Division.
"A motion to correct an illegal sentence under Practice Book § 43-22 constitutes a narrow exception to the general rule that, once a defendant's sentence has begun, the authority of the sentencing court to modify that sentence terminates." (Internal quotation marks omitted.) State v. Carmona, 104 Conn.App. 828, 832, 936 A.2d 243 (2007), cert. denied, 286 Conn. 919, 946 A.2d 1249 (2008). "In order for the court to have jurisdiction over such a motion, the sentencing proceeding must itself be the subject of the attack." Id. Since the defendant's claim does not implicate the actions of the Court at the sentencing proceeding, but rather the actions of DOC over two years later, the Court lacks jurisdiction over this claim. See Id., 833 ("[b]ecause it is the act of the department in applying presentence confinement credit, and not the sentencing proceeding itself, that is the subject of the defendant's attack, we conclude that the court properly determined that it lacked subject matter jurisdiction over the defendant's motion to correct").
The defendant also claims that his sentence was ambiguous. The Court fails to see how a sentence of six years to serve is ambiguous. Therefore, this claim must fail.
( B.)
The defendant claims in his oral amendment to the motion to correct illegal sentence that although the Court conducted a dispositional phase to the violation of probation hearing, it did not request an updated or new presentence investigation before imposing sentence.
The defendant argues that this claim establishes a basis for an illegal sentence. His claim appears to be based on the argument that the sentence was "imposed in an illegal manner," affecting his ability to be addressed personally at sentencing and to speak in mitigation of punishment, or his right to be sentenced by a judge relying upon accurate information.
The defendant has not articulated his basis. The Court, in an effort to address his motion, infers this basis based on the defendant's oral argument.
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. Czaaetta, 97 Conn.App. 56, 59 n. 4, 903 A.2d 659 (2006).
The Court questions whether this claim falls within the purview of an illegal sentence as defined.
The defendant argues that an updated or new presentence investigation was required under Practice Book § 43-3, and since it was not ordered, the sentence imposed was illegal. The defendant further states that he does not contest the finding of a violation of a condition of probation. Therefore, he claims that the sentence imposed should be vacated and a new dispositional hearing conducted.
"A probation revocation hearing is not a stage of a criminal prosecution . . . but is a discrete statutory procedure to which many of the substantive and procedural rules of criminal law do not apply." (Citations omitted.) State v. Carey, 30 Conn.App. 346, 350, 620 A.2d 201 (1993), rev'd on other grounds, 228 Conn. 487, 636 A.2d 840 (1994).
The defendant's reliance on the sentencing procedures of Practice Book § 43-3 is misplaced. A trial court revokes probation pursuant to General Statutes § 53a-32(b), which provides in pertinent part:
(b) If such violation is established, the court may . . . revoke the sentence of probation or conditional discharge. If such sentence is revoked, the court shall require the defendant to serve the sentence imposed or impose any lesser sentence. Any such lesser sentence may include a term of imprisonment, all or a portion of which may be suspended entirely or after a period set by the court, followed by a period of probation with such conditions as the court may establish. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence.
The Court notes that subsection (b) was transferred to subsection (d) by P.A. 08-102, effective October 1, 2008.
See also Practice Book § 43-29.
Neither General Statutes § 53a-32(b) nor Practice Book § 43-29 mandates that a presentence investigation be provided prior to the revocation of probation or authorizes a trial court to exercise its discretion in ordering a presentence investigation. State v. Strickland, 42 Conn.App. 768, 785-86, 682 A.2d 521 (1996), rev'd on other grounds, 243 Conn. 339, 703 A.2d 109 (1997).
Our Supreme Court has decided that a "defendant's right to due process at sentencing does not include a right to a PSI." State v. Patterson, 236 Conn. 561, 572, 674 A.2d 416 (1996).
The sole purpose [of a presentence investigation report] is to enable the court within limits fixed by statute, to impose an appropriate penalty, fitting the offender as well as the crime. The primary value of a [presentence investigation report] stems from the information contained therein, not from the report itself. Most of this information can be brought to the trial court's attention by either party by means other than a [presentence investigation report].
(Internal quotation marks omitted.) Lorthe v. Commissioner of Correction, 103 Conn.App. 662, 683 n. 18, 931 A.2d 348, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007).
Information usually presented in a presentence investigation was brought to the Court's attention prior to the defendant's sentence imposition on the violation of probation.
Therefore, the defendant's claim that his sentence on the violation of probation was illegally imposed because the court did not order an updated or new presentence investigation fails.
CONCLUSION
For all the reasons stated, the Court denies the defendant's amended motion to correct an illegal sentence and request for a new dispositional hearing.
SO ORDERED