Opinion
No. CR07-0227395
May 27, 2010
MEMORANDUM OF DECISION RE MOTION TO CORRECT ILLEGAL SENTENCE
Following a jury trial, the defendant, Mark Silver, was convicted of one count of attempted murder (General Statutes § 53a-49 and § 53a-54a(a)) and one count of assault in the first degree (General Statutes § 53a-59(a)(1)). He was sentenced to consecutive terms of twenty years on each count for a total effective sentence of forty years. The defendant's direct appeal is currently pending before the Connecticut Appellate Court. State v. Silver, A.C. 30829.
In the present motion, the defendant asserts that his sentence is illegal because he was sentenced on two crimes of the same nature in violation of his right against double jeopardy. The defendant applied for representation by appointed counsel. After conducting the review prescribed by State v. Casiano, 282 Conn. 614 (2007), Public Defender Joseph Bruckman filed a report indicating that his office would not appear. The defendant is therefore self-represented.
Discussion
In considering a motion to correct illegal sentence filed pursuant to Practice Book § 43-22, the court's initial task is to determine whether it has jurisdiction to consider the claim. Jurisdiction of a sentencing court terminates once the sentence has begun unless it has been expressly authorized to act. Cobham v. Commissioner of Correction, 258 Conn. 30, 37 (2001). In State v. Lawrence, 281 Conn. 147 (2007), our Supreme Court identified four common law exceptions to the general rule cited above. Under Lawrence, a court has jurisdiction to consider: (1) whether the sentence was within the permissible range for the crimes charged, (2) whether the sentence violates double jeopardy, (3) whether the computation of the sentence's length as to concurrent / consecutive time is illegal, and (4) whether the correct sentencing statute was applied. Id., 156-57. If the claimed illegality is not within one of those four categories, a motion to correct the sentence must be dismissed because of lack of jurisdiction.
In the present motion, the court has jurisdiction to consider the defendant's claims because the motion alleges a violation of his double jeopardy rights.
On May 26, 2010, a hearing was conducted on the present motion. In his remarks, the defendant correctly stated that (1) double jeopardy issues can arise in a single trial, (2) the test to determine whether two offenses are the same for double jeopardy purposes is whether each requires proof of a fact that the other does not, and (3) the test for lesser included offenses is whether you can commit the greater offense without first committing the lesser offense. The defendant also cited two cases in support of his motion, United States v. McLaughlin, 164 F.3d 1 (D.C. Cir. 1998) and Ball v. United States, 470 U.S. 856 (1985). Both of these cases are, however, distinguishable from the defendant's case.
In United States v. McLaughlin, supra, the Circuit Court for the District of Columbia Circuit examined whether a defendant could be convicted for two offenses in the D.C. penal code arising out of the same incident. The two offenses were assault with intent to kill while armed and aggravated assault while armed. The case arose out of a shooting incident where a suspected informant was shot multiple times. The court first noted that applying the so-called Blockberger test ( Blockberger v. United States, 284 U.S. 299 (1932)) convictions for both crimes was permissible. United States v. McLaughlin, supra, 164 F.3d 14. The court stated, however, that the legislature may intend to forbid multiple convictions under similar statutes even though a Blockberger analysis would allow it. Id. The court held that Congress did not intend convictions for both D.C. assault statutes to occur for conduct arising out of the same incident. Id., 16. In the present case, the defendant has not pointed to any information to suggest that the Connecticut General Assembly did not intend convictions for attempted murder and assault first degree to occur for conduct arising out of one event. Indeed, as noted below, our Supreme Court has ruled such multiple convictions are permissible.
Ball v. United States, supra, concerned a prosecution under the Mann Act. In Ball, the United States Supreme Court ruled that the simultaneous transportation of more than one woman constituted a single violation of the Act. The present case does not involve multiple applications of the same statute but rather two distinct statutory provisions.
The defendant's claim of a double jeopardy violation fails because our Supreme Court has expressly ruled that convictions for attempted murder and assault first degree arising out of the same transaction do not constitute the same crime for double jeopardy purposes. See State v. Sharpe, 195 Conn. 651, 655-56 (1985). Likewise, our Appellate Court in a related context has ruled that attempted murder and attempted assault first degree are not the same offense for double jeopardy purposes. State v. Campfield, 44 Conn.App. 6, 21 (1996).
The defendant's motion to correct illegal sentence is denied. So Ordered at Bridgeport, Connecticut this 27 day of May, 2010.