Opinion
CR99250704
06-27-2016
State of Connecticut v. Jeffrey Smith
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO CORRECT ILLEGAL SENTENCE
Hillary B. Strackbein, J.
The defendant, Jeffrey Smith, pursuant to Practice Book § 43-22, requests this court to correct what he claims is an illegal sentence imposed in his case. He claims his 2005 sentence is illegal because the court merged his manslaughter in the first degree conviction with his felony murder conviction rather than vacating the underlying manslaughter conviction. He relies on State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013), and State v. Miranda, 317 Conn. 741, 120 A.3d 490 (2015). In those cases, the Connecticut Supreme Court held that vacatur rather than merger is the appropriate remedy for cumulative homicide convictions. However, the retroactivity principles enunciates in Polanco do not apply to cases which are final and the defendant's case was final in 2008. The defendant cites a footnote 10 from the Polanco case. That footnote has been deleted and is not applicable to this case.
The defendant also claims that his convictions of and punishments for multiple counts of kidnapping and the conviction for felony murder violated his right against double jeopardy.
PROCEDURAL HISTORY
The defendant, Jeffrey Smith, was charged in a six-count information dated July 9, 2001, with capital felony murder in violation of CGS § 53a-54b(2), murder in violation of CGS § 53a-54a(b), felony murder in violation of CGS § 53a-54c, kidnapping in the first degree, 2 counts in violation of CGS § 53a-92(a)(2)(A) and robbery in the first degree in violation of CGS § 53a-134(a)(1).
On August 18, 2005, after a jury trial before the Honorable Stuart Schimelman, the jury returned verdicts of guilty on felony murder, manslaughter, both kidnapping counts and the robbery count. He was acquitted on capital felony and murder.
The trial court merged the conviction on manslaughter with the felony murder and sentenced the defendant to sixty years imprisonment. The defendant was also sentenced to concurrent sentences of twenty-five years on each kidnapping count concurrently and twenty years on the robbery count all concurrent to each other but consecutive to the felony murder sentence. The total effective sentence was eighty-five years to serve.
FACTS
The jury could have reasonably found the following facts. The victim, James Connor, and two friends stopped to visit Connor's parents on their boat on August 22, 1998, at approximately 11:00 p.m. He stayed on board with his parents for approximately twenty minutes before going to the Black Seal, a restaurant and tavern in Essex. The Black Seal was located down the street from the Essex Marina, where the Connors' boat was docked. The victim left the Black Seal, driving his father's Saab, prior to the 2:00 a.m. closing of the bar. Subsequent investigation revealed that the victim placed a cell phone call to Lucky's Cafe, a bar in New London, at 1:29 a.m.
On August 23, 1998, Sgt. Harrison Fortier of the Waterford Police Department was called upon at 6:30 a.m. to investigate a car that was partially submerged in the town's duck pond. The driver's side door was open, the car was in neutral, there were no keys in it, the parking brake was disengaged, the windshield was cracked and the rear view mirror was missing. In addition, police observed what appeared to be a blood like substance on the seat of the vehicle. A motor vehicle check revealed that the Saab was registered to the victim's father.
Detective Thomas Murry, assigned to Central District Major Crime Squad, was one of the detectives assigned to examine the car looking for evidence. The detectives discovered blood on the window of the front driver's side door, rear passenger side of the car and the front seat. Police also found a fingerprint on the right rear passenger window frame and a bloody palm print near the hatchback of the car. Christopher Grice, a criminalist for the State Forensic Laboratory, testified that the latent fingerprint and palm print matched that of the codefendant, Abin Britton.
On January 10, 1999, the remains of the victim, James Connor, were discovered by Carlos Lozado. Lozado was playing with his son in Bates Woods, a recreation area in New London located across from the housing project where the defendant lived when he made the discovery. The Eastern District Major Crime Squad processed the scene. The remains were located in a wooded area near an embankment off the parking lot. The remains were covered by a plastic bag and dirt. The police excavated the area for two days, seizing all the remains and anything they deemed useful in the investigation.
Initially, police removed the skull to determine the identity. Dr. H. Wayne Carver, Chief Medical Examiner for the State of Connecticut, testified that the remains belonged to James Connor. Dr. Carver classified the manner of death as a homicide.
At trial, the state called several witnesses who solidified the case against the defendant. Liz Metcalf, a taxi cab driver, testified that at approximately 3:30 a.m., she picked up three black males near the duck pond in Waterford and drove two of the individuals to Michael Road, where the defendant lived. In addition, Ms. Metcalf said the three were talking secretly and were wet " like they had been swimming in a pond." The state also called as a witness Amanda Blackmon, who was a friend of all three co-defendants, Gregory Pierre, Abin Britton and Jeffrey Smith. She testified that the defendant, Pierre, made two inculpatory statements in her presence. Ms. Blackmon overheard the defendant discussing an altercation at a party. The defendant spoke to Britton and was overheard saying, " Fuck them niggers, we'll kill them and bury them too." The second statement made by the defendant was in response to one of the other co-defendants speaking to the police. The defendant said, " If he keeps his mouth shut, the cops had nothing on us."
Junito Jarvis, a close friend of one of the co-defendants, testified that he was at Lucky's Bar on the night of the murder with the defendant and the two co-defendants. Jarvis left the bar with Britton and Smith and drove to the defendant's house. Britton and Smith exited his car and walked over to the victim's car. The defendant and the victim were having a conversation inside the car when the two co-defendants entered. There was a fight in the car and the defendant exited the passenger seat and entered the driver's seat after the victim was beaten and forced back into his car. Jarvis saw the defendant drive the victim and two codefendants down the street out of the housing development towards Bates Woods. Jarvis further testified that Smith provided details concerning the victim's death and the burial of the body a few days after the crime. These details of disposing of the body include Jeffrey Smith asking Jarvis for money so the defendant and the other two co-defendants could purchase concrete to bury the victim. Smith asked Jarvis about burial of a body because Smith believed Jarvis had been trained in the army about proper burials.
The defendant filed the present motion to correct illegal sentence on August 6, 2015. The public defender's office filed an Anders brief on November 10, 2015, declining to represent the defendant on the present motion. The defendant is now representing himself. The state filed a Memorandum of Law in Opposition to the Defendant's Motion to Correct Illegal Sentence on March 15, 2016. The defendant filed a response to the state's motion on April 13, 2016.
Jurisdiction of Sentencing Court
" [T]he jurisdiction of the sentencing court terminates once a defendant's sentence has begun, and, therefore, that court may no longer take action affecting a defendant's sentence unless it expressly has been authorized to act." (Internal quotation marks omitted.) State v. Das, 291 Conn. 356, 362, 968 A.2d 367 (2009). Practice Book § 43-22 provides one such express authorization. That provision provides: " 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 illegal disposition made in an illegal manner." Id. An illegal sentence is one that " either exceeds the relevant statutory maximum limits, violates a defendant's rights against double jeopardy, is ambiguous, or is internally contradictory." (Internal quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 38, 779 A.2d 80 (2001). " 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, 281 Conn. 147, 158, 913 A.2d 428 (2007).
The trial court has jurisdiction over the defendant's motion to correct illegal sentence because the Polanco/Miranda claim sounds in double jeopardy (multiple punishments) and concerns the sentencing proceeding and not the trial. See State v. Cator, 256 Conn. 785, 803-05, 781 A.2d 285 (2001); State v. Raucci, 21 Conn.App. 557, 559, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990); see also State v. Henderson, 130 Conn.App. 435, 445-48, 24 A.3d 35 (2011) (concluding that trial court had jurisdiction on motion to correct illegal sentence where defendant challenged actions taken by sentencing court that, although proper at time, were affected by subsequent change in law). Despite the fact that the trial court has jurisdiction, the defendant's claim fails based on retroactivity principles.
The general principles of retroactivity analysis apply to motions to correct an illegal sentence. See State v. Henderson, supra, 130 Conn.App. 446-48; see also United States v. Woods, 986 F.2d 669, 674-75 (3rd Cir.), cert. denied, 510 U.S. 826, 114 S.Ct. 90, 126 L.Ed.2d 58 (1993). " [J]udgments that are not by their names limited to prospective application are presumed to apply retroactively . . . this general rule applies to cases that are pending and not to cases that have resulted in final judgments." State v. Elias G., 302 Conn. 39, 45, 23 A.3d 718 (2011), quoting Marone v. Waterbury, 244 Conn. 1, 10-11, 707 A.2d 725 (1998).
The defendant contends his case is not final for retroactivity principles because he has a habeas petition pending. The case law is clear. " [S]tate convictions are final for purposes of retroactivity analysis when the availability to direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally decided." (Internal quotation marks omitted.) Beard v. Banks, 542 U.S. 406, 411, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004).
Here, the defendant's convictions were final in 2006 for purposes of retroactivity analysis.
The defendant appealed his initial conviction and sentence which was affirmed by the Appellate Court on May 13, 2008. On July 1, 2008, the Connecticut Supreme Court denied the defendant's petition for a writ of certiorari. Accordingly, the 2013 decision in Polanco and 2015 decision in Miranda, which were based on our Supreme Court's supervisory authority, do not apply retroactively to the defendant's case.
Double Jeopardy/Merger
The defendant also claims in conjunction with his first claim that merger of the several charges violates the double jeopardy clause of the fifth amendment to the United States Constitution (multiple punishments). Although the Connecticut Supreme Court decided Polanco and Miranda in the context of double jeopardy, it did not base its decision on grounds of constitutionality but used its supervisory powers.
As set forth above, the defendant's claims fail based on retroactivity principles. However, even assuming arguendo that the court had jurisdiction to apply Polanco and Miranda there would be no change in the defendant's sentence.
The felony murder charge alone yielded a sixty-year sentence and the kidnapping charge alone yielded a twenty-five-year sentence to be served consecutively.
The defendant claims he was improperly punished twice for the same offenses.
" Although [d]ouble jeopardy prohibits multiple punishments for the same offense in the context of a single trial . . . distinct repetitions of a prohibited act, however closely they may follow each other . . . may be punished as separate crimes without offending the double jeopardy clause . . . The same transaction, in other words, may constitute separate and distinct crimes where it is susceptible of separation into parts, each of which in itself constitutes a completed offense . . . [T]he test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent and are such as are made punishable by the [statute]." (Emphasis omitted; internal quotation marks omitted.) State v. Brown, supra, 299 Conn. 652, 11 A.3d 663; State v. Miranda, supra, 260 Conn. 122-23.
The defendant believes that the State cannot charge him with multiple counts of murder and/or kidnapping. This is erroneous. The information in a criminal prosecution may charge various aspects of the crimes alleged. The jury, after hearing the evidence and the instructions to the jury by the judge may find a defendant guilty or not guilty on any or all of the charges. Here, the jury found the defendant guilty of felony murder, manslaughter, robbery and two counts of kidnapping. The jury did not find the defendant guilty of capital felony and murder. The defendant erroneously believes an aquittal on capital felony murder should exonerate him on all counts of murder. The elements of the charges for which the defendant was found guilty were met and the judge sentenced him accordingly.
As to first degree kidnapping, the Supreme Court has held that two subdivisions A and B of § 53a-92(a)(2) are separate offenses for double jeopardy purposes. State v. Tweedy, 219 Conn. 489, 496, 594 A.2d 906 (1991). The convictions on the two subdivisions of kidnapping were sentenced concurrently.
As to the felony murder, the defendant claims his separate convictions and punishments for felony murder, robbery and kidnapping violate his right against double jeopardy. In State v. Gonzalez, 302 Conn. 287, 25 A.3d 648, the Supreme Court clearly established that the double jeopardy clause does not bar a trial court from imposing consecutive sentences for the felony murder and the predicate felony offenses. Even if the court were to reach the merits of the defendant's claim, and vacate, as opposed to merging the sentence on counts of manslaughter and felony murder, there would be no change in the defendant's total effective sentence.
For the foregoing reasons, the defendant's motion to correct illegal sentence is denied.