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STATE v. VIVO

Connecticut Superior Court Judicial District of Fairfield at Bridgeport
Jul 29, 2011
2011 Ct. Sup. 16823 (Conn. Super. Ct. 2011)

Opinion

No. CR94-95080

July 29, 2011


MEMORANDUM OF DECISION RE MOTION TO CORRECT ILLEGAL SENTENCE


BACKGROUND

The defendant, John Vivo, was convicted after a jury trial of murder in violation of General Statutes § 53a-54a, assault in the first degree in violation of General Statutes § 53a-59(a)(1) and commission of a class A, B or C felony with a firearm in violation of § 53-202k. The trial court (Gormley J.) imposed sentences of sixty years for murder, ten years for assault first degree and five years for the 53-202k violation, all to run consecutively for a total effective sentence of seventy-five years. Vivo's conviction was affirmed on direct appeal. State v. Vivo, 241 Conn. 665 (1997). He thereafter filed a petition for habeas corpus which was denied by the habeas court (Rittenband, J.) and affirmed in part on appeal. See Vivo v. Commissioner of Correction, 90 Conn.App. 167 (2005). The Appellate Court affirmed Judge Rittenband in all respects except with respect to the § 53-202k conviction. As to that, in light of our Supreme Court's decision in State v. Dash, 242 Conn. 143, 150 (1997) (holding that § 53-202k is not an offense but only a sentence enhancer), the Appellate Court vacated the § 53-202k conviction and remanded the case with direction to resentence the defendant to seventy-five years. Following the Appellate Court's decision, a "Motion for Judgment" was filed by the court (Bryant, J.) resentencing the defendant to a total effective sentence of seventy-five years. It does not appear that a hearing was held before Judge Bryant nor was a corrected mittimus issued by the court.

In the present motion, the defendant asserts that his present seventy-five year sentence is illegal for three reasons. First, that his sentence should be only seventy years based on the Appellate Court's decision. Second, that if the state wishes to enhance his sentence through § 53-202k, a new trial is required. Third, that there never was a "resentencing" as prescribed by our Appellate Court. A hearing was conducted on the defendant's motion on July 13, 2011. The defendant is self-represented. For the reasons set forth below, the motion is denied as to the first and second grounds. As to the third ground, out of an abundance of caution, the court will schedule a hearing to formally resentence the defendant.

I

The defendant's first claim is that his present seventy-five year sentence is illegal because it is contrary to the initial remand order of the Appellate Court. This claim lacks merit because it is based on language in the initial Appellate Court opinion that was subsequently revised through the filing of replacement pages by the Court.

As stated above, the Appellate Court's opinion regarding the defendant's appeal from the denial of his habeas corpus petition was reported at 90 Conn.App. 167 et seq. In the initial version of that opinion that appeared in the July 12, 2005 Connecticut Law Journal, the Appellate Court stated:

We conclude that Dash governs the present situation, and further discussion of our Supreme Court's clear holding would serve no useful purpose. Although the petitioner's total effective sentence was proper, the judgment must be modified to reflect the fact that § 53-202k does not constitute a separate offense. Accordingly, the petitioner is entitled to have his conviction under § 53-202k vacated . . .

The judgment is reversed only as to the conviction under § 53-202k and the case is remanded with direction to vacate that conviction and to resentence the petitioner to a total effective term of seventy years incarceration. The judgment is affirmed in all other respects.

Vivo v. Commissioner of Correction, supra, 90 Conn.App. 177 (emphasis added).

In the July 26, 2005 Connecticut Law Journal, the Appellate Court replaced pages 177 and 178 of its initial opinion. As relevant here, the replacement page states:

The judgment is reversed only as to the conviction under § 53-202k and the case is remanded with direction to vacate that conviction and to resentence the petitioner to a total effective term of seventy-five years incarceration. The judgment is affirmed in all other respects.

Id. (Emphasis added.)

In every instance in which a Supreme Court or Appellate Court opinion is published electronically or in the Connecticut Law Journal, the Commissioner on Official Legal Publications includes a statement to the effect that all opinions are subject to modification prior to official publication in the Connecticut Reports and Connecticut Appellate Reports and, in the event of a discrepancy between the version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. In other words, our Supreme and Appellate Courts reserve the authority to modify their opinions until they are officially published.

The latest print version of the Appellate Court's opinion states that the defendant is to be resentenced to a total effective sentence of seventy-five years. The defendant's claim that the mention of seventy years in the initial opinion makes his present sentence illegal is unpersuasive.

The defendant's motion to correct illegal sentence on this ground is denied.

II

The defendant's second claim is that he is entitled to a new trial and a jury determination as to the applicability of the § 53-202k enhancement. In support of this claim, the defendant cites Apprendi v. New Jersey, 530 U.S. 466 (2000). It is true that under Apprendi, as well as State v. Bell, 283 Conn. 748 (2007), a defendant is entitled to a jury determination with respect to all facts that will affect the sentence. In the present case, however, the defendant already had such a jury determination.

The defendant's trial occurred in 1995. In accordance with the practice at that time, the claim that the defendant used a firearm in the commission of a class A, B or C felony in violation of § 53-202k was alleged as a separate count in the information. The trial court instructed the jury on the essential elements of that charge and the jury returned a verdict to guilty. Two years later — after the defendant's trial and his direct appeal — our Supreme Court ruled that § 53-202k was not a separate crime but rather a sentence enhancement provision. See CT Page 16826 State v. Dash, supra, 242 Conn. 150.

The defendant's claim that he is entitled to a new trial on the § 53-202k enhancement must be denied because a jury already determined that a gun was used in the crime. The Appellate Court's opinion in 2005 that vacated the conviction for § 53-202k merely conformed the judgment to Connecticut law. Moreover, the remand expressly stated that the total effective sentence was proper and that the defendant be resentenced to the seventy-five year term that was in accordance with the jury's verdict and the trial court's original sentence.

The motion to correct the sentence based on an alleged Apprendi violation is denied.

III

The defendant's final claim is that he was never "resentenced" following the Appellate Court remand. The court file for the habeas corpus matter reflects that, following the remand, a "Motion for Judgment" was filed by the court (Bryant, J.) resentencing the defendant to a total effective sentence of seventy-five years. It does not appear that the defendant or counsel was present for this nor does it appear that anything was done on the record. In addition, the judgment mittimus was never modified to reflect the vacated conviction.

Assuming, without deciding, that this resentencing was insufficient, the court will schedule a resentencing hearing within thirty days of this decision. At that time it is the court's intention to vacate the § 53-202k conviction on the mittimus and sentence the defendant as follows:

Murder — sixty years

Assault first — fifteen years (ten years for the assault enhanced to fifteen years pursuant to § 53-202k)

These sentences are to run consecutively for a total effective sentence of seventy-five years. This is in accordance with both the Appellate Court remand and the intent of the trial court.

CONCLUSION

For the reasons set forth above, the motion to correct illegal sentence is denied.

So Ordered at Bridgeport, Connecticut this 29th day of July 2011.


Summaries of

STATE v. VIVO

Connecticut Superior Court Judicial District of Fairfield at Bridgeport
Jul 29, 2011
2011 Ct. Sup. 16823 (Conn. Super. Ct. 2011)
Case details for

STATE v. VIVO

Case Details

Full title:STATE OF CONNECTICUT v. JOHN VIVO

Court:Connecticut Superior Court Judicial District of Fairfield at Bridgeport

Date published: Jul 29, 2011

Citations

2011 Ct. Sup. 16823 (Conn. Super. Ct. 2011)