Opinion
No. TSR CV06 4001144-S
August 28, 2007
MEMORANDUM OF DECISION ON RESPONDENT'S MOTION TO DISMISS (#113.00)
Petitioner initiated the instant matter by way of a pro se petition. After the appointment of a special public defender, the pro se petition was amended. The amended petition raises a single claim: that petitioner is being illegally confined because the sentence being served does not comport with the plea agreement. Respondent's return denies petitioner's claim and raises procedural default as an affirmative defense premised on petitioner's failure to first file, in accordance with Practice Book § 43-22, a motion to correct an illegal sentence. Petitioner has filed a reply to the return denying that he has procedurally defaulted and avers that his claim is not within the province of a motion to correct an illegal sentence under § 43-22.
Respondent then filed a motion to dismiss the amended petition. The motion to dismiss, which is supported by a memorandum of law, specifically indicates in accordance with Practice Book § 11-18 that oral argument is not requested. Petitioner filed an objection to the motion to dismiss accompanied by a memorandum of law. Petitioner's objection does not request oral argument.
The court has reviewed the pleadings, motions and memoranda of law. For the reasons stated below, the motion to dismiss is granted and judgment of dismissal shall enter.
DISCUSSION
At the outset, the court emphasizes what petitioner is not claiming. Petitioner does not allege ineffective assistance of criminal trial counsel, nor does he claim the Department of Correction has performed an incorrect calculation of his sentence. Petitioner's sole claim is that the plea agreement encompassed a specific amount of presentence confinement credit to be given to a docket, that he has not received such credit, and that his confinement has therefore been illegally lengthened. Stated somewhat differently, petitioner is alleging his confinement is illegal because his sentence is illegal.
Petitioner asserts that his claim does not fall within the ambit of § 43-22. It is clear from recent case law that petitioner's assertion is incorrect. In State v. Lawrence, 91 Conn.App. 765, 773-74 (2005), aff'd, 281 Conn. 147 (2007), the Appellate Court indicated that "Connecticut has recognized two types of circumstances in which the [sentencing] court has jurisdiction to review a claimed illegal sentence . . . The [second such] circumstance in which a claimed illegal sentence may be reviewed is that in which the sentence is within the relevant statutory limits . . . but [is] imposed in a way which violates [the] defendant's right . . . that the government keep its plea agreement promises . . ." See also State v. Casiano, 282 Conn. 614, 624 n. 14 (2007). Petitioner's claim very clearly falls within this recognized circumstance and should, therefore, first be raised with the trial court or on direct appeal. Cobham v. Commissioner of Correction, 258 Conn. 30, 39 (2001); State v. Casiano, supra, 282 Conn. 625.
Practice Book § 23-29 in relevant part states that: "The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that: . . . (4) the claims asserted in the petition are moot or premature; (5) any other legally sufficient ground for dismissal of the petition exists."
It is explicitly clear from Cobham ". . . that before seeking to correct an illegal sentence in the habeas court, a defendant either must raise the issue on direct appeal or file a motion pursuant to § 43-22 with the trial court." Cobham v. Commissioner of Correction, supra, 258 Conn. 38. A habeas corpus petition raising such an illegal sentence claim is, according to the Supreme Court, brought prematurely. Id., at 37. "[I]n order to challenge an illegal sentence, a defendant either must appeal the sentence directly or file a motion to correct the sentence pursuant to § 43-22 with the trial court before raising a challenge for the first time in a petition for a writ of habeas corpus." (Emphasis added.) Id., at 39.
Based on the foregoing, the court concludes that petitioner has procedurally defaulted by failing to first raise his claim in the trial court via a motion pursuant to § 43-22. Respondent's motion to dismiss is granted and judgment enters dismissing the petition for a writ of habeas corpus.
Lastly, Casiano mandates that an indigent defendant who wishes to file a motion to correct an illegal sentence receive the assistance of counsel ". . . for the purpose of determining whether . . . [he] has a sound basis for doing so." State v. Casiano, supra, 282 Conn. 627. "If appointed counsel determines that such a basis exists, the defendant also has the right to the assistance of such counsel for the purpose of preparing and filing such a motion and, thereafter, for the purpose of any direct appeal from the denial of that motion." Id., at 627-28.
Accordingly petitioner's present appointed counsel, Attorney Frank Twohill, is ordered to contact the Office of Chief Public Defender to determine whether he should continue as petitioner's counsel, or whether other counsel shall be appointed, for purposes of a Casiano assessment.