Opinion
No. CR93-85061
August 11, 2004
MEMORANDUM OF DECISION ON THE DEFENDANT'S MOTION TO CORRECT AN ILLEGAL SENTENCE
Daniel Henderson seeks review of an enhanced sentence of 10 years, imposed upon him pursuant to Section 53a-40b of the Connecticut General Statutes. He does so, representing himself pro se, by a motion to correct an illegal sentence under Section 43-22 of the Connecticut Practice Book. This motion is before the court for a hearing upon remand from the Appellate Court.
53a-40b reads as follows: "A person convicted of an offense committed while released pursuant to sections 54-63a to 54-63g, inclusive, or sections 54-64a to 54-64c, inclusive, other than a violation of section 53a-222, may be sentenced, in addition to the sentence prescribed for the offense to (1) a term of imprisonment of not more than ten years if the offense is a felony, or (2) a term of imprisonment of not more than one year if the offense is a misdemeanor."
Mr. Henderson's case has a long, post-sentence procedural history. He appealed his case in 1995, which was dismissed due to his fugitive status, although he turned himself in to authorities on April 5, 1995, which, coincidentally, was the date of the dismissal. State v. Henderson, Appellate Court, Docket No. 14508 (1995) cert. denied, 235 Conn. 901, 665 A.2d 903 (1995). The sentence was then reargued and upheld by the Sentence Review Division of the Superior Court in 1997. In re Henderson, Superior Court, judicial district of Hartford-New Britain at Bristol, Docket No. CR93-85061 (July 1, 1997) ( 1997 Ct.Sup. 7571). He subsequently applied for two writs of habeas corpus, both of which were denied. The first writ claimed ineffective assistance of counsel for his attorney's failure to advise the trial court of his drug addiction. Daniel Henderson v. Commissioner of Corrections, Superior Court, judicial district of New Haven, Docket No. CV97-04043505 (Aug 16, 1999) ( 1999 Ct.Sup. 10994). The second writ claimed ineffective assistance of counsel at trial, as well as during his previous habeas writ, for failure to raise constitutional claims, including a count claiming the imposition of an illegal sentence. All four counts of the second writ were dismissed, and Mr. Henderson was instructed by the habeas court to bring this claim of an illegal sentence before the trial court where his sentence was originally imposed. Daniel Henderson v. Warden/State Prison, Superior Court, judicial district of Danbury, Docket No. CV99-0337489S (May 17, 2002) ( 2002 Ct.Sup. 6284). Soon thereafter, Mr. Henderson filed a motion to correct an illegal sentence. The trial judge, Kocay, J., who mistakenly considered it to be a motion to modify the sentence, denied this motion. State v. Henderson, Superior Court, judicial district of New Britain at New Britain, Docket No. CR93-85061 (Oct. 30, 2002) ( 2002 Ct.Sup. 13736). The decision was appealed and subsequently remanded in a per curiam opinion by the Appellate Court. State v. Henderson, 82 Conn.App. 473, 844 A.2d 922 (2004).
The motion is denied for reasons set forth in this opinion.
I. Background A. The First and Second Parts of the Information
Mr. Henderson was arrested on three related and relevant occasions in 1993. The first of these arrests occurred in February, and the second occurred two months later in April. The specific charges for the first two arrests are not pertinent to these proceedings and, hereinafter, are referred to as his "earlier charges." In August of 1993, while released on bond for these "earlier charges," Mr. Henderson was arrested for the third time, and charged with one count of forgery in the 2d degree in violation of C.G.S. Section 53a-139, and two counts of larceny in the 6th degree in violation of C.G.S. Section 53a-125b; a class D felony and two C misdemeanors, respectively. The facts underlying these convictions, at their essence, involved the use of a forged money order in the amount of $250 for the purchase of a $170 meal and $80 in change at a restaurant in the Town of Plainville, Connecticut.
The original records for these charges have been destroyed under General Statutes Section 54-142a. In a letter provided by the defendant as an exhibit to his brief, Patrick McGuire, Records Manager, states that there is no public record of Docket Numbers CR93-83012-S nor CR93-82138-S, due to their physical destruction in accordance with 7-13 of the Connecticut Practice Book. This letter is on State of Connecticut Records Center letterhead and dated January 4, 2002. The date of disposition for both cases is listed as "10/5/95." These docket numbers are those reflected in the Second part information in this case.
In the first part of the information in this case, Mr. Henderson was charged with the forgery and larceny offenses committed in August. In October of 1994, he was charged in a separate, second part information. In the second part of the information he was charged with committing these crimes while released on bond, as well as with being a persistent larceny offender, for several of his many previous larceny convictions.
Mr. Henderson claims that his case was nolled by operation of law at the time he was charged with second part of the information, in that the State failed to prosecute these cases for a period of 13 months. The State disputes this assertion. Nonetheless, Mr. Henderson's status at the time of the charge is irrelevant. The relevant time was his status when the offenses were committed. In this case, he was released on bond and committed the subsequent offenses within 6 months of the initial arrest. Therefore, this specific claim has no basis in fact or law.
B. The Trial and Plea Agreement
After a trial by jury where he was represented by counsel, Mr. Henderson was found guilty of the forgery and larceny charges against him contained in the first part of the information in this case. The day following his conviction on these charges, Mr. Henderson pleaded "guilty" to the second part of the information, triggering the application of two sentence enhancement statutes: the first for being a persistent larceny offender under General Statutes Section 53a-40(e), and the second for committing these first part crimes of forgery and larceny while released on bond under General Statutes Section 53a-40b. Upon accepting this plea agreement, and after a full and complete canvass by the trial judge, bond was set in the amount of $150,000, cash or surety. A pre-sentence investigation and report (PSI hereinafter) was ordered, and a sentencing hearing was scheduled for January 24, 1995, all of which was done in open court and in the presence of Mr. Henderson.
"The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
(1) The nature of the charge to which the plea is offered;
(2) The mandatory minimum sentence, if any;
(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
(5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself." Practice Book section 39-19.
Mr. Henderson disputes that his plea was fully understood and voluntary at the time of his canvass on the second-part charges. He claims that his answers were ambiguous, and that his plea of guilty was extracted under duress and for the promise of a lower bond awaiting sentencing, which he was desperate to make due to his continuing drug addiction. In fact, the trial judge specifically stated when setting the bond that "If there weren't pleas here, the bond would be three times what I told you." Since this claim attacks the plea and conviction, and does not attack the legality of the sentence, the court has no jurisdiction to decide this claim. See section II of this decision on jurisdiction.
C. The Sentence
Mr. Henderson was released on bond after his conviction, but failed to appear for his sentencing by the court. At the sentencing hearing, his attorney represented to the court that she was in possession of a message from Mr. Henderson, explaining his absence due to his recent admission to an in-patient drug treatment facility. The State alleged at the sentencing hearing that 1) Mr. Henderson failed to appear at three previously scheduled sentencing hearings, all involving one Danbury case, 2) he failed to appear for his PSI interview, and 3) he failed to appear recently for another case in Meriden. All of these failures to appear were alleged by the State to have occurred within the previous three weeks.
Subsequently, Mr. Henderson was sentenced to one year for failing to appear for his sentencing in this case, and, in addition, he was sentenced to two years on unrelated charges in Danbury. The additional fifteen-year sentence in this case was imposed consecutively to a previously imposed three-year sentence. All of these sentences were imposed consecutively, for a total sentence imposed of twenty-one years to serve.
Upon a finding that his absence from court was "voluntary," the trial court sentenced Mr. Henderson, in absentia, to a total effective sentence of fifteen years to serve in the custody of the Commissioner of Corrections. The particular elements of the sentence were as follows: five years of incarceration on the charge of forgery in the 2d degree, and three months for one charge of larceny in the 6th degree, concurrently imposed. This sentence of five years was then "enhanced" by the court for an additional ten years for having committed the felony of forgery 2d while released on bond for the "earlier charges." This ten-year sentence enhancement is the sole subject of Mr. Henderson's numerous claims of an illegal sentence, imposed by the trial court under C.G.S. Section 53a-40b. Along with other, unrelated convictions, Mr. Henderson is currently serving a sentence of 21 years.
There was no disposition reflected on the transcript provided to this court regarding the second charge of larceny in the 6th degree, nor were there dispositions on the remaining second-part charges of committing misdemeanors while on bond and being a persistent larceny offender. These remaining charges, if imposed to the maximum allowed by law, would have increased Mr. Henderson's sentence in this case by six years to a total of twenty-one years.
Mr. Henderson's motion originally contained twenty claims of the imposition of an illegally enhanced sentence, two of which were withdrawn at the hearing on his motion, including ineffective assistance of counsel.
II. Jurisdiction
Mr. Henderson has offered eighteen reasons for this court to find that the sentence in his case is illegal and ought to be corrected. Many of these claims involve variations on themes that may be distilled by the court into several, general legal claims. First, however, the court must define the scope of its jurisdiction in cases claiming illegal sentencing.
A trial court's jurisdiction "terminates when the sentence is put into effect, . . . the court may no longer take any action affecting the sentence unless it has been expressly authorized to act." State v. Mollo, 63 Conn.App. 487, 490, 776 A.2d 1176 (2001), cert denied, 257 Conn. 904, 777 A.2d 194 (2001) (quoting State v. Waltzer, 208 Conn. 420, 424-25; 545 A.2d 559 (1988)); see Cobham v. Comm'r of Corrections, 258 Conn. 30, 37, 779 A.2d 80 (2001). Therefore, the court's jurisdiction in this case is limited, and is not plenary in nature.
The Practice Book provides that "[t]he judicial authority may at any time correct an illegal sentence . . . or it may correct a sentence imposed in an illegal manner . . ." Therefore, by rule of practice, the trial court is authorized to review the legality of a sentence. The standard of review for illegal sentences has long been established by federal practice, and a similar standard has been adopted by our state courts.
Practice Book Section 43-22.
Moore's Federal Practice 3d Ed., Ch. 635 App. 102[3].
Most recently, the Appellate Court has set forth the standard for reviewing claims of illegal sentencing in State v. Pagan, 75 Conn.App. 423, 420-30, 816 A.2d 635 (2003), as follows:
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.
We recognize the principle that a sentence imposed within statutory limits is generally not subject to review . . . A judgment of conviction must conform to the crime with which the defendant was charged, and the sentence imposed must conform to that crime . . . Sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but . . . imposed in a way which violates 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. (Citations omitted; emphasis omitted; internal quotation marks omitted.)
There is no claim in this case that the sentence enhancement imposed exceeds the ten-year limit set forth in General Statute Section 53a-40b, nor is there a claim that this sentence violates Mr. Henderson's right against double jeopardy, is ambiguous or internally contradictory, as the charge, conviction and sentence imposed conform and are not in contradiction with one another. In addition, although Mr. Henderson was afforded the right to be addressed personally at sentencing and to speak in mitigation of his punishment, he waived these rights by his voluntary failure to appear at his sentencing hearing.
The trial court found his absence to be voluntary, and he was subsequently charged with failure to appear in the 2d degree in violation of General Statutes Section 53a-173. Mr. Henderson eventually pleaded guilty to this charge and was sentenced on January 2, 1996 to serve one additional year of incarceration, consecutive to his existing sentence. See Practice Book Section 44-8(2); see also State v. Garvin, 43 Conn.App. 142, 159; 682 A.2d 562 (1996), affirmed, 242 Conn. 296; 699 A.2d 921 (1997) (A criminal defendant has the capacity to waive many of his or her fundamental procedural rights. The defendant can waive the right to counsel . . . the right to remain silent . . . the right to be present during trial . . . and, by entering a guilty plea, the rights to trial by jury and to confrontation . . . and the right against self-incrimination) (citations omitted).
This case is not an appeal of Mr. Henderson's conviction; instead, it represents a judicial review limited to the sentence imposed after his conviction. Therefore, under the limited jurisdiction authorized for a motion to correct an illegal sentence, the court may not extend its reach into the underlying conviction or plea of guilty, except in cases where the government has not kept its plea agreement promises at sentencing. See State v. Pagan, supra, 75 Conn.App 430.
Based upon the jurisdictional standard set forth by our Appellate Court in Pagan, supra, the remaining jurisdiction of this court to hold the sentence in question illegal, pursuant to Practice Book Section 43-22, appears to be limited to Mr. Henderson's claims involving the accuracy of information used by the sentencing court, based solely upon the record, and his right that the government keep its plea agreement promises at sentencing.
III. Legal and Factual Claims A. The Constitutionality of General Statute Section 53a-40b
The primary legal claim made by Mr. Henderson is that his sentence enhancement of 10 years is founded upon "earlier charges" for which 1) he is deemed to have never been arrested, now by operation of law, 2) there have never been any convictions, either at the time of his August arrest for forgery and larceny, or at any time thereafter, and 3) for which he did not have benefit of counsel. For these reasons, he argues that he should have been considered innocent of these "earlier charges" at the time of his subsequent arrest in August on the forgery and larceny charges, and that a sentence enhancement based upon such charges is unconstitutional.
The actual disposition of these "earlier charges" is unknown. There is no record of a conviction on these charges, and so it is therefore assumed that their ultimate disposition is either nolle prosequi or dismissal, which ever the case may be, but which cannot be verified due to their erasure. Mr. Henderson claims that the enhancement statute is inapplicable to his subsequent felony conviction due to the erasure of his "earlier charges." He also points to General Statute Section 54-142(e), deeming him to have "never been arrested." These arguments are unavailing. First, the factual assertion he makes is not material to the clear terms of § 53a-40b; namely, his bond status at the time of the subsequent arrest in August, and second, the legal question which flows from the assertion; namely, the constitutionality of this statute, is not within the jurisdiction of this court to consider, as is discussed in further detail in this opinion.
Section 53a-40b of the General Statutes does not require convictions on such "earlier charges" for the sentence enhancement provisions to apply. Instead, it simply requires conviction of a crime committed while released on bond. See footnote 1. Therefore, Mr. Henderson's primary claims attack the statute on its face for authorizing an unconstitutional enhancement of his sentence, based upon his statutory bond-release status, and thereby infringing upon his simultaneous, constitutional status of innocence. He argues that in other cases, where sentences have been enhanced under this statute, the defendants have been convicted of both "earlier charges" and subsequent crimes. In these cases, he argues, the constitutional flaw in the statute has been cured by this constitutionally permissible application of the statute. In 771 A.2d 149, cert denied, 256 Conn. 905, 72 A.2d 599 (2001), wherein the defendant, while out on a promise to appear awaiting sentencing after a conviction, was subsequently arrested for manslaughter 2d with a motor vehicle and evading responsibility.
Mr. Henderson stands before this court, pro se, nearly 10 years into his sentence of 21 years to serve. He seeks to correct 10 years of this sentence, based upon claims related primarily to the constitutionality of Connecticut General Statutes Section 53a-40b. These claims were not raised at trial. In addition, the scope of the court's jurisdiction in this case is limited to the standard set forth in State v. Pagan. The only constitutional claim specifically authorized under the Pagan standard is an allegation of double jeopardy, and Mr. Henderson makes no such claim in his motion.
This sentence enhancement statute has not been challenged successfully on constitutional grounds in this state, nor has a similar statute been challenged successfully in New Hampshire. In State v. Rosario, 148 N.H. 488, 809 A.2d 1283 (2002), the New Hampshire Supreme Court upheld a sentence enhancement of one year, based upon a conviction for the sale of cocaine, committed by the defendant while released on bail. Under the facts of that case, the defendant had been acquitted of the "earlier charges," for which he had been released on bail. The New Hampshire statute is strikingly similar to the corresponding Connecticut statute, except for a maximum possible enhancement of 7 years, and a drafting flaw that was construed by the New Hampshire Supreme Court to uphold the conviction in the case.
New Hampshire RSA 597:14-b reads in part: "I. A person convicted of an offense [committed] while released pursuant to this chapter [Bail and Recognizance] shall be sentenced, in addition to the sentence prescribed for the offense to: (a) A maximum term of imprisonment of not more than 7 years if the offense is a felony; or (b) A maximum term of imprisonment of not more than one year if the offense is a misdemeanor. II. A term of imprisonment imposed pursuant to this section shall be consecutive to any other term of imprisonment." (The word "committed" has been added to the statute to reflect the statutory construction in this case by the New Hampshire Supreme Court.) State v. Rosario, 148 N.H. 488, 809 A.2d 1283 (2002).
Mr. Henderson also attacks the statute as vague. However, it is the opinion of this court that the language of General Statute Section 53a-40b is clear and unambiguous. The clear meaning of the statute is that a sentence may be enhanced if a defendant is convicted of a crime committed while released on bond. Mr. Henderson attempts to read the language of the statute to require convictions for both an "earlier charge," as well as a subsequent charge. The language of the statute does not include this requirement. Instead, it requires 1) that a person be released on bond, and 2) that such person be convicted of a subsequent crime, committed while released on that bond. This language is clear, and so is its meaning. Under the "plain meaning rule," recently enacted by the General Assembly in Public Act No. 03-154, no inquiry into the legislative history of this enactment is necessary.
Although the plain meaning rule precludes further inquiry into the legislative intent of a particular legislative enactment, the court will note that there was, in fact, no specific discussion of this particular proposal on the floor of the House or Senate. Proceedings of the House of Representatives, May 4, 1990 at pp. 8119-8236, and May 5, 1990 at pp. 8394-8405. The proposal took the form of an amendment to HB 6027, AAC Alternative Sanctions and a Community Service Labor Program. After passage with little comment in the Senate on the final day of the 1990 regular session of the General Assembly, Proceedings of the Senate, May 9, 1990 at pp. 3370-75, the bill was engrossed as PA 90-213, a long public act with many significant provisions. The particular language that was ultimately codified as 53a-40b was contained in section 9 of House Amendment Schedule D, introduced and explained by Representatives Ritter and Lawlor. Representative Ritter generally explained the amendment as a "pretrial detention bill," that would be used in very few cases, and that its "purpose must be achieved in a way which is consistent with the United States and Connecticut Constitutions. Particularly the presumption of innocence and preservation of individual liberties." Proceedings of the House of Representatives, May 4, 1990 at pp. 8213-14. Representative Lawlor explained the amendment in greater detail, explaining its bail revocation provisions and their limited application to A, B, and C felony cases upon a factual finding, by clear and convincing evidence, that the safety of another individual is endangered. Proceedings of the House of Representatives, May 4, 1990 at pp. 3214-17. Neither Representatives Ritter nor Lawlor's comments include, nor do they describe, the sentence enhancement provision included in section 9 of their "add-on" amendment to the underlying bill.
In 1998, Section 53a-40b was amended to provide an exception from its application to a newly established crime of violation of conditions of release, a class A misdemeanor. AAC Violation of Conditions of Release and the Disclosure of Information by the Office of the Bail Commissioner, P.A. 98-90, s. 2. Although there was no discussion of 53a-40b on the floor of the House or Senate, it was discussed in committee with a representative of the Office of the Chief Public Defender, who objected, inter alia, to the new proposal in light of existing penalties for crimes committed while released on bond. Judiciary Committee Public Hearing, Feb. 17, 1998 at pp. 100-11.
The question presented is whether this court has jurisdiction to decide, in a case of first impression, whether 53a-40b is unconstitutional. A claim of an illegal sentence due to double jeopardy is similar to the claims made in this case, in that they both involve a claimed violation of the constitution in sentencing a defendant. Looking at the nature of the jurisdiction authorized under the Pagan case, it appears that jurisdiction is limited to ensuring the proper exercise of judicial authority in sentencing. Instead, Mr. Henderson claims a constitutional flaw in a sentencing statute. Therefore, the claims presented in this case are distinguishable from the constitutional claims involving double jeopardy, as well as the nature of other areas of jurisdiction this court has to correct an illegal sentence.
To the extent that Mr. Henderson attacks 53a-40b on its face, he challenges the constitutionality of the legislative enactment itself, and not the action of the trial court in applying the proper law in the proper manner. Therefore, to the extent that Mr. Henderson claims that his February and April 1993 "earlier charges" were nolled, dismissed, no longer exist or that he should otherwise be considered constitutionally innocent at the time of his subsequent arrest in August, he directly challenges the constitutionality of the statute. Such challenges are not within the scope of this court's expressly authorized jurisdiction for a motion to vacate an illegal sentence.
Under the Practice Book, a motion to correct an illegal sentence may be filed at any time; however, the authorized scope of the court's jurisdiction is circumscribed under the case law of our state. Without such a limitation on jurisdiction, newly conceived constitutional claims that have not been presented or preserved at trial, or appropriately raised and decided on appeal, would continue to be heard by trial courts throughout a term of imprisonment. Therefore, since the timeframe for such motions is unlimited, the jurisdiction of trial courts is constrained by the express language of our Supreme Court in limiting claims of illegal sentences: "the jurisdiction of the sentencing court terminates once a defendant's sentence has begun, and, therefore, that court may no longer take any action affecting a defendant's sentence unless it expressly has been authorized to act." Cobham v. Commissioner of Correction, 258 Conn. 30, 37, 779 A.2d 80 (2001), State v. Walzer, 208 Conn. 420, 424-25, 545 A.2d 559 (1988); see also State v. Mollo, 63 Conn.App. 487, 490, 776 A.2d 1176, cert. denied, 257 Conn. 904, 777 A.2d 194 (2001). This court has found no such express jurisdictional authority to reach the constitutional issues presented in this case.
B. Application of Apprendi v. New Jersey and Blakely v. Washington
In his brief, Mr. Henderson claims an Apprendi violation since there was no jury trial on the facts that gave rise to his enhanced sentence. At the hearing on his motion, Mr. Henderson also raised the case of Blakely v. Washington, recently decided by the United States Supreme Court. In response, Assistant State's Attorney Gailor stated that although the Blakely case applied to Connecticut's enhancement statutes, the 6th Amendment standard set forth in Blakely had been met by virtue of the plea agreement in this case. On December 14, 1995, Mr. Henderson pleaded "guilty" to the second part of the information, which included allegations sufficient to apply the enhancement provisions of Section 53a-40b of the General Statutes. During the court's canvass on his guilty plea, Mr. Henderson specifically waived his right to a jury trial. Therefore, the court concurs with the State's opinion.
Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed2d 435, 120 S.Ct 2348 (2000).
Blakely v. Washington, 542 U.S. ___, October Term, 2003, slip opinion decided June 24, 2004.
Id. Citing Apprendi v. New Jersey, supra, as authority, Justice Scalia stated that the maximum sentence a judge may impose in a case is limited to " facts reflected in a jury verdict or admitted by the defendant." Id. at p. 7.
Although an enhancement statute may technically require an "admission," Mr. Henderson acknowledged the facts alleged in the second part of the information during the plea canvass, including the facts necessary for the application of the sentence enhancement permitted under C.G.S. Section 53a-40b.
Connecticut has previously established that an admission of sufficient facts to apply the enhancement provisions of 53a-40b meets the constitutional requirement of a jury trial. In State v. Sanko, supra, 62 Conn.App. 34, Justice Peters stated the defendant had no right to a jury trial on the applicability of the 53a-40b enhancement penalty "because of admissions that he made at trial." Id. at p. 43.
C. The Pre-sentence Investigation and Report (PSI)
Mr. Henderson claims that his sentence was imposed without the benefit of a PSI, in violation of General Statute Section 54-91a. This claim is within the jurisdiction of this court to consider, since it involves his right to be sentenced by a judge relying on accurate information.
"No defendant convicted of a crime . . . the punishment for which may include imprisonment for more than one year, may be sentenced, or the defendant's case otherwise disposed of, until a written report of investigation by a probation officer has been presented to and considered by the court . . ." Connecticut General Statute Section 54-91a(a).
Although Mr. Henderson failed to appear for his PSI interview, along with his sentencing hearing, an updated PSI was nonetheless prepared for the court, based upon a recent conviction on other charges. Such an updated PSI satisfies the requirement of the statute. State v. Miller, 56 Conn.App. 191, 201-03, 742 A.2d 402 (1999), cert denied, 252 Conn. 937, 747 A.2d 4 (2000). Mr. Henderson also claims that the updated PSI failed to accurately inform the court of the nature or disposition of the "earlier charges" and, in particular, that he had not been convicted of those offenses. Of the approximately fifty charges and thirty convictions listed in the updated PSI, the "earlier charges" do not appear to be among them.
In addition to the sentence of 15 years imposed in this case, Mr. Henderson had previously been sentenced by the same trial judge to three years on the charges of criminal mischief 1st, and reckless endangerment 2d. State v. Daniel Henderson, CR93-85223-S. For his sentencing on January 24, 1995, an updated PSI was prepared, attached to which was a full PSI used for the prior sentencing proceedings, dated July 12, 1994.
The court in Miller stated: "The defendant claims finally that the trial court improperly sentenced him on the basis of a stale and erroneous pre-sentence investigation report (PSI). The defendant claims that the preparer relied primarily on information contained in a report prepared more than four years before the date of sentencing and that the current PSI included inaccurate, inflammatory and untrue information. We disagree." CT Page 12702 State v. Miller, supra, 56 Conn.App 201.
"The sole purpose [of a PSI] 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 PSI 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 PSI." (Citations and internal quotation marks omitted.) State v. Patterson, 236 Conn. 561, 574-75, 674 A.2d 416 (1996).
In this case, accurate information regarding the predicate charges was before the court through the second part of the information, and Mr. Henderson admitted the facts attendant to that information when he pleaded guilty and was canvassed by the trial court. In addition, whether or not he was convicted of these "earlier charges" is irrelevant to the application of the terms of the enhancement statute. The relevant factual question is whether Mr. Henderson was released on bond when he committed the forgery and larceny offenses in this case. The record reflects this fact, and Mr. Henderson admitted this fact in his guilty plea. Therefore, the court finds that Mr. Henderson's claim of flawed and inaccurate information to be unavailing.
D. Claims Relating to the Plea and Trial
Mr. Henderson claims that his plea should be invalidated for numerous reasons, many of which have been addressed in the context of his claim that the enhancement statute is unconstitutional. Such claims are not actionable by this court by way of this motion, as they are outside the scope of the court's jurisdiction under State v. Pagan, supra. Additional claims of this nature include his claim of an unknowing and involuntary plea, and that he had a mental defect (addiction) before, during and after his trial.
In addition to these assertions, Mr. Henderson also claims that his plea agreement with the state was violated. He claims that he was promised that his sentence was to be concurrent, and not consecutively imposed. Although this claim is within the jurisdiction of the court to consider, the record does not support Mr. Henderson's claim: the transcript clearly reflects that that there was no such agreement at the time the guilty plea was entered, and that the parties were continuing with their sentencing negotiations.
Transcript of plea agreement regarding Second part of the information, dated December 14, 1994:
Mr. Gailor: . . . Your Honor, there is no agreement in this case as far as what sentence Mr. Henderson will receive. I would note for the record that these two counts expose Mr. Henderson to an additional 16 years of imprisonment . . .
The Court: And Counsel, are you in agreement with that assessment?
Ms. Villa: Yes, Your Honor. And I have reviewed that with Mr. Henderson.
(Later in the proceedings that day, during discussions concerning bond)
Ms. Villa: In addition, I would mention for the record that we are involved in some discussion with the state's attorney of possibly making a package deal between now and his sentencing date that would take care of all his pending matters. And all though (SIC) it's very tentative at this point in time, that's an indication that Mr. Henderson is willing to cooperate . . .
E. Noncognizable Offenses and the Rule of Lenity
Mr. Henderson claims that he was not properly charged with an offense. He claims that a mere reference to General Statute Section 53a-40b in the information is legally insufficient because it did not include critical elements of that statute in the language of the charge. Upon review of the second part of the original long-form information, it appears that he was charged with a violation of 53a-40b, after a recitation of facts necessary to support such a charge. He was not specifically charged in the information with one or both of the two particular subsections of the statute relating to the commission of a misdemeanor or of a felony, nor were the penalties for such violations set forth in the charging document. However, the court finds that Mr. Henderson was sufficiently charged in this case, since the facts gave rise to the application of both subsections: one for committing a misdemeanor while on release; the other for committing a felony while on release.
Mr. Henderson also asserts that since there were two alternative penalties that could have been imposed under 53a-40b, for a misdemeanor "or" a felony, the "rule of lenity" requires the lesser of the two penalties to be applied. The facts are as follows: He was found guilty of two misdemeanors and a felony. He was charged with a violation of 53a-40b, generally, without reference to one subsection or the other. Both subsections were ultimately applied for the purpose of sentencing after he admitted to committing both a felony and the misdemeanors while released on bond. The trial judge selected only one of the two enhancement penalties, relating to the commission of a felony while on release, and sentenced him to the maximum allowed by that subsection.
These claims are addressed separately from other plea and trial issues (see section III D of this opinion, above) because Mr. Henderson claims that his sentence cannot be enhanced twice under the statute for the same offense. Although there is some authority in other states to suggest that such a result might have been unlawfull, Mr. Henderson was only sentenced to one enhancement, and so this claim asserts no harm and has no merit. Moreover, General Statutes Section 53a-40b is clear and unambiguous, as stated earlier in this opinion. Under the rule of lenity, adopted by Connecticut courts, "the touchstone of this rule of lenity is statutory ambiguity." (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 34, n. 23, 836 A.2d 224, cert denied, 158 L.Ed.2d 254, 24 S.Ct 1614 (2003). Since there is no doubt about the meaning of the statute, the rule of lenity should not be applied in this case.
People v. McNeeley, 28 Cal.App.4th 739, 33 Cal.Rptr.2d 582 (1994).
[W]e . . . [reserve] lenity for those situations in which a reasonable doubt persists about a statute's intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute." (Emphasis in original; internal quotation marks omitted.) State v. King, 249 Conn. 645, 687 n. 47, 735 A.2d 267 (1999). The rule of lenity is inapplicable to the present case because, contrary to the defendant's claim, the phrase "acting within the scope of his duties" contained in § 53a-54b(1) does not give rise to any ambiguity. State v. Reynolds, 264 Conn. 1, footnote 23, 824 A.2d 611 (2003).
F. Articulation CT Page 12692
Mr. Henderson claims that the trial court failed to articulate its reason for sentencing him, in violation of Connecticut Practice Book Section 43-10(6). In support of his claim, Mr. Henderson cites federal cases, primarily dealing with the federal sentencing guidelines. He claims that this court must apply the federal remedy for such a failure, and that his sentence must be vacated.
In cases where sentence review is available, the judicial authority shall state on the record, in the presence of the defendant, the reasons for the sentence imposed. Connecticut Practice Book Section 43-10(6).
In cases where it is claimed that a sentence has been imposed in an illegal manner, it is critical to be reminded of the court's limited jurisdiction. Once again, the applicable standard in State v. Pagan is:
Sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but . . . imposed in a way which violates 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. (Citations omitted; emphasis in original; internal quotation marks omitted.)
State v. Pagan, supra, 75 Conn.App. 429-30.
These jurisdictional authorizations concerning a defendant's right to "be addressed personally," "to speak in mitigation of punishment" and to be "sentenced by a judge relying upon accurate information," all suggest that an articulation of a sentence may be the subject of review on a motion to correct an illegal sentence. Simply stated, if a sentencing judge articulates a reason for a sentence inconsistent with the law, regardless of the presence of the defendant, it may be used as relevant evidence that an illegal sentence has been imposed or, even more likely, that it has been imposed in an illegal manner.
The trial judge in this case thoroughly articulated the violations of law applicable and the terms of the sentence imposed. Immediately thereafter, he did articulate his reasons for ordering that the defendant be held without bond:
COURT: All right. On a finding of guilty by the jury of the defendant of forgery in the second degree, it is the sentence of the court that the defendant be committed to the custody of the commissioner of corrections for a period of five years. In addition thereto, pursuant to statute, having committed the offense while on release status; that is out of bond, the court orders an additional ten years to serve for a total effective sentence of 15 years to serve. On the finding of the jury guilty to larceny in the sixth degree, it is the sentence of the court that he be committed to the custody of the commissioner of corrections for a period of one year, that one year [later corrected to 3 months] to be concurrent to the sentence previously imposed, for a total effective sentence of 15 years to serve.
MR. GAILOR: Is your honor making the finding that — ?
COURT: I'll make the finding that the sentence be consecutive to any sentence he is ordered to serve.
MR. GAILOR: And with respect to the persistent larceny, your honor feels it's more appropriate to sentence him to a larceny sixth degree?
COURT: That's correct . . . Transcript of sentencing proceedings, State v. Henderson, CR93-85061, dated January 24, 1995.
I'm going to find that he voluntary absented himself here, regardless of the bond, and . . . he has been alleged to have committed criminal offenses while out on bond and while the present proceeding were pending. The court will find that he continues to be a potential threat to the commission of other offenses and accordingly will order him held without bond.
Id.
Since this statement immediately follows the sentencing, it can reasonably be assumed to reflect the court's reason for imposing the maximum enhancement penalty permitted by law, in addition to denying bond.
One of the primary objectives of the articulation requirement of the Practice Book is to sufficiently inform the Sentence Review Division in the performance of its duties. In fact, a Sentence Review Panel, consisting of Purtill, J., Klaczak, J., and Norko, J., reviewed Mr. Henderson's sentence and affirmed it by stating that
In imposing sentence on these cases, the court was presented with a person 30 years of age with an extensive criminal record. He had at least 25 prior convictions with a number of other charges pending at the time of trial. The sentence imposed here was at the high end of the spectrum. Considering, however, defendant's character and the need to protect the public interest and deter other people from this type of extended criminal activity, it cannot be found that the sentence is inappropriate or disproportionate.
In re Henderson, Superior Court, judicial district of Hartford-New Britain at Bristol, Docket No. CR93-85061 (July 1, 1997) ( 1997 Ct.Sup. 7571).
Therefore, since a primary purpose of articulation is to adequately inform the Sentence Review Division, and the record in this case was sufficient for that purpose, the court finds that the sentence was sufficiently articulated.
G. Appearance of Judicial Vindictiveness
Mr. Henderson claims that his sentence results from judicial vindictiveness, based upon his mother's past working relationship with the trial judge, for which he filed two motions for recusal directed at the trial judge, one orally and one in writing. In addition, he claims vindictiveness resulting from a prior conviction before the same judge, as well as his own behavior during the trial, which included several arrests.
Generally, judicial vindictiveness does not appear to be a claim within the jurisdiction of this court to consider through a motion to correct an illegal sentence, especially any claim of vindictiveness at trial. Nonetheless, the record of Mr. Henderson's sentencing proceedings reflects no judicial vindictiveness.
Instead, the record reflects that the court was presented with allegations showing that Mr. Henderson was a growing threat to society, and that he was a persistent offender, even while out on bond and while on trial. The State indicated that Mr. Henderson had an "unbroken line of criminal behavior from 1980 until the present . . . and criminal conduct similar to that committed in this case." The state alleged that Mr. Henderson had been arrested four times in late November and early December of 1994, during, or immediately prior to, his trial and plea in this case. These arrests included allegations that he threatened a police officer and another where he allegedly struck an officer in an attempt to flee an arrest under circumstances strikingly similar to the offense for which he had been convicted and was being sentenced in this case. The state also alleged that Mr. Henderson perjured himself and attempted to tamper with a witness at the trial. Additionally, the State alleged that he had attempted to fabricate his own death in the Connecticut River to avoid a sentencing in Danbury, just two weeks prior to his failure to appear at his sentencing in this case. After reciting these facts, the state asked the court to impose the maximum possible penalty.
Transcript of sentencing proceedings, State v. Henderson, CR93-85061, dated January 24, 1995.
This allegation was based upon police reports and a report in the Hartford Courant, allegedly resulting in a several-day-long search for Mr. Henderson's body.
Colin Tait states that "Sentencing proceedings have never been subjected to the rules of evidence, a practice the Code specifically adopts. A sentencing judge may consider a wide variety of information, unlimited either as to kind or to sources, if that information possesses some `minimal indicia of reliability.' A defendant does not have a constitutional right to cross-examine witnesses at his or her sentencing hearing." (Citations omitted.) Tait's Handbook of Connecticut Evidence 3d, sec. 1.11.4. See State v. Huey, 199 Conn. 121, 126-28, 505 A.2d 1242 (1986); see also State v. McNellis, 15 Conn.App. 416, 445, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). This approach appears to be unchallenged by the holding in the case of Crawford v. Washington, 542 U.S. ___, October Term 2003, slip opinion decided on March 8, 2004. The Crawford decision concerns the application of the Confrontation Clause at trial; not at sentencing. Mr. Henderson did not raise this issue at his hearing on this motion. Similarly, this approach appears to be unchallenged by Blakely v. Washington, supra. In the Blakely decision, Justice Scalia distinguished several indeterminate sentencing cases from the reach of the decision. Id. at slip opinion p. 8. Therefore, since 53a-40 is an indeterminate sentence enhancement statute, the trial court was permitted to hear this evidence without specific admissions or a jury trial.
There is no presumption in favor of vindictiveness to overcome under the circumstances of this case. Such a presumption may exist in cases where the trial court increases a sentence after an appeal. See State v. Coleman, 242 Conn. 523, 700 A.2d 14 (1997). Such is not the case here. Therefore, even if jurisdiction to consider this claim were to exist in this case, Mr. Henderson shows no proof of vindictiveness by the judge at the sentencing hearing.
H. Sentence Disparity
Mr. Henderson claims that there is an unconstitutional disparity between his underlying sentence of forgery in the second degree, for which he received 5 years, and the enhancement of his sentence of 10 years. He claims that the court should conduct a constitutional analysis, similar to the analysis conducted by our Supreme Court in State v. Jenkins, 198 Conn. 671, 504 A.2d 1053 (1986), and State v. O'Neill, 200 Conn. 268, 511 A.2d 321 (1986).
In the cases cited by Mr. Henderson, our Supreme Court held that statutorily mandated minimum sentences that exceed the penalties for related, but more serious offenses were constitutionally flawed. State v. Jenkins, supra, 198 Conn. 679-80; State v. O'Neill, 200 Conn. 289. These cases do not apply to the case before this court for several reasons. First, there are no mandatory minimum sentences involved in this case. Second, there is no conflict, irreconcilable or otherwise, between the 5-year penalty for forgery in the 2d degree and the 10-year enhancement for committing that crime while released on bond. Instead, the true essence of this claim is that the sentencing judge inappropriately exercised his legislatively authorized discretion to apply the maximum sentence allowed under the enhancement statute, for a nonviolent class D felony. For theses reasons, the Jenkins-O'Neill analysis does not apply to this case. Furthermore, this constitutional argument is not within the currently established jurisdiction of this court to consider through a motion to correct an illegal sentence.
Since there are no mandatory minimum sentences involved in this case, the court may not engage in the comparative analysis suggested by the defendant. Such an analysis, if applicable to discretionary sentencing, would include the penalty provided for in this case under 53a-40h, and, for example, the lower penalty applicable to being a persistent larceny offender under 53a-40(l), involving only misdemeanors, as well as the lower penalty applicable to being a persistent felony offender under 53a-40(m), if it were applicable to a class D felony.
IV. Conclusion
Mr. Henderson is serving a very long sentence, resulting from a single class D felony conviction for passing a forged check in the amount of $250. Prior to his conviction in this case, he had been convicted of many relatively minor crimes over the course of 15 years, and he was also accused at his sentencing hearing of committing numerous crimes while released on bond and while on trial. The trial judge exercised his discretion and sentenced him to 15 years to serve, of a possible 21 years, based upon charges for which he was either convicted or pleaded guilty. This sentence was harsh, but cannot be vacated as illegal under the limited jurisdiction afforded to him under the motion presented to this court.
It is important to note that Mr. Henderson has previously exercised his right to sentence review, pursuant to General Statutes Section 51-194 et seq., as well as his right to submit writs of habeas corpus on two occasions, pursuant to General Statutes Section 52-466 et seq., containing many claims similar to those set forth in this motion, all of which were unavailing in those proceedings. Similarly, Mr. Henderson appealed his conviction and attendant sentence in 1995, which was denied due to his fugitive status at the time of the appeal. See footnote 2.
BY THE COURT,
Taylor, J.