Opinion
No. CR 98-0177629
November 25, 2009
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO CORRECT AN ILLEGAL SENTENCE AND STATE'S MOTION TO DISMISS
The defendant in the above-captioned case, Jeffrey Pierce, has moved this Court pursuant to Practice Book § 43-22, to correct a sentence imposed on him more than ten years ago. The defendant was convicted on March 2, 1999 after a jury trial of one count of kidnapping in the second degree, in violation of General Statutes § 53a-94, and one count of burglary in the first degree, in violation of General Statutes § 53a-101(a)(1). He was sentenced on May 7, 1999 by the court, Gaffney, J., to a total effective sentence of thirty years incarceration, suspended after twenty-five years, with five years of probation. The defendant claims that the trial court illegally used privileged confidential information in fashioning his sentence. Specifically, he alleges that the Presentence Investigation Report (PSI) relied upon by the trial court contained confidential information collected by the Office of Adult Probation for which the defendant had not waived his statutory privacy rights. The defendant filed a motion to correct an illegal sentence on February 10, 2009. In response, the State filed a motion to dismiss on March 17, 2009, alleging that this Court lacks jurisdiction to consider the defendant's motion because, even if his allegations are accepted as true, they do not establish that the sentence imposed was illegal. Having considered both motions, the pleadings, the evidence adduced at the hearing on the defendant's motion to correct an illegal sentence and the arguments of counsel, the State's motion to dismiss is granted. In the alternative, the defendant's motion to correct an illegal sentence is hereby denied.
See State's Exhibit 3, Presentence Investigation Report dated April 27, 1999.
An evidentiary hearing was held before this Court on May 18 and July 7, 2009. The defendant filed his post-hearing brief on August 24, 2009. The state filed its post-hearing memorandum of law in opposition to the motion to correct an illegal sentence on August 31, 2009.
DISCUSSION
On May 7, 1999, the trial court sentenced the defendant for his involvement in an incident where the defendant abducted a woman at knife point in a parking lot by hiding in the back seat of her minivan. Thereafter, he ordered her to drive him to another town. Once they reached a closed gate, the defendant ordered the woman out of the car and directed her to follow him to a wooded area. The woman refused because she feared the defendant was going to rape her. The defendant told her that he had no intention of raping her, that he just wanted to go to another town and that he had gotten himself in over his head. The defendant told the woman that he did not want her to see where he was going. The woman told the defendant that she would not watch and he left. The woman was not touched by the defendant and did not suffer any physical injury.
In preparation of a PSI for the trial court in 1999, the Probation Officer, Maureen Klinkert, asked the defendant to sign a consent form to obtain treatment records and the defendant refused. Klinkert then included in the 1999 PSI information she had obtained from a PSI she prepared on the defendant in 1996 for convictions in G.A. 12 in Manchester. In that case, the defendant pled guilty to one count of burglary in the third degree and one count of harassment in the second degree. In preparing the 1996 PSI, Klinkert met with the defendant and obtained written waivers from him permitting the Office of Adult Probation to obtain copies of records from facilities that had treated him in Virginia, Colorado and Long Lane in Connecticut. After receiving those records, Klinkert included detailed information in the 1996 PSI concerning the defendant's prognosis that he was at high risk of re-offending in a sexualized and potentially aggressive manner, that the defendant had molested a younger boy at one of the treating facilities, that the defendant had admitted to sexually abusing younger children since he was nine years old, and that the defendant had been diagnosed as a developing pedofile, sexual sadist with borderline antisocial personality traits. At the 1996 sentencing hearing, this information was discussed at length on the record by the sentencing court, Cofield, J., in rejecting a plea agreement that would have resulted in a suspended sentence. Instead, the court sentenced the defendant to five years of incarceration, suspended after two years and three years of probation.
See State's Exhibit 2, Presentence Investigation Report dated February 8, 1996.
See State's Exhibit 4, Sentencing Transcript dated February 8, 1996.
During the sentencing hearing held on May 7, 1999, after the defendant's entire background was discussed, the sentencing court found that he was a sexual deviant and that his objective on the day in question was to sexually assault the victim. The court found that the defendant's explanation that he only wanted the woman to go into the wooded area to make it easier for him to escape was implausible, even though she testified that the defendant never attempted to lay a hand on her after they exited the vehicle. In addition to the 1996 treatment records, the court considered additional information including other sex-related crimes, that the defendant did not successfully complete sex offender counseling as ordered, admissions made by the defendant to the probation officer, and disciplinary tickets in prison involving sexual conduct. Moreover, the defendant never objected to the inclusion of the treating records from the 1996 PSI in the 1999 PSI. Rather, he admitted that his attorney had reviewed the 1999 PSI with him prior to sentencing, that he was aware it included information from the 1996 PSI detailing information from treating facilities and that the prosecutor was using those records to advocate for a lengthy prison sentence. Indeed, the defendant addressed the court prior to sentencing and said that everyone was discussing his past behaviors and that he did not think it was fair for his past to be held against him. Yet, it was not until ten years later that the defendant objected to the use of his treatment records in the 1999 PSI.
The court asked defense counsel if he had an opportunity to review the PSI with the defendant and counsel stated that he briefly covered some of the details with him. The court asked counsel if he wanted more time to consult with his client regarding the report and the defendant began nodding his head. The court stated that it wanted to give the defendant a full opportunity to review the report and recessed so that counsel and the defendant could review the report. The court recessed at 10:41 a.m. and resumed at 11:29 a.m., see state's Exhibit 1, sentencing Transcript dated May 7, 1999, pages 82-84.
See state's Exhibit 1, Sentencing Transcript dated May 7, 1999, pages 92-93.
The State's Motion To Dismiss
Generally, the jurisdiction of a trial court ends when the sentence of the defendant commences. "It is well established that the jurisdiction of a sentencing court terminates once a defendant has begun serving his sentence . . . [T]herefore, that court may no longer take any action affecting a defendant's sentence unless it expressly has been authorized to act." (Citation omitted; internal quotation marks omitted.) State v. Delgado, 116 Conn.App. 434, 437-38, 975 A.2d 736 (2009). The common law, embodied in Practice Book Section 43-22, creates a narrow exception to this rule to allow a trial court to correct an illegal sentence. State v. Lawrence, 281 Conn. 147, 154-55, 913 A.2d 428 (2007); State v. Olson, 115 Conn.App. 806, 810-11, 973 A.2d 1284 (2009); State v. Lewis, 108 Conn.App. 486, 488, 948 A.2d 389 (2008). Practice Book § 43-22 provides that "[t]he 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 disposition made in an illegal manner." However, if the defendant fails to demonstrate that his claims fit within the purview of Section 43-22, the Court is without jurisdiction and the matter must be dismissed. See State v. Lawrence, supra, 159 ("because the defendant's claim falls outside that set of narrow circumstances in which the court retains jurisdiction over a defendant once that defendant has been transferred into the custody of the commissioner of correction to begin serving his sentence, the court lacks jurisdiction to consider the claim pursuant to a motion to correct an illegal sentence under § 43-22").
In the present case, the defendant does not claim that the sentencing court imposed an illegal sentence. "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." (Internal quotation marks omitted.) State v. Delgado, supra, 116 Conn.App. 438. Clearly, the defendant's claim does not fall within one of these categories of illegal sentences. Instead, the defendant claims that the sentence was imposed in an illegal manner in that privileged information collected by the Office of Adult Probation from psychiatric records in 1996 was included in the 1999 PSI without him having waived his statutory confidentiality privacy rights anew. "Sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but . . . imposed in a way which violates the 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." (Internal quotation marks omitted.) State v. Olson, supra, 115 Conn.App. 811. The defendant's claim does not fall within the foregoing definition either. He does not allege that he was denied the opportunity to speak at sentencing, or that the sentencing court relied upon inaccurate information or consideration of matters outside the record, or that the State failed to honor a plea agreement. Rather, the defendant concedes that the information provided to the sentencing court was accurate. Accordingly, the defendant's sentence was imposed in a legal manner.
Moreover, the time to object to the inclusion of the psychiatric records in the PSI was at the sentencing hearing. Prior to sentencing, the court asked defense counsel if he had an opportunity to review the PSI with the defendant and counsel stated that he briefly covered some of the details with him. The court asked counsel if he wanted more time to consult with his client regarding the report and the defendant began nodding his head. The court stated that it wanted to give the defendant a full opportunity to review the report and recessed so that counsel and the defendant could review it. The court recessed at 10:41 a.m. and resumed at 11:29 a.m. When the sentencing hearing resumed, the defendant had consulted with his attorney and was well aware of the contents of the PSI. Yet, he did not raise any objection to the contents of the PSI or request that the court exclude any portion of it. As previously noted, it was not until more than ten years later that the defendant raised any objection to the PSI. By not objecting to the inclusion of the psychiatric information in the PSI at sentencing on May 7, 1999, the defendant waived his right to object to it now. Once the defendant began to serve his sentence, this Court lost jurisdiction in matters affecting the sentence and express authority is required in order for the Court to take any action. Practice Book § 43-22 does not provide such authority in this case.
See State's Exhibit 1, Sentencing Transcript dated May 7, 1999, pages 82-84.
The Defendant's Motion to Correct an Illegal Sentence
Even if the Court were to consider the defendant's claim on its merits, he would not prevail on his Motion to Correct an Illegal Sentence. The defendant waived his statutory right to confidentiality in 1996 with respect to the psychiatric records in question. At the time, the information was legally used in the preparation of a PSI in the G.A. 12 case. The defendant's claim notwithstanding, there was no requirement that he provide the probation officer with a new waiver of confidentiality in order for her to include the information she had obtained pursuant to the 1996 waiver in the 1999 PSI. Practice Book § 43-9(1) states, in pertinent part, that presentence investigation reports "shall be available at all times to . . . [t]he office of adult probation." Subsection (6) states, in pertinent part, that these reports "shall be available at all times to . . . [a]ny court of proper jurisdiction where it is relevant to any proceeding before such court." Prior presentence investigation reports of a defendant are relevant in any sentencing proceeding involving the same defendant, as is any reliable information concerning a defendant. "It is a fundamental sentencing principle that a sentencing judge may appropriately conduct an inquiry broad in scope, and largely unlimited either as to the kind of information he may consider or the source from which it may come." State v. Arthur H., 288 Conn. 582, 609, 953 A.2d 630 (2008) (citing State v. Huey, 199 Conn. 121, 127, 505 A.2d 1242 (1986)). There is no allegation that the psychiatric information was inaccurate or unreliable. Therefore, since the office of adult probation was authorized to provide the sentencing court with the 1996 PSI in its entirety and the court was authorized to view it in its entirety, the probation officer was authorized to provide the court with portions of that report by incorporating the information in the 1999 PSI, and the court was authorized to view and utilize it.
Additionally, the psychiatric records in question were discussed in much detail during the defendant's 1996 sentencing hearing, the transcript of which is a public record. Therefore, even assuming a statutory violation and error on the part of the sentencing court, such error would have been harmless, as the same information was available to the court independent of the PSI.
See state's Exhibit 4, Sentencing Transcript dated February 8, 1996.
CONCLUSION
Accordingly, in light of the foregoing, the State's Motion to Dismiss is granted. In the alternative, the defendant's Motion to Correct an Illegal Sentence is hereby denied.
Dated at New Britain, Connecticut this 25th day of November 2009.