Opinion
CR08018936
01-15-2016
State of Connecticut v. Gary Stocking
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S " MOTIONS TO CORRECT AN ILLEGAL SENTENCE"
Elpedio N. Vitale, J.
I.
Nature of the Proceedings
Before the court are four separate documents captioned " Motion to Correct an Illegal Sentence." The defendant, as a self-represented party, filed said documents and therein made certain allegations, as well as requests for relief. The official court file reflects that the dates corresponding to the actual filing of the motions with the clerk's office do not necessarily coincide with the dates contained on the caption of each motion. To the extent the court references said motions in this decision, it will do so by the date indicated on them by the defendant, and not the date of their actual filing with the clerk.
On November 17, 2015, the court (Gold, J.) heard the self-represented defendant's Motion for Appointment of Counsel with respect to the Motions to Correct an Illegal Sentence filed by the defendant. Pursuant to State v. Casiano, 282 Conn. 614, 922 A.2d 1065 (2007), Judge Gold appointed a public defender to investigate the defendant's claims, and as a result, Attorney Christopher Duby filed an appearance in connection with the instant motions. Thereafter, in a motion dated December 28, 2015, Attorney Duby requested to withdraw as counsel. He filed a Memorandum of Law in Support of the Motion. On January 5, 2016, following a hearing conducted in conformity with State v. Francis, 148 Conn.App. 565, 86 A.3d 1059 (2015), this court granted Attorney Duby's Motion to Withdraw as Counsel. The defendant was present during the hearing on Attorney Duby's Motion and participated in the proceedings. The defendant is no longer incarcerated. For the reasons set forth below, the Motions to Correct an Illegal Sentence are dismissed.
Attorney Duby submitted a Memorandum of Law in support of his Motion to Withdraw as counsel. During the hearing on the Motion to Withdraw, Duby represented that a copy of his Memorandum in Support of his Motion to Withdraw was mailed to the defendant, and further, that he had in fact discussed its contents with the defendant prior to January 5, 2016. On January 5, 2016, the defendant indicated on the record that he had not received a copy of the Memorandum, but acknowledged he had discussed its contents with Duby on an earlier date. The court recessed to allow the defendant an opportunity to read the Memorandum in Support of the Motion to Withdraw, and to again discuss its contents with Duby. The court further offered the defendant a continuance if he required additional time to consider Duby's motion and the arguments advanced in the memorandum. The defendant declined the court's offer. Thereafter, Attorney Duby argued his grounds for concluding that the claims raised in each of the defendant's Motions to Correct an Illegal Sentence were frivolous in light of controlling legal authority, and further represented that he had reviewed the record for " anything" that might arguably support the defendant's claims he concluded that no sound basis existed to pursue said claims. The defendant did not object to Attorney Duby's Motion to Withdraw and so stated on the record. The court then indicated on the record that it had conducted its own independent examination of the record relevant to Attorney Duby's Motion to Withdraw in light of the controlling legal authority, and had concluded that the legal points raised in the defendant's Motions to Correct an Illegal Sentence are not arguable on their merits in the context of P.B. § 43-22. As a result, the court granted the Motion to Withdraw. See State v. Francis, supra . The court then permitted the defendant to be heard as a self-represented party on the merits of his Motions. The defendant availed himself of the opportunity to be heard on his motions.
II.
Discussion
" The Superior Court is a constitutional court of general jurisdiction . . . In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law." (Internal quotation marks omitted.) State v. Lawrence, 281 Conn. 147, 153, 913 A.2d 428 (2007). Under the common law, a trial court's jurisdiction over a criminal case terminates once the defendant has begun serving his or her sentence. State v. Ramos, 306 Conn. 125, 134, 49 A.3d 197 (2012); State v. Reid, 277 Conn. 764, 775, 894 A.2d 963 (2006). An exception to this general principle exists, however, that permits a trial court to retain jurisdiction to correct an illegal sentence. State v. Parker, 295 Conn. 825, 836, 992 A.2d, 1103 (2010); State v. Daniels, 207 Conn. 374, 387, 542 A.2d 306, after remand for articulation, 209 Conn. 225, 550 A.2d 885 (1988), cert. denied, 489 U.S. 1069, 109 S.Ct. 1349, 103 L.Ed.2d 817 (1989).
This exception is recognized in Practice Book § 43-22, which 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."
" [A]n 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. By contrast . . . [s]entences imposed in an illegal manner have been defined as being within the relevant statutory limits but . . . imposed in a way which violates [a] 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. Smith, 150 Conn.App. 623, 635, 92 A.3d 975, cert. denied, 314 Conn. 904, 99 A.3d 1169 (2014). These definitions are not exhaustive, however, and " the parameters of an invalid sentence will evolve"; State v. Parker, supra, 295 Conn. 840; as additional rights and procedures affecting sentencing are subsequently recognized under state and federal law.
Thus, to invoke the jurisdiction of a trial court to correct an illegal sentence, a defendant must allege that his or her sentence is illegal, or has been illegally imposed, for one of the reasons recognized under our common law. See State v. Lawrence, supra, 281 Conn. 155 (" for the trial court to have jurisdiction to consider the defendant's claim of an illegal sentence, the claim must fall into one of the categories of claims that, under the common law, the court has jurisdiction to review").
" Connecticut courts have considered four categories of claims pursuant to § 43-22. The first category has addressed whether the sentence was within the permissible range for the crimes charged . . . The second category has considered violations of the prohibition against double jeopardy . . . The third category has involved claims pertaining to the computation of the length of the sentence and the question of consecutive or concurrent prison time . . . The fourth category has involved questions as to which sentencing statute was applicable." (Citations omitted; internal quotation marks omitted.) State v. Lawrence, supra, 281 Conn. 156-57. " [I]f a defendant's claim falls within one of these four categories the trial court has jurisdiction to modify a sentence after it has commenced . . . If the claim is not within one of these categories, then the court must dismiss the claim for a lack of jurisdiction and not consider its merits." (Citation omitted.) State v. Koslik, 116 Conn.App. 693, 698-99, 977 A.2d 275 (2009), cert. denied 293 Conn. 930, 980 A.2d 916 (2009).
The defendant's original conviction was the result of a plea agreement. On July 28, 2009 the defendant appeared before the court (Clifford, J.) and pleaded guilty to one count of possession of child pornography in the second degree. State v. Stocking, 131 Conn.App. 81, 26 A.3d 117 (2011), cert. denied, 302 Conn. 940, 28 A.3d 993 (2011). On November 24, 2009, prior to the sentencing hearing, the defendant filed a motion for permission to withdraw his guilty plea. After an evidentiary hearing, Judge Clifford denied the Motion, and imposed the sentence contemplated by the plea agreement. The defendant then appealed. The Appellate Court held that the defendant knowingly, intelligently, and voluntarily entered his guilty plea, and affirmed the judgment of the trial court. Judge Clifford's plea canvass of the defendant is excerpted at length in the Appellate Court's opinion. The defendant was sentenced on the above charge to ten years, execution suspended after four years, followed by ten years probation. The offense required a ten year sex offender registration as well.
Thereafter, on September 10, 2014, in violation of probation proceedings before the court (Diana, J.) the defendant admitted to a violation of this probation with no agreement as to the disposition of the matter. Counsel for the State and Defense had the ability to argue for what each considered to be an appropriate sentence. The factual basis for the State's claim that the defendant was in violation of probation was placed on the record. Because this was his second violation of probation, the defendant faced up to four and a half years of incarceration and a little over four years probation. Following argument from the state and defense counsel, and after personally addressing the defendant, Judge Diana imposed a sentence of four and a half years, execution suspended after eighteen months, four years probation. The court has reviewed a complete transcript of the proceedings before Judge Diana.
Turning first to the Motion to Correct an Illegal Sentence dated July 13, 2015, the defendant makes various claims that attack the validity of " an arrest warrant" that he asserts was " based upon falsified information and that constitutes perjury" . . . At oral argument, the defendant specifically referenced the arrest warrant affidavit alleging the violation of probation heard by Judge Diana.
During argument on his Motion, the defendant made repeated reference to a " lack of probable cause" for his arrest on the aforementioned violation of probation. He also asserted that since " no criminal acts were committed" that would constitute a violation of probation, mere technical violations of conditions of probation are insufficient to establish probable cause for his arrest for violation of probation. The defendant also asserts that his subsequent incarceration for violation of probation was " unfair" in that no new crime was alleged, and that his sentence of incarceration violates " double jeopardy."
The court construes the defendants various attacks on the validity of the violation of probation warrant, and his prosecution for a " technical" violation of probation to be an attack on the proceedings leading to his adjudication of being in violation of probation. The arguments the defendant advances are not persuasive because they relate to events outside the narrow confines of P.B. § 43-22. State v. Meikle, 146 Conn.App. 660, 663, 79 A.3d 129 (2013); State v. Lewis, 108 Conn.App. 486, 488, 948 A.2d 389 (2008). " To invoke successfully the court's jurisdiction with respect to an illegal sentence, the focus cannot be on what occurred during the underlying conviction." State v. St. Louis, 146 Conn.App. 461, 466, 76 A.3d 753 (2013), State v. Gemmell, 155 Conn.App. 789, 791, 110 A.3d 1234 (2015).
The " double jeopardy" argument advanced by the defendant similarly must be rejected as our Supreme Court has held that " the element of 'punishment' in a probation revocation of the defendant is attributable to the crime for which he was originally convicted and sentenced. Thus any sentence the defendant had to serve as the result of the probation violation . . . was 'punishment' for the crime of which he had originally been convicted. Revocation is a continuing consequence of the original conviction from which probation was granted." State v. Smith, 207 Conn. 152, 178, 540 A.2d 679 (1988). The sentence imposed by Judge Diana was within the permissible range for the defendant's violation of probation, and did not violate the terms of the plea agreement. According to the plea transcript of September 10, 2014, Judge Diana addressed the defendant personally at sentencing and the defendant was afforded the opportunity to speak in mitigation.
The Motion to Correct dated September 10, 2015, again advances arguments outside the narrow confines of P.B. § 43-22, and makes reference to claims posited in the July 13, 2015 Motion. The same is true for the Motions to Correct dated October 25, 2015 and November 17, 2015. In summary, all of the defendants' Motions to Correct an Illegal Sentence make reference to substantially similar arguments that our Appellate Courts have determined are not appropriate in connection with a Motion to Correct an Illegal Sentence. To the extent that the defendant in his November 17, 2015 Motion to Correct argues that his confinement " against his will" at the " January Center" is in violation of his plea agreement, such argument finds no support in the record. The record does not reflect that either Judge Clifford or Judge Diana made any promises regarding the actual length or location of his confinement. See State v. Montanez, 149 Conn.App. 32, 88 A.3d 575 (2014), cert. denied, 311 Conn. 955, 97 A.3d 985 (2014).
For the foregoing reasons, each of the defendants' Motion to Correct an Illegal Sentence are dismissed in that the court lacks jurisdiction with respect to each of them.