Opinion
AC 40534
10-29-2019
STATE of Connecticut v. Jeffrey K. WARD
Aimee Lynn Mahon, assigned counsel, with whom was Temmy Ann Miller, assigned counsel, for the appellant (defendant). Sarah Hanna, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and John F. Fahey, senior assistant state's attorney, for the appellee (state).
Aimee Lynn Mahon, assigned counsel, with whom was Temmy Ann Miller, assigned counsel, for the appellant (defendant).
Sarah Hanna, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and John F. Fahey, senior assistant state's attorney, for the appellee (state).
The listing of the judges reflects their seniority status on this court as of the date of oral argument.
MOLL, J. The defendant, Jeffrey K. Ward, appeals from the judgment of the trial court dismissing his motion to correct a sentence imposed in an illegal manner (motion to correct). On appeal, the defendant claims that the court erred in (1) adjudicating the motion to correct, rather than referring the motion to the sentencing court, and (2) concluding that it lacked subject matter jurisdiction over the motion to correct. We disagree and, accordingly, affirm the judgment of the trial court.
For ease of discussion, we address the defendant's claims in a different order than they are set forth in his principal appellate brief.
The following facts and procedural history are relevant to our resolution of the appeal. On June 25, 2012, pursuant to a plea agreement, the defendant pleaded guilty to manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1) and assault in the first degree in violation of General Statutes § 53a-59 (a) (1) in connection with an incident that had occurred at a motel in Enfield on September 29, 2011. After canvassing the defendant, the trial court, Alexander, J. , accepted the defendant's guilty pleas. On July 23, 2012, following a sentencing hearing, Judge Alexander sentenced the defendant to a period of twenty years of incarceration on the count of manslaughter in the first degree and five years of incarceration on the count of assault in the first degree, to run consecutively to the sentence on the count of manslaughter in the first degree, for a total effective sentence of twenty-five years of incarceration, as agreed to by the parties. The defendant did not appeal from his conviction.
In addition to pleading guilty to manslaughter in the first degree and assault in the first degree, the defendant admitted to two counts of violating his probation in violation of General Statutes § 53a-32. Judge Alexander revoked and terminated the defendant's probations.
On November 3, 2016, pursuant to Practice Book § 43-22, the defendant filed the motion to correct, accompanied by a memorandum of law and exhibits. Specifically, the defendant contended that his sentence was imposed in an illegal manner on the grounds that (1) he had been incompetent at the time of sentencing and (2) the sentencing court had failed to order, sua sponte, that a competency evaluation and hearing be conducted pursuant to General Statutes § 54-56d before the defendant's sentencing on the basis of information known to the sentencing court. On November 17, 2016, the trial court, Dewey, J. , held a hearing on the motion to correct. At the outset of the hearing, the state argued that the court lacked subject matter jurisdiction over the motion to correct, contending that the defendant's claims should be raised by way of a petition for a writ of habeas corpus. In addition, the state argued that the record did not demonstrate that the defendant's sentence was imposed in an illegal manner. The defendant argued that the court had subject matter jurisdiction over the motion to correct because his alleged incompetence at the time of sentencing and the sentencing court's failure to order, sua sponte, that a competency evaluation and hearing be conducted before sentencing were germane to the legality of the manner in which his sentence was imposed. Following argument, the court reserved its decision regarding jurisdiction and heard the parties on the merits of the motion to correct. On March 7, 2017, the court issued a memorandum of decision dismissing the motion to correct for lack of subject matter jurisdiction. This appeal followed. Additional facts and procedural history will be set forth as necessary.
I
We first address the defendant's claim that Judge Dewey erred in hearing and ruling on the motion to correct, rather than referring the motion to correct to Judge Alexander, the sentencing judge. Specifically, the defendant asserts that due process required the motion to correct to be adjudicated by Judge Alexander, who, as the sentencing judge, had observed and interacted with the defendant, was familiar with the defendant and his mental health issues, and was better situated to consider the issues raised in the motion to correct. We are not persuaded.
The defendant does not specify whether his due process claim is raised pursuant to the federal constitution or the state constitution. Therefore, we treat the defendant's claim as limited to the federal constitution. See State v. Alvarez , 257 Conn. 782, 796 n.10, 778 A.2d 938 (2001).
As a preliminary matter, the defendant concedes that this claim is unpreserved; he argues, however, that his unpreserved claim is reviewable pursuant to State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015). Under Golding , "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation ... exists and ... deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." (Emphasis in original; footnote omitted.) State v. Golding , supra, at 239–40, 567 A.2d 823. "The first two steps in the Golding analysis address the reviewability of the claim, while the last two steps involve the merits of the claim." (Internal quotation marks omitted.) State v. Jerrell R. , 187 Conn. App. 537, 543, 202 A.3d 1044, cert. denied, 331 Conn. 918, 204 A.3d 1160 (2019).
Not only did the defendant never request that Judge Alexander adjudicate the motion to correct, but the proposed order attached to the motion to correct specifically contemplated Judge Dewey being the deciding authority.
At the outset, in response to a question raised by the state in its appellate brief, we note that the defendant's unpreserved claim does not fall within the ambit of those cases that stand for the proposition that a defendant is not entitled to Golding review of an unpreserved claim challenging the legality of a sentence that was not raised by way of a motion to correct an illegal sentence. See, e.g., State v. Gang Jin , 179 Conn. App. 185, 195–96, 179 A.3d 266 (2018). Here, the unpreserved claim at issue concerns the actions of Judge Dewey in not referring the motion to correct to Judge Alexander, as opposed to the legality of the sentence imposed by Judge Alexander, and, thus, Golding review may be available. See Mozell v. Commissioner of Correction , 291 Conn. 62, 67 n.2, 967 A.2d 41 (2009) (rejecting respondent's argument that Golding review inapplicable in all circumstances arising from appeal from judgment of habeas court and concluding that Golding review may be available to challenge certain actions of habeas court); see also State v. White , 182 Conn. App. 656, 673–74, 191 A.3d 172 (concluding that defendant's unpreserved claim, that trial court erred by not recusing itself from hearing merits of motion to correct illegal sentence, failed under third prong of Golding ), cert. denied, 330 Conn. 924, 194 A.3d 291 (2018).
The defendant's unpreserved claim, that, as a matter of law, the sentencing court was the only judicial authority permitted to decide the motion to correct, meets the first two prongs of Golding and, therefore, is reviewable. Turning to the first prong of Golding , we conclude that the record is adequate to review the defendant's claim of error. With respect to the second prong of Golding , the defendant's due process claim is of constitutional magnitude. See State v. Battle , 192 Conn. App. 128, 144, 217 A.3d 637 (2019) (claim that defendant's right to due process was violated because sentencing court did not act on motion to correct illegal sentence was of constitutional magnitude).
Although the defendant's due process claim is reviewable, we conclude that the claim does not satisfy the third prong of Golding in light of this court's recent decision in State v. Battle , supra, 192 Conn. App. at 146–47, 217 A.3d 637, wherein this court concluded that due process does not require the sentencing court to hear and adjudicate a defendant's motion to correct an illegal sentence or a sentence imposed in an illegal manner. In Battle , this court observed that the current version of Practice Book § 43-22 "does not limit the ‘judicial authority’ empowered to correct an illegal sentence or a sentence imposed in an illegal manner to the sentencing court." Id., at 145, 217 A.3d 637. This court further observed that there was no appellate authority "holding that a defendant's motion to correct an illegal sentence or a sentence imposed in an illegal manner must be heard and adjudicated by the particular judge who imposed the sentence." (Emphasis in original.) Id. Ultimately, this court concluded: "Due process does not mandate that a motion to correct an illegal sentence or a sentence imposed in an illegal manner be heard by the judge whom the defendant prefers or who has the greatest familiarity with the defendant. Due process seeks to assure a defendant a fair trial, not a perfect one." (Internal quotation marks omitted.) Id., at 146–47, 217 A.3d 637.
Practice Book § 43-22 provides: "The 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."
The defendant's due process claim is controlled by Battle . Accordingly, we conclude that the defendant in the present case did not suffer a due process violation and, therefore, his claim fails under the third prong of Golding . II
In his reply brief, the defendant asserts for the first time that we should invoke our inherent supervisory authority to review his unpreserved claim if we conclude that his claim fails under Golding . "Generally, this court does not consider claims raised for the first time in a reply brief." Perry v. State , 94 Conn. App. 733, 740 n.5, 894 A.2d 367, cert. denied, 278 Conn. 915, 899 A.2d 621 (2006). Even if the defendant's request were proper, we observe that "[b]ypass doctrines permitting the review of unpreserved claims such as [Golding ] and plain error, are generally adequate to protect the rights of the defendant and the integrity of the judicial system .... [T]he supervisory authority of this state's appellate courts is not intended to serve as a bypass to the bypass, permitting the review of unpreserved claims of case specific error—constitutional or not—that are not otherwise amenable to relief under Golding or the plain error doctrine. Rather, the integrity of the judicial system serves as a unifying principle behind the seemingly disparate use of our supervisory powers.... Thus, a defendant seeking review of an unpreserved claim under our supervisory authority must demonstrate that his claim is one that, as a matter of policy, is relevant to the perceived fairness of the judicial system as a whole, most typically in that it lends itself to the adoption of a procedural rule that will guide the lower courts in the administration of justice in all aspects of the criminal process." (Internal quotation marks omitted.) State v. Leach , 165 Conn. App. 28, 35–36, 138 A.3d 445, cert. denied, 323 Conn. 948, 169 A.3d 792 (2016). We see no reason to invoke our supervisory powers here.
We now turn to the defendant's claim that the court erred in dismissing the motion to correct for lack of subject matter jurisdiction. Specifically, the defendant asserts that the court misconstrued his claim in the motion to correct, which led the court to conclude erroneously that it lacked subject matter jurisdiction over the motion to correct. He contends that he raised a colorable claim contesting the legality of the manner in which his sentence was imposed, thereby invoking the court's subject matter jurisdiction. Although we agree with the defendant that the court's analysis in dismissing the motion to correct was flawed, we nevertheless conclude that the defendant failed to present a colorable claim that his sentence was imposed in an illegal manner, and, thus, the court properly dismissed the motion to correct for lack of subject matter jurisdiction.
We begin by setting forth the relevant standard of review and legal principles that guide our analysis of the defendant's claim. "Because the defendant's [claim] pertain[s] to the subject matter jurisdiction of the trial court, [it] ... present[s] a question of law subject to the plenary standard of review....
"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.... It is well established that under the common law a trial court has the discretionary power to modify or vacate a criminal judgment before the sentence has been executed.... This is so because the court loses jurisdiction over the case when the defendant is committed to the custody of the commissioner of correction and begins serving the sentence.... Because it is well established that the jurisdiction of the trial court terminates once a defendant has been sentenced, a trial court may no longer take any action affecting a defendant's sentence unless it expressly has been authorized to act....
" [Practice Book] § 43-22 embodies a common-law exception that permits the trial court to correct an illegal sentence or other illegal disposition.... Thus, if the defendant cannot demonstrate that his motion to correct falls within the purview of § 43-22, the court lacks jurisdiction to entertain it.... [I]n order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding [itself] ... must be the subject of the attack....
"[A]n illegal sentence is essentially one [that] 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 [that] 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 .... These definitions are not exhaustive, however, and the parameters of an invalid sentence will evolve ... as additional rights and procedures affecting sentencing are subsequently recognized under state and federal law." (Citation omitted; emphasis omitted; internal quotation marks omitted.) State v. Jason B. , 176 Conn. App. 236, 242–44, 170 A.3d 139 (2017). Pursuant to § 54-56d (a), "[a] defendant shall not be tried, convicted or sentenced while the defendant is not competent. For the purposes of this section, a defendant is not competent if the defendant is unable to understand the proceedings against him or her or to assist in his or her own defense." (Emphasis added.) A defendant is presumed to be competent, and the burden of proving that a defendant is not competent is on the party raising the issue, or on the state if the trial court raises the issue. See General Statutes § 54-56d (b). In addition, "[i]f, at any time during a criminal proceeding, it appears that the defendant is not competent, counsel for the defendant or for the state, or the court, on its own motion, may request an examination to determine the defendant's competency." General Statutes § 54-56d (c).
In the motion to correct, the defendant claimed that his sentence was imposed in an illegal manner because (1) he had been incompetent at the time of sentencing and (2) the sentencing court had failed to order, sua sponte, that a competency hearing be held prior to sentencing on the basis of information known to the court. The defendant also asserted that he had been incompetent when he had entered his guilty pleas on June 25, 2012, and that he believed that he was entitled to withdraw his guilty pleas if the motion to correct were granted and a new sentencing hearing were ordered; however, he stated expressly in the motion to correct that "[t]he issue [raised in the motion to correct] ... is [the defendant's] sentencing, and given [the defendant's] incompetence at the time, it was imposed in an illegal manner." In addition, during the hearing held on the motion to correct, defense counsel stressed that the defendant was not challenging the legality of his sentence but, rather, the legality of the manner in which it was imposed. The defendant submitted the following with the motion to correct: four pretrial transcripts and the sentencing transcript; a police report; a report completed following a psychiatric evaluation of the defendant (psychiatric report), which was filed under seal; and certain of the defendant's psychiatric records from the Department of Correction (psychiatric records), which were filed under seal.
In its memorandum of decision dismissing the motion to correct, the court interpreted the defendant's chief claim to be that "[the defendant] was incompetent at the time of sentencing and, consequently, the sentence was imposed in an illegal manner." The court continued: "The difficulty with the defendant's position is that the sentencing procedure in the present case complied with all constitutional and statutory requirements." Citing State v. Robles , 169 Conn. App. 127, 133, 150 A.3d 687 (2016), cert. denied, 324 Conn. 906, 152 A.3d 544 (2017), the court determined that the defendant's claims did not fall into any of the categories of claims identified in Robles over which a trial court has jurisdiction to modify a sentence after it has commenced. The court then determined that, in substance, the defendant was making an improper collateral attack on his conviction on the basis of his purported incompetence. The court determined that the defendant had entered his guilty pleas knowingly, intelligently, and voluntarily, and that a motion to correct was not the proper vehicle by which to challenge the voluntariness of his pleas.
In addition, the court stated that the defendant "suggests that the trial court has an obligation, sua sponte, to suspect the defendant's competency. Nothing in the record before the trial court reflected an inappropriate mental health status. To the contrary, there was a presumption in favor of competence." The court determined that nothing in the pretrial proceedings demonstrated that the defendant was unable to assist in his defense or to consult with his counsel, and that the court's participation in the pretrial proceedings had not put the court on notice that a more searching inquiry into the defendant's competence to enter his guilty pleas was necessary.
We agree with the defendant that the court's analysis in dismissing the motion to correct was flawed. After the court correctly construed the defendant's claim to be that his sentence was imposed in an illegal manner stemming from his alleged incompetence at the time of sentencing, the court determined that the defendant's claim failed to fall into any of the categories recited in Robles and, thus, the court lacked jurisdiction to consider it. In Robles , this court stated in relevant part: "Connecticut courts have considered four categories of claims pursuant to [Practice Book] § 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.... [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." (Internal quotation marks omitted.) State v. Robles , supra, 169 Conn. App. at 133, 150 A.3d 687. The foregoing analysis applies, however, only to a claim that a sentence is illegal, as opposed to a claim that a sentence was imposed in an illegal manner. See State v. Evans , 329 Conn. 770, 779–80, 189 A.3d 1184 (2018) (discussing trial court's jurisdiction to entertain claims challenging legality of sentence and legality of manner in which sentence imposed), cert. denied, ––– U.S. ––––, 139 S. Ct. 1304, 203 L. Ed. 2d 425 (2019). Thus, the court erred in relying on Robles in adjudicating the defendant's claim that his sentence was imposed in an illegal manner. In addition, the court's determination that it lacked subject matter jurisdiction over the motion to correct because the defendant was collaterally attacking his conviction and the validity of his guilty pleas was erroneous. Although the defendant argued that he would seek to withdraw his guilty pleas if the court granted the motion to correct and ordered a new sentencing hearing, the pleadings and the record make clear that the singular focus of the motion to correct was the sentencing proceeding and the legality of the manner in which the defendant's sentence was imposed. Thus, the court's examination of the circumstances surrounding the defendant's guilty pleas and its focus on his competence at the time that he had entered his guilty pleas were misplaced.
The excerpt in Robles cited by the trial court quotes language that was first set forth by our Supreme Court in State v. Lawrence , 281 Conn. 147, 156–57, 913 A.2d 428 (2007), in analyzing the parameters of a claim that a sentence is illegal.
Although the court's analysis in dismissing the motion to correct was flawed, we nevertheless conclude that the court properly dismissed the motion to correct for lack of subject matter jurisdiction on different grounds. See HSBC Bank USA, National Assn. v. Lahr , 165 Conn. App. 144, 151, 138 A.3d 1064 (2016) (affirming judgment of trial court on different grounds). The defendant asserts that he raised a colorable claim in the motion to correct asserting that his sentence was imposed in an illegal manner and, thus, the court had subject matter jurisdiction to entertain the motion to correct. We disagree and conclude that the motion to correct, on its face, did not set forth a colorable claim contesting the legality of the manner in which the defendant's sentence was imposed, thereby depriving the court of subject matter jurisdiction.
On June 24, 2019, after the parties had submitted their respective appellate briefs and following oral argument, we, sua sponte, ordered the parties to file supplemental briefs addressing the following question: "Whether the facts pleaded by the defendant in support of his motion to correct a sentence imposed in an illegal manner were sufficient to state a colorable claim of incompetency at sentencing. See State v. Mukhtaar , 189 Conn. App. 144, 150 n.6, 207 A.3d 29 (2019) ; State v. Jason B. , [supra], 176 Conn. App. at [244–45], 170 A.3d 139." The parties filed their respective supplemental briefs on July 8, 2019.
"Recently, our Supreme Court explained [in State v. Delgado , 323 Conn. 801, 810, 151 A.3d 345 (2016) ], in addressing the trial court's dismissal on jurisdictional grounds of a motion to correct an illegal sentence that [t]he subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal.... At issue is whether the defendant has raised a colorable claim within the scope of Practice Book § 43-22 that would, if the merits of the claim were reached and decided in the defendant's favor, require correction of a sentence.... In the absence of a colorable claim requiring correction, the trial court has no jurisdiction to modify the sentence....
"Therefore, as made clear by our Supreme Court in Delgado , for the trial court to have jurisdiction over a defendant's motion to correct a sentence that was imposed in an illegal manner, the defendant must put forth a colorable claim that his sentence, in fact, was imposed in an illegal manner. A colorable claim is [a] claim that is legitimate and that may reasonably be asserted, given the facts presented and the current law (or a reasonable and logical extension or modification of the current law).... For jurisdictional purposes, to establish a colorable claim, a party must demonstrate that there is a possibility, rather than a certainty, that a factual basis necessary to establish jurisdiction exists." (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. Jason B. , supra, 176 Conn. App. at 244–45, 170 A.3d 139. In State v. Jason B. , supra, 176 Conn. App. at 241–42, 170 A.3d 139, the defendant filed a "motion to correct an illegal sentence," asserting that his sentence was imposed in an illegal manner because, on the basis of statements made by the sentencing court at his sentencing hearing, the sentencing court had considered information that was inaccurate and outside of the record when imposing his sentence. The trial court dismissed the defendant's motion for lack of subject matter jurisdiction, concluding that the defendant had not raised a colorable claim that his sentence was imposed in an illegal manner. Id., at 242, 170 A.3d 139. On appeal, this court affirmed the judgment. Id., at 248, 170 A.3d 139. After reviewing the record, this court determined that the sentencing court's statements at issue in the defendant's motion to correct could not reasonably be viewed as demonstrating that the court considered information that was inaccurate or outside of the record. Id., at 245–47, 170 A.3d 139. Accordingly, this court concluded that the defendant's motion to correct, on its face, failed to present a colorable claim invoking the subject matter jurisdiction of the trial court. Id.
Here, in the motion to correct, the defendant asserted that his sentence was imposed in an illegal manner because (1) he had been incompetent at the time of sentencing and (2) the sentencing court had failed to order, sua sponte, a competency evaluation and hearing on the basis of information known to the court when it had sentenced the defendant. The defendant attached several exhibits to the motion to correct to support his assertions. Guided by the rationale of Jason B. , and for the reasons discussed as follows, we conclude that the motion to correct, on its face, did not set forth a colorable claim that the defendant's sentence was imposed in an illegal manner. In support of the motion to correct, the defendant relied on transcripts of several pretrial proceedings and the sentencing hearing. During a pretrial proceeding on April 10, 2012, defense counsel informed Judge Alexander that the defendant had undergone a psychiatric evaluation during the prior week and that counsel expected to receive the psychiatric report in the immediate future. Judge Alexander stated that she intended to review the psychiatric report "before we can start discussing any disposition ...." During a pretrial proceeding on April 26, 2012, defense counsel informed Judge Alexander that additional information needed to be provided to the psychiatrist to complete the psychiatric report for the court's review. During a pretrial proceeding on May 15, 2012, the court stated that it was going to continue the case as a result of ongoing plea discussions. There was no mention of the defendant's psychiatric evaluation or mental health during the May 15, 2012 hearing. During a pretrial proceeding on June 25, 2012, after canvassing the defendant, the trial court accepted the defendant's guilty pleas. There was no discussion of the defendant's psychiatric evaluation or mental health at that time. During the sentencing hearing on July 23, 2012, the prosecutor stated that sentencing the defendant to a total effective sentence of twenty-five years of incarceration was an appropriate disposition as a result of the defendant's "psychiatric background" and "mental health history." In addition, defense counsel represented that the defendant had been experiencing "psychotic symptoms which diminished his capacity to conform his behavior to the law" at the time of the incident in September, 2011. Defense counsel also noted that the psychiatrist hired by defense counsel to evaluate the defendant had diagnosed him with paranoid type schizophrenia ; the defendant had been suffering from a mental illness throughout most of his adult life; in October, 2011, following his incarceration, the defendant began receiving mental health treatment and taking anti-psychotic medication; and the defendant's symptoms had improved significantly and, at the time of the sentencing hearing, he was "calm, rational, and ... [understood] and [appreciated] the seriousness of this situation." Before sentencing the defendant, Judge Alexander acknowledged that the defendant had a "mental health disease," she accepted defense counsel's representations that the Department of Correction was treating the defendant, and she commented that she hoped the defendant would continue to take the proper medication as it was "essential for [his] clear thinking." In the motion to correct, the defendant asserted that the transcripts demonstrated that the parties and Judge Alexander were aware that the defendant had "serious mental health issues" prior to his sentencing.
Next, the defendant relied on a police report dated September 30, 2011. The police report indicated that during an interview conducted by a police detective on that day, the defendant inserted a pencil approximately five to six inches into his right nostril and, after the detective had intervened, the defendant attempted to stab himself in the neck with the pencil, causing a minor laceration. In the motion to correct, the defendant asserted that the police report helped demonstrate that he had been incompetent at the time that he was sentenced.
The next item on which the defendant relied was the psychiatric report, which included a cover letter dated May 8, 2012. The psychiatrist who authored the psychiatric report based his findings on information that he had gathered from, inter alia, a ninety minute interview with the defendant conducted on April 5, 2012, three and one-half months before sentencing. In the motion to correct, the defendant asserted that the psychiatric report contained findings establishing that the defendant was socially withdrawn as an adolescent and began experiencing auditory hallucinations in his early twenties, which led the defendant to attempt to commit suicide on multiple occasions; the defendant experienced episodes of paranoid ideation and depression; the defendant displayed significant mood symptoms and obsessive and compulsive symptoms, which interfered with his ability to think; the defendant had paranoid type schizophrenia ; the defendant had been receiving and responding well to anti-psychotic medication, but he had suffered from psychotic symptoms for many years without treatment, which could contribute to an increased likelihood of worse, chronic, and/or more frequent exacerbations of symptoms; and even with continued treatment, the defendant was at a significant risk of continuing to suffer symptoms of his schizophrenia. The defendant contended that the findings set forth in the psychiatric report helped demonstrate that he had been incompetent when sentenced.
The defendant was born in 1977.
Last, the defendant relied on the psychiatric records, which comprised clinical records from the Department of Correction. In the motion to correct, the defendant asserted that the psychiatric records revealed that in October, 2011, the defendant reportedly was having auditory hallucinations and exhibiting paranoid thought processes, and that he did not believe that his medications were working; on May 4, 2012, the defendant reportedly failed to take several doses of medication; on May 31, 2012, the defendant reportedly was referred to "psych for med. re-evaluation" and reportedly stated that he had "agreed to 20 years for murder" but was not yet sentenced; on July 2, 2012, the defendant reportedly missed multiple doses of medication, although he was not exhibiting symptoms of his psychosis ; on July 11, 2012, the defendant reportedly missed taking his medication "intermittently" and reportedly was hearing voices at night; on July 13, 2012, the defendant reportedly stated that he was going to be sentenced to twenty years of incarceration for manslaughter and that his medication was working to suppress the voices but not his depression; and on August 24, 2012, the defendant reportedly stated that he had been sentenced to thirty years of incarceration for manslaughter. The defendant contended that the psychiatric records helped establish that he had been incompetent at the time of his sentencing.
We conclude that, on its face, the motion to correct did not raise the possibility that the defendant was incompetent at the time of his sentencing or that Judge Alexander had information prior to sentencing that required her to order that a competency evaluation and hearing be conducted. The pretrial and sentencing transcripts indicate that the parties and Judge Alexander were aware that the defendant had a history of mental health issues, but nothing in the transcripts raises any indication that the defendant had been incompetent when he was sentenced or that a competency evaluation and hearing prior to sentencing were required. Likewise, the police report, the psychiatric report, and the psychiatric records cannot be viewed reasonably to support a conclusion that the defendant was incompetent at the time of sentencing. The incident described in the police report, which occurred in September, 2011, well before the defendant's sentencing and before the defendant had begun receiving mental health treatment from the Department of Correction, provides no support for the proposition that the defendant was incompetent at the time of sentencing. The psychiatric report, dated over two months prior to the defendant's sentencing, suggests that the defendant had a history of mental health issues and was at risk of experiencing symptoms in the future, but it does not establish that there was any likelihood that the defendant was incompetent when sentenced. Similarly, the representations in the psychiatric records that, in the weeks and months preceding his sentencing, the defendant had failed to maintain a strict medication schedule and had experienced symptoms associated with his mental health issues do not imply that the defendant was incompetent when sentenced. In addition, the statements reportedly made by the defendant before and after his sentencing suggesting that he misunderstood the length of his sentence cannot be viewed rationally as establishing that he was not competent at the time of his sentencing. Accordingly, the defendant failed to raise a colorable claim in the motion to correct that his sentence was imposed in an illegal manner.
There is nothing in the record to suggest that Judge Alexander had been provided with the police report, the psychiatric report, or the psychiatric records prior to sentencing, and, thus, Judge Alexander could not have relied on those documents to consider ordering that a competency evaluation and hearing be conducted.
We observe that in State v. Mukhtaar , supra, 189 Conn. App. at 149–50, 207 A.3d 29, the defendant appealed from a judgment dismissing his motion to correct an illegal sentence in which he asserted that his sentence was illegal because, inter alia, the trial court had failed to order a competency hearing on his behalf before or after his criminal trial. This court concluded that the trial court lacked jurisdiction to entertain that claim because the defendant was not attacking the sentencing proceeding itself. Id., at 150, 207 A.3d 29. In a footnote, this court additionally stated that "a claim regarding a defendant's competency at the sentencing proceeding; see General Statutes § 54-56d (a) ; or a claim that the court failed to inquire, sua sponte, into a defendant's competency at the sentencing proceeding when there is sufficient evidence at that proceeding to raise a reasonable doubt as to whether that defendant can understand the proceeding or assist in his or her defense therein; State v. Yeaw , 162 Conn. App. 382, 389–90, 131 A.3d 1172 (2016) ; would fall within the jurisdiction of the trial court for the purpose of a motion to correct an illegal sentence filed pursuant to Practice Book § 43-22." Id., at 150 n.6, 207 A.3d 29. Our conclusion that the court lacked subject matter jurisdiction over the motion to correct in the present case does not conflict with the aforementioned language in Mukhtaar . If the defendant had raised a colorable claim in the motion to correct regarding his competency at the time of his sentencing or the sentencing court's failure to order that a competency evaluation and hearing be conducted, then the court would have had subject matter jurisdiction over the motion. Because the defendant failed to raise a colorable claim in the motion to correct, however, the court lacked subject matter jurisdiction to entertain the motion.
The defendant, citing State v. Evans , supra, 329 Conn. at 770, 189 A.3d 1184, appears to contend that his claim that his sentence was imposed in an illegal manner is colorable per se because his claim challenges the actions of the sentencing court and, if successful, would require a new sentencing hearing. We are not persuaded.
In Evans , our Supreme Court concluded that the trial court had subject matter jurisdiction over a motion to correct an illegal sentence filed by the defendant, in which the defendant claimed that his sentence was illegal because, inter alia, under United States Supreme Court precedent, the sentence exceeded the relevant statutory limits. Id., at 775, 189 A.3d 1184. In analyzing whether the court had subject matter jurisdiction to entertain the defendant's claim, our Supreme Court stated that "[t]he jurisdictional and merits inquiries are separate; whether the defendant ultimately succeeds on the merits of his claim does not affect the trial court's jurisdiction to hear it.... It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.... We emphasize, however, that this general principle that there is a strong presumption in favor of jurisdiction ... in criminal cases ... is considered in light of the common-law rule that, once a defendant's sentence has begun [the] court may no longer take any action affecting a defendant's sentence unless it expressly has been authorized to act.... Thus, the presumption in favor of jurisdiction does not itself broaden the nature of the postsentencing claims over which the court may exercise jurisdiction in criminal cases, but merely serves to emphasize that the jurisdictional inquiry is guided by the plausibility that the defendant's claim is a challenge to his sentence, rather than its ultimate legal correctness.... In determining whether it is plausible that the defendant's motion challenged the sentence, rather than the underlying trial or conviction, we consider the nature of the specific legal claim raised therein." (Citations omitted; internal quotation marks omitted.) Id., at 784, 189 A.3d 1184. Our Supreme Court determined that the defendant had presented a "sufficiently plausible" interpretation of the statutes at issue in that case to render his claim "colorable for the purpose of jurisdiction over his motion [to correct an illegal sentence]" and observed that the defendant was not requesting that his conviction be disturbed but, rather, was seeking a remand for resentencing. Id., at 786, 189 A.3d 1184.
Evans supports, rather than conflicts with, our conclusion that the defendant failed to set forth a colorable claim that his sentence was imposed in an illegal manner. In Evans , our Supreme Court did not conclude that the defendant had raised a colorable claim contesting the legality of his sentence merely because the defendant's claim was directed to the validity of his sentence and the defendant would be entitled to a new sentencing hearing if the claim was successful; instead, our Supreme Court determined that the defendant's claim was colorable on the ground that the defendant had set forth a "sufficiently plausible" interpretation of the statutory scheme underlying his contention that his sentence exceeded statutory limits. Id., at 785–86, 189 A.3d 1184. In the present case, in contrast, the defendant's claim is not colorable because the defendant's motion to correct, on its face, failed to establish any possibility that he was incompetent at the time of sentencing or that there was sufficient information before Judge Alexander requiring a competency examination and hearing prior to the defendant's sentencing.
In sum, we conclude that the court lacked subject matter jurisdiction to entertain the motion to correct on the basis that the defendant failed to set forth a colorable claim in the motion to correct that his sentence was imposed in an illegal manner. Therefore, the court properly dismissed the motion to correct for lack of subject matter jurisdiction.
The judgment is affirmed.
In this opinion ALVORD, J., concurred.
SHELDON, J., concurring in part and dissenting in part. I agree with my colleagues' determination, in part I of their majority opinion, that the defendant's first claim of error—an unpreserved claim that the trial court improperly failed to refer his motion to correct an illegal sentence to the judge who imposed the challenged sentence upon him—is not reviewable and reversible under State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015), for the reasons stated in this court's recent decision in State v. Battle , 192 Conn. App. 128, 146-47, 217 A.3d 637 (2019). As for the defendant's second, and principal, claim, however—that the trial court erred in dismissing his motion to correct for lack of subject matter jurisdiction because the motion purportedly challenged only the legality of his underlying conviction rather than the legality of the manner in which his sentence was imposed—I disagree with that portion of the majority's decision, in part II thereof, which concludes that, despite legal error in the trial court's jurisdictional analysis, its judgment of dismissal should be affirmed on the alternative ground that the claims pleaded in the motion to correct are not colorable claims. Concluding, as I do, that the defendant's motion to correct does state a colorable claim that he was incompetent at the time he was sentenced, which this court has recognized as a valid legal basis for moving to correct a sentence on the ground that it was imposed in an illegal manner; see State v. Mukhtaar , 189 Conn. App. 144, 150 n.6., 207 A.3d 29 (2019) ; I would reverse the judgment of the trial court and remand this case for further proceedings on that potentially viable aspect of the defendant's motion to correct. I respectfully dissent from the majority's conclusion to the contrary.
Although I do not believe that the majority has reason to reach and decide the claim discussed in part I of their opinion, in light of their conclusion in part II of the opinion that the trial court lacked subject matter jurisdiction over the defendant's principal claim, I would reach that issue and dispose of it as the majority has done due to its likelihood of arising on remand if the court ordered remand as I have proposed.
"[F]or the trial court to have jurisdiction over a defendant's motion to correct a sentence that was imposed in an illegal manner, the defendant must put forth a colorable claim that his sentence, in fact, was imposed in an illegal manner. A colorable claim is [a] claim that is legitimate and that may reasonably be asserted, given the facts presented and the current law (or a reasonable and logical extension or modification of the current law).... For jurisdictional purposes, to establish a colorable claim, a party must demonstrate that there is a possibility, rather than a certainty, that a factual basis necessary to establish jurisdiction exists." (Citation omitted; internal quotation marks omitted.) State v. Jason B. , 176 Conn. App. 236, 245, 170 A.3d 139 (2017). "A colorable claim is one that is superficially well founded but that may ultimately be deemed invalid .... For a claim to be colorable, the defendant need not convince the trial court that he necessarily will prevail; he must demonstrate simply that he might prevail." (Emphasis omitted; internal quotation marks omitted.) State v. Evans , 329 Conn. 770, 784, 189 A.3d 1184 (2018), cert. denied, ––– U.S. ––––, 139 S. Ct. 1304, 203 L. Ed. 2d 425 (2019).
To assess the colorability of a claim presented in a motion to correct, the court must examine the facts pleaded in the motion and in the documents and materials attached to the motion and/or relied on therein. Upon viewing such pleaded facts in the light most favorable to sustaining its exercise of jurisdiction over the claims based on them; see Keller v. Beckenstein , 305 Conn. 523, 531, 46 A.3d 102 (2012) ("[i]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged"); the court must exercise jurisdiction over any claim it finds to be colorable, because such pleaded facts, if proved, establish a possibility that jurisdiction over the claim exists.
In his motion to correct, the defendant expressly claimed that he was sentenced in an illegal manner because he was incompetent at the time of sentencing. He filed the motion along with a detailed memorandum of law in which he argued both his incompetency at sentencing claim and an alternative claim that the sentencing court sentenced him in an illegal manner by failing to order, sua sponte, that his mental competency be evaluated by mental health professionals before it sentenced him. The defendant argued both claims in his memorandum on the basis of an extensive set of records and materials, all attached to his memorandum, which documented his lengthy history of suffering from and receiving treatment for paranoid schizophrenia, a serious mental illness that had sometimes caused him to experience hallucinations.
The defendant recounted in his memorandum that at his sentencing hearing, there was discussion of his psychiatric background, including his diagnosis of paranoid schizophrenia, by both the prosecutor and his defense attorney. The court, he noted, was presented with a report from his forensic psychiatrist, Dr. Peter Morgan, who stated that he had "suffered from the psychotic symptoms for many years without treatment, and this may contribute to an increased likelihood of worse symptoms, more chronic symptoms and/or more frequent exacerbations of symptoms." The defendant further noted that his attorney had told the court that he had been receiving mental health treatment while incarcerated, which included the administration of anti-psychotic medication. He also reported that his attorney had told the court at sentencing that his symptoms had improved to the point that he was then "calm, rational, and understood and appreciated the seriousness of the situation." Notwithstanding his attorney's foregoing representations to the court as to the course of his treatment while incarcerated and improving mental health at the time of sentencing, the defendant argued in his memorandum that substantial additional evidence had become available since the date of sentencing that shed new and important light on the course of his mental illness and psychiatric treatment prior to sentencing. The defendant argued that this new information, which was set forth in the documents and materials attached to his memorandum, demonstrated that he may not have been competent when he was sentenced despite his counsel's reassuring observations to the contrary. He claimed, more particularly, that the following events, all documented in attached records from the Department of Correction (department), demonstrated that he may have lacked a rational and factual understanding of the proceedings against him on the date he was sentenced. First, before he entered his guilty plea on June 25, 2012, the clinical records of the department reported that he had missed several doses of his prescribed anti-psychotic medication. Second, although he had agreed with the state to plead guilty to manslaughter in the first degree and assault in the first degree in exchange for a total effective sentence of twenty-five years of incarceration, he told department staff that he had agreed to a sentence of twenty years in exchange for a guilty plea to murder. Third, in the period following his guilty plea but before his sentencing on July 23, 2012, department records reported that the defendant was continuing to miss doses of his prescribed anti-psychotic medication intermittently, and at times reported experiencing auditory hallucinations. Fourth, in that same time frame, he again misstated the terms of his plea agreement, reporting incorrectly that he would be sentenced to twenty years of incarceration on the charge of manslaughter. Fifth, approximately one month after he was sentenced to a term of twenty-five years of incarceration, he told his mental health treaters a third time that he was confused about his sentence, informing a department social worker that he was then serving a thirty year sentence for manslaughter.
On the basis of the foregoing facts, I agree with the majority's conclusion that the defendant failed to put forth a colorable claim that the trial court was required to inquire into his competence on the date he was sentenced based on the facts before it at that time. I believe, however, that the defendant did put forth a colorable claim that he was incompetent in fact at the time of sentencing based primarily upon the new facts, which were documented in department records that had first come to light after the date of his sentencing. The distinction between the two claims for this purpose lies in the difference between the more limited information that was known to the sentencing court on the date of sentencing and the fuller factual record that was presented to the trial court in support of the defendant's motion to correct.
I note that the state argues that the defendant's claim that he was incompetent when he was sentenced, as evidenced by information that was never before the sentencing court, does not fall within the purview of Practice Book § 43-22 because the claim does not relate to any alleged error on the part of the sentencing court. In support of its argument, the state cites State v. Parker , 295 Conn. 825, 992 A.2d 1103 (2010), for the proposition that a trial court lacks subject matter jurisdiction to consider a defendant's motion to correct when the motion does not relate to any improper action by the trial court. Thus, the state argues that without evidence that the sentencing court knew of the information in the department's records at the time of sentencing, the defendant could not have been sentenced in an illegal manner. The state's reliance on Parker is misplaced. It is axiomatic that there are claims that fall within the purview of Practice Book § 43-22 that do not require the court to have had knowledge of the alleged error. For example, a judge who relies on materially untrue or unreliable information at sentencing imposes sentence in an illegal manner even though he or she does not then know that the information so relied on is inaccurate. See e.g., Townsend v. Burke , 334 U.S. 736, 741, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948). Therefore, I reject the state's assertion that the court must have had knowledge of the additional evidence raised in the motion to correct at the time of sentencing for his claim to be colorable.
On the basis of the record before the sentencing court, which included defense counsel's contemporaneous report as to the defendant's ongoing treatment regimen and improving lucidity, I would agree with the state and the majority that the sentencing court had no obligation to order a competency evaluation, sua sponte, because there was insufficient evidence before the court to raise a reasonable doubt that he then lacked a rational and factual understanding of the proceedings against him, and thus was incompetent. See State v. Yeaw , 162 Conn. App. 382, 389–90, 131 A.3d 1172 (2016). By contrast, the additional, well documented facts presented to the trial court in the motion to correct concerning the defendant's failure to take his prescribed anti-psychotic medication in the weeks before he was sentenced, his contemporaneous experiencing of auditory hallucinations and his confusion, before and after he was sentenced, about the terms of his plea bargain and the length of his sentence, both as agreed to and as imposed, raise at least a genuine possibility that when he was sentenced he was incompetent because he lacked a rational and factual understanding of the proceedings against him due to his ongoing mental illness.
In announcing its decision that the defendant's claim that he was incompetent when he was sentenced was not colorable, the majority wrote that "the statements reportedly made by the defendant before and after his sentencing suggesting that he misunderstood the length of his sentence cannot be viewed rationally as establishing that he was not competent at the time of sentencing." Insofar as the majority's conclusion suggests that the defendant had the burden of proving that he was not competent at the time of sentencing in order for his claim to be considered colorable, it is simply incorrect. The defendant need not convince the court that he will prevail on his claim, nor even that he will probably prevail on it, for the claim to be considered colorable; rather, he need only demonstrate that if the facts he had pleaded in support of the claim are proved, there is a possibility that he will prevail on that claim. Insofar as the majority's conclusion can be read as a determination that the facts pleaded by the defendant, if proved, would be insufficient to raise even the possibility that he was incompetent at the time of sentencing, I respectfully disagree. Considered in light of the defendant's lengthy mental health history, his documented statements expressing confusion about the nature of his plea agreement and the length of his sentence, his documented failure to follow his treatment regimen in the weeks before he was sentenced and his contemporaneous experiencing of auditory hallucinations, combine to raise at least the possibility that he was incompetent when he was sentenced, and are thus sufficient to put forth a colorable claim that his sentence was imposed in an illegal manner. For the foregoing reasons, I would conclude that the court erred in dismissing the defendant's motion to correct, and would reverse the judgment of the trial court and remand this case for further proceedings on the defendant's colorable claim that he was sentenced in an illegal manner because he was incompetent when he was sentenced. Therefore, I respectfully dissent from part II of the majority opinion.
Similarly, the state has argued that the defendant failed to set forth a colorable claim that he was incompetent at sentencing because existing law presumes a defendant's competence; see General Statutes § 54-56d. This argument is also unavailing. The state asserts that the facts cited by the defendant in support of his claim may establish that he suffered from mental health issues, but are insufficient to overcome the presumption of competence to establish a colorable claim. The state's argument suggests that in order to establish jurisdiction for his motion to correct, the defendant is required to prove the merits of his claim, which in the present case would have required him to overcome the presumption of competence. As this court recently explained in State v. Jason B. , supra, 176 Conn. App. at 244, 170 A.3d 139 : "At issue is whether the defendant has raised a colorable claim within the scope of Practice Book § 43-22 that would, if the merits of the claim were reached and decided in the defendant's favor, require correction of a sentence." (Emphasis altered). The state misconstrues this language to suggest that a defendant must prove that he would succeed on the merits of his motion to correct before it may be heard. This is not so. In order to establish subject matter jurisdiction over the motion to correct, the defendant needed only to present sufficient facts to establish that his claim of incompetence is a "possibility, rather than a certainty"; State v. Jason B. , supra, at 245, 170 A.3d 139 ; and is "superficially well founded but may ultimately be deemed invalid." State v. Evans , supra, 329 Conn. at 784, 189 A.3d 1184.
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