State v. Monge , 165 Conn. App. 36 ( 2016 )

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STATE OF CONNECTICUT v. JAVIER R. MONGE
(AC 37699)
Gruendel, Beach and Sheldon, Js.*
Argued March 3—officially released April 26, 2016
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Tindill, J. [judgments]; White, J.
[motion to vacate].)
Glenn L. Formica, for the appellant (defendant).
Jacob Pezzulo, certified legal intern, with whom were
Harry Weller, senior assistant state’s attorney, and, on
the brief, David I. Cohen, former state’s attorney, and
Nancy Dolinsky, senior assistant state’s attorney, for
the appellee (state).
Opinion
GRUENDEL, J. The defendant, Javier R. Monge,
appeals from the judgments of the trial court dismissing
his postsentencing motion to vacate his guilty pleas and
to open the judgments of conviction. The dispositive
issue is whether the court properly concluded that it
lacked jurisdiction to consider the merits of that
motion. We answer that query in the affirmative and,
accordingly, affirm the judgment of the trial court.
The following facts are relevant to this appeal. The
defendant, who is not a citizen of the United States,
was involved in two domestic altercations on June 16,
2013, and August 12, 2013. He thereafter was charged
with various criminal offenses. Pursuant to a condi-
tional plea agreement, the defendant, on November 12,
2013, pleaded guilty to risk of injury to a child in viola-
tion of General Statutes § 53-21, criminal violation of a
protective order in violation of General Statutes § 53a-
223, assault in the third degree in violation of General
Statutes § 53a-61, criminal trespass in the first degree
in violation of General Statutes § 53a-107, two counts
of disorderly conduct in violation of General Statutes
§ 53a-182, and two counts of breach of the peace in the
second degree in violation of General Statutes § 53a-
181. In accordance with the terms of the plea agreement,
the court at the plea hearing explained that if the defen-
dant successfully completed (1) ‘‘the Evolve program,’’
(2) an anger management program, and (3) substance
abuse evaluation and treatment, and further cooperated
with the Department of Children and Families through
parenting classes and counseling without any further
arrests, his pleas to the felony charges of risk of injury
and criminal violation of a protective order would be
vacated and he would receive a sentence of three years
incarceration, execution suspended, with three years
of probation on the remaining misdemeanor charges.
The defendant subsequently complied with those
requirements and the court, on November 4, 2014,
vacated his guilty pleas with respect to the risk of injury
and criminal violation of a protective order charges. At
that time, the court imposed a total effective sentence
of three years incarceration, execution suspended, with
three years of probation on the remaining charges.
More than one month after he was sentenced, the
defendant moved to vacate his remaining guilty pleas
and to open the judgments of conviction rendered by
the court. On January 30, 2015, the defendant filed his
‘‘Amended Motion to Vacate Pleas and Reopen Pursuant
to Connecticut Practice Book §§ 39-19, 39-27 (1).’’ In
that motion, the defendant argued ‘‘that the plea was
accepted without first determining that [he] fully under-
stood the plea.’’1
The court held a hearing on the defendant’s motion
to vacate his pleas and to open the judgments of convic-
tion on February 9, 2015. At that hearing, the defendant
acknowledged that the state had complied with the
terms of his conditional pleas. The defendant also did
not dispute that the court properly advised him of the
immigration consequences of his pleas during the
November 12, 2013 plea hearing.2 Rather, the defendant
argued that federal immigration law ‘‘changed substan-
tially’’ after he entered his guilty pleas, thereby exposing
him to the possibility of deportation as a result of those
pleas. The defendant’s counsel contended that ‘‘had
[the defendant] known of a new federal guideline for
deportation, which went into effect roughly two weeks
after he was sentenced . . . we could have easily and
would have likely structured this sentence to accommo-
date those new regulations and he would not . . . risk
deportation as he does now.’’ The defendant’s counsel
thus requested that the court ‘‘reconstruct’’ the defen-
dant’s sentence, opining that ‘‘given the totality of the
interest of justice in this case the court should certainly
give it its strongest consideration.’’ In response, the
state’s attorney submitted that ‘‘to expect the state to
undo plea bargain negotiations every time the federal
law changes is, to say the least, insanity.’’ At the conclu-
sion of that hearing, the court dismissed the defen-
dant’s motion.
The defendant sought an articulation of that decision,
which the court granted. In its April 8, 2015 articulation,
the court stated in relevant part: ‘‘This court denied, or
perhaps more properly stated, dismissed the defen-
dant’s [motion] because it had no jurisdiction to either
hear or to grant it. . . . The defendant in this matter
never made any claim or cited to any authority which
would authorize this court to allow him to vacate his
guilty pleas after he had been sentenced. This court,
therefore, had no jurisdiction to permit the defendant
to withdraw his guilty pleas.’’ From that judgment, the
defendant now appeals.
Although the defendant raises multiple claims in this
appeal, the dispositive one is whether the court properly
concluded that it lacked jurisdiction over his motion
to vacate his pleas and to open the judgments of convic-
tion.3 A determination regarding the trial court’s subject
matter jurisdiction is a question of law over which our
review is plenary. State v. Alexander, 269 Conn. 107,
112, 847 A.2d 970 (2004).
‘‘The Superior Court is a constitutional court of gen-
eral jurisdiction. In the absence of statutory or constitu-
tional provisions, the limits of its jurisdiction are
delineated by the common law. . . . It is well estab-
lished 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.’’ (Internal quotation marks omitted.) State
v. Ramos, 306 Conn. 125, 133–34, 49 A.3d 197 (2012).
Practice Book § 39-26 likewise provides in relevant part
that ‘‘[a] defendant may not withdraw his or her plea
after the conclusion of the proceeding at which the
sentence was imposed.’’
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.’’ Cobham v. Commissioner of
Correction, 258 Conn. 30, 37, 779 A.2d 80 (2001).
Accordingly, ‘‘once a defendant’s sentence is executed,
the trial court lacks jurisdiction to entertain any claims
regarding the validity of that plea in the absence of a
statute or rule of practice to the contrary.’’ State v. Das,
291 Conn. 356, 368, 968 A.2d 367 (2009).
The defendant has not identified any express authori-
zation under which the court could have acted on his
postsentencing motion to vacate his pleas and to open
the judgments of conviction. That motion was brought
pursuant to Practice Book §§ 39-19 and 39-27 (1), which
permit the withdrawal of pleas, after they have been
accepted but before the conclusion of the sentencing
proceeding, that are not made in a knowing and volun-
tary manner. See Practice Book § 39-26. The appellate
courts of this state consistently have rejected postsen-
tencing motions to vacate guilty pleas predicated on
that ground. See State v. Dyous, 307 Conn. 299, 334–35,
53 A.3d 153 (2012) (trial court lacked jurisdiction after
sentencing to entertain ‘‘the defendant’s due process
claim’’ that his plea ‘‘was not knowing, intelligent and
voluntary’’); State v. Das, supra, 291 Conn. 368–70 (trial
court lacked jurisdiction to act on postsentencing
motion to vacate plea that allegedly was not knowing
and voluntary); State v. Reid, 277 Conn. 764, 776, 894
A.2d 963 (2006) (‘‘the trial court lacked jurisdiction to
hear and determine the defendant’s motion to with-
draw’’ plea on ground that it was not knowing, intelli-
gent and voluntary); State v. Edge, 150 Conn. App. 383,
386, 90 A.3d 381 (adhering to ‘‘bedrock principle’’ that
trial court lacks jurisdiction after sentencing to enter-
tain due process claim that plea was not knowing, intel-
ligent and voluntary), cert. denied, 312 Conn. 923, 94
A.3d 1202 (2014). The defendant has provided no
authority to the contrary.
The defendant nonetheless suggests that, despite the
nomenclature employed, his January 30, 2015
‘‘Amended Motion to Vacate Pleas and Reopen Pursuant
to Connecticut Practice Book §§ 39-19, 39-27 (1),’’
which alleged that his pleas were not knowing and
voluntary, was actually a motion to correct an illegal
sentence pursuant to Practice Book § 43-22. For two
reasons, we disagree. First, such a claim was not raised
before the court in either the motion itself or the Febru-
ary 9, 2015 hearing thereon. Second, that claim is
improper under Connecticut law. In State v. Casiano,
122 Conn. App. 61, 63–64, 998 A.2d 792, cert. denied,
298 Conn. 931, 5 A.3d 491 (2010), the defendant filed a
motion to correct an illegal sentence pursuant to Prac-
tice Book § 43-22, in which he ‘‘alleged that his sentence
had been imposed in violation of his state and federal
constitutional rights because his plea was not knowing
and voluntary.’’ (Internal quotation marks omitted.)
This court concluded that the trial court lacked jurisdic-
tion to consider such a motion, stating: ‘‘In order for
the court to have jurisdiction over a motion to correct
an illegal sentence after the sentence has been exe-
cuted, the sentencing proceeding, and not the [proceed-
ings] leading to the conviction, must be the subject of
the attack. . . . The defendant’s claim does not attack
the validity of the sentence. Instead, it pertains to . . .
alleged flaws in the court’s acceptance of the plea. As
such, it does not fit within any of the four categories
of claims recognized under Practice Book § 43-22. . . .
Accordingly, the court was without jurisdiction to con-
sider the merits of the defendant’s motion to correct.’’
(Citations omitted; internal quotation marks omitted.)
Id., 68. That precedent compels a similar conclusion in
the present case.
In light of the foregoing, we concur with the court’s
determination that it lacked jurisdiction to consider
the merits of the defendant’s postsentencing motion to
vacate his pleas and to open the judgments of convic-
tion. The court, therefore, properly dismissed that
motion.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
In his motion to vacate his pleas and to open the judgments of conviction,
the defendant also maintained that his pleas to the breach of the peace
charges were ‘‘procedurally and substantively defective’’ because they were
entered before the physical filing of a substitute information by the state.
That contention requires little discussion. Apart from being barred by the
court’s lack of jurisdiction thereover; see State v. Das, 291 Conn. 356, 368–70,
968 A.2d 367 (2009) (jurisdiction of trial court terminates upon execution
of defendant’s sentence and no ‘‘constitutional violation exception’’ to that
precept exists); the defendant’s claim suffers a further infirmity. During the
plea hearing, the state’s attorney averred as follows: ‘‘Madam clerk, the state
will be filing a substitute information. Your Honor, I indicated to the court
and counsel that I would be filing a substitute information on each file,
adding an additional count of breach of peace in the second degree. . . .
I will do that forthwith. But if I may put him to plea again to those two
additional charges?’’ The court granted that request without any objection
by the defendant. The defendant then proceeded to plead guilty to those
charges, thereby acquiescing in being put to plea on those two misdemeanor
charges. See State v. Dukes, 29 Conn. App. 409, 420, 616 A.2d 800 (1992)
(‘‘[b]ecause the defendant permitted the filing of the amended information
without objection and acquiesced in the proceedings, it necessarily follows
that the prophylactic purpose of the rule to require adequate notice has
been fulfilled’’), cert. denied, 224 Conn. 928, 619 A.2d 851 (1993).
2
During its canvass, the court apprised the defendant that ‘‘[w]ith this
conviction, if you’re not a United States citizen, it may result in deportation,
exclusion from readmission, or denial of naturalization.’’ When the court
then inquired as to whether he understood that admonition, the defendant
answered, ‘‘[y]es.’’
3
At oral argument before this court, the defendant’s counsel argued that
‘‘the state court doesn’t have the knowledge, background, or even the per-
spective to understand . . . [that] certain pleas, certain plea colloquies,
certain details that are contained in a mittimus can subject you to conse-
quences well beyond the understanding of the defense attorney.’’ That con-
tention has no bearing on the jurisdictional issue before us.