State v. Ward ( 2022 )

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STATE OF CONNECTICUT v. JEFFREY K. WARD
(SC 20427)
Robinson, C. J., and McDonald, D’Auria, Kahn,
Ecker and Keller, Js.
Syllabus
The defendant, who had been convicted, on a plea of guilty, of manslaughter
in the first degree and assault in the first degree, appealed from the
trial court’s dismissal of his motion to correct a sentence that was
imposed in an illegal manner. The defendant had claimed in his motion
that he was incompetent at the time of sentencing and that the sentencing
court failed to order, sua sponte, a competency evaluation and hearing
before imposing sentence. The defendant submitted with his motion to
correct a police report, psychiatric evaluation and records from the
Department of Correction that had become available after he was sen-
tenced, all of which concerned his mental illness and psychiatric treat-
ment prior to sentencing. The trial court dismissed the defendant’s
motion to correct for lack of subject matter jurisdiction, concluding
that the motion challenged his competency at the time he pleaded guilty
and, thus, constituted a collateral attack on his conviction. The Appellate
Court upheld the trial court’s dismissal of the defendant’s motion, con-
cluding that he had failed to raise a colorable claim that he was incompe-
tent at the time of sentencing. On the granting of certification, the
defendant appealed to this court, claiming that the Appellate Court
incorrectly concluded that the trial court lacked subject matter jurisdic-
tion to correct his sentence on the ground that he had failed to allege
a colorable claim within the scope of the rule of practice (§ 43-22)
authorizing a judicial authority to correct an illegal sentence or a sen-
tence imposed in an illegal manner. Held that the Appellate Court improp-
erly upheld the trial court’s dismissal of the defendant’s motion to cor-
rect, as the factual allegations and evidence the defendant presented in
connection with his motion made clear that he raised a colorable chal-
lenge to the character of the procedure that led to the imposition of his
sentence, rather than the underlying conviction, and, thus, his claim
nominally fell within the scope of § 43-22: although the prosecutor and
defense counsel during the sentencing proceeding had discussed the
defendant’s psychiatric background and diagnosis of schizophrenia, the
factual allegations and evidence the defendant offered in support of
his claim demonstrated a possibility that a factual basis necessary to
establish jurisdiction existed, as the police report and psychiatric evalua-
tion showed that he previously had suffered from hallucinations, had
attempted to commit suicide, and had not received treatment for his
mental health for many years, and the department records showed that
he had refused to take his prescribed medication and had suffered from
auditory hallucinations approximately nine months before sentencing;
moreover, contrary to the state’s assertion that the trial court decided
the merits of the defendant’s claim and determined that the sentencing
procedure complied with all constitutional and statutory requirements,
that court’s decision was limited to the issue of jurisdiction, as the court
never explicitly ruled on the merits of the defendant’s claim or made
findings as to whether the proffered evidence overcame the presumption
of competency.
Argued March 25—officially released October 21, 2021*
Procedural History
Substitute information charging the defendant with
the crimes of manslaughter in the first degree and
assault in the first degree, brought to the Superior Court
in the judicial district of Hartford, where the defendant
was presented to the court, Alexander, J., on a plea of
guilty; judgment of guilty; thereafter, the court, Dewey,
J., dismissed the defendant’s motion to correct an illegal
sentence, and the defendant appealed to the Appellate
Court, Alvord, Sheldon and Moll, Js., which affirmed
the trial court’s decision, and the defendant, on the
granting of certification, appealed to this court.
Reversed; further proceedings.
Temmy Ann Miller, for the appellant (defendant).
Sarah Hanna, senior assistant state’s attorney, with
whom, on the brief, was Sharmese L. Walcott, state’s
attorney, for the appellee (state).
Opinion
D’AURIA, J. The defendant, Jeffrey K. Ward, appeals
from the judgment of the Appellate Court affirming the
trial court’s dismissal of his motion to correct a sen-
tence imposed in an illegal manner. Specifically, he
claims that the Appellate Court incorrectly concluded
that the trial court lacked subject matter jurisdiction
to correct his sentence because he failed to allege a
colorable claim within the scope of Practice Book § 43-
22.1 We agree and, accordingly, reverse the judgment
of the Appellate Court.
The following facts and procedural history are rele-
vant to our resolution of this certified appeal. 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). After
canvassing the defendant, the trial court, Alexander,
J., accepted the defendant’s guilty plea. Following a
hearing, and consistent with the plea agreement, the
trial court sentenced the defendant to a total effective
term of twenty-five years of incarceration. The defen-
dant did not appeal from his conviction.
Approximately four years after sentencing, the defen-
dant filed a motion to correct, accompanied by a memo-
randum of law and attached documents. The defendant
claimed that the sentencing court had imposed his sen-
tence in an illegal manner on the grounds that (1) he
was incompetent at the time of sentencing and (2) the
sentencing court had, before imposing sentence, failed
to order, sua sponte, a competency evaluation and hear-
ing pursuant to General Statutes § 54-56d.
According to the defendant’s memorandum of law, at
his sentencing hearing, both the prosecutor and defense
counsel discussed his psychiatric background, includ-
ing his diagnosis of paranoid schizophrenia. Although
he conceded that, at the sentencing hearing, his attorney
told the court that his symptoms had improved to the
point that he was then ‘‘calm, rational, and understood
and appreciated the seriousness of [the] situation,’’ the
defendant argued that, since the date of sentencing,
substantial additional evidence had become available
regarding his mental illness and psychiatric treatment
prior to sentencing. This new information, he argued,
demonstrated that he was not competent at his sentenc-
ing despite his counsel’s reassurances to the contrary.
The defendant attached to his motion and supporting
memorandum of law an extensive set of records and
materials, including the transcript from the sentencing
hearing, the police report regarding the underlying inci-
dent at issue, a psychiatric report, and clinical records
from the Department of Correction (department). The
record contains no evidence that the police report, psy-
chiatric report, or clinical records had been provided
to the sentencing judge, and, thus, the Appellate Court
concluded that the sentencing judge ‘‘could not have
relied on those documents to consider ordering’’ an
evaluation and a hearing. State v. Ward, 193 Conn. App.
794, 812 n.10, 220 A.3d 68 (2019). Specifically, in his
motion to correct, the defendant relied on the police
report regarding the underlying crime, which indicated
that, during an interview with the police, the defendant
inserted a pencil approximately five to six inches into
his right nostril and then attempted to stab himself in
the neck with the pencil, causing a minor laceration.
Additionally, he relied on a psychiatric report dated
approximately three and one-half months before sen-
tencing, which stated that, even with continued treat-
ment, the defendant had a significant risk of continuing
to suffer symptoms of his schizophrenia.
Clinical records of the department dated before the
defendant entered his guilty plea reported that he had
missed several doses of his prescribed antipsychotic
medication. These records also showed that, before
sentencing, the defendant told department staff three
different versions of the details of his plea deal: (1) he
agreed 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;
(2) he agreed to plead guilty to murder in exchange for
a twenty year sentence; and (3) he agreed to plead
guilty to manslaughter in exchange for a twenty year
sentence. The clinical records further showed that, after
his guilty plea but before his sentencing, the defendant
missed doses of his prescribed antipsychotic medica-
tion intermittently and at times reported experiencing
auditory hallucinations. According to the clinical
records, approximately one month after his sentencing,
the defendant told department staff that he was con-
fused about his sentence, stating that he was serving a
thirty year sentence for manslaughter.
After oral argument on the defendant’s motion to
correct, the trial court reserved decision regarding its
jurisdiction and heard the parties on the merits of the
motion to correct. The court later issued a memoran-
dum of decision dismissing the motion to correct for
lack of subject matter jurisdiction on the ground that
the motion challenged the defendant’s competency at
the time he pleaded guilty pursuant to the plea agree-
ment and, thus, constituted a collateral attack on his
conviction, not his sentence.
The defendant appealed to the Appellate Court,
claiming that the trial court incorrectly had concluded
that it lacked subject matter jurisdiction over his motion
to correct.2 The Appellate Court acknowledged that the
trial court’s analysis was flawed because it was clear
from the pleadings that the defendant was challenging
the sentencing proceedings and the legality of the man-
ner in which his sentence was imposed. Id., 806. Never-
theless, after examining the pleadings and documents
attached to the defendant’s motion to correct, the
Appellate Court concluded that the trial court properly
dismissed the motion for lack of jurisdiction because
the defendant failed to raise ‘‘a colorable claim’’ that
he was incompetent at the time of his sentencing, or
that the sentencing judge had information prior to sen-
tencing that required her to order a competency evalua-
tion and hearing. Id., 812–13 and n.10. The Appellate
Court reasoned that nothing in the attached transcripts,
police report, psychiatric report, or psychiatric records
supported the conclusion that the defendant was incom-
petent at the time of sentencing. See id., 812–13.
Judge Sheldon issued a concurring and dissenting
opinion. In his view, the defendant had pleaded suffi-
cient facts to raise a colorable claim that he was incom-
petent at the time of his sentencing but not to raise a
colorable claim that Judge Alexander should have sua
sponte ordered a competency evaluation and hearing
before sentencing. Id., 820 (Sheldon, J., concurring in
part and dissenting in part). Judge Sheldon contended
that the majority improperly required the defendant to
show that he was incompetent at the time of sentencing,
thereby requiring him to prove that he would succeed
on the merits. Id., 821–22 (Sheldon, J., concurring in
part and dissenting in part). In Judge Sheldon’s view,
the colorability standard required the defendant ‘‘to
present sufficient facts to establish that his claim of
incompetence is a possibility, rather than a certainty
. . . and is superficially well founded but may ulti-
mately be deemed invalid.’’ (Citation omitted; internal
quotation marks omitted.) Id., 822 n.3 (Sheldon, J., con-
curring in part and dissenting in part). Applying this
standard, Judge Sheldon concluded that the ‘‘well docu-
mented facts presented to the trial court in the motion
to correct concerning the defendant’s failure to take
his prescribed antipsychotic medication in the weeks
before he was sentenced, his contemporaneous experi-
encing 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 incompe-
tent because he lacked a rational and factual under-
standing of the proceedings against him due to his ongo-
ing mental illness.’’ Id., 821 (Sheldon, J., concurring in
part and dissenting in part). Thus, Judge Sheldon argued
that the case should be remanded to the trial court for
a hearing on the merits of the defendant’s motion. See
id., 823 (Sheldon, J., concurring in part and dissenting
in part).
The defendant then petitioned for certification to
appeal to this court on whether he had raised colorable
claims that his sentence was imposed in an illegal man-
ner because (1) the sentencing judge was obligated to
order a competency examination but failed to do so,
and (2) he was incompetent at the time he was sen-
tenced. We granted certification, limited to the issue of
whether ‘‘the Appellate Court correctly determine[d]
that the trial court did not have jurisdiction over the
defendant’s motion to correct an illegal sentence on
the ground that the motion, on its face, did not raise a
colorable claim that the defendant was incompetent at
the time of his sentencing . . . .’’3 State v. Ward, 334
Conn. 911, 221 A.3d 448 (2020).
Whether the trial court had subject matter jurisdic-
tion over the defendant’s motion to correct an illegal
sentence is a question of law, and our review is plenary.
See, e.g., State v. McCleese, 333 Conn. 378, 386, 215 A.3d
1154 (2019). We consistently have held ‘‘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. . . . [But] the court loses
jurisdiction over the case when the defendant is com-
mitted to the custody of the [C]ommissioner of [C]orrec-
tion and begins serving the sentence.’’ (Internal quota-
tion marks omitted.) State v. Evans, 329 Conn. 770, 778,
189 A.3d 1184 (2018), cert. denied, U.S. , 139 S.
Ct. 1304, 203 L. Ed. 2d 425 (2019). After this occurs,
the trial court has jurisdiction to modify or vacate the
criminal judgment if the legislature or the state constitu-
tion grants continuing jurisdiction. See id. Additionally,
the trial court retains jurisdiction to modify or vacate
a judgment to the extent provided at common law. See
id. As one example, at common law, the trial court
maintained jurisdiction to correct illegal sentences after
the defendant has been committed to the custody of the
Commissioner of Correction. See id., 778–79. Practice
Book § 43-22 codifies this common-law exception. See
id., 779. That section 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.’’ Practice Book § 43-22.
Because the scope of Practice Book § 43-22 is limited
to the court’s common-law jurisdiction to consider a
defendant’s claim, the claim must challenge the legality
of a sentence and may not challenge ‘‘what transpired
during the trial or on the underlying conviction.’’ (Inter-
nal quotation marks omitted.) State v. Evans, supra,
329 Conn. 779. ‘‘[F]or the court to have jurisdiction
over a motion to correct an illegal sentence after the
sentence has been executed, the sentencing proceeding,
and not the trial leading to the conviction, must be
the subject of the attack.’’ (Emphasis omitted; internal
quotation marks omitted.) Id.In State v. Parker, 295 Conn. 825, 992 A.2d 1103(2010), this court made clear that, because our rules of
practice cannot expand the trial court’s jurisdiction,
and because Practice Book § 43-22 codifies common
law, a trial court’s authority to entertain a motion to
correct either ‘‘an illegal sentence’’ or ‘‘a sentence
imposed in an illegal manner’’ derives from the court’s
common-law authority to ‘‘substitute a valid sentence’’
for an ‘‘invalid sentence . . . .’’ Id., 835. In Parker, we
‘‘directly address[ed]’’ for the first time whether, in fact,
the trial court had jurisdiction under our common law
to entertain a defendant’s motion to correct on the
ground that ‘‘his sentence was imposed in an illegal
manner.’’ Id., 833. Our review of that issue, in light of
a split among the lower courts, led us to clarify that
the common law authorized the court to correct both
illegal sentences and sentences imposed in an illegal
manner. Id., 837. ‘‘Sentences imposed in an illegal man-
ner have been defined as being within the relevant statu-
tory 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 . . . . This . . . category
reflects the fundamental proposition that [t]he defen-
dant has a legitimate interest in the character of the
procedure which leads to the imposition of sentence
even if he may have no right to object to a particular
result of the sentencing process.’’ (Citation omitted;
internal quotation marks omitted.) Id., 839.4
Because of the limited nature of the court’s jurisdic-
tion, we more recently have explained that the trial
court has jurisdiction over a motion to correct only if
the defendant raises ‘‘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
added; internal quotation marks omitted.) State v.
Evans, supra, 329 Conn. 783. In deciding whether the
trial court in the present case had jurisdiction to enter-
tain the defendant’s motion, it is useful to survey our
case law regarding what constitutes a ‘‘colorable claim’’
as it concerns a challenge to the validity or legality of
a sentence. The parties take different views.
The defendant argues that ‘‘the colorable claim’’
requirement can be interpreted in three ways, which
he claims this court has applied inconsistently: (1) the
claim plausibly challenges the sentence or sentencing
proceedings but not the conviction; see id., 784; (2) the
claim plausibly will be decided on the merits in the
movant’s favor; see State v. McCleese, supra, 333 Conn.
378; or (3) assuming the merits are reached and decided
in the movant’s favor, it is plausible that a sentence
correction will be required. See State v. Delgado, 323
Conn. 801, 810, 151 A.3d 345 (2016). The defendant
contends that only the first interpretation is correct,
requiring the court to consider only the legal claim
alleged and not the factual allegations or evidence
attached in support of the motion to correct. The state
disagrees, arguing that, to determine whether a claim
is colorable, a court must examine whether the defen-
dant has alleged sufficient facts to create a possibility
that a factual basis exists to establish the merits of
the defendant’s claim, not whether the defendant has
merely raised a claim that possibly challenges the sen-
tence.5
A review of this court’s jurisprudence on this issue
belies the defendant’s contention that this court incon-
sistently has interpreted and applied this ‘‘colorable
claim’’ requirement. Rather, our case law holds that to
raise a colorable claim within the scope of Practice
Book § 43-22, the legal claim and factual allegations
must demonstrate a possibility that the defendant’s
claim challenges his or her sentence or sentencing pro-
ceedings, not the underlying conviction. The ultimate
legal correctness of the claim is not relevant to our
jurisdictional analysis. This is consistent with the well
established rule that ‘‘[t]he jurisdictional and merits
inquiries are separate . . . .’’ State v. Evans, supra, 329
Conn. 784.
It was our Appellate Court, in an en banc ruling, that
first employed the phrase ‘‘colorable claim’’ to measure
the boundaries of a trial court’s jurisdiction to decide
a motion to correct. In State v. Taylor, 91 Conn. App.
788, 882 A.2d 682, cert. denied, 276 Conn. 928, 889 A.2d
819 (2005), the court explained that ‘‘[t]he relief of sen-
tence correction is warranted when, for example, (1)
the defendant’s claim either raises issues relating to the
legality of the sentence itself or to the legality of the
sentencing procedure and (2) the allegations of the
claim are in fact substantiated on a review of the merits
of the claim.’’ Id., 793. The court in Taylor held that
the ‘‘first requisite, namely, raising a colorable claim
within the scope of Practice Book § 43-22, for the relief
afforded by that section,’’ had not been met, and, there-
fore, ‘‘jurisdiction [was] lacking.’’ (Emphasis added.)
Id. The court emphasized that ‘‘[w]hether jurisdiction
to review the merits of a claim exists is not defined by
the odds of victory on the merits of a case.’’ Id. After
examining the legal claim raised and the allegations
asserted in support of it, the court in Taylor held that
the trial court lacked jurisdiction because the defendant
had not raised any claim challenging his sentence but,
instead, had sought a new or amended presentence
investigation report for use in his postjudgment applica-
tion to the sentence review division of the Superior
Court. See id., 793–94. As a result, the Appellate Court
did not proceed to the second requisite, which involves
the merits of the claim raised. Thus, in determining
jurisdiction, the court did not mention the plausibility
of the claim’s merits.
Although the Appellate Court in Taylor injected the
phrase ‘‘colorable claim’’ into its jurisprudence in con-
sidering motions to correct, the phrase is common to
other measures of a trial court’s jurisdiction, albeit the
analysis of whether a ‘‘colorable claim’’ exists is neces-
sarily unique to each context.6 Importantly, in the con-
text of motions to correct an illegal sentence, the Appel-
late Court’s analysis of a ‘‘colorable claim’’ in Taylor
was in line with the standard this court previously had
applied to this point in Parker and is consistent with
our more recent holding in Evans, both of which did
not consider the merits in determining the existence of
a colorable claim. Specifically, in Parker, in determining
whether the trial court retained jurisdiction over the
defendant’s motion to correct, we began with the prem-
ise that, ‘‘if a court imposes an invalid sentence, it
retains jurisdiction to substitute a valid sentence.’’ State
v. Parker, supra, 295 Conn. 835. Although we did not
clearly articulate a detailed standard to apply in
determining jurisdiction, we considered both the
motion’s legal claim and its factual allegations. See id.,
837, 840–41. We first looked to whether the defendant
had raised a legal claim that fell within the scope of
the common-law rule. In his motion to correct, the
defendant in Parker claimed that his sentence had been
imposed in an illegal manner because ‘‘he had been
deprived of an opportunity to review his presentence
report and to address inaccuracies therein; and [his
attorney] had failed to review the presentence report
with him or to bring any inaccuracies in the report to
the court’s attention.’’ Id., 840. We recognized that ‘‘due
process precludes a sentencing court from relying on
materially untrue or unreliable information in imposing
a sentence.’’ Id., 843. Thus, at face value, the defendant’s
legal claim—that the presentence report included inac-
curate information—appeared to fit within the scope
of Practice Book § 43-22. See id., 837.
Our analysis did not end there, however. We then
considered the defendant’s factual allegations to ensure
that he was in fact challenging the legality of his sen-
tence. See id., 847–52. The defendant in Parker did
not advance any factual allegations that any specific
information contained in the presentence report was
false or that the trial court relied on any false informa-
tion in determining his sentence. Id., 850. The factual
allegations showed that the defendant was not challeng-
ing the trial court’s reliance on false information in
determining the sentence but, instead, focused on his
counsel’s failure to review the presentence report with
him. See id., 847–48. We explained that these factual
allegations, challenging his counsel’s conduct at sen-
tencing, were akin to a claim of ineffective assistance
of counsel, which falls outside the scope of Practice
Book § 43-22. See id., 850–52. This holding was not
premised on the merits of the defendant’s claim but on
whether it raised a challenge to the sentencing proceed-
ing itself. Even though we did not use the phrase ‘‘color-
able claim,’’ the standard we applied in Parker is essen-
tially the same as the standard the Appellate Court had
applied previously in Taylor: Based on the legal claim
itself and on the allegations supporting it, did the defen-
dant challenge his or her sentence or the sentencing
procedure, and not the underlying conviction?
It was therefore no accident that this court in Delgado
used the phrase ‘‘colorable claim,’’ citing to Taylor.
State v. Delgado, supra, 323 Conn. 810. Delgado involved
a motion to correct a sentence imposed in an illegal
manner, and, for the first time, we articulated the juris-
dictional standard as requiring ‘‘the defendant [to raise]
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.’’ (Internal quotation marks
omitted.) Id.
Not until Evans did we provide greater guidance on
what constitutes a colorable claim within the scope of
Practice Book § 43-22: ‘‘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. . . . The jurisdictional and mer-
its inquiries are separate; whether the defendant ulti-
mately 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 affect-
ing 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 . . . .’’ (Cita-
tions omitted; emphasis omitted; internal quotation
marks omitted.) State v. Evans, supra, 329 Conn. 784.
We then clarified that our jurisdictional analysis focuses
on ‘‘whether it is plausible that the defendant’s motion
challenged the sentence, rather than the underlying trial
or conviction . . . .’’ Id., 784–85. In doing so, ‘‘we con-
sider the nature of the specific legal claim raised
therein.’’ Id., 785. Thus, it is not the possibility of success
on the merits of the claim raised that creates jurisdiction
but the possibility that the claim challenges the sen-
tence and not the underlying conviction.
Our application of these legal principles in Evans
supports our interpretation of this case law. In Evans,
the defendant claimed in his motion to correct that his
sentence was imposed in an illegal manner because it
exceeded the relevant statutory limits under General
Statutes (Rev. to 2011) §§ 21a-278 (b) and 21a-277 (a),7
and ‘‘the fact triggering the mandatory minimum [sen-
tence] was not found by a proper [fact finder] or admit-
ted by the defendant . . . .’’ (Internal quotation marks
omitted.) Id., 775. Looking at the specific legal claim
raised, including the allegations offered in support, this
court determined that the defendant was not challeng-
ing his conviction under § 21a-278 (b) but, rather, was
‘‘seek[ing] resentencing, claiming that § 21a-278 (b)
merely enhances the penalty available under § 21a-277
(a) . . . .’’ Id., 785. Although we noted that, given the
lack of case law regarding these statutes, ‘‘the defen-
dant’s interpretation of the narcotics statutory scheme
[was] sufficiently plausible to render it colorable for the
purpose of jurisdiction over his motion,’’ we concluded
that ‘‘the fact that the defendant does not ask us to
disturb his conviction under § 21a-278 (b), but merely
seeks remand for resentencing, renders [the] case dis-
tinguishable from [cases challenging the conviction]
. . . .’’ (Citation omitted.) Id., 786. ‘‘Because this claim
[was] colorably directed to the validity of the sentence
rather than the underlying conviction, we conclude[d]
that the trial court properly exercised jurisdiction over
the defendant’s motion to correct.’’ Id., 787–88. Thus,
in Evans, our determination of colorability was based
on the possibility that the defendant’s claim fell within
the scope of Practice Book § 43-22—in other words,
whether the claim possibly challenged the defendant’s
sentence or sentencing procedure. Contrary to the
defendant’s contention, in so concluding,8 we examined
the factual allegations to verify that the defendant in fact
was challenging his sentence and not his conviction,
consistent with our analysis in both Parker and Taylor.
Although this court only recently began using the phrase
‘‘colorable claim,’’ our use of that phrase in no way
alters the applicable standard for determining jurisdic-
tion on a motion to correct.
The state does not dispute our interpretation of
Evans. Both parties, however, argue that Evans is
inconsistent with Delgado, as well as with our more
recent analysis in McCleese. According to the defendant,
our holding in Delgado conflicts with Evans because,
although we did not analyze the effect of our adoption
of the phrase ‘‘colorable claim’’ in Delgado, our analysis
made clear that, to be colorable, the defendant had
to show it was possible that his sentence would be
corrected. In contrast, according to the state, Delgado
conflicts with Evans because, in applying the ‘‘colorable
claim’’ standard, this court considered not only whether
the claim was challenging the legality of the sentence,
and not the validity of the conviction, but also whether
there was a possibility that the defendant could succeed
on the merits of the claim. Delgado and Evans, however,
can be harmonized.
In Delgado, the defendant filed a motion to correct,
claiming that his sentence of sixty-five years of impris-
onment without parole was illegal under the United
States Supreme Court’s juvenile sentencing cases; see
State v. Delgado, supra, 323 Conn. 802–805; including
Miller v. Alabama, 567 U.S. 460, 465, 132 S. Ct. 2455,
183 L. Ed. 2d 407 (2012), which requires ‘‘(1) that a lesser
sentence than life without parole must be available for
a juvenile offender; and (2) that the sentencer must
consider age related evidence as mitigation when decid-
ing whether to irrevocably sentence juvenile offenders
to a [term of life imprisonment, or its equivalent, with-
out parole].’’ (Internal quotation marks omitted.) State
v. Delgado, supra, 806. In Delgado, the trial court dis-
missed the motion for lack of jurisdiction on the ground
that ‘‘the defendant was not sentenced pursuant to a
mandatory sentencing scheme . . . .’’ Id., 809 n.6. After
the trial court’s judgment, the legislature enacted Public
Acts 2015, No. 15-84 (P.A. 15-84), codified as amended
at General Statutes § 54-125a, which provided the defen-
dant with the possibility of parole. Id., 807.
In Delgado, we explained that, at the time the trial
court ruled on the defendant’s motion to correct, the
trial court ‘‘incorrectly concluded that it lacked jurisdic-
tion over the defendant’s motion to correct at that time.
The motion, at that point, raised a viable claim by alleg-
ing that a sentence of life imprisonment without parole
had been imposed without consideration of youth
related mitigating factors.’’ Id., 809 n.6. Nevertheless,
we ultimately upheld the trial court’s dismissal of the
motion to correct on the alternative ground that,
because of the change in the law, the defendant’s sen-
tence no longer was illegal under Miller, and, thus, the
claim fell outside the scope of Practice Book § 43-22.
Id., 816.
Specifically, we explained: ‘‘Because [federal law
does] not require a trial court to consider any particular
mitigating factors associated with a juvenile’s young age
before imposing a sentence that includes an opportunity
for parole, the defendant can no longer allege, after the
passage of P.A. 15-84, that his sentence was imposed
in an illegal manner on the ground that the trial court
failed to take these factors into account. Such an allega-
tion is an essential predicate to the trial court’s jurisdic-
tion to correct the sentence. An allegation that the court
failed to consider youth related factors before imposing
a sentence of life with parole is not sufficient to estab-
lish a jurisdictional basis for correcting a sentence. . . .
We therefore conclude that the defendant has not raised
a colorable claim of invalidity that, if decided in his
favor, would require resentencing.’’ (Citations omitted;
emphasis omitted.) Id., 812–13. ‘‘In view of the . . .
established rule that a sentencing court’s jurisdiction
to correct a sentence is limited to sentences that are
invalid . . . we conclude that the trial court no longer
possesses jurisdiction over the defendant’s motion to
correct.’’ (Citations omitted.) Id., 813.
Subsequently, in Evans, we addressed our holding in
Delgado: ‘‘[O]ur recent decision in [Delgado] appeared
to analyze a motion to correct an illegal sentence in
jurisdictional terms when subsequent legal develop-
ments affected its merits. . . . We emphasize that Del-
gado does not stand for the proposition that the merits
of a motion to correct . . . are inextricably intertwined
with the court’s jurisdiction over the motion. Rather,
we understand Delgado to be, in essence, a mootness
decision, insofar as the subsequent statutory changes
afforded the defendant all of the relief to which he was
entitled from his pending motion to correct.’’ (Citations
omitted.) State v. Evans, supra, 329 Conn. 787–88 n.16.
Thus, in Evans, we explained that the statutory amend-
ment at issue negated the defendant’s challenge to the
sentence, and, thus, the defendant was no longer chal-
lenging an illegal sentence. See State v. McCleese, supra,
333 Conn. 414. We explained that, if a change in the law
renders an illegal sentence legal, then the jurisdictional
prerequisite for correcting an illegal sentence—that the
claim challenges the sentence, not the conviction—is
missing, and, thus, the claim falls outside the scope of
Practice Book § 43-22. See State v. Boyd, 323 Conn.
816, 820–21, 151 A.3d 355 (2016) (relying on Delgado
to hold that court lacked jurisdiction because ‘‘the
defendant [could] no longer allege, after the enactment
of P.A. 15-84, that his sentence was imposed in an illegal
manner on the ground that the trial court failed to
take [the Miller] factors into account’’). As a result, the
defendant’s claim in Delgado did not fall within the
scope of § 43-22, rendering the outcome akin to moot-
ness. We did not consider the possibility of success on
the merits of the defendant’s claim. Rather, we consid-
ered the specific legal claim and allegations and held
that there no longer was a possibility that the defendant
could challenge the legality or validity of his sentence.
See State v. Delgado, supra, 323 Conn. 812.
Neither does our subsequent holding in McCleese con-
flict with Evans or Delgado. In McCleese, the defendant
sought to overturn our holding in Delgado by raising
various constitutional challenges to P.A. 15-84 that, if
successful, would have required this court to hold that
P.A. 15-84 did not replace the defendant’s illegal sen-
tence with a legal sentence. See State v. McCleese, supra,
333 Conn. 387, 409. This would have created a possibil-
ity that the defendant could challenge the legality of
his sentence. See id., 386–87. Because of the unique
nature of the defendant’s claim, we had to consider the
merits of the defendant’s constitutional challenges to
P.A. 15-84 to determine whether a colorable claim fall-
ing under the scope of Practice Book § 43-22 existed.
Because the claim raised in the present case is distin-
guishable from the unique claims raised in McCleese,
we do not consider our analysis in McCleese to depart
from the standard applied in Evans.
Our most recent case on this issue supports our con-
clusion that Delgado and McCleese do not alter or con-
flict with the test for colorability established in Parker
and Evans. In State v. Smith, 338 Conn. 54, 256 A.3d
615 (2021), the defendant’s motion to correct involved
a claim regarding cumulative convictions that violate
the double jeopardy clause, thereby arguably affecting
the defendant’s sentence. See id., 58. We held that,
‘‘under Evans, when cumulative convictions affect a
sentence in any manner, the trial court has jurisdiction
to entertain a motion to correct an illegal sentence.’’9
(Emphasis omitted.) Id., 63. Relevant to the issue of
colorability, we explained, in reaching this conclusion,
that this court may rely on the presumption in favor of
jurisdiction when ‘‘the defendant has made a color-
able—however doubtful—claim of illegality affecting
the sentence, rather than the underlying conviction.’’
(Emphasis altered; internal quotation marks omitted.)
Id., 62–63. The emphasized language demonstrates that
jurisdiction is not based on the possibility of success
on the merits of the defendant’s claim; rather, what must
be colorable is that the claim challenges the legality of
the sentence, not the conviction. In Smith, however,
the defendant sought only to modify his conviction, not
his sentence. See id., 58. Specifically, he claimed that
his sentence was illegal because the court merged his
convictions of felony murder and manslaughter instead
of vacating his conviction on the manslaughter charge.
Id. Thus, we held that the trial court lacked jurisdiction.
Id., 64.
Decisions of our Appellate Court consistently have
applied this analysis. See State v. Boyd, 204 Conn. App.
446, 455, 253 A.3d 988 (considering both legal claim
and factual allegations in determining that jurisdiction
was lacking and holding that, although ‘‘the motion to
correct an illegal sentence nominally challenges the
sentencing proceedings,’’ factual allegations showed
that defendant was challenging his conviction), cert.
denied, 336 Conn 951, 251 A.3d 617 (2021); State v.
Battle, 192 Conn. App. 128, 134–35, 217 A.3d 637 (2019)
(considering legal claim and factual allegations in con-
cluding that defendant brought colorable claim chal-
lenging his sentence but not addressing possibility of
success on merits), aff’d, 338 Conn. 523, A.3d
(2021); State v. Mukhtaar, 189 Conn. App. 144, 149–51,
207 A.3d 29 (2019) (looking at factual allegations in
holding that trial court lacked jurisdiction because
defendant was challenging his conviction, not his sen-
tence); State v. Walker, 187 Conn. App. 776, 788, 204
A.3d 38 (2019) (‘‘[i]n determining whether it is plausible
that the defendant’s motion challenged the sentence,
rather than the underlying trial or conviction, we con-
sider the nature of the specific legal claim raised
therein’’ (internal quotation marks omitted)), cert.
denied, 331 Conn. 914, 204 A.3d 703 (2019); State v.
Antwon W., 179 Conn. App. 668, 675–76, 181 A.3d 144(concluding, after looking at both legal claim and allega-
tions, that ‘‘[t]he defendant’s motion did not merely
raise a collateral attack on the judgment of conviction
but, on its face, attacked the manner in which his sen-
tence was imposed’’), cert. denied, 328 Conn. 924, 180
A.3d 965 (2018). Notwithstanding all of this recent
authority, a majority of the Appellate Court panel in
the present case relied on the older decision of State
v. Jason B., 176 Conn. App. 236, 244–45, 170 A.3d 139(2017), in holding that, for a trial court to have jurisdic-
tion, a defendant must establish the possibility that he
could succeed on the merits of his claim. See State v.
Ward, supra, 193 Conn. App. 807.
In Jason B., the Appellate Court summarized our
holding in Delgado as requiring that, ‘‘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 pre-
sented and the current law (or a reasonable and logical
extension or modification of the current law).’ Black’s
Law Dictionary (10th Ed. 2014) p. 302. 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 . . . such as, in the present context,
that the sentencing court relied on inaccurate informa-
tion or considerations that were outside of the record.’’
(Citation omitted; emphasis added.) State v. Jason B.,
supra, 176 Conn. App. 244–45. In other words, the court
in Jason B. required that the defendant establish the
possibility that he could succeed on the merits of his
claim, rather than the possibility that he was challenging
his sentence or sentencing procedure.
Although the court in Jason B. was correct as to the
definition of a colorable claim, as explained, our holding
in Delgado does not require the defendant to show that
he raised a claim that possibly could succeed on the
merits. Rather, he must raise a claim that possibly falls
within the scope of Practice Book § 43-22—that is, that
it challenges the sentence or sentencing procedure, not
the conviction. In determining if the defendant raised
such a claim, we consider both the legal claim raised
and the factual allegations, but, as Judge Sheldon indi-
cated, the defendant is required to show only ‘‘that
there is a possibility, rather than a certainty’’ that the
defendant challenges the sentence or sentencing proce-
dure. (Internal quotation marks omitted.) State v. Ward,
supra, 193 Conn. App. 817 (Sheldon, J., concurring in
part and dissenting in part).
In the present case, the defendant claimed in his
motion to correct that the trial court imposed his sen-
tence in an illegal manner because he was incompetent
at the time of sentencing. It is well established that the
defendant had both a statutory and constitutional right
to be tried and sentenced while he was competent. See,
e.g., State v. Ross, 269 Conn. 213, 270, 849 A.2d 648(2004); State v. DeAngelis, 200 Conn. 224, 242, 511 A.2d
310 (1986); see also General Statutes § 54-56d (a). A
claim that he was incompetent at the time of sentencing
clearly challenges ‘‘the character of the procedure
which [led] to the imposition of [the] sentence,’’ not
his underlying criminal conviction. (Internal quotation
marks omitted.) State v. Parker, supra, 295 Conn. 839.
Thus, at least nominally, the defendant raised a claim
that falls within the scope of Practice Book § 43-22. See
State v. Mukhtaar, supra, 189 Conn. App. 150 n.6 (‘‘[w]e
note that a claim regarding a defendant’s competency
at the sentencing proceeding . . . 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’’ (citations omitted)).
Additionally, the factual allegations and evidence the
defendant attached in support of his motion make clear
that his motion raised a colorable claim challenging his
sentencing. At the time of sentencing, both the prosecu-
tor and defense counsel referred to his psychiatric back-
ground, including his diagnosis of schizophrenia. The
defendant alleged that the police report, psychiatric
evaluation, and his records from the department,
although not part of the record at sentencing,10 estab-
lished his lack of competence. The police report and
psychiatric evaluation show that the defendant pre-
viously had suffered from hallucinations and had
attempted suicide on multiple occasions. The report
also stated that the defendant had not received treat-
ment for his mental health for many years, contributing
‘‘to an increased likelihood of worse symptoms, more
chronic symptoms and/or more frequent exacerbation
of symptoms.’’ The records from the department show
that the defendant refused to take his medication and
suffered from auditory hallucinations approximately
nine months before sentencing. Once he started taking
his medication again, he continued to report having
paranoid thought processes and ideas. The defendant
again missed several doses of his medication in the two
months leading up to his sentencing. Less than two
weeks before his sentencing, the defendant alleged and
the records show that he did not take his medication
and was hearing voices. The records also show that
the defendant misstated his sentence multiple times in
various ways both before and after his sentencing.
Relying on these facts, the defendant argued in his
motion to correct: ‘‘[T]he defendant’s mental health his-
tory, his repeated failure to maintain his medication
regimen, his continued auditory hallucinations and
paranoia, and his mistaken belief regarding his actual
sentence throughout the plea and sentencing processes
[demonstrated] that he did not understand his plea or
sentencing proceedings and was incompetent at both.
The issue here, however, is his sentencing, and, given
his incompetence at the time, it was imposed in an
illegal manner.’’
Although the defendant alleged that he was incompe-
tent at the plea proceedings and relied on records
regarding his mental health from before the plea pro-
ceedings, the allegations and evidence make clear that
the defendant was raising a challenge to the sentencing
procedure, not his conviction. The defendant merely
relied on his lengthy and ongoing mental health prob-
lems to support his claim that he was incompetent at
the time of sentencing. He has provided evidence that
he suffered from mental health problems in the weeks
leading up to and following his sentencing. Whether
such evidence is sufficient to establish the merits of
the defendant’s claim that he was incompetent at the
time of sentencing is a different question and not rele-
vant to our analysis. The factual allegations and evi-
dence offered in support of the defendant’s claim suffice
to show a possibility that a factual basis necessary to
establish jurisdiction exists—that he challenges the
legality of his sentence, not his conviction.11 Accord-
ingly, we conclude that the Appellate Court improperly
affirmed the trial court’s dismissal of the defendant’s
motion to correct.
Nevertheless, the state argues in the alternative that,
even if the trial court had jurisdiction, we should affirm
the Appellate Court’s judgment because the trial court
correctly determined the merits of the defendant’s
claim. Specifically, the state argues that the trial court
decided the merits because it stated in its memorandum
of decision that the ‘‘sentencing procedure . . . com-
plied with all constitutional and statutory require-
ments,’’ and that the defendant was presumed compe-
tent.
Contrary to the state’s contention, the trial court
never explicitly ruled on the merits of the defendant’s
claim and made no findings as to whether the proffered
evidence overcame the presumption of competency.
The trial court’s memorandum of decision was limited
to the issue of jurisdiction. Thus, we agree with Judge
Sheldon that the defendant is entitled to a hearing on
the merits of his motion, and the case must be remanded
for such a hearing. See State v. Bozelko, 154 Conn. App.
750, 765–66, 108 A.3d 262 (2015).
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand the
case to that court with direction to conduct a hearing
on the merits of the defendant’s motion to correct.
In this opinion the other justices concurred.
* October 21, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
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.’’
2
The defendant also claimed that the trial court improperly adjudicated
the motion to correct, rather than referring the motion to the sentencing
court. The Appellate Court determined that this claim was unpreserved and
failed under the third prong of 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). See State v. Ward, supra, 193 Conn. App. 797–800. The
defendant did not request certification to appeal with respect to this issue.
3
We did not grant certification on the issue of whether the sentencing
judge was obligated to sua sponte order a competency examination. Accord-
ingly, on remand, the defendant is entitled to an evidentiary hearing only
on the merits of his claim that he was incompetent at the time he was
sentenced.
4
We noted in Parker, however, that the category of sentences imposed
in an illegal manner does ‘‘not encompass rights or procedures subsequently
recognized as mandated by federal due process . . . [or] procedures man-
dated by state law that are intended to ensure fundamental fairness in
sentencing, which, if not followed, could render a sentence invalid.’’ (Cita-
tions omitted.) State v. Parker, supra, 295 Conn. 839–40.
The state argues that we decided Parker incorrectly because the common
law did not provide the trial court with jurisdiction to correct sentences
imposed in an illegal manner after the defendant began serving his or her
sentence, and, thus, the defendant’s claim falls outside the scope of Practice
Book § 43-22. Although the state does not explicitly ask us to overrule
Parker, that is, in essence, its argument. ‘‘Our determination of whether we
should overrule a prior decision is guided by the doctrine of stare decisis,
which counsels that a court should not overrule its earlier decisions unless
the most cogent reasons and inescapable logic require it.’’ (Internal quotation
marks omitted.) State v. Bischoff, 337 Conn. 739, 762, A.3d (2021).
‘‘While stare decisis is not an inexorable command . . . the doctrine carries
such persuasive force that we have always required a departure from prece-
dent to be supported by some special justification. . . . Such justifications
include the advent of subsequent changes or development in the law that
undermine[s] a decision’s rationale . . . the need to bring [a decision] into
agreement with experience and with facts newly ascertained . . . and a
showing that a particular precedent has become a detriment to coherence
and consistency in the law . . . .’’ (Citation omitted; internal quotation
marks omitted.) Sepega v. DeLaura, 326 Conn. 788, 798–99 n.5, 167 A.3d
916 (2017). Although we appreciate the state’s comprehensive treatment of
this question in its brief, because Parker is of relatively recent vintage, and
because the state has not identified cogent reasons why permitting our trial
courts, postsentencing, to entertain a defendant’s claim that his sentence
was imposed in an illegal manner will result in an unworkable scheme or
one that will unduly prejudice the state, we decline the state’s implicit
request that we overrule this precedent.
5
Alternatively, the state argues that, because the current state of the
law is ‘‘ ‘muddied,’ ’’ we should adopt a ‘‘novel’’ and stricter jurisdictional
framework. Because a court has jurisdiction over a motion to correct only
when a sentence is actually illegal, the state suggests that the motion itself
must demonstrate the illegality of the sentence on the merits to invoke the
trial court’s jurisdiction. Under the state’s proposed standard, the motion
would serve as an offer of proof. If the proffer is insufficient to establish
illegality, the motion must be dismissed; but if the proffer is sufficient to
show illegality, the movant then must support the proffer with evidence. If
illegality is established, then the trial court must correct the sentence.
Because, as explained, our prior case law can be harmonized, we decline
to create such a new framework.
6
For example, we have held that, under General Statutes § 22a-16, ‘‘stand-
ing . . . is conferred only to protect the natural resources of the state from
pollution or destruction. . . . Accordingly, all that is required to invoke the
jurisdiction of the Superior Court under § 22a-16 is a colorable claim, by
any person [or entity] against any person [or entity], of conduct resulting
in harm to one or more of the natural resources of this state. . . . Although
it is true, of course, that the plaintiff need not prove its case at this stage
of the proceedings . . . the plaintiff nevertheless must articulate a colorable
claim of unreasonable pollution, impairment or destruction of the environ-
ment.’’ (Citations omitted; emphasis omitted; internal quotation marks omit-
ted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432,
829 A.2d 801 (2003). In Fort Trumbull Conservancy, LLC, this court held
that the plaintiff failed to raise a colorable claim under § 22a-16 because,
although the complaint expressly challenged both the legality of the process
pursuant to which the defendants adopted the development plan and the
necessity of the demolition component of the plan, there were no allegations
that these errors likely caused unreasonable harm to the environment
‘‘because it [was] not evident how the defendants’ failure to follow certain
procedural requirements in adopting the development plan or to consider
alternatives to the demolition of buildings in the Fort Trumbull area [was]
likely to cause such harm. Nor [was] it apparent what the nature of any
such harm might be.’’ Id., 433. In so holding, we did not consider the merits
of the claim but only whether the plaintiff claimed that the challenged
conduct likely resulted in harm to the environment. Id., 432–33; see Wrotnow-
ski v. Bysiewicz, 289 Conn. 522, 528, 958 A.2d 709 (2008) (holding that
plaintiff lacked standing under General Statutes § 9-323 when he did not
challenge ‘‘any act or conduct by the [defendant] that . . . interprets some
statute, regulation or other authoritative legal requirement, applicable to
the election process . . . or . . . any mandatory statute that the defendant
has failed to apply or follow,’’ regardless of merits of that claim (citation
omitted; internal quotation marks omitted)); see also Connecticut Assn. of
Boards of Education, Inc. v. Shedd, 197 Conn. 554, 557 n.1, 499 A.2d 797(1985) (‘‘We emphasize that the question of standing is not an inquiry into
the merits. A plaintiff may have standing and nevertheless lose his suit.
Standing requires no more than a colorable claim of injury; a plaintiff ordi-
narily establishes his standing by allegations of injury.’’).
7
Hereafter, all references to §§ 21a-277 and 21a-278 are to the 2011 revision
of the General Statutes.
8
In Evans, we acknowledged that the dissent in State v. McGee, 175 Conn.
App. 566, 586, 168 A.3d 495 (Bishop, J., dissenting), cert. denied, 327 Conn.
970, 173 A.3d 953 (2017), thoughtfully noted that our case law lacks clarity
regarding when a motion to correct an illegal sentence challenges a sentence
rather than a conviction, especially when the claim involves double jeopardy
violations for multiple punishments. State v. Evans, supra, 329 Conn. 781n.13. To address this lack of clarity, Judge Bishop ‘‘suggested revisions to
the case law governing motions to correct, including the imposition of time
limitation[s] and limiting vacation of convictions to cases in which ‘it is
obvious from the criminal information and verdict that convictions violate
the protection against double jeopardy,’ and ‘that such remedial action
can only be taken before a defendant has commenced serving his or her
sentence.’ ’’ Id., quoting State v. McGee, supra, 595–98 (Bishop, J., dis-
senting). In Evans, however, we decided to ‘‘leave the specific issues identi-
fied by Judge Bishop [for] another day . . . [but] acknowledge[d] that the
demarcation between conviction and sentence may not always be crystal
clear, particularly in cases presenting [double jeopardy] issues, and may
invoke the presumption in favor of jurisdiction in cases in which the defen-
dant has made a colorable—however doubtful—claim of illegality affecting
the sentence, rather than the underlying conviction.’’ (Emphasis omitted.)
State v. Evans, supra, 781 n.13.
Both the defendant and the state in the present case rely on Judge Bishop’s
dissent in McGee to support their respective arguments that we should
clarify or overhaul our case law regarding motions to correct. Judge Bishop’s
dissent, however, involved the blurred lines between sentencing proceedings
and trial proceedings, especially in relation to double jeopardy issues. He
did not identify any confusion regarding this court’s analysis of whether a
defendant has raised a colorable claim under Practice Book § 43-22. Thus,
we need not address the specific issues Judge Bishop identified.
9
In Smith, we questioned the validity of our holding in Evans that a
challenge to cumulative convictions constitutes a challenge to the sentence,
not the conviction, but we did not question the validity of the colorability
test applied in Evans. See State v. Smith, supra, 338 Conn. 62–63.
10
We note that, before the Appellate Court, the state argued 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. . . .
[Specifically], 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 man-
ner.’’ State v. Ward, supra, 193 Conn. App. 820 n.2 (Sheldon, J., concurring
in part and dissenting in part). The majority did not address this argument,
and Judge Sheldon specifically rejected it. The state has not advanced this
argument before this court. Additionally, this argument relates to the merits
of the defendant’s claim, not to the colorability of that claim. Thus, we do
not address it.
11
The Appellate Court majority concluded that the defendant did not
establish a sufficient factual basis necessary to establish that jurisdiction
exists because these facts did not raise the possibility that the defendant
was incompetent at the time of sentencing. State v. Ward, supra, 193 Conn.
App. 812. More specifically, the majority determined that the defendant did
not allege sufficient facts to overcome the presumption of competency under
§ 54-56d, reasoning that the reports from the department were dated from
before and after sentencing and, thus, did not show the defendant’s mental
state at the time of sentencing. See id., 812–13. Additionally, the majority
determined that the defendant’s misunderstanding of the details of his plea
was not sufficient to overcome the presumption of competency. See id.,
813. We need not address whether the alleged facts are sufficient to overcome
the presumption of competency, which goes to the merits of the defendant’s
claim. For the same reason, we need not address the state’s argument that
the defendant failed to raise a colorable claim because he did not allege or
establish that his failure to take medication could be linked to his compe-
tence at the time of sentencing. These are merits issues that, presumably,
will be decided on remand.