State v. Myers ( 2022 )

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STATE OF CONNECTICUT v. KEVIN MYERS
(SC 20563)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
Pursuant to statute (§ 54-91g), when sentencing a child whose case has been
transferred from the docket for juvenile matters to the regular criminal
docket of the Superior Court and the child has been convicted of a class
A or B felony pursuant to such transfer, the sentencing court is required
to consider certain factors, including the defendant’s age at the time of
the offense and the hallmark features of adolescence.
Pursuant further to statute (§ 54-125a (f) (1)), a person convicted of a crime
or crimes committed while such person was under eighteen years of
age and serving a sentence for that crime or crimes of fifty years of
imprisonment or less shall be eligible for parole after serving 60 percent
of the sentence or twelve years, whichever is greater.
The defendant, who, in two separate cases, had been convicted of numerous
crimes that he committed when he was fifteen years old, appealed from
the trial court’s denial in part and dismissal in part of his motions to
correct an illegal sentence. In 2009, the defendant was sentenced in the
first case to a total effective sentence of eighteen years of imprisonment,
followed by twenty-two years of special parole. In 2011, the defendant
entered a guilty plea in the second case and received a sentence of
fourteen years of imprisonment, followed by six years of special parole,
to run concurrently with the sentence that he already was serving in
connection with the 2009 case. In light of the United States Supreme
Court’s decision in Miller v. Alabama (567 U.S 460) and its progeny, as
well as legislation (P.A. 15-84) enacted in response thereto concerning
sentencing procedures for juvenile offenders, the defendant filed one
motion to correct an illegal sentence in each criminal case. He claimed
that the trial court had failed to consider the hallmark features of adoles-
cence as mitigating factors in sentencing him, in violation of Miller and
its progeny, and in violation of § 54-91g, and sought a resentencing at
which such factors would be considered. The defendant also claimed
that he was being denied a meaningful opportunity for parole because,
when the Board of Pardons and Paroles calculated his parole eligibility
date pursuant to § 54-125a (f) (1), it did so on the basis of his fourteen
year sentence, rather than on the basis of either his eighteen year sen-
tence or the total time served under both sentences, which, due to the
structure of his concurrent sentences, resulted in his parole eligibility
date in 2023 rather than in 2019. The defendant contended that the
board’s incorrect calculation preventing him from receiving any practical
benefit under § 54-125a (f) (1) was contrary to legislative intent, did not
reflect the terms of his plea agreement, in violation of his right to due
process, and violated his right to equal protection under the law. The
trial court dismissed the defendant’s claim that he was entitled to resen-
tencing pursuant to Miller and its progeny, his claim that he was entitled
to resentencing under § 54-91g, his claim that he was denied a meaningful
opportunity for parole under § 54-125a (f) (1), and his equal protection
claim. The court denied the defendant’s claim that his sentences as
imposed violated the understanding of his plea agreement, in violation
of his right to due process, concluding that there was no agreement
with respect to when the defendant would be eligible for parole. On
the defendant’s appeal from the denial of his motions to correct an
illegal sentence, held that the form of the trial court’s judgment was
improper insofar as that court should have denied, rather than dismissed,
the defendant’s claims that he was entitled to be resentenced on the
basis of Miller and its progeny, and § 54-91g, and insofar as it should
have dismissed, rather than denied, the defendant’s claim that his parole
eligibility date did not reflect the terms of his plea agreement, in violation
of his right to due process: because the defendant’s claims that he
was entitled, pursuant to Miller and its progeny, and § 54-91g, to be
resentenced at a hearing at which the sentencing court must consider
the mitigating factors of youth plausibly challenged the defendant’s
sentence, the trial court had subject matter jurisdiction to address them,
but the defendant’s Miller claim failed on the merits because the defen-
dant was not sentenced to life imprisonment or its functional equivalent
and because he was eligible for parole, rendering Miller inapplicable to
him, and his claim under § 54-91g failed in light of this court’s prior
conclusion that the legislature did not intend for the section of P.A. 15-
84 codifying § 54-91g to apply retroactively; moreover, the defendant’s
claims that his parole eligibility date violated § 54-125a (f) (1) and his
rights to due process and equal protection were jurisdictionally defective
insofar as they did not challenge the defendant’s sentences or the manner
in which the sentencing court imposed his sentences but, instead, arose
from an action, namely, the calculation of his parole eligibility date,
that he concedes was undertaken by the board; furthermore, it was
undisputed that the board was the state actor tasked by the relevant
state regulation (§ 54-125a-3 (b)) with determining the defendant’s earli-
est parole eligibility date, and, although the record did not reveal how
the board interpreted and applied the relevant statutes in doing so, the
defendant’s claims regarding his parole eligibility date challenged the
board’s act of interpreting and applying the relevant statutes, and the
proper forum for the defendant to raise those claims, following exhaus-
tion of any administrative remedies, is in a habeas proceeding; addition-
ally, the defendant will be eligible for parole regardless of which of his
sentences the board bases its calculation on, just not as soon as he
would prefer, and the mere fact that the board’s interpretation of the
applicable statutes yielded a later parole eligibility date than another
interpretation could have yielded does not, in and of itself, implicate
the legality of the defendant’s sentences for purposes of the trial court’s
jurisdiction over his motions to correct an illegal sentence.
Argued December 16, 2021—officially released May 24, 2022
Procedural History
Substitute information, in the first case, charging the
defendant with two counts each of the crimes of sexual
assault in the first degree and kidnapping in the first
degree, and substitute information, in the second case,
charging the defendant with the crimes of sexual assault
in the first degree and burglary in the second degree,
brought to the Superior Court in the judicial district of
Hartford, where the first case was tried to the jury
before Mullarkey, J.; verdict and judgment of guilty of
one count of sexual assault in the first degree and two
counts of kidnapping in the first degree; thereafter, the
second case was tried to the jury before Schuman, J.;
subsequently, the court declared a mistrial as to the
charge of sexual assault in the first degree, and the
defendant was presented to the court, Alexander, J.,
on a plea of guilty to one count of sexual assault in the
first degree; judgment of guilty in accordance with the
plea; thereafter, the court, Alexander, J., dismissed in
part and denied in part the defendant’s motions to cor-
rect an illegal sentence, and the defendant appealed.
Improper form of judgment; affirmed in part; vacated
in part; judgment directed in part.
Tamar R. Birckhead, for the appellant (defendant).
Jonathan M. Sousa, deputy assistant state’s attorney,
with whom, on the brief, were Sharmese L. Walcott,
state’s attorney, Robin D. Krawczyk, senior assistant
state’s attorney, and Jennifer F. Miller, former assistant
state’s attorney, for the appellee (state).
Opinion
ROBINSON, C. J. The principal issue in this appeal
is whether a motion to correct an illegal sentence is a
jurisdictionally proper vehicle by which to challenge a
parole eligibility date, as calculated by the Board of Par-
dons and Paroles (board), in light of the sentences, as
pronounced by the court. The defendant, Kevin Myers,
was convicted in two separate criminal cases for several
offenses that he committed in 2007, when he was fifteen
years old. He now appeals1 from the trial court’s dis-
missal in part and denial in part of his two motions to
correct an illegal sentence, one filed in each of his two
cases. On appeal, the defendant claims that the trial
court incorrectly concluded that it lacked jurisdiction
over the claims in his motions to correct and that (1)
he was entitled to resentencing in both cases because
the sentencing court failed to consider his youth as a
mitigating factor, in violation of Miller v. Alabama, 567
U.S. 460, 476–77, 132 S. Ct. 2455, 183 L. Ed. 2d 407(2012), and General Statutes § 54-91g,2 (2) the structure
of his two sentences deprived him of a meaningful
opportunity for parole because it resulted in a later parole
eligibility date than he otherwise would have been enti-
tled to under General Statutes § 54-125a (f) (1),3 and
(3) his parole eligibility date violated his right to equal
protection under the fourteenth amendment to the United
States constitution and article first, § 20, of the Connect-
icut constitution. The defendant further contends that
the trial court improperly denied his claim that his
parole eligibility date, as calculated by the board, vio-
lated the terms of his plea agreement, in violation of his
right to due process under the fourteenth amendment
to the United States constitution and article first, §§ 8
and 9, of the Connecticut constitution. We affirm in
part the judgment of the trial court.4
The record reveals the following relevant facts and
procedural history. On April 4, 2007, when he was fif-
teen years old, the defendant sexually assaulted a
woman in her East Hartford apartment. Several months
later, on July 8, 2007, the defendant, who was still fifteen
years old, returned to the same apartment building,
abducted two women, and sexually assaulted one of
them. See State v. Myers, 129 Conn. App. 499, 501–503,
21 A.3d 499, cert. denied, 302 Conn. 918, 27 A.3d 370(2011). On that same night, a police officer arrested the
defendant, who matched the description of the suspect,
when the officer observed the defendant running across
a street in the same neighborhood where the attack
had occurred. Id., 503.
The state prosecuted the defendant for the April 4
and July 8, 2007 incidents in two separate cases in the
judicial district of Hartford, each with its own docket
number. The prosecution for the July 8, 2007 incident
(July 8 prosecution) proceeded first. In 2009, under
docket number CR-XX-XXXXXXX-T, following a jury trial,
the defendant was convicted of one count of sexual
assault in the first degree in violation of General Stat-
utes (Rev. to 2007) § 53a-70 (a) (1) and two counts of
kidnapping in the first degree in violation of General
Statutes § 53a-92 (a) (2) (A). Id., 501. On April 29, 2009,
the court sentenced the defendant, with respect to the
July 8 prosecution, to a total effective sentence of eigh-
teen years of imprisonment, followed by twenty-two
years of special parole.5
The prosecution for the April 4, 2007 incident (April
4 prosecution) went to trial in October, 2011, under
docket number CR-XX-XXXXXXX-T. In the April 4 prosecu-
tion, the state charged the defendant with sexual assault
in the first degree in violation of General Statutes (Rev.
to 2007) § 53a-70 (a) (1) and burglary in the second
degree, in violation of General Statutes (Rev. to 2007)
§ 53a-102 (a) (2). The jury found the defendant not guilty
of burglary in the second degree but was unable to reach
a verdict on the sexual assault count, leading the trial
court to declare a mistrial as to that count. Subsequently,
on December 8, 2011, the defendant pleaded guilty in
the April 4 prosecution under the Alford6 doctrine to
onecount of sexual assault in the first degree. Pursuant
to the court’s offer during plea negotiations, the defendant
was sentenced to fourteen years of imprisonment, fol-
lowed by six years of special parole. The court ordered
the sentence in the April 4 prosecution to run concur-
rently with the eighteen year sentence the defendant
already was serving for his conviction from the July 8
prosecution. The court explained to the defendant, how-
ever, that, because he already was serving a sentence in
connection with the July 8 prosecution, he was not enti-
tled to presentence confinement credit toward his four-
teen year sentence in the April 4 prosecution.7 As a result
of the approximately four year gap between his convic-
tions and sentences in the two separate cases, the defen-
dant’s eighteen year sentence in the July 8 prosecution,
which commenced in July, 2007, will end in July, 2025,
whereas his fourteen year sentence in the April 4 prosecu-
tion, which commenced in December, 2011, will end sev-
eral months later, in November, 2025.8
Constitutional and statutory changes to juvenile sen-
tencing laws subsequent to the defendant’s sentencing in
connection with the April 4 prosecution prompted him
to file the motions to correct an illegal sentence that are
at issue in this appeal. In order to provide background
for the defendant’s claims, we summarize the relevant
constitutional and statutory changes to juvenile sentenc-
ing laws that occurred subsequent to the defendant’s con-
victions.
In 2012, in Miller v. Alabama, supra, 567 U.S. 460,
the United States Supreme Court held that the eighth
amendment to the United States constitution bars sen-
tencing offenders who were under eighteen years old
when they committed their offenses to a sentence of
mandatory life imprisonment without the possibility of
parole. See id., 470. The Supreme Court held that, prior
to sentencing a juvenile offender to life without the possi-
bility of parole, a court must ‘‘take into account how
children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in
prison.’’ Id., 480. Our subsequent decision in State v. Riley,
315 Conn. 637, 641, 110 A.3d 1205 (2015), cert. denied,
577 U.S. 1202, 136 S. Ct. 1361, 194 L. Ed. 2d 376 (2016),
concluded that the eighth amendment requires a sentenc-
ing court to consider the Miller factors before exercising
its discretion to impose a sentence on a juvenile offender
that is the ‘‘functional equivalent’’ of life without the possi-
bility of parole.
The United States Supreme Court addressed the retro-
active effect of Miller in Montgomery v. Louisiana, 577
U.S. 190, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016), in
which the court concluded that, although Miller applies
retroactively, that ‘‘retroactive effect . . . does not
require [s]tates to relitigate sentences, let alone convic-
tions, in every case [in which] a juvenile offender received
mandatory life without parole. A [s]tate may remedy a
Miller violation by permitting juvenile homicide offenders
to be considered for parole, rather than by resentencing
them.’’ Id., 212.
In 2015, our legislature responded to the United States
Supreme Court’s decision in Miller by enacting §§ 1 and
2 of No. 15-84 of the 2015 Public Acts (P.A. 15-84), which
are codified at §§ 54-125a (f) and 54-91g, respectively.
Public Act 15-84 exceeds the constitutional floor estab-
lished by Miller, making changes that affect a broader
range of juvenile offenders than just those facing life
sentences or the functional equivalent thereof. Section 1
of P.A. 15-84, codified at § 54-125a (f), established new,
more favorable parole eligibility rules for juvenile offend-
ers who are ‘‘incarcerated on or after October 1, 2015,
and who received a definite sentence or total effective
sentence of more than ten years for such crime or crimes
prior to, on or after October 1, 2015 . . . .’’ See footnote
3 of this opinion. Section 2 of P.A. 15-84, codified at § 54-
91g, requires a sentencing court, when a child has been
convicted following transfer to the regular criminal
docket, to consider the Miller factors when sentencing
the child for a class A or B felony. See footnote 2 of
this opinion.
Relying on these constitutional and statutory changes
to juvenile sentencing laws, the defendant claimed in his
motions to correct that, in both of his criminal cases,
the sentencing court had failed to consider the hallmark
features of adolescence as mitigating factors, in violation
of Miller and its progeny, and § 54-91g. He sought a resen-
tencing at which the court would consider the Miller
factors.
The defendant also claimed that his parole eligibility
date in the July 8 prosecution had been altered by the
imposition of the fourteen year sentence in the April 4
prosecution, thus depriving him of a meaningful opportu-
nity for parole, as intended by the legislature in § 54-125a
(f) (1). The defendant relied on § 54-125a (f) (1) (A),
which, because he was serving a sentence of more than
ten years but less than fifty years, entitled him to ‘‘be
eligible for parole after serving sixty per cent of the sen-
tence or twelve years, whichever is greater . . . .’’ He
claimed that, rather than calculating his new parole eligi-
bility date pursuant to § 54-125a (f) (1) on the basis of
either his eighteen year sentence in the July 8 prosecution,
or on the basis of the total time served under both cases,
the board had improperly relied solely on his fourteen
year sentence in the April 4 prosecution, thus resulting
in a later parole eligibility date than he was entitled to
pursuant to § 54-125a (f) (1).
Specifically, the defendant contended that the board
improperly calculated his parole eligibility date to be
December 2, 2023.9 He claimed that, if the board had
calculated his parole eligibility date on the basis of his
total time served for the two convictions, he would be
eligible for parole more than four years earlier, in July,
2019. The defendant contended that the board’s incorrect
calculation of his parole eligibility date prevented him
from receiving any practical benefit under § 54-125a (f)
(1), contrary to the legislative intent underlying the stat-
ute, did not reflect the terms of his plea agreement, in
violation of his right to due process, and violated his right
to equal protection under the law. He claimed that he
was entitled to be resentenced in a manner that would
allow him to be eligible for an earlier parole date. In the
alternative, the defendant requested that the trial court
either adjust his sentence in the April 4 prosecution,
lengthening the term to eighteen years but changing the
commencement of the sentence to coincide roughly with
that of the sentence in the July 8 prosecution, or order
the board to base its calculation of his parole eligibility
date on his eighteen year sentence in the July 8 prose-
cution.
The trial court dismissed the defendant’s claim that he
was entitled to resentencing pursuant to both Miller and
its progeny, and § 54-91g. As to the defendant’s Miller
claim, the trial court concluded that Miller and its progeny
were inapplicable because the defendant had not been
sentenced to life without parole or its functional equiva-
lent. With respect to the defendant’s statutory claim, the
court relied on this court’s decision in State v. Delgado,
323 Conn. 801, 814, 151 A.3d 345 (2016), which held that
the legislature did not intend § 54-91g to apply retroac-
tively. The court also dismissed the defendant’s claim
that he was denied a meaningful opportunity for parole,
noting that he was ‘‘eligible for parole, just not when
he would prefer . . . to be.’’ The court then denied the
defendant’s claim that his sentences as imposed violated
the understanding of the plea agreement, finding that
there ‘‘was no agreement or understanding with respect
to when the defendant would be eligible for parole.’’ The
court dismissed his equal protection claim on the basis
that it was not within the scope of a motion to correct
an illegal sentence. Finally, the court dismissed the defen-
dant’s claim that the sentence frustrated the purpose of
the plea bargain. The court explained that the doctrine
of frustration of purpose is a civil one and declined to
extend it to this context.10 This appeal followed.
Before we address the defendant’s specific claims in
this appeal, we consider the legal principles governing a
trial court’s jurisdiction over a motion to correct an illegal
sentence. ‘‘A trial court generally has no authority to
modify a sentence but retains limited subject matter juris-
diction to correct an illegal sentence or a sentence
imposed in an illegal manner. . . . Practice Book § 43-
2211 codifies this common-law rule. . . . Therefore, we
must decide whether the defendant has raised a colorable
claim within the scope of Practice Book § 43-22 . . . .
In the absence of a colorable claim requiring correction,
the trial court has no jurisdiction . . . .’’ (Citations omit-
ted; footnote in original; internal quotation marks omit-
ted.) State v. McCleese, 333 Conn. 378, 386, 215 A.3d
1154 (2019). We have emphasized, however, 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.’’ 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); see State v. Ward, 341 Conn. 142,
152–58, 266 A.3d 807 (2021) (surveying case law dis-
cussing concept of colorable claim in context of motion
to correct illegal sentence). In examining whether a claim
is colorable, therefore, ‘‘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.’’
(Internal quotation marks omitted.) State v. Evans,
supra, 784.
‘‘[A]n illegal sentence is essentially one [that] . . .
exceeds the relevant statutory maximum limits, violates
a defendant’s right against double jeopardy, is ambiguous,
or is internally contradictory. . . . In accordance with
this summary, 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 vio-
lations 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.’’ (Internal quotation
marks omitted.) Id., 779. We have emphasized that, in
order to invoke the jurisdiction of the trial court, a
challenge to the legality of a sentence must challenge the
sentencing proceeding itself. Id.
We first address the defendant’s claim that the trial
court improperly dismissed his claims, pursuant to
Miller and its progeny, and § 54-91g, that he was entitled
to resentencing because, in both cases, the sentencing
court failed to consider the mitigating factors of youth.
Because both of these claims plausibly challenge the
defendant’s sentence, we conclude that the trial court
had subject matter jurisdiction to address them. See
id., 784. As we will explain, however, the defendant’s
claims have no merit. Accordingly, we conclude that
the trial court should have denied rather than dismissed
these claims.
Relying on Miller, the defendant contends that, because
he was denied a meaningful opportunity for parole pur-
suant to § 54-125a (f) (1), he was not provided a remedy
for the alleged Miller violations that occurred during
his sentencing proceedings in both cases. Therefore,
he argues that he is entitled to be resentenced, at which
sentencing proceeding the court must consider the miti-
gating factors of youth. We disagree. As the state aptly
responds, Miller simply does not apply to the defendant
because he was not sentenced to life imprisonment or
its functional equivalent and because he was eligible
for parole. See Miller v. Alabama, supra, 567 U.S. 480;
see also State v. Delgado, supra, 323 Conn. 811 (‘‘Miller
simply does not apply when a juvenile’s sentence pro-
vides an opportunity for parole; that is, a sentencing
court has no constitutionally founded obligation to con-
sider any specific youth related factors under such cir-
cumstances’’).
Relying on § 54-91g, the defendant claims that the
trial court incorrectly concluded that the statute does
not apply retroactively under the facts of the present
case. He argues that this court’s conclusion in Del-
gado—that § 54-91g does not apply retroactively—applies
only to subdivisions (1) and (2) of § 54-91g (a), and that
no court has yet concluded that subsection (c) of § 54-
91g, on which the defendant relies on appeal, applies
only prospectively. Section 54-91g (c) provides: ‘‘When-
ever a child is sentenced pursuant to subsection (a) of
this section, the court shall indicate the maximum
period of incarceration that may apply to the child and
whether the child may be eligible to apply for release
on parole pursuant to subdivision (1) of subsection (f)
of section 54-125a.’’ The defendant claims that, because
§ 54-91g (c) references ‘‘parole,’’ and because he was
denied parole eligibility pursuant to § 54-125a (f) (1),
he has a right, pursuant to § 54-91g (c), to be resen-
tenced on the basis that the sentencing courts in both
cases failed to comply with § 54-91g (a) (1) and (2).
The state responds that neither § 54-91g, in its entirety,
nor § 54-125a (f) (1) applies retroactively.
As the defendant concedes in his brief, we resolved
this question in State v. Delgado, supra, 323 Conn. 814–
15, in which we concluded that the legislature did not
intend P.A. 15-84, § 2, as codified at § 54-91g, to apply
retroactively. Our analysis in that case applied to P.A.
15-84, § 2, in its entirety, which necessarily included
the language later codified at § 54-91g (c). See id., 814
(observing that, contrary to other sections of P.A. 15-
84, ‘‘P.A. 15-84, § 2, provides it is ‘[e]ffective October
1, 2015,’ indicating that the legislature did not intend
for this section to apply retroactively’’).
The defendant’s remaining claims in this appeal, all
of which at their core challenge the board’s determina-
tion of his parole eligibility date, share a jurisdictional
defect. Rather than challenging the sentences or the
manner in which the sentencing court imposed his sen-
tences, the defendant’s claims arise from an action that
he concedes was undertaken by the board. That is, the
defendant contends that his parole eligibility date, as
determined by the board, deprived him of a meaningful
opportunity for parole, in violation of § 54-125a (f) (1).
Therefore, he claims that the trial court incorrectly con-
cluded that his parole eligibility date violated the terms
of his plea agreement, in violation of his right to due
process under the fourteenth amendment to the United
States constitution and article first, §§ 8 and 9, of the
Connecticut constitution,12 and violated his right to
equal protection under the fourteenth amendment to
the United States constitution and article first, § 20, of
the Connecticut constitution.13
The key fact that deprived the trial court of jurisdic-
tion over all of the defendant’s claims asserting that he
was entitled to an earlier parole eligibility date is that the
board, not a sentencing court, calculates a defendant’s
parole eligibility date. In calculating the defendant’s parole
eligibility date, the board acted in accordance with § 54-
125a-3 (b) of the Regulations of Connecticut State Agen-
cies, which provides in relevant part: ‘‘The Board . . .
shall make a determination of an inmate’s earliest parole
eligibility date. The Board, in making such determina-
tion, shall obtain, on a weekly basis, a list of all inmates
sentenced within the previous week. A criminal history
of the inmate, will be obtained which may include, but
shall not be limited to, a State Police criminal records
check, out of state criminal records check, police reports,
previous parole and probation reports, and any other
information that the Board deems relevant. Criminal
justice data systems will be queried for information regard-
ing the length of sentence for each specific charge. The
Chairman of the Board . . . shall convene a panel of
two or more parole board members to review the infor-
mation compiled. The panel will determine whether the
inmate must serve 50 [percent] or 85 [percent] of his
or her sentence before becoming eligible for Parole.
The inmate and the Department of Correction will then
be notified of the Board’s determination.’’
The mere fact that the defendant has cast his claims
as challenging his sentence structure does not alter
our conclusion that, in these motions to correct, the
defendant is in actuality challenging an action of the
board. Accordingly, because the claims do not plausibly
challenge his sentence, the trial court lacked jurisdic-
tion over them. See State v. Evans, supra, 329 Conn.
784. Specifically, the defendant’s claims challenging his
parole eligibility date call into question the board’s inter-
pretation and application of the relevant statutes.
Because the defendant’s sentences were imposed in
two separate cases and ordered to run concurrently,
the defendant’s parole eligibility date is governed by
General Statutes §§ 53a-38 (b) (1) and 54-125a (f) (1)
(A), which, together, provide the values for the parole
eligibility calculation.14
The record in the present case does not reveal how
the board interpreted and applied §§ 53a-38 (b) (1) and
54-125a (f) (1) (A) to calculate the defendant’s parole
eligibility date.15 Nor does the record reveal when or
whether the board informed the defendant of his parole
eligibility date. See footnote 9 of this opinion. It is undis-
puted, however, that the board is the state actor that
would interpret those statutes and apply them to the
defendant. See Regs., Conn. State Agencies § 54-125a-
3 (b). Notwithstanding the defendant’s attempts to cast
his claims as challenging the legality of his sentences
or his sentence structure, his dispute is with the board’s
interpretation of the applicable statutes—whatever that
interpretation may be. The defendant consistently has
advocated for either of two particular interpretations
of the applicable statutes. He has argued that they
should be read to require the board to calculate his
parole eligibility date either on the basis of his total
time served under both sentences, or on the basis of his
eighteen year sentence, which he claims is the sentence
that ‘‘has the longest term to run’’ for purposes of § 53a-
38 (b) (1). The proper forum for the defendant to raise
these claims, following exhaustion of any administra-
tive remedies, is in a habeas proceeding.
At oral argument before this court, the defendant’s
counsel relied on our recent decision in State v. Col-
therst, 341 Conn. 97, 266 A.3d 838 (2021), in support of
the defendant’s argument that jurisdiction lies over his
claims challenging his parole eligibility date. Given the
stark contrast between the facts of Coltherst and those
of the present case, a comparison of the two cases
provides further illustration of the nature of the jurisdic-
tional defect suffered by all of the defendant’s chal-
lenges to his parole eligibility date. Specifically, the
defendant argues that we should conclude that, when
a juvenile is sentenced in multiple criminal cases to
sentences that are ordered to run concurrently, § 54-
125a (f) (1) requires the board to use the ‘‘total effective
sentence’’—the total time served under the multiple
dockets—as the basis for calculating the juvenile’s
parole eligibility.
Our decision in Coltherst provides an example of
when such a claim implicates the legality of the senten-
ces, rather than solely challenging an action of the
board. In Coltherst, the defendant, who was convicted
in two separate criminal cases for crimes he committed
when he was under eighteen years of age, filed a motion
to correct an illegal sentence in the trial court. See State
v. Coltherst, supra, 341 Conn. 100, 105, 108–109. The
defendant in Coltherst was resentenced in one case to a
total effective sentence of eighty years of imprisonment.
Id., 106. The trial court ordered that sentence to run
consecutively to the sentence in the other case, a total
effective sentence of eighty-five years of imprisonment.
Id., 106–107. Following oral argument before this court,
we ordered the parties to submit supplemental briefs
addressing, inter alia, whether ‘‘the defendant [is] eligi-
ble for parole when he received two distinct total effec-
tive sentences of [eighty-five] years and [eighty] years,
respectively, to run consecutively, and, if so, when . . .
he [is] eligible for parole [in connection with] each case
. . . .’’ (Internal quotation marks omitted.) Id., 101.
The difference between the present case and Coltherst
is significant for purposes of jurisdiction over a motion
to correct an illegal sentence. In Coltherst, we deter-
mined that the record was unclear regarding whether
the board would ultimately calculate the defendant’s
parole eligibility on the basis of each of the definite
sentences independently. See id., 110–12. If the board
did so, we explained, ‘‘the defendant’s only opportunity
for parole would be 30 years after he began serving the
80 year sentence in [one case], 115 years after he began
serving the [85 year] sentence [in the other case]. He
would die long before becoming eligible for parole,
rendering the intended remedy of parole eligibility
meaningless—his sentence would effectively be one
without the opportunity for parole. That interpretation
would flout every recent juvenile sentencing decision
of both this court and the United States Supreme Court
and, therefore, would also be inconsistent with the
intent of the legislature in § 54-125a (f) (1).’’ (Emphasis
added.) Id., 111. Accordingly, if the applicable statutes,
§§ 53a-38 (b) (2) and 54-125a (f) (1), required the board
to calculate the defendant’s parole eligibility date on
the basis of each definite sentence independently, he
would have been denied the opportunity for parole.
That conclusion would call into question the legality of
the defendant’s consecutive sentences as pronounced
by the trial court. Consistent with State v. Evans, supra,
329 Conn. 784, therefore, because the issue plausibly
could be understood to challenge the sentence itself,
the court had subject matter jurisdiction over that ques-
tion in the motion to correct an illegal sentence.
By contrast, in the present case, as the trial court
observed, the defendant will be eligible for parole under
either interpretation of the sentences that he received,
just not as soon as he would prefer. The defendant
has never claimed that his sentences in the two cases
constitutes the functional equivalent of a sentence of
life without the possibility of parole. If the board, as
the defendant suggested before the trial court, has inter-
preted §§ 53a-38 (b) (1) and 54-125a (f) (1) (A) to yield
a parole eligibility date of December 2, 2023, the defen-
dant will have served approximately sixteen years of
imprisonment when he becomes eligible for parole. The
mere fact that the board’s interpretation of the applica-
ble statutes has yielded a later parole eligibility date
than another interpretation could have yielded does
not, by itself, implicate the legality of the defendant’s
sentences for purposes of the court’s jurisdiction over
the motions to correct an illegal sentence.
The form of the judgment is improper insofar as the
trial court denied the defendant’s claim that his new
parole eligibility date violated the terms of his plea
agreement, in violation of his right to due process, and
insofar as that court dismissed the defendant’s claim
that he was entitled to resentencing on the basis of
Miller, its progeny, and § 54-91g, that portion of the
judgment relating to the trial court’s disposition of those
claims is vacated, and the case is remanded with direc-
tion to render judgment dismissing the defendant’s due
process claim regarding his new parole eligibility date
and denying the defendant’s claim that he was entitled
to resentencing; the judgment is affirmed in all other
respects.
In this opinion the other justices concurred.
1
The defendant appealed from the judgment of the trial court to the
Appellate Court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
2
General Statutes § 54-91g provides in relevant part: ‘‘(a) If the case of a
child, as defined in section 46b-120, is transferred to the regular criminal
docket of the Superior Court pursuant to section 46b-127 and the child is
convicted of a class A or B felony pursuant to such transfer, at the time of
sentencing, the court shall:
‘‘(1) Consider, in addition to any other information relevant to sentencing,
the defendant’s age at the time of the offense, the hallmark features of
adolescence, and any scientific and psychological evidence showing the
differences between a child’s brain development and an adult’s brain devel-
opment; and
‘‘(2) Consider, if the court proposes to sentence the child to a lengthy
sentence under which it is likely that the child will die while incarcerated,
how the scientific and psychological evidence described in subdivision (1)
of this subsection counsels against such a sentence.
***
‘‘(c) Whenever a child is sentenced pursuant to subsection (a) of this
section, the court shall indicate the maximum period of incarceration that
may apply to the child and whether the child may be eligible to apply for
release on parole pursuant to subdivision (1) of subsection (f) of section
54-125a. . . .’’
3
General Statutes § 54-125a (f) (1) provides: ‘‘Notwithstanding the provi-
sions of subsections (a) to (e), inclusive, of this section, a person convicted
of one or more crimes committed while such person was under eighteen
years of age, who is incarcerated on or after October 1, 2015, and who
received a definite sentence or total effective sentence of more than ten
years for such crime or crimes prior to, on or after October 1, 2015, may
be allowed to go at large on parole in the discretion of the panel of the
Board of Pardons and Paroles for the institution in which such person is
confined, provided (A) if such person is serving a sentence of fifty years
or less, such person shall be eligible for parole after serving sixty per cent
of the sentence or twelve years, whichever is greater, or (B) if such person
is serving a sentence of more than fifty years, such person shall be eligible
for parole after serving thirty years. Nothing in this subsection shall limit
a person’s eligibility for parole release under the provisions of subsections
(a) to (e), inclusive, of this section if such person would be eligible for
parole release at an earlier date under any of such provisions.’’
4
Specifically, we conclude that the trial court should have denied, rather
than dismissed, the defendant’s claims that he is entitled to resentencing
pursuant to Miller and its progeny, and pursuant to § 54-91g, and that the
court should have dismissed, rather than denied, the defendant’s claim that
his parole eligibility date as calculated by the board violated the terms of
his plea agreement. Therefore, the form of the trial court’s judgment is
improper with respect to those claims. Accordingly, as we will indicate in
the rescript of this opinion, we vacate the judgment of the trial court with
respect to those claims and remand the case to the trial court with direction
to deny the defendant’s claims relying on Miller and its progeny, and § 54-
91g, and to dismiss the defendant’s claim that his parole eligibility date
violated his plea agreement. We affirm the judgment of the trial court in all
other respects.
5
The judgment of conviction in the July 8 prosecution reflects the jury’s
verdict finding the defendant not guilty on the first charged count in the
information, namely, sexual assault in the first degree. With respect to the
charges on which he was convicted in the July 8 prosecution, the sentencing
court sentenced the defendant as follows: on count two, sexual assault in
the first degree, eight years of incarceration, followed by twelve years of
special parole; on count three, kidnapping in the first degree, ten years
of incarceration, followed by fifteen years of special parole, both to run
consecutively to count two; and, on count four, kidnapping in the first
degree, ten years of incarceration, followed by fifteen years of special parole,
both to run concurrent to counts two and three.
In 2015, the defendant filed a motion to correct an illegal sentence with
respect to the July 8 prosecution, claiming that the periods of fifteen years
of special parole for each of the kidnapping counts exceeded the statutory
maximum. The trial court granted the motion and reduced his period of
special parole to ten years for each of the kidnapping counts. Because the
special parole periods for the kidnapping counts ran concurrently with each
other, but consecutive to the special parole period for the sexual assault
count, the defendant was ultimately sentenced to a total of twenty-two years
of special parole.
6
North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
7
The trial court did, however, grant the defendant presentence confine-
ment credit for the fourteen year sentence in the April 4 prosecution for
the time period between the entry of his plea on December 8, 2011, and his
sentencing on January 6, 2012.
8
The record does not reveal the number of days of presentence confine-
ment credited toward the defendant’s sentence in the July 8 prosecution.
During the January 17, 2019 hearing on the motions to correct that are at
issue in this appeal, the defendant represented to the trial court that his
sentence in the July 8 prosecution commenced on July 23, 2007.
9
The state did not challenge the defendant’s representation regarding the
board’s alleged calculation of his parole eligibility date. It is also undisputed
that, as of the date of oral argument before this court, the defendant had
not yet received a parole hearing.
The particular parole eligibility date provided to the defendant by the
board has no bearing on the resolution of the jurisdictional questions pre-
sented in this appeal. As we explain in this opinion, the dispositive factor,
for purposes of the trial court’s jurisdiction over the defendant’s motions
to correct, is that the board, rather than the sentencing court, calculates
the parole eligibility dates of inmates.
10
On appeal, although the defendant argues that the doctrine of frustration
of purpose lends support to his arguments in support of his claim that his
parole eligibility date violated the terms of his plea agreement, he does not
challenge the court’s dismissal of his claim that his sentence frustrated the
purpose of the plea bargain on the basis that Connecticut courts have not
extended that doctrine to the criminal context. Accordingly, we need not
consider that issue further.
11
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.’’
12
In support of his claim that his parole eligibility date violated his plea
agreement, the defendant argues that the order of the sentencing court in
the April 4 prosecution that the two sentences were to run concurrently
reflects an intent by the parties that the sentence in the July 8 prosecution
would be the controlling sentence for parole eligibility purposes. He further
claims that the trial court violated his right to due process by concluding
that it lacked jurisdiction to determine whether his sentence in the April 4
prosecution, by negatively impacting his parole eligibility, prevented the
state from keeping its plea promises. He also argues that any ambiguity to
this effect in the plea agreement should be construed to his benefit. In
response, the state observes that the sentencing court in the April 4 prosecu-
tion made it clear that, although the two sentences would run concurrently,
the defendant would receive no presentence confinement credit toward the
fourteen year sentence in the April 4 prosecution for the approximately four
years he already had served in connection with his sentence in the July 8
prosecution. The state argues that, because the sentence for the April 4
prosecution did not begin until four years after the sentence in the July 8
prosecution commenced, the sentence in the April 4 prosecution was the
governing sentence for purposes of parole eligibility. The state further points
out that the defendant was not sentenced pursuant to a plea agreement
with the state but, rather, pursuant to a court offer over the state’s objection.
The state, therefore, was not a party to any plea agreement.
13
In support of his claim that his parole eligibility date violates his right
to equal protection, the defendant contends that, unlike other juvenile
offenders who are similarly situated, he was not afforded parole eligibility
consistent with state law or an opportunity for parole consistent with the
parties’ plea agreement. As examples of juvenile offenders similarly situated
to him, the defendant points to juvenile offenders sentenced to concurrent
sentences in a single case, as opposed to multiple cases. Those juvenile
offenders, he argues, would be entitled to parole eligibility upon serving 60
percent of their total effective sentence or after twelve years, whichever is
greater. The state responds that the trial court properly rejected the defen-
dant’s equal protection claim because it targets an action of the board
in calculating the defendant’s parole eligibility date, not an action of the
sentencing court.
14
As was discussed at oral argument before this court, we note that, under
the facts of the present case, § 53a-38 (b) establishes the length of the
defendant’s sentence for purposes of calculating his parole eligibility date,
providing in relevant part: ‘‘A definite sentence of imprisonment commences
when the prisoner is received in the custody to which he was sentenced.
Where a person is under more than one definite sentence, the sentences
shall be calculated as follows: (1) If the sentences run concurrently, the
terms merge in and are satisfied by discharge of the term which has the
longest term to run . . . .’’ The resulting sentence is then multiplied by 60
percent pursuant to § 54-125a (f) (1) (A). See footnote 3 of this opinion. If
the resulting value is greater than twelve years, that value is used to calculate
the parole eligibility date. Otherwise, the defendant will be eligible for parole
twelve years after his sentence commenced. If, however, the defendant
would be eligible for parole at an earlier date under subsections (a) through
(e) of § 54-125a, he is entitled to that earlier parole eligibility date. See
General Statutes § 54-125a (f) (1); see also footnote 3 of this opinion.
15
We take no position on whether the board properly interpreted and
applied the relevant statutory provisions to the defendant. See footnote 14
of this opinion. The trial court’s lack of subject matter jurisdiction over
the defendant’s motions to correct similarly deprives us of subject matter
jurisdiction over these claims on appeal. See, e.g., Lewis v. Rosen, 149 Conn.
734, 735, 181 A.2d 592 (1962).