State v. Coleman ( 2021 )

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STATE OF CONNECTICUT v.
CHRISTOPHER COLEMAN
(AC 42911)
Alvord, Prescott and Moll, Js.
Syllabus
The defendant, who had been convicted, on a plea of guilty, of the crimes
of promoting a minor in an obscene performance, risk of injury to a
child, sexual assault in the second degree, possession of child pornogra-
phy, and cruelty to persons, appealed to this court, challenging the
sentence imposed by the trial court following the court’s granting of his
motion to correct an illegal sentence. The defendant originally received
a total effective sentence of nine years of imprisonment, which would
run consecutively to a sentence he was then serving, followed by twenty-
five years of special parole. He claimed that his sentence on the convic-
tion of sexual assault in the second degree, one year of imprisonment
followed by twenty-five years of special parole, exceeded the statutory
(§ 53a-35a) maximum twenty year term of imprisonment applicable to
that offense. The court resentenced the defendant by restructuring his
sentence to consist of the same total effective sentence of nine years
of imprisonment followed by twenty-five years of special parole that he
had agreed to in his plea bargain. On appeal, the defendant claimed that
his newly imposed sentence violated the multiple punishment prohibi-
tion of the double jeopardy clause as well as his rights to due process
and that the court lacked jurisdiction to resentence him. The state
conceded that the portion of the defendant’s new sentence, imposing
an eleven year period of special parole on the charge of promoting a
minor in an obscene performance, illegally exceeded the statutory (§ 54-
125e (c)) maximum ten year special parole limitation. Held:
1. The defendant’s resentencing did not violate double jeopardy, as his
overall sentence had not expired, and the trial court was thus free to
restructure the entire sentencing package; the defendant provided no
authority for his argument that the legal portion of his sentence should
have been bifurcated from the illegal term of special parole, the resen-
tence did nothing more than place the defendant in the same position
he originally occupied when he entered his guilty plea, and, as the
defendant was still serving his original sentence at the time of resentenc-
ing, he had not obtained an expectation of finality in his sentence.
2. The defendant could not prevail on his claim that the trial court lacked
jurisdiction to resentence him; the defendant invoked the jurisdiction
of the court by filing a motion to correct his sentence, and the court
restructured his sentence before the total effective sentence had expired.
3. The defendant’s resentencing did not violate his constitutional rights to
due process, as he was resentenced to the same total effective sentence
and not to a longer term of imprisonment or a longer combined sentence.
4. The trial court’s imposition of an eleven year period of special parole for
the charge of promoting a minor in an obscene performance exceeded
the ten year maximum limit set forth in § 54-125e (c) and, thus, the
defendant was entitled to resentencing.
Argued October 21, 2020—officially released May 25, 2021
Procedural History
Substitute information charging the defendant with
multiple counts of the crimes of promoting a minor in
an obscene performance, risk of injury to a child, sexual
assault in the second degree, possession of child por-
nography, and sexual assault in the first degree, and
one count of the crime of cruelty to persons, brought
to the Superior Court in the judicial district of Fairfield,
where the defendant was presented to the court, Dami-
ani, J., on a plea of guilty of two counts of risk of injury
to a child and one count each of promoting a minor in
an obscene performance, sexual assault in the second
degree, possession of child pornography, and cruelty
to persons; judgment of guilty in accordance with the
plea; thereafter, the court, Hon. Robert J. Devlin, Jr.,
judge trial referee granted the defendant’s motion to
correct an illegal sentence, and the defendant appealed
to this court. Reversed; further proceedings.
Judie Marshall, for the appellant (defendant).
Linda F. Currie-Zeffiro, senior assistant state’s attor-
ney, with whom, on the brief, were Joseph T. Corradino,
state’s attorney, and C. Robert Satti, Jr., supervisory
assistant state’s attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Christopher Coleman,
appeals from the judgment of the trial court granting
his motion to correct an illegal sentence and imposing
a new sentence. On appeal, the defendant claims that
(1) his newly imposed sentence violates the multiple
punishment prohibition of the double jeopardy clause
of the fifth amendment to the United States constitution
and the Connecticut constitution1 because he had com-
pleted the lawful portion of his sentence at the time of
his resentencing, (2) the court lacked jurisdiction to
resentence him after the lawful portion of his sentence
had been served, and (3) the newly imposed sentence
violated his due process rights under the federal and
state constitutions. We disagree with the defendant’s
claims.
The state, in its appellate brief, concedes that the
defendant’s new sentence is illegal because the court
imposed an eleven year period of special parole on the
charge of promoting a minor in an obscene perfor-
mance, which exceeds the ten year special parole limita-
tion set forth in General Statutes § 54-125e (c). The
defendant agrees and, in his reply brief, argues that
this court has the authority to correct the defendant’s
sentence. We agree with the parties that the defendant’s
new sentence is illegal and, accordingly, we reverse the
judgment of the trial court and remand the case for
resentencing.
The record reflects the following procedural history
that is relevant to this appeal. On June 12, 2003, pursuant
to a plea agreement, the defendant pleaded guilty under
the Alford doctrine2 to one count of promoting a minor
in an obscene performance in violation of General Stat-
utes § 53a-196b, two counts of risk of injury to a child
in violation of General Statutes (Rev. to 2001) § 53-21
(a) (1), one count of sexual assault in the second degree
in violation of General Statutes (Rev. to 2001) § 53a-71
(a) (1), one count of possession of child pornography
in violation of General Statutes (Rev. to 2001) § 53a-
196d, and one count of cruelty to persons in violation
of General Statutes (Rev. to 2001) § 53-20.
On July 15, 2003, the parties appeared before the trial
court, Damiani, J. The court first noted that ‘‘[t]he
agreed upon sentence . . . was nine years in jail to
run consecutive to his present sentence, followed by
twenty-five years of special parole.’’ The court offered
the parties the opportunity to be heard and then sen-
tenced the defendant as follows: (1) for the charge of
promoting a minor in an obscene performance, nine
years of imprisonment, (2) for the charge of risk of
injury to a child, nine years of imprisonment, (3) for
the charge of risk of injury to a child, nine years of
imprisonment, (4) for the charge of sexual assault in
the second degree, one year of imprisonment, nine
months of which was mandatory, followed by twenty-
five years of special parole, (5) for the charge of posses-
sion of child pornography, five years of imprisonment,
and (6) for the charge of cruelty to persons, one year
of imprisonment. The trial court ordered the sentences
to run concurrently, resulting in a total effective sen-
tence of nine years of imprisonment, nine months of
which was mandatory, followed by twenty-five years
of special parole. The sentence was ordered to run
consecutively to a sentence that the defendant was
already serving.
On November 19, 2018, the defendant filed a motion
to correct his sentence pursuant to Practice Book § 43-
22.3 In his motion, he argued that his sentence was illegal
because the total sentence imposed for the charge of
sexual assault in the second degree, one year of impris-
onment followed by twenty-five years of special parole,
exceeded the statutory maximum penalty available for
that offense.4 The defendant cited State v. Tabone, 279
Conn. 527, 533, 902 A.2d 1058 (2006), in which our
Supreme Court concluded that a sentence in which the
total length of the term of imprisonment and period of
special parole combined exceeds the maximum sen-
tence of imprisonment violates General Statutes § 54-
128 (c).5
On December 19, 2018, the parties appeared before
the court, Devlin, J., on the motion to correct. The
court stated: ‘‘We discussed this in chambers, and I
think there are problems with the sentence that Judge
Damiani imposed.’’ Noting that the parties wished to
file memoranda, the court continued the matter to Janu-
ary 30, 2019.
On January 22, 2019, the state filed a memorandum
of law in opposition to the defendant’s motion to correct
an illegal sentence. The state agreed that the original
sentence was illegal, pursuant to State v. Tabone, supra,279 Conn. 533, but contended that the court had ‘‘the
authority under the aggregate sentencing theory to
resentence the defendant to the same sentence that
Judge Damiani did in 2003.’’6
On January 28, 2019, the defendant filed an amended
motion to correct an illegal sentence, dated January 16,
2019. In his motion, he argued that his sentence was
illegal ‘‘in that the one year of incarceration that he
received on the charge of sexual assault in the second
degree does not render him eligible for any period of
special parole whatsoever,’’ pursuant to General Stat-
utes § 54-125e (a).7 He alleged that § 54-125e (a) ‘‘sup-
plies the trial court’s statutory authority to impose spe-
cial parole [and] expressly conditions that authority on
the receipt of a ‘definite sentence of more than two
years’ . . . .’’ The defendant maintained that resen-
tencing him to apportion the special parole among the
other charges ‘‘(1) violates the [d]ouble [j]eopardy
[c]lauses of the state and federal constitutions, (2)
exceeds the trial court’s jurisdiction, and (3) violates
the [d]ue [p]rocess [c]lauses of the state and federal
constitutions.’’ The defendant requested that the court
strike the period of special parole imposed.
The court, Devlin, J., held argument on the motion
on January 30, 2019. At the conclusion of oral argument,
the court, noting that both parties agreed that the sen-
tence imposed was ‘‘not in conformance with the statu-
tory structure,’’ set the matter down for a resentencing.
The court stated: ‘‘And in the resentencing it will either
be the suggestion made by the defense, which is essen-
tially [to] vacate the special parole order and then essen-
tially transform the sentence into a nine year flat sen-
tence. Or attempt to, if possible, implement this
aggregate package theory to try and, if not achieve,
approximate what Judge Damiani intended, which was
the agreed sentence of nine years followed by twenty-
five years of special parole.’’
On March 8, 2019, the state filed a supplemental mem-
orandum of law in opposition to the defendant’s
amended motion to correct an illegal sentence. In its
supplemental memorandum, the state argued that dou-
ble jeopardy did not preclude a resentencing because
the defendant had not completed his sentence. Next,
the state argued that the ‘‘defendant bargained for and
received what he asked for—a [nine] year jail sentence
and [twenty-five] years of special parole,’’ and that a
defendant’s due process rights are not violated when
the court corrects an illegal sentence, so long as the new
sentence is not more severe than the original sentence.
Finally, the state argued that the court retained jurisdic-
tion to correct the defendant’s sentence. The state
requested that the court ‘‘restructure the sentences to
reflect the original intent of Judge Damiani by resen-
tencing the defendant to the same total effective sen-
tence.’’
The parties again appeared before the court, Devlin,
J., on March 13, 2019. Following additional oral argu-
ment, the court determined that the defendant’s sen-
tence of one year of incarceration followed by twenty-
five years of special parole was illegal and granted the
defendant’s motion to correct. The court noted that
‘‘this was part of a plea agreement in which [the defen-
dant] agreed to a total sentence of nine years followed
by twenty-five years of special parole. The manner in
which the court sought to implement that agreed sen-
tence was illegal, but there’s nothing illegal about a plea
bargain of nine years followed by twenty-five years of
special parole.’’
The court vacated the defendant’s sentence and, in
an effort to achieve the same total effective sentence
that Judge Damiani had imposed, resentenced him to
the following: (1) for the charge of promoting a minor in
an obscene performance, three years of imprisonment,
followed by eleven years of special parole, (2) for the
charge of risk of injury to a child, three years of impris-
onment, followed by seven years of special parole, (3)
for the charge of risk of injury to a child, three years
of imprisonment, followed by seven years of special
parole, (4) for the charge of sexual assault in the second
degree, one year of imprisonment, (5) for the charge
of possession of child pornography, five years of impris-
onment, and (6) for the charge of cruelty to persons,
five years of imprisonment. The court ordered the sen-
tences on the first three counts, which all involved
special parole, to run consecutively to each other. It
ordered the sentences on the last three counts to run
concurrent with each other and concurrent with the
effective sentence on the first three counts. The result
was a total effective sentence of nine years of incarcera-
tion, followed by twenty-five years of special parole.
This appeal followed.
I
The defendant first claims on appeal that the court’s
restructuring of his sentence violates the multiple pun-
ishment prohibition of the double jeopardy clause
because, at the time of resentencing, he ‘‘had fully
served his sentences for each count of his conviction
with the exception of the illegally imposed special
parole portion of his sentence for sexual assault in the
second degree.’’ The defendant maintains that, ‘‘[w]hile
courts are free to restructure sentencing packages
under an aggregate theory without offending the multi-
ple punishment principles of double jeopardy, the
exception is that the overall sentence must not be
expired. In this case, the defendant had already served
the entirety of the legal portion of his definite sentence.’’
(Emphasis in original; footnote omitted.) Accordingly,
the defendant maintains that ‘‘[e]liminating the unlawful
period of special parole is the only appropriate remedy
in this case . . . .’’ We disagree with the defendant.
We first set forth our standard of review and applica-
ble legal principles. ‘‘[C]aims of double jeopardy involv-
ing multiple punishments present a question of law to
which we afford plenary review. . . . The fifth amend-
ment to the United States constitution provides in rele-
vant part: No person shall . . . be subject for the same
offense to be twice put in jeopardy of life or limb . . . .8
The double jeopardy clause of the fifth amendment is
made applicable to the states through the due process
clause of the fourteenth amendment. . . .
‘‘We have recognized that the [d]ouble [j]eopardy
[c]lause consists of several protections: It protects
against a second prosecution for the same offense after
acquittal. It protects against a second prosecution for
the same offense after conviction. And it protects
against multiple punishments for the same offense. . . .
It is the third protection that is implicated in this appeal.
‘‘It is well established that resentencing a defendant
does not trigger double jeopardy concerns when the
original sentence was illegal or erroneous. . . . Jeop-
ardy does not attach until the avenues for challenging
the validity of a sentence have been exhausted, and,
therefore, resentencing has repeatedly been held not
to involve double jeopardy when the first sentence was,
for some reason, erroneous or inconclusive. . . . Sen-
tencing should not be a game in which a wrong move
by the judge means immunity for the prisoner. . . .
‘‘In the specific context of a remand for resentencing
when a defendant successfully challenges one portion
of a sentencing package, the United States Supreme
Court has held that a trial court may resentence a defen-
dant on his conviction of the other crimes without
offending the double jeopardy clause of the United
States constitution. . . . Indeed, the resentencing
court is free to restructure the defendant’s entire sen-
tencing package, even for those components assigned
to convictions that have been fully served, as long as
the overall term has not expired, without offending
double jeopardy.’’ (Citations omitted; footnote added;
internal quotation marks omitted.) State v. Tabone, 292
Conn. 417, 439–41, 973 A.2d 74 (2009).
In State v. Tabone, supra, 292 Conn. 421, the defen-
dant, pursuant to a plea agreement, pleaded guilty under
the Alford doctrine to sexual assault in the second
degree, sexual assault in the third degree, and risk of
injury to a child. The defendant was sentenced to a
total effective sentence of ten years of imprisonment
followed by ten years of special parole. Id., 422. The
defendant filed a motion to correct his sentence for
sexual assault in the second degree, which sentence
was ten years of imprisonment followed by ten years
of special parole. Id. The court denied his motion. Id.,
424. On appeal, our Supreme Court concluded that the
defendant’s sentence violated § 54-128 (c), in that it
exceeded the maximum term of imprisonment author-
ized for sexual assault in the second degree. Id. The
court remanded the matter for resentencing in accor-
dance with State v. Raucci, 21 Conn. App. 557, 575 A.2d
234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990),
and State v. Miranda, 260 Conn. 93, 127–30, 794 A.2d
506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L.
Ed. 2d 175 (2002). State v. Tabone, supra, 292 Conn. 424.
On remand in Tabone, the trial court ‘‘first recognized
that State v. Raucci, supra, 21 Conn. App. 557, and State
v. Miranda, supra, 260 Conn. 93, were applicable to
the defendant’s sentence, and therefore, [our Supreme
Court] had authorized it to impose a sentence closely
approximating the defendant’s original sentence, which
had included a period of supervised release by way
of special parole, provided that it did not exceed the
parameters imposed by the original sentence. . . .
[T]he trial court imposed a total effective sentence of
twenty years incarceration, execution suspended after
ten years, with ten years of probation.9 Specifically,
the defendant was sentenced as follows: (1) for sexual
assault in the second degree, ten years incarceration;
(2) for sexual assault in the third degree, five years
incarceration, execution suspended, with ten years of
probation, to run consecutively to count one; (3) for risk
of injury to a child, five years incarceration, execution
suspended, with ten years of probation, to run consecu-
tively to counts one and two.’’ (Footnote added and
footnote omitted.) State v. Tabone, supra, 292 Conn.
425–26.
On appeal after remand, the defendant claimed that
his new sentence was illegal ‘‘because the ten year
period of probation unconstitutionally enlarged his orig-
inal sentence in violation of his due process rights under
the federal and state constitutions.’’ Id., 426. He argued
that, ‘‘because the terms of incarceration following vio-
lations of probation and special parole are calculated
differently, he could be exposed to a significantly longer
period of incarceration from a probation violation than
from a violation of special parole, thereby exceeding
the confines of his original sentence.’’ Id.
Our Supreme Court in State v. Tabone, supra, 292
Conn. 427, first set forth legal principles applicable to
a remand for resentencing in a case involving multiple
convictions. It stated: ‘‘[T]he trial court is limited by
the confines of the original sentence in accordance
with the aggregate package theory set forth in State v.
Raucci, supra, 21 Conn. App. 563, and later adopted by
[our Supreme Court] in State v. Miranda, supra, 260
Conn. 129–30. In Miranda, this court recognized that
the defendant, in appealing his conviction and punish-
ment, has voluntarily called into play the validity of the
entire sentencing package, and, thus, the proper remedy
is to vacate it in its entirety. More significantly, the
original sentencing court is viewed as having imposed
individual sentences merely as component parts or
building blocks of a larger total punishment for the
aggregate convictions and, thus, to invalidate any part
of that package without allowing the court thereafter
to review and revise the remaining valid convictions
would frustrate the court’s sentencing intent. . . .
Accordingly, the [resentencing] court’s power under
these circumstances is limited by its original sentencing
intent as expressed by the original total effective sen-
tence . . . . It may, therefore, simply eliminate the
sentence previously imposed for the vacated convic-
tion, and leave the other sentences intact; or it may
reconstruct the sentencing package so as to reach a
total effective sentence that is less than the original
sentence but more than that effected by the simple
elimination of the sentence for the vacated conviction.
The guiding principle is that the court may resentence
the defendant to achieve a rational, coherent [sentence]
in light of the remaining convictions, as long as the
revised total effective sentence does not exceed the
original.’’ (Citations omitted; internal quotation marks
omitted.) State v. Tabone, supra, 292 Conn. 427–28.
Applying these principles, our Supreme Court deter-
mined that the trial court’s substitution of a period of
probation for the period of special parole originally
imposed exceeded the defendant’s original sentence10
and, therefore, violated his due process rights. Id., 428–
31. Accordingly, it remanded the case for resentencing
in accordance with the aggregate package theory. Id.,
431.
The court next turned to the defendant’s claim that
the resentencing on his convictions for sexual assault
in the third degree and risk of injury to a child violated
the guarantee against double jeopardy under the United
States and Connecticut constitutions. Id., 438–39. Spe-
cifically, he argued that, because he had been sentenced
to five years of incarceration, execution suspended, and
five years of special parole on each of those counts, to
be served concurrently, he had served those sentences
prior to resentencing. Id., 439. As argued by the defen-
dant, because his new sentence included components
related to the conviction on those counts, his double
jeopardy rights against multiple punishments were vio-
lated. Id.
The court in Tabone rejected the defendant’s argu-
ment, determining that ‘‘[t]he fact that certain compo-
nent parts of the total sentence had ‘expired’ [was]
irrelevant.’’ Id., 442. It concluded that the ‘‘trial court
was free to refashion the entire sentence for each of
the crimes within the confines of the original package
without violating double jeopardy, as long as the entire
sentence had not been fully served.’’ Id. The court fur-
ther explained that, because ‘‘the defendant’s sentences
all had been vacated as a result of his successful chal-
lenges to them . . . [r]esentencing . . . did nothing
more than place the defendant in the same position he
originally had occupied when he entered his guilty
plea.’’ (Citation omitted; internal quotation marks omit-
ted.) Id.
In the present case, the defendant recognizes that,
pursuant to State v. Tabone, supra, 292 Conn. 441, a
court may restructure a sentencing package, even
where component parts of the sentence had expired,
without violating double jeopardy principles. He con-
tends, however, that the overall sentence in the present
case has expired because all that remained was the
‘‘illegal’’ portion of his sentence. His argument rests on
a bifurcation of the legal portion of his sentence from
the illegal term of special parole. He has not, however,
provided this court with any authority suggesting that
we must view his total effective sentence in a bifurcated
manner. Although in State v. Tabone, supra, 292 Conn.
442, the lawful portion of the defendant’s sentence had
not expired, we disagree that this factual distinction
renders Tabone’s guidance inapplicable to the pres-
ent case.11
The following additional considerations support our
conclusion that the defendant’s resentencing did not
violate double jeopardy principles. First, the sentence
that the court sought to approximate was a sentence
to which the defendant had agreed. Second, as con-
ceded by the defendant’s counsel during oral argument
before this court, the trial court at the time of the defen-
dant’s sentencing in 2003, lawfully could have imposed
a total effective sentence of nine years of incarceration
followed by twenty-five years of special parole. In other
words, there was a possible sentencing structure by
which the defendant lawfully could have received the
sentence to which he agreed in 2003, and that the court
ultimately imposed during his resentencing in 2019.
Thus, in resentencing the defendant to the same total
effective sentence to which he originally agreed, the
court did nothing more than ‘‘place the defendant in
the same position he originally had occupied when he
entered his guilty plea.’’ See id.Furthermore, we consider whether the defendant
acquired a legitimate expectation of finality in his sen-
tence, a concept underlying double jeopardy concerns.
See United States v. Triestman, 178 F.3d 624, 630 (2d
Cir. 1999) (‘‘[t]he [d]ouble [j]eopardy [c]lause generally
prohibits courts from enhancing a defendant’s sentence
once the defendant has developed a legitimate expecta-
tion of finality in the original sentence’’ (internal quota-
tion marks omitted)). The collective facts of the present
case suggest that the defendant did not attain an expec-
tation of finality in his sentence. At the time of his
resentencing, he was still serving his original sen-
tence—a sentence to which he had agreed. Additionally,
the defendant’s exercise of his right to file a motion to
correct his sentence undermines any argument as to
an expectation of finality in the sentence originally
imposed. See State v. LaFleur, 156 Conn. App. 289, 310,
113 A.3d 472 (defendant’s exercise of right to appeal
undermined argument of expectation of finality in sen-
tence originally imposed), cert. denied, 317 Conn. 906,
114 A.3d 1221 (2015). The defendant was successful in
undermining a portion of his sentencing package, and
the legal consequence of doing so resulted in a resen-
tencing proceeding at which his sentence was restruc-
tured in accordance with the defendant’s plea agree-
ment and the 2003 court’s sentencing intent as
expressed by the original total effective sentence.
Accordingly, we conclude that because the defen-
dant’s overall sentence had not expired, the court was
permitted to restructure the entire sentencing package
and, thus, the resentencing in the present case did not
violate the defendant’s right against double jeopardy.
II
The defendant’s second claim on appeal, which is
closely related to his first claim, is that the trial court
had the jurisdiction ‘‘to correct the [defendant’s] illegal
sentence’’ but that it ‘‘lacked jurisdiction to restructure
and impose a new sentence because the lawful portion
of the defendant’s sentence had been fully served.’’ Spe-
cifically, he argues that ‘‘[t]here is nothing remaining
of the lawfully imposed sentence to restructure, and,
therefore, there is no basis for the court to retain juris-
diction.’’ He argues that the ‘‘only remedy available to
the court due to jurisdictional issues is to vacate the
defendant’s twenty-five year period of special parole
while leaving the remainder of the original sentence
intact.’’ The state responds that, ‘‘in light of the fact
that his overall agreed upon sentence, including the
period of special parole, had not expired, the defendant
himself invoked the jurisdiction of the trial court by
filing a motion to correct an illegal sentence. Once the
trial court granted that motion, because the defendant’s
entire sentence had not expired, it retained jurisdiction
to resentence the defendant, on every offense to which
he had pleaded guilty . . . .’’ (Emphasis omitted.) We
agree with the state.
We first set forth our standard of review and applica-
ble legal principles. ‘‘The issue of whether a defendant’s
claim may be brought by way of a motion to correct
an illegal sentence, pursuant to Practice Book § 43-22,
involves a determination of the trial court’s subject
matter jurisdiction and, as such, presents a question of
law over which our review is plenary. . . .
‘‘The Superior Court is a constitutional court of gen-
eral jurisdiction. In the absence of statutory or constitu-
tional provisions, the limits of its jurisdiction are deline-
ated by the common law. . . . It is well established
that under the common law a trial court has the discre-
tionary power to modify or vacate a criminal judgment
before the sentence has been executed. . . . This is so
because the court loses jurisdiction over the case when
the defendant is committed to the custody of the [C]om-
missioner of [C]orrection and begins serving the sen-
tence. . . . Because it is well established that the juris-
diction of the trial court terminates once a defendant
has been sentenced, a trial court may no longer take
any action affecting a defendant’s sentence unless it
expressly has been authorized to act.’’ (Citation omit-
ted; footnote omitted; internal quotation marks omit-
ted.) State v. Vivo, 197 Conn. App. 363, 368–69, 231 A.3d
1255 (2020).
‘‘Although the [trial] court loses jurisdiction over [a]
case when [a] defendant is committed to the custody of
the [C]ommissioner of [C]orrection and begins serving
[his] sentence . . . [Practice Book] § 43-22 embodies
a common-law exception that permits the trial court to
correct an illegal sentence or other illegal disposition.
. . . Thus, if the defendant cannot demonstrate that
his motion to correct falls within the purview of § 43-
22, the court lacks jurisdiction to entertain it. . . . [I]n
order for the court to have jurisdiction over a motion
to correct an illegal sentence after the sentence has
been executed, the sentencing proceeding [itself] . . .
must be the subject of the attack. . . .
‘‘Connecticut courts have considered four categories
of claims pursuant to [Practice Book] § 43-22. The first
category has addressed whether the sentence was
within the permissible range for the crimes charged.
. . . The second category has considered violations of
the prohibition against double jeopardy. . . . The third
category has involved claims pertaining to the computa-
tion of the length of the sentence and the question of
consecutive or concurrent prison time. . . . The fourth
category has involved questions as to which sentencing
statute was applicable. . . . [I]f a defendant’s claim
falls within one of these four categories the trial court
has jurisdiction to modify a sentence after it has com-
menced. . . . If the claim is not within one of these
categories, then the court must dismiss the claim for a
lack of jurisdiction and not consider its merits.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. St. Louis, 146 Conn. App. 461, 466–67, 76 A.3d 753,
cert. denied, 310 Conn. 961, 82 A.3d 628 (2013).
The defendant relies on two cases in support of his
claim that the court lacked jurisdiction to restructure
and impose a new sentence.12 In State v. Reid, 277 Conn.
764, 771, 894 A.2d 963 (2006), the defendant filed a
motion to withdraw his guilty plea, alleging, inter alia,
violations of his right to due process. Noting that at
the time he filed the motion to withdraw his plea, the
defendant had not only begun serving his sentence but
had completed it and been released, our Supreme Court
concluded that the trial court lacked jurisdiction to hear
and adjudicate the defendant’s motion to withdraw his
guilty plea. Id., 775–76. Similarly, State v. DeVivo, 106
Conn. App. 641, 643–44, 942 A.2d 1066 (2008), involved
a defendant’s motion to vacate his guilty plea, which
was filed following the completion of his sentence and
probation. This court concluded that the trial court
properly determined that it lacked jurisdiction to con-
sider the merits of the defendant’s motion. Id., 648.
Reid and DeVivo are distinguishable from the present
case, in that both involved motions to withdraw guilty
pleas. Pursuant to Practice Book § 39-26, ‘‘[a] defendant
may not withdraw his or her guilty plea after the conclu-
sion of the proceeding at which the sentence was
imposed.’’ Thus, our Supreme Court concluded in Reid
that, ‘‘in the absence of a legislative or constitutional
grant of continuing jurisdiction, the trial court lost juris-
diction . . . when the defendant was taken in execu-
tion of his sentence and transferred to the custody
of the [C]ommissioner of [C]orrection.’’ State v. Reid,
supra, 277 Conn. 774. Accordingly, for purposes of
determining whether the trial court had jurisdiction
over the motion to withdraw his plea, the determinative
time frame was when the defendant was taken in execu-
tion of his sentence. See id., 775. As noted previously,
Practice Book § 43-22 ‘‘embodies a common-law excep-
tion that permits the trial court to correct an illegal
sentence or other illegal disposition.’’ (Internal quota-
tion marks omitted.) State v. St. Louis, supra, 146 Conn.
App. 466. Accordingly, the defendant’s reliance on Reid
and DeVivo, neither of which involves a motion to cor-
rect an illegal sentence pursuant to Practice Book § 43-
22, is misplaced.
The defendant’s jurisdictional claim, like his double
jeopardy claim, is premised on his attempt to partition
his sentence between the legal and illegal portions. In
support of this claim, he again argues that, because the
lawful portion of his sentence ‘‘has been fully served,’’
the court lacked jurisdiction to restructure and impose
a new sentence. In part I of this opinion, we rejected
the defendant’s bifurcated view of his sentence and
observed that the original total effective sentence had
not expired at the time he was resentenced. Accord-
ingly, we conclude that, once the defendant invoked
the jurisdiction of the court by filing a motion to correct
his sentence, the trial court had jurisdiction to resen-
tence the defendant.
III
The defendant’s third claim on appeal is that the
newly imposed sentence violated his due process rights
under the federal and state constitutions when, ‘‘after
the expiration of the lawful portion of his sentence, the
court impose[d] a sentence calling for a more severe
penalty on several counts.’’ We disagree.
‘‘[W]hen a case involving multiple convictions is
remanded for resentencing, the trial court is limited by
the confines of the original sentence in accordance with
the aggregate package theory . . . . The guiding prin-
ciple is that the court may resentence the defendant to
achieve a rational, coherent [sentence] in light of the
remaining convictions, as long as the revised total effec-
tive sentence does not exceed the original.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Tabone, supra, 292 Conn. 427–28; see also State v. Cren-
shaw, 172 Conn. App. 526, 530, 161 A.3d 638 (‘‘[u]nder
the aggregate package theory, when a multicount con-
viction is remanded after one or more of the convictions
has been vacated on appeal, the trial court may increase
individual sentences on the surviving counts as long as
the original total effective sentence is not exceeded’’),
cert. denied, 326 Conn. 911, 165 A.3d 1252 (2017). ‘‘On
appeal, [t]he determination of whether the defendant’s
new sentence exceeds his original sentence is a ques-
tion of law over which . . . review is plenary.’’ (Inter-
nal quotation marks omitted.) State v. Wade, 297 Conn.
262, 269, 998 A.2d 1114 (2010); see also State v. Tabone,
supra, 292 Conn. 428.
The defendant argues the following in support of
his claim that his new sentence is more severe: ‘‘In
resentencing the defendant to a period of three years
of incarceration, followed by eleven years of special
parole for promoting a minor in an obscene perfor-
mance, the court effectively increased that sentence
from nine years to fourteen years. Likewise, in resen-
tencing the defendant on each count of risk of injury
to a minor from nine years of incarceration to three
years of incarceration, followed by seven years of spe-
cial parole, the court effectively increased the defen-
dant’s sentences from nine years each to ten years each.
Finally, the defendant’s sentence for cruelty to persons
was increased from one year to five years of incarcera-
tion.’’
The primary authority relied on by the defendant in
support of his due process claim, State v. Pecor, 179
Conn. App. 864, 877–78, 181 A.3d 584 (2018), does not
advance his argument. In Pecor, the defendant pleaded
guilty under the Alford doctrine to robbery in the second
degree and was sentenced to two years of incarceration
followed by eight years of special parole. Id., 867. The
defendant filed a motion to correct an illegal sentence,
and the court resentenced him on that single conviction
to 2 years and 1 day of incarceration followed by 7
years and 364 days of special parole. Id., 868. No appeal
was taken from the court’s judgment. Approximately
sixteen months following his resentencing, the defen-
dant filed a second motion to correct an illegal sentence.
Id., 869. The court determined that the second motion
was an attempt to collaterally attack the prior judgment
in which it had resentenced the defendant. Id., 870. The
court dismissed the motion on the basis that it lacked
subject matter jurisdiction. Id.
On appeal, this court in Pecor determined that the
trial court improperly concluded that it lacked jurisdic-
tion over the motion to correct. Id., 872–73. The defen-
dant requested that this court address the merits of his
motion to correct an illegal sentence and remand the
case with direction to resentence him to the original
sentence of two years of incarceration, which he had
already served, and eliminate the special parole portion
of the sentence. Id., 876. This court concluded that
there existed an insufficient factual record to determine
whether the defendant’s due process rights were vio-
lated, and it remanded the matter for a hearing on the
merits of the defendant’s motion to correct an illegal
sentence. Id., 878. This court in Pecor did not reach
the merits of the defendant’s claim that the court, in
resentencing him, had violated his constitutional right
against double jeopardy by sentencing him to an addi-
tional day of incarceration after he had completed his
definite sentence of two years of incarceration. It did
note, however, that it had ‘‘serious concerns about a
purportedly corrective sentence that increased the
defendant’s period of incarceration, even if only by one
day.’’ Id.
The facts of Pecor are distinguishable from the pres-
ent case, in that the defendant in Pecor presented a
claim that he had been resentenced to an additional
day of incarceration following his release from custody.
The relevant guidance from Pecor is this court’s recogni-
tion of the principle that ‘‘a defendant’s due process
rights are not violated when the court corrects an illegal
sentence, so long as the new sentence is not more
severe than the original sentence.’’ Id., 877–78. In the
related context of claims of vindictiveness following
resentencing, ‘‘[f]or purposes of evaluating whether a
second sentence is more severe than an original sen-
tence, [North Carolina v. Pearce, 395 U.S. 711, 89 S.
Ct. 2072, 23 L. Ed. 2d 656 (1969)] and its progeny consis-
tently equate a more severe sentence with either a
longer term of imprisonment or a longer combined sen-
tence.’’ (Internal quotation marks omitted.) State v.
LaFleur, supra, 156 Conn. App. 307.
The defendant in the present case was not subjected
to a longer term of imprisonment or a longer combined
sentence. Rather, he was resentenced to the same total
effective sentence. Accordingly, we conclude that the
defendant’s resentencing did not violate his due pro-
cess rights.
IV
Finally, we address the parties’ agreement that the
court’s imposition of an eleven year period of special
parole on the charge of promoting a minor in an obscene
performance exceeds the ten year special parole limita-
tion set forth in § 54-125e (c). Although this specific
illegality was not identified in the defendant’s principal
brief on appeal, the state brought the issue to this court’s
attention in its brief. In the defendant’s reply brief, he
argues that ‘‘this court does have the authority to cor-
rect the second illegality based on the defendant’s
eleven year period of special parole for promoting a
minor [in an obscene performance], which can only
carry a ten year period of special parole.’’ The issue was
further discussed at oral argument before this court.
This court has previously stated that ‘‘[b]oth the trial
court, and this court, on appeal, have the power, at any
time, to correct a sentence that is illegal. . . . [T]he
issue is one of law, and we afford it plenary review.’’
(Internal quotation marks omitted.) State v. Pecor,
supra, 179 Conn. App. 871. Section 54-125e (c) provides
in relevant part that ‘‘[t]he period of special parole shall
be not less than one year or more than ten years
. . . .’’13 Although § 54-125e (c) contains several excep-
tions to the ten year special parole maximum, the state
concedes that none is applicable to the present case
and, therefore, that the court’s imposition of an eleven
year period of special parole is illegal. We agree with
the parties that the defendant’s sentence violates § 54-
125e (c) because the length of the term of special parole
imposed on the charge of promoting a minor in an
obscene performance exceeds the maximum term
authorized under § 54-125e (c). See State v. Brown, 310
Conn. 693, 710, 80 A.3d 878 (2013) (concluding that, in
enacting § 54-125e (c), legislature ‘‘clearly intended to
provide the trial court with the authority to impose a
sentence of up to ten years of special parole for each
offense for which a defendant is convicted’’). For that
reason, the sentence imposed by the court as to that
offense is illegal. See State v. Tabone, supra, 292 Conn.
426–27 (illegal sentence is one that exceeds relevant
statutory maximum limits). Accordingly, we reverse the
judgment of the trial court. We remand the case for
resentencing in accordance with the aggregate package
theory under State v. Raucci, supra, 21 Conn. App. 557,
and State v. Miranda, supra, 260 Conn. 93. See State
v. Tabone, supra, 292 Conn. 431.
The judgment is reversed and the case is remanded
for resentencing according to law.
In this opinion the other judges concurred.
1
The fifth amendment to the United States constitution provides in rele-
vant part: ‘‘No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a [g]rand [j]ury
. . . nor shall any person be subject for the same offense to be twice put
in jeopardy of life or limb; nor shall be compelled in any criminal case to
be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law . . . .’’ ‘‘Although the Connecticut constitution
has no specific double jeopardy provision, we have held that the due process
guarantees of article first, § 9, include protection against double jeopardy.’’
(Internal quotation marks omitted.) State v. Tabone, 292 Conn. 417, 421 n.6,
973 A.2d 74 (2009). Article first, § 9, of the Connecticut constitution provides:
‘‘No person shall be arrested, detained or punished, except in cases clearly
warranted by law.’’
2
‘‘Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970), a criminal defendant is not required to admit his guilt . . .
but consents to being punished as if he were guilty to avoid the risk of
proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial
oxymoron in that the defendant does not admit guilt but acknowledges that
the state’s evidence against him is so strong that he is prepared to accept
the entry of a guilty plea nevertheless.’’ (Internal quotation marks omitted.)
State v. Tabone, 292 Conn. 417, 421 n.7, 973 A.2d 74 (2009).
3
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.’’
4
General Statutes (Rev. to 2001) § 53a-71 provides in relevant part: ‘‘(a)
A person is guilty of sexual assault in the second degree when such person
engages in sexual intercourse with another person and: (1) Such other
person is thirteen years of age or older but under sixteen years of age and
the actor is more than two years older than such person . . . .
‘‘(b) Sexual assault in the second degree is a class C felony or, if the
victim of the offense is under sixteen years of age, a class B felony, and
any person found guilty under this section shall be sentenced to a term of
imprisonment of which nine months of the sentence imposed may not be
suspended or reduced by the court.’’
Although the transcript indicates that the trial court, in resentencing the
defendant, referred to the offense of sexual assault in the second degree
as a class D felony, the parties agree and the record reveals that the offense
was a class B felony because the victim was under sixteen years of age.
General Statutes § 53a-35a provides in relevant part: ‘‘For any felony commit-
ted on or after July 1, 1981, the sentence of imprisonment shall be a definite
sentence and, unless the section of the general statutes that defines or
provides the penalty for the crime specifically provides otherwise, the term
shall be fixed by the court as follows . . . (6) For a class B felony other
than manslaughter in the first degree with a firearm under section 53a-55a,
a term not less than one year nor more than twenty years . . . .’’
5
General Statutes § 54-128 (c) provides: ‘‘Any person who, during the
service of a period of special parole imposed in accordance with subdivision
(9) of subsection (b) of section 53a-28, has been returned to any institution
of the Department of Correction for violation of such person’s parole, may
be retained in a correctional institution for a period equal to the unexpired
portion of the period of special parole. The total length of the term of
incarceration and term of special parole combined shall not exceed the
maximum sentence of incarceration authorized for the offense for which
the person was convicted.’’ (Emphasis added.) Although § 54-128 (c) was
the subject of amendments in 2004; see Public Acts 2004, No. 04-234, § 8;
Public Acts 2004, No. 04-257, §§84, 124; those amendments have no bearing
on the merits of this appeal. In the interest of simplicity, we refer to the
current revision of the statute.
6
‘‘Under the aggregate package theory, when a multicount conviction is
remanded after one or more of the convictions have been vacated on appeal,
the trial court may increase individual sentences on the surviving counts
as long as the total effective sentence is not exceeded.’’ State v. Wade, 297
Conn. 262, 268, 998 A.2d 1114 (2010).
7
General Statutes § 54-125e (a) applies to ‘‘[a]ny person convicted of a
crime committed on or after October 1, 1998, who received a definite sen-
tence of more than two years followed by a period of special parole . . . .’’
Although § 54-125e (a) was the subject of amendments in 2004; see Public
Acts 2004, No. 04-234, § 5; those amendments have no bearing on the merits
of this appeal. In the interest of simplicity, we refer to the current revision
of the statute.
8
The defendant’s double jeopardy claim also was brought pursuant to
the protection afforded under our state constitution. ‘‘That protection is
coextensive with that provided by the constitution of the United States.’’
(Internal quotation marks omitted.) State v. Adams, 186 Conn. App. 84, 87
n.3, 198 A.3d 691 (2018).
9
The trial court on remand concluded that ‘‘it could not impose special
parole because the minimum ten year special parole period had been deter-
mined to be illegal by [our Supreme Court]. The trial court discussed proba-
tion as an alternate form of supervised release but expressed the concern
that a violation of probation could expose the defendant to incarceration
for the full term of his suspended sentence, even on the last day of probation,
thereby enlarging his sentence, whereas a violation of special parole would
have exposed him to incarceration only for the remainder of the special
parole period. To address this concern, State’s Attorney John A. Connelly
submitted a written agreement to the court under which he committed that,
if the court were to sentence the defendant to a term of probation instead
of special parole and the defendant thereafter violated his probation, the
state would seek incarceration only for the remainder of the probationary
period, rather than the full term of the suspended sentence.’’ State v. Tabone,
supra, 292 Conn. 425. The court relied on this agreement in resentencing
the defendant. Id., 425–26.
10
The court explained: ‘‘Pursuant to § 54-128 (c), when a defendant violates
special parole, he is subject to incarceration only for a period equal to the
unexpired portion of the period of special parole. Thus, for a violation that
occurs on the final day of the defendant’s special parole term, the defendant
would be exposed to one day of incarceration. Special parole, therefore,
exposes a defendant to a decreasing period of incarceration as the term of
special parole is served. On the other hand, when a defendant violates his
probation, the court may revoke his probation, and if revoked, the court
shall require the defendant to serve the sentence imposed or impose any
lesser sentence. . . . Accordingly, if the defendant in the present case were
to violate his probation on the final day of his ten year term, he would be
exposed to the full suspended sentence of ten years incarceration. Thus, in
contrast to a term of special parole, the defendant is exposed to incarceration
for the full length of the suspended sentence, with no decrease in exposure
as the probationary period is served, for the entirety of the probationary
period. We conclude, therefore, that the substitution of probation for special
parole effectively has enlarged the defendant’s sentence by exposing him
to incarceration for an additional ten year period in violation of his due
process rights.’’ (Citation omitted; footnotes omitted; internal quotation
marks omitted.) State v. Tabone, supra, 292 Conn. 429–30.
11
The defendant argues that, because he had fully served his nine year
term of incarceration for promoting a minor in an obscene performance,
the new sentence of three years of incarceration followed by eleven years
of special parole constitutes a second punishment. Similarly, with respect
to both of his nine year terms of incarceration for the two charges of risk
of injury to a child, he contends that the new sentence of three years of
incarceration followed by seven years of special parole constitutes a second
penalty. Lastly, with respect to his one year term of incarceration for cruelty
to persons, he contends that the new sentence of five years of incarceration
is a second punishment. Having rejected the defendant’s argument that his
‘‘overall sentence ha[s] expired,’’ we likewise reject the defendant’s argument
that the new sentences on the completed component parts of his total
sentence violate double jeopardy. See State v. Tabone, supra, 292 Conn. 442.
In his reply brief, the defendant raises for the first time an argument that
‘‘[t]he longer periods of incarceration the defendant served for promoting
a minor and the two counts of risk of injury affected his Department of
Correction [department] classification, and, as a policy matter, may have
impacted the functional length of his sentence. [Department] classification
can affect location of confinement, security level for confinement, access
to treatment and programs, employment within [the department], and impact
overall length of incarceration due to factors such as suitability for commu-
nity release, discretionary parole, and ability to earn risk reduction
earned credits.’’
It is a well established principle that ‘‘arguments cannot be raised for the
first time in a reply brief.’’ (Internal quotation marks omitted.) State v. Myers,
178 Conn. App. 102, 106, 174 A.3d 197 (2017). Accordingly, we decline to
address this argument. See State v. Jarmon, 195 Conn. App. 262, 277, 224
A.3d 163, cert. denied, 334 Conn. 925, 223 A.3d 379 (2020).
12
The defendant briefly suggests that ‘‘[c]ourts similarly lack jurisdiction
in the context of a habeas [action] once a sentence has been fully served.’’
The state responds that, ‘‘[n]ot only does the defendant overlook that our
state habeas corpus jurisprudence addresses a distinct avenue of collateral
attack on convictions, but he fails to provide a supportive analysis as to
the applicability of habeas case law to his claim on appeal from the ruling
on a motion to correct an illegal sentence.’’
‘‘We repeatedly have stated that [w]e are not required to review issues
that have been improperly presented to this court through an inadequate
brief. . . . Analysis, rather than mere abstract assertion, is required in order
to avoid abandoning an issue by failure to brief the issue properly. . . .
[F]or this court judiciously and efficiently to consider claims of error raised
on appeal . . . the parties must clearly and fully set forth their arguments
in their briefs. . . . The parties may not merely cite a legal principle without
analyzing the relationship between the facts of the case and the law cited.’’
(Citation omitted; internal quotation marks omitted.) State v. Buhl, 321
Conn. 688, 724, 138 A.3d 868 (2016). The defendant wholly fails to analyze
the relationship between the jurisdiction of a habeas court and the facts of
the present case. Accordingly, we decline to review this issue.
13
Although § 54-125e (c) was the subject of amendments in 2005, 2015,
and 2019; see Public Acts 2005, No. 05-288, § 188; Public Acts 2015, No. 15-
2, § 20; Public Acts 2019, No. 19-189, § 34; those amendments have no bearing
on the merits of this appeal. In the interest of simplicity, we refer to the
current revision of the statute.