State v. Thompson , 190 Conn. App. 660 ( 2019 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. EARL V. THOMPSON
(AC 41780)
DiPentima, C. J., and Lavine and Bishop, Js.
Syllabus
The defendant, who had been convicted of the crimes of conspiracy to
commit robbery in the first degree, robbery in the first degree and
kidnapping in the first degree, appealed to this court from the trial
court’s dismissal of his motion to correct an illegal sentence. In his
operative motion, he alleged that his conviction of conspiracy to commit
robbery in the first degree should be vacated because the state failed
to present sufficient evidence that a plan existed between the defendant
and his codefendant to threaten the victim with a gun after they gained
entry into the victim’s home, or showing that he intentionally aided his
codefendant in the commission of the crime of robbery in the first
degree. On appeal, the defendant claimed that the court improperly
concluded that it lacked jurisdiction to consider the claim raised in his
motion. Held that the trial court properly dismissed the defendant’s
motion to correct an illegal sentence; for that court to have jurisdiction
over the motion to correct an illegal sentence after the sentence has
been executed, the sentencing proceeding, and not the proceedings
leading to the conviction, had to be the subject of the attack, and the
defendant’s claim here that the state did not present sufficient evidence
to support his conviction of conspiracy to commit robbery in the first
degree constituted a collateral attack on the validity of his conviction,
via a sufficiency of the evidence claim, and did not challenge the legality
of the sentence or the manner in which it was imposed.
Argued April 8—officially released June 18, 2019
Procedural History
Substitute information charging the defendant with
the crimes of conspiracy to commit robbery in the first
degree, robbery in the first degree, burglary in the first
degree and kidnapping in the first degree as an acces-
sory, brought to the Superior Court in the judicial dis-
trict of Hartford and tried to the jury before Dewey, J.;
thereafter, the court granted the defendant’s motion for
a judgment of acquittal as to the charge of burglary in
the first degree; verdict of guilty of conspiracy to com-
mit robbery in the first degree, robbery in the first
degree and kidnapping in the first degree; subsequently,
the court denied the defendant’s motion for a new trial
and rendered judgment in accordance with the verdict,
from which the defendant appealed to this court, which
affirmed the judgment; thereafter, the court, Dewey, J.,
dismissed the defendant’s motion to correct an illegal
sentence, and the defendant appealed to this court.
Affirmed.
Mark Diamond, assigned counsel, for the appellant
(defendant).
Rita M. Shair, senior assistant state’s attorney, with
whom were Gail P. Hardy, state’s attorney, and, on
the brief, David L. Zagaja, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Earl V. Thompson,
appeals from the judgment of the trial court dismissing
his motion to correct an illegal sentence. In this appeal,
the defendant claims that the trial court improperly
concluded that it lacked subject matter jurisdiction to
consider his motion. We conclude that, in the motion
to correct considered by the trial court, the defendant
challenged only the validity of his conviction and not
his sentence or the sentencing proceeding, and, there-
fore, the court properly determined that it lacked sub-
ject matter jurisdiction. Accordingly, we affirm the
judgment of the trial court.
The following facts and procedural history are rele-
vant to our discussion. The defendant was convicted,
after a jury trial, of conspiracy to commit robbery in
the first degree in violation of General Statutes §§ 53a-
134 (a) (4) and 53a-48, robbery in the first degree in
violation of § 53a-134 (a) (4) and kidnapping in the first
degree as an accessory in violation of General Statutes
§§ 53a-92 (a) (2) (B) and 53a-8. See State v. Thompson,
128 Conn. App. 296, 298, 17 A.3d 488 (2011), cert. denied,
303 Conn. 928, 36 A.3d 241 (2012). Following his convic-
tion, the court sentenced him to a term of twenty years
incarceration on each of the robbery counts, to run
concurrently, and a term of twenty-five years incarcera-
tion on the kidnapping count, to run consecutively to
the other terms, for a total effective sentence of forty-
five years of incarceration. Id., 300. This court affirmed
the defendant’s conviction on direct appeal.1 Id., 298.
On October 29, 2015, the self-represented defendant
filed a motion to correct an illegal sentence pursuant
to Practice Book § 43-22. He argued that his sentence
was internally contradictory and violated his right
against double jeopardy. The front page of this motion
contains two notations from the court. The first nota-
tion, dated March 31, 2016, states that the motion was
withdrawn. The second notation, dated August 24, 2016,
states that the motion should be placed back on the
docket and that a special public defender would review
the motion to correct an illegal sentence. The self-repre-
sented defendant essentially reasserted the contents of
his motion to correct an illegal sentence in a motion
dated May 6, 2016,2 and captioned ‘‘Motion to reopen
Motion to correct illegal sentence pursuant to Connecti-
cut Practice Book [§] 43-22.’’ This ‘‘motion to reopen’’
included the claims that the defendant’s sentence was
internally contradictory and violated his right against
double jeopardy.
On September 20, 2016, Attorney Robert J. McKay
entered an appearance on behalf of the defendant. On
April 24, 2017, McKay filed a motion to correct an illegal
sentence. In the accompanying memorandum of law,
McKay set forth the following: ‘‘The defendant now
comes and claims that . . . there is a question regard-
ing which statutory provision . . . applied at that time.
Within the current case law, the defendant’s conviction
for conspiracy to commit robbery in the first degree
. . . should be vacated as there existed no facts to
support that there existed a plan between the defendant
and a codefendant to threaten the victim with a gun
upon enter[ing] the victim’s home and/or intentionally
aided the codefendant in committing the offense of
robbery in the first degree.’’3 McKay did not present a
double jeopardy argument in his motion to correct. On
May 25, 2017, the state filed an objection to the motion
to correct an illegal sentenced filed by McKay.
On July 28, 2017, the court dismissed the motion to
correct an illegal sentence filed by McKay. It set forth
the general legal principles regarding a motion to cor-
rect filed pursuant to Practice Book § 43-22. It then
concluded: ‘‘Insofar as the defendant’s motion to cor-
rect constituted a collateral attack on his conviction it
is outside of this court’s jurisdiction. See, e.g., State v.
Starks, 121 Conn. App. 581, 590, 997 A.2d 546 (2010);
State v. Wright, 107 Conn. App. 152, 157–58, 944 A.2d
991, cert. denied, 289 Conn. 933, 958 A.2d 1247 (2008).’’
Furthermore, the last page of the motion to correct an
illegal sentence filed by McKay contains the following
handwritten notation, signed by Judge Dewey: ‘‘[D]is-
missed, see memorandum of decision.’’ This appeal
followed.
We begin by setting forth the relevant legal principles
and our standard of review. ‘‘The Superior Court is
a constitutional court of general jurisdiction. In the
absence of statutory or constitutional provisions, the
limits of its jurisdiction are delineated by the common
law. . . . It is well established that under the common
law a trial court has the discretionary power to modify
or vacate a criminal judgment before the sentence has
been executed. . . . This is so because the court loses
jurisdiction over the case when the defendant is com-
mitted to the custody of the commissioner of correction
and begins serving the sentence. . . . Because it is well
established that the jurisdiction of the trial court termi-
nates once a defendant has been sentenced, a trial court
may no longer take any action affecting a defendant’s
sentence unless it expressly has been authorized to act.
. . . [Practice Book] § 43-22 embodies a common-law
exception that permits the trial court to correct an
illegal sentence or other illegal disposition. . . . Thus,
if the defendant cannot demonstrate that his motion to
correct falls within the purview of § 43-22, the court
lacks jurisdiction to entertain it. . . . [I]n order for the
court to have jurisdiction over a motion to correct an
illegal sentence after the sentence has been executed,
the sentencing proceeding [itself] . . . must be the
subject of the attack.’’ (Emphasis omitted; internal quo-
tation marks omitted.) State v. Mukhtaar, 189 Conn.
App. 144, 148–49, A.3d (2019); see also State
v. Walker, 187 Conn. App. 776, 783–84, 204 A.3d 38,
cert. denied, 331 Conn. 914, 204 A.3d 703 (2019). The
determination of whether a claim may be brought via
a motion to correct an illegal sentence presents a ques-
tion of law over which our review is plenary. State v.
Abraham, 152 Conn. App. 709, 716, 99 A.3d 1258 (2014);
State v. Koslik, 116 Conn. App. 693, 697, 977 A.2d 275,
cert. denied, 293 Conn. 930, 980 A.2d 916 (2009).
‘‘[A]n illegal sentence is essentially one which . . .
exceeds the relevant statutory maximum limits, violates
a defendant’s right against double jeopardy, is ambigu-
ous, 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 consid-
ered violations of the prohibition against double jeop-
ardy. . . . The third category has involved claims
pertaining to the computation of the length of the sen-
tence and the question of consecutive or concurrent
prison time. . . . The fourth category has involved
questions as to which sentencing statute was applica-
ble. . . . Considering these categories . . . this court
[has] held . . . that a challenge to the legality of a
sentence focuses not on what transpired during the trial
or on the underlying conviction. In order for the court
to have jurisdiction over a motion to correct an illegal
sentence after the sentence has been executed, the sen-
tencing proceeding, and not the trial leading to the
conviction, must be the subject of the attack.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) State v. Evans, 329 Conn. 770, 779, 189 A.3d
1184 (2018), cert. denied, U.S. , 139 S. Ct. 1304,
203 L. Ed. 2d 425 (2019). Stated differently, ‘‘the motion
to correct is not another bite at the apple in place of
challenges that are more properly brought on direct
appeal . . . .’’ Id., 781.
In the memorandum in support of the motion to cor-
rect an illegal sentence filed by McKay, the defendant
expressly challenged his conviction for conspiracy to
commit robbery in the first degree. Specifically, he
argued that his conviction for that offense should be
vacated because the state failed to present evidence
that (1) a plan existed between the defendant and the
codefendant to threaten the victim with a gun after
entry into the victim’s home and/or (2) the defendant
intentionally aided the codefendant in the commission
of the crime of robbery in the first degree. Simply stated,
the defendant claims that there was insufficient evi-
dence to support his conviction for conspiracy to com-
mit robbery in the first degree.
The motion filed by McKay was the only one consid-
ered and decided by the court. Thus, the only claim
before the court was whether the state had produced
sufficient evidence to support the defendant’s convic-
tion for conspiracy to commit robbery in the first
degree. In State v. Starks, supra, 121 Conn. App. 590,
this court held that a claim of insufficient evidence
‘‘do[es] not concern the legality of [a defendant’s sen-
tence] or the manner in which it was imposed’’ and
therefore lies outside the court’s jurisdiction in regard
to a motion to correct an illegal sentence. Put differ-
ently, the defendant’s motion constituted a collateral
attack on his conviction and, thus, was not within the
court’s jurisdiction. See, e.g., State v. Koslik, supra, 116
Conn. App. 699. Accordingly, we conclude that the court
properly dismissed the motion to correct an illegal sen-
tence filed by McKay.4
The judgment is affirmed.
In this opinion the other judges concurred.
1
In this court’s decision, we set forth the following facts: ‘‘At approxi-
mately 11:30 p.m. on August 10, 2004, Stephan Julian arrived at her home
in Bloomfield. At that time, her son, Damien Gardner, resided with her but
was not present that night. As Julian entered the house, she was confronted
by a man with a gun. A second man, also armed with a gun, quickly emerged.
Because the faces of both men were covered, Julian could not recognize
them, but she was able to determine that they were both dark skinned
with Jamaican accents. The men repeatedly asked Julian where money was
located in the house and forced her to lie on the floor in a downstairs
bathroom while they searched the house. The men periodically checked on
Julian, and she could hear them going up and down the stairs of her home.
At one point, she heard an upstairs toilet flush. Eventually, when Julian no
longer heard the men in her home, she peeked out of the bathroom and
saw that it was light outside. She exited the bathroom and called the police.
‘‘Detective Eric Kovanda was primarily responsible for processing the
crime scene. In addition to other forensic evidence, Kovanda collected two
urine samples from the rim of the toilet located in one of the upstairs
bathrooms. The DNA profile developed from the urine swabs did not match
any in the existing offender databases. In 2006, two jailhouse informants
identified the defendant as a suspect, and, consequently, on February 11,
2008, the police collected a DNA sample from the defendant for comparison
to the DNA profile developed from the urine samples that had been collected
from the crime scene.
‘‘On February 28, 2008, Kovanda met with the defendant to discuss the
August 11, 2004 incident. The defendant indicated that he knew Julian’s
son, Gardner, and that he had been at their house a week or a few days
prior to August 11, 2004. The defendant was arrested and charged with
conspiracy to commit robbery in the first degree, robbery in the first degree,
burglary in the first degree and kidnapping in the first degree as an acces-
sory. . . .
‘‘At the close of evidence, the state conceded that it had not presented
sufficient evidence to support the burglary charge, and the court granted
the defendant’s motion for a judgment of acquittal as to that charge. The
jury found the defendant guilty of the remaining counts.’’ State v. Thompson,
supra, 128 Conn. App. 298–300.
2
The court’s date stamp on the defendant’s motion to reopen is illegible
and we cannot discern when this motion was received by the trial court.
3
Three days later, during a brief hearing, the following colloquy occurred:
‘‘The Court: Counsel, you have filed a substantial memoranda in support
of the motion.
‘‘[Defense Counsel]: Yes, Your Honor.
‘‘The Court: And at this point, there is nothing left other than for me to
review the allegations—
‘‘[Defense Counsel]: Right.
‘‘The Court: —individually and file my response to that.
‘‘[Defense Counsel]: Yes, Your Honor.
‘‘[The Prosecutor]: Thank you, Your Honor.
‘‘The Court: That is it. So at this point, I have all the papers. I’ll be reviewing
them. I’ll get to the decision as soon as is possible. Thank you.
‘‘[Defense Counsel: Thank you.’’
4
We have reviewed the record, including the court file and the memoran-
dum of decision, and conclude that the motion to correct and the motion
to reopen filed by the self-represented defendant were not before the trial
court. Thus, it never considered or acted upon the double jeopardy claim
raised in those motions. We note that ‘‘[a] violation of a defendant’s right
against double jeopardy is one of the permissible grounds on which to
challenge the legality of a sentence [in a motion to correct an illegal sen-
tence].’’ State v. Santiago, 145 Conn. App. 374, 379, 74 A.3d 571, cert. denied,
310 Conn. 942, 79 A.3d 893 (2013); see also State v. Wade, 178 Conn. App.
459, 466, 175 A.3d 1284 (2017) (defendant properly may raise double jeopardy
claim in context of motion to correct illegal sentence), cert. denied, 327
Conn. 1002, 176 A.3d 1194 (2018).