State v. Skipwith ( 2015 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and 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 repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. JUSTIN SKIPWITH
(AC 37501)
Gruendel, Alvord and Mullins, Js.
Argued April 6—officially released September 1, 2015
(Appeal from Superior Court, judicial district of
Waterbury, Cremins, J. [trial]; Fasano, J. [judgment;
motion to vacate sentence, petition for writ of error
coram nobis].)
Jeffrey D. Brownstein, for the plaintiff in error (Taba-
tha Cornell).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Jason Germain, senior assistant state’s
attorney, for the defendant in error (state).
Opinion
ALVORD, J. The plaintiff in error, Tabatha Cornell,
brings this writ of error from the judgment of the trial
court dismissing her nonparty motion to vacate the
sentence of the defendant, Justin Skipwith, and her
petition for a writ of error coram nobis. In her writ,
she claims that the trial court erred in dismissing (1)
her motion to vacate the defendant’s sentence because
her constitutional rights pursuant to article first, § 8
(b), of the Connecticut constitution were violated, and
(2) her petition for a writ of error coram nobis because
she ‘‘is an aggrieved nonparty who has no other ade-
quate remedy provided by law.’’ We consider these
claims together. We dismiss the writ of error.
The following facts are relevant to the plaintiff in
error’s writ of error. On May 5, 2012, Brianna Washing-
ton, the daughter of the plaintiff in error, was killed
when a vehicle driven by the defendant struck her. Prior
to striking Washington with the vehicle he was driving,
the defendant had been stabbed multiple times. On April
2, 2013, the defendant pleaded nolo contendere to the
charges of manslaughter in the second degree with a
motor vehicle in violation of General Statutes § 53a-56b
(a) and operation of a motor vehicle while under the
influence of liquor in violation of General Statutes § 14-
227a (a) (2). The defendant was sentenced to a term
of imprisonment of ten years, execution suspended
after two years, with three years probation.
Prior to the defendant’s plea, the plaintiff in error
had obtained counsel, Jeffrey D. Brownstein.
Brownstein sent a fax dated October 23, 2012, to Assis-
tant State’s Attorney Donald Therkildsen, advising
Therkildsen that he wanted to be contacted prior to
any offer and disposition in the matter, and notifying
Therkildsen of his opposition to an Alford1 or nolo con-
tendere plea. The victim advocate made several tele-
phone calls to Brownstein. During one of those calls,
she informed him that they had received his letter, and
offered to set up a meeting between the state’s attorney
and Brownstein and his client. The meeting never
occurred because Brownstein was unavailable.
On February 24, 2013, Brownstein was notified that
jury selection for the defendant’s trial would begin on
March 4, 2013. On that date, the plaintiff in error’s son
and a family friend went to court and met with the
successor assistant state’s attorney, who subsequently
had been assigned to the case, and the victim advocate.
Brownstein was not thereafter contacted until April 2,
2013, at which time he was notified that the defendant
had entered into a plea bargain, the terms of which
involved the defendant pleading nolo contendere in
exchange for the previously mentioned sentence.
The plaintiff in error thereafter filed a motion to
vacate the defendant’s sentence and a petition for a
writ of error coram nobis. In her motion and petition,
the plaintiff in error claimed that ‘‘[n]either the victim
nor the undersigned attorney were aware of the time/
date for sentencing and neither the undersigned attor-
ney nor the victim were contacted with any information
concerning the proposed plea disposition,’’ which fail-
ures constituted violations of article first, § 8, of the
constitution of Connecticut, as amended by articles sev-
enteen and twenty-nine of the amendments.2 On May 6,
2013, the court held a hearing, during which Brownstein
argued both the motion and petition. The court also
gave Washington’s family members the opportunity to
speak, and the plaintiff in error and a family friend did
so. The court then rendered its decision, in which it
concluded that it lacked jurisdiction to vacate the defen-
dant’s sentence, as his sentence was not illegal, and
that the ancient common-law remedy of the writ of
error coram nobis was not available to the plaintiff in
error because ‘‘this is a situation whereas clearly cov-
ered by a statute, [General Statutes § 54-223], and cer-
tainly the ancient common law writ of coram nobis
would not trump the statute in place.’’3 Accordingly,
the court dismissed both the motion and petition. This
writ of error followed.4
We begin with a review of the constitutional, statu-
tory, and case law surrounding the victim’s rights
amendment. The amendment sets forth ten substantive
rights that a victim shall have in a criminal prosecution.
With regard to enforcement, the amendment states that
‘‘[t]he general assembly shall provide by law for the
enforcement of this subsection . . . .’’ Conn. Const.,
amend. XXIX (b). Accordingly, our Supreme Court has
explained that ‘‘by its explicit terms, the victim’s rights
amendment contemplates additional implementing leg-
islation to give effect to its provisions.’’ State v. Gault,
304 Conn. 330, 340, 39 A.3d 1105 (2012). ‘‘In so far as
[constitutional provisions] either expressly or by neces-
sary implication require legislative action to implement
them, they are not effective until that legislative action
is had.’’ (Internal quotation marks omitted.) Id. Thus,
the amendment is not self-executing, as it requires legis-
lative action to implement it. Id. In order to determine
whether the plaintiff in error in the present case has
the right to seek to have the defendant’s sentence
vacated, we must look to the General Statutes to deter-
mine whether the legislature has provided such a
remedy.5
There is no provision in our General Statutes that
expressly authorizes a victim to pursue the remedy
sought by the plaintiff in error in the present case. In
fact, a review of our statutes reveals that the specific
remedy sought by the plaintiff in error is statutorily
prohibited. The victim’s rights amendment itself states
that ‘‘[n]othing in this subsection or in any law enacted
pursuant to this subsection shall be construed as creat-
ing a basis for vacating a conviction or ground for appel-
late relief in any criminal case.’’ Conn. Const., amend.
XXIX (b). Moreover, our legislature had previously
enacted § 54-223, providing that the ‘‘[f]ailure to afford
the victim of a crime any of the rights provided pursuant
to any provision of the general statutes shall not consti-
tute grounds for vacating an otherwise lawful convic-
tion or voiding an otherwise lawful sentence or parole
determination.’’6
The plaintiff in error argues that she seeks to vacate
only the defendant’s sentence, not his conviction. To
that end, she distinguishes the language contained in
the statute from that contained in the subsequently
enacted constitutional provision and contends that she
‘‘did not rely on any statutory grounds but instead relied
on [the victim’s rights amendment], which, unlike [§]
54-223, explicitly omits any mention that the failure to
afford victims rights shall not be a basis for the voiding
of an otherwise lawful sentence . . . rather it only
speaks of such violations not being a basis for vacating
a conviction or a basis for appellate relief.’’ (Citation
omitted; emphasis omitted.) In other words, she argues
that because the constitutional provision does not
expressly state that violation of a victim’s rights shall
not constitute grounds for vacating an otherwise lawful
sentence, the statutory provision prohibiting such
action was meant to bar only the defendant from seek-
ing to have his own sentence vacated on the basis of a
violation of the victim’s rights.7 As previously discussed,
because the victim’s rights amendment is not self-exe-
cuting, the plaintiff in error would still have to identify
enabling legislation in order to prevail on her claim.
For this, we look to the authority cited by the plaintiff
in error.
The plaintiff in error argues that the court improperly
dismissed her motion to vacate the defendant’s sen-
tence.8 The court dismissed her motion on the ground
that it lacked jurisdiction because the sentence was
not illegal. In her appellate brief, the plaintiff in error
contends that ‘‘the defendant’s disposition and or sen-
tence was imposed in an illegal manner because it was
done in such a way that blatantly violated the victim’s
constitutional right . . . .’’ Quoting State v. Lawrence,
281 Conn. 147, 159, 913 A.2d 428 (2007), the defendant
in error, the state, argues that ‘‘[b]ecause the plaintiff
in error’s claim ‘falls outside that set of narrow circum-
stances in which the court retains jurisdiction over a
defendant once that defendant has been transferred
into the custody of the commissioner of correction to
begin serving his sentence, the court lacks jurisdiction
to consider the claim pursuant to a motion to correct
an illegal sentence under § 43-22.’ ’’ We agree with the
defendant in error.
‘‘A motion to correct an illegal sentence under Prac-
tice Book § 43-22 constitutes a narrow exception to
the general rule that, once a defendant’s sentence has
begun, the authority of the sentencing court to modify
that sentence terminates.’’ State v. Casiano, 282 Conn.
614, 624, 922 A.2d 1065 (2007). Practice Book § 43-22
provides: ‘‘The judicial authority may at any time cor-
rect 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.’’
‘‘Connecticut has recognized two types of circum-
stances in which the court has jurisdiction to review a
claimed illegal sentence. The first of those is when the
sentence itself is illegal, namely, when the sentence
either exceeds the relevant statutory maximum limits,
violates a defendant’s right against double jeopardy, is
ambiguous, or is internally contradictory. . . . The
other circumstance in which a claimed illegal sentence
may be reviewed is that in which the sentence is within
relevant statutory limits, but was imposed in a way
which violates [a] defendant’s right . . . to be
addressed personally at sentencing and to speak in miti-
gation of punishment . . . or his right to be sentenced
by a judge relying on accurate information or considera-
tions solely in the record, or his right that the govern-
ment keep its plea agreement promises . . . .’’9
(Internal quotation marks omitted.) State v. Fairchild,
155 Conn. App. 196, 204, 108 A.3d 1162, cert. denied,
316 Conn. 902, 111 A.3d 470 (2015). ‘‘This latter category
reflects the fundamental proposition that [t]he defen-
dant has a legitimate interest in the character of the
procedure which leads to the imposition of sentence
even if he may have no right to object to a particular
result of the sentencing process.’’ (Emphasis added;
internal quotation marks omitted.) State v. Parker, 295
Conn. 825, 839, 992 A.2d 1103 (2010).
The plaintiff in error provides no case law addressing
a victim’s motion to vacate a defendant’s sentence on
the basis of a violation of the victim’s constitutional
rights under the victim’s rights amendment. More spe-
cifically, she provides no authority supporting the prop-
osition that a defendant’s sentence is ‘‘ ‘imposed in an
illegal manner’ ’’; id.; when the sentencing proceeding
was conducted in violation of the victim’s constitu-
tional right to be present. Accordingly, in the absence
of legislation providing victims with the authority to
seek to have the defendant’s sentence vacated, and with
the express prohibition of such a remedy contained in
§ 54-223, we conclude that the court properly dismissed
the plaintiff in error’s motion to vacate the defen-
dant’s sentence.
The plaintiff in error also argues that the court erred
in dismissing her petition for a writ of error coram
nobis,10 arguing that such procedure is ‘‘not foreclosed
because she has no adequate remedy available to her.’’
The plaintiff in error does not provide any precedent,
and we are aware of none, for the use of the writ of
error coram nobis under the present circumstances, in
which a nonparty seeks to vacate the conviction of the
defendant. Moreover, the remedy she seeks by way of
the writ is prohibited by § 54-223, as previously dis-
cussed. Accordingly, we conclude that the court prop-
erly dismissed the petition for a writ of error coram
nobis.
The court properly dismissed the plaintiff in error’s
motion to vacate the defendant’s sentence and the plain-
tiff in error’s petition for a writ of error coram nobis.
The writ of error is dismissed.
In this opinion the other judges concurred.
1
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
2
Article first, § 8 (b), of the constitution of Connecticut provides in rele-
vant part: ‘‘b. In all criminal prosecutions, a victim, as the general assembly
may define by law, shall have the following rights: (1) The right to be treated
with fairness and respect throughout the criminal justice process; (2) the
right to timely disposition of the case following arrest of the accused, pro-
vided no right of the accused is abridged; (3) the right to be reasonably
protected from the accused throughout the criminal justice process; (4) the
right to notification of court proceedings; (5) the right to attend the trial
and all other court proceedings the accused has the right to attend, unless
such person is to testify and the court determines that such person’s testi-
mony would be materially affected if such person hears other testimony;
(6) the right to communicate with the prosecution; (7) the right to object
to or support any plea agreement entered into by the accused and the
prosecution and to make a statement to the court prior to the acceptance
by the court of the plea of guilty or nolo contendere by the accused; (8)
the right to make a statement to the court at sentencing; (9) the right to
restitution which shall be enforceable in the same manner as any other
cause of action or as otherwise provided by law; and (10) the right to
information about the arrest, conviction, sentence, imprisonment and release
of the accused. The general assembly shall provide by law for the enforce-
ment of this subsection. Nothing in this subsection or in any law enacted
pursuant to this subsection shall be construed as creating a basis for vacating
a conviction or ground for appellate relief in any criminal case.’’
We refer to the foregoing provision as the victim’s rights amendment
throughout this opinion.
3
The court additionally concluded, and the defendant in error argues,
that if the relief sought by the plaintiff in error were to be afforded, the
defendant’s right against double jeopardy would be implicated. Our resolu-
tion of the plaintiff in error’s claims does not require us to address this
argument.
4
The plaintiff in error filed a writ of error in our Supreme Court, which
transferred it to this court pursuant to Practice Book § 65-1. The plaintiff
in error named the state’s attorney for the judicial district of Waterbury as
the defendant in error.
5
The plaintiff in error additionally places reliance on article first, § 10, of
the constitution of Connecticut, which provides: ‘‘All courts shall be open,
and every person, for an injury done to him in his person, property or
reputation, shall have remedy by due course of law, and right and justice
administered without sale, denial or delay.’’ ‘‘Article first, § 10, has been
viewed as a limitation upon the legislature’s ability to abolish common law
and statutory rights that existed in 1818, when article first, § 10, was adopted,
and which were incorporated in that provision by virtue of being established
by law as rights the breach of which precipitates a recognized injury . . . .
Therefore, where a right existed at common law or by statute in 1818 and
became incorporated into the Connecticut constitution by the adoption of
article first, § 10, the legislature may restrict or abolish such incorporated
right only where it provides a reasonable alternative to the enforcement of
such right.’’ (Internal quotation marks omitted.) Cefaratti v. Aranow, 154
Conn. App. 1, 25, 105 A.3d 265 (2014), cert. granted on other grounds, 315
Conn. 919, 107 A.3d 960 (2015). The plaintiff in error provides limited analy-
sis, and, as the defendant in error points out, she makes no claim that the
rights she attempts to assert were in existence prior to 1818. Accordingly,
her claim fails.
6
We note that our victim’s rights amendment and related statutory provi-
sions differ from the federal Crime Victims’ Rights Act (act), codified at 18
U.S.C. § 3771, which sets forth eight substantive rights and also provides a
procedural mechanism for the enforcement of such rights. Under the act,
‘‘[a] victim may make a motion to re-open a plea or sentence only if—(A)
the victim has asserted the right to be heard before or during the proceeding
at issue and such right was denied; (B) the victim petitions the court of
appeals for a writ of mandamus within 14 days; and (C) in the case of a
plea, the accused has not pled to the highest offense charged.’’ 18 U.S.C.
§ 3771 (d) (5); see also Fed. R. Crim. P. 60. Accordingly, the disparity between
the state and federal provisions thus renders the plaintiff in error’s reliance
on the federal provision and case law interpreting that provision misplaced.
Similarly, the plaintiff in error’s reliance on one Oregon Supreme Court
case is also misplaced. The plaintiff in error cites State v. Barrett, 350 Or.
390, 407, 255 P.3d 472 (2011), in which the Oregon Supreme Court concluded
that a victim, whose state constitutional right to advance notice of the
defendant’s plea and sentencing hearing had been violated, was entitled to
have the defendant resentenced. Significantly, the Oregon constitution, in
addition to authorizing the legislature to enact laws to provide for the
enforcement of the enumerated rights, specifically states that ‘‘[e]very victim
. . . shall have remedy by due course of law for violation of a right estab-
lished in this section.’’ (Internal quotation marks omitted) Id., 400. The
Oregon constitution limited the remedies available to victims to exclude the
invalidation of a conviction. Id., 400 n.6. Additionally, the Oregon legislature
enacted statutes establishing ‘‘procedures by which victims may seek to
have violations of their constitutional rights vindicated.’’ Id., 394. Because
the Oregon constitution expressly provides that victims are entitled to a
remedy, and the Oregon statutes establish procedures for enforcement, the
Oregon Supreme Court’s decision in Barrett is distinguishable.
7
In support of this argument, the plaintiff in error cites a footnote in State
v. Gault, supra, 304 Conn. 340 n.12, in which our Supreme Court, after
considering the text of the victim’s rights amendment, its legislative history,
and sister state provisions, stated that ‘‘it is unclear from the quoted text
of our state constitution whether the prohibition of appeals is intended to
apply to victims or only to criminal defendants.’’ After concluding that it
was unclear whether the amendment barred the victim’s appeal, the court
next examined our statutes to determine whether implementing legislation
had been passed granting the victim the right to appeal. Id., 340–41. Finding
no legislative authorization, the court in Gault ultimately dismissed the
appeal, concluding that the victim, as a nonparty to the criminal proceeding,
lacked standing to appeal and that the court lacked jurisdiction to hear the
appeal. Id., 347.
The plaintiff in error in the present case did not file a direct appeal as
the plaintiff did in Gault, but rather filed a writ of error, which she contends
is permissible pursuant to Practice Book § 72-1. That provision states in
relevant part: ‘‘(a) Writs of error for errors in matters of law only may be
brought from a final judgment of the superior court to the supreme court
in the following cases: (1) a decision binding on an aggrieved nonparty
. . . .’’ Practice Book § 72-1 (a). The plaintiff in error argues that ‘‘[t]he
legislature could have foreclosed not only the seeking of appellate relief
but also of a writ of error for a violation of a victim’s rights. It can only be
presumed that it was not by accident but by intentional design that they
did not.’’ Our Supreme Court in State v. McCahill, 261 Conn. 492, 499, 811
A.2d 667 (2002), declined to ‘‘resolve whether the victim’s rights amendment
affords either the victim or the victim advocate the right to bring a writ of
error for a purported violation of a right contained in the amendment’’
because ‘‘a resolution of that question [was] not necessary to the ultimate
issue . . . .’’ Likewise, our resolution of the plaintiff in error’s claim does
not require that we address that question.
8
The plaintiff in error also contends that this court has the ‘‘inherent
authority to create a state constitutional remedy . . . .’’ In support of this
argument, she first provides an analogy to the exclusionary rule under our
fourth amendment jurisprudence as an ‘‘example of a prophylactic rule
formulated by the judiciary in order to protect a constitutional right.’’ She
also cites Binette v. Sabo, 244 Conn. 23, 47, 710 A.2d 688 (1998), in which
our Supreme Court recognized a private cause of action for money damages
under article first, §§ 7 and 9, of the constitution of Connecticut. The defen-
dant in error counters both of these arguments on the ground that the
victim’s rights amendment is distinct, in that it specifically contemplates
legislative action. The defendant in error contends that ‘‘[i]t would be inap-
propriate for this court to step in where the constitution dictates the legisla-
ture must act and, in fact, has acted, prohibiting the remedy she seeks.’’ We
agree with the defendant in error. Accordingly, this argument is unavailing.
9
We note that the list of enumerated circumstances is not exhaustive.
See State v. Parker, 295 Conn. 825, 840, 992 A.2d 1103 (2010).
10
‘‘A writ of error coram nobis is an ancient common-law remedy which
authorized the trial judge, within three years, to vacate the judgment of the
same court if the party aggrieved by the judgment could present facts, not
appearing in the record, which, if true, would show that such judgment was
void or voidable. . . . The facts must be unknown at the time of the trial
without fault of the party seeking relief. . . . A writ of error coram nobis
lies only in the unusual situation [in which] no adequate remedy is provided
by law.’’ (Citations omitted; internal quotation marks omitted.) State v. Das,
291 Conn. 356, 370–71, 968 A.2d 367 (2009).