State v. Mukhtaar , 189 Conn. App. 144 ( 2019 )

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STATE OF CONNECTICUT v. ABDUL MUKHTAAR
(AC 41550)
DiPentima, C. J., and Sheldon and Moll, Js.
Syllabus
The defendant, who had been convicted of the crime of murder in connection
with the shooting death of the victim, appealed to this court from the
trial court’s dismissal of his motion to correct an illegal sentence. In
his motion, he had alleged that his sentence was illegal because the
same trial judge presided over his probable cause hearing and the crimi-
nal trial, the trial judge was biased and did not order a competency
examination, and there were inconsistent statements by witnesses dur-
ing the criminal investigation and trial. At the hearing on his motion,
he also claimed that his sentence was illegal because the police had
lost and destroyed evidence before the criminal trial and that he was the
victim of implicit bias. On appeal, he claimed that the court improperly
concluded that it lacked jurisdiction to consider the issues raised in his
motion. Held that the trial court properly dismissed the defendant’s
motion to correct an illegal sentence; because the claims raised by the
defendant in his motion to correct an illegal sentence concerned the
pretrial proceedings and the criminal trial, and did not attack the sentenc-
ing proceeding itself, and his claims of bias likewise were not limited
to the evidence of the sentencing proceeding, nor did they concern an
illegal sentence or a sentence imposed in an illegal manner, the trial
court properly determined that it lacked jurisdiction to consider the
defendant’s motion to correct an illegal sentence.
Argued January 22—officially released April 9, 2019
Procedural History
Information charging the defendant with the crime
of murder, brought to the Superior Court in the judicial
district of Fairfield and tried to the jury before Gormley,
J.; verdict and judgment of guilty, from which the defen-
dant appealed to the Supreme Court, which affirmed
the judgment; thereafter, the court, Devlin, J., dis-
missed the defendant’s motion to correct an illegal sen-
tence, and the defendant appealed to this court.
Affirmed.
Abdul Mukhtaar, self-represented, the appellant
(defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and C. Robert Satti, Jr., supervisory assistant
state’s attorney, for the appellee (state).
Opinion
PER CURIAM. The self-represented defendant, Abdul
Mukhtaar, appeals from the judgment of the trial court
dismissing his motion to correct an illegal sentence
filed pursuant to Practice Book § 43-22.1 On appeal, he
argues that the court improperly dismissed this motion.
We disagree and, accordingly, affirm the judgment of
the trial court.
The following facts and procedural history are neces-
sary for the resolution of this appeal. The defendant
was convicted of murder in violation of General Statutes
§ 53a-54a and sentenced to fifty years incarceration.
See State v. Mukhtaar, 253 Conn. 280, 281–82, 750 A.2d
1059 (2000).2 Our Supreme Court affirmed the judgment
of conviction on direct appeal. See id., 282.3
The defendant filed the motion to correct an illegal
sentence that is the subject of the present appeal on
January 19, 2018. In this motion, the defendant alleged
that his sentence was illegal because (1) Judge Gormley
had presided over both the defendant’s probable cause
hearing4 and the criminal trial, (2) Judge Gormley was
biased, (3) Judge Gormley did not order a competency
examination pursuant to General Statutes (Rev. to 1997)
§ 54-56d5 and (4) there were inconsistent statements by
witnesses during the criminal investigation and trial.
On February 14, 2018, the court conducted a hearing
on the defendant’s motion. In addition to the claims set
forth in his motion, the defendant also claimed that
his sentence was illegal because the Bridgeport Police
Department lost and destroyed evidence before the
criminal trial and that he was the victim of implicit
bias. One week later, the court, Devlin, J., issued a
memorandum of decision dismissing the defendant’s
motion to correct an illegal sentence. After setting forth
the relevant law, the court concluded: ‘‘None of the six
claims raised by the defendant concerns his sentence
or the manner in which it was imposed. To the contrary,
his claims regarding judicial bias, lack of competency
examination, implicit bias, inconsistent statements, lost
evidence and that the same judge presided over the
[probable cause hearing] and trial, all concern the
underlying conviction and not the defendant’s sentence.
Accordingly, this court lacks jurisdiction to consider
these claims.’’ This appeal followed. Additional facts
will be set forth as necessary.
On appeal, the defendant claims that the court
improperly concluded that it lacked jurisdiction to con-
sider the issues raised in his motion to correct an illegal
sentence. The state counters, inter alia, that all of the
defendant’s issues focus on the events that occurred
prior to his sentencing, and therefore the court properly
dismissed the motion to correct. We agree with the
state.
‘‘Our determination of whether a motion to correct falls
within the scope of Practice Book § 43-22 is a question
of law and, thus, our review is plenary.’’ (Internal quota-
tion marks omitted.) State v. Anderson, 187 Conn. App.
569, 584, A.3d (2019); see also State v. Delgado,
323 Conn. 801, 810, 151 A.3d 345 (2016); State v. Robles,
169 Conn. App. 127, 131, 150 A.3d 687 (2016), cert.
denied, 324 Conn. 906, 152 A.3d 544 (2017).
Next, we set forth the legal principles pertaining to
the trial court’s jurisdiction following a judgment of
conviction. ‘‘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 estab-
lished 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 committed 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 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. . . .
[Practice Book] § 43-22 embodies a common-law excep-
tion that permits the trial court to correct an illegal
sentence or other illegal disposition. . . . Thus, if the
defendant cannot demonstrate that his motion to cor-
rect 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 sen-
tencing proceeding [itself] . . . must be the subject
of the attack. . . .
‘‘[A]n illegal sentence is essentially one [that] either
exceeds the relevant statutory maximum limits, violates
a defendant’s right against double jeopardy, is ambigu-
ous, or is internally contradictory. By contrast . . .
[s]entences imposed in an illegal manner have been
defined as being within the relevant statutory limits but
. . . imposed in a way [that] violates [a] defendant’s
right . . . to be addressed personally at sentencing and
to speak in mitigation of punishment . . . or his right
to be sentenced by a judge relying on accurate informa-
tion or considerations solely in the record, or his right
that the government keep its plea agreement promises
. . . . These definitions are not exhaustive, however,
and the parameters of an invalid sentence will evolve
. . . as additional rights and procedures affecting sen-
tencing are subsequently recognized under state and
federal law.’’ (Emphasis added; internal quotation
marks omitted.) State v. Anderson, supra, 187 Conn.
App. 583–84; see also State v. Evans, 329 Conn. 770,
778–80, 189 A.3d 1184 (2018), cert. denied, U.S. ,
S. Ct. , L. Ed. 2d (2019); State v. Parker,
295 Conn. 825, 833–39, 992 A.2d 1103 (2010); see gener-
ally State v. Lawrence, 281 Conn. 147, 153–59, 913 A.2d
428 (2007); State v. McNellis, 15 Conn. App. 416, 443–44,
546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d
441 (1988).
Next, we turn to the specific allegations contained
in the defendant’s motion to correct an illegal sentence.
He claims that his sentence was illegal because Judge
Gormley had presided over the probable cause hearing
and the criminal trial, two of the state’s witnesses had
provided inconsistent statements during the criminal
investigation and trial proceedings, Judge Gormley did
not order a competency hearing on behalf of the defen-
dant either ‘‘pre or post trial,’’6 and the Bridgeport Police
Department had lost and destroyed evidence prior to
the criminal trial. These contentions do not attack the
sentencing proceeding but, rather, concern the pretrial
proceedings and the criminal trial. ‘‘[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, and not the [proceedings]
leading to the conviction, must be the subject of the
attack.’’ (Internal quotation marks omitted.) State v.
Cruz, 155 Conn. App. 644, 651, 110 A.3d 527 (2015); see
also 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 remaining two allegations of the defendant, that
there was an implicit bias against him because he is
African-American and the victim was Caucasian, and
that Judge Gormley was biased as evidenced by his
failure to order a competency hearing, likewise are not
limited to the events of the sentencing proceeding. Addi-
tionally, they do not fit within the definitions of either
an illegal sentence or a sentence imposed in an illegal
manner. See State v. Anderson, supra, 187 Conn. App.
583–84; see also State v. Evans, supra, 329 Conn. 779.
We iterate that ‘‘[t]he claims that may be raised in a
motion to correct an illegal sentence are strictly limited
to improprieties that may have occurred at the sentenc-
ing stage of the proceeding. . . . Thus . . . for the
trial court to have jurisdiction to consider the defen-
dant’s claim of an illegal sentence, the claim must fall
into one of [several specific] categories of claims that,
under the common law, the court has jurisdiction to
review.’’ (Internal quotation marks omitted.) State v.
Walker, 187 Conn. App. 776, 784, A.3d (2019).
For these reasons, we conclude that the trial court
properly determined that it lacked jurisdiction to con-
sider the defendant’s motion to correct an illegal
sentence.
The judgment is affirmed.
1
Practice Book § 43-22 provides: ‘‘The judicial authority may at any time
correct an illegal sentence or other illegal disposition, or it may correct a
sentence imposed in an illegal manner or any other disposition made in an
illegal manner.’’
2
Our Supreme Court set forth the following facts underlying the defen-
dant’s conviction. ‘‘At approximately 4 p.m. on February 14, 1996, Benjamin
Sierra, Jr., was driving his parents’ car on Fairfield Avenue in Bridgeport.
While stopped at a red light at the intersection of Fairfield and Iranistan
Avenues, Sierra spotted two young women, Tracey Gabree and Terri Horeg-
lad, with whom he was acquainted, standing at a nearby pay telephone.
Sierra waved to Gabree and Horeglad and they approached and entered
Sierra’s car. Horeglad sat in the front passenger seat and Gabree sat in the
back seat.
‘‘Gabree asked Sierra for a cigarette. Sierra then turned around and gave
her a cigarette and a light. Sierra asked Gabree and Horeglad where they
were going and one of them responded that they were homeless and just
wanted to get warm.
‘‘When Sierra turned back toward the front of the car, he observed that
his vehicle was blocked by a tan car that was facing the wrong direction
on Fairfield Avenue. At that moment, Gabree shouted: ‘Oh shit, Kareem!’
Gabree then fled from Sierra’s car. A man, later identified by Sierra and
Gabree as the defendant, emerged from the tan car and approached the
passenger side of Sierra’s car, where Horeglad remained seated. Sierra
jumped out of his car and asked the defendant what was wrong. The defen-
dant, who did not respond, pulled out what appeared to be a .32 or .38
caliber chrome plated revolver and fired four shots at Horeglad, each of
which entered the right side of her body. Horeglad died as a result of the
gunshot wounds.’’ State v. Mukhtaar, supra, 253 Conn. 282–83.
3
Thereafter, the defendant pursued a variety of claims for relief, including
a request for sentence review; State v. Mukhtaar, Superior Court, judicial
district of Fairfield, Docket No. CR-96-116888, 2003 WL 22708180 (October
28, 2003), a 2001 habeas action; Mukhtaar v. Commissioner of Correction,
113 Conn. App. 114, 964 A.2d 1251, cert. denied, 291 Conn. 913, 969 A.2d
175 (2009); a 2008 habeas petition; Mukhtaar v. Commissioner of Correction,
158 Conn. App. 431, 119 A.3d 607 (2015); a 2013 motion to correct an illegal
sentence; State v. Mukhtaar, Superior Court, judicial district of Fairfield,
Docket No. CR-96-261380, 2013 WL 5614541 (September 20, 2013); a petition
for a new trial; Mukhtaar v. Smriga, Superior Court, judicial district of
Fairfield, Docket No. CV-XX-XXXXXXX-S, 2013 WL 6439645 (November 12,
2013); and a 2015 motion to correct an illegal sentence; State v. Mukhtaar,
179 Conn. App. 1, 177 A.3d 1185 (2017). Additionally, the defendant’s 2014
petition for a writ of habeas corpus remains pending before the habeas
court; Mukhtaar v. Warden, Superior Court, judicial district of Tolland,
Docket No. CV-XX-XXXXXXX-S.
4
See General Statutes (Rev. to 1995) § 54-46a.
5
At the hearing for the motion to correct an illegal sentence, the court
inquired if the defendant’s criminal counsel had requested a competency
hearing at the defendant’s trial. The defendant represented that no such
request had been made.
6
We note that a claim regarding a defendant’s competency at the sentenc-
ing proceeding; see General Statutes § 54-56d (a); or a claim that the court
failed to inquire, sua sponte, into a defendant’s competency at the sentencing
proceeding when there is sufficient evidence at that proceeding to raise a
reasonable doubt as to whether that defendant can understand the proceed-
ing or assist in his or her defense therein; State v. Yeaw, 162 Conn. App.
382, 389–90, 131 A.3d 1172 (2016); would fall within the jurisdiction of the
trial court for the purpose of a motion to correct an illegal sentence filed
pursuant to Practice Book § 43-22. In the present case, however, the defen-
dant’s claims regarding the lack of a competency hearing extend beyond
the events of the sentencing proceeding and, therefore, are outside of the
trial court’s jurisdiction.