State v. Francis , 191 Conn. App. 101 ( 2019 )

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STATE OF CONNECTICUT v. ERNEST FRANCIS
(AC 41183)
DiPentima, C. J., and Alvord and Conway, Js.
Syllabus
The defendant, who previously had been convicted of the crime of murder
and sentenced to fifty years of incarceration, appealed to this court
from the judgment of the trial court denying his motion to correct an
illegal sentence. Prior to sentencing, the sentencing court was provided
with a presentence investigation report detailing the defendant’s prior
criminal history, including that he previously had been convicted of
conspiracy to sell cocaine and assault in the second degree. During the
sentencing hearing, the prosecutor advised the court that the report
was not accurate and that the defendant in fact previously had been
convicted of conspiracy to possess cocaine and assault in the third
degree. In reciting the facts on which it based its sentence, the sentencing
court stated, inter alia, that the defendant had inflicted a graze wound
on the victim before he fatally stabbed him in the chest. In his motion
to correct, the defendant alleged that his sentence was illegal because
the court substantially relied on materially false information regarding
his prior criminal history and misconstrued the evidence at trial sur-
rounding the underlying crime. In denying the motion, the trial court
concluded that there was no indication that the sentencing court substan-
tially relied on materially inaccurate information. On the defendant’s
appeal to this court, held that the trial court properly denied the defen-
dant’s motion to correct an illegal sentence, as neither the purported
inaccuracies contained in the presentence investigation report nor the
sentencing court’s account of the manner in which the underlying murder
occurred supported the conclusion that the defendant’s sentence was
imposed in an illegal manner: although the sentencing court incorrectly
noted that the defendant had been convicted of conspiracy to sell
cocaine, this error was not a substantial factor in its determination of
the appropriate sentence, as the court expressly considered the fact
that the defendant had incurred three separate felony convictions by
the age of nineteen, that he was involved in drugs and that he was on
probation when he murdered the victim, and those considerations were
not impugned by any discrepancy between the defendant’s actual crimi-
nal record and the record that was provided in the report, and, therefore,
the record demonstrated that the court did not substantially rely on
those inaccuracies in imposing its sentence; moreover, the sentencing
court’s recitation of the evidence regarding the manner in which the
defendant committed the underlying offense was not materially inaccu-
rate, nor was the disputed fact that the victim sustained a graze wound
substantially relied on by the court, as the defendant’s sentence clearly
was predicated on his killing the victim by stabbing him in the chest
and not on the graze wound.
Argued March 13—officially released July 2, 2019
Procedural History
Substitute information charging the defendant with
the crime of murder, brought to the Superior Court in
the judicial district of Hartford-New Britain at Hartford,
and tried to the jury before Miano, J.; verdict and judg-
ment of guilty, from which the defendant appealed to
the Supreme Court, which affirmed the judgment; there-
after, the court, Dewey, J., denied the defendant’s
motion to correct an illegal sentence, and the defendant
appealed to this court. Affirmed.
Robert L. O’Brien, assigned counsel, with whom, on
the brief, was Christopher Y. Duby, assigned counsel,
for the appellant (defendant).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, Rita M. Shair, senior assistant state’s attor-
ney, and Elizabeth S. Tanaka, former assistant state’s
attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Ernest Francis,
appeals from the judgment of the trial court denying
his motion to correct an illegal sentence filed pursuant
to Practice Book § 43-22. On appeal, the defendant
claims that his sentence was imposed in an illegal man-
ner because the court substantially relied on materially
inaccurate information concerning his prior criminal
history and the manner in which he had committed the
underlying crime. We disagree and, thus, affirm the
judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The defendant was convicted of
murder in violation of General Statutes § 53a-54a (a),
and, on April 15, 1992, was sentenced to fifty years of
incarceration. See State v. Francis, 228 Conn. 118, 635
A.2d 762 (1993). Prior to sentencing, the court, Miano,
J., was provided with a presentence investigation report
(presentence report) detailing the defendant’s prior
criminal history. The presentence report indicated that
the defendant had been convicted previously of conspir-
acy to sell cocaine and assault in the second degree.
During sentencing, the prosecutor informed the court
of the details surrounding the apparent conviction of
conspiracy to sell cocaine and noted that there seemed
to be a discrepancy between the offense of which he
was charged initially, conspiracy to sell cocaine, and
the offense of which he was convicted, conspiracy to
possess cocaine. The prosecutor also advised the court
that the defendant had not been convicted of assault
in the second degree, as indicated in the report, but,
rather, assault in the third degree.
In discussing the reasons for its sentence, the court,
Miano, J., reviewed the events that transpired on the
day the defendant murdered the victim. In so doing,
the court indicated that the defendant had stabbed the
victim more than once during the underlying alterca-
tion. After recounting the relevant facts based on the
evidence at trial, the court noted that the defendant, at
the age of nineteen, had three felony convictions. After
noting that one of ‘‘[t]he purposes of sentencing’’ is
deterrence, the court sought to send a message to ‘‘the
young men like the defendant that appear macho, that
are involved in drugs, that have cars, attractive new
cars, that have jewelry, that have money, [and] that
have attractive ladies,’’ that ‘‘[they] have to think before
they commit such an act like this.’’ Thereafter, the court
sentenced the defendant to fifty years of incarceration.
On December 30, 2016, the defendant filed the motion
to correct an illegal sentence that is the subject of the
present appeal.1 In the memorandum of law accompa-
nying his motion, the defendant alleged that his sen-
tence was illegal because the trial court substantially
relied on materially false information regarding his prior
criminal history and misconstrued the evidence at trial
surrounding the underlying crime. On August 10, 2017,
the court, Dewey, J., denied the defendant’s motion,
concluding, inter alia, that there was no indication that
the sentencing court substantially relied on materially
inaccurate information. This appeal followed. Addi-
tional facts will be set forth as needed.
The defendant claims that the trial court improperly
concluded that the sentencing court did not substan-
tially rely on materially inaccurate information regard-
ing his prior criminal history and the manner in which
the underlying offense was committed. We do not agree
and, therefore, affirm the judgment of the trial court.
We begin our analysis of the defendant’s claim by
setting forth our standard of review and applicable legal
principles. Practice Book § 43-22 provides that ‘‘[t]he
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.’’ ‘‘[A] claim that
the trial court improperly denied a defendant’s motion
to correct an illegal sentence is reviewed pursuant to
the abuse of discretion standard. . . . In reviewing
claims that the trial court abused its discretion, great
weight is given to the trial court’s decision and every
reasonable presumption is given in favor of its correct-
ness. . . . We will reverse the trial court’s ruling only
if it could not reasonably conclude as it did.’’ (Internal
quotation marks omitted.) State v. Bozelko, 175 Conn.
App. 599, 609, 167 A.3d 1128, cert. denied, 327 Conn.
973, 174 A.3d 194 (2017).
‘‘[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. Jason B., 176 Conn. App. 236,
243–44, 170 A.3d 139 (2017).
‘‘[D]ue process precludes a sentencing court from
relying on materially untrue or unreliable information
in imposing a sentence. . . . To prevail on such a claim
as it relates to a [presentence report], [a] defendant
[cannot] . . . merely alleg[e] that [his presentence
report] contained factual inaccuracies or inappropriate
information. . . . [He] must show that the information
was materially inaccurate and that the [sentencing]
judge relied on that information. . . . A sentencing
court demonstrates actual reliance on misinformation
when the court gives explicit attention to it, [bases] its
sentence at least in part on it, or gives specific consider-
ation to the information before imposing sentence.’’
(Emphasis omitted; footnote omitted; internal quota-
tion marks omitted.) State v. Petitpas, 183 Conn. App.
442, 449–50, 193 A.3d 104, cert. denied, 330 Conn. 929,
194 A.3d 778 (2018).
In claiming that his sentence was imposed in an illegal
manner, the defendant points to several purported inac-
curacies in the presentence report. Specifically, he
asserts that the report incorrectly indicated that he had
been convicted of conspiracy to sell cocaine, when in
fact he was convicted of conspiracy to possess cocaine.
The defendant argues that the record demonstrates sub-
stantial reliance on this inaccuracy in light of the sen-
tencing court’s description of him as a drug dealer who
had ‘‘new cars,’’ ‘‘jewelry,’’ ‘‘money’’ and ‘‘attractive
ladies,’’ despite the fact that he never had been con-
victed of selling drugs. Further, the defendant submits
that, although the prosecutor informed the court of the
inaccuracy in the presentence report concerning his
assault conviction, the state failed to correct the portion
of the report that erroneously indicated that the victim
of that assault was an elderly person and that the defen-
dant’s sentence for this conviction had been illegal.2
The defendant contends that the court substantially
relied on these errors when it intimated that the defen-
dant was a ‘‘violent predator attacking the weak and
infirm,’’ rather than just a child caught up in ‘‘a senseless
and tragic neighborhood fight.’’
Additionally, the defendant claims that the court sub-
stantially relied on an inaccurate account of the manner
in which the underlying murder offense occurred. In
particular, the defendant argues that the evidence at
trial indicated that the victim had sustained only a single
stab wound during the altercation that resulted in his
death. During its recitation of the evidence, however,
the sentencing court stated that the victim had suffered
a ‘‘graze’’ wound prior to being fatally stabbed in the
chest. The defendant contends that this material inaccu-
racy was substantially relied on by the court and served
to portray the defendant as a ‘‘more determined and
violent individual than the evidence actually showed.’’
With respect to the presentence report, we conclude
that the trial court did not abuse its discretion in con-
cluding that the sentencing court did not substantially
rely on the inaccuracies concerning the defendant’s
prior criminal history. Although the sentencing court
incorrectly noted that the defendant had been convicted
of conspiracy to sell cocaine, this error was not a sub-
stantial factor in the court’s determination of the defen-
dant’s appropriate sentence. Rather, as it relates to the
defendant’s prior criminal history, the court expressly
considered the fact that the defendant had incurred
three separate felony convictions by the age of nine-
teen,3 that he was ‘‘involved in drugs’’ and that he was
on probation when he murdered the victim. None of
those considerations is impugned by any discrepancy
between the defendant’s actual criminal record and the
record that was provided in the presentence report.
Similarly, the court made no mention at all of the defen-
dant’s purported prior assault of an elderly person.
Thus, despite the state’s failure to correct all of the
errors in the presentence report relating to the defen-
dant’s criminal history, the record demonstrates that
the court did not substantially rely on these inaccura-
cies in imposing its sentence.4 See State v. Petitpas,
supra, 183 Conn. App. 449–50.
Further, we agree with the trial court that the sentenc-
ing court’s summarization of the evidence regarding the
manner in which the defendant committed the underly-
ing offense was not materially inaccurate, nor was the
disputed fact—namely, whether the victim sustained a
‘‘graze’’ wound—substantially relied on by the court.
At trial, several witnesses testified that the defendant
made multiple stabbing motions toward the victim prior
to inflicting the lethal blow.5 Although the defendant
is correct that the evidence indicated that the victim
sustained a single fatal injury, the court’s statement that
the victim was ‘‘grazed’’ prior to being stabbed to death
was not without a modicum of support in the record.
See State v. Francis, supra, 228 Conn. 121. Moreover,
the defendant’s sentence clearly was predicated on his
killing the victim by stabbing him in the chest, not on
the disputed graze wound.
Neither the purported inaccuracies contained in the
defendant’s presentence report nor the court’s account
of the manner in which the underlying murder occurred
support the conclusion that the defendant’s fifty year
sentence was imposed in an illegal manner. Conse-
quently, we conclude that the trial court did not abuse
its discretion in denying the defendant’s motion to cor-
rect an illegal sentence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The present motion is predicated on the same grounds as an earlier
motion to correct an illegal sentence that the defendant, then self-repre-
sented, filed on July 12, 2010, and amended on October 12, 2010. That motion
was denied by the trial court, Gold, J., and the defendant appealed to this
court, which reversed the trial court’s judgment on the ground that the trial
court was required to follow the procedure set forth in Anders v. California,
386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), before it properly
could deny the defendant’s request for the appointment of counsel. See
State v. Francis, 148 Conn. App. 565, 590–91, 86 A.3d 1059 (2014), rev’d,
322 Conn. 247, 140 A.3d 927 (2016). The state appealed to our Supreme
Court, which reversed the judgment of this court on the ground that the
‘‘Anders procedure is not strictly required to safeguard the defendant’s
statutory right to counsel in the context of a motion to correct an illegal
sentence.’’ State v. Francis, 322 Conn. 247, 250–51, 140 A.3d 927 (2016).
The court concluded, however, that the trial court ‘‘improperly failed to
appoint counsel to assist the defendant in determining whether there was
a sound basis for him to file such a motion,’’ and, thus, remanded the
case to the trial court so that counsel could be appointed to represent the
defendant. Id., 251.
2
The defendant argues that because he was convicted of assault in the
third degree, which was a class A misdemeanor punishable by no more than
one year in prison, the four year sentence he received was illegal and, thus,
an inaccuracy that the court substantially relied on.
3
The defendant’s three felony convictions were (1) possession of narcotics
in violation of General Statutes (Rev. to 1989) § 21-279 (a), (2) conspiracy
to possess cocaine in violation of General Statutes § 53a-48 (a) and General
Statutes (Rev. to 1989) § 21-279 (a), and (3) murder in violation of § 53a-
54a (a). Despite the fact that the court referred to the second conviction
as conspiracy to sell cocaine, the actual conviction the defendant received
nonetheless was a felony conviction.
4
We also disagree with the defendant’s assertion that because his previous
sentence for assault in the third degree allegedly was illegal, the sentencing
court was not permitted to rely on the fact that he was on probation when
he committed the underlying murder. Regardless of the merits of the defen-
dant’s argument that his sentence for his conviction of assault in the third
degree was illegal, the defendant does not dispute that he was on probation
when he committed this murder; accordingly, this fact was not materially
inaccurate when it was relied on by the sentencing court.
5
‘‘On August 12, 1990, the defendant and the victim met again. At approxi-
mately 4 p.m. on that day, two witnesses, Jennifer Green and Sandra Brown,
were on the porch of Brown’s residence at 165 Homestead Avenue in Hart-
ford. At that time, they saw a young man, later determined to be the victim,
walking toward them on Homestead Avenue, holding an ‘ice pop’ in his
hand. At the same time, two additional witnesses, Victor Lowe and Fred
Faucette, were standing on the sidewalk of Homestead Avenue. They also
noticed the victim.
‘‘All four witnesses then observed a red Mitsubishi automobile drive up
Homestead Avenue, pass the victim, stop suddenly, back up and halt near
him. The defendant then emerged from the driver’s side of the car and
approached the victim. An argument ensuedbetween the two men. This
confrontation occurred twenty to forty feet from Lowe and Faucette.
‘‘While the defendant and victim exchanged words, the four witnesses
observed, from different vantage points, that the defendant held his right
hand behind his back. From where they were located, both Green and Brown
observed that the defendant’s hand, which was behind his back, was on the
handle of a knife. Upon seeing the knife, Brown commented to Green, ‘He
wouldn’t dare do that.’
‘‘After further words had been exchanged, the victim agreed to fight the
defendant. The victim did not, however, make any physical movement
toward the defendant. The defendant then pulled the knife from behind his
back and began to make stabbing motions at the victim. One of these
stabbing motions cut the victim’s ice pop in half as the victim was retreating.
‘‘The victim ran into a nearby yard where he was pursued by the defendant.
There, the defendant stabbed the victim in the upper left portion of his
chest, causing his death. The defendant then reentered the car and left the
scene. He was arrested in Miami, Florida, on August 17, 1990.’’ State v.
Francis, supra, 228 Conn. 120–21.