State v. Battle ( 2019 )

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STATE OF CONNECTICUT v. REGGIE BATTLE
(AC 40578)
DiPentima, C. J., and Bright and Moll, Js.
Syllabus
The defendant, who had been convicted of carrying a pistol without a permit,
criminal trespass and violation of probation, appealed to this court from
the judgment of the trial court dismissing his motion to correct an illegal
sentence. In November, 2005, the defendant had been sentenced to
twenty years of incarceration, execution suspended after nine years,
and five years of probation, in connection with a guilty plea to conspiracy
to commit assault in the first degree and his admission to violating his
probation. In January, 2014, he admitted to a violation of probation and
pleaded guilty to various crimes regarding the carrying and possession
of a pistol. The trial court sentenced him to five years of incarceration
and six years of special parole, and revoked his probation. Thereafter,
the defendant filed a motion to correct an illegal sentence, which the trial
court dismissed. Although the trial court concluded that the defendant’s
claim did not fall within the ambit of the rule of practice (§ 43-22)
governing motions to correct an illegal sentence, it proceeded to con-
sider and reject the merits of the defendant’s motion, and concluded
that a sentence that included a period of special parole was authorized
by our statutes and case law. On appeal to this court, the defendant
claimed that the trial court improperly dismissed his motion to correct
an illegal sentence. Held:
1. The trial court improperly determined that it lacked jurisdiction to con-
sider the defendant’s motion to correct an illegal sentence and dismissed
the motion, in which the defendant alleged that special parole cannot
be imposed following a violation of probation; because the defendant
challenged the sentence imposed, rather than the events leading to his
conviction, he set forth a colorable claim regarding the legality of the
sentence imposed for violation of his probation, and the trial court,
therefore, had jurisdiction to consider the merits of the defendant’s
motion.
2. The defendant could not prevail on his claim that the imposition of special
parole, following a determination that he had violated his probation,
constituted an illegal sentence: the statute governing violation of proba-
tion (§ 53a-32 [d] [4]) specifically authorizes the trial court to revoke a
sentence of probation and, in the event that the probation has been
revoked, provides that the court shall require the defendant to serve
the sentence imposed or impose any lesser sentence, and the defendant’s
sentence in 2014, including the use of special parole, fell within the ‘‘any
lesser sentence’’ language of § 53a-32 (d); accordingly, the use of special
parole following a finding of a violation of probation is authorized by
§ 53a-32, and the imposition of special parole did not result in an ille-
gal sentence.
3. The defendant could not prevail on his unpreserved claim that he was
denied due process of law when his motion to correct an illegal sentence
was not acted on by the specific judge who had sentenced him; the
defendant cited no appellate authority holding that a motion to correct
an illegal sentence or a sentence imposed in an illegal manner must be
heard and adjudicated by the particular judge who imposed the sentence,
the case law cited by the defendant, at most, suggested that the sentenc-
ing judge may be the judicial authority who entertains such a motion,
and because there was nothing that suggested that the defendant was
deprived of a full and fair proceeding with regard to the motion to
correct and the defendant did not suffer a due process violation, his
unpreserved claim failed under the third prong of State v. Golding (213
Conn. 233).
Argued March 11—officially released August 27, 2019
Procedural History
Information charging the defendant with the crimes
of carrying a pistol without a permit and criminal pos-
session of a pistol, and with violation of probation,
brought to the Superior Court in the judicial district of
Hartford, where the defendant was presented to the
court, Alexander, J., on a plea of guilty; judgment of
guilty in accordance with plea; thereafter, the court,
Dewey, J., dismissed the defendant’s motion to correct
an illegal sentence, and the defendant appealed to this
court. Improper form of judgment; judgment directed.
Temmy Ann Miller, with whom were Aimee Lynn
Mahon and, on the brief, Nicholas A. Marolda, for the
appellant (defendant).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Elizabeth Tanaka, former assistant state’s
attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Reggie Battle,
appeals from the judgment of the trial court dismissing
his motion to correct an illegal sentence. On appeal,
the defendant claims that (1) the court improperly con-
cluded that it lacked jurisdiction to consider his motion
to correct an illegal sentence, (2) the court improperly
concluded that the use of special parole following the
finding of a probation violation did not constitute an
illegal sentence and (3) he was denied due process of
law when his motion to correct an illegal sentence was
not acted upon by the judge who had sentenced him.
We conclude that the trial court had jurisdiction to
consider the defendant’s motion to correct an illegal
sentence but are not persuaded by his second and third
claims. Accordingly, the form of the judgment is
improper, and we reverse the judgment dismissing the
defendant’s motion to correct an illegal sentence and
remand the case with direction to render judgment
denying the defendant’s motion.
The following facts and procedural history are rele-
vant to this appeal. On November 7, 2005, the defendant
appeared before the court, Miano, J., and pleaded guilty
to conspiracy to commit assault in the first degree in
violation of General Statutes §§ 53a-48 and 53a-59 (a)
(1) and admitted a violation of probation pursuant to
General Statutes § 53a-32. After hearing the prosecu-
tor’s recitation of the facts1 and conducting a plea can-
vass, the court accepted the defendant’s guilty plea
and admission. The defendant waived a presentence
investigation report, and the court sentenced him in
accordance with the parties’ agreement. Specifically,
the court sentenced the defendant to twenty years incar-
ceration, execution suspended after nine years, and five
years of probation2 for the conspiracy to commit assault
in the first degree charge. The court also terminated
the defendant’s probation.3
On January 13, 2014, the defendant appeared before
the court, Alexander, J., and admitted a violation of
probation, pursuant to § 53a-32, and pleaded guilty to
carrying a pistol without a permit in violation of General
Statutes § 29-35 (a) and criminal possession of a pistol
in violation of § 53a-217c. The prosecutor set forth the
underlying facts4 and, following a canvass, the court
accepted the defendant’s guilty plea and admission. The
court then sentenced the defendant as follows: ‘‘[The]
court will impose the agreement as indicated. On the
violation of probation, it is ordered revoked; five years
to serve, six years of special parole. On the charge of
[carrying a] pistol without [a] permit, it is the sentence
of the court that you receive five years to serve, which
will run concurrent with the previous sentence. On the
charge of criminal possession of a firearm, five years
to serve, also concurrent.’’
On April 7, 2016, the self-represented defendant filed
a motion to correct an illegal sentence pursuant to
Practice Book § 43-22.5 On November 1, 2016, the defen-
dant, then represented by counsel, filed an amended
motion to correct, arguing that General Statutes § 54-
125e expressly limits the use of special parole to those
convicted of a crime and that a violation of probation
is not a crime. Accordingly, the defendant claimed that
his sentence was illegal. On December 23, 2016, the
state filed an objection to the defendant’s amended
motion to correct.
On March 16, 2017, the court, Dewey, J., issued a
memorandum of decision dismissing the defendant’s
motion to correct an illegal sentence. Although the
court concluded that the defendant’s claim did not fall
within the ambit of Practice Book § 43-22, it proceeded
to consider, and reject, the merits of his motion. Specifi-
cally, the court reasoned that, in connection with dis-
posing of a charge of violation of probation, a sentence
that includes a period of special parole was authorized
by the General Statutes and our case law. This appeal
followed. Additional facts will be set forth as necessary.
I
The defendant first claims that the court improperly
concluded that it lacked jurisdiction to consider his
motion to correct an illegal sentence. Specifically, he
argues that his claim that a sentence of special parole
on a violation of probation was not permitted under
our statutes fell within the limited jurisdiction author-
ized for a motion to correct an illegal sentence. We
agree with the defendant.
This claim presents a question of law subject to the
plenary standard of review. State v. Mukhtaar, 189
Conn. App. 144, 148, 207 A.3d 29 (2019). It requires
us to ‘‘consider whether the defendant has raised a
colorable claim within the scope of Practice Book § 43-
22 that would, if the merits of the claim were reached
and decided in the defendant’s favor, require correction
of a sentence. . . . In the absence of a colorable claim
requiring correction, the trial court has no jurisdiction
to modify the sentence. . . . A colorable claim is one
that is superficially well founded but that may ultimately
be deemed invalid . . . . For a claim to be colorable,
the defendant need not convince the trial court that he
necessarily will prevail; he must demonstrate simply
that he might prevail. . . . The jurisdictional and mer-
its inquiries are separate; whether the defendant ulti-
mately succeeds on the merits of his claim does not
affect the trial court’s jurisdiction to hear it.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) State v. Evans, 329 Conn. 770, 783–84, 189
A.3d 1184 (2018), cert. denied, U.S. , 139 S. Ct.
1304, 203 L. Ed. 2d 425 (2019).
‘‘[Our Supreme Court] has held that the jurisdiction
of the sentencing court terminates once a defendant’s
sentence has begun, and, therefore, that court may no
longer take any action affecting a defendant’s sentence
unless it expressly has been authorized to act. . . .
Practice Book § 43-22, which provides the trial court
with such authority, provides that [t]he judicial author-
ity 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. An illegal sentence is essentially one
which either exceeds the relevant statutory maximum
limits, violates a defendant’s right against double jeop-
ardy, is ambiguous, or is internally contradictory. . . .
We previously have noted that a defendant may chal-
lenge his or her criminal sentence on the ground that
it is illegal by raising the issue on direct appeal or by
filing a motion pursuant to § 43-22 with the judicial
authority, namely, the trial court.’’ (Citations omitted;
internal quotation marks omitted.) State v. Tabone, 279
Conn. 527, 533–34, 902 A.2d 1058 (2006); see also State
v. Evans, supra, 329 Conn. 778. Simply stated, ‘‘a chal-
lenge to the legality of a sentence focuses not on what
transpired during the trial or on the underlying convic-
tion. In 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 trial leading to the conviction, must be the subject
of the attack.’’ (Emphasis omitted; internal quotation
marks omitted.) State v. Evans, supra, 779.
The defendant argued in his motion to correct an
illegal sentence that special parole cannot be imposed
following a violation of probation. Specifically, he con-
tended that the text of § 54-125e establishes that special
parole may be imposed only for the conviction of a
crime and that a violation of probation hearing is not
a stage of a criminal prosecution. Further, he claimed
that § 53a-32 (d), which sets forth the court’s options
following a finding of a probation violation, does not
include special parole. In other words, the defendant
challenged the sentence imposed, rather than the events
leading to his conviction. Because the defendant set
forth a colorable claim regarding the legality of the
sentence imposed for violating his probation, the trial
court had jurisdiction to consider the merits of the
defendant’s motion. We conclude, therefore, that the
court improperly dismissed the motion to correct an
illegal sentence filed by the defendant.
II
Having concluded that the court had jurisdiction to
decide the defendant’s claim, we turn to the defendant’s
contention that the imposition of special parole, follow-
ing the determination that he had violated his probation,
constituted an illegal sentence. Specifically, he argues
that the use of special parole is not authorized by § 53a-
32 (d) (4) under the facts of this case. We are not
persuaded by the defendant’s restrictive interpretation
of the relevant statutes and principles relating to sen-
tencing in probation violation proceedings. Accord-
ingly, we disagree with the defendant’s claim.6
In the court’s decision, it reviewed the relevant stat-
utes, namely, General Statutes §§ 53a-28 and 53a-32 (d).
Next, it observed that ‘‘[t]he provisions relating to alter-
natives to incarceration, special parole and probation,
must be read in harmony.’’ The court further stated that
‘‘[i]n State v. Santos T., 146 Conn. App. 532, 535–36, 77
A.3d 931, [cert. denied, 310 Conn. 965, 83 A.3d 345]
(2013), the Connecticut Appellate Court implicitly rec-
ognized a trial court’s authority to impose a term of
special parole after a parole violation hearing and sen-
tencing.’’7 Finally, it reasoned that the dispositional
phase of a probation revocation proceeding, in sub-
stance, generally is indistinguishable from that follow-
ing a conviction and that our law affords the same
discretion to the court in both instances. Ultimately,
the court rejected the defendant’s argument that the
imposition of special parole following a finding of a
probation violation constituted an illegal sentence.
On appeal, the defendant maintains that the imposi-
tion of special parole following the determination of a
probation violation is not authorized by § 53a-32 and,
therefore, constitutes an illegal sentence. He argues that
§ 53a-32 does not include specifically special parole
and that its omission cannot be rectified by judicial
interpretation, but rather only by legislative action.
After consideration of the relevant statutes and case
law, we disagree with the defendant’s view of § 53a-32.
The defendant’s claim requires us to engage in statu-
tory construction. ‘‘The process of statutory interpreta-
tion involves the determination of the meaning of the
statutory language as applied to the facts of the case
. . . . When construing a statute, [o]ur fundamental
objective is to ascertain and give effect to the apparent
intent of the legislature. . . . In other words, we seek
to determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case
. . . . In seeking to determine that meaning . . . [Gen-
eral Statutes] § 1-2z directs us first to consider the text
of the statute itself and its relationship to other statutes.
If, after examining such text and considering such rela-
tionship, the meaning of such text is plain and unambig-
uous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall
not be considered. . . . Issues of statutory construc-
tion raise questions of law, over which we exercise
plenary review.’’ (Citation omitted; internal quotation
marks omitted.) State v. Hearl, 182 Conn. App. 237, 252,
190 A.3d 42, cert. denied, 330 Conn. 903, 192 A.3d 425
(2018). ‘‘Included in the threshold inquiry are our prior
interpretations of the statutory language, which we
have stated are encompassed in the term ‘text’ as used
in § 1-2z. See Hummel v. Marten Transport, Ltd., 282
Conn. 477, 497–99, 923 A.2d 657 (2007).’’ State v. Daniel
B., 331 Conn. 1, 13, 201 A.3d 989 (2019); see also State
v. Boyd, 272 Conn. 72, 78, 861 A.2d 1155 (2004) (relevant
legislation and precedent guide process of statutory
interpretation).
We begin with the relevant statutory language. Sec-
tion 53a-32 (d) provides: ‘‘If [a violation of probation]
is established, the court may: (1) Continue the sentence
of probation or conditional discharge; (2) modify or
enlarge the conditions of probation or conditional dis-
charge; (3) extend the period of probation or condi-
tional discharge, provided the original period with any
extensions shall not exceed the periods authorized by
section 53a-29; or (4) revoke the sentence of probation
or conditional discharge. If such sentence is revoked,
the court shall require the defendant to serve the sen-
tence imposed or impose any lesser sentence. Any such
lesser sentence may include a term of imprisonment,
all or a portion of which may be suspended entirely or
after a period set by the court, followed by a period
of probation with such conditions as the court may
establish. No such revocation shall be ordered, except
upon consideration of the whole record and unless such
violation is established by the introduction of reliable
and probative evidence and by a preponderance of the
evidence.’’ (Emphasis added.)
Section 53a-32 is a part of a larger statutory frame-
work applicable to sentences and sentencing proce-
dure. Our Supreme Court has recognized ‘‘that our
rather intricate sentencing scheme is not always a
model of clarity and that sometimes it is difficult to
ascertain the rationale underlying all of its components.
Nevertheless, it is our duty to seek to reconcile that
scheme into a coherent system, in a manner that effectu-
ates, to the greatest extent possible, the legislative
intent behind the scheme.’’ State v. Victor O., 320 Conn.
239, 259, 128 A.3d 940 (2016); see also State v. Ferdi-
nand R., 132 Conn. App. 594, 600, 33 A.3d 793 (2011)
(‘‘When we interpret statutory text, the legislature, in
amending or enacting statutes, always [is] presumed to
have created a harmonious and consistent body of law
. . . . Thus, we are required to read statutes together
when they [are] related to the same subject matter
. . . . Accordingly, [i]n determining the meaning of a
statute . . . we look not only at the provision at issue,
but also to the broader statutory scheme to ensure
the coherency of our construction’’ [internal quotation
marks omitted]), aff’d, 310 Conn. 686, 82 A.3d 599
(2013); see generally Tomlinson v. Tomlinson, 305
Conn. 539, 552, 46 A.3d 112 (2012). We, therefore, also
must consider § 53a-28,8 which provides the authorized
sentencing options for those convicted of an offense,
which include imprisonment, probation, conditional
discharge and special parole as provided under § 54-
125e.9
A brief summary of the history of special parole is
informative. ‘‘[I]n 1998, [t]he legislature created the con-
cept of special parole as a new sentencing option . . .
by enacting § 54-125e. . . . The legislative history sur-
rounding § 54-125e indicates that it was intended to
operate as a sentencing option in cases [in which] the
judge wanted additional supervision of a defendant
after the completion of his prison sentence. Michael
Mullen, the chairman of the Connecticut [B]oard of
[P]arole, testified before the [J]udiciary [C]ommittee
and described special parole as a sentencing option
[that] ensures intense supervision of convicted felons
after they’re released to the community and allows the
imposition of parole stipulations on . . . released
inmate[s] to ensure their successful incremental [reen-
try] into society or if they violate their stipulations,
speedy [reincarceration] before they commit [other]
crime[s]. . . .
‘‘At the same time that it enacted § 54-125e, the legis-
lature amended § 54-128 to provide that a sentence con-
sisting of a term of imprisonment followed by a period
of special parole shall not exceed the maximum sen-
tence of incarceration authorized for the offense for
which the person was convicted. . . . [T]he legisla-
ture, in enacting § 54-125e intended to permit the impo-
sition of special parole as a sentencing option [that]
ensures intense supervision of convicted felons after
[they are] released to the community and allows the
imposition of parole stipulations on the released
inmate. At the same time, the legislature intended to
prevent the trial court from sentencing a defendant to
a term of imprisonment and to a period of special
parole, the total combined length of which exceeds the
maximum sentence of imprisonment for the offense
[of] which the defendant was convicted. . . . It is clear,
therefore, that the legislature intended that special
parole, as a form of supervised release, should be avail-
able to trial courts, provided that its imposition, in com-
bination with a term of incarceration, does not exceed
the maximum statutory period of incarceration permit-
ted by law.’’ (Citations omitted; footnote omitted; inter-
nal quotation marks omitted.) State v. Victor O., supra,
320 Conn. 252–53.
Our Supreme Court has explained the difference
between probation and special parole. ‘‘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 proba-
tion, the court may revoke his probation, and if revoked,
the court shall require the defendant to serve the sen-
tence imposed or impose any lesser sentence. General
Statutes (Rev. to 1999) § 53a-32 (b) (4). 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.’’
(Emphasis added; footnote omitted; internal quotation
marks omitted.) State v. Tabone, 292 Conn. 417, 429,
973 A.2d 74 (2009).
The defendant argues that because § 53a-32 (d) does
not mention special parole specifically, it therefore pro-
hibits its imposition following the revocation of proba-
tion. We disagree with the defendant’s contention.
As noted by the trial court, § 53a-28 (d) provides in
relevant part that ‘‘[a] sentence to a period of probation
. . . shall be deemed a revocable disposition, in that
such sentence shall be tentative to the extent that it
may be altered or revoked in accordance with said
sections but for all other purposes it shall be deemed
to be a final judgment of conviction.’’ (Emphasis added.)
Section 53a-32 (d) (4) specifically authorizes the court
to revoke the sentence of probation. In the event that
the probation has been revoked, the court shall require
the defendant to serve the sentence imposed or impose
any lesser sentence. Id.
As noted by our Supreme Court in State v. Tabone,
supra, 292 Conn. 429, special parole, as distinct from
probation, exposes a defendant to a decreasing period
of incarceration as the term of special parole is served.
In the present case, the defendant, in November, 2005,
was sentenced to twenty years of incarceration, execu-
tion suspended after nine years, and five years of proba-
tion. Following his release from custody, he faced the
possibility of eleven years of incarceration in the event
he violated his probation. In 2014, the court concluded
that he had violated his probation and had the option
of imposing a sentence of up to eleven years of incarcer-
ation. Instead, the court imposed a sentence of five
years of incarceration and six years of special parole.
The 2014 sentence, including the use of special parole,
falls within the ‘‘any lesser sentence’’ language of § 53a-
32 (d). Accordingly, we are persuaded that the use of
special parole following a finding of a violation of proba-
tion is authorized by § 53a-32. For these reasons, we
conclude that, in the present case, the imposition of
special parole did not result in an illegal sentence.
III
Finally, the defendant claims that he was denied due
process of law when his motion to correct an illegal
sentence was not acted upon by the specific judge who
had sentenced him. Specifically, he argues that Judge
Alexander, who found that the defendant had violated
his probation and sentenced him to a period of special
parole, should have acted upon the motion to correct
instead of Judge Dewey because ‘‘the sentencing court
. . . was in a better position to evaluate the merits
of the defendant’s claims in his motion to correct.’’
According to the defendant, the failure to refer the
motion to correct to Judge Alexander constituted a
violation of his right to due process. We are not per-
suaded.
As previously noted, Judge Miano sentenced the
defendant following his conviction in 2005. Subsequent
to his release from custody, Judge Alexander found, in
2014, that the defendant had violated his probation, and
sentenced him, inter alia, to a period of special parole.
The defendant filed an amended motion to correct on
November 1, 2016. On January 17, 2017, Judge Dewey
conducted a hearing10 on the defendant’s motion to
correct an illegal sentence and issued a memorandum
of decision on March 16, 2017.
The defendant did not raise his due process claim11
in his motion to correct an illegal sentence or at the
January 17, 2017 hearing. Accordingly, he requests
review pursuant to State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989), as modified by In re Yasiel
R., 317 Conn. 773, 120 A.3d 1188 (2015).12 We agree with
the defendant that the record is adequate and that his
claim is of constitutional magnitude, and therefore his
claim is reviewable pursuant to the Golding doctrine.
State v. Jerrell R., 187 Conn. App. 537, 543, 202 A.3d
1044 (first two Golding prongs address reviewability
of claim while last two pertain to merits of claim), cert.
denied, 331 Conn. 918, 204 A.3d 1160 (2019); see also
State v. Ayala, 183 Conn. App. 590, 594, 193 A.3d 710
(2018).13
‘‘We begin by noting that [b]ecause the claim presents
an issue of law, our review is plenary.’’ (Internal quota-
tion marks omitted.) State v. Culver, 97 Conn. App. 332,
336, 904 A.2d 283, cert. denied, 280 Conn. 935, 909 A.2d
961 (2006). ‘‘Due process requires a fair hearing before
a fair tribunal . . . .’’ Petrowski v. Norwich Free Acad-
emy, 199 Conn. 231, 235, 506 A.2d 139, appeal dismissed,
479 U.S. 802, 107 S. Ct. 42, 93 L. Ed. 2d 5 (1986). ‘‘[D]ue
process . . . is not a technical conception with a fixed
content unrelated to time, place and circumstances.
. . . [D]ue process is flexible and calls for such proce-
dural protections as the particular situation demands.’’
(Internal quotation marks omitted.) Merchant v. State
Ethics Commission, 53 Conn. App. 808, 826, 733 A.2d
287 (1999).
Practice Book § 43-22 provides: ‘‘The judicial author-
ity 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.’’ We note that the predecessor to
§ 43-22, Practice Book (1982) § 935, provided in relevant
part: ‘‘The judicial authority who sentenced the defen-
dant may, within ninety days, correct an illegal sentence
. . . or . . . a sentence imposed in an illegal manner
. . . .’’ (Emphasis added.) The rule was amended in
1982 to its present form, which does not limit the ‘‘judi-
cial authority’’ empowered to correct an illegal sentence
or a sentence imposed in an illegal manner to the sen-
tencing court.14
The defendant has cited no appellate authority, and
we are aware of none, holding that a defendant’s motion
to correct an illegal sentence or a sentence imposed in
an illegal manner must be heard and adjudicated by
the particular judge who imposed the sentence. The
defendant relies on a number of cases to support his
assertion that Judge Alexander, as the sentencing judge,
was the only judicial authority permitted to consider
the motion to correct. See State v. Francis, 322 Conn.
247, 259–60, 140 A.3d 927 (2016) (stating that motion
to correct illegal sentence ‘‘is directed to the sentencing
court, which can entertain and resolve the challenge
most expediently’’ [internal quotation marks omitted]),
citing State v. Casiano, 282 Conn. 614, 624–25, 922 A.2d
1065 (2007); Cobham v. Commissioner of Correction,
258 Conn. 30, 39, 779 A.2d 80 (2001) (concluding that
direct appeal or motion to correct illegal sentence is
proper means to challenge illegal sentence, rather than
raising challenge for first time in petition for writ of
habeas corpus, and observing that ‘‘to correct an illegal
sentence, only the trial court can: reconstruct the sen-
tence to conform to its original intent or the plea
agreement; eliminate a sentence previously imposed for
a vacated conviction; or resentence a defendant if it
is determined that the original sentence was illegal’’
[emphasis added]); State v. Raucci, 21 Conn. App. 557,
558, 565, 575 A.2d 234 (affirming judgment rendered by
sentencing court reimposing sentence after granting
defendant’s motion to correct illegal sentence), cert.
denied, 215 Conn. 817, 576 A.2d 546 (1990). None of
the cases cited by the defendant establishes that the
sentencing judge must adjudicate a motion to correct
an illegal sentence or a sentence imposed in an illegal
manner; at most, the cases suggest that the sentencing
judge may be the judicial authority who entertains such
a motion.15
Due process does not mandate that a motion to cor-
rect an illegal sentence or a sentence imposed in an
illegal manner be heard by the judge whom the defen-
dant prefers or who has the greatest familiarity with the
defendant. ‘‘Due process seeks to assure a defendant
a fair trial, not a perfect one.’’ (Internal quotation marks
omitted.) State v. Boutilier, 144 Conn. App. 867, 877
n.4, 73 A.3d 880, cert. denied, 310 Conn. 925, 77 A.3d
139 (2013). There is nothing before us that suggests that
the defendant was deprived of a full and fair proceeding
with regard to the motion to correct as a result of Judge
Dewey, rather than Judge Alexander, adjudicating the
motion to correct.
In sum, we conclude that the defendant did not suffer
a due process violation when Judge Dewey, rather than
Judge Alexander, heard and ruled on the motion to
correct. Accordingly, the defendant’s claim fails under
the third prong of Golding.
The form of the judgment is improper, the judgment
dismissing the defendant’s motion to correct an illegal
sentence is reversed, and the case is remanded with
direction to render judgment denying the defendant’s
motion.
In this opinion the other judges concurred.
1
The prosecutor made the following statement at the hearing: ‘‘The factual
basis for the conspiracy to commit assault in the first degree, [the defendant
and Bryon Taylor] along with a Lionel Gardner on November 18, 2004, got
into an altercation, a verbal altercation with a William Hardy at the Westfarms
Mall. These three gentlemen then chased Mr. Hardy on the highway, Mr.
Hardy got off of the highway, both [the defendant] and Mr. Taylor fired
shots at Mr. Hardy’s car, one of them struck the car.
‘‘They were subsequently—this car that Mr. Gardner was driving with
these two defendants in it, was subsequently stopped by the Farmington
Police and these two were captured right there. A short time later Mr.
Gardner was captured. They found guns in their car, the casings that were
found in the area where the shots were fired were, in fact, fired from those
guns that they took out of the cars. . . .
‘‘With respect to [the defendant’s] violation of probation, on March 26 of
2003 . . . Judge Ward convicted him of larceny in the fourth degree, his
sentence was one year suspended, two years probation.’’
2
The court ordered, as a condition of probation, that the defendant not
possess any handguns, firearms or long guns.
3
The prosecutor nolled two other charges pending against the defendant.
4
Specifically, the prosecutor stated: ‘‘[T]he defendant was sentenced on
November 7, 2005, on a conspiracy [to commit] assault in the first degree
to twenty years suspended after nine years, five years of probation. He
began his probation on December 26, 2012, and he was arrested for the gun
case on September 1, 2013. . . . He was arrested at 2:30 in the morning.
Police had received a tip from a confidential informant giving a lengthy
description of an individual carrying a gun in his waistband. They went to
the area where the confidential informant said he would be. They saw this
defendant acting—matching the description and acting in a way that made
them believe that he was carrying a weapon.
‘‘He was near the inside of Paul’s Ranch House and they had some concerns
about people inside the business, and they asked him, for the safety of the
others, whether or not he was in possession of a firearm without a permit—
without a firearm basically, and he said he was and he explained to them,
the police officers, you know it’s crazy out here, which is kind of ironic
since his original conviction was for shooting out of a car.
‘‘And they patted him down and found a Smith & Wesson 9 mm with
eleven live rounds in it. They did a search and found out he did not have
a permit for it, and since he is a convicted felon from his prior felony he
was—should not have been in possession of this weapon either . . . .’’
5
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.’’
6
We note that ‘‘[o]nce the [trial] court found that it lacked subject matter
jurisdiction, any ruling on the merits of the defendant’s motion was
improper.’’ State v. Abraham, 152 Conn. App. 709, 724, 99 A.3d 1258 (2014).
Nevertheless, ‘‘[i]f the record . . . was adequate for review of the court’s
ruling, or if our determination as to the propriety of [the trial court’s] ruling
was solely dependent on our resolution of an issue of law, we could, in the
interest of judicial economy, consider the ruling at a party’s request or sua
sponte after determining that our review would not prejudice the defendant
and the appellee was entitled as a matter of law to a ruling in its favor.’’
Id., 724–25. Here, the record is adequate for our review, the court’s determina-
tion that the imposition of special parole did not constitute an illegal sentence
involves a question of law, the state is entitled as a matter of law to a ruling
in its favor, and the defendant will not be prejudiced by our review. We
also note that both parties addressed the issues in their briefs. Accordingly,
we proceed to review the court’s ruling on the merits of the defendant’s
motion.
7
In State v. Santos T., supra, 146 Conn. App. 533–34, the defendant did
not challenge the propriety of the imposition of special parole following a
finding of a probation violation.
8
General Statutes § 53a-28 provides in relevant part: ‘‘(a) . . . [E]very
person convicted of an offense shall be sentenced in accordance with
this title.
‘‘(b) Except as provided in section 53a-46a, when a person is convicted
of an offense, the court shall impose one of the following sentences: (1) A
term of imprisonment; or (2) a sentence authorized by section 18-65a or 18-
73; or (3) a fine; or (4) a term of imprisonment and a fine; or (5) a term
of imprisonment, with the execution of such sentence of imprisonment
suspended, entirely or after a period set by the court, and a period of
probation or a period of conditional discharge; or (6) a term of imprisonment,
with the execution of such sentence of imprisonment suspended, entirely
or after a period set by the court, and a fine and a period of probation or
a period of conditional discharge; or (7) a fine and a sentence authorized
by section 18-65a or 18-73; or (8) a sentence of unconditional discharge; or
(9) a term of imprisonment and a period of special parole as provided in
section 54-125e, except that the court may not impose a period of special
parole for convictions of offenses under chapter 420b.’’
9
General Statutes § 54-125e (a) provides in relevant part: ‘‘Any person
convicted of a crime committed on or after October 1, 1998, who received
a definite sentence of more than two years followed by a period of special
parole shall, at the expiration of the maximum term or terms of imprisonment
imposed by the court, be automatically transferred to the jurisdiction of the
chairperson of the Board of Pardons and Paroles . . . .’’
10
At the outset of the January 17, 2017 hearing, the following colloquy
occurred:
‘‘[Defense Counsel]: Prior to the commencement of argument on this case,
the state and I have had some discussions with respect to a resolution of
this case, and I know we brought this to the court’s attention on a prior
occasion. And just for the benefit of [the defendant], Judge Alexander had
indicated to me that she would be conferring with the court concerning
this, I don’t know if that’s taken place, but, for the record, [the defendant]
is—desires of taking advantage of the offer that the state has conveyed.
‘‘The Court: The difficulty is if the position of the parties is that it’s an
illegal sentence I can’t accept the offer that was made. I did discuss it with
Judge Alexander; she’s not inclined.
‘‘[Defense Counsel]: All right. Very well.’’
The defendant argues that this situation could have been avoided if Judge
Alexander had been assigned to hear and decided the defendant’s motion
to correct. Assuming, arguendo, that to be true, the defendant nevertheless
failed to establish a due process violation.
11
In his appellate brief, the defendant has not raised or briefed any claims
pursuant to the state constitution. Accordingly, we treat his claim as limited
to the federal constitution. See, e.g., State v. Delgado, 323 Conn. 801, 805
n.4, 151 A.3d 345 (2016).
12
‘‘[A] defendant can prevail on a claim of constitutional error not pre-
served at trial only if all of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived the defendant of a
fair trial; and (4) if subject to harmless error analysis, the state has failed
to demonstrate harmlessness of the alleged constitutional violation beyond
a reasonable doubt. In the absence of any one of these conditions, the
defendant’s claim will fail.’’ (Emphasis in original; internal quotation marks
omitted.) State v. Washington, 186 Conn. App. 176, 193, 199 A.3d 44 (2018),
cert. denied, 330 Conn. 958, 198 A.3d 585 (2019).
13
The defendant also argues that we should conclude that the fact that
Judge Dewey, rather than Judge Alexander, decided the motion to correct
an illegal sentence constituted plain error. Practice Book § 60-5 provides in
relevant part: ‘‘The court shall not be bound to consider a claim unless it
was distinctly raised at the trial or arose subsequent to the trial. The court
may in the interests of justice notice plain error not brought to the attention
of the trial court.’’
We disagree with the defendant that this issue rises to the level of plain
error. ‘‘[T]he plain error doctrine is reserved for truly extraordinary situa-
tions [in which] the existence of the error is so obvious that it affects the
fairness and integrity of and public confidence in the judicial proceedings.
. . . [I]n addition to examining the patent nature of the error, the reviewing
court must examine that error for the grievousness of its consequences
in order to determine whether reversal under the plain error doctrine is
appropriate. A party cannot prevail under plain error unless it has demon-
strated that the failure to grant relief will result in manifest injustice. . . .
[Previously], we described the two-pronged nature of the plain error doc-
trine: [An appellant] cannot prevail under [the plain error doctrine] . . .
unless he demonstrates that the claimed error is both so clear and so harmful
that a failure to reverse the judgment would result in manifest injustice.’’
(Citation omitted; emphasis omitted; internal quotation marks omitted.)
State v. McClain, 324 Conn. 802, 812, 155 A.3d 209 (2017).
14
The defendant argues that ‘‘[t]he Supreme Court, in State v. Pina, 185
Conn. 473, 481–82, [440 A.2d 962] (1981), interpreted ‘the judicial authority’
in the predecessor to Practice Book § 43-22, to mean ‘the sentencing court.’ ’’
We emphasize that Pina was published prior to the passage of the 1982
amendment to the Practice Book § 43-22, and, thus, does not support the
defendant’s contention that a motion to correct must be decided by the
particular sentencing judge.
15
In his dissenting opinion in State v. McGee, 175 Conn. App. 566, 597
n.11, 168 A.3d 495 (Bishop, J., dissenting), cert. denied, 327 Conn. 970, 173
A.3d 953 (2017), Judge Bishop observed that, in only one of fifteen cases
that were selected at random for a survey, the judge who had heard and
adjudicated a motion to correct an illegal sentence was the original sentenc-
ing judge.