State v. Pecor , 179 Conn. App. 864 ( 2018 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. GARY ALAN PECOR
(AC 39613)
Lavine, Bright and Flynn, Js.
Syllabus
The defendant, who previously had been convicted on a guilty plea of the
crime of robbery in the second degree, appealed to this court from the
trial court’s dismissal of his motion to correct an illegal sentence. The
trial court initially had sentenced the defendant to a definite period of
incarceration of two years followed by a period of eight years of special
parole. In September, 2014, following a motion to correct an illegal
sentence filed by the defendant, the trial court vacated the defendant’s
sentence and resentenced him to two years and one day of incarceration,
followed by seven years and 364 days of special parole. Subsequently,
the defendant filed a second motion to correct an illegal sentence, in
which he claimed, inter alia, that the court did not have jurisdiction to
modify the two years of incarceration to which he was originally sen-
tenced because that was not an illegal sentence, and that the court was
permitted to modify only the illegal portion of the sentence, namely,
the eight years of special parole. Additionally, he claimed that the new
sentence violated his constitutional right against double jeopardy. The
trial court rendered judgment dismissing the defendant’s second motion
to correct an illegal sentence, determining that because the defendant
was collaterally attacking its September, 2014 judgment, the claim was
moot and, thus, that it lacked subject matter jurisdiction to address the
defendant’s claims. Held:
1. The trial court improperly determined that it lacked jurisdiction to address
the defendant’s motion to correct an illegal sentence; because the court
could have granted the defendant relief by correcting the alleged illegal
sentence that had been imposed in September, 2014, the issue was not
moot, and the court’s conclusion that it lacked subject matter jurisdiction
because the defendant was collaterally estopped from claiming that his
new sentence was illegal was incorrect, as the doctrine of collateral
estoppel did not implicate the trial court’s subject matter jurisdiction.
2. The state could not prevail on its claim that the defendant’s claims were
barred by the doctrine of res judicata, as the claims regarding the new
sentence imposed in September, 2014, were not fully and fairly litigated
prior to the imposition of that new sentence: although the defendant’s
original sentence was found to be illegal in September, 2014, a new
sentence was imposed at that time, and the defendant’s challenge to
that sentence as illegal had not been considered and decided on the
merits when the defendant later filed his second motion to correct an
illegal sentence; furthermore, the defendant’s claim that he was being
deprived of his liberty unconstitutionally was of such import that it
should be heard on its merits and not ignored because it could have
been raised at an earlier proceeding, and res judicata did not preclude
the defendant’s claims because an illegal sentence is always capable of
correction in the interest of justice.
3. This court declined to address the merits of the defendant’s motion to
correct an illegal sentence on appeal, in which he alleged that the trial
court, by imposing an additional day of incarceration to the definite
period of incarceration that he already had completed, violated his
constitutional rights to due process and against double jeopardy:
although the defendant’s double jeopardy claim ostensibly presented a
question of law, there were factual findings that could be relevant to
the resolution of that claim, the issue had not been properly briefed
and there was an insufficient factual record to determine whether the
defendant’s due process rights were violated, which involved a factual
issue of whether the defendant had engaged in wrongdoing that could
not be resolved by this court; accordingly, the case was remanded for
a hearing on the merits of the defendant’s motion to correct.
Argued November 16, 2017—officially released February 27, 2018
Procedural History
Substitute information charging the defendant with
the crime of robbery in the second degree, brought to
the Superior Court in the judicial district of Danbury,
where the defendant was presented to the court, Cobb,
J., on a plea of guilty; judgment of guilty in accordance
with the plea; thereafter, the court, Shaban, J., dis-
missed the defendant’s motion to correct an illegal sen-
tence, and the defendant appealed to this court.
Reversed; further proceedings.
Michael K. Courtney, public defender, for the appel-
lant (defendant).
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, was Stephen J. Sedensky III, state’s
attorney, for the appellee (state).
Opinion
BRIGHT, J. The defendant, Gary Alan Pecor, appeals
from the judgment of the trial court dismissing his
motion to correct an illegal sentence. On appeal, the
defendant claims that the court improperly determined
that it did not have jurisdiction to address his motion
to correct. He also claims that this court should find,
as matter of law, that his sentence is illegal and remand
the case to the trial court with direction to resentence
him as he has requested. The state agrees that the trial
court incorrectly dismissed the defendant’s motion to
correct, but argues that the defendant’s claim of illegal-
ity is barred by the doctrine of res judicata. The state
asks this court to reverse the judgment of the trial court
and remand the case with instruction that the court
deny the defendant’s motion, or, in the alternative, that
this court remand the case to the trial court for a hearing
on the merits. We agree with the parties that the trial
court erred in dismissing the defendant’s motion for
lack of subject matter jurisdiction. We disagree, though,
that res judicata precludes the defendant’s claim. We
also disagree with the defendant that we should address
the merits of his claim on the basis of the record before
us. Accordingly, we reverse the judgment of the trial
court, and remand the case for a hearing on the merits
of the defendant’s motion to correct an illegal sentence.
The following facts and procedural history are rele-
vant to our resolution of the defendant’s claim on
appeal. On June 7, 2011, the defendant pleaded guilty
under the Alford doctrine1 to robbery in the second
degree in violation of General Statutes § 53a-135. The
factual basis for the plea was that, on March 4, 2011,
the defendant attempted to steal a beef tenderloin from
a supermarket in Brookfield. When the supermarket’s
employees attempted to detain him, he displayed a knife
in an effort to escape. Pursuant to the plea agreement,
the trial court sentenced the defendant to a definite
period of incarceration of two years followed by a
period of eight years of special parole. The two years
of incarceration were to run concurrently with the sen-
tence that the defendant then was serving on an unre-
lated conviction.
On May 7, 2013, the defendant filed a motion to cor-
rect an illegal sentence.2 The defendant claimed that
the sentence imposed by the court on June 7, 2011, was
illegal because he had been sentenced to a period of
special parole without receiving a definite sentence of
more than two years in violation of General Statutes
§ 54-125e (a).3 See State v. Boyd, 272 Conn. 72, 78, 861
A.2d 1155 (2004) (‘‘[s]ection 54-125e [a] applies only to
defendants who have received a definite sentence of
more than two years followed by a period of special
parole’’ [emphasis added; internal quotation marks
omitted]).
Following a series of continuances, and a reclaim
of the defendant’s motion to correct, the trial court
conducted a hearing on September 12, 2014. Although
the defendant withdrew his motion the previous day,
the state indicated to the trial court that the court still
was required to correct the illegal sentence. At the hear-
ing, the state acknowledged that the defendant’s sen-
tence was illegal, and it proposed that the court simply
resentence the defendant to two years and one day of
incarceration followed by seven years and 364 days of
special parole. Defense counsel stated that he believed
that the court could restructure the defendant’s sen-
tence in that manner, although he believed that the
court was required to afford the defendant the opportu-
nity to withdraw his guilty plea.
Rejecting defense counsel’s argument that it was
required to permit the defendant to withdraw his guilty
plea, the court vacated the defendant’s sentence and
resentenced him to two years and one day of incarcera-
tion, followed by seven years and 364 days of special
parole.4 The defendant received sentence credit for all
of the time that he previously had served. There was
no appeal taken from the court’s judgment.
On January 15, 2016, approximately sixteen months
after the defendant was resentenced, he filed a second
motion to correct an illegal sentence. In his second
motion, the defendant challenged the sentence imposed
on September 12, 2014, claiming that because the two
years of incarceration to which he was originally sen-
tenced was not an illegal sentence, the court did not
have jurisdiction to modify it. The defendant argued
that the court was permitted to modify only the illegal
portion of the sentence, the eight years of special parole.
Additionally, the defendant claimed that by sentencing
him to an additional day of incarceration after he had
completed his definite sentence of two years incarcera-
tion, the trial court violated his constitutional right
against double jeopardy. The state, in a written objec-
tion to the defendant’s motion in the trial court, claimed
that (1) the matter previously was decided on Septem-
ber 12, 2014, and (2) the court did not have jurisdiction
over the motion because the court imposed a legal
sentence on September 12, 2014, from which the defen-
dant did not appeal.
On March 11, 2016, the court conducted a hearing.
At the hearing, the state argued that the defendant
should have taken an appeal from the court’s judgment
on September 12, 2014. Defense counsel argued that
the defendant was challenging the sentence imposed
on September 12, 2014, on the ground that the court
improperly increased the defendant’s sentence by sen-
tencing him to an additional day of incarceration after
he had completed the original sentence of two years
of incarceration. Defense counsel disagreed with the
state’s contention that an appeal needed to be taken
from the court’s previous judgment, stating that ‘‘the
Practice Book doesn’t require an appeal to be taken, if
the sentence is illegal . . . . It’s illegal today; it’s illegal
ten years from now.’’
The court issued a written decision on the defendant’s
motion to correct on July 6, 2016. The court reasoned
that the defendant’s motion essentially sought reconsid-
eration of the court’s judgment on September 12, 2014.
The court reasoned that ‘‘[t]hrough his motion, the
defendant attempts to collaterally attack the court’s
[September 12, 2014 judgment]. However, the defendant
is collaterally estopped from doing so.’’ The court con-
cluded that the issue, therefore, was moot because its
‘‘prior [judgment] already [had] addressed the defen-
dant’s challenge to the legality of his original sentence.’’
Accordingly, the court determined that it lacked subject
matter jurisdiction, and it dismissed the motion to cor-
rect an illegal sentence. This appeal followed.
I
The defendant contends that the trial court improp-
erly determined that it did not have jurisdiction to
address his motion to correct. The state now agrees
with the defendant, and so do we.
‘‘[T]he 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 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. An illegal
sentence is essentially one which either exceeds the
relevant statutory maximum limits, violates a defen-
dant’s right against double jeopardy, is ambiguous, or
is internally contradictory. . . . We previously have
noted that a defendant may challenge 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. . . . [B]oth the trial court, and this court,
on appeal, have the power, at any time, to correct a
sentence that is illegal. . . . [T]he issue is one of law,
and we afford it plenary review.’’ (Citations omitted;
internal quotation marks omitted.) State v. Ruiz, 173
Conn. App. 608, 616–17, 164 A.3d 837 (2017).
In the present case, the trial court understood the
defendant’s motion to be a collateral attack on the
court’s September 12, 2014 judgment. The defendant,
however, explained that he was not collaterally
attacking the judgment that held that his original sen-
tence had been illegal, but, rather, he was challenging
the new sentence imposed on September 12, 2014, and
the manner in which it was imposed. He specifically
argued that the court improperly modified the legally
correct part of his sentence and had violated his right
against double jeopardy by sentencing him to an addi-
tional day of incarceration after he already had com-
pleted the definite portion of his sentence. The
defendant argued that his claims appropriately were
brought pursuant to Practice Book § 43-22. The trial
court, however, determined that the claim was moot,
and it dismissed the motion to correct.
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[a] court’s subject matter jurisdiction . . . . It is well
settled that [a]n issue is moot when the court can no
longer grant any practical relief.’’ (Citation omitted;
internal quotation marks omitted.) Middlebury v. Con-
necticut Siting Council, 326 Conn. 40, 53–54, 161 A.3d
537 (2017). Additionally, we recognize that ‘‘the doctrine
of collateral estoppel does not implicate a court’s sub-
ject matter jurisdiction.’’ State v. T.D., 286 Conn. 353,
360 n.6, 944 A.2d 288 (2008).
Here, the court could have granted the defendant
relief by correcting the alleged illegal sentence that had
been imposed on September 12, 2014. Therefore, the
issue was not moot. Furthermore, the court’s conclu-
sion that it lacked subject matter jurisdiction because
the defendant was collaterally estopped from claiming
that his new sentence was illegal was incorrect. See id.
Accordingly, the court improperly dismissed the defen-
dant’s motion to correct for lack of subject matter juris-
diction.
II
Although the state concedes that the trial court
improperly concluded that it lacked subject matter
jurisdiction to address the merits of the defendant’s
motion to correct, it argues that this court should con-
clude that the defendant’s claims are barred by the
doctrine of res judicata. The state, therefore, asks this
court to remand the case with direction to the trial
court to deny the defendant’s motion to correct an
illegal sentence. Because we conclude that the defen-
dant’s claims are not barred by the doctrine of res
judicata, we decline the state’s invitation.
‘‘Res judicata is a judicial doctrine . . . designed to
inhibit the ability of a plaintiff to litigate the same ques-
tion over and over again, encumbering the mechanisms
our society has established to resolve disputes . . . .
At the same time, our Supreme Court has instructed
that this doctrine of preclusion should be flexible and
must give way when [its] mechanical application would
frustrate other social policies based on values equally
or more important than the convenience afforded by
finality in legal controversies. . . . For that reason, the
scope of matters precluded necessarily depends on
what has occurred in the former adjudication. . . .
‘‘Under the doctrine of res judicata, or claim preclu-
sion, a former judgment on a claim, if rendered on the
merits, is an absolute bar to a subsequent action on the
same claim. A judgment is final not only as to every
matter [that] was offered to sustain the claim, but also
as to any other admissible matter [that] might have
been offered for that purpose. . . . Nonetheless, in
applying the doctrine of res judicata to a [criminal]
defendant’s constitutional claim, special policy consid-
erations must be taken into account. The interest in
achieving finality in criminal proceedings must be bal-
anced against the interest in assuring that no individual
is deprived of his liberty in violation of his constitutional
rights. . . . Whether two claims in a criminal case are
the same for the purposes of res judicata should there-
fore be considered in a practical frame and viewed with
an eye to all the circumstances of the proceedings. . . .
Because the doctrine has dramatic consequences for
the party against whom it is applied . . . we should
be careful that the effect of the doctrine does not work
an injustice.’’ (Citations omitted; internal quotation
marks omitted.) State v. Brundage, 148 Conn. App. 550,
561–62, 87 A.3d 582 (2014), aff’d, 320 Conn. 740, 135
A.3d 697 (2016).
‘‘We must determine, therefore, whether the claim
raised by the defendant in his motion to correct an
illegal sentence was already litigated and determined
in an earlier proceeding. The applicability of res judicata
principles depends on whether the present claim is
sufficiently similar to the previous claim to warrant our
giving preclusive effect to the prior judgment.’’ State v.
Osuch, 124 Conn. App. 572, 581, 5 A.3d 976, cert. denied,
299 Conn. 918, 10 A.3d 1052 (2010).
During the hearing on September 12, 2014, defense
counsel conceded that the court would be permitted
to sentence the defendant to an additional day of incar-
ceration, provided that the court allowed the defendant
the opportunity to withdraw his plea. In the second
motion to correct an illegal sentence, the defendant
argued that the court, under any circumstance, could
not modify his sentence in this way. Instead, he claimed
that because a portion of his original sentence—two
years of incarceration—was a legal sentence, the court
had no jurisdiction or authority to modify it, and could
only strike the special parole portion of the sentence,
which was illegal because the incarceration portion of
the sentence did not exceed two years. Furthermore, he
claimed that the court violated the prohibition against
double jeopardy by adding an additional day of incarcer-
ation to the definite sentence of incarceration that he
already had completed.
Although the state contends that these claims are
barred by res judicata, we conclude that the claims
regarding the new sentence imposed on September 12,
2014, were not fully and fairly litigated prior to the
imposition of that new sentence.
In support of its argument, the state relies on this
court’s decision in State v. Osuch, supra, 124 Conn.
App. 572. We conclude that such reliance is misplaced.
In Osuch, the defendant challenged his original sen-
tence for a third time on the basis of the same claim
that the presentence investigation report contained
incorrect information. Id., 582. This court concluded
that the defendant’s claim in his motion to correct an
illegal sentence was barred by the doctrine of res judi-
cata because it was ‘‘the same claim that both the
habeas court and the [sentence review] division had
previously considered and decided on the merits
through the issuance of final judgments.’’ Id.
In the present case, the defendant’s claim that the
sentence imposed on September 12, 2014, is illegal was
not previously considered and decided on the merits.
Although the defendant’s original sentence was found
to be illegal on September 12, 2014, a new sentence
was imposed on that date. A challenge to that sentence
had not been considered and decided on the merits
when the defendant filed his motion to correct an illegal
sentence on January 15, 2016. Moreover, applying the
doctrine to the defendant’s claim would work an injus-
tice. The defendant’s claim involves his having been
resentenced to an additional day of incarceration, after
he had been released from custody and after completing
the definite period of incarceration. A claim by a defen-
dant that he is being deprived of his liberty unconstitu-
tionally is of such import that it should be heard on its
merits and not ignored because it could have been
raised at an earlier proceeding. Accordingly, we con-
clude that the defendant’s claims in his motion to cor-
rect an illegal sentence are not barred by the doctrine
of res judicata.
This court’s decision in State v. Gaskin, 7 Conn. App.
131, 508 A.2d 40 (1986), further supports our conclusion
in the present case. In Gaskin, the trial court had
granted the defendant’s motion to correct an illegal
sentence, and the state did not appeal from that judg-
ment. Id., 133, 135. Several months after the court ren-
dered judgment, the state moved to correct the
amended sentence, claiming that the defendant’s origi-
nal sentence was not illegal. Id., 133. The trial court
denied the motion, and the state appealed. Id. On
appeal, the defendant claimed that the state’s motion
was improper because the state should have appealed
from the judgment of the trial court granting his motion
to correct. Id., 135.
This court rejected the defendant’s claim, stating that
‘‘[t]he defendant categorizes the state’s motion as a
transparent device to relitigate issues now res judicata,
and to resurrect rights to appeal now expired. Practice
Book § [43-22], however, expressly 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. . . . An illegal
sentence is always capable of correction in the interest
of justice.’’ (Emphasis in original; footnote omitted;
internal quotation marks omitted.) Id., 135–36. In this
case, the state takes the same position that it argued
against in Gaskin. Nevertheless, the principle remains
the same: ‘‘An illegal sentence is always capable of
correction in the interest of justice.’’ Id., 136. Therefore,
res judicata does not preclude the defendant’s claims.
III
Having concluded that the trial court incorrectly dis-
missed the defendant’s motion, and that the defendant’s
claims are not barred by the doctrine of res judicata,
we now consider the proper remedy. The defendant
requests that we address the merits of his motion to
correct an illegal sentence and remand this case to
the trial court with direction to resentence him to the
original sentence of two years incarceration that he
already has served and eliminate the special parole
portion of the sentence. The state, however, requests
that we remand the case to the trial court with direction
to hold a hearing on the merits of the defendant’s claims.
We conclude that the state’s requested remedy is more
appropriate under the circumstances of this case.
‘‘Although this court, on appeal, has the power, at
any time, to correct a sentence that is illegal, we may
decline to do so when the record is not adequate for
review. When presented with an inadequate record, we
are precluded from reviewing the claim on appeal. . . .
It is not an appropriate function of this court, when
presented with an inadequate record, to speculate . . .
or to presume error from a silent record.’’ (Footnote
omitted; internal quotation marks omitted.) State v.
Abraham, 152 Conn. App. 709, 731, 99 A.3d 1258 (2014).
Although the defendant’s double jeopardy claim
ostensibly presents a question of law, we conclude that
there are factual findings that may be relevant to the
resolution of his claim. Therefore, we decline to address
the merits of the defendant’s claim on appeal.
First, the state did not argue the merits of the defen-
dant’s claims in the trial court, and the issue received
only cursory attention in its appellate brief. Second,
the trial court only briefly addressed the merits of the
defendant’s claim, and it did not make factual findings.
In particular, the record is not clear as to whether the
defendant had completed the definite portion of his
sentence when he filed his May, 2013 motion to correct
an illegal sentence, which might affect the court’s con-
clusion as to whether the defendant had a reasonable
expectation of finality in connection with the defen-
dant’s double jeopardy argument. See, e.g., State v.
Wade, 178 Conn. App. 459, 465, A.3d (2017)
(‘‘[e]ven if the defendant had raised claims that chal-
lenged only some of the counts under which he had
been convicted, the fact that he exercised his right to
an appeal undermines his argument to an expectation
of finality in the sentence originally imposed’’ [internal
quotation marks omitted]), cert. denied, 327 Conn. 1002,
A.3d (2018).
Third, we question whether double jeopardy is the
correct lens through which to examine the defendant’s
claim, in light of our Supreme Court’s decision in State
v. Tabone, 292 Conn. 417, 973 A.2d 74 (2009). The defen-
dant’s principal claim is that the trial court, by imposing
an additional day of incarceration to the definite period
of incarceration that the defendant already had com-
pleted, violated the double jeopardy clause of the fifth
amendment to the United States constitution. In State
v. Tabone, supra, 292 Conn. 426, 430–31, our Supreme
Court addressed a similar claim under the due process
clauses of the federal and state constitutions. The court
reaffirmed the guiding principle that a defendant’s due
process rights are not violated when the court corrects
an illegal sentence, so long as the new sentence is not
more severe than the original sentence. Id., 428.
Applying that principle to the present case, we have
serious concerns about a purportedly corrective sen-
tence that increased the defendant’s period of incarcer-
ation, even if only by one day.
Nevertheless, the issue has not been properly briefed
and there is an insufficient factual record for us to
determine whether the defendant’s due process rights
were violated. As the defendant recognized in his
motion to correct, whether the defendant’s due process
rights have been violated may depend, in part, on
whether the defendant engaged in some wrongdoing in
order to obtain the illegal sentence. While the defendant
claims that such a conclusion would be ludicrous, it is
nonetheless a factual issue that we are not in a position
to resolve. In light of these issues, we conclude that
the trial court is in a better position to address fully
the defendant’s constitutional claims. Therefore, we
decline to address the merits of the defendant’s motion
to correct, and, accordingly, we remand the case to the
trial court for a hearing on the merits of the defendant’s
motion to correct an illegal sentence.
The judgment is reversed, and the case is remanded
for further proceedings according to law.
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
The record is not clear as to whether the defendant had completed the
definite period of incarceration when he filed the motion to correct.
3
General Statutes § 54-125e (a) applies to ‘‘[a]ny person convicted of a
crime committed on or after October 1, 1998, who received a definite sen-
tence of more than two years followed by a period of special parole . . . .’’
4
Although the court signed the defendant’s motion to correct an illegal
sentence on September 12, 2014, after it had been withdrawn by the defen-
dant on September 11, 2014, and the judgment file reflects that the court
granted the defendant’s motion, it is clear from the record that the court
corrected the defendant’s illegal sentence in accordance with the state’s oral
request, after acknowledging that the defendant had withdrawn his motion.