State v. Vivo ( 2020 )

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STATE OF CONNECTICUT v. JOHN VIVO III
(AC 42909)
Bright, Moll and Bear, Js.
Syllabus
The defendant, who had been previously convicted of the crimes of murder
and assault in the first degree and whose sentence was enhanced pursu-
ant to statute (§ 53-202k) for the commission of class A and B felonies
with a firearm, appealed to this court from the judgment of the trial
court dismissing his motion to correct an illegal sentence. On appeal,
the defendant claimed that the trial court improperly concluded that it
lacked jurisdiction to consider his motion because there was evidence
that, in the course of the underlying shootings, he had used a weapon
that was specifically exempted from the ambit of § 53-202k, and, there-
fore, his sentence enhancement pursuant to that statute was illegal.
Held that the trial court properly dismissed the defendant’s motion to
correct an illegal sentence; for that court to have jurisdiction over that
motion after the sentence had been executed, the sentencing proceeding,
and not the proceedings leading to the conviction, had to be the subject
of the attack, and the defendant’s claim here, in essence, that the state
did not present sufficient evidence to prove that § 53-202k was applica-
ble, did not challenge the legality of his sentence or the sentence proceed-
ing but, rather, the evidence that underpinned his conviction, and, there-
fore, a motion to correct an illegal sentence was not the proper
procedural path for the defendant to raise such a claim, as it challenged
his underlying conviction.
Argued January 21—officially released May 19, 2020
Procedural History
Substitute information charging the defendant with
the crimes of murder and assault in the first degree,
brought to the Superior Court in the judicial district of
Fairfield and tried to the jury before Gormley, J.; verdict
and judgment of guilty, and sentence enhanced for the
commission of a class A, B or C felony with a firearm,
from which the defendant appealed to the Supreme
Court, which affirmed the judgment of the trial court;
thereafter, the court, Devlin, J., dismissed the defen-
dant’s motion to correct an illegal sentence, and the
defendant appealed to this court. Affirmed.
John Vivo III, self-represented, the appellant
(defendant).
C. Robert Satti, Jr., supervisory assistant state’s attor-
ney, with whom, on the brief, was John C. Smriga,
state’s attorney, for the appellee (state).
Opinion
BEAR, J. The defendant, John Vivo III, 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 concluded that it
lacked jurisdiction to consider that motion. The defen-
dant’s claims in support of his position, however, chal-
lenge the validity of his conviction rather than any
defect in his sentence or the sentencing proceeding.
Therefore, we conclude that the court properly deter-
mined that it lacked subject matter jurisdiction to con-
sider the defendant’s motion. Accordingly, we affirm
the judgment of the court.
The following facts and procedural history are rele-
vant to this appeal. In State v. Vivo, 147 Conn. App.
414, 81 A.3d 1241 (2013), cert. denied, 314 Conn. 901,
99 A.3d 1170 (2014), cert. denied, U.S. , 135 S.
Ct. 1164, 190 L. Ed. 2d 920 (2015), this court set forth
some of the background relevant to the defendant’s
claims in this appeal. ‘‘In 1995, the defendant was found
guilty by a jury of murder in violation of General Stat-
utes § 53a-54a (a), assault in the first degree in violation
of General Statutes § 53a-59 (a) (1), and commission
of a class A and class B felony with a firearm in violation
of General Statutes § 53-202k.1 The court, Gormley, J.,
sentenced him to sixty years imprisonment on the mur-
der conviction, ten years on the assault conviction, and
five years on the violation of § 53-202k, all the sentences
to run consecutively to each other, for a total effective
sentence of seventy-five years imprisonment. [Our]
Supreme Court affirmed the judgment of conviction.
See State v. Vivo, 241 Conn. 665, 697 A.2d 1130 (1997).2
‘‘Thereafter, the defendant filed a petition for a writ
of habeas corpus alleging ineffectiveness of both his
trial and appellate counsel. The habeas court, Hon.
Richard M. Rittenband, judge trial referee, denied the
habeas petition and granted certification to appeal. This
court reversed the habeas judgment as to the defen-
dant’s conviction under § 53-202k, noting that § 53-202k
is a sentence enhancement provision, not a separate
offense. See Vivo v. Commissioner of Correction, 90
Conn. App. 167, 177, 876 A.2d 1216, cert. denied, 275
Conn. 925, 883 A.2d 1253 (2005). Accordingly, we con-
cluded that [a]lthough the [defendant’s] total effective
sentence was proper, the judgment must be modified
to reflect the fact that § 53-202k does not constitute a
separate offense and we remanded the case with direc-
tion to vacate that conviction and to resentence the
[defendant] to a total effective term of seventy-five
years incarceration. . . .
‘‘Thereafter, the self-represented defendant filed [an]
amended motion to correct an illegal sentence raising
three claims: (1) the seventy-five year sentence is con-
trary to the initial remand order of this court; (2) he is
entitled to a new trial and a jury determination regarding
the applicability of the § 53-202k enhancement provi-
sion; and (3) he was never resentenced as required by
the remand order of this court. The trial court, Devlin,
J., denied the first two claims. As to the third, Judge
Devlin noted that, following this court’s remand in the
habeas action, the habeas file indicated that the habeas
court, Bryant, J., had filed its own Motion for Judgment
and resentenced the defendant to a total effective sen-
tence of seventy-five years imprisonment without, how-
ever, the defendant’s presence and without anything
being placed on the record. In addition, the judgment
mittimus was never modified to reflect the vacated con-
viction under § 53-202k. Accordingly, Judge Devlin
vacated the conviction under § 53-202k and resentenced
the defendant as follows: sixty years imprisonment on
the murder conviction, and ten years on the assault
conviction enhanced to fifteen years pursuant to § 53-
202k, to run consecutively to the sentence on the mur-
der conviction, for a total effective sentence of seventy-
five years imprisonment. Judge Devlin also amended
the mittimus to reflect the vacated conviction.’’ (Cita-
tion omitted; footnotes added and omitted; internal quo-
tation marks omitted.) State v. Vivo, supra, 147 Conn.
App. 416–17.
Thereafter, the defendant appealed to this court
claiming that ‘‘(1) Judge Devlin abused his discretion
in denying the defendant appointed counsel to pursue
his motion to correct an illegal sentence; (2) Judge
Devlin improperly denied the defendant’s motion to
correct an illegal sentence; (3) Judge Devlin abused his
discretion in determining that the defendant was not
entitled to a new trial and jury determination as to the
applicability of § 53-202k; (4) his sentence is unconstitu-
tional and, therefore, his incarceration is illegal; (5) his
resentencing by Judge Bryant was imposed in an illegal
manner; (6) his sentence under § 53-202k constituted
double jeopardy; (7) Judge Devlin abused his discretion
when he vacated the conviction under § 53-202k on the
mittimus and sentence[d] the defendant . . . on the
assault charge and imposed [five] years without due
process of law; and (8) the denial of his request for
appellate counsel violated his constitutional rights
under the federal and state constitutions, and his rights
under General Statutes § 51-296.’’ (Internal quotation
marks omitted.) Id., 417–18. We concluded that the
defendant’s claims were without merit, and we, there-
fore, affirmed the court’s judgment. Id., 418.
On February 10, 2015, the defendant filed another
motion to correct an illegal sentence. After a hearing,
the court, Devlin, J., dismissed the motion. The defen-
dant appealed to this court, and we affirmed the court’s
judgment. See State v. Vivo, 179 Conn. App. 906, 176
A.3d 1261, cert. denied, 328 Conn. 939, 184 A.3d 759,
cert. denied, U.S. , 139 S. Ct. 349, 202 L. Ed. 2d
246 (2018).
On October 22, 2018, the defendant filed another
motion to correct an illegal sentence claiming that he
was sentenced illegally pursuant to § 53-202k. After a
hearing, the court, Devlin, J., on January 15, 2019, dis-
missed the motion on the ground that it lacked jurisdic-
tion. This appeal followed.
On appeal, the defendant advances numerous claims,
including that the trial court improperly concluded that
it lacked jurisdiction and the alleged defect in the defen-
dant’s sentence enhancement related to his underlying
conviction, and that the firearm he used is exempt from
§ 53-202k, making his sentence enhancement under
§ 53-202k illegal. The state counters, inter alia, that the
defendant’s claims relate to his underlying conviction,
and, therefore, the court properly dismissed the motion
to correct because it lacked jurisdiction. We agree with
the state.
Initially, we set forth our standard of review. ‘‘The
issue of whether a defendant’s claim may be brought
by way of a motion to correct an illegal sentence, pursu-
ant to Practice Book § 43-22,3 involves a determination
of the trial court’s subject matter jurisdiction and, as
such, presents a question of law over which our review
is plenary.’’ (Footnote added.) State v. Abraham, 152
Conn. App. 709, 716, 99 A.3d 1258 (2014).
‘‘The Superior Court is a constitutional court of gen-
eral jurisdiction. In the absence of statutory or constitu-
tional provisions, the limits of its jurisdiction are deline-
ated by the common law. . . . It is well established
that under the common law a trial court has the discre-
tionary 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 [C]om-
missioner of [C]orrection and begins serving the sen-
tence. . . . Because it is well established that the juris-
diction 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.’’ (Internal quota-
tion marks omitted.) State v. Robles, 169 Conn. App.
127, 132, 150 A.3d 687 (2016), cert. denied, 324 Conn.
906, 152 A.3d 544 (2017).
‘‘Although the [trial] court loses jurisdiction over [a]
case when [a] defendant is committed to the custody of
the [C]ommissioner of [C]orrection and begins serving
[his] sentence . . . [Practice Book] § 43-22 embodies
a common-law exception that permits the trial court to
correct an illegal sentence or other illegal disposition.
. . . Thus, if the defendant cannot demonstrate that
his motion to correct 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 sentencing proceeding [itself] . . .
must be the subject of the attack. . . . [T]o invoke
successfully the court’s jurisdiction with respect to a
claim of an illegal sentence, the focus cannot be on
what occurred during the underlying conviction. . . .
‘‘Connecticut courts have considered four categories
of claims pursuant to [Practice Book] § 43-22. The first
category has addressed whether the sentence was
within the permissible range for the crimes charged.
. . . The second category has considered violations of
the prohibition against double jeopardy. . . . The third
category has involved claims pertaining to the computa-
tion of the length of the sentence and the question of
consecutive or concurrent prison time. . . . The fourth
category has involved questions as to which sentencing
statute was applicable. . . . [I]f a defendant’s claim
falls within one of these four categories the trial court
has jurisdiction to modify a sentence after it has com-
menced. . . . If the claim is not within one of these
categories, then the court must dismiss the claim for a
lack of jurisdiction and not consider its merits.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. St. Louis, 146 Conn. App. 461, 466–67, 76 A.3d 753,
cert. denied, 310 Conn. 961, 82 A.3d 628 (2013).
We turn now to the defendant’s claims, which can
be distilled into a single claim, namely, that the court
improperly concluded that it lacked jurisdiction
because there was evidence that in the course of the
shootings he had used a MAC-11,4 a weapon specifically
exempted from the ambit of § 53-202k, and, instead,
subject to the provisions of General Statutes § 53-202j.
He argues that his sentence enhancement pursuant to
§ 53-202k is illegal because he used a MAC-11 assault
weapon in the perpetration of the crimes. We conclude
that this claim challenges the correctness of the defen-
dant’s underlying criminal conviction and that it, there-
fore, does not fall within any of the four categories that
are a prerequisite for relief pursuant to Practice Book
§ 43-22.5 ‘‘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.’’ State v. Lawrence, 281 Conn.
147, 158, 913 A.2d 428 (2007).
In reviewing the defendant’s claim on appeal, our
decision in State v. Thompson, 190 Conn. App. 660, 212
A.3d 263, cert. denied, 333 Conn. 906, 214 A.3d 382
(2019), serves as a useful guide. Although we note that
the underlying conviction in Thompson was for conspir-
acy to commit robbery in the first degree, robbery in
the first degree, and kidnapping in the first degree, and
did not involve a sentence enhancement pursuant to
§ 53-202k as in the present case, the defendants in both
cases failed to challenge their sentences or the relevant
sentencing proceedings in their motions to correct an
illegal sentence. Accordingly, Thompson is helpful in
the resolution of this appeal.
In Thompson, the defendant, following his convic-
tion, filed a motion to correct an illegal sentence, claim-
ing that his sentence should be vacated because there
existed no evidence to show there was a plan between
him and a codefendant to support his conviction for
conspiracy to commit robbery in the first degree. Id.,
663. We affirmed the judgment of the trial court to
dismiss the motion to correct for lack of subject matter
jurisdiction. Id., 667. Specifically, we stated: ‘‘[T]he only
claim before the court was whether the state had pro-
duced sufficient evidence to support the defendant’s
conviction for conspiracy to commit robbery in the first
degree. . . . [We have] held that a claim of insufficient
evidence do[es] not concern the legality of [a defen-
dant’s sentence] or the manner in which it was imposed
and therefore lies outside the court’s jurisdiction in
regard to a motion to correct an illegal sentence. Put
differently, the defendant’s motion constituted a collat-
eral attack on his conviction and, thus, was not within
the court’s jurisdiction.’’ (Citation omitted; internal quo-
tation marks omitted.) Id., 666; see also State v. Starks,
121 Conn. App. 581, 590, 997 A.2d 546 (2010).
In the present case, the defendant essentially claims
that the state did not disprove his claim, based on eye-
witness testimony, that, during the shootings, he used
only a MAC-11 firearm, which, pursuant to General Stat-
utes § 53-202a, is defined as an assault weapon, and is,
thereby, exempted from the ambit of § 53-202k. Similar
to Thompson, in which the defendant did not challenge
the legality of his sentence or the sentencing proceed-
ing, the defendant’s appeal in the present case attacks
the evidence underpinning his conviction by claiming
that the state did not offer evidence sufficient to prove
that the sentence enhancement statute should apply.
Thus, as the court noted in its ruling, the problem with
the defendant’s claim is not the potential merit of the
claim but that a motion to correct an illegal sentence
is not the proper procedural path for the defendant to
raise such a claim because it challenges his underlying
conviction. The court, therefore, properly concluded
that it lacked jurisdiction to consider the defendant’s
motion to correct an illegal sentence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53-202k provides: ‘‘Any person who commits any class
A, B or C felony and in the commission of such felony uses, or is armed
with and threatens the use of, or displays, or represents by his words or
conduct that he possesses any firearm, as defined in section 53a-3, except
an assault weapon, as defined in section 53-202a, shall be imprisoned for a
term of five years, which shall not be suspended or reduced and shall
be in addition and consecutive to any term of imprisonment imposed for
conviction of such felony.’’
General Statutes § 53-202a provides in relevant part: ‘‘As used in this
section and sections 53-202b to 53-202k, inclusive: (1) ‘Assault weapon’
means:
‘‘(A) (i) Any selective-fire firearm capable of fully automatic, semiauto-
matic or burst fire at the option of the user or any of the following specified
semiautomatic firearms . . . MAC-10, MAC-11 and MAC-11 Carbine type
. . . .’’
We note that although the legislature has made amendments to § 53-202a
since the events underlying the present appeal; see Public Acts 2013, No.
13-220, §§ 3, 4 and 21; Public Acts 2013, No. 13-3, § 25; Public Acts 2001,
No. 01-130, § 1; Public Acts 1993, No. 93-306, § 1; those amendments have
no bearing on this appeal.
2
Our Supreme Court set forth the following facts underlying the defen-
dant’s conviction. ‘‘On February 23, 1994, at approximately 7:15 p.m., Yolanda
Martinez and William Terron were crossing a courtyard at the Evergreen
Apartments in Bridgeport when the defendant and two other persons, armed
with semiautomatic weapons, ran up to them. Martinez identified the two
others as Joel Rodriguez and Eric Floyd. The defendant pulled Terron near
a fence where he shot Terron ten times, killing him. At the same time,
Rodriguez shot Martinez in the hand and in the upper right arm, before he
and Floyd ran to a nearby car. The defendant then ran over to where Martinez
lay on the ground and shot her in the legs three times. . . . [When the]
police responded to a report of gunshots at the Evergreen Apartments . . .
they found Terron, who had suffered multiple gunshot wounds to the head,
chest and back and . . . pronounced [him] dead at the scene. The police
also found Martinez, who had suffered multiple gunshot wounds to the
lower part of her body. Martinez told Detective Donald Jacques that she
and Terron had been shot by the defendant, that the defendant had an Uzi
type weapon and that two other persons had been involved in the shootings.
Other witnesses had heard rapid-fire gun shots during this episode. The
police also found numerous nine millimeter bullet fragments at the scene.’’
State v. Vivo, supra, 241 Conn. 667–71.
3
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.’’
4
During the defendant’s underlying criminal trial, Edward Jachimowicz,
a forensic scientist for the forensic science laboratory of what is now the
Department of Emergency Services and Public Protection, testified that a
MAC-11 is a semi-automatic firearm resembling an Uzi, chambered in nine
millimeter, originally manufactured by Military Armaments Corporation but
now manufactured by S.W. Daniel, Inc.
5
We note that the defendant’s criminal conviction pursuant to § 53-202k
was reversed by this court in Vivo v. Commissioner of Correction, supra,
90 Conn. App. 177.