State v. Arnold ( 2021 )

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STATE OF CONNECTICUT v. EARL ARNOLD
(AC 40489)
Bright, C. J., and Moll and Harper, Js.
Syllabus
The defendant, who had been convicted of the crimes of murder, kidnapping,
capital felony, larceny in the first degree and robbery in the first degree
and sentenced to a total effective term of seventy years of imprisonment
without the possibility of parole, appealed from the judgment of the
trial court denying in part his motion to correct an illegal sentence. At
the hearing on his motion, the defendant, who was seventeen years old
at the time he committed the crimes, claimed that his capital felony
conviction and sentence had to be vacated because, under No. 15-84 of
the 2015 Public Acts, individuals who were juveniles at the time of their
offense no longer could be sentenced for capital felony and that the
remainder of his sentence was illegal because the sentencing court
violated the prohibition against double jeopardy by imposing his sen-
tence for murder in conjunction with his sentence for capital felony.
The trial court vacated the defendant’s capital felony conviction and
sentence but denied any further relief. Held that the defendant’s claim,
raised for the first time on appeal, that his right to due process was
violated because the sentencing court relied on materially inaccurate
information at his sentencing, namely, that it failed to recognize, as
required by Miller v. Alabama (567 U.S. 460) and State v. Riley (315
Conn. 637), that juveniles are different from adults for purposes of
sentencing, was not reviewable under State v. Golding (213 Conn. 233),
the record having been inadequate for review.
Argued May 12—officially released July 20, 2021
Procedural History
Substitute information, in the first case, charging the
defendant with the crimes of murder, kidnapping in the
first degree and capital felony, and substitute informa-
tion, in the second case, charging the defendant with
the crimes of larceny in the first degree and robbery
in the first degree, brought to the Superior Court in the
judicial district of Waterbury, where the cases were
consolidated and tried to the jury before Glass, J.; ver-
dicts and judgments of guilty; thereafter, the court,
Fasano, J., denied in part the defendant’s motion to
correct an illegal sentence, and the defendant appealed.
Affirmed.
Adele V. Patterson, senior assistant public defender,
for the appellant (defendant).
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and John J. Davenport, senior assistant state’s
attorney, for the appellee (state).
Opinion
BRIGHT, C. J. The defendant, Earl Arnold, appeals
from the judgment of the trial court, Fasano, J., denying
in part his motion to correct an illegal sentence. On
appeal, the defendant claims, for the first time, that his
current sentence is illegal because the sentencing court
relied on materially inaccurate information at his sen-
tencing. We conclude that this claim is not reviewable
and, accordingly, affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. In August, 1983,
the defendant, who was seventeen years old at the time,
abducted the victim, Joanne DiChiara, as she was walk-
ing to her car after having dinner at a restaurant in
Waterbury. The defendant then robbed the victim and,
in the process, stabbed her in the neck. Thereafter, the
defendant threw the victim into her car and drove to
a wooded area, where he disposed of her body. Before
leaving the woods, the defendant stabbed the victim
twenty-four more times. The victim’s body was eventu-
ally found, and, after a police investigation, the defen-
dant was arrested. On the basis of this evidence, a jury
found the defendant guilty of capital felony, intentional
murder, kidnapping in the first degree, larceny in the
first degree, and robbery in the first degree. The trial
court accepted the jury’s verdict and sentenced the
defendant to a total effective term of seventy years of
imprisonment without the possibility of parole.1 Our
Supreme Court affirmed the judgment of conviction on
direct appeal. State v. Arnold, 201 Conn. 276, 288, 514
A.2d 330 (1986).
In 2014, the self-represented defendant filed a motion
to correct an illegal sentence, alleging that under Miller
v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d
407 (2012),2 he was entitled to a resentencing hearing
at which the sentencing court could consider his age
at the time of the offenses in imposing a new sentence.
In 2016, following the appointment of counsel, the
defendant filed an amended motion3 to correct an illegal
sentence, again alleging that his sentence was unconsti-
tutional under Miller, as well as under our Supreme
Court’s decision in State v. Riley, 315 Conn. 637, 110
A.3d 1205 (2015), cert. denied, 577 U.S. 1202, 136 S. Ct.
1361, 194 L. Ed. 2d 376 (2016).4 The defendant’s 2016
motion was dismissed after the General Assembly
passed No. 15-84 of the 2015 Public Acts (P.A. 15-84),5
which amended Connecticut’s parole statute to provide
parole hearings to juvenile offenders who had been
convicted of crimes committed while they were under
eighteen years of age and who were incarcerated on
or after October 1, 2015, and received a sentence of
more than ten years. Public Act 15-84, § 1, was codified
at General Statutes § 54-125a.
In January, 2017, the defendant had a parole hearing
pursuant to P.A. 15-84. The parole board denied parole
and gave the defendant a new hearing date for January,
2022.6 Thereafter, in March, 2017, the defendant filed a
third motion to correct an illegal sentence. This motion
was dismissed initially, but the trial court later agreed
to consider it,7 and, on September 13, 2017, the trial
court held a hearing on the motion. At the hearing, the
defendant claimed that (1) his conviction and sentence
for capital felony had to be vacated because, under P.A.
15-84, individuals who were juveniles at the time of
their offense can no longer be sentenced for capital
felony and (2) the remainder of his sentence was illegal
because the sentencing court violated the prohibition
against double jeopardy by imposing the defendant’s
sentence for murder in conjunction with his sentence
for capital felony. The trial court agreed with the defen-
dant’s first claim and vacated his capital felony convic-
tion and sentence. As to the defendant’s second claim,
the court denied any further relief. This appeal followed.
The defendant does not challenge in this appeal the
court’s rulings on either of the claims he argued in
support of his third motion to correct an illegal sen-
tence. Instead, for the first time on appeal, the defen-
dant claims that his right to due process was violated
when the sentencing court relied on materially inaccu-
rate information at his sentencing. Specifically, the
defendant alleges that the sentencing court, Glass, J.,
erroneously relied on a misapprehension when it failed
to recognize, as now required by Miller v. Alabama,
supra, 567 U.S. 479, and State v. Riley, supra, 315 Conn.
645, that juveniles are different from adults for the pur-
poses of sentencing.8 The defendant 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, 781, 120 A.3d 1188 (2015). We conclude that
this claim is not reviewable under Golding.9
‘‘Pursuant to Golding, a defendant can prevail on a
claim of constitutional error not preserved 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 constitu-
tional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail. . . . State
v. Golding, supra, 213 Conn. 239–40; see also In re
Yasiel R., [supra, 317 Conn. 781] (modifying third prong
of Golding).’’ (Emphasis omitted; internal quotation
marks omitted.) State v. Weatherspoon, 332 Conn. 531,
548 n.9, 212 A.3d 208 (2019). ‘‘The appellate tribunal is
free, therefore, to respond to the defendant’s claim by
focusing on whichever condition is most relevant in the
particular circumstances.’’ (Internal quotation marks
omitted.) State v. Papantoniou, 185 Conn. App. 93, 102–
103, 196 A.3d 839, cert. denied, 330 Conn. 948, 196 A.3d
326 (2018).
We conclude that the defendant’s due process claim
is unreviewable because it fails under the first prong
of Golding. ‘‘[D]ue process precludes a sentencing court
from relying on materially untrue or unreliable informa-
tion in imposing a sentence.’’ State v. Parker, 295 Conn.
825, 843, 992 A.2d 1103 (2010); see also State v. Thomp-
son, 197 Conn. 67, 77, 495 A.2d 1054 (1985) (defendant
‘‘may not be sentenced on the basis of improper factors
or erroneous information’’). To prevail on such a claim,
it is not enough for the defendant to allege that the
sentencing court relied on false or inaccurate informa-
tion. State v. Parker, supra, 843. Instead, the defendant
must show (1) that the information was materially false
or inaccurate and (2) that the sentencing court relied
on that information. Id. ‘‘[A] claim that the trial court
improperly denied a defendant’s motion to correct an
illegal sentence is [typically] reviewed pursuant to the
abuse of discretion standard.’’ (Internal quotation
marks omitted.) State v. Francis, Conn. , ,
A.3d (2021). Because this claim was not argued
before the trial court, there are no findings of fact as
to whether the sentencing court materially relied on
false or inaccurate information when sentencing the
defendant. Also absent from the record are any findings
regarding what misapprehensions the sentencing court
might have had about juvenile offenders and whether
the court relied on those misapprehensions when sen-
tencing the defendant. Consequently, the record is inad-
equate for us to determine whether the trial court
abused its discretion in denying the defendant’s third
motion to correct an illegal sentence. In fact, given that
the trial court was never presented with the argument
that the defendant now raises on appeal, we fail to
see how we could conclude that the court abused its
discretion as to an issue on which it was never asked
to exercise its discretion.
We are unpersuaded by the defendant’s argument
that the sentencing transcript provides adequate facts
to support a conclusion that the sentencing court
imposed its sentence on the basis of misapprehensions
about sentencing juveniles. Specifically, the defendant
claims that the sentencing court expressed such misap-
prehensions when it (1) remarked that ‘‘ ‘all of us’ ’’
have criminal impulses and (2) linked the defendant’s
criminal actions to impulsive and reckless behavior.
With this argument, the defendant essentially requests
that we find facts and draw inferences solely on the
basis of a few of the sentencing court’s remarks. ‘‘It is
axiomatic that this court does not make factual determi-
nations’’; State v. Player, 58 Conn. App. 592, 596, 753
A.2d 947 (2000); and we will not do so here. Cf. State
v. Francis, supra, Conn. n.9 (proper focus of
appeal from denial of motion to correct illegal sentence
is whether trial court considering motion, not sentenc-
ing court, abused its discretion when denying motion).
We also are not convinced by the defendant’s argu-
ment that his due process claim is ‘‘one of law . . . on
which it would add nothing to interpose a ruling by the
trial court.’’ The defendant is correct that this court
properly can make conclusions of law that the trial
court never made or was asked to make. See State v.
Torres, 230 Conn. 372, 379, 645 A.2d 529 (1994). We,
however, can make such legal conclusions only if ‘‘the
factual record is adequate to provide the basis for such
a conclusion.’’ Id. In the present case, as previously
explained, the factual record is inadequate for the pur-
poses of deciding the defendant’s due process claim.
Furthermore, the record is devoid of any information
concerning the defendant’s January, 2017 parole hear-
ing, the parole board’s decision, the factors that the
parole board considered in reaching its decision, or the
defendant’s eligibility for future parole hearings. Given
the absence of that information and the lack of neces-
sary fact-finding, the record is inadequate to review the
defendant’s unpreserved constitutional claim. Specifi-
cally, we cannot determine if the defendant’s due pro-
cess rights were addressed adequately through the
parole process. See State v. Golding, supra, 213 Conn.
240 (‘‘[i]f the facts revealed by the record are insuffi-
cient, unclear or ambiguous as to whether a constitu-
tional violation has occurred, we will not attempt to
supplement or reconstruct the record, or to make fac-
tual determinations, in order to decide the defendant’s
claim’’).
We therefore are unable to review the defendant’s
due process claim under Golding because the record
is inadequate.10 Of course, our conclusion does not pre-
clude the defendant from filing another motion to cor-
rect an illegal sentence and raising the same due process
claim raised for the first time in this appeal. By doing
so, an appropriate evidentiary record can be created
for review of such a claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Under Connecticut law, this sentence constitutes a sentence of life
imprisonment. See General Statutes § 53a-35b (‘‘[a] sentence of life imprison-
ment means a definite sentence of sixty [or more] years’’).
2
In Miller v. Alabama, supra, 567 U.S. 479, the United States Supreme
Court held that ‘‘the [e]ighth [a]mendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile offenders.’’
The court in Miller further noted that an offender’s age is relevant in
determining ‘‘the appropriateness of a lifetime of incarceration without the
possibility of parole.’’ Id., 473.
3
It is unclear from the record whether the defendant’s 2014 motion ever
was considered by the trial court or if the motion was withdrawn when the
defendant filed his amended motion to correct an illegal sentence in 2016.
4
In Riley, our Supreme Court held that, when an offender is under the
age of eighteen, the sentencing court must consider the offender’s age before
imposing a sentence of life without parole. State v. Riley, supra, 315 Conn.
658; see id. (listing features of offender’s age that court must consider when
sentencing juveniles).
5
In Montgomery v. Louisiana, 577 U.S. 190, 212, 136 S. Ct. 718, 193 L.
Ed. 2d 599 (2016), the United States Supreme Court held that the rule created
in Miller v. Alabama, supra, 567 U.S. 479, applied retroactively to individuals
who had been sentenced as juveniles to life in prison without the possibility
of parole. The court also stated that its holding ‘‘does not require [s]tates
to relitigate sentences . . . in every case where a juvenile offender received
mandatory life without parole.’’ Montgomery v. Louisiana, supra, 212.
Instead, states could remedy existing Miller violations simply by permitting
juvenile offenders ‘‘to be considered for parole . . . .’’ Id. That was what
the General Assembly did when it passed P.A. 15-84. In 2016, in State v.
Delgado, 323 Conn. 801, 810–13, 151 A.3d 345 (2016), our Supreme Court
held that P.A. 15-84 was constitutional under the eighth amendment to the
United States constitution and that providing an opportunity for parole to
those who previously had been sentenced as juveniles to life without parole
sufficiently negated any violations created by the retroactive application of
the rule established in Miller. See also State v. Williams-Bey, 167 Conn.
App. 744, 763, 144 A.3d 467 (2016) (‘‘for juvenile offenders who were entitled
to be, but were not, sentenced with consideration of the mitigating factors
of youth as required by Miller, [an opportunity for parole under P.A. 15-84]
offers a constitutionally adequate remedy under the eighth amendment to
those who qualify for parole under its provisions.’’), aff’d, 333 Conn. 468,
215 A.3d 711 (2019). More recently, our Supreme Court held in State v.
McCleese, 333 Conn. 378, 387, 421–22, 428–29, 215 A.3d 1154 (2019), that
P.A. 15-84 adequately remedies any unconstitutional sentence under the state
constitution, is consistent with separation of powers principles embodied
in the state constitution, and did not violate the defendant’s right to equal
protection. In McCleese, the defendant also raised, for the first time in his
reply brief, a claim that the parole remedy provided under P.A. 15-84 violated
his federal constitutional right to due process. Id., 424. The court concluded
that the claim was inadequately briefed. Id. Despite this conclusion, the
court noted: ‘‘Nevertheless, we emphasize that our holdings in Delgado and
the present case are premised on P.A. 15-84, § 1, as enacted. It is on the
basis of this legislation that we hold that any Miller violation has been
negated and that there are no separation of powers violations.’’ Id., 424–25.
6
Because the defendant did not raise his due process claim before the
trial court, the record does not contain any information about the defendant’s
parole hearing. Nevertheless, the state included such information in its
appellate brief, and the defendant does not dispute that a parole hearing
occurred, that he was denied parole, and that a new hearing was scheduled
for 2022.
7
After the trial court denied the defendant’s 2016 motion to correct an
illegal sentence, the defendant filed a motion for reconsideration, which the
trial court also denied. The defendant then filed a motion for articulation
concerning the court’s denial of the motion for reconsideration. The state
objected to that motion, and the trial court sustained the objection. The
defendant thereafter filed a motion for review with this court, which granted
the motion and ordered the trial court to explain its reasoning for the denial
of the defendant’s motion for reconsideration. In response, the trial court,
which initially had denied the defendant’s 2017 motion to correct an illegal
sentence, agreed to vacate that denial and to hear the merits of the defen-
dant’s 2017 motion, which largely paralleled the issues that the defendant
had raised in his motion for reconsideration.
8
See footnotes 2 and 4 of this opinion.
9
This court previously has held that ‘‘it is inappropriate to review an
illegal sentence claim that is raised for the first time on appeal.’’ (Internal
quotation marks omitted.) State v. Jin, 179 Conn. App. 185, 195, 179 A.3d
266 (2018); see also State v. Starks, 121 Conn. App. 581, 592, 997 A.2d 546(2010) (it is not proper for Appellate Court to review motions to correct
illegal sentence under Golding because defendant has right, at any time, to
file motion to correct illegal sentence before trial court). In State v. McCleese,
333 Conn. 378, 425 n.23, 215 A.3d 1154 (2019), and State v. Evans, 329 Conn.
770, 809 n.27, 189 A.3d 1184 (2018), cert. denied, U.S. , 139 S. Ct.
1304, 203 L. Ed. 2d 425 (2019), however, our Supreme Court reviewed
motions to correct an illegal sentence under Golding. Because we are bound
by the decisions of that court; see Stuart v. Stuart, 297 Conn. 26, 45–46,
996 A.2d 259 (2010); we will consider the defendant’s claim under Golding.
10
Even if we were to reach the merits of the defendant’s due process
claim, it is likely that the claim, as briefed, would still fail under Golding’s
third prong. It is unclear whether the defendant is making a substantive or
procedural due process claim. To the extent that the defendant is making
a procedural due process claim, his briefs contain no reference to the
balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893,
47 L. Ed. 2d 18 (1976), and are therefore inadequate on this issue. See State
v. McCleese, supra, 333 Conn. 424. In the alternative, if the defendant is
making a substantive due process claim, we struggle to see how the parole
remedy created by P.A. 15-84 violates substantive due process, given that
(1) the eighth amendment to the United States constitution expressly
addresses the defendant’s due process concerns; see Kitchen v. Whitmer,
486 F. Supp. 3d 1114, 1132–33 (E.D. Mich. 2020); and (2) both the United
States Supreme Court and our Supreme Court have held that the parole
remedy is constitutional under the eighth amendment. See footnote 5 of
this opinion.