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State v. Ryerson

Court of Appeals of Connecticut

January 30, 1990

STATE of Connecticut
v.
Robert RYERSON.

Argued Oct. 18, 1989.

Page 710

John R. Williams, with whom, on the brief, was Sue L. Wise, New Haven, for appellant (defendant).

Lawrence J. Tytla, Asst. State's Atty., with whom, on the brief, was C. Robert Satti, Sr., State's Atty., for appellee (State).

Before DALY, NORCOTT and FOTI, JJ.

[20 Conn.App. 573] DALY, Judge.

The defendant appeals from the denial of his motion for correction of an illegal sentence. This appeal arises out of the judgment rendered in the judicial district of New London sentencing the defendant to serve a ten year sentence on a charge of violation of probation; General Statutes § 53a-32; that sentence to run consecutive to a sentence then being served by the defendant.

On October 17, 1983, the defendant was sentenced by the trial court in the judicial district of New London, after having been convicted of three counts of robbery in the second degree. The court imposed a sentence of ten years on one count, and ten years, execution suspended after five years, on each of the other two counts. Because these sentences were imposed concurrently, the defendant received a total effective sentence of ten years. The court then determined that the defendant was drug dependent and committed him to the custody of the commissioner of mental health, pursuant to General Statutes § 21a-285, for not more than twenty-four months, during which time the sentences were to be fully suspended. The court indicated to the defendant that if he did not successfully complete the program he faced the full ten year sentence.

On April 27, 1984, the defendant was released by the commissioner of mental health and again appeared Before the New London trial court. At that time, the [20 Conn.App. 574] court fully suspended the ten year sentence and placed the defendant on probation for five years. The court, however, warned the defendant that if he came back Before the court as the result of drug related activity or a criminal violation, he would serve the entire balance of his ten year sentence.

On February 8, 1985, while still on probation, the defendant was convicted in the New Haven judicial district of robbery in the first degree, and sentenced to a term of fifteen years, execution suspended after six years, with five years probation. The court, Hadden, J., noted that the defendant's New London probation was in another jurisdiction and was not part of the sentence he imposed.

On May 28, 1985, the defendant was presented in New London on a warrant charging him with a violation of probation. The defendant pleaded guilty to this charge based on his previous conviction. [1] The New London court reimposed the October 17, 1983 ten year sentence to run consecutive

Page 711

to the six year New Haven sentence. [2] The defendant, therefore, received a total effective prison sentence of sixteen years.

On June 10, 1988, the defendant filed a motion for the reduction of his sentence on the ground that the presentence investigation report presented to the October 17, 1983 sentencing court showing eleven counts of armed robbery in Montana was in error and was not corrected until after the defendant was sentenced on the unrelated New Haven charge. He also argued that [20 Conn.App. 575] the sentence was punitive in nature and too harsh. The court denied this motion.

The defendant timely appealed this denial, but the original appeal was stayed in order to raise additional grounds in a second motion for correction of an illegal sentence. [3] After the court denied the second motion, this appeal ensued.

I

The defendant's first claim is that the trial court erred in denying his motion to correct an illegal sentence because the trial court in the judicial district of New London exceeded its statutory authority and violated the constitutional prohibition against double jeopardy. The defendant argues that the court illegally raised his effective sentence from a maximum of ten years that would have been imposed if the New London sentence was to run concurrent with the New Haven sentence, to sixteen years to serve based on the reimposition of the New London sentence to run consecutive to the New Haven sentence.

A

The defendant makes two arguments in his claim that the New London trial court exceeded its statutory authority when it reimposed the New London sentence to run consecutive to the New Haven sentence. First, he argues that the New London trial court did not have the authority to impose a consecutive sentence and that the only court that could impose a consecutive sentence would have been the New Haven court, acting pursuant to General Statutes § 53a-37. [4] We do not agree.

[20 Conn.App. 576] General Statutes § 53a-32(b) provides that if a violation of probation is established, the trial court may revoke the sentence of probation, "and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence." In State v. Gaskin,7 Conn.App. 131, 508 A.2d 40 (1986), this court determined that the probation revocation court did not impose an illegal sentence when it sentenced the defendant to three years for a violation of probation; that sentence to run consecutive to the sentence imposed for the intervening offense. The Gaskin court reasoned that "[t]here is no distinction between the present case and the situation in which a defendant, incarcerated after conviction, is later convicted of an additional crime committed Before the offense for which he is incarcerated, and who is, on the second conviction, sentenced to serve a term of imprisonment consecutive to the earlier sentence. Such a consecutive sentence is expressly permitted by General Statutes ยง 53a-37." Id., ...


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