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State v. Jason B.

Court of Appeals of Connecticut

September 5, 2017

STATE OF CONNECTICUT
v.
JASON B.[*]

          Argued May 31, 2017

          Jason B., self-represented, the appellant (defendant).

          Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Adam E. Mattei, assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Keller and Mullins, Js.

         Syllabus

         The defendant, who had been convicted of the crimes of sexual assault in the first degree and unlawful restraint in the first degree, appealed to this court from the judgment of the trial court dismissing his motion to correct an illegal sentence. The trial court determined that the defendant had failed to present a colorable claim that the sentence had been imposed in an illegal manner and, therefore, the trial court lacked jurisdiction over the motion. On appeal, the defendant claimed that the trial court had jurisdiction because his motion fell within the applicable rule of practice (§ 43-22) in that it alleged that the sentencing court improperly ordered his sentences to run consecutively on the basis of inaccurate information or considerations not contained in the record. Held that the trial court properly dismissed the motion to correct an illegal sentence, the defendant having failed to raise even the possibility that the sentencing court relied on information that was inaccurate or outside the record and, therefore, the court did not have jurisdiction to entertain the defendant's motion; although the sentencing court commented on the seriousness of the defendant's actions in driving the victim around his car for what appeared to be a period longer than was necessary to commit the sexual assault on the victim and that, had the defendant been charged with and convicted of kidnapping rather than unlawful restraint, he would have received a greater sentence, those comments were based on the facts of the case and merely served as a rhetorical admonition by the sentencing court regarding the seriousness of the defendant's actions and his failure to take responsibility for them and did not constitute facts that reasonably could be viewed as information that was inaccurate or outside the record.

         Procedural History

         Substitute information charging the defendant with the crimes of sexual assault in the first degree and unlawful restraint in the first degree, brought to the Superior Court in the judicial district of Fairfield and tried to the jury before Rodriguez, J.; verdict and judgment of guilty, from which the defendant appealed to this court, which affirmed the judgment of the trial court; thereafter, the court, Devlin, J., dismissed the defendant's motion to correct an illegal sentence, and the defendant appealed to this court. Affirmed.

          OPINION

          MULLINS, J.

         The defendant, Jason B., appeals from the judgment of the trial court dismissing the defendant's motion to correct an illegal sentence.[1] The court dismissed the motion on the ground that the defendant failed to present a colorable claim that his sentence had been imposed in an illegal manner. The defendant claims this was error. We affirm the judgment of the trial court.

         The following facts, which were set forth by this court in the defendant's direct appeal from his judgment of conviction of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), inform our review. ‘‘The victim . . . and the defendant were married in September, 1999, and had a daughter . . . . [The victim] filed for divorce in October, 2005, and their divorce became final in February, 2006.

         ‘‘On February 21, 2006, the defendant repeatedly contacted [the victim] and requested to meet with her. They . . . eventually met at a Borders bookstore at about 8:30 p.m. They later walked to a nearby Boston Market for dinner, where the defendant asked [the victim] to have sex with him. She refused, and he asked her to join him in his car for a cigarette. She got into the car, where the defendant renewed his requests for sex, which [the victim] continued to turn down. She tried to get out of the car at least once, but the defendant pulled her back in by the arm. The defendant then informed [the victim] that he had withdrawn all of the money from their joint bank account, approximately $6000, which was all of [the victim's] savings. He also told her that he was going to make her life very difficult, that he was going to take [their daughter], that she would never see [her] again and that he was going to hurt everyone that she knew. He told [the victim] that if she slept with him, he would give back the money and leave her alone. [The victim] again tried to get out of the car, but the defendant pulled her back in.

         ‘‘The defendant then drove off with [the victim] in the car, and [the victim] began screaming out the window; at some point, he had locked all of the doors. He eventually stopped the car in a dark, wooded area with no houses nearby. He climbed from the driver's side to the passenger's side of the car, where [the victim] was sitting, and began touching her between her legs. [The victim] testified that she tried to fight him off but that she was unable to because he had her left arm pinned behind her head and he was stronger than she was. At one point, he also took her [cell phone] from her and threw it in the backseat. He also repeatedly put his hand over her mouth to the point where she could not breathe, and he stopped only when she told him she would not fight him anymore.

         ‘‘The defendant eventually climbed off of [the victim], started the car and told her he would bring her home. Instead, while he was driving, he unzipped his pants, removed his penis and ordered [the victim] to perform fellatio. She began to do so but began to feel sick and . . . asked the defendant to stop the car. He stopped the car, and she opened the car door and vomited on the side of the road. The defendant started the car again and continued to drive; [the victim] did not know where she was or what town she was in. [The victim] asked to use a bathroom, and the defendant stopped the car again and she got out to urinate. [The victim] returned to the car and the defendant instructed her to lie down as he reclined the seat. The defendant then began touching [the victim's] vagina, asking her if she liked it. She told him she wanted him to stop, and he said: ‘No you don't. He took off his belt, flexed it and ordered her into the backseat of the car. They both got into the backseat, and the defendant penetrated the victim's vagina and anus with his penis. After he stopped, the defendant returned to the driver's seat of the car and drove away. He eventually returned to the Boston Market, where [the victim] had left her car, and dropped her off. [The victim] got into her car and drove home. [The ...


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