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State v. Rivera

Court of Appeals of Connecticut

October 17, 2017

STATE OF CONNECTICUT
v.
JOSE RIVERA

          Argued May 15, 2017

          W. Theodore Koch III, assigned counsel, for the appellant (defendant).

          Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, Melissa E. Patterson, assistant state's attorney, and Thomas R. Garcia, former senior assistant state's attorney, for the appellee (state).

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

         Syllabus

         The defendant, who previously had been convicted of, inter alia, the crime of murder and sentenced to a mandatory minimum term of twenty-five years of incarceration without the possibility of parole stemming from his role in a shooting when he was seventeen years old, appealed to this court, claiming that the trial court improperly dismissed his motion to correct an illegal sentence for lack of subject matter jurisdiction. The defendant claimed that his sentence was unconstitutional under the eighth amendment to the United States constitution, as interpreted by Miller v. Alabama (567 U.S. 460), which requires a sentencing court to consider a juvenile offender's youth and attendant characteristics as mitigating factors prior to sentencing a juvenile homicide offender to life without the possibility of parole or its functional equivalent. He also claimed that his mandatory minimum sentence of twenty-five years violated article first, §§ 8 and 9, of the state constitution, in that it prevented the court from sentencing a juvenile on a charge of murder to less than twenty-five years of incarceration upon due consideration to the factors outlined in Miller. During the pendency of the defendant's appeal, No. 15-84, § 1, of the 2015 Public Acts (P.A. 15-84, now codified at § 54-125a [f]) was enacted, pursuant to which the defendant became eligible for parole. Also, after this appeal was filed, our Supreme Court decided State v. Delgado (323 Conn. 801), in which it held that the eighth amendment to the United States constitution, as interpreted by Miller, does not prohibit a court from imposing a sentence of life imprisonment with the opportunity for parole for a juvenile homicide offender, or require the court to consider the mitigating factors of youth before imposing such a sentence, and that an allegation that the court failed to consider youth related factors before imposing a sentence of life with parole was not sufficient to establish a jurisdictional basis for correcting a sentence.

         Held:

         1. The trial court properly dismissed the defendant's motion to correct an illegal sentence for lack of subject matter jurisdiction; although the defendant initially was sentenced as a juvenile to twenty-five years of incarceration without the possibility of parole for a homicide offense, he is now eligible for parole pursuant to § 54-125a (f), and, therefore, pursuant to Delgado, because the sentencing court was not required to consider the mitigating factors of youth before imposing such a sentence, the defendant's motion to correct failed to state a colorable claim that his sentence of twenty-five years of incarceration was illegal or imposed in an illegal manner, and the trial court lacked subject matter jurisdiction to consider the merits of the motion to correct.

         2. The defendant could not prevail on his claim that a mandatory minimum sentence of twenty-five years of incarceration without the possibility of parole imposed on a juvenile homicide offender was unconstitutional under article first, §§ 8 and 9, of our state constitution, as the factors set forth in State v. Geisler (222 Conn. 672) to be considered in defining the scope and parameters of the state constitution did not support the defendant's state constitutional claim: the mandatory minimum sentence of twenty-five years of incarceration imposed on a juvenile offender did not constitute cruel and unusual punishment under federal precedent, as it was not excessive and disproportionate or arbitrary or discriminatory, the sentencing court was not required to consider the youth related mitigating factors under Miller, as those factors apply only to life sentences without the possibility of parole or their functional equivalent and the defendant was eligible for parole, the historical considerations underlying this state's constitutional history provided no direction in determining whether the defendant's sentence was prohibited under article first, §§ 8 and 9, of the state constitution, the text of which did not give juveniles any specific special status or protections, recent decisions by this state's appellate courts weighed against the defendant's claim, as did persuasive precedent from our sister states, and § 54-125a (f), which confers special protection on juveniles who were under the age of eighteen at the time they committed their offenses, reflects current sociological and economic norms as to youth related sentencing considerations, which also weighed against the defendant; accordingly, the mandatory minimum sentence of twenty-five years of incarceration imposed on the defendant, as a juvenile homicide offender, did not violate the state constitution.

         3. This court declined to reach the merits of the defendant's unpreserved claim that the trial court committed constitutional error when it improperly accepted his waiver, through counsel, of his right to a presentence investigation report without canvassing him prior to permitting the waiver, this court having previously concluded that review of an unpreserved claim pursuant to State v. Golding (213 Conn. 233) is not warranted where, as here, the defendant, on appeal, raises a challenge to the legality of his sentence that was not presented in his underlying motion to correct an illegal sentence.

         Procedural History

         Substitute information charging the defendant with the crimes of murder and conspiracy to commit murder, brought to the Superior Court in the judicial district of Hartford, where the defendant was presented to the court, Clifford, J., on a plea of guilty; judgment of guilty; thereafter, the court, Alexander, J., dismissed the defendant's motion to correct an illegal sentence, and the defendant appealed to this court. Affirmed.

          OPINION

          DiPENTIMA, C. J.

         The defendant, Jose Rivera, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. We are asked to determine whether our state constitution affords greater protection to juvenile homicide offenders than that provided under the federal constitution. On appeal, the defendant claims that (1) the court erred in dismissing the motion to correct an illegal sentence on the ground that it lacked subject matter jurisdiction, (2) the court erred in dismissing the motion to correct an illegal sentence because the mandatory minimum sentence of twenty-five years of incarceration without the possibility of parole imposed on a juvenile homicide offender is unconstitutional under article first, §§ 8 and 9, of the Connecticut constitution, as it prevented the court from sentencing juveniles to less than twenty-five years of incarceration upon due consideration of the Miller factors[1] and (3) the court committed constitutional error when it accepted the defendant's waiver, through counsel, without a canvass, of his right to a presentence investigation report. We disagree with the defendant and, accordingly, affirm the judgment of the trial court dismissing the motion to correct an illegal sentence.

         The following facts and procedural history are relevant to the present appeal. On April 5, 1997, the defendant and an accomplice participated in a shooting that resulted in the death of Harry Morales. The defendant was seventeen years old at the time of the shooting.

         On June 3, 1999, when the defendant was nineteen years old, he pleaded guilty to murder in violation of General Statutes § 53a-54a and conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a. He also pleaded guilty under a different docket number to assault in the first degree in violation of General Statutes § 53a-59 (a) (1).[2] The court, Clifford, J., sentenced the defendant to the mandatory minimum of twenty-five years of incarceration on the charge of murder, twenty years of incarceration on the charge of conspiracy to commit murder and ten years of incarceration, five of which were the mandatory minimum, on the charge of assault in the first degree, with all sentences to be served concurrently. The total effective sentence imposed by the court was twenty-five years of incarceration. At the time the defendant was sentenced, he was not eligible for parole pursuant to General Statutes § 54-125a (b) (1), which provides in relevant part that ‘‘[n]o person convicted of [murder], which was committed on or after July 1, 1981, shall be eligible for parole . . . .''[3]

         On October 1, 2014, the defendant filed a motion to correct an illegal sentence pursuant to Practice Book § 43-22.[4] In his motion, the defendant claimed that his sentence of twenty-five years of incarceration was imposed in an illegal manner because it violated the eighth amendment to the United States constitution as interpreted by Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), [5] and Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).[6] Oral argument was heard on October 16, 2014.

         On February 11, 2015, the trial court, Alexander, J., issued a memorandum of decision dismissing the defendant's motion to correct an illegal sentence because it lacked subject matter jurisdiction over the motion. This appeal followed.

         After the appeal was filed and briefed, our Supreme Court issued decisions in State v. Delgado, 323 Conn. 801, 151 A.3d 345 (2016), and State v. Boyd, 323 Conn. 816, 151 A.3d 355 (2016). The parties were asked to be prepared to address at oral argument the impact of Delgado and Boyd on the present appeal.[7]

         I

         The defendant first claims that the trial court erred in dismissing the motion to correct an illegal sentence on the ground that it lacked subject matter jurisdiction. We conclude that our Supreme Court's holding in State v. Delgado, supra, 323 Conn. 801, is dispositive of the defendant's claim, and, accordingly, we agree with the trial court's dismissal of the defendant's motion to correct.

         We begin by setting forth our well established standard of review and legal principles that govern our resolution of this claim. ‘‘We apply plenary review in addressing this question of law. . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal. . . . At issue is whether the defendant has raised a colorable claim within the scope of Practice Book § 43-22 that would, if the merits of the claim were reached and decided in the defendant's favor, require correction of a sentence. . . . In the absence of a colorable claim requiring correction, the trial court has no jurisdiction to modify the sentence.'' (Citations omitted; internal quotation marks omitted.) Id., 810.

         In Delgado, the defendant, who was sentenced in 1996 to sixty-five years of incarceration without the possibility of parole for crimes he committed at the age of sixteen, appealed from the judgment of the trial court dismissing his motion to correct an illegal sentence. The issue before the Supreme Court was whether the sentencing court had failed to consider youth related mitigating factors and imposed the equivalent of a life sentence without the possibility of parole in violation of the eighth amendment. Id., 802-804, 809. Our Supreme Court first noted that ‘‘[f]ollowing the enactment of No. 15-84 of the 2015 Public Acts (P.A. 15-84), now codified in part in General Statutes § 54-125a (f) . . . the defendant is now eligible for parole and can no longer claim that he is serving a sentence of life imprisonment, or its equivalent, without parole.''[8] State v. Delgado, supra, 323 Conn. 810.

         The court next explained that ‘‘[t]he eighth amendment [to the United States constitution], as interpreted by Miller, does not prohibit a court from imposing a sentence of life imprisonment with the opportunity for parole for a juvenile homicide offender, nor does it require the court to consider the mitigating factors of youth before imposing such a sentence. . . . Rather, under Miller, a sentencing court's obligation to consider youth related mitigating factors is limited to cases in which the court imposes a sentence of life, or its equivalent, without parole.'' (Citation omitted; emphasis altered.) Id., 810-11. The court went on to state that ‘‘[b]ecause Miller and [State v. Riley, 315 Conn. 637, 110 A.3d 1205 (2015), cert. denied, ___U.S. ___, 136 S.Ct. 1361, 194 L.Ed.2d 376 (2016)], do not require a trial court to consider any particular mitigating factors associated with a juvenile's young age before imposing a sentence that includes an opportunity for parole, the defendant can no longer allege, after the passage of P.A. 15-84, that his sentence was imposed in an illegal manner on the ground that the trial court failed to take these factors into account. Such an allegation is an essential predicate to the trial court's jurisdiction to correct the sentence. An allegation that the court failed to consider youth related factors before imposing a sentence of life with parole is not sufficient to establish a jurisdictional basis for correcting a sentence. . . . We therefore conclude that the defendant has not raised a colorable claim of invalidity that, if decided in his favor, would require resentencing.'' (Citations omitted; emphasis in original.) Id., 812-13.

         As in Delgado, although the defendant here initially was sentenced as a juvenile to twenty-five years of incarceration without the possibility of parole for a homicide offense, he is now eligible for parole pursuant to § 54-125a (f). As explained in Delgado, the sentencing court was not required to consider the mitigating factors of youth before imposing such a sentence. Because the defendant's motion to correct fails to state a colorable claim that his sentence of twenty-five years of incarceration was illegal or imposed in an illegal manner, the trial court does not have subject matter jurisdiction to consider the merits of the motion. See State v. McClean, 173 Conn.App. 62, 64, 164 A.3d 35 (2017) (concluding: ‘‘[u]pon reconsideration, we are constrained by Delgado to conclude that the trial court properly dismissed the defendant's motion to correct an illegal sentence and that its judgment should be affirmed''); State v. Martin, 172 Conn.App. 904, 158 A.3d 448 (2017) (same); see also State v. Parker, 173 Conn.App. 901, 159 A.3d 1203 (2017) (same). The court, therefore, properly dismissed the motion to correct an illegal sentence. See State v. Ellis, 174 Conn.App. 14, 17-18, 164 A.3d 829 (2017) (‘‘Following the enactment of P.A. 15-84 . . . the defendant is now eligible for parole and can no longer claim that he is serving a sentence of life imprisonment, or its equivalent, without parole. The eighth amendment, as interpreted by Miller, does not prohibit a court from imposing a sentence of life imprisonment with the opportunity for parole for a juvenile homicide offender, nor does it require the court to consider the mitigating factors of youth before imposing such a sentence. . . . [Thus] the court properly dismissed the defendant's motion to correct an illegal sentence.'' [Citations omitted; emphasis in original; internal quotation marks omitted.]).[9]

         II

         The defendant's second claim is that the court erred in dismissing his motion to correct an illegal sentence because a mandatory minimum sentence of twenty-five years of incarceration without the possibility of parole imposed on a juvenile homicide offender is unconstitutional under article first, §§ 8 and 9, of the Connecticut constitution, as it bars the court from sentencing juveniles to less than twenty-five years of incarceration upon due consideration of the Miller mitigating factors of youth. The state responds by arguing that because Miller did not apply to the sentencing procedures in this case, there was no violation of the state constitution. We agree with the state.

         The following standard of review and applicable legal principles are relevant to this claim. ‘‘Our review of the defendant's constitutional claims is plenary.'' State v. Williams-Bey, 167 Conn.App. 744, 763-64, 144 A.3d 467 (2016), modified in part on other grounds after reconsideration, 173 Conn.App. 64, 164 A.3d 31, cert. granted on other grounds, 326 Conn. 920, A.3d (2017);[10] see also State v. Taylor G., 315 Conn. 734, 741, 110 A.3d 338 (2015) (challenge to ‘‘[t]he constitutionality of a statute presents a question of law over which our review is plenary'' [internal quotation marks omitted]). ‘‘It is well established that federal constitutional law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. . . . In several cases, our Supreme Court has concluded that the state constitution provides broader protection of individual rights than does the federal constitution. . . . It is by now well established that the constitution of Connecticut prohibits cruel and unusual punishments under the auspices of the dual due process provisions contained in article first, §§ 8 and 9. Those due process protections take as their hallmark principles of fundamental fairness rooted in our state's unique common law, statutory, and constitutional traditions. . . . Although neither provision of the state constitution expressly references cruel or unusual punishments, it is settled constitutional doctrine that both of our due process clauses prohibit governmental infliction of cruel and unusual punishments.'' (Citations omitted; internal quotation marks omitted.) State v. Williams-Bey, supra, 768-69, quoting State v. Santiago, 318 Conn. 1, 16-17, 122 A.3d 1, reconsideration denied, 319 Conn. 912, 124 A.3d 496, stay denied, 319 Conn. 935, 125 A.3d 520 (2015). We must determine whether the Connecticut constitution prohibits, as cruel and unusual, the imposition on a juvenile of the mandatory minimum sentence of twenty-five years of incarceration for the charge of murder. We conclude that it does not.

         ‘‘In ascertaining the contours of the protections afforded under our state constitution, we utilize a multifactor approach that we first adopted in State v. Geisler, 222 Conn. 672, 684-85, 610 A.2d 1225 (1992).'' State v. Santiago, 319 Conn. 935, 937 n.3, 125 A.3d 520 (2015). ‘‘In State v. Geisler, [supra, 672], we identified six nonexclusive tools of analysis to be considered, to the extent applicable, whenever we are called on as a matter of first impression to define the scope and parameters of the state constitution: (1) persuasive relevant federal precedents; (2) historical insights into the intent of our constitutional forebears; (3) the operative constitutional text; (4) related Connecticut precedents; (5) persuasive precedents of other states; and (6) contemporary understandings of applicable economic and sociological norms, or, as otherwise described, relevant public policies. . . . These factors, which we consider in turn, inform our application of the established state constitutional standards-standards that, as we explain hereinafter, derive from United States Supreme Court precedent concerning the eighth amendment-to the defendant's claims in the present case.'' (Citations omitted.) State v. Santiago, supra, 318 Conn. 17-18.

         A

         Federal Precedent

         As to the first Geisler factor, the mandatory minimum sentence of twenty-five years of incarceration imposed on a juvenile homicide offender does not constitute a cruel and unusual punishment under federal precedent. ‘‘The eighth amendment to the federal constitution establishes the minimum standards for what constitutes impermissibly cruel and unusual punishment. . . . Specifically, the United States Supreme Court has indicated that at least three types of punishment may be deemed unconstitutionally cruel: (1) inherently barbaric punishments; (2) excessive and disproportionate punishments; and (3) arbitrary or discriminatory punishments.'' (Citation omitted; footnote omitted.) Id., 18-19.

         1

         Inherently Barbaric Punishments

         The first type of punishment that the United States Supreme Court has recognized as violating the eighth amendment includes the imposition of an inherently barbaric punishment. The prohibition against an inherently barbaric punishment ‘‘is directed toward manifestly and unnecessarily cruel punishments, such as torture and other wanton infliction of physical pain.'' Id., 20; see also Graham v. Florida, supra, 560 U.S. 59.

         In the present case, the defendant does not argue that the imposition of a mandatory minimum sentence of twenty-five years of incarceration on a juvenile was an inherently barbaric punishment. We therefore proceed to determine whether his sentence constitutes an excessive and ...


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