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State v. Jin

Court of Appeals of Connecticut

January 9, 2018

STATE OF CONNECTICUT
v.
GANG JIN

          Argued November 13, 2017

          Nitor V. Egbarin, for the appellant (defendant).

          James M. Ralls, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Courtney M. Chaplin, assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Elgo and Flynn, Js.

          OPINION

          DIPENTIMA, C. J.

         The defendant, Gang Jin, appeals from the denial of his motion to open the judgment of conviction, [1] after his guilty plea made pursuant to the Alford doctrine, [2] of conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a-103 and 53a-48. On appeal, the defendant claims that the court (1) improperly denied his application for the accelerated rehabilitation program pursuant to General Statutes § 54-56e[3] and (2) erred in determining that he had received the effective assistance of counsel. The state counters that, following the imposition of the defendant's sentence, the court lacked jurisdiction to consider the defendant's motion to open. Additionally, the state argues that the defendant's claim that the court retained jurisdiction because he had been sentenced in an illegal manner, [4] which was raised for the first time on appeal, fails because he challenges the ‘‘events prior to his conviction and guilty plea, rather than events at sentencing.'' The state further contends that the defendant's guilty plea, made pursuant to the Alford doctrine, waives all prior nonjurisdictional defects. We agree with the state that, following the imposition of the defendant's sentence, the court's jurisdiction terminated. Additionally, we decline to consider the defendant's claim of an illegal sentence because he failed to present this issue to the trial court via a motion to correct an illegal sentence. Finally, the form of the judgment is improper, and therefore we reverse the judgment and remand the case with direction to dismiss the defendant's motion to open.

         The following facts and procedural history are relevant to our discussion. In an information dated April 3, 2014, the state charged the defendant with burglary in the second degree in violation of General Statutes § 53a-102, conspiracy to commit burglary in the second degree in violation of General Statutes §§ 53a-102 and 53a-48, possession of burglar's tools in violation of General Statutes § 53a-106 and attempt to commit larceny in the sixth degree in violation of General Statutes § 53a-125. On November 10, 2014, the defendant filed an application for accelerated rehabilitation.

         The defendant, represented by Attorney Theodore A. Kowar, Jr., appeared before the court, Baldini, J., on January 12, 2016. At the outset of this proceeding, the clerk confirmed the defendant's eligibility for accelerated rehabilitation. Kowar stated the defendant was withdrawing the application for accelerated rehabilitation. The prosecutor and Kowar informed the court that they had reached a plea agreement. Specifically, the defendant agreed to plead guilty to the substituted charge of conspiracy to commit burglary in the third degree in exchange for a five year sentence, execution suspended, and five years of probation.[5]

         After canvassing the defendant, [6] the court found that plea was made knowingly and voluntarily with the assistance of competent counsel. It accepted the defendant's Alford plea and rendered a judgment of conviction. The court imposed the agreed-upon sentence of five years incarceration, execution suspended, and five years of probation.[7]

         On November 7, 2016, the defendant, now represented by Attorney Nitor Egbarin, filed a motion to open the judgment. The defendant, who claimed to be a legal permanent resident of the United States, requested to have his case opened ‘‘to allow him to continue with his application for [accelerated rehabilitation] to which he is eligible.'' He further alleged that he had not been advised of the immigration benefits of the accelerated rehabilitation application, and that Kowar's withdrawal of that application ‘‘was neither a correct action nor correct legal advice, '' constituting a denial of his ‘‘right to effective assistance of counsel.''

         On November 22, 2016, the court, Kwak, J., held a hearing on the defendant's motion. Egbarin requested that the court open the case to afford the defendant the opportunity to pursue his application for accelerated rehabilitation. The prosecutor, in an attempt to clarify any issues regarding the application for accelerated rehabilitation, noted that Judge Baldini had indicated in certain pretrial conversations that she would not find good cause to grant accelerated rehabilitation in this case.[8] Nevertheless, the defendant's application for accelerated rehabilitation, which was filed on November 10, 2014, remained pending until the January 12, 2016 hearing. At that hearing the defendant withdrew the application, pleaded guilty and was sentenced. Accordingly, the prosecutor reasoned the court's jurisdiction over the case terminated at that time. Thus, the prosecutor requested that the court deny the defendant's motion to open.

         In response, Egbarin referred to his claim of ineffective assistance of counsel, and requested that Judge Kwak consider whether good cause existed with respect to the application for accelerated rehabilitation. Following a recess, the court issued its decision. It determined that the defendant withdrew his application for accelerated rehabilitation on January 12, 2016. It then denied the defendant's motion to open. Finally, it observed that ‘‘once a person has been sentenced, the court no longer has jurisdiction to vacate a plea. This is not the proper procedure. And a habeas is more-a habeas petition is more a proper procedure than to have the trial court [open] judgment.''

         On appeal, the defendant first claims that the court improperly denied his application for accelerated rehabilitation. Specifically, he argues that he was denied the opportunity to present evidence of good cause in support of his application, that a person charged with a class C felony is eligible for accelerated rehabilitation upon a showing of good cause and that Judge Baldini improperly denied the application in chambers and not in open court.

         These arguments suffer from two substantial flaws. First, the record is clear the Judge Baldini did not deny the defendant's application for accelerated rehabilitation. She never ruled on this application because the application was withdrawn at the January 12, 2016 proceeding where the defendant pleaded guilty pursuant to the Alford doctrine. Thus, the foundation for the defendant's arguments collapses because it is based on an action of the trial court that simply did not occur. Although we agree that the record suggests that Judge Baldini was inclined to deny the application for accelerated rehabilitation, that inclination is immaterial because the court never acted on the application for accelerated rehabilitation following the withdrawal of said application. Put another way, the defendant cannot now complain about a ruling that the court never made. See, e.g., Durso v.Aquilino, 64 Conn.App. 469, 475, 780 A.2d 937 (2001) (claim of error is not reviewable where objection to admission of evidence was withdrawn at trial); State v.Rodriguez, 10 Conn.App. 357, 358, 522 A.2d 1250 (‘‘[i]t ...


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