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State v. Pecor

Court of Appeals of Connecticut

February 27, 2018

STATE OF CONNECTICUT
v.
GARY ALAN PECOR

          Argued November 16, 2017

          Michael K. Courtney, public defender, for the appellant (defendant).

          Matthew A. Weiner, assistant state's attorney, with whom, on the brief, was Stephen J. Sedensky III, state's attorney, for the appellee (state).

          Lavine, Bright and Flynn, Js.

          OPINION

          BRIGHT, J.

         The defendant, Gary Alan Pecor, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. On appeal, the defendant claims that the court improperly determined that it did not have jurisdiction to address his motion to correct. He also claims that this court should find, as matter of law, that his sentence is illegal and remand the case to the trial court with direction to resentence him as he has requested. The state agrees that the trial court incorrectly dismissed the defendant's motion to correct, but argues that the defendant's claim of illegality is barred by the doctrine of res judicata. The state asks this court to reverse the judgment of the trial court and remand the case with instruction that the court deny the defendant's motion, or, in the alternative, that this court remand the case to the trial court for a hearing on the merits. We agree with the parties that the trial court erred in dismissing the defendant's motion for lack of subject matter jurisdiction. We disagree, though, that res judicata precludes the defendant's claim. We also disagree with the defendant that we should address the merits of his claim on the basis of the record before us. Accordingly, we reverse the judgment of the trial court, and remand the case for a hearing on the merits of the defendant's motion to correct an illegal sentence.

         The following facts and procedural history are relevant to our resolution of the defendant's claim on appeal. On June 7, 2011, the defendant pleaded guilty under the Alford doctrine[1] to robbery in the second degree in violation of General Statutes § 53a-135. The factual basis for the plea was that, on March 4, 2011, the defendant attempted to steal a beef tenderloin from a supermarket in Brookfield. When the supermarket's employees attempted to detain him, he displayed a knife in an effort to escape. Pursuant to the plea agreement, the trial court sentenced the defendant to a definite period of incarceration of two years followed by a period of eight years of special parole. The two years of incarceration were to run concurrently with the sentence that the defendant then was serving on an unrelated conviction.

         On May 7, 2013, the defendant filed a motion to correct an illegal sentence.[2] The defendant claimed that the sentence imposed by the court on June 7, 2011, was illegal because he had been sentenced to a period of special parole without receiving a definite sentence of more than two years in violation of General Statutes § 54-125e (a).[3] See State v. Boyd, 272 Conn. 72, 78, 861 A.2d 1155 (2004) (‘‘[s]ection 54-125e [a] applies only to defendants who have received a definite sentence of more than two years followed by a period of special parole'' [emphasis added; internal quotation marks omitted]).

         Following a series of continuances, and a reclaim of the defendant's motion to correct, the trial court conducted a hearing on September 12, 2014. Although the defendant withdrew his motion the previous day, the state indicated to the trial court that the court still was required to correct the illegal sentence. At the hearing, the state acknowledged that the defendant's sentence was illegal, and it proposed that the court simply resentence the defendant to two years and one day of incarceration followed by seven years and 364 days of special parole. Defense counsel stated that he believed that the court could restructure the defendant's sentence in that manner, although he believed that the court was required to afford the defendant the opportunity to withdraw his guilty plea.

         Rejecting defense counsel's argument that it was required to permit the defendant to withdraw his guilty plea, the court vacated the defendant's sentence and resentenced him to two years and one day of incarceration, followed by seven years and 364 days of special parole.[4] The defendant received sentence credit for all of the time that he previously had served. There was no appeal taken from the court's judgment.

         On January 15, 2016, approximately sixteen months after the defendant was resentenced, he filed a second motion to correct an illegal sentence. In his second motion, the defendant challenged the sentence imposed on September 12, 2014, claiming that because the two years of incarceration to which he was originally sentenced was not an illegal sentence, the court did not have jurisdiction to modify it. The defendant argued that the court was permitted to modify only the illegal portion of the sentence, the eight years of special parole. Additionally, the defendant claimed that by sentencing him to an additional day of incarceration after he had completed his definite sentence of two years incarceration, the trial court violated his constitutional right against double jeopardy. The state, in a written objection to the defendant's motion in the trial court, claimed that (1) the matter previously was decided on September 12, 2014, and (2) the court did not have jurisdiction over the motion because the court imposed a legal sentence on September 12, 2014, from which the defendant did not appeal.

         On March 11, 2016, the court conducted a hearing. At the hearing, the state argued that the defendant should have taken an appeal from the court's judgment on September 12, 2014. Defense counsel argued that the defendant was challenging the sentence imposed on September 12, 2014, on the ground that the court improperly increased the defendant's sentence by sentencing him to an additional day of incarceration after he had completed the original sentence of two years of incarceration. Defense counsel disagreed with the state's contention that an appeal needed to be taken from the court's previous judgment, stating that ‘‘the Practice Book doesn't require an appeal to be taken, if the sentence is illegal . . . . It's illegal today; it's illegal ten years from now.''

         The court issued a written decision on the defendant's motion to correct on July 6, 2016. The court reasoned that the defendant's motion essentially sought reconsideration of the court's judgment on September 12, 2014. The court reasoned that ‘‘[t]hrough his motion, the defendant attempts to collaterally attack the court's [September 12, 2014 judgment]. However, the defendant is collaterally estopped from doing so.'' The court concluded that the issue, therefore, was moot because its ‘‘prior [judgment] already [had] addressed the defendant's challenge to the legality of his original ...


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