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State v. Evans

Supreme Court of Connecticut

August 21, 2018

STATE OF CONNECTICUT
v.
ALRICK A. EVANS

          Argued December 18, 2017

         Procedural History

         Information charging the defendant with the crimes of sale of narcotics by a person who is not drug dependent and possession of narcotics, brought to the Superior Court in the judicial district of New Britain, geographical area number seventeen, and transferred to geographical area number fifteen, where the defendant was presented to the court, Strackbein, J., on a plea of guilty to the charge of sale of narcotics by a person who is not drug-dependent; judgment of guilty; thereafter, the state entered a nolle prosequi as to the charge of possession of narcotics; subsequently, the trial court, D'Addabbo, J., denied the defendant's motion to correct an illegal sentence, and the defendant appealed. Affirmed.

          April E. Brodeur, assigned counsel, with whom was Owen Firestone, assigned counsel, for the appellant (defendant).

          Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Jeffrey M. Lee, senior assistant state's attorney, for the appellee (state).

          Palmer, McDonald, Robinson, D'Auria, Mullins and Kahn, Js. [*]

          OPINION

          ROBINSON, J.

         The principal issue in this appeal is whether our decision in State v. Ray, 290 Conn. 602, 966 A.2d 148 (2009), which would require the defendant in the present case, Alrick A. Evans, to prove drug dependency as an affirmative defense to a charge under General Statutes (Rev. to 2011) § 21a-278 (b), [1] remains good law in light of (1) the subsequent decision of the United States Supreme Court in Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed. 314 (2013), and (2) the legislature's recent amendment of § 21a-278 (b) in No. 17-17, § 2, of the 2017 Public Acts (P.A. 17-17). The defendant appeals[2] from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant claims that (1) we should overrule our interpretation of § 21a-278 (b) in Ray, (2) under Alleyne, the state was required to prove his lack of drug dependency beyond a reasonable doubt because it is a fact that would result in an increased mandatory minimum sentence, and (3) the narcotics statutory scheme, which gives the prosecutor the sole authority to decide whether to proceed under § 21a-278 (b), rather than the otherwise identical General Statutes (Rev. to 2011) § 21a-277 (a), [3] violates the separation of powers established by article second of the constitution of Connecticut, as amended by article eighteen of the amendments. The state contends to the contrary, and also argues that the trial court lacked subject matter jurisdiction over the defendant's motion to correct because that motion challenged his underlying conviction, rather than his sentence. Although we conclude that the trial court had subject matter jurisdiction over the defendant's motion to correct, we disagree with the merits of the defendant's claims and reaffirm Ray's holding that drug dependency under § 21a-278 (b) is an affirmative defense that, if proven, reduces a defendant's potential sentence. Accordingly, we affirm the judgment of the trial court.

         The record reveals the following undisputed facts and procedural history. On June 16, 2011, the state charged the defendant with one count of the sale of narcotics in violation of § 21a-278 (b), and one count of possession of narcotics in violation of General Statutes (Rev. to 2011) § 21a-279 (a), in connection with the sale of crack cocaine in Bristol. On November 16, 2011, the defendant pleaded guilty, in accordance with the Alford doctrine, [4] to the sale of narcotics in violation of § 21a-278 (b); the state nolled the possession charge. Drug dependency was not discussed during the plea hearing.[5]The trial court subsequently sentenced the defendant to five years imprisonment with five years special parole.

         Pursuant to Practice Book § 43-22, [6] on November 5, 2015, the defendant filed the motion to correct an illegal sentence that underlies the present appeal.[7] In that motion, the defendant claimed that his sentence is illegal because, inter alia, under Alleyne v. United States, supra, 570 U.S. 99, and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the sentence ‘‘exceeds the relevant statutory limits'' and ‘‘the fact triggering the mandatory minimum [sentence] was not found by a proper [fact finder] or admitted by the defendant . . . .'' On February 9, 2016, the trial court issued a memorandum of decision observing that, in State v. Ray, supra, 290 Conn. 623-26, this court had concluded that Apprendi, which requires that the state charge, and prove to the fact finder beyond a reasonable doubt, any factor, other than a prior conviction, that increases the maximum penalty for a crime; see Apprendi v. New Jersey, supra, 474-97; did not apply to proof of drug dependency under § 21a-278 (b) because such proof constitutes an affirmative defense under that statute. The trial court then rejected the defendant's argument that Ray is no longer good law under Alleyne, which extended the rule set forth in Apprendi to facts that increase a statutory minimum sentence.[8] See Alleyne v. United States, supra, 103. After rejecting the defendant's other challenges to his sentence, [9] the trial court rendered judgment denying the motion to correct an illegal sentence. This appeal followed. See footnote 2 of this opinion.

         In the present appeal from the trial court's denial of his motion to correct, the defendant claims the following: (1) we should overrule State v. Ray, supra, 290 Conn. 602; and (2) the narcotics statutory scheme violates the separation of powers.[10] The state disagrees with the merits of the defendant's claims and also contends that the trial court should have dismissed the defendant's motion to correct for lack of subject matter jurisdiction. All of these issues present questions of law over which our review is plenary. See, e.g., Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 327 Conn. 650, 694, 176 A.3d 28 (2018) (constitutional issues); Hull v. Newtown, 327 Conn. 402, 413-14, 174 A.3d 174 (2017) (statutory construction); State v. Delgado, 323 Conn. 801, 810, 151 A.3d 345 (2016) (subject matter jurisdiction). We address each issue in turn.

         I

         As a threshold matter; see, e.g., State v. Koslik, 116 Conn.App. 693, 699, 977 A.2d 275, cert. denied, 293 Conn. 930, 980 A.2d 916 (2009); we begin with the state's challenges to the trial court's subject matter jurisdiction, [11] namely, that (1) the defendant's motion to correct improperly challenged the underlying conviction, rather than the sentence, and (2) this case is moot because the defendant's sentence was the product of a plea bargain.[12]

         A

         Relying on State v. Lawrence, 281 Conn. 147, 913 A.2d 428 (2007), the state contends that the trial court lacked jurisdiction over the defendant's motion to correct because it did not challenge the sentencing phase of the proceeding but, rather, the underlying conviction. In response, the defendant cites State v. Henderson, 130 Conn.App. 435, 24 A.3d 35 (2011), appeals dismissed, 308 Conn. 702, 66 A.3d 847 (2013), and argues that issues raised under Alleyne and Apprendi are properly addressed in a motion to correct an illegal sentence. We agree with the defendant and conclude that his colorable claim of an illegal sentence under Alleyne and Apprendi gave the trial court subject matter jurisdiction over his motion to correct.

         ‘‘It is well established that under the common law a trial court has the discretionary power to modify or vacate a criminal judgment before the sentence has been executed. . . . This is so because the court loses jurisdiction over the case when the defendant is committed to the custody of the commissioner of correction and begins serving the sentence. . . . Without a legislative or constitutional grant of continuing jurisdiction, however, the trial court lacks jurisdiction to modify its judgment.'' (Citations omitted; internal quotation marks omitted.) State v. Lawrence, supra, 281 Conn. 153-54.

         As in Lawrence, the defendant in the present case ‘‘relies on a common-law exception to this rule, embodied in [Practice Book] § 43-22, allowing the trial court to correct an illegal sentence.'' Id., 155. ‘‘Because the judiciary cannot confer jurisdiction on itself through its own rule-making power, § 43-22 is limited by the common-law rule that a trial court may not modify a sentence if the sentence was valid and its execution has begun. . . . Therefore, for the trial court to have jurisdiction to consider the defendant's claim of an illegal sentence, the claim must fall into one of the categories of claims that, under the common law, the court has jurisdiction to review.'' (Citation omitted.) Id.

         ‘‘[A]n illegal sentence is essentially one which . . . exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory. . . . In accordance with this summary, Connecticut courts have considered four categories of claims pursuant to [Practice Book] § 43-22. The first category has addressed whether the sentence was within the permissible range for the crimes charged. . . . The second category has considered violations of the prohibition against double jeopardy. . . . The third category has involved claims pertaining to the computation of the length of the sentence and the question of consecutive or concurrent prison time. . . . The fourth category has involved questions as to which sentencing statute was applicable.'' (Citations omitted; internal quotation marks omitted.) Id., 156-57. Considering these categories, which were first articulated by the Appellate Court's definition of the term ‘‘illegal sentence'' in State v. McNellis, 15 Conn.App. 416, 443-44, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988), this court held in Lawrence that ‘‘a challenge to the legality of a sentence focuses not on what transpired during the trial or on the underlying conviction. In order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding, and not the trial leading to the conviction, must be the subject of the attack.'' (Emphasis added.) State v. Lawrence, supra, 281 Conn. 158.

         Lawrence is not, however, the last word from this court in defining the trial courts' jurisdiction over motions to correct. In State v. Parker, 295 Conn. 825, 837, 992 A.2d 1103 (2010), we observed that ‘‘the rules of practice are consistent with the broader common-law meaning of illegality, permitting correction of both illegal sentences and sentences imposed in an illegal manner.'' We emphasized that the protection against sentencing in an illegal manner ‘‘reflects the fundamental proposition that [t]he defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process.'' (Internal quotation marks omitted.) Id., 839. We then added ‘‘one qualification'' to the description in State v. McNellis, supra, 15 Conn.App. 443-44, observing that the ‘‘enumerated examples would not encompass rights or procedures subsequently recognized as mandated by federal due process, '' explicitly including claims under Apprendi v. New Jersey, supra, 530 U.S. 490, and similarly would not ‘‘encompass procedures mandated by state law that are intended to ensure fundamental fairness in sentencing, which, if not followed, could render a sentence invalid.'' State v. Parker, supra, 839-40. Accordingly, we emphasized that ‘‘the examples cited in McNellis are not exhaustive and the parameters of an invalid sentence will evolve.'' Id., 840.

         To be sure, some constitutional protections governing the sentencing process, such as the United States Supreme Court's decision in Apprendi, have had the effect of blurring the lines between the sentencing proceeding and the trial, particularly insofar as they have constitutionally mandated the submission of certain factual issues to the jury prior to the court's imposition of the sentence. For example, in Apprendi v. New Jersey, supra, 530 U.S. 490, the United States Supreme Court concluded that the federal due process clause and sixth amendment to the United States constitution require that, ‘‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'' Thus, a claim is cognizable in a motion to correct an illegal sentence if it is a challenge specifically directed to the punishment imposed, even if relief for that illegal punishment requires the court to in some way modify the underlying convictions, such as for double jeopardy challenges. See State v. Cator, 256 Conn. 785, 804-805, 781 A.2d 285 (2001) (concluding that ‘‘trial court had jurisdiction to alter the sentence pursuant to Practice Book § 43-22, because otherwise the constitutional prohibition against double jeopardy would have been violated, '' even though correction of illegal sentence required merger of underlying convictions). We emphasize, however, that the motion to correct is not another bite at the apple in place of challenges that are more properly brought on direct appeal or in a petition for a writ of habeas corpus.[13] See State v. McGee, 175 Conn.App. 566, 574 n.6, 168 A.3d 495 (2017) (The trial court had jurisdiction over a motion to correct an illegal sentence that sought to vacate a robbery conviction as a remedy for a double jeopardy violation because ‘‘the defendant has not challenged, in any way, the validity of his convictions for robbery in the second degree or of the guilty verdicts upon which they rest. He has not claimed any infirmity with the state's information; he has not advanced any claims of insufficiency with respect to the state's evidence against him, or of evidentiary error, instructional error, prosecutorial impropriety, or any other type of error upon which the legality of trial proceedings or of the verdicts and judgments they result in are routinely challenged. Rather, he claimed that, at sentencing, the court should have vacated one of his two second degree robbery convictions and sentenced him only on one of those convictions.''), cert. denied, 327 Conn. 970, 173 A.3d 953 (2017).

         As the ‘‘parameters of an illegal sentence [have] evolve[d]''; State v. Parker, supra, 295 Conn. 840; particularly given the landmark decision of the United States Supreme Court in Apprendi v. New Jersey, supra, 530 U.S. 466, we find instructive the Appellate Court's decision in State v. Henderson, supra, 130 Conn.App. 435. In Henderson, the defendant claimed that his robbery and assault sentence, which had been enhanced pursuant to the persistent serious felony offender statute, General Statutes (Rev. to 1993) § 53a-40 (g), was illegal under Apprendi because, although he had pleaded guilty to a part B information seeking that enhancement, he did not expressly admit ‘‘that the public interest would be best served by extended incarceration and lifetime supervision.'' Id., 438-39. The Appellate Court concluded that jurisdiction existed over the motion to correct an illegal sentence, even though it challenged the trial court's failure to give a jury charge-an action that by definition occurs during trial rather than sentencing-because of the defendant's ‘‘legal theory as to why his sentence was illegal, '' namely, a violation of Apprendi. Id., 441; see also id., 446. Following State v. Koslik, supra, 116 Conn.App. 700, which held that there was jurisdiction over a defendant's claim that a trial court had failed to make a finding necessary to justify an extended probation period, the court emphasized in Henderson that ‘‘the defendant's claims go to the actions of the sentencing court. Specifically, he challenges actions taken by the sentencing court that, although proper at the time, were affected by a subsequent change in the law.'' State v. Henderson, supra, 445; see also State v. Abraham, 152 Conn.App. 709, 720-23, 99 A.3d 1258 (2014) (The court, after reviewing case law, noted the state's concession that the court had jurisdiction under Henderson over a motion to correct raising an Apprendi challenge to the ‘‘sentencing court's decision to impose a sentence enhancement, under [General Statutes] § 53-202k, without first obtaining the necessary jury finding. We further conclude that this jurisdiction encompasses a claim that the defendant did not properly waive his right to a jury determination of the violation, resulting in a sentence imposed in an illegal manner that exceeds the statutory limit for the underlying crimes of which he was found guilty by the jury.'').

         The state's jurisdictional challenge requires us to consider 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.'' (Citation omitted; internal quotation marks omitted.) State v. Delgado, supra, 323 Conn. 810. ‘‘A colorable claim is one that is superficially well founded but that may ultimately be deemed invalid . . . . For a claim to be colorable, the defendant need not convince the trial court that he necessarily will prevail; he must demonstrate simply that he might prevail.'' (Citation omitted; emphasis in original; internal quotation marks omitted.) In re Santiago G., 325 Conn. 221, 231, 157 A.3d 60 (2017). The jurisdictional and merits inquiries are separate; whether the defendant ultimately succeeds on the merits of his claim does not affect the trial court's jurisdiction to hear it. See id. ‘‘It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.'' (Internal quotation marks omitted.) State v. Fowlkes, 283 Conn. 735, 739, 930 A.2d 644 (2007); see, e.g., State v. Koslik, supra, 116 Conn.App. 697 (applying presumption to motion to correct illegal sentence). Given the presumption in favor of jurisdiction, our jurisdictional inquiry is guided by the ‘‘plausibility'' of the defendant's claim, rather than its ultimate legal correctness. In re Santiago G., supra, 232-33.

         In determining whether it is plausible that the defendant's motion challenged the sentence, rather than the underlying trial or conviction, we consider the nature of the specific legal claim raised therein. See State v. Henderson, supra, 130 Conn.App. 441. As we understand the defendant's claims in the present appeal, he does not ask us to disturb his conviction under § 21a-278 (b), or otherwise claim that he was convicted under the wrong statute. Instead, the defendant seeks resentencing, claiming that § 21a-278 (b) merely enhances the penalty available under § 21a-277 (a) when those statutes are read with the judicial gloss rendered necessary by the United States Supreme Court's decisions in Alleyne v. United States, supra, 570 U.S. 99, and Apprendi v. New Jersey, supra, 530 U.S. 466.[14]

         Given the otherwise identical statutory language of §§ 21a-277 (a) and 21a-278 (b), and the lack of any case law from this court squarely rejecting the defendant's proffered interpretation of § 21a-278 (b) as merely providing a penalty enhancement in view of the Supreme Court's decision in Alleyne, which extended the protections of Apprendi to mandatory minimum sentences; see Alleyne v. United States, supra, 570 U.S. 103; we conclude that the defendant's interpretation of the narcotics statutory scheme is sufficiently plausible to render it colorable for the purpose of jurisdiction over his motion. See In re Santiago G., supra, 325 Conn. 233-34 (dismissing appeal for lack of final judgment from denial of motion to intervene in termination of parental rights action because there was no colorable claim given unchallenged Appellate Court case law rejecting existence of such right). In particular, the fact that the defendant does not ask us to disturb his conviction under § 21a-278 (b), but merely seeks remand for resentencing, renders this case distinguishable from State v. Lawrence, supra, 281 Conn. 151, 158-59, in which we concluded that the trial court lacked jurisdiction over a motion to correct claiming that court had improperly convicted the defendant of manslaughter in the first degree with a firearm, rather than simply manslaughter in the first degree, following his successful assertion of the affirmative defense of extreme emotional disturbance.[15]

         Indulging the presumption in favor of jurisdiction, we conclude that the trial court had subject matter jurisdiction over the defendant's motion to correct. In this case, the defendant's claims challenge the validity of State v. Ray, supra, 290 Conn. 602, in which we concluded that the defendant bore the burden of proving drug dependency, through the lens of Alleyne, which extended Apprendi to mandatory minimum sentences.[16] Because this claim is colorably directed to the validity of the sentence rather than the underlying conviction, we conclude that the trial court properly exercised jurisdiction over the defendant's motion to correct.

         B

         The state also contends that the defendant's claims are moot because his sentence arises from his guilty plea to violating § 21a-278 (b), which included the acceptance of the specific period of five years imprisonment in exchange for the benefit of relief on other pending charges. The state contends that this plea amounted to a waiver of his right to a jury determination of the fact of drug dependency, and meant that the trial court did not engage in judicial fact-finding forbidden by Alleyne, thus rendering no practical relief available in this case. In response, the defendant relies on State v. Reynolds, 126 Conn.App. 291, 11 A.3d 198 (2011), and State v. Kokkinakos, 143 Conn.App. 76, 66 A.3d 936 (2013), overruled in part on other grounds by State v. Henderson, 312 Conn. 585, 94 A.3d 614 (2014), to argue that his claim is not moot because a guilty plea to an offense, without an acknowledgment on the record from the defendant as to the specific facts that would trigger the increased sentence, does not waive the predicate finding for enhancement. We agree with the defendant and conclude that this claim is not moot.

         ‘‘Mootness implicates a court's subject matter jurisdiction and, therefore, presents a question of law over which we exercise plenary review. . . . For a case to be justiciable, it is required, among other things, that there be an actual controversy between or among the parties to the dispute . . . . [T]he requirement of an actual controversy . . . is premised upon the notion that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law. . . . Moreover, [a]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.'' (Citations omitted; internal quotation marks omitted.) State v. T.D., 286 Conn. 353, 361, 944 A.2d 288 (2008).

         Again assuming that the defendant's interpretation of § 21a-278 (b) in light of Alleyne is colorable, we conclude that his Alford plea did not render this claim moot. Even if we assume, without deciding, that a guilty plea could affect the court's subject matter jurisdiction over a subsequent motion to correct premised on the failure to make a necessary finding, [17] there was no such plea in the present case. A guilty plea to an underlying offense does not, in the absence of a specific plea to the specific facts necessary to trigger an enhanced sentence, operate to waive the defendant's right to that specific finding. We find instructive State v. Kokkinakos, supra, 143 Conn.App. 83-85, in which the Appellate Court held that a defendant's plea to part A of an information alleging theft offenses, and part B of the information alleging persistent felony offender status under General Statutes (Rev. to 2007) § 53a-40 (j), operated to waive a jury finding that enhancement of his sentence was in the public interest, but not a court finding to that effect. The Appellate Court emphasized that the canvass was generally limited to a jury trial on part B of the information, and that the defendant ‘‘never expressly admitted that an enhancement of his sentence would serve the public interest.'' Id., 85-86. The court further rejected the state's argument that, ‘‘by virtue of the defendant's guilty plea on the part B information, he admitted to a finding that an enhanced sentence would be in the public interest.'' Id., 86; see id., 87 (‘‘[T]here are two ways in which the public interest factor can be satisfied in the context of a guilty plea. The court can make an express finding, or the defendant can expressly agree to the determination.''); see also State v. Abraham, supra, 152 Conn.App. 722-23 (trial court improperly relied on guilty plea to part B of information in dismissing motion to correct challenging firearms enhancement under General Statutes § 53-202k for lack of requisite jury findings); State v. Reynolds, supra, 126 Conn.App. 312 (concluding that remand was required because, ‘‘[a]fter the defendant made his guilty plea to the charge of being a persistent serious felony offender, the trial court did not make such a finding, nor did the defendant stipulate or acknowledge that extended incarceration is in the public interest''). Turning to the record in the present case, we conclude that there was no waiver insofar as the defendant did not admit to lack of drug dependency, and the prosecutor's recitation of the facts did not contemplate that topic. See footnote5of this opinion. Accordingly, we conclude that the defendant's Alford plea did not render this claim moot.[18]

         II

         We now turn to the principal issue in the present appeal, namely, the defendant's request that we overrule State v. Ray, supra, 290 Conn. 602, in which we held that not requiring the state to plead and prove lack of drug dependency under § 21a-278 (b) does not violate Apprendi v. New Jersey, supra, 530 U.S. 466, because drug dependency is an affirmative defense that would mitigate a sentence. The defendant contends that we should overrule Ray because (1) the Supreme Court's subsequent decision in Alleyne v. United States, supra, 570 U.S. 99, requires the state to plead and prove beyond a reasonable doubt those facts, such as lack of drug dependency under § 21a-278 (b), which trigger mandatory minimum sentences, and (2) Ray was wrongly decided as a matter of statutory interpretation.

         Our consideration of these claims is informed by a detailed review of § 21a-278 (b) and our 2009 decision in Ray. Section 21a-278 (b) provides in relevant part that ‘‘[a]ny person who . . . sells . . . to another person any narcotic substance . . . and who is not, at the time of such action, a drug-dependent person, for a first offense shall be imprisoned not less than five years or more than twenty years . . . .'' See also footnote 1 of this opinion. In Ray, the defendant contended, inter alia, that ‘‘(1) this court's previous cases construing § 21a-278 (b) and General Statutes § 21a-269[19] to require the defendant to prove by a preponderance of the evidence that he was drug-dependent were wrongly decided; [and] (2) if our interpretation of the statutes in those cases was correct, the requirement that he prove his dependence ...


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