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State v. Walker

Court of Appeals of Connecticut

February 12, 2019

STATE OF CONNECTICUT
v.
ROBERT L. WALKER

          Argued October 24, 2018

         Procedural History

         Substitute information, in the first case, charging the defendant with three counts of the crime of fraudulent use of an automated teller machine, two counts of the crime of credit card theft, two counts of the crime of illegal use of a credit card and one count of the crime of larceny in the sixth degree, and substitute information, in the second case, charging the defendant with four counts each of the crimes of sexual assault in the first degree and kidnapping in the first degree, two counts each of the crimes of aggravated sexual assault in the first degree and kidnapping in the first degree with a firearm, and with the crimes of threatening and possession of a weapon, brought to the Superior Court in the judicial district of Middlesex and tried to the jury before Clifford, J.; thereafter, the court denied the defendant's motion for a mistrial; verdicts and judgments of guilty, from which the defendant appealed to this court, which affirmed the judgments; subsequently, the court, Vitale, J., dismissed in part and denied in part the defendant's motion to correct an illegal sentence, and the defendant appealed to this court. Improper form of judgment; affirmed in part; judgment directed in part.

          Temmy Ann Miller, assigned counsel, with whom was Aimee Lynn Mahon, assigned counsel, for the appellant (defendant).

          Rocco A. Chiarenza, assistant state's attorney, with whom were Russell C. Zentner, senior assistant state's attorney, and, on the brief, Peter A. McShane, former state's attorney, and Caitlyn S. Malcynsky, certified legal intern, for the appellee (state).

          Alvord, Bright and Beach, Js.

          OPINION

          BRIGHT, J.

         The defendant, Robert L. Walker, appeals[1]from the judgment of the trial court dismissing in part and denying in part his motion to correct an illegal sentence. On appeal, the defendant claims that the court improperly (1) dismissed for lack of subject matter jurisdiction his claim that the sentencing court failed to canvass him or his counsel regarding their review and the accuracy of the presentence investigation report, and (2) denied on the merits, without first providing him with an adequate hearing before the sentencing court, his claim that the sentencing court relied on inaccurate facts contained in the presentence investigation report. We conclude that the court lacked subject matter jurisdiction to consider both of the defendant's claims raised by the motion to correct an illegal sentence. Accordingly, we affirm in part and reverse in part the judgment of the trial court.

         The following facts and procedural history are relevant to our resolution of the defendant's claims. On February 14, 1991, the defendant entered a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), [2] to one count of robbery in the first degree in violation of General Statutes (Rev. to 1989) § 53a-134 (a) (4) and one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (1991 convictions). The Office of Adult Probation then prepared a presentence investigation report. On March 22, 1991, pursuant to the parties' plea agreement, the court sentenced the defendant to a total effective term of fourteen years incarceration, execution suspended after nine years, with three years probation. On January 12, 1996, the defendant was discharged from the custody of the Department of Correction.

         Between late 1999 and early 2000, the defendant engaged in further criminal misconduct. On January 23, 2001, the defendant was convicted in absentia, [3] following a jury trial, of two counts of aggravated sexual assault in the first degree in violation of General Statutes § 53a-70a (a) (1), four counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), two counts of kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a, four counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), threatening in violation of General Statutes (Rev. to 1999) § 53a-62 (a) (2), criminal possession of a weapon in violation of General Statutes (Rev. to 1999) § 53a-217, two counts of credit card theft in violation of General Statutes § 53a-128c (a), three counts of fraudulent use of an automatic teller machine in violation of General Statutes § 53a-127b, two counts of illegal use of a credit card in violation of General Statutes § 53a-128d, and one count of larceny in the sixth degree in violation of General Statutes (Rev. to 1999) § 53a-125b (2001 convictions).

         Thereafter, the Office of Adult Probation prepared a presentence investigation report (2001 PSI report) in advance of the defendant's sentencing for the 2001 convictions. The 2001 PSI report contained detailed information concerning the defendant's past criminal history, including the facts underlying his 1991 convictions. Also attached to the 2001 PSI report wasa ‘‘Synopsis of Facts'' provided by the Office of the State's Attorney that detailed the facts underlying the 2001 convictions.

         On April 27, 2001, the sentencing court conducted the defendant's sentencing hearing at which it heard statements from the state, the victim, the victim's mother, defense counsel, and the defendant.[4] At the conclusion of the hearing, the court sentenced the defendant to a total effective term of fifty years incarceration, execution suspended after thirty-two years, followed by twenty years probation. The defendant's 2001 convictions were affirmed on direct appeal by this court. See State v. Walker, 80 Conn.App. 542, 835 A.2d 1058 (2003), cert. denied, 268 Conn. 902, 845 A.2d 406 (2004).

         On August 25, 2015, the defendant, pursuant to Practice Book § 43-22, [5] filed an amended motion to correct an illegal sentence.[6] Therein, the defendant alleged that the facts ‘‘referenced in [the 2001 PSI] report and in the supplemental materials concerning his 1991 conviction[s] . . . [were] inaccurate and prejudicial'' because the 1991 convictions were unconstitutional in three ways: (1) ‘‘they were based on contradictory assertions of the complaining witness as to whether a sexual assault had ever taken place, '' (2) ‘‘counsel in the 1991 case failed to investigate possible connections between organized crime figures and the complaining witness that may have tainted the complainant's credibility, '' and (3) ‘‘counsel was ineffective for advising [the defendant] that he should plead guilty because his case would be a ‘tough case to win.' '' The defendant claimed that, as a result, his sentence ‘‘was imposed in an illegal manner'' because the sentencing court: (1) ‘‘fail[ed] to specifically canvass the [defendant] or his counsel as to their review and the accuracy of the [2001 PSI] report . . . in violation of [Practice Book §] 43-10'' and (2) ‘‘specifically rel[ied] upon unconstitutional and inaccurate information contained in the [2001 PSI report] . . . .''[7]

         On October 23, 2015, the state filed a motion to dismiss the defendant's motion to correct an illegal sentence on the ground that the court lacked subject matter jurisdiction to entertain it. In its memorandum of law in support of the motion, the state argued that the court lacked subject matter jurisdiction over the defendant's claim that the sentencing court failed to canvass him or his attorney because such a claim had been foreclosed by our Supreme Court in State v. Parker, 295 Conn. 825, 840-41, 992 A.2d 1103 (2010) (claims that defendant ‘‘had been deprived of an opportunity to review his presentence report and to address inaccuracies therein; and . . . [defense counsel] had failed to review the presentence report with him or to bring any inaccuracies in the report to the court's attention'' did not provide jurisdictional basis for correcting sentence imposed in illegal manner). The state also argued that the court lacked subject matter jurisdiction over the defendant's claim that the sentencing court relied on inaccurate information in the 2001 PSI report because ‘‘[s]uch a claim falls outside the purview of Practice Book § 43-22'' for the reason that it attacked an underlying conviction, not the sentence imposed. The defendant did not file a written opposition to the state's motion. On May 4, 2016, the court conducted a hearing on the motion to dismiss at which it heard arguments from both the state and defense counsel.

         On May 23, 2016, the court issued a memorandum of decision in which it dismissed in part and denied in part the defendant's motion to correct an illegal sentence. In particular, the court dismissed for lack of subject matter jurisdiction the defendant's first claim that the sentencing court failed to canvass the defendant or his counsel because ‘‘such a claim is untenable'' pursuant to State v. Parker, supra, 295 Conn. 825. The court denied on the merits the defendant's second claim that the sentencing court relied on inaccurate information because it concluded that ‘‘the sentencing court did not rely on materially false or prejudicial information. The defendant was in fact convicted in 1991 of the crimes referenced in the [2001 PSI report]. . . . The record before this court does not support the defendant's claim that the information regarding the 1991 convictions was materially false.'' (Citations omitted; footnote omitted.) This appeal followed. Additional facts will be set forth as necessary.

         We begin with our standard of review and relevant legal principles. ‘‘[I]t is axiomatic that [t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner . . . . Practice Book § 43-22. A motion to correct an illegal sentence constitutes a narrow exception to the [common-law] rule that, once a defendant's sentence has begun, the authority of the sentencing court to modify that sentence terminates. . . . Indeed, [i]n order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the ...


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