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State v. McCoy

Supreme Court of Connecticut

May 7, 2019

STATE OF CONNECTICUT
v.
KENNETH LEE MCCOY

          Argued March 28, 2018

         Procedural History

         Substitute information charging the defendant with the crime of murder, brought to the Superior Court in the judicial district of New Haven and tried to the jury before Blue, J.; verdict and judgment of guilty; thereafter, the court denied the defendant's motion for a new trial, and the defendant appealed to this court; subsequently, the appeal was transferred to the Appellate Court, Beach, Sheldon and Flynn, Js., which affirmed the judgment of the trial court, and the defendant, on the granting of certification, appealed to this court. Reversed in part; judgment directed.

          Daniel J. Foster, assigned counsel, for the appellant (defendant).

          Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, Maxine Wilensky, senior assistant state's attorney, and Mary Elizabeth Baran, former senior assistant state's attorney, for the appellee (state).

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

          OPINION

          MULLINS, J.

         In this appeal, the defendant, Kenneth Lee McCoy, challenges the judgment of the Appellate Court affirming the judgment of conviction rendered after a jury trial of one count of murder in violation of General Statutes § 53a-54a (a). On appeal, the defendant contends that the Appellate Court improperly concluded that (1) he was not deprived of a fair trial due to prosecutorial improprieties, and (2) the trial court properly denied his motion for a new trial for lack of jurisdiction. We disagree but conclude that the form of the trial court's judgment is improper in that the trial court should have dismissed rather than denied the motion for a new trial. Accordingly, we reverse in part the judgment of the Appellate Court and remand the case to that court with direction to render judgment consistent with this opinion.

         The following underlying relevant facts and procedural history are set forth in the Appellate Court's decision. ‘‘During the fall of 2011, the victim, Dallas Boomer, saw both the defendant and Tramont Murray, his close friends, on a daily basis. The three men often conducted drug deals together out of rental cars . . . . During November, 2011, the defendant became estranged from both the victim and Murray. . . .

         ‘‘On December 6, 2011, at approximately 1 o'clock in the morning, the victim was sitting in the driver's seat of a parked rental car on a residential street in New Haven. Murray was sleeping in the reclined passenger seat. The victim saw the defendant's car pull over to the side of the road and idle nearby, so he shook Murray awake. Murray instructed the victim to drive away. The defendant then approached the victim's parked vehicle with his hand in his sleeve and began shooting at the windshield. The victim attempted to drive away, but could not. Six bullets struck the rental car, and the victim suffered fatal injuries as a result.

         ‘‘Immediately after the shooting, Murray, the sole witness, was questioned by the police. When the police asked Murray to identify the shooter, he stated that he had not seen the shooter . . . . Three weeks later, on December 27, Murray made a second statement to the police in which he identified the defendant as the shooter. Murray testified consistently with this statement at the defendant's trial.'' State v. McCoy, 171 Conn.App. 311, 312-13, 157 A.3d 97 (2017).

         After the jury returned its verdict, but prior to the sentencing date, the defendant filed a motion for a new trial. Id., 323. At the sentencing hearing, the defendant sought to have the motion heard by the trial court; however, the parties and the trial court subsequently agreed to go forward with the sentencing and to hear the motion at a later date. Id., 323-24. As a result, the sentencing hearing went forward, and the court sentenced the defendant to sixty years incarceration. Id., 324.

         Months after the sentencing, the defendant attempted to have his motion for a new trial heard. Because the defendant's sentence already had been executed, however, the court denied the motion without a hearing on the ground that it had lost jurisdiction. Id. The defendant then appealed from the judgment of conviction, [1]asserting that the prosecutor had engaged in a series of improprieties that deprived him of his constitutional right to a fair trial and that the trial court improperly denied his motion for a new trial for lack of jurisdiction. Id., 312.

         The Appellate Court concluded that, regardless of any improprieties that may have been committed by the state during the trial, the defendant was not deprived of his due process right to a fair trial. Id., 314-23. The Appellate Court also concluded that the trial court lost jurisdiction once the defendant's sentence was executed and, therefore, that the trial court did not improperly deny the defendant's motion for a new trial. Id., 323-27. This certified appeal followed.[2] Additional facts will be set forth as necessary.

         I

         The defendant first claims that the Appellate Court improperly determined that he was not deprived of a fair trial by prosecutorial improprieties committed during his trial. Specifically, the defendant claims that the Appellate Court improperly concluded that the prosecutor did not deprive him of a fair trial when she (1) violated a court order by attempting on three occasions to elicit inadmissible prior consistent statements made by Murray, and (2) asked the jury during closing argument to speculate about the contents of a conversation between Murray and his mother that was not in evidence. In response, the state asserts that the Appellate Court properly concluded that these claimed improprieties did not deprive the defendant of his right to a fair trial.[3] We agree with the state.

         With respect to the defendant's claim that the prosecutor thrice violated the trial court's order related to the inadmissibility of Murray's prior consistent statements, the Appellate Court's decision sets forth the following relevant facts. ‘‘On the first day of trial, outside the presence of the jury, the prosecutor asked the court whether Murray's second statement to the police, in which he identified the defendant as the shooter, would be admissible as a prior consistent statement. The court responded: ‘Well, again, without finally ruling on that, the answer is not necessarily because the rule generally is that when a witness is impeached for a prior inconsistent statement, prior consistent statements are not normally admissible. They can be admissible under the discretion of the court, particularly-and I emphasize particularly-where the prior consistent statement precedes the prior inconsistent statement. . . . [W]e may have to see what develops, but certainly the answer to what you just said is not necessarily.' The court further stated: ‘I haven't given my final rulings on this because I have to see what the witness says on direct, obviously, but I think you must be aware of the general way that I look at this so that you are not surprised, and I think that I have said so.' '' (Emphasis omitted.) Id., 315-16.

         During the state's direct examination of Murray, after establishing that Murray had failed to identify the defendant as the shooter in his initial encounter with the police, the prosecutor engaged in the following colloquy with Murray:

‘‘ ‘[The Prosecutor]: Did there come a time about three weeks later when you went back into the police department and gave another statement?
‘‘ ‘[Murray]: Yes.
‘‘ ‘[The Prosecutor]: And in that statement, did you essentially tell the police what you have testified to today in court?
‘‘ ‘[Murray]: Yes.' '' Id., 322 n.4

         Defense counsel did not object to this testimony.

         After this testimony, the prosecutor committed the first of the alleged improprieties when she asked: ‘‘ ‘Now, with regard to giving that statement [to the police] on December 27, which is essentially what you spoke about today . . . .' Defense counsel objected, and the court sustained the objection, noting that ‘[t]he contents of the second interview should not be divulged further than they already have been without [express] permission of the court. As you know, there are evidentiary rules pertaining thereto.' '' Id., 316.

         Later, during that same direct examination, the second alleged impropriety occurred when ‘‘the prosecutor asked Murray: ‘And let me just ask you this: when you spoke to the police again, what did you tell them with regard to who was the shooter?' The court sua sponte excused the jury and addressed the prosecutor, stating: ‘I don't know how many times I have told you on the record, and, I believe, explicitly, that . . . prior consistent statements are not admissible into evidence unless they precede prior inconsistent statements. . . . I have told you, with respect to the second interview, on multiple occasions, multiple occasions do not get into the contents.'

         ‘‘After the prosecutor indicated that she did not think that the court had been explicit in ruling that Murray's prior consistent statements were inadmissible, the court stated that ‘[u]nder no circumstances without prior permission of the court . . . may you ask this witness about any prior consistent statement postdating the original inconsistent statement of December 6. You may not ask him about the substance of that without prior permission of the court, that includes, but is not limited to . . . the substance of his statement to the police on December 27. I had thought that I was explicit, but perhaps I was not, and if so, please forgive me.' The court continued, stating: ‘I have told you repeatedly not to go there. If you go there again, without prior permission of the court, you are asking-you are basically going to require me to do things that, believe me, I do not want to do. So, don't go there.' '' Id., 316-17.

         Finally, the prosecutor engaged in the third alleged impropriety related to prior consistent statements. This impropriety occurred when, ‘‘after asking Murray whether he had visited the victim's family the day after the victim's murder, the prosecutor asked: ‘With regard to what had occurred with [the victim's] murder, did you tell them what happened?' Defense counsel objected, and the court sustained the objection, instructing the prosecutor to ‘[a]sk your next question, keeping in mind rulings that the court has already made.' '' Id., 317.

         With respect to the claim that the prosecutor improperly referred to facts not in evidence, the factual underlayment is as follows. During the trial, the state presented evidence that Murray's mother encountered Murray crying at his girlfriend's home. The prosecutor asked Murray's mother to describe Murray's demeanor as she spoke to him, and she began to tell the jury what Murray had said to her during that encounter. Defense counsel objected. The court sustained the objection and did not permit Murray's mother to testify about what Murray had said. Then, in closing argument, when referring to Murray's encounter with his mother at his girlfriend's home, the prosecutor argued: ‘‘ ‘They talked, and he told her things, I can't say what they were, but I think you can think about it.' Defense counsel objected, and the court instructed the jury that ‘[t]his is not in evidence. Do not speculate. That is improper argument.' '' Id., 319.

         In analyzing these alleged improprieties, the Appellate Court assumed that the prosecutor had improperly disregarded the trial court's evidentiary rulings related to Murray's prior consistent statements. Id., 318. As to the prosecutor's closing argument inviting the jurors to speculate about statements not in evidence regarding Murray's conversation with his mother, the Appellate Court determined, consistent with a concession by the state, that this argument was improper. Id., 319. The Appellate Court concluded, however, that these improprieties did not deprive the defendant of a fair trial. Id., 320-21.

         In the present appeal, the defendant asserts that the Appellate Court improperly concluded that the alleged improprieties did not deprive him of a fair trial.[4] We disagree and conclude that the Appellate Court properly determined that the claimed improprieties did not deprive the defendant of a fair trial. Because the Appellate Court either assumed that these actions of the prosecutor were improper or accepted the state's concession to that effect, we need only address whether the Appellate Court properly concluded that these claimed improprieties constituted a violation of the defendant's right to due process.

         We begin with the standard of review. ‘‘[T]he touchstone of due process analysis in cases of alleged prosecutorial [impropriety] is the fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor's conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . In determining whether the defendant was denied a fair trial [by virtue of prosecutorial impropriety] we must view the prosecutor's comments in the context of the entire trial.'' (Internal quotation marks omitted.) State v. Campbell, 328 Conn. 444, 543, 180 A.3d 882 (2018).

         ‘‘[O]ur determination of whether any improper conduct by the state's attorney violated the defendant's fair trial rights is predicated on the factors set forth in State v. Williams, [204 Conn. 523');">204 Conn. 523, 540, 529 A.2d 653 (1987)], with due consideration of whether that [impropriety] was objected to at trial. . . . Those factors include the extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state's case.'' (Citation omitted; internal quotation marks omitted.) State v. Campbell, supra, 328 Conn. 542.

         We consider each of these factors in turn. First, there is no dispute that the comments of the prosecutor were not invited by either the argument or conduct of defense counsel.

         Second, we conclude that the claimed improprieties were not severe. With respect to the prosecutor's allegedly improper comments regarding Murray's prior consistent statements, the severity of the alleged improprieties is belied by the fact that Murray's prior consistent statement identifying the defendant as the shooter already had been admitted into evidence without objection. Indeed, the jury already had heard that Murray had given a second statement to the police that was consistent with his testimony at trial. The fact that evidence regarding Murray's prior consistent statement was already admitted into evidence without objection demonstrates both that it was not severe, in that it did not elicit an objection when it was first introduced by the state, and that the impact of the prosecutor's allegedly improper questions was lessened by the fact that the jury had already heard evidence pertaining to that statement.

         Moreover, it is important to note that Murray did not answer any of the prosecutor's questions. It is axiomatic that questions are not evidence, only the answers to the questions are evidence. In the present case, the fact that the witness did not answer these allegedly improper questions supports the Appellate Court's conclusion that the alleged improprieties were not severe. Accordingly, we conclude that the severity factor weighs in favor of the state.

         With respect to the third factor, namely, the frequency of the impropriety, we conclude that this factor also weighs in favor of the state. The defendant points to three instances in which the prosecutor may have improperly referred to Murray's prior consistent statements, and one instance in which the prosecutor improperly commented on statements not in evidence. Therefore, over the course of a weeklong trial, the defendant claims four instances of prosecutorial impropriety. Thus, we cannot conclude that these improprieties were pervasive.

         Fourth, we consider whether the claimed improprieties involved a critical issue in the case. We conclude that the statements made by the prosecutor in the present case did involve a critical issue-namely, the credibility of Murray, the state's key witness and the primary source of evidence used to obtain a conviction of the defendant. Accordingly, we conclude that this factor weighs in favor of the defendant.

         With respect to the fifth factor, we conclude that the trial court adopted curative measures in response to the alleged improprieties. In response to the prosecutor's improper comments regarding Murray's prior consistent statements, the trial court sustained each of the defendant's objections and once even interjected, sua sponte, to prevent Murray from answering an inappropriate question. Moreover, the trial court provided an instruction prior to jury deliberations as follows: ‘‘[i]t is the answer, not the question or the assumption made in the question that is the evidence.''

         In connection with the prosecutor's improper reference to facts not in evidence during the closing argument, defense counsel immediately objected and the trial court gave a curative instruction. The court instructed as follows: ‘‘Do not speculate on this. This is not in evidence. Do not speculate. That is improper argument.'' ‘‘[W]e have previously recognized that a prompt cautionary instruction to the jury regarding improper prosecutorial remarks or questions can obviate any possible harm to the defendant. . . . Moreover, [i]n the absence of an indication to the contrary, the jury is presumed to have followed [the trial court's] curative instructions.'' (Citations omitted; internal quotation marks omitted.) State v. Ceballos, 266 Conn. 364, 413, 832 A.2d 14 (2003). Therefore, we conclude that the strength of the prompt curative measures weighs in favor of the state.

         Finally, we consider the sixth factor, namely the strength of the state's case. We cannot conclude that the state's case was particularly strong. There was limited physical evidence, and no murder weapon was ever recovered. Nevertheless, ‘‘we have never stated that the state's evidence must have been overwhelming in order to support a conclusion that prosecutorial [impropriety] did not deprive the defendant of a fair trial.'' (Internal quotation marks omitted.) State v. Stevenson, 269 Conn. 563, 596, 849 A.2d 626 (2004). Under the circumstances presented in this case, in which the objectionable evidence already was before the jury, the witness was never permitted to answer the improper questions, and prompt curative instructions were given, we simply cannot conclude that the defendant's right to due process was violated. Accordingly, because the majority of the Williams factors weigh in favor of the state, we conclude that the claimed improprieties in the present case did not deprive the defendant of a fair trial.

         II

         The defendant next argues that the Appellate Court improperly upheld the trial court's denial of his motion for a new trial on the ground that the trial court lost jurisdiction upon the execution of the defendant's sentence. In particular, the defendant asserts that a trial court continues to have jurisdiction over a criminal matter for four months after judgment pursuant to State v. Myers, 242 Conn. 125, 136, 698 A.2d 823 (1997), and, therefore, should have ruled on the merits of his timely filed motion for a new trial. The state counters that the Appellate Court properly upheld the trial court's denial of that motion because the trial court lost jurisdiction upon execution of the defendant's sentence. We agree with the state's jurisdictional conclusion. In light of that jurisdictional defect, however, we further conclude that, as a matter of form, the trial court should have dismissed rather than denied the defendant's motion for a new trial.

         The following additional facts set forth in the Appellate Court's decision are relevant to the defendant's claim. ‘‘On March 18, 2013, one week after the defendant was convicted of murder, he filed a motion for a new trial alleging that the prosecutor had ‘continually elicited hearsay statements that the court had precluded by an earlier ruling and offered inadmissible hearsay statements during closing [argument].' . . .

         ‘‘[Subsequently, at] the defendant's sentencing hearing . . . defense counsel attempted to argue the defendant's motion for a new trial, but was stymied by the unavailability of the trial transcript. Both defense counsel and the court agreed to postpone arguments until the transcript became available. Defense counsel stated that, so long as the motion was heard at a later date, he did not have a problem going forward with the defendant's sentencing. The court agreed, stating: ‘[T]he proper way to consider this argument, which . . . let me just say I view as colorable . . . [i]s to have [defense counsel] file a memorandum with transcript references . . . give the state a fair opportunity to file a memorandum of [its] own with transcript references, and then perhaps schedule argument, you know, at a convenient time. Obviously, there are a lot of family members here that are here to see the sentencing, and you're not proposing postponing the sentencing. You're just proposing having the-having the motion for [a] new trial heard at a [later] date.' The court then sentenced the defendant to sixty years incarceration.

         ‘‘Approximately three months later on September 3, 2013, the defendant amended his motion for a new trial to include a claim that the prosecutor had, in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), failed to disclose consideration given to Murray in exchange for his testimony. On September 20, 2013, the court denied the defendant's motion for a new trial for lack of jurisdiction, citing State v. Luzietti, 230 Conn. 427, 646 A.2d 85 (1994), for the proposition that a trial court loses jurisdiction over a criminal case once the defendant has been sentenced. As a result, the court did not reach the merits of the defendant's motion.'' (Footnote omitted.) State v. McCoy, supra, 171 Conn.App. 323-24.

         ‘‘The defendant [then] filed a motion for reconsideration, arguing that the court retained jurisdiction under State v. Myers, [supra, 242 Conn. 125]. The court granted the motion for reconsideration, but again denied the motion for a new trial for lack of jurisdiction, stating that Myers ‘does not address the jurisdictional issue.' '' State v. McCoy, supra, 171 Conn.App. 324-25. The Appellate Court affirmed the judgment of the trial court, concluding that the trial court had lost jurisdiction upon execution of the defendant's sentence and, thus, properly denied the motion for a new trial. Id., 327.

         We begin with the standard of review. ‘‘Because a determination regarding the trial court's subject matter jurisdiction raises a question of law, our review is plenary.'' (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 326 Conn. 438, 448-49, 165 A.3d 1137 (2017). ‘‘The Superior Court is a constitutional court of general jurisdiction. . . . In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law.''[5] (Internal quotation marks omitted.) State v. Parker, 295 Conn. 825, 834, 992 A.2d 1103 (2010). There is no legislative or constitutional provision governing when a trial court loses jurisdiction following the execution of a criminal sentence; therefore, the issue is governed by the common law.

         The central issue in the present case is whether the trial court lost jurisdiction upon the execution of the defendant's sentence. To resolve this issue, some context on the jurisdiction of criminal courts relating to sentencing is helpful.

         Early case law explains that a court's jurisdiction over a case ends when the term of that court ends.[6]State v. Pallotti, 119 Conn. 70, 74, 174 A. 74 (1934) (‘‘[t]he established rule is that a sentence in a criminal case may be modified at any time during the term of court at which it was imposed, if no act has been done in execution of it''). More specifically, early cases recognized that, even when the term had not yet ended, the trial court lost jurisdiction when a person had begun to serve his or her sentence. See State v. Vaughan, 71 Conn. 457, 461, 42 A. 640 (1899) (noting that common-law power of King's Bench to admit bail belongs to Superior Court and ceases when sentence is executed); State v. Henkel, 23 Conn. Supp. 135, 138, 177 A.2d 684 (Conn. Cir. 1961) (‘‘[w]hile the established rule is that sentence in a criminal case may be modified at any time during the term of court at which it was imposed, such modification cannot be made after an act has been done in execution of it'' [internal quotation marks omitted]); Commonwealth v. Weymouth, 84 Mass. (2 Allen) 144, 145-46 (1861) (explaining and adopting practice exercised by courts in England that court could modify sentence during court term but could not modify sentence once term was over).

         One rationale for this rule was that once sentence was executed, double jeopardy protected a defendant from having his sentence increased. United States v. Benz, 282 U.S. 304, 307-308, 51 S.Ct. 113, 75 L.Ed. 354 (1931). Another separate, but related, rationale underlying this rule is the importance of protecting the finality of judgments. See, e.g., Carpentier v. Hart, 5 Cal. 406, 407 (1855) (reason for rule that court loses jurisdiction when term of court ends ‘‘is obvious . . . [in that] there must be some finality in legal proceedings, and a period beyond which they cannot extend'').

         In 1934, this court expressly recognized this common-law rule. In State v. Pallotti, supra, 119 Conn. 74, this court explained that ‘‘[t]he established rule is that a sentence in a criminal case may be modified at any time during the term of court at which it was imposed, if no act has been done in execution of it.'' (Emphasis added.)

         Then, in 1962, this court decided Kohlfuss v. Warden, 149 Conn. 692, 695-96, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S.Ct. 298, 9 L.Ed.2d 235 (1962), in which this court again noted its approval of the rule in Pallotti, explaining as follows: ‘‘Another generally accepted rule of the common law is that a sentence cannot be modified by the trial court, even at the same term, if the sentence was valid and execution of it has commenced. . . . The reason for this rule has been variously assigned. According to one view, the rule rests on the principle of double jeopardy. According to another view, the rule is based on the proposition that the trial court has lost jurisdiction of the case.'' (Citation omitted.)

         Although we recognized the two rationales for this common-law rule, after Kohlfuss, case law reveals a movement away from double jeopardy as a primary basis for the rule. See Wilson v. State, 123 Nev. 587, 591-92, 170 P.3d 975 (2007) (explaining Supreme Court's gradual retreat from prohibition against increasing sentence after defendant had begun to serve it and pointing to North Carolina v. Pearce, 395 U.S. 711, 721, 89 S.Ct. 2072, 23 L.Ed.2d 656 [1969], which permitted court to impose a more severe sentence after reconviction without violating double jeopardy). Additionally, the concerns related to double jeopardy being one of the animating principles behind this rule have lessened over the years, as the law regarding the ability of courts to modify illegal sentences became clearer. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (concluding that concurrent sentences doctrine did not preclude court from exercising jurisdiction over appeal claiming double jeopardy violation).

         Nevertheless, the underlying rationale that the rule is supported by the interest in protecting the finality of judgments remains solid. See, e.g., People v. Karaman, 4 Cal.4th 335, 348, 842 P.2d 100, 14 Cal.Rptr.2d 801 (1992) (recognizing common-law rule ‘‘that the trial court may change its judgment only during the term in which the judgment was rendered, but not thereafter . . . was established in order to provide litigants with some finality to legal proceedings'' [citations omitted; footnote omitted]). Indeed, this court recognized the rule again in 1982, when we reiterated that ‘‘[o]rdinarily a sentence may not be modified if any act [has been] done in execution of it.'' State v. Nardini, 187 Conn. 109, 123, 445 A.2d 304 (1982).

         Notwithstanding this well established rule, in 1986, this court decided State v. Wilson, 199 Conn. 417, 513 A.2d 620 (1986). In that case, this court addressed whether the trial court could amend its written decision over three years after the defendant was sentenced, in response to a motion for rectification. Id., 432-34. This court explained that ‘‘[n]either our General Statutes nor our [rules of practice] define the period during which a trial court may modify or correct its judgment in a criminal case. On the civil side, however, [our rules of practice provide] that any civil judgment or decree may be opened or set aside within four months succeeding the date on which it was rendered or passed. We see no reason to distinguish between civil and criminal judgments in this respect, and we therefore hold that, for purposes of the [common-law] rule, a criminal judgment may not be modified in matters of substance beyond a period of four months after the judgment has become final.'' (Emphasis omitted; internal quotation marks omitted.) Id., 437; see also Practice Book § 17-4; Practice Book (1978-97) § 326.

         Despite making this pronouncement, this court did not use the four month rule to find that the trial court had jurisdiction. Instead, this court concluded that the trial court in that case was without jurisdiction to modify the judgment. State v.Wilson, supra, 199 Conn. 438. This court explained that ‘‘the judgment in this case became final when the defendant was sentenced . . . . The trial court, when it filed its amended memorandum of decision [over three years later] was clearly without ...


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