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State v. Thompson

Appellate Court of Connecticut

June 18, 2019

STATE of Connecticut
v.
Earl V. THOMPSON

         Argued April 8, 2019

         Appeal from the Superior Court, Judicial District of Hartford, Dewey, J.

Page 264

          Mark Diamond, assigned counsel, for the appellant (defendant).

         Rita M. Shair, senior assistant state’s attorney, with whom were Gail P. Hardy, state’s attorney, and, on the brief, David L. Zagaja, senior assistant state’s attorney, for the appellee (state).

         DiPentima, C. J., and Lavine and Bishop, Js.

         OPINION

         DiPENTIMA, C.J.

         [190 Conn.App. 661] The defendant, Earl V. Thompson, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. In this appeal, the defendant claims that the trial court improperly concluded that it lacked subject matter jurisdiction to consider his motion. We conclude that, in the motion to correct considered by the trial court, the defendant challenged only the validity of his conviction and not his sentence or the sentencing proceeding, and, therefore, the court properly determined that it lacked subject matter jurisdiction. Accordingly, we affirm the judgment of the trial court.

Page 265

          The following facts and procedural history are relevant to our discussion. The defendant was convicted, after a jury trial, of conspiracy to commit robbery in the first degree in violation of General Statutes § § 53a-134 (a) (4) and 53a-48, robbery in the first degree in violation of § 53a-134 (a) (4) and kidnapping in the first degree as an accessory in violation of General Statutes § § 53a-92 (a) (2) (B) and 53a-8. See State v. Thompson, 128 Conn.App. 296, 298, 17 A.3d 488 (2011), cert. denied, 303 Conn. 928, 36 A.3d 241 (2012). Following his conviction, the court sentenced him to a term of twenty years [190 Conn.App. 662] incarceration on each of the robbery counts, to run concurrently, and a term of twenty-five years incarceration on the kidnapping count, to run consecutively to the other terms, for a total effective sentence of forty-five years of incarceration. Id., at 300, 17 A.3d 488. This court affirmed the defendant’s conviction on direct appeal.[1] Id., at 298, 17 A.3d 488.

         On October 29, 2015, the self-represented defendant filed a motion to correct an illegal sentence pursuant to Practice Book § 43-22. He argued that his sentence was internally contradictory and violated his right against double jeopardy. The front page of this motion contains two notations from the court. The first notation, dated March 31, 2016, states that the motion was [190 Conn.App. 663] withdrawn. The second notation, dated August 24, 2016, states that the motion should be placed back on the docket and that a special public defender would review the motion to correct an illegal sentence. The self-represented defendant essentially reasserted the contents of his motion to correct an illegal sentence in a motion dated May 6, 2016,[2] and captioned "Motion

Page 266

to reopen Motion to correct illegal sentence pursuant to Connecticut Practice Book [§ ] 43-22." This "motion to reopen" included the claims that the defendant’s sentence was internally contradictory and violated his right against double jeopardy.

         On September 20, 2016, Attorney Robert J. McKay entered an appearance on behalf of the defendant. On April 24, 2017, McKay filed a motion to correct an illegal sentence. In the accompanying memorandum of law, McKay set forth the following: "The defendant now comes and claims that ... there is a question regarding which statutory provision ... applied at that time. Within the current case law, the defendant’s conviction for conspiracy to commit robbery in the first degree ... should be vacated as there existed no facts to support that there existed a plan between the defendant and a codefendant to threaten the victim with a gun upon enter[ing] the victim’s home and/or intentionally aided the codefendant in committing the offense of robbery in the first degree."[3] ...


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