Argued
April 8
Procedural
History
Substitute
information charging the defendant with the crimes of
conspiracy to commit robbery in the first degree, robbery in
the first degree, burglary in the first degree and kidnapping
in the first degree as an accessory, brought to the Superior
Court in the judicial district of Hartford and tried to the
jury before Dewey, J.; thereafter, the court granted
the defendant's motion for a judgment of acquittal as to
the charge of burglary in the first degree; verdict of guilty
of conspiracy to commit robbery in the first degree, robbery
in the first degree and kidnapping in the first degree;
subsequently, the court denied the defendant's motion for
a new trial and rendered judgment in accordance with the
verdict, from which the defendant appealed to this court,
which affirmed the judgment; thereafter, the court,
Dewey, J., dismissed the defendant's motion to
correct an illegal sentence, and the defendant appealed to
this court. Affirmed.
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.
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.
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, 17A.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 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., 300. This court affirmed the defendant's
conviction on direct appeal.[1] Id., 298.
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 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 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] McKay did not
present a double jeopardy argument in his motion to correct.
On May 25, 2017, the state filed an objection to the motion
to correct an illegal sentenced filed by McKay.
On July
28, 2017, the court dismissed the motion to correct an
illegal sentence filed by McKay. It set forth the general
legal principles regarding a motion to correct filed pursuant
to Practice Book § 43-22. It then concluded:
‘‘Insofar as the defendant's motion to
correct constituted a collateral attack on his conviction it
is outside of this court's jurisdiction. See, e.g.,
State v. Starks, 121 Conn.App. 581, 590, 997 A.2d
546 (2010); State v. Wright, 107 Conn.App. 152,
157-58, 944 A.2d 991, cert. denied, 289 Conn. 933, 958 A.2d
1247 (2008).'' Furthermore, the last page of the
motion to correct an illegal sentence filed by McKay contains
the following handwritten notation, signed by Judge Dewey:
‘‘[D]ismissed, see memorandum of
decision.'' This appeal followed.
We
begin by setting forth the relevant legal principles and our
standard of review. ‘‘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. . . . 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. . . . Because
it is well established that the jurisdiction of the trial
court terminates once a defendant has been sentenced, a trial
court may no longer take any action affecting a
defendant's sentence unless it expressly has been
authorized to act. . . . [Practice Book] § 43-22
embodies a common-law exception that permits the trial court
to correct an illegal sentence or other illegal disposition.
. . . Thus, if the defendant cannot demonstrate that his
motion to correct falls within the purview of § 43-22,
the court lacks jurisdiction to entertain it. . . . [I]n
order for the court to have jurisdiction over a motion to
correct an illegal sentence after the sentence has been
executed, the sentencing proceeding [itself] . . . must be
the subject of the attack.'' (Emphasis omitted;
internal quotation marks omitted.) State v.
Mukhtaar, 189 Conn.App. 144, 148-49, A.3d (2019); see
also State v. Walker, 187 Conn.App. 776, 783-84, 204
A.3d 38, cert. denied, 331 Conn. 914, 204 A.3d 703 (2019).
The determination of whether a claim may be brought via a
motion to correct an illegal sentence presents a question of
law over which our review is plenary. State v.
Abraham, 152 Conn.App. 709, 716, 99 A.3d 1258 (2014);
State v. Koslik, 116 Conn.App. 693, 697, 977 A.2d
275, cert. denied, 293 Conn. 930, 980 A.2d 916 (2009).
‘‘[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. . . . Considering these
categories . . . this court [has] held . . . 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.''
(Citations omitted; emphasis omitted; ...