Argued
March 11, 2019
Procedural
History
Information
charging the defendant with the crimes of carrying a pistol
without a permit and criminal possession of a pistol, and
with violation of probation, brought to the Superior Court in
the judicial district of Hartford, where the defendant was
presented to the court, Alexander, J., on a plea of
guilty; judgment of guilty in accordance with plea;
thereafter, the court, Dewey, J., dismissed the
defendant's motion to correct an illegal sentence, and
the defendant appealed to this court. Improper form of
judgment; judgment directed.
Temmy
Ann Miller, with whom were Aimee Lynn Mahon and, on the
brief, Nicholas A. Marolda, for the appellant (defendant).
Mitchell S. Brody, senior assistant state's attorney,
with whom, on the brief, were Gail P. Hardy, state's
attorney, and Elizabeth Tanaka, former assistant state's
attorney, for the appellee (state).
DiPentima, C. J., and Bright and Moll, Js.
OPINION
DiPENTIMA, C. J.
The
defendant, Reggie Battle, appeals from the judgment of the
trial court dismissing his motion to correct an illegal
sentence. On appeal, the defendant claims that (1) the court
improperly concluded that it lacked jurisdiction to consider
his motion to correct an illegal sentence, (2) the court
improperly concluded that the use of special parole following
the finding of a probation violation did not constitute an
illegal sentence and (3) he was denied due process of law
when his motion to correct an illegal sentence was not acted
upon by the judge who had sentenced him. We conclude that the
trial court had jurisdiction to consider the defendant's
motion to correct an illegal sentence but are not persuaded
by his second and third claims. Accordingly, the form of the
judgment is improper, and we reverse the judgment dismissing
the defendant's motion to correct an illegal sentence and
remand the case with direction to render judgment denying the
defendant's motion.
The
following facts and procedural history are relevant to this
appeal. On November 7, 2005, the defendant appeared before
the court, Miano, J., and pleaded guilty to
conspiracy to commit assault in the first degree in violation
of General Statutes §§ 53a-48 and 53a-59 (a) (1)
and admitted a violation of probation pursuant to General
Statutes § 53a-32. After hearing the prosecutor's
recitation of the facts[1] and conducting a plea canvass, the
court accepted the defendant's guilty plea and admission.
The defendant waived a presentence investigation report, and
the court sentenced him in accordance with the parties'
agreement. Specifically, the court sentenced the defendant to
twenty years incarceration, execution suspended after nine
years, and five years of probation[2] for the conspiracy to commit
assault in the first degree charge. The court also terminated
the defendant's probation.[3]
On
January 13, 2014, the defendant appeared before the court,
Alexander, J., and admitted a violation of
probation, pursuant to § 53a-32, and pleaded guilty to
carrying a pistol without a permit in violation of General
Statutes § 29-35 (a) and criminal possession of a pistol
in violation of § 53a-217c. The prosecutor set forth the
underlying facts[4] and, following a canvass, the court
accepted the defendant's guilty plea and admission. The
court then sentenced the defendant as follows:
‘‘[The] court will impose the agreement as
indicated. On the violation of probation, it is ordered
revoked; five years to serve, six years of special parole. On
the charge of [carrying a] pistol without [a] permit, it is
the sentence of the court that you receive five years to
serve, which will run concurrent with the previous sentence.
On the charge of criminal possession of a firearm, five years
to serve, also concurrent.''
On
April 7, 2016, the self-represented defendant filed a motion
to correct an illegal sentence pursuant to Practice Book
§ 43-22.[5] On November 1, 2016, the defendant, then
represented by counsel, filed an amended motion to correct,
arguing that General Statutes § 54-125e expressly limits
the use of special parole to those convicted of a crime and
that a violation of probation is not a crime. Accordingly,
the defendant claimed that his sentence was illegal. On
December 23, 2016, the state filed an objection to the
defendant's amended motion to correct.
On
March 16, 2017, the court, Dewey, J., issued a
memorandum of decision dismissing the defendant's motion
to correct an illegal sentence. Although the court concluded
that the defendant's claim did not fall within the ambit
of Practice Book § 43-22, it proceeded to consider, and
reject, the merits of his motion. Specifically, the court
reasoned that, in connection with disposing of a charge of
violation of probation, a sentence that includes a period of
special parole was authorized by the General Statutes and our
case law. This appeal followed. Additional facts will be set
forth as necessary.
I
The
defendant first claims that the court improperly concluded
that it lacked jurisdiction to consider his motion to correct
an illegal sentence. Specifically, he argues that his claim
that a sentence of special parole on a violation of probation
was not permitted under our statutes fell within the limited
jurisdiction authorized for a motion to correct an illegal
sentence. We agree with the defendant.
This
claim presents a question of law subject to the plenary
standard of review. State v. Mukhtaar, 189
Conn.App. 144, 148, 207 A.3d 29 (2019). It 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. . . . 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. .
. . 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.'' (Citations omitted; emphasis omitted;
internal quotation marks omitted.) State v.
Evans, 329 Conn. 770, 783-84, 189 A.3d 1184 (2018),
cert. denied, U.S., 139 S.Ct. 1304, 203 L.Ed.2d 425 (2019).
‘‘[Our
Supreme Court] has held that the jurisdiction of the
sentencing court terminates once a defendant's sentence
has begun, and, therefore, that court may no longer take any
action affecting a defendant's sentence unless it
expressly has been authorized to act. . . . Practice Book
§ 43-22, which provides the trial court with such
authority, provides 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 or any other disposition made in an illegal
manner. An illegal sentence is essentially one which either
exceeds the relevant statutory maximum limits, violates a
defendant's right against double jeopardy, is ambiguous,
or is internally contradictory. . . . We previously have
noted that a defendant may challenge his or her criminal
sentence on the ground that it is illegal by raising the
issue on direct appeal or by filing a motion pursuant to
§ 43-22 with the judicial authority, namely, the trial
court.'' (Citations omitted; internal quotation marks
omitted.) State v. Tabone, 279 Conn. 527,
533-34, 902 A.2d 1058 (2006); see also State v.
Evans, supra, 329 Conn. 778. Simply stated,
‘‘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 omitted;
internal quotation marks omitted.) State v.
Evans, supra, 779.
The
defendant argued in his motion to correct an illegal sentence
that special parole cannot be imposed following a violation
of probation. Specifically, he contended that the text of
§ 54-125e establishes that special parole may be imposed
only for the conviction of a crime and that a violation of
probation hearing is not a stage of a criminal prosecution.
Further, he claimed that § 53a-32 (d), which sets forth
the court's options following a finding of a probation
violation, does not include special parole. In other words,
the defendant challenged the sentence imposed, rather than
the events leading to his conviction. Because the defendant
set forth a colorable claim regarding the legality of the
sentence imposed for violating his probation, the trial court
had jurisdiction to consider the merits of the
defendant's motion. We conclude, therefore, that the
court improperly dismissed the motion to correct an illegal
sentence filed by the defendant.
II
Having
concluded that the court had jurisdiction to decide the
defendant's claim, we turn to the defendant's
contention that the imposition of special parole, following
the determination tha the had violated his probation,
constituted an illegal sentence. Specifically, he argues that
the use of special parole is not authorized by § 53a-32
(d) (4) under the facts of this case. We are not persuaded by
the defendant's restrictive interpretation of the
relevant statutes and principles relating to sentencing in
probation violation proceedings. Accordingly, we disagree
with the defendant's claim.[6]
In the
court's decision, it reviewed the relevant statutes,
namely, General Statutes §§ 53a-28 and 53a-32 (d).
Next, it observed that ‘‘[t]he provisions
relating to alternatives to incarceration, special parole and
probation, must be read in harmony.'' The court
further stated that ‘‘[i]n State v.
Santos T., 146 Conn.App. 532, 535-36, 77 A.3d 931');">77 A.3d 931,
[cert. denied, 310 Conn. 965, 83 A.3d 345] (2013), the
Connecticut Appellate Court implicitly recognized a trial
court's authority to impose a term of special parole
after a parole violation hearing and
sentencing.''[7] Finally, it reasoned that the
dispositional phase of a probation revocation proceeding, in
substance, generally is indistinguishable from that following
a conviction and that our law affords the same discretion to
the court in both instances. Ultimately, the court rejected
the defendant's argument that the imposition of special
parole following a finding of a probation violation
constituted an illegal sentence.
On
appeal, the defendant maintains that the imposition of
special parole following the determination of a probation
violation is not authorized by § 53a-32 and, therefore,
constitutes an illegal sentence. He argues that § 53a-32
does not include specifically special parole and that its
omission cannot be rectified by judicial interpretation, but
rather only by legislative action. After ...