March 11, 2019.
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.
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. DiPENTIMA, C. J.
In this opinion the other judges concurred.
Conn.App. 130] DiPENTIMA, C. J.
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
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
following facts and procedural history are relevant to this
appeal. On November 7, 2005, the defendant [192 Conn.App.
131] 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 and conducting a
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 for the conspiracy to commit
assault in the first degree charge. The court also terminated
the defendant's probation.
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 [192
Conn.App. 132] underlying facts 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."
April 7, 2016, the self-represented defendant filed a motion
to correct an illegal sentence pursuant to Practice Book §
43-22. 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 [192
Conn.App. 133] convicted of a crime and that a violation of
probation is not a crime. Accordingly, the defendant claimed