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State v. Battle

Appellate Court of Connecticut

August 27, 2019

STATE OF CONNECTICUT
v.
REGGIE BATTLE

         Argued March 11, 2019.

Page 638

         

          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.

         COUNSEL:

          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. DiPENTIMA, C. J. In this opinion the other judges concurred.

          OPINION

Page 639

          [192 Conn.App. 130] 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

Page 640

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 [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[1] and conducting a plea canvass,

Page 641

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 [192 Conn.App. 132] 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 [192 Conn.App. 133] convicted of a crime and that a violation of probation is not a crime. Accordingly, the defendant claimed that ...


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