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State v. Brown

Court of Appeals of Connecticut

August 27, 2019

STATE OF CONNECTICUT
v.
KENYA BROWN

          Argued April 23, 2019

         Procedural History

         Substitute information in the first case, charging the defendant with the crime of assault in the second degree, and two-part substitute information, in the second case, charging the defendant with the crime of threatening in the first degree, brought to the Superior Court in the judicial district of Danbury, where the defendant was presented to the court, Marano, J., on a plea of guilty as to the crime of assault in the second degree; judgment of guilty in accordance with the plea; thereafter, the defendant was presented to the court, Blawie, J., on a plea of guilty as to the crime of threatening in the first degree; judgment of guilty in accordance with the plea; subsequently, the court, Welch, J., denied the defendant's motion to correct an illegal sentence, and the defendant appealed to this court. Improper form of judgment; affirmed in part; judgment directed in part.

          Kenya O. Brown, self-represented, the appellant (defendant).

          Bruce R. Lockwood, supervisory assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Edward L. Miller, assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Alvord and Diana, Js.

          OPINION

          PER CURIAM.

         The self-represented defendant, Kenya Brown, appeals from the trial court's denial of his motion to correct an illegal sentence. On appeal, the defendant claims that (1) General Statutes §§ 53a-37[1] and 53a-38[2] are ambiguous and contradictory, and (2) § 53a-38 is unconstitutional because it violates his constitutional rights to due process, to be free from double jeopardy, and to equal protection. We reverse the judgment of the trial court only as it relates to the portion of the defendant's motion to correct that advances arguments that do not implicate the sentencing proceeding itself. The court should have dismissed, rather than denied, this portion of the motion. We affirm the judgment of the trial court in all other respects.

         The following facts are relevant on appeal. In 2003, the defendant pleaded guilty to attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a, and robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). The defendant was sentenced to a total effective term of twenty years imprisonment. In 2006, in connection with the assault of a fellow inmate, the defendant pleaded guilty to assault in the second degree in violation of General Statutes § 53a-60 (a) (2), and was sentenced to a term of eighteen months of imprisonment to run consecutively to the sentence he was serving for the 2003 convictions. In 2012, in connection with threats the defendant had made in a letter to a judge, the defendant pleaded guilty to threatening in the first degree in violation of General Statutes § 53a-61aa, and was sentenced to a term of fifteen months of imprisonment to run consecutively to his sentences for the 2003 and 2006 convictions.

         On January 10, 2018, the self-represented defendant filed a motion to correct an illegal sentence challenging the sentences from his 2006 and 2012 convictions.[3] The defendant argued that § 53a-37, governing concurrent and consecutive sentences, and § 53a-38, addressing the method of calculation for those sentences, were ambiguous and contradictory, and violated his constitutional rights to due process, to be free from double jeopardy, and to equal protection. Pursuant to State v. Casiano, 282 Conn. 614, 922 A.2d 1065 (2007), Assistant Public Defender Jenna Carriero reviewed the defendant's motion and reported in writing to the court, Welch, J., that ‘‘no sound basis exist[ed] for either the correction of the defendant's sentence in the manner he outline[d] in his motion, or an appeal of the trial court's denial of that motion.'' At a hearing on April 27, 2018, the court accepted Attorney Carriero's report and denied the defendant's motion to correct an illegal sentence. This appeal followed.

         On appeal, the defendant claims the court erred in denying his motion to correct an illegal sentence. The defendant renews his argument that, as applied to his sentences, §§ 53a-37 and 53a-38 are ambiguous and contradictory and that § 53a-38 violated his constitutional rights to due process, to be free from double jeopardy, and to equal protection. We disagree with the defendant.

         We begin by setting forth our standard of review. ‘‘A motion to correct an illegal sentence under Practice Book § 43-22 constitutes a narrow exception to the general rule that, once a defendant's sentence has begun, the authority of the sentencing court to modify that sentence terminates.'' State v. Casiano, supra, 282 Conn. 624. Practice Book § 43-22 states, ‘‘[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 . . . either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory. . . . Sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but . . . imposed in a way which violates [a] defendant's right . . . to be addressed personally at sentencing and to speak in mitigation of punishment . . . or his right to be sentenced by a judge relying on accurate information or considerations solely on the record, or his right that the government keep its plea agreement promises . . . . [These examples are not exhaustive and will evolve to encompass rights or procedures] mandated by state law that are intended to ensure fundamental fairness in sentencing, which, if not followed, could render a sentence invalid.'' (Citations omitted; internal quotation marks omitted.) State v. Parker, 295 Conn. 825, 839-40, 992 A.2d 1103 (2010). Because the defendant's claims raise questions of statutory interpretation and the constitutionality of statutes, our review is plenary. See State v. Meadows, 185 Conn.App. 287, 302- 303, 197 A.3d 464 (constitutionality of statutes subject to plenary review), cert. granted on other grounds, 330 Conn. 947, 196 A.3d 327 (2018); State v. Holliday, 118 Conn.App. 35, 39, 982 A.2d 268 (2009) (statutory interpretation subject to plenary review), cert. denied, 295 Conn. 909, 989 A.2d 605 (2010).

         I

         The defendant first claims that §§ 53a-37 and 53a-38 are ‘‘ambiguous and contradictory.'' Essentially, the defendant's argument on appeal is that because his 2006 and 2012 sentences run consecutively, they adversely affected his original 2003 plea agreement and, therefore, he was not provided fair notice that his ability to seek an early release would be altered accordingly. The state responds that the plain language of the two statutes is neither ambiguous nor contradictory and that the Department of Correction's (department) ‘‘changing ...


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