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
...