February 11, 2019
information charging the defendant with the crimes of
manslaughter in the first degree and assault in the first
degree, brought to the Superior Court in the judicial
district of Hartford, where the defendant was presented to
the court, Alexander, J., on pleas of guilty;
judgment of guilty; thereafter, the court, Dewey,
J., dismissed the defendant's motion to correct an
illegal sentence, and the defendant appealed to this court.
Lynn Mahon, assigned counsel, with whom was Temmy Ann Miller,
assigned counsel, for the appellant (defendant).
Hanna, assistant state's attorney, with whom, on the
brief, were Gail P. Hardy, state's attorney, and John F.
Fahey, senior assistant state's attorney, for the
Alvord, Sheldon and Moll, Js. [*]
defendant, Jeffrey K. Ward, appeals from the judgment of the
trial court dismissing his motion to correct a sentence
imposed in an illegal manner (motion to correct).On appeal,
the defendant claims that the court erred in (1) adjudicating
the motion to correct, rather than referring the motion to
the sentencing court, and (2) concluding that it lacked
subject matter jurisdiction over the motion to
correct. We disagree and, accordingly, affirm
the judgment of the trial court.
following facts and procedural history are relevant to our
resolution of the appeal. On June 25, 2012, pursuant to a
plea agreement, the defendant pleaded guilty to manslaughter
in the first degree in violation of General Statutes §
53a-55 (a) (1) and assault in the first degree in violation
of General Statutes § 53a-59 (a) (1) in connection with
an incident that had occurred at a motel in Enfield on
September 29, 2011. After canvassing the defendant, the trial
court, Alexander, J., accepted the defendant's
guilty pleas. On July 23, 2012, following a sentencing
hearing, Judge Alexander sentenced the defendant to a period
of twenty years of incarceration on the count of manslaughter
in the first degree and five years of incarceration on the
count of assault in the first degree, to run consecutively to
the sentence on the count of manslaughter in the first
degree, for a total effective sentence of twenty-five years
of incarceration, as agreed to by the parties. The defendant
did not appeal from his conviction.
November3, 2016, pursuant to Practice Book§ 43-22, the
defendant filed the motion to correct, accompanied by a
memorandum of law and exhibits. Specifically, the defendant
contended that his sentence was imposed in an illegal manner
on the grounds that (1) he had been incompetent at the time
of sentencing and (2) the sentencing court had failed to
order, sua sponte, that a competency evaluation and hearing
be conducted pursuant to General Statutes § 54-56d
before the defendant's sentencing on the basis of
information known to the sentencing court.
November 17, 2016, the trial court, Dewey, J., held
a hearing on the motion to correct. At the outset of the
hearing, the state argued that the court lacked subject
matter jurisdiction over the motion to correct, contending
that the defendant's claims should be raised by way of a
petition for a writ of habeas corpus. In addition, the state
argued that the record did not demonstrate that the
defendant's sentence was imposed in an illegal manner.
The defendant argued that the court had subject matter
jurisdiction over the motion to correct because his alleged
incompetence at the time of sentencing and the sentencing
court's failure to order, sua sponte, that a competency
evaluation and hearing be conducted before sentencing were
germane to the legality of the manner in which his sentence
was imposed. Following argument, the court reserved its
decision regarding jurisdiction and heard the parties on the
merits of the motion to correct. On March 7, 2017, the court
issued a memorandum of decision dismissing the motion to
correct for lack of subject matter jurisdiction. This appeal
followed. Additional facts and procedural history will be set
forth as necessary.
first address the defendant's claim that Judge Dewey
erred in hearing and ruling on the motion to correct, rather
than referring the motion to correct to Judge Alexander, the
sentencing judge. Specifically, the defendant asserts that
due process required the motion to correct to be
adjudicated by Judge Alexander, who, as the sentencing judge,
had observed and interacted with the defendant, was familiar
with the defendant and his mental health issues, and was
better situated to consider the issues raised in the motion
to correct. We are not persuaded.
preliminary matter, the defendant concedes that this claim is
unpreserved; he argues, however, that his
unpreserved claim is reviewable pursuant to State v.
Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781,
120 A.3d 1188 (2015). Under Golding, ‘‘a
defendant can prevail on a claim of constitutional error not
preserved at trial only if all of the following
conditions are met: (1) the record is adequate to review the
alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right; (3)
the alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial; and (4) if subject to
harmless error analysis, the state has failed to demonstrate
harmlessness of the alleged constitutional violation beyond a
reasonable doubt. In the absence of any one of these
conditions, the defendant's claim will fail.''
(Emphasis in original; footnote omitted.) State v.
Golding, supra, 239-40. ‘‘The
first two steps in the Golding analysis address the
reviewability of the claim, while the last two steps involve
the merits of the claim.'' (Internal quotation marks
omitted.) State v. Jerrell R., 187
Conn.App. 537, 543, 202 A.3d 1044, cert. denied, 331 Conn.
918, 204 A.3d 1160 (2019).
outset, in response to a question raised by the state in its
appellate brief, we note that the defendant's unpreserved
claim does not fall within the ambit of those cases that
stand for the proposition that a defendant is not entitled to
Golding review of an unpreserved claim challenging
the legality of a sentence that was not raised by way of a
motion to correct an illegal sentence. See, e.g., State
v. Gang Jin, 179 Conn.App. 185, 195-96, 179
A.3d 266 (2018). Here, the unpreserved claim at issue
concerns the actions of Judge Dewey in not referring the
motion to correct to Judge Alexander, as opposed to the
legality of the sentence imposed by Judge Alexander, and,
thus, Golding review may be available. See
Mozell v. Commissioner of Correction, 291
Conn. 62, 67 n.2, 967 A.2d 41 (2009) (rejecting
respondent's argument that Golding review
inapplicable in all circumstances arising from appeal from
judgment of habeas court and concluding that Golding
review may be available to challenge certain actions of
habeas court); see also State v. White, 182
Conn.App. 656, 673-74, 191 A.3d 172 (concluding that
defendant's unpreserved claim, that trial court erred by
not recusing itself from hearing merits of motion to correct
illegal sentence, failed under third prong of
Golding), cert. denied, 330 Conn. 924, 194 A.3d 291
defendant's unpreserved claim, that, as a matter of law,
the sentencing court was the only judicial authority
permitted to decide the motion to correct, meets the first
two prongs of Golding and, therefore, is reviewable.
Turning to the first prong of Golding, we conclude
that the record is adequate to review the defendant's
claim of error. With respect to the second prong of
Golding, the defendant's due process claim is of
constitutional magnitude. See State v.
Battle, 192 Conn.App. 128, 144, A.3d (2019) (claim
that defendant's right to due process was violated
because sentencing court did not act on motion to correct
illegal sentence was of constitutional magnitude).
the defendant's due process claim is review-able, we
conclude that the claim does not satisfy the third prong of
Golding in light of this court's recent decision
in State v. Battle, supra, 192 Conn.App.
146-47, wherein this court concluded that due process does
not require the sentencing court to hear and adjudicate a
defendant's motion to correct an illegal sentence or a
sentence imposed in an illegal manner.
Battle, this court observed that the current version
of Practice Book § 43-22 ‘‘does not
limit the ‘judicial authority' empowered to correct
an illegal sentence or a sentence imposed in an illegal
manner to the sentencing court.'' Id., 145.
This court further observed that there was no appellate
authority ‘‘holding that a defendant's motion
to correct an illegal sentence or a sentence imposed in an
illegal manner must be heard and adjudicated by the
particular judge who imposed the sentence.''
(Emphasis in original.) Id. Ultimately, this court
concluded: ‘‘Due process does not mandate that a
motion to correct an illegal sentence or a sentence imposed
in an illegal manner be heard by the judge whom the defendant
prefers or who has the greatest familiarity with the
defendant. Due process seeks to assure a defendant a fair
trial, not a perfect one.'' (Internal quotation marks
omitted.) Id., 146-47.
defendant's due process claim is controlled by
Battle. Accordingly, we conclude that the defendant
in the present case did not suffer a due process violation
and, therefore, his claim fails under the third prong of
turn to the defendant's claim that the court erred in
dismissing the motion to correct for lack of subject matter
jurisdiction. Specifically, the defendant asserts that the
court misconstrued his claim in the motion to correct, which
led the court to conclude erroneously that it lacked subject
matter jurisdiction over the motion to correct. He contends
that he raised a colorable claim contesting the legality of
the manner in which his sentence was imposed, thereby
invoking the court's subject matter jurisdiction.
Although we agree with the defendant that the court's
analysis in dismissing the motion to correct was flawed, we
nevertheless conclude that the defendant failed to present a
colorable claim that his sentence was imposed in an illegal
manner, and, thus, the court properly dismissed the motion to
correct for lack of subject matter jurisdiction.
begin by setting forth the relevant standard of review and
legal principles that guide our analysis of the
defendant's claim. ‘‘Because the
defendant's [claim] pertain[s] to the subject matter
jurisdiction of the trial court, [it] . . . ...