154 Conn.App. 750
Conn. App. Ct.2015Background
- Bozelko was convicted after jury trial of multiple identity-theft, larceny, credit-card and forgery offenses and scheduled for sentencing December 7, 2007. A presentence investigation (PSI) was ordered.
- Probation officer prepared a PSI without the defendant’s participation after scheduling and counsel-change issues; the PSI allegedly described the defendant as refusing to cooperate and using "delay tactics."
- At sentencing the trial judge (Cronan) denied a continuance to allow a PSI interview with new counsel present, treated the PSI as non-mandatory, and proceeded to sentence Bozelko to an effective ten-year term (execution suspended after five years). New counsel protested lack of preparation and mitigation material.
- Bozelko did not raise sentencing claims on direct appeal; later filed a self-represented motion to correct an illegal sentence under Practice Book § 43-22 alleging procedural violations in the preparation/use of the PSI and sentencing on inaccurate information in violation of due process.
- The trial court (Arnold, J.) sua sponte dismissed the § 43-22 motion for lack of subject matter jurisdiction relying on State v. Parker. Bozelko appealed; the Appellate Court reversed and remanded for a merits hearing.
Issues
| Issue | Plaintiff's Argument (Bozelko) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether the trial court had subject-matter jurisdiction under Practice Book § 43-22 to hear a motion alleging sentencing was imposed in an illegal manner because of PSI-related procedural violations | The court violated mandatory rules by sentencing without a complete PSI and by relying on inaccurate PSI information; these are judicial procedural violations invoking § 43-22 | Relied on Parker to argue the allegations were inadequate to invoke jurisdiction (or were counsel failings) | Court had jurisdiction: allegations, if proved, fit Parker’s exception for sentences imposed in an illegal manner; dismissal for lack of jurisdiction was error |
| Whether the alleged procedural violations were judicial errors (versus defense counsel failings) | Judge Cronan refused to continue sentencing and stated PSI was not an absolute right; those are judicial acts | State contended failures stemmed from counsel or were not properly pleaded | Appellate Court found defendant alleged violations by the sentencing judge, satisfying Parker’s requirement that the procedural violation be attributable to the court |
| Whether allegations that sentencing relied on inaccurate or unreliable PSI information were sufficient to show prejudice/impact on sentence | The PSI contained materially misleading statements (refusal to cooperate) and deprived Bozelko of presenting mitigation, affecting sentencing | State argued mere assertion of inaccuracies is insufficient without proof the court relied on them | The pleadings were sufficient to invoke jurisdiction; ultimate success requires proof that the court actually relied on misinformation at sentencing |
| Appropriate remedy where court dismissed for lack of jurisdiction | Remand for a merits hearing to prove factual reliance and prejudice | State argued no remand needed because trial court reached the merits | Because a court that concludes it lacks jurisdiction cannot decide the merits, the case is remanded for an evidentiary hearing on the § 43-22 claims |
Key Cases Cited
- State v. Parker, 295 Conn. 825 (2010) (defines § 43-22 exceptions and requires allegations that a court—not counsel—committed a procedural violation that materially affected the sentence)
- State v. Charles F., 133 Conn. App. 698 (2012) (applies Parker: timely PSI receipt allegations can invoke jurisdiction but prejudice must be shown)
- State v. McNellis, 15 Conn. App. 416 (1988) (examples of sentences imposed in an illegal manner include reliance on inaccurate information or denial of mitigation rights)
- State v. Patterson, 236 Conn. 561 (1996) (defendant has no constitutional right to a PSI but must be sentenced on accurate information)
- State v. Tabone, 279 Conn. 527 (2006) (a criminal sentence may be challenged as illegal via direct appeal or a § 43-22 motion)