182 Conn. App. 124
Conn. App. Ct.2018Background
- In 2011 Holmes and an accomplice forced entry into an apartment; Holmes fired multiple shots, killing the victim. He was charged with murder, felony murder (predicated on burglary), home invasion, conspiracy to commit home invasion, and burglary in the first degree.
- The jury acquitted on murder but convicted Holmes of felony murder, home invasion, conspiracy to commit home invasion, and burglary in the first degree (and a lesser included manslaughter verdict on murder count).
- At sentencing the court vacated the lesser included convictions (manslaughter and burglary) under Polanco to avoid a double jeopardy violation, but left intact felony murder and home invasion and imposed an aggregate 70-year sentence.
- Holmes filed a motion to correct an illegal sentence, arguing that once the burglary conviction was vacated the felony murder predicate became home invasion, which was not a felony-murder predicate in 2011, thus making his sentence illegal and violative of ex post facto and due process protections.
- The trial court denied the motion, reasoning the jury had found burglary (the charged predicate) and the long form information and jury instructions tied felony murder to burglary; vacatur did not erase the jury’s verdict for sentencing purposes. Holmes appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the felony murder sentence is illegal because the predicate burglary conviction was vacated | State: Sentence valid because jury found burglary as predicate and sentencing may rely on that verdict despite vacatur | Holmes: Vacatur of burglary means home invasion became the predicate; home invasion was not a felony-murder predicate in 2011, so sentence is illegal/ex post facto and notice violation | Court affirmed: sentencing could rely on the vacated burglary verdict; jury verdict remains and satisfied elements for felony murder |
| Whether vacatur under Polanco restores defendant to presumption of innocence for sentencing purposes | State: Vacatur does not erase the jury’s guilty verdict; court could have reinstated burglary if greater conviction later reversed | Holmes: Vacatur restores pretrial status (presumption of innocence), so burglary cannot be used as predicate | Court held vacatur does not alter the jury’s verdict; reliance on vacated conviction for sentencing was permissible |
| Whether the court deprived Holmes of notice or violated due process by relying on home invasion | State: Not reached because court relied on burglary predicate | Holmes: Sentencing on a predicate not available at time of offense violates due process and ex post facto | Court declined to reach these claims; resolved by holding burglary (vacated) was the predicate used |
| Whether the trial court should have granted default for late state opposition | Holmes: State failed to timely oppose motion to correct; default judgment warranted | State: No applicable timing rule in criminal Practice Book provisions; no default | Court denied default; Practice Book §66-2 governs appeals, not criminal motions like §43-22 |
Key Cases Cited
- State v. Polanco, 308 Conn. 242 (Conn. 2013) (vacatur of lesser included conviction for double jeopardy may be reversed and reinstated if greater conviction is later overturned for unrelated reasons)
- State v. Miranda, 317 Conn. 741 (Conn. 2015) (vacatur does not erase jury’s original verdict; lesser convictions may be resurrected if greater conviction reversed for unrelated reasons)
- State v. Johnson, 165 Conn. App. 255 (Conn. App. Ct. 2016) (felony-murder may be sustained where state proves elements of underlying felony even if defendant was not separately charged with that felony)
- State v. Andrews, 313 Conn. 266 (Conn. 2014) (to sustain felony murder, state must prove death was caused in course of and in furtherance of predicate felony or flight therefrom)
- State v. Burgos, 170 Conn. App. 501 (Conn. App. Ct. 2017) (vacatur of lesser included offenses that also served as predicates may require vacatur of related convictions under certain circumstances)
- Stephens v. Borg, 59 F.3d 932 (9th Cir. 1995) (federal precedent recognizing that charging a defendant separately with the underlying felony is not always necessary for a felony-murder instruction)