State v. Vivo, 147 Conn. App. 414

In 1995 John Vivo III was convicted of murder (§ 53a-54a), first-degree assault (§ 53a-59(a)(1)), and commission of felonies with a firearm (§ 53-202k); the trial court imposed consecutive sentences totaling 75 years.
The Connecticut Supreme Court affirmed the convictions on direct appeal. See State v. Vivo, 241 Conn. 665, 697 A.2d 1130 (1997).
Vivo later filed a habeas petition alleging ineffective assistance of trial and appellate counsel; the habeas court denied relief but this court reversed as to the § 53-202k conviction, holding § 53-202k is a sentence-enhancement provision, not a separate offense. See Vivo v. Commissioner of Correction, 90 Conn. App. 167, 876 A.2d 1216 (2005).
This court directed that the § 53-202k conviction be vacated and that Vivo be resentenced to a total effective term of 75 years (clerical error in original rescript corrected from 70 to 75 years).
Vivo filed a motion to correct an illegal sentence raising multiple claims: that the 75-year sentence contradicted the remand, that he was entitled to a jury determination on the § 53-202k enhancement, and that he was never properly resentenced.
The trial court (Devlin, J.) denied most claims, vacated the § 53-202k conviction on the mittimus, and resentenced (effectively preserving the 75-year total by enhancing the assault component). Vivo appealed; the appellate court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Appointment of counsel to pursue motion to correct an illegal sentence	Vivo: trial court abused discretion by denying appointed counsel	State: no entitlement to appointed counsel for this motion under controlling law	Court: no abuse; denial proper (Casiano framework)
Motion to correct illegal sentence / validity of 75-year total	Vivo: 75-year sentence conflicts with remand; illegal sentence	State: remand required vacatur of § 53-202k but total 75 years remained proper through resentencing	Court: denied relief; 75-year total lawful after vacatur and amendment of mittimus
Right to jury determination / new trial on § 53-202k enhancement	Vivo: entitled to jury finding on applicability of enhancement; new trial required	State: § 53-202k is sentencing/enhancement issue, not a separate offense requiring jury	Court: no new trial or jury finding required; no error
Double jeopardy / unconstitutional sentence & resentencing procedure	Vivo: § 53-202k conviction and sentence create double jeopardy; resentencing by Judge Bryant illegal (no defendant present)	State: vacatur and recharacterization fixed the error; resentencing procedural irregularities cured by subsequent action and mittimus amendment	Court: claims without merit; resentencing and mittimus amendment cured defect; no double jeopardy violation

State v. Vivo, 241 Conn. 665 (Conn. 1997) (affirming convictions on direct appeal)
Vivo v. Commissioner of Correction, 90 Conn. App. 167 (Conn. App. 2005) (holding § 53-202k is a sentence-enhancement provision, not a separate offense)
State v. Casiano, 282 Conn. 614 (Conn. 2007) (standard for appointment of counsel to pursue a motion to correct an illegal sentence)