STATE OF CONNECTICUT v.
(AC 41845)
Connecticut Appellate Court
Argued April 23—officially released August 27, 2019
The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
Syllabus
The defendant, who had been convicted, on pleas of guilty, of the crimes of assault in the second degree and threatening in the first degree, appealed to this court from the judgment of the trial court denying his motion to correct an illegal sentence. In 2006, the defendant had pleaded guilty to assault in the second degree and was sentenced to eighteen months of imprisonment to run consecutively to a sentence he was serving for a 2003 conviction. In 2012, the defendant pleaded guilty to threatening in the first degree and was sentenced to fifteen months of imprisonment to run consecutively to his sentences for the 2003 and 2006 convictions. His motion to correct an illegal sentence challenged the sentences from his 2006 and 2012 convictions. On appeal, the defendant claimed that the statutes governing concurrent and consecutive sentences (
- The defendant‘s claim that
§§ 53a-37 and53a-38 (b) were ambiguous and contradictory was unavailing:§ 53a-37 clearly and unambiguously provides that, where a person is subject to an undischarged term of imprisonment and is sentenced to an additional term of imprisonment, the sentences imposed by the court shall run either concurrently or consecutively, as the court directs at the time of sentence, and§ 53a-38 (b) , which governs the calculation of terms of imprisonment, provides an unambiguous method of calculation to determine the total duration of terms of imprisonment for concurrent and consecutive sentences, and, therefore,§§ 53a-37 and53a-38 were neither ambiguous nor contradictory as applied to the defendant‘s sentence; moreover, the court lacked jurisdiction to adjudicate the defendant‘s claim that his aggregated sentence was illegal because policy changes by the Department of Correction regarding the calculation and structure of prison sentences negatively impacted his ability to seek or obtain an early release, as the defendant did not attack the legality of the sentence imposed by the court during the sentencing proceeding but, rather, the legality of his sentence as subsequently calculated by the department, and for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding itself must be the subject of the attack; accordingly, the court should have dismissed, rather than denied, that portion of the defendant‘s motion to correct. - The defendant could not prevail in his claim that
§ 53a-38 violated his constitutional rights to due process, to be free from double jeopardy, and to equal protection: the defendant‘s claim that his right to due process was violated because the aggregation of his sentences negatively impacted his eligibility for parole and risk reduction credits was not cognizable under a motion to correct an illegal sentence, and because the defendant did not receive multiple punishments for the same offense but, rather, received distinct sentences for separate offenses, his claim that the aggregation of his consecutive sentences adversely affected his eligibility for parole and risk reduction credits did not fall within the ambit of double jeopardy; moreover, the defendant‘s claim that§ 53a-38 (b) (2) violated his right to equal protection was unavailing, as our Supreme Court has expressly stated that prisoners do not constitute a suspect class, and§ 53a-38 (b) (2) , which contains a plausible policy reason for the classification, meets the rational basis threshold.
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).
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
The following facts are relevant on appeal. In 2003, the defendant pleaded guilty to attempt to commit murder in violation of General Statutes
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
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,
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
“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning [General Statutes]
Accordingly, we now turn to the language of
Taken together,
As to the defendant‘s claim that his aggregated sentence is illegal because the department‘s changing polices regarding the calculation and structure of prison sentences have negatively impacted his ability to seek or obtain an early release, the court lacked jurisdiction. In order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding itself must be the subject of attack. See State v. Casiano, supra, 282 Conn. 625. Because the defendant does not attack the legality of the sentence imposed by the court during the sentencing proceeding but, rather, the legality of his sentence as subsequently calculated by the department, his claim is not cognizable under a motion to correct an illegal sentence. State v. Carmona 104 Conn. App. 828, 832–33, 936 A.2d 243 (2007), cert. denied, 286 Conn. 919, 946 A.2d 1249 (2008). Accordingly, the court should have dismissed this portion of the defendant‘s claim.
II
We turn now to the defendant‘s claims that
“We begin with the well established proposition that [b]ecause a validly enacted statute carries with it a strong presumption of constitutionality, those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt. . . . In construing a statute, moreover, we will search for an effective and constitutional construction that reasonably accords with the legislature‘s underlying intent. . . . We also note that, [w]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear.” (Internal quotation marks omitted.) State v. Evans, 329 Conn. 770, 809, 189 A.3d 1184 (2018), cert. denied, U.S. , 139 S. Ct. 1304, 203 L. Ed. 2d 425 (2019).
The basis of the defendant‘s due process claim is that the aggregation of his 2003, 2006, and 2012 sentences pursuant to
The defendant next claims that
The United States Court of Appeals for the Second Circuit, in Alessi v. Quinlan, 711 F.2d 497, 501 (2d Cir. 1983), explained that “[a] denial of parole is a decision to withhold early release from the confinement component of a sentence. It is neither the imposition nor the increase of a sentence, and it is not punishment for purposes of the Double Jeopardy Clause, even though the [United States Parole] Commission‘s decision to set a later rather than an earlier parole release date may sometimes result in a longer period of confinement than might ultimately result from an increase in a court-imposed sentence. Nevertheless it is the sentence that is limited by the Double Jeopardy Clause, not the administrative decision to grant early release from confinement.” This reasoning is applicable in the present case because the defendant had not received multiple punishments for the same offense but, rather, received three distinct sentences in 2003, 2006, and 2012 for separate offenses. The defendant‘s claim that the aggregation of these consecutive sentences adversely affected his eligibility for parole and risk reduction credits does not, therefore, fall within the ambit of double jeopardy.
The defendant‘s last claim on appeal is that
The form of the judgment is improper, the judgment denying the defendant‘s motion to correct an illegal sentence is reversed in part and the case is remanded with direction to dismiss the portion of the defendant‘s motion to correct an illegal sentence that advances arguments that do not implicate the sentencing proceeding itself; the judgment is affirmed in all other respects.