STATE OF CONNECTICUT v. VINCENT FAIRCHILD
(AC 35426)
Connecticut Appellate Court
Argued November 12, 2014—officially released January 27, 2015
Gruendel, Keller and Flynn, Js.
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(Appeal from Superior Court, judicial district of Danbury, geographical area number three, Blawie,
Gwendolyn S. Bishop, assigned counsel, for the appellant (defendant).
Jonathan M. Sousa, special deputy assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and Sean P. McGuinness, assistant state’s attorney, for the appellee (state).
Opinion
FLYNN, J. The defendant, Vincent Fairchild, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant claims that the trial court improperly denied his motion to correct an illegal sentence because the sentencing court failed to give him adequate notice of the date of the sentencing hearing, and thereby denied him a meaningful opportunity for allocution and violated his due process right to contest the evidence upon which the court relied for sentencing purposes.1 We affirm the judgment of the trial court.
We conclude that the court did not deny the defendant a meaningful opportunity for allocution or violate his due process right to contest the evidence upon which the court relied for sentencing purposes. Accordingly, the court properly denied the defendant’s motion to correct an illegal sentence.
The state argues that the court lacked jurisdiction over the defendant’s motion to correct an illegal sentence.
The record reveals the following relevant facts and procedural history. On January 24, 2012, the defendant entered a guilty plea under the Alford2 doctrine to the charge of burglary in the third degree in violation of
It is undisputed that the sentencing hearing was initially scheduled for March 6, 2012. On that date, defense counsel was ill and was not able to attend the hearing. The court, Blawie, J., continued the sentencing to March 12, 2012. On March 12, 2012, the defendant requested a continuance, which the court granted. The hearing was continued to April 20, 2012, and on that day the defendant requested a continuance again, which the court granted. The hearing was continued to May 18, 2012.
On May 18, 2012, the court held the sentencing hearing. Between the time the defendant entered his guilty pleas on January 24, 2012, and the sentencing hearing on May 18, 2012, he was arrested twice on new criminal charges, which he was alleged to have committed on two separate dates in February, 2012. At sentencing, the court made the following finding with respect to at least one of the new arrests: ‘‘[U]nfortunately for [the defendant] and for society, the court made a finding of probable cause, signing an arrest warrant for [the defendant] for burglary and larceny after [the defendant] entered a plea and while he was at liberty awaiting sentencing . . . .’’ The court further noted that the defendant had violated the Garvin agreement and was therefore subject to ‘‘an enhanced possible penalty of up to ten years . . . .’’ The court stated that it was ‘‘inclined to proceed to sentencing’’ on that day because the defendant’s criminal cases had ‘‘been down in excess of twenty-five times—in fact, the burglary/larceny’s been down [thirty-nine] times; the larceny six, [twenty-eight] times; the 14-140 suspension, [forty-three] times . . . .’’
The court then afforded defense counsel and the defendant an opportunity to address the court. Both defense counsel and the defendant emphasized that the defendant’s criminal actions resulted from his drug addiction. The court sentenced the defendant to a total effective sentence of seven years incarceration on the charges of burglary in the third degree, larceny in the third degree, and larceny in the sixth degree. This sentence was three years and three months less than the maximum sentence he could have received as a result of his violation of his Garvin agreement. He was given an unconditional discharge on the charge of operating a motor vehicle while his license was under suspension.
On September 25, 2012, after he had begun serving his sentence, the defendant filed a motion to correct an illegal sentence pursuant to
The court held a hearing on the defendant’s motion on December 14, 2012. At the hearing, defense counsel stated: ‘‘I have put on the record previously, Judge, that I should have done certain things as his attorney and I did not do them . . . namely, the primary thing I can think of is that I should have requested a continuance on the record and I didn’t do it.’’ The court denied the defendant’s motion, finding that ‘‘the defendant has had all the process he was due under both the law and the Practice Book in procedure here.’’ The court also noted that ‘‘[t]he court believes that defense counsel is falling on her sword on behalf of a defendant who received a harsher sentence than perhaps her client anticipated, but one the court felt was fully justified by the law and the facts.’’
The court subsequently issued a thorough memorandum of decision explaining its decision to deny the defendant’s motion. In its memorandum, the court stated: ‘‘The sentence imposed by the court was entirely supported by the record and within the parameters of the plea agreement. It was imposed after notice, and after hearing from both the defendant himself and defense counsel. . . . The defendant claims in his motion that he was unprepared to present mitigation evidence and was unable to allocute meaningfully when he was sentenced. Nevertheless, the defendant and his experienced counsel chose to remain silent on this issue on May 18, 2012, and did not move for a continuance or otherwise alert the court to any supposed lack of preparation.’’ (Citations omitted.) The court reiterated its finding that the defendant had received all the due process that he was entitled to and that his sentence was not illegal. This appeal followed.
On appeal, the defendant claims that the trial court improperly denied his motion to correct an illegal sentence because the sentencing court failed to give him adequate notice of the date of the sentencing hearing, and thereby denied him a meaningful opportunity for allocution and violated his due process right to contest the evidence upon which the court relied for sentencing purposes. He argues that, at the May 18, 2012 sentencing hearing, he ‘‘did not have the opportunity to present any witnesses, had no prepared written statement, and most importantly, was not prepared to contest the evidence upon which his increased sentence was based, the two new arrests’’ that resulted in the violation of his Garvin agreement. The state argues that the court lacked jurisdiction over the defendant’s motion to correct an illegal sentence and should have dismissed it. The state argues in the alternative that the court properly denied the motion.
I
We first consider whether the court had jurisdiction to act on the defendant’s motion to correct an illegal sentence. ‘‘It is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court.’’ Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991). ‘‘A determination
‘‘The Superior Court is a constitutional court of general jurisdiction. . . . In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law. . . . [A] generally accepted rule of the common law is that a sentence cannot be modified by the trial court . . . if the sentence was valid and execution of it has commenced. . . . This court . . . repeatedly has deemed this limitation jurisdictional.’’ (Citations omitted; footnote omitted; internal quotation marks omitted). State v. Parker, 295 Conn. 825, 834, 992 A.2d 1103 (2010).
‘‘Connecticut has recognized two types of circumstances in which the court has jurisdiction to review a claimed illegal sentence. The first of those is when the sentence itself is illegal, namely, when the sentence either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory. . . . The other circumstance in which a claimed illegal sentence may be reviewed is that in which the sentence is within relevant statutory limits, but was 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 in the record, or his right that the government keep its plea agreement promises . . . .’’ (Citations omitted; internal quotation marks omitted.) State v. Lawrence, 91 Conn. App. 765, 773–74, 882 A.2d 689 (2005), aff’d, 281 Conn. 147, 913 A.2d 428 (2007); see also State v. Parker, supra, 295 Conn. 839.
‘‘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, and not the [proceedings] leading to the conviction, must be the subject of the attack.’’ (Internal quotation marks omitted.) State v. Casiano, supra, 122 Conn. App. 68 (holding that court did not have jurisdiction over motion to correct illegal sentence where defendant challenged validity of his guilty pleas).
In the present case, the defendant claims that his sentence is illegal, not because it exceeded statutory limits or the maximum limits found in the plea agreement, but because he was denied his right to due process in the manner the sentence was imposed by the sentencing court’s failure to provide him with adequate notice of and time to prepare for the sentencing hearing. He argues that the court’s actions denied him a meaningful opportunity to speak on his own behalf, to present
The state argues that the court lacked jurisdiction over the defendant’s motion to correct an illegal sentence. The state contends that ‘‘[t]he substance of the defendant’s claim does not constitute a legally cognizable ground for correcting an illegal sentence or a sentence imposed in an illegal manner because the issue was not raised during sentencing, and, therefore, the claim does not attack any specific action of the sentencing court that rendered his sentencing proceeding unfair or improper.’’ We do not agree.
The state appears to argue that the court lacked jurisdiction over the defendant’s motion because the defendant, during his sentencing hearing, failed to preserve his claim that he was not given adequate notice of the date of the sentencing hearing. The fact that a party raises an unpreserved claim does not deprive the court of jurisdiction over that claim. See State v. Das, 291 Conn. 356, 366, 968 A.2d 367 (2009) (noting that ‘‘[t]he issues of subject matter jurisdiction and preservation of claims for appellate review are separate and independent considerations’’). ‘‘Subject matter jurisdiction does not rest on the viability of the claims that a court is asked to adjudicate.’’ Olympus Healthcare Group, Inc. v. Muller, 88 Conn. App. 296, 300, 870 A.2d 1091 (2005). ‘‘Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action. . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.’’(Citations omitted; internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 727–28, 724 A.2d 1084 (1999).
The state relies on State v. Parker, supra, 295 Conn. 825, to support its argument that the court lacked jurisdiction over the defendant’s motion. In Parker, our Supreme Court held that the trial court properly had determined that it lacked jurisdiction over the defendant’s motion to correct an illegal sentence. Id., 827. The defendant in Parker pleaded guilty to murder and was convicted and sentenced to thirty years imprisonment. Id., 828. He then pursued an appeal on claims ‘‘relating to the trial court’s acceptance of his guilty plea and its subsequent refusal to allow him to withdraw that plea at the sentencing proceedings despite his expressions of dissatisfaction with his counsel.’’ Id., 830. This court affirmed his conviction and sentence. State v. Parker, 67 Conn. App. 351, 352, 786 A.2d 1252 (2001), cert. denied, 281 Conn. 912, 916 A.2d 54 (2007).
After his conviction was affirmed by this court and certification to appeal was denied by our Supreme Court, the defendant filed a motion in the Superior Court to correct an illegal sentence, in which he claimed that his sentence was imposed in an illegal manner. State v. Parker, supra, 295 Conn. 830. Specifically, he maintained that his right not to be sentenced on the basis of inaccurate information was violated by the fact that (1) he was not given an opportunity to review the presentence investigation report, thereby denying him an opportunity to address inaccuracies and mistakes in the report, and (2) he had been deprived of effective assistance of counsel because his
On appeal, our Supreme Court rejected both of the defendant’s arguments. The court concluded that ‘‘[t]he defendant’s claimed constitutional basis for jurisdiction—the right not to be sentenced on the basis of inaccurate information—is predicated entirely on his claim that the rules of practice and the statutes afford him a personal right to review, and an opportunity to seek corrections to, the presentence report, a claim that we have rejected. In his motion to correct, he did not advance an independent constitutional claim that the purported inaccuracies were materially false and that the sentencing court had relied on them in sentencing him. Moreover, an essential fact that must be inferred from the defendant’s claims is that no one alerted the court to any inaccurate information in the report. Therefore, all we are left with is the defendant’s claim as it relates to the conduct of his counsel. . . . [T]his court consistently has adhered to a rule that, absent either specific authorization to raise such claims in a forum other than a habeas court or construction of such a claim to implicate improper conduct by the trial court, the exclusive forum for adjudicating ineffective assistance of counsel claims is by way of habeas proceedings.’’ (Citations omitted; footnotes omitted; internal quotation marks omitted.) Id., 849–51.
In the present case, the state claims that our Supreme Court in Parker held that the trial court did not have jurisdiction over the defendant’s motion to correct an illegal sentence because the defendant did not raise the issue of possible inaccuracies and mistakes in the presentence investigation report before the court. We do not read Parker to hold that the defendant’s failure to preserve his claims by raising them before the trial court resulted in the court’s lack of jurisdiction over his motion. Rather, our Supreme Court held that the trial court lacked jurisdiction because the defendant’s claims that he did not personally have the opportunity to review the presentence investigation report, which he alleged contained inaccuracies, and that his counsel was ineffective did not ‘‘fall within the limited circumstances under which the trial court has jurisdiction to correct a sentence imposed in an illegal manner . . . .’’ Id., 828.
The defendant in the present case claims that his sentence was imposed in an illegal manner because the trial court denied him a meaningful opportunity for allocution and violated his due process right to contest the evidence upon which the court relied for sentencing purposes. He does not challenge the validity of his guilty pleas or his underlying conviction, nor does he raise an ineffective assistance of counsel claim that should be addressed in a habeas proceeding. Rather, the defendant’s claim challenges a specific claimed inaction of the sentencing court during the sentencing proceedings—namely, that the court failed to provide him with adequate notice of the date on which he would be sentenced and thereby denied him a meaningful opportunity for allocution and violated his right to due process. Because the defendant seeks to correct his sentence on one of the common-law grounds permitted under
II
We next turn to the merits of the defendant’s claim that the trial court improperly denied his motion to correct an illegal sentence. Simply put, the defendant claims that he was denied due process of law because he lacked notice that he would be sentenced on May 18, 2012, and therefore was not given a fair opportunity to exercise his right of allocution or to contest the evidence upon which the court relied for sentencing purposes. We disagree.
This claim was not preserved but is nevertheless reviewable. ‘‘Both the trial court and this court, on appeal, have the power, at any time, to correct a sentence that is illegal.’’ (Internal quotation marks omitted.) State v. Cator, 256 Conn. 785, 804, 781 A.2d 285 (2001); see also State v. Ortiz, 83 Conn. App. 142, 166, 848 A.2d 1246 (holding that unpreserved claim that sentence was illegal was reviewable on direct appeal, even when defendant did not object when it was imposed or move to correct it), cert. denied, 270 Conn. 915, 853 A.2d 530 (2004); see State v. Kosuda, 85 Conn. App. 192, 195 n.1, 856 A.2d 480 (2004) (same).
We now turn to the applicable standard of review. ‘‘[A] claim that the trial court improperly denied a defendant’s motion to correct an illegal sentence is reviewed pursuant to the abuse of discretion standard.’’ State v. Tabone, 279 Conn. 527, 534, 902 A.2d 1058 (2006). ‘‘In reviewing claims under the abuse of discretion standard, we have stated that the ultimate issue is whether the court could reasonably conclude as it did.’’ (Internal quotation marks omitted.) State v. Cancel, 275 Conn. 1, 15, 878 A.2d 1103 (2005).
The defendant claims that the court improperly denied his motion to correct an illegal sentence because he ‘‘notably did not have the opportunity to present any witnesses, had no prepared written statement, and most importantly, was not prepared to contest the evidence upon which his increased sentence was based, the two new arrests’’ that constituted a violation of his Garvin agreement.
In State v. Stevens, 85 Conn. App. 473, 478, 857 A.2d 972 (2004), rev’d, 278 Conn. 1, 895 A.2d 771 (2006), one of this court’s prior Garvin cases, Judge West noted epigrammatically that ‘‘being arrested, similar to being struck by lightning, can be the result of being in the wrong place at the wrong time.’’4 Following Judge West’s
In the present case, as to the defendant’s subsequent arrests, the prosecutor noted on the record at the sentencing hearing that the defendant ‘‘stole approximately $469.80 worth of merchandise from the Target department store in Bethel. So, in addition to the burglary . . . in which he entered a deceased person’s home and took . . . a car on a flatbed, he also picked up a larceny from the Target store.’’ The sentencing court also found that ‘‘the court made a finding of probable cause, signing an arrest warrant for [the defendant] for burglary and larceny after [the defendant] entered a plea and while he was at liberty awaiting sentencing . . . .’’ The prosecutor’s statement of the factual basis for the presentence arrests and the fact that at least one of the arrests resulted from a warrant adequately supported the court’s finding of probable cause, as required by Stevens; State v. Stevens, supra, 278 Conn. 12–13; that the defendant had violated his Garvin agreement and that an enhanced sentence could therefore be imposed.
It is clear from the record that the court, in accordance with
Defense counsel and the defendant both referenced the defendant’s addiction to drugs in their statements to the court. Defense counsel stated: ‘‘I look at [the defendant] and I think what a tragedy it is because he is his own worst enemy. He has a very, very serious disease, and it’s a disease which has guided so many of the choices that he’s made in his life in recent years. It’s what put him here today, you know, and some people who are addicted to substances have more, or better, management skills with the disease than others. Clearly, [the defendant] entered a
The defendant made similar comments to the court, stating: ‘‘I have a serious drug problem that I’ve been trying to fight for years. Every time I do good it seems I go—I go back a step, fall back off . . . I would just—I’m just asking for lenience and to keep in mind that—that my addiction played a key role in everything.’’
In its memorandum of decision, the trial court noted that ‘‘[t]he right of a defendant to be heard by the court . . . does not carry with it the right to decide for the court the weight it must attribute to such evidence. The record bears out that the defendant’s substance abuse history and related criminal difficulties stemming from his addiction were repeatedly invoked as mitigating factors by both the defendant and counsel in this case. The sentencing court, in its discretion and in light of the totality of the circumstances, including the crimes at issue, the defendant’s prior criminal history, his failed probations, his multiple files and his unwillingness to take advantage of inpatient treatment, simply chose not to credit such addiction evidence with the weight the defendant sought to ascribe to it, either as an excuse or as a justification for his continued pattern of criminality.’’
It is also clear from the record that, in accordance with due process and
On that date, neither the defendant nor his counsel informed the court that they were not prepared for sentencing. No continuance of sentencing was sought. The presentence investigation had been waived on the date the defendant entered his guilty pleas. No record was made of any further evidence that would be required or pertinent. The defendant did not dispute the validity of his two presentence arrests or the existence of probable cause justifying them when the court gave him and his counsel an opportunity to address the court. On appeal, the defendant does not point to any evidence with which he could dispute the court’s finding that he was arrested twice before the sentencing hearing on May 18, 2012, and that at least one of those arrests was supported by probable cause.
The judgment is affirmed.
In this opinion the other judges concurred.