160 Conn.App. 282
Conn. App. Ct.
2015
Case Information

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STATE OF CONNECTICUT CHARLES LOGAN (AC 36605) Beach, Sheldon and Bear, Js.

Argued March 17—officially released October 6, 2015 (Appeal from Superior Court, judicial district of Hartford, Alexander, J.) Charles Logan , self-represented, the appellant (defendant).

Lisa A. Riggione , senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy , state’s attorney, and John F. Fahey , senior assistant state’s *3 attorney, for the appellee (state).

Opinion

BEAR, J. The defendant, Charles Logan, appeals from the judgment of the trial court denying his motion to correct an illegal sentence filed pursuant to Practice Book § 43-22. The defendant claims on appeal that his sentence was imposed in an illegal manner because the trial court failed to consider his youth as a mitigating factor at his sentencing, in violation of his right against cruel and unusual punishment under the eighth amend- ment [1] to the federal constitution. [2] We affirm the judg- ment of the trial court.

The following facts and procedural history are rele- vant to this appeal. On November 6, 1997, the defendant pleaded guilty under the Alford doctrine [3] to murder in violation of General Statutes §§ 53a-54a (a) and 53a-8, and conspiracy to commit murder in violation of Gen- eral Statutes §§ 53a-54a (a) and 53a-48. The defendant also admitted that he violated his youthful offender probation in violation of General Statutes § 53a-32. [4] The defendant waived his right to a presentence investiga- tion report and the matter was continued to November 21, 1997, for sentencing.

At the defendant’s sentencing, after hearing from both sides and being presented with letters from the victim’s family, the court, Clifford, J. , stated: ‘‘There is nothing I can say, obviously, to ease the family’s pain. . . . An example of a young angry kid out there with a gun on the streets, and this is a result of it. The only thing you have going for you in my opinion was that you were [seventeen] years of age when you committed this. You didn’t have much of a record. You didn’t have much time really to accumulate a record. Really, you are not an adult until you are [sixteen]. . . . [T]here is going to be some light at the end of the tunnel. You are [nineteen] years of age. If you are doing what they are saying on murder cases day for day, you will be [forty-eight] when you get out. That is certainly a long time in my book, but you will be getting up every day, and the victim, obviously, is never going to. . . . I think it is a reasonable sentence. You’ve got a lot of time to think about what you did . . . . As I say, some day you will get out.’’ In accordance with the defendant’s plea agreement, the court imposed a total effective sen- tence of thirty-one years imprisonment. [6]

On July 10, 2013, the defendant filed a motion to correct an illegal sentence pursuant to Practice Book § 43-22. In essence, the defendant claimed that he was seventeen years old at the time of the offenses, and, thus, he was a minor. He further claimed that the court viewed him as an adult, and that he was prejudiced by that viewpoint throughout the entire criminal process. The defendant sought to be resentenced with his youth considered as a mitigating factor. On October 4, 2013, the court, Alexander, J. , conducted a hearing on the *5 defendant’s motion to correct an illegal sentence, and it was at that hearing that the defendant filed an amended motion, in which he further alleged that his due process rights were violated because of the court’s reliance on false information. [8]

On January 2, 2014, the court rendered its decision on the defendant’s motion. In its memorandum of decision, the court reviewed the recent United States Supreme Court decisions in Roper v. Simmons , 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), Florida , 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), and Alabama , U.S. , 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), in which it established standards to be applied in the sentencing of juvenile offenders. The trial court also considered this court’s opinion in State v . Riley , 140 Conn. App. 1, 58 A.3d 304 (2013), which the trial court knew to be certified to but not yet decided by our Supreme Court at the time of its decision. The court determined that the defendant had not satisfied his burden of demonstrating that his sen- tence of thirty-one years had been imposed in an illegal manner and, thus, denied his motion to correct. This appeal followed.

We begin with the relevant standard of review and legal principles. ‘‘We review the [trial] court’s denial of [a] defendant’s motion to correct [an illegal] sentence under the abuse of discretion standard of review. . . . In reviewing claims that the trial court abused its discre- tion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.’’ (Citation omitted; internal quotation marks omitted.) State Martin M. , 143 Conn. App. 140, 144, 70 A.3d 135, cert. denied, 309 Conn. 919, 70 A.3d 41 (2013).

Practice Book § 43-22 provides: ‘‘The judicial author- ity 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 is essentially one which either exceeds the relevant statutory maxi- mum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is inherently contradictory. . . . Sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but . . . imposed in a way which violates the 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 informa- tion or considerations solely in the record, or his right that the government keep its plea agreement promises . . . .’’ (Internal quotation marks omitted.) v. Starks , 121 Conn. App. 581, 586, 997 A.2d 546 (2010).

The defendant claims that his sentence was imposed in an illegal manner because the trial court incorrectly *6 referred to him as an adult, and failed to consider his youth as a mitigating factor at sentencing in violation of his rights under the eighth amendment to the United States constitution. He argues that the court incor- rectly believed that a sixteen year old is considered an adult and, thus, considered the defendant, who was seventeen years old when he committed the crime, as an adult, despite the fact that the law views both sixteen and seventeen year olds as youth. He argues that the court should have applied Miller , and considered his youth and its attendant hallmark features, such as ‘‘immaturity, impetuosity, susceptibility to peer pres- sure, home environment, ability to handle the criminal justice system, and possibility for rehabilitation,’’ at his sentencing.

After the defendant’s sentencing, the United States Supreme Court decided a trilogy of cases that funda- mentally altered the legal landscape for the sentencing of juvenile offenders. The defendant’s claim requires a review of those cases and three cases subsequently decided by the Connecticut Supreme Court, which broadly interpreted the scope of those cases. In Roper v. Simmons , supra, 543 U.S. 578, the court held that the eighth and fourteenth amendments prohibit the imposition of the death penalty on juvenile offenders. In Graham v. Florida , supra, 560 U.S. 82, the court held that the eighth amendment prohibits the sentence of life without the possibility of parole for juvenile nonho- micide offenders. Most recently, in Miller v. Alabama , supra, 132 S. Ct. 2463–64, the court held that the eighth amendment prohibits mandatory sentencing schemes that mandate life in prison without the possibility of parole for juvenile homicide offenders, although a sen- tence of life imprisonment without the possibility of parole may be deemed appropriate following consider- ation of the child’s age related characteristics and the circumstances of the crime. These federal cases recog- nized that ‘‘[t]he concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution’s ban on cruel and unusual punishments is the precept of justice that punishment for crime should be gradua- ted and proportioned to [the] offense.’’ (Internal quota- tion marks omitted.) v. Florida , supra, 59; see also Roper Simmons , supra, 560; Miller Alabama , supra, 2463.

In Riley , 315 Conn. 637, 640, 110 A.3d 1205 (2015), the defendant was seventeen years old when he committed murder and several nonhomicide offenses for which the trial court imposed a total effec- tive sentence of 100 years imprisonment. Our Supreme Court found that the reasoning in extended beyond mandatory sentencing schemes to discretionary sentencing schemes where the trial court imposed a sentence for a term of years that was the functional equivalent of a life sentence. The court held that ‘‘if a sentencing scheme permits the imposition of [a life *7 sentence without any possibility of parole] on a juvenile homicide offender, the trial court must consider the offender’s chronological age and its hallmark features as mitigating against such a severe sentence.’’ (Empha- sis in original; internal quotation marks omitted.) Id., 658. Thus, for Miller to apply, the sentence must be a literal life sentence without the possibility of parole or the functional equivalent of a life sentence without the possibility of parole.

In the present case, the defendant claims that his sentence was imposed in an illegal manner because the trial court did not apply Miller and consider his age and its hallmark features as mitigating factors at his sentencing. To determine whether the trial court abused its discretion in denying the defendant’s motion to cor- rect, we must, therefore, determine whether a thirty- one year sentence is the functional equivalent of a life sentence without the possibility of parole and, thus, subject to the sentencing procedures set forth in Miller . [13]

General Statutes § 53a-35b provides in relevant part: ‘‘A sentence of life imprisonment means a definite sen- tence of sixty years, unless the sentence is life imprison- ment without the possibility of release . . . in which case the sentence shall be imprisonment for the remain- der of the defendant’s natural life.’’ (Emphasis added.) In Riley , it was undisputed that the defendant’s sen- tence of 100 years imprisonment was the functional equivalent to a sentence of life imprisonment without the possibility of parole. State Riley , supra, 315 Conn. 642.

In Taylor G. , 315 Conn. 734, 738, 741, 110 A.3d 338 (2015), the defendant was fourteen and fifteen years old when he committed nonhomicide offenses for which the trial court imposed a total effective sen- tence of ten years imprisonment followed by three years of special parole. Our Supreme Court concluded that ‘‘the ten and five year mandatory minimum sentences [that the defendant would serve concurrently], under which the defendant is likely to be released before he reaches the age of thirty, do not approach what the [United States Supreme Court] described in Roper , Gra- ham and Miller as the two harshest penalties.’’ Id., 745–46. The court reasoned that ‘‘[a]lthough the depri- vation of liberty for any amount of time, including a single year, is not insignificant, Roper , and cannot be read to mean that all mandatory depri- vations of liberty are of potentially constitutional magni- tude,’’ and that the defendant ‘‘will be able to work toward his rehabilitation and look forward to release at a relatively young age.’’ Id.

Our Supreme Court explained: ‘‘[In Roper , Graham and Miller ] the court concluded there was a constitu- tional violation because the sentences consisted of death or life imprisonment without the possibility of *8 parole, the two most severe punishments courts are able to impose. . . . The difference between these and other sentences is not merely quantitative. There is also a qualitative difference. Death is final and irrevocable, unlike any other sentence. Life in prison without the possibility of parole is also final and irrevocable in the sense that it deprives the offender of all hope of future release and of living a normal life, even if he or she is successfully rehabilitated and capable of returning and making a positive contribution to society. These differ- ences were recognized by the courts in all three cases, each of which described the punishment in question as unique in its severity.’’ (Citations omitted.) Id., 745. The court concluded that ‘‘[t]he defendant’s sentences [in Taylor G. ] not only were far less severe than the senten- ces at issue in Roper , and Miller , but were consistent with the principle of proportionality at the heart of the eighth amendment protection . . . .’’ Id., 744.

Finally, most recently in Casiano Commissioner of Correction , 317 Conn. 52, 55, A.3d (2015), the petitioner was sixteen years old when he committed homicide and nonhomicide offenses for which the trial court imposed a total effective sentence of fifty years imprisonment without the possibility of parole pursuant to a plea agreement. Our Supreme Court determined that applies retroactively to cases arising on col- lateral review, and that a fifty year sentence without the possibility of parole was the functional equivalent of life imprisonment without the possibility of parole and, therefore, subject to the sentencing procedures set forth in Miller . Id., 79. The court observed that because the petitioner would be released from prison at the age of sixty-six and the average life expectancy of a male in the United States is seventy-six years, he would only have approximately ten more years to live outside of prison after his release. Id, 76. The court explained that ‘‘[a] juvenile is typically put behind bars before he has had the chance to exercise the rights and responsibilities of adulthood, such as establishing a career, marrying, raising a family, or voting. Even assuming the juvenile offender does live to be released, after a half century of incarceration, he will have irrepa- rably lost the opportunity to engage meaningfully in many of these activities and will be left with seriously diminished prospects of his quality of life for the few years he has left.’’ Id., 77. The court concluded that ‘‘a fifty year term and its grim prospects for any future outside of prison effectively provide a juvenile offender with no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope.’’ (Internal quotation marks omitted.) Id., 79.

Turning to the present case, we conclude that the trial court did not abuse its discretion in denying the defendant’s motion to correct an illegal sentence, because in the circumstances of the defendant at the *9 time of sentencing, a thirty-one year sentence was not the functional equivalent of life imprisonment without the possibility of parole, and thus, the court did not have to apply Miller prior to accepting his plea and sentencing him. The present case is analogous to Taylor G. , in that the defendant’s thirty-one year sentence, under which he will be released before he reaches the age of fifty, does not approach what the United States Supreme Court described in Roper , Graham , and Miller as the two harshest penalties. Like the defendant in Taylor G. , the defendant in the present case, even if he is not paroled, [16] will be able to work toward rehabili- tation, and can look forward to release at an age when he will still have the opportunity to live a meaningful life outside of prison and to become a productive mem- ber of society. ‘‘Although the deprivation of liberty for any amount of time, including a single year, is not insig- nificant, Roper , and cannot be read to mean that all mandatory deprivations of liberty are of potentially constitutional magnitude.’’ State v. Taylor G. , supra, 315 Conn. 745–46. Thus, the trial court prop- erly determined that the defendant’s sentence was not imposed in an illegal manner and did not abuse its discretion in denying the defendant’s motion to correct an illegal sentence.

The judgment is affirmed.

In this opinion the other judges concurred. the fourteenth amendment, we recognize that ‘‘[t]he cruel and unusual pun- [1] Although the defendant did not state that his claim was raised under ishments clause of the eighth amendment is made applicable to the states through the due process clause of the fourteenth amendment.’’ State v. Taylor G. , 315 Conn. 734, 737 n.4, 741, 110 A.3d 338 (2015). For the purpose of this opinion, we refer to the defendant’s claim as an eighth amendment claim. The first claim, found in his appellate brief, is that the police violated his The defendant attempts to raise two additional claims in this appeal. fourth amendment rights against unlawful search and seizure by entering his grandfather’s house without consent and arresting him without an arrest warrant. This claim cannot properly be raised in a motion to correct an illegal sentence filed pursuant to Practice Book § 43-22. ‘‘It is well settled that [t]he purpose of [Practice Book] § 43-22 is not to attack the validity of a conviction by setting it aside but, rather to correct an illegal sentence or disposition . . . . Thus, [i]n order for the [trial] 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.’’ (Citation omitted; internal quotation marks omitted.) State Cruz , 155 Conn. App. 644, 651, 110 A.3d 527 (2015). We do not review this claim as it raises issues concerning the defendant’s underlying conviction, and it does not raise any issues concern- ing the legality of his sentence or the sentencing proceeding. The second additional claim that the defendant attempts to raise is that the court improperly denied his request for the appointment of counsel. We do not consider this claim as it was raised for the first time in the defendant’s reply brief. See State Houghtaling , 155 Conn. App. 794, 797 n.2, 111 A.3d 931 (2015) (‘‘[i]t is well established . . . that [an appellate] court will not review claims that are raised for the first time in a reply brief’’ [internal quotation marks omitted]). ‘‘A criminal defendant who enters a guilty plea under the Alford doctrine does not admit guilt but acknowledges that the state has sufficient evidence to convict.’’ Fairchild , 155 Conn. App. 196, 199 n.2, 108 A.3d 1162, cert. denied, 316 Conn. 902, 111 A.3d 470 (2015); see North Carolina v. Alford , 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (‘‘[a]n individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to *10 admit his participation in the acts constituting the crime’’). [4] The defendant waived his right to confidentiality as to the youthful offender matter. [5] We note that to the extent that the defendant attempts to argue that the court somehow violated his due process rights by failing to consider the contents of a presentence investigation report (report), a criminal defendant does not have a constitutional right to a report. See State v. Patterson , 236 Conn. 561, 568, 674 A.2d 416 (1996). The report is a statutory right, which may be waived. See General Statutes § 54-91a (b). In the present case, the defendant waived his right to a report. years imprisonment on the murder charge, twenty years imprisonment on [6] The court sentenced the defendant to concurrent terms of thirty-one the conspiracy to commit murder charge, and six years imprisonment on the violation of probation charge. The defendant received a total effective sentence of thirty-one years imprisonment. The defendant’s total potential maximum exposure on the three charges, however, was eighty-six years imprisonment. Additionally, as part of the disposition, the state entered nolles in docket number CR95-0475835, in which the defendant was charged with two counts of possession of less than four ounces of marijuana and failure to appear in the second degree. [7] In his motion to correct an illegal sentence, the defendant admitted that he had agreed to the sentence: ‘‘The defendant expected to receive an offer of 29 years but it was taken off of the table once defendant hesitated in taking the offer. [The defendant] had selected seven jury members before finally taking the 31 years.’’ the Public Defender had interviewed the defendant previously pursuant to [8] At the hearing, the court noted that a representative from the Office of State v. Casiano , 282 Conn. 614, 922 A.2d 1065 (2007), and determined that there was no basis for the appointment of counsel. The court, however, appointed a standby attorney ‘‘not pursuant to Casiano appointment’’ to provide the defendant with any information he may have needed at the hearing. [9] On March 10, 2015, our Supreme Court rendered its decision in State v. Riley , 315 Conn. 637, 110 A.3d 1205 (2015), reversing the decision of this court affirming the trial court’s 100 year sentence, and setting out specific standards to be applied in the sentencing of a juvenile. The court concluded: ‘‘ Miller does not stand solely for the proposition that the eighth amendment demands that the sentencer have discretion to impose a lesser punishment than life without parole on a juvenile homicide offender. Rather, Miller logically indicates that, if a sentencing scheme permits the imposition of that punishment on a juvenile homicide offender, the trial court must con- sider the offender’s chronological age and its hallmark features as mitigating against such a severe sentence. . . . As the court in explained, those features include: immaturity, impetuosity, and failure to appreciate risks and consequences; the offender’s family and home environment and the offender’s inability to extricate himself from that environment; the circum- stances of the homicide offense, including the extent of [the offender’s] participation in the conduct and the way familial and peer pressures may have affected him; the offender’s inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys; and the possibility of rehabilitation . . . .’’ (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 658. [10] The eighth amendment to the United States constitution, made applica- ble to the states by the fourteenth amendment, provides: ‘‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’’ [11] The term juvenile offender is used in this opinion to refer to a person who committed one or more crimes when he or she was younger than eighteen years of age. See State Riley , supra, 315 Conn. 640 n.1. Those features include: ‘‘immaturity, impetuosity, and failure to appreci- ate risks and consequences; the offender’s family and home environment and the offender’s inability to extricate himself from that environment; the circumstances of the homicide offense, including the extent of [the offender’s] participation in the conduct and the way familial and peer pres- sures may have affected him; the offender’s inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys; and the possibility of rehabilitation . (Internal quotation marks omitted.) Riley , supra, 315 Conn. 658. Our Supreme Court did not answer this question in Commis- Casiano . . .’’ sioner of Correction , 317 Conn. 52, 79, A.3d (2015) (‘‘[w]e need not *11 decide in the present case whether the imposition of a term of less than fifty years imprisonment without parole on a juvenile offender would require the procedures set forth in Miller , or whether other characteristics might bear on a juvenile offender’s life expectancy’’ [footnote omitted]). [14] ‘‘The court . . . sentenced the defendant to the mandatory minimum of ten years incarceration on the first degree sexual assault count followed by three years of special parole, one year incarceration on the fourth degree sexual assault count, and ten years incarceration, five of which were manda- tory, on the risk of injury count. The court ordered that the latter two sentences be served concurrently with the first, for a total effective sentence of ten years incarceration followed by three years of special parole.’’ State Taylor G. , supra, 315 Conn. 741. agreement, the sentence must still be a literal life sentence without the Although can apply to a sentence imposed pursuant to a plea possibility of parole or the functional equivalent of a life sentence without the possibility of parole. See Casiano Commissioner of Correction , supra, 317 Conn. 73 n.14; Riley , supra, 315 Conn. 658. Recent legislation will afford the opportunity of parole to individuals, including the defendant, who committed crimes as juveniles, providing fur- ther encouragement for their efforts at rehabilitation. Number 15-84, § 1 (f) of the 2015 Public Acts, effective October 1, 2015, provides in relevant part: ‘‘Notwithstanding the provisions of subsections (a) to (e), inclusive, of this section, a person convicted of one or more crimes committed while such person was under eighteen years of age, who is incarcerated on or after October 1, 2015, and who received a definite sentence or total effective sentence of more than ten years for such crime or crimes prior to, on or after October 1, 2015, may be allowed to go at large on parole in the discretion of the panel of the Board of Pardons and Paroles for the institution in which such person is confined, provided (A) if such person is serving a sentence of fifty years or less, such person shall be eligible for parole after serving sixty per cent of the sentence or twelve years, whichever is greater . . . .’’

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