75 Conn. App. 423 | Conn. App. Ct. | 2003
Opinion
This appeal arises from the judgment rendered when the trial court denied the motion to correct an illegal sentence filed by the pro se defendant, William Pagan.
On March 15, 2000, the defendant pleaded guilty, pursuant to the Alford doctrine,
The court canvassed the defendant and found that he was making his plea willingly, voluntarily and knowingly, and that he was represented by counsel. The court’s canvass of the defendant included the following inquiry:
“The Court: And are you also pleading under the Alford doctrine because you recognize that the sentence you are about to receive, eighteen with the nonsuspendable five, the minimum mandatory, is a lesser sentence than you could receive because the maximum sentence is twenty years? Do you understand that, sir, as well?
“Defendant: Yes.”
The court also found the defendant guilty of having violated § 2 la-278 (b) and ordered a presentencing investigation. The court sentenced the defendant to eighteen years in prison, five years of the sentence were mandatory. The defendant filed a motion to correct his sentence pursuant to Practice Book § 43-22. The court
I
The defendant’s first claim is that the court improperly denied his motion to correct an illegal sentence and, in doing so, violated his right to due process pursuant to article first, § 8, of the constitution of Connecticut and the fourteenth amendment to the United States constitution. We disagree.
In his motion and on appeal, the defendant claims that the court relied on inaccurate information at sentencing, specifically the amount of heroin in his possession at the time the search warrant was executed. At sentencing, the prosecutor represented to the court that with the defendant’s arrest, $3 million worth of pure heroin was removed from the streets. The defendant’s counsel took issue with the amount of narcotics involved, stating to the court: “To my understanding, the amount of narcotics in this particular case was only about 200 grams, not that I am trying to say that that quantity of narcotic is not a considerable amount of narcotics, but it certainly is not anywhere near $3 million worth of narcotics. ... I am not saying that it is not a serious matter because it was 200 grams, not $3 million. I think the record should be clear for whatever future position [the defendant] has with parole, but that is what the case was.”
The court denied the defendant’s motion to correct an illegal sentence and subsequent motion for reconsideration. When articulating its reasoning, the court cited the language of the statute the defendant was charged with violating, i.e., § 21a-278 (b), which provides in relevant part that “[a]ny person who . . . possesses with the intent to sell or dispense . . . any narcotic substance . . . .” The court noted that the quantity of narcotics is not an issue in the statute. Furthermore, the court found that the substituted information alleged, at the time of the defendant’s guilty plea, that the defendant was accused of possession with intent to distribute
We review claims that the court improperly denied the defendant’s motion to correct an illegal sentence under an abuse of discretion standard. See State v. Henderson, 8 Conn. App. 342, 344-45, 512 A.2d 974, cert. denied, 201 Conn. 813, 517 A.2d 631 (1986), cert. denied, 479 U.S. 1092, 107 S. Ct. 1304, 94 L. Ed. 2d 159 (1987). “The jurisdiction of the sentencing court terminates when the sentence is put into effect, and that court may no longer take any action affecting the sentence unless it has been expressly authorized to act.” State v. Tuszynski, 23 Conn. App. 201, 206, 579 A.2d 1100 (1990). “The 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.” Practice Book § 43-22. “An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory.” (Internal quotation marks omitted.) State v. Constantopolous, 68 Conn. App. 879, 882, 793 A.2d 278, cert. denied, 260 Conn. 927, 798 A.2d 971 (2002).
“We recognize the principle that a sentence imposed within statutory limits is generally not subject to review. ... A judgment of conviction must conform to the crime with which the defendant was charged, and the sentence imposed must conform to that crime.” (Citation omitted; internal quotation marks omitted.) State v. Mollo, 63 Conn. App. 487, 490, 776 A.2d 1176, cert. denied, 257 Conn. 904, 777 A.2d 194 (2001). “Sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but . . . imposed
On the basis of our review of the record, we conclude that the defendant was not illegally sentenced. There was no trial, the defendant pleaded guilty to possession with intent to sell more than one ounce of heroin under the Alford doctrine. The prosecutor’s comments were not evidence, and the state was not required to prove anything in view of the defendant’s guilty plea.
The amount of heroin in the defendant’s possession was irrelevant and immaterial to his sentence. Defense counsel conceded that the defendant was in possession of more than 200 grams heroin. The defendant was charged under § 21a-278 (b), which provides in relevant part that “[a]ny person who . . . possesses with the intent to sell . . . any narcotic substance . . . for a first offense shall be imprisoned not less than five years
II
The defendant’s second claim is that the prosecutor was guilty of misconduct by misrepresenting the amount of heroin in the defendant’s possession. We disagree.
The defendant claims that the prosecutor misrepresented to the court that at the time of the arrest, the defendant was in possession of two pounds of heroin valued at approximately $3 million. As we concluded in part I, the amount of heroin and its value were not relevant to the sentence imposed by the court.
It is well known that appellate courts do not make findings of fact. See State v. Webb, 238 Conn. 389, 535, 680 A.2d 147 (1996). Appellate courts, however, review the whole record and do not overlook material contained in the trial court’s file or the appendix to the defendant’s brief. We may take judicial notice of the contents of the court’s file. See State v. Gaines, 257 Conn. 695, 705 n.7, 778 A.2d 919 (2001). Here, the court file contains page nine of the final report from the
The judgment is affirmed.
In this opinion the other judges concurred.
William Pagan is an apparent alias, as the defendant’s legal name is Jose Rosario.
In resolving the defendant’s claims in this manner, we do not imply that the prosecutor’s representation to the court was incorrect.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). “A defendant who pleads guilty under the Alford doctrine does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea.” (Internal quotation marks omitted.) State v. Webb, 62 Conn. App. 805, 807 n.1, 772 A.2d 690 (2001).
The defendant elected to plead under the Alford doctrine in return for a recommended sentence of eighteen years in prison, with a mandatory term of five years, rather than the maximum twenty years in prison that he faced if convicted of the crimes alleged in the initial information. The state also agreed to nolle certain other charges that were pending against him in return for the plea. The sentences to be imposed on the defendant for his prior arrests were to be served concurrently with the sentence imposed in this case. The defendant also had pending criminal matters in New York that, of course, were not part his plea bargain.
The substituted information alleged in relevant part: “Assisiant State’s Attorney . . . accuses [the defendant] of possession wi1h intent to distribute greater than one ounce of Heroin and charges that at the Town or City of West Haven on or about the 6th day of November 1999, in the early morning hours at 125 Second Avenue, the said [defendant] did possess, with intent to sell to another person, approximately 2 pounds of Heroin in violation of Connecticut General Statutes [section] 21a-278 (b).”
General Statutes § 21a-278 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended . . . .”
In addressing the court, defense counsel also made the following observations. “The defendant had two prior felony convictions in New York State. He was on parole in New York State. He has an open A1 felony in New York State and he had a case in New Haven. He had this particular case, and they indicted him on a false representation case; also, that is before the court. I think we also negotiated that. Under the circumstances, I also have been able to work out a plea on the New York case; that he will receive concurrent time on the New York, Bronx, matter with the Connecticut sentence. I have not been able to work out anything with regard to the parole violation because that will be taken up with parole when he gets to the division of parole, since it is impossible at this time to do it. Under those circumstances, those are a very long sentence. To my thinking, and
The presentencing investigation report includes the final report from the scientific services toxicology division of the department of public safety. Page nine of the final report, which is included in the appendix to the defendant’s brief, contains the following summary: “Total weight of powder containing heroin . . . 902.331 grams = 1 lb., 15.82 ounces. . . . Total weight of Heroin as Free base in items . . . 47.49 grams = 1.67 ounces.”
During oral argument, the assistant state’s attorney brought to this panel’s attention, the case of State v. Francis, 69 Conn. App. 378, 793 A.2d 1224, cert. denied, 260 Conn. 935, 802 A.2d 88, cert. denied, 537 U.S. 1056, 123 S. Ct. 630, 154 L. Ed. 2d 536 (2002). In Francis, the panel held that the trial court lacked jurisdiction to consider the defendant’s claim under Practice Book § 43-22 where the motion to correct the illegal sentence did not attack the validity of the sentence as exceeding the maximum statutory limits, did not violate a mandatory minimum sentence, did not violate double jeopardy rights and was neither ambiguous nor internally contradictory. Id., 384. The holding in Francis is not consistent with State v. McNellis, supra, 15 Conn. 444. McNellis has not been overruled by an en banc panel of this court or by our Supreme Court.
In his reply brief, the defendant claims that he was illegally sentenced because he is drug-dependent. That claim was not raised in the trial court and, therefore, we will not afford it review. See Baker v. Cordisco, 37 Conn. App. 515, 522, 657 A.2d 230, cert. denied, 234 Conn. 907, 659 A.2d 1207 (1995). Even if the defendant had requested review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), which he did not, his claim would fail because the record is inadequate for our review. See State v. Feliciano, 74 Conn. App. 391, 401-402, 812 A.2d 141 (2002), cert. denied, 262 Conn. 952, 817 A.2d 110 (2003).