State Of Conn. v. Parker

295 Conn. 825

992 A.2d 1103

STATE OF CONNECTICUT

v.EDWARD PARKER

SC 18432

SUPREME COURT OF CONNECTICUT

Argued: January 14, 2010

Officially Released: April 27, 2010

Glenn W. Falk, special public defender, with whom, on the brief, was Elliot Morrison, law student intern, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, was Scott J. Murphy, state's attorney, for the appellee (state).

Rogers, C. J and Norcott, Katz, Palmer, Vertefeuille, Zarella and McLachlan Js. KATZ, J. In this opinion the other justices concurred.

KATZ, J. The sole issue in this appeal is whether the trial court properly dismissed the motion of the defendant, Edward Parker, seeking to correct his sentence, which he claimed had been imposed in an illegal manner because: (1) he had not been given an opportunity to review the presentence investigation report (presentence report), thereby denying him an opportunity to address inaccuracies and mistakes in the report; and (2) he had been deprived of his constitutional right to the effective assistance of counsel because his attorneyfailed to review the presentence report with him and neglected to bring inaccuracies and mistakes in that report to the sentencing court's attention. We conclude that the defendant's claims do not fall within the limited circumstances under which the trial court has jurisdiction to correct a sentence imposed in an illegal manner and, therefore, we affirm the trial court's decision.

The record reveals the following undisputed facts and procedural history. The defendant was charged by way of substitute information with robbery in the first degree and murder. The defendant thereafter entered a plea under the Alford doctrine ¹to the charge of murder, an offense that carries a mandatory minimum sentence of twenty-five years imprisonment. See General Statutes §§ 53a-35a and 53a-54a. Under the terms of the plea agreement, the defendant was to be sentenced to a term of imprisonment of thirty years. At the commencement of the plea hearing the defendant stated that he had something to say to the court. The trial court, Iannotti, J., informed the defendant that, after canvassing him and accepting his plea, the court would continue the case for sentencing pending receipt of the defendant's presentence report, and that the sentencing proceeding would be the proper time for the defendant to make any statements to the court. Thereafter, the court canvassed the defendant and accepted his plea. It then noted for the record that a presentence investigation was to be conducted and the case was scheduled for sentencing on a specified date. Later that same day, after realizing that it had omitted certain questions from its canvass of the defendant, the trial court brought the parties back into court and advised the defendant ofadditional consequences of his plea. One such consequence was that the only circumstance under which the court would permit the defendant to withdraw his plea was if the court decided after reading the presentence report, that it had to impose a term in excess of thirty years imprisonment. The defendant acknowledged that he understood this condition.

Thereafter, a probation officer attempted to interview the defendant for purposes of the presentence report. The defendant informed the probation officer that he did not wish to discuss anything about his case because he planned to obtain different counsel, open his case and take his case to trial.

Subsequently, the trial court held the sentencing hearing. At the commencement of the hearing, the defendant's counsel, Stephen Gionfriddo, informed the court that he had been advised by the defendant and the defendant's mother, Rose Parker, that they no longer wanted him to represent the defendant. ² The defendant affirmed that he "was not happy with [his] lawyer" and that he was "pretty close" to retaining another attorney. The court noted that it had received the defendant's presentence report, which set forth the defendant's statement to that effect to the interviewing probation officer, and again explained to the defendant the effect of his previous plea canvass and that he would be permitted to withdraw his plea only if the presentence report convinced the court to impose a sentence in excess of thirty years imprisonment. The court rejected Gionfriddo's suggestion that the defendant should be allowed to have a different attorney represent him at sentencing, noting that the defendant had agreed to a plea under which there was an agreed sentence of thirtyyears imprisonment, with no right to argue for a lesser sentence. The court did, however, allow the defendant and his mother to address the court, both of whom remarked upon the reasons for their dissatisfaction with Gionfriddo's representation and the resulting plea.

The court then turned to the issue of sentencing. The court permitted the state's attorney, the girlfriend and sister of the victim and Gionfriddo to make statements, each of whom expressed reasons why the thirty year sentence was appropriate. The court took a moment to read letters submitted by other members of the victim's family and then asked the defendant if he had anything else to say. The defendant turned to the victim's family and expressed remorse for their loss, but asserted that he had not killed the victim. Thereafter, the court stated that, in light of everything it had read and the facts of the case, it intended to follow the agreed upon recommendation and, accordingly, imposed a sentence of thirty years imprisonment. The defendant subsequently unsuccessfully pursued an appeal from his judgment of conviction and other postconviction relief 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 proceeding despite his expressions of dissatisfaction with his counsel. See State v. Parker, 67 Conn App. 351, 786 A.2d 1252 (2001) (appeal), cert. denied, 281 Conn. 912, 916 A.2d 54 (2007); Parker v. Commissioner of Correction, 83 Conn. App. 905, 853 A.2d 652 (2004) (habeas relief), cert. denied, 281 Conn. 912, 916 A.2d 54 (2007). ³

In September, 2007, the defendant filed a pro se motion to correct an illegal sentence pursuant to Practice Book § 43-22. ⁴

Pursuant to a request therein, in accordance with this court's holding in State v. Casiano, 282 Conn. 614, 627-28, 922 A.2d 1065 (2007), the trial court, Alexander, J., appointed counsel to represent the defendant. ⁵ In a subsequent motion to correct filed by his counsel in December, 2007, the defendant claimed that he had been deprived of an opportunity to review and correct inaccuracies in the presentence report and had been deprived of his constitutional right to effective assistance of counsel at the sentencing proceeding. Prior to a hearing on the defendant's motion, the trial court informed the parties that it questioned whether it had jurisdiction over the defendant's claims and, therefore, it determined that the hearing would be limited to that threshold issue.

At the hearing, the court permitted the defendant to make an offer of proof as to the specific basis of his claims. Testimony from the defendant and his mother adduced the following purported facts: shortly after the court had accepted the defendant's guilty plea, the defendant had informed Gionfriddo that he was not satisfied with Gionfriddo's representation and wanted to withdraw his guilty plea; the defendant had a pending habeas petition alleging that Gionfriddo had provided ineffective assistance of counsel relating to the guilty plea; the defendant had not seen the presentence report prior to the sentencing hearing; and Gionfriddo neverhad informed the defendant or his mother about the presentence investigation or the defendant's right to have an attorney present at that investigation, to review the presentence report or to address the court about any inaccuracies in that report. The defendant stated that he had seen the report for the first time just days before the hearing held pursuant to § 43-22. The lone reference to the contents of the presentence report was a one word affirmative response by the defendant to his counsel's question as to whether there were "issues" in the report that he would like to have corrected. The defendant's counsel argued that the record established that, "if there were corrections to be made or things to be raised concerning the [presentence report] it was never done."

The trial court then questioned how any of these deficiencies could have prejudiced the defendant, in light of the fact that he had no right under the plea agreement to argue for a lower sentence than the thirty year prison term agreed upon under the plea agreement. The defendant's counsel argued that no prejudice was required to be shown for purposes of a motion to correct, but suggested that prejudice could arise from having an inaccurate presentence report because: (1) that report is used after sentencing for making parole decisions and assigning security risk levels; and (2) a judge retains authority to impose any sentence within the permissible legal range and therefore the sentencing court arguably could have sentenced the defendant to less than the thirty year term of imprisonment. The state's attorney responded that the plea agreement had rendered the sentencing hearing a formality and, therefore, the defendant's claim of prejudice was not actually predicated on that hearing, but on the general principle that he has a right to an accurate presentence report because misinformation could have collateral consequences in the future.

Thereafter, the trial court issued a decision dismissing the defendant's motion to correct for lack of jurisdiction. Although the court acknowledged that a sentence is "imposed in an illegal manner" within the meaning of § 43-22 if the court has violated certain rights guaranteed a defendant during...