State v. Battle

192 Conn.App. 128

217 A.3d 637

STATE of Connecticut

v.Reggie BATTLE

AC 40578

Appellate Court of Connecticut.

Argued March 11, 2019

Officially released August 27, 2019

Temmy Ann Miller, with whom were Aimee Lynn Mahon and, on the brief, Nicholas A. Marolda, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Elizabeth Tanaka, former assistant state's attorney, for the appellee (state).

DiPentima, C. J., and Bright and Moll, Js.

DiPENTIMA, C.J.

The defendant, Reggie Battle, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. On appeal, the defendant claims that (1) the court improperly concluded that it lacked jurisdiction to consider his motion to correct an illegal sentence, (2) the court improperly concluded that the use of special parole following the finding of a probation violation did not constitute an illegal sentence and (3) he was denied due process of law when his motion to correct an illegal sentence was not acted upon by the judge who had sentenced him. We conclude that the trial court had jurisdiction to consider the defendant's motion to correct an illegal sentence but are not persuaded by his second and third claims. Accordingly, the form of the judgment is improper, and we reverse the judgment dismissing the defendant's motion to correct an illegal sentence and remand the case with direction to render judgment denying the defendant's motion.

The following facts and procedural history are relevant to this appeal. On November 7, 2005, the defendant appeared before the court, Miano, J. , and pleaded guilty to conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59 (a) (1) and admitted a violation of probation pursuant to General Statutes § 53a-32. After hearing the prosecutor's recitation of the facts¹ and conducting a plea canvass, the court accepted the defendant's guilty plea and admission. The defendant waived a presentence investigation report, and the court sentenced him in accordance with the parties' agreement. Specifically, the court sentenced the defendant to twenty years incarceration, execution suspended after nine years, and five years of probation² for the conspiracy to commit assault in the first degree charge. The court also terminated the defendant's probation.³

On January 13, 2014, the defendant appeared before the court, Alexander, J. , and admitted a violation of probation, pursuant to § 53a-32, and pleaded guilty to carrying a pistol without a permit in violation of General Statutes § 29-35 (a) and criminal possession of a pistol in violation of § 53a-217c. The prosecutor set forth the underlying facts⁴ and, following a canvass, the court accepted the defendant's guilty plea and admission. The court then sentenced the defendant as follows: "[The] court will impose the agreement as indicated. On the violation of probation, it is ordered revoked; five years to serve, six years of special parole. On the charge of [carrying a] pistol without [a] permit, it is the sentence of the court that you receive five years to serve, which will run concurrent with the previous sentence. On the charge of criminal possession of a firearm, five years to serve, also concurrent."

On April 7, 2016, the self-represented defendant filed a motion to correct an illegal sentence pursuant to Practice Book § 43-22.⁵ On November 1, 2016, the defendant, then represented by counsel, filed an amended motion to correct, arguing that General Statutes § 54-125e expressly limits the use of special parole to those convicted of a crime and that a violation of probation is not a crime. Accordingly, the defendant claimed that his sentence was illegal. On December 23, 2016, the state filed an objection to the defendant's amended motion to correct.

On March 16, 2017, the court, Dewey, J. , issued a memorandum of decision dismissing the defendant's motion to correct an illegal sentence. Although the court concluded that the defendant's claim did not fall within the ambit of Practice Book § 43-22, it proceeded to consider, and reject, the merits of his motion. Specifically, the court reasoned that, in connection with disposing of a charge of violation of probation, a sentence that includes a period of special parole was authorized by the General Statutes and our case law. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly concluded that it lacked jurisdiction to consider his motion to correct an illegal sentence. Specifically, he argues that his claim that a sentence of special parole on a violation of probation was not permitted under our statutes fell within the limited jurisdiction authorized for a motion to correct an illegal sentence. We agree with the defendant.

This claim presents a question of law subject to the plenary standard of review. State v. Mukhtaar , 189 Conn. App. 144, 148, 207 A.3d 29 (2019). It requires us to "consider whether the defendant has raised a colorable claim within the scope of Practice Book § 43-22 that would, if the merits of the claim were reached and decided in the defendant's favor, require correction of a sentence.... In the absence of a colorable claim requiring correction, the trial court has no jurisdiction to modify the sentence.... A colorable claim is one that is superficially well founded but that may ultimately be deemed invalid .... For a claim to be colorable, the defendant need not convince the trial court that he necessarily will prevail; he must demonstrate simply that he might prevail.... The jurisdictional and merits inquiries are separate; whether the defendant ultimately succeeds on the merits of his claim does not affect the trial court's jurisdiction to hear it." (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. Evans , 329 Conn. 770, 783–84, 189 A.3d 1184 (2018), cert. denied, ––– U.S. ––––, 139 S. Ct. 1304, 203 L. Ed. 2d 425 (2019).

"[Our Supreme Court] has held that the jurisdiction of the sentencing court terminates once a defendant's sentence has begun, and, therefore, that court may no longer take any action affecting a defendant's sentence unless it expressly has been authorized to act.... Practice Book § 43-22, which provides the trial court with such authority, provides that [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 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.... We previously have noted that a defendant may challenge his or her criminal sentence on the ground that it is illegal by raising the issue on direct appeal or by filing a motion pursuant to § 43-22 with the judicial authority, namely, the trial court." (Citations omitted; internal quotation marks omitted.) State v. Tabone , 279 Conn. 527, 533–34, 902 A.2d 1058 (2006) ; see also State v. Evans , supra, 329 Conn. at 778, 189 A.3d 1184. Simply stated, "a challenge to the legality of a sentence focuses not on what transpired during the trial or on the underlying conviction. 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 trial leading to the conviction, must be the subject of the attack." (Emphasis omitted; internal quotation marks omitted.) State v. Evans , supra, at 779, 189 A.3d 1184.

The defendant argued in his motion to correct an illegal sentence that special parole cannot be imposed following a violation of probation. Specifically, he contended that the text of § 54-125e establishes that special parole may be imposed only for the conviction of a crime and that a violation of probation hearing is not a stage of a criminal prosecution. Further, he claimed that § 53a-32 (d), which sets forth the court's options following a finding of a probation violation, does not include special parole. In other words, the defendant challenged the sentence imposed, rather than the events leading to his conviction. Because the defendant set forth a colorable claim regarding the legality of the sentence imposed for violating his probation, the trial court had jurisdiction to consider the merits of the defendant's motion. We conclude, therefore, that the court improperly dismissed the motion to correct an illegal sentence filed by the defendant.

II

Having concluded that the court had jurisdiction to decide the defendant's claim, we turn to the defendant's contention that the imposition of special parole, following the determination that he had violated his probation, constituted an illegal sentence. Specifically, he argues that the use of special parole is not authorized by § 53a-32 (d) (4) under the facts of this case. We are not persuaded by the defendant's restrictive interpretation of the relevant statutes and principles relating to sentencing in probation violation proceedings.

Accordingly, we disagree with the defendant's claim.⁶

In the court's decision, it reviewed the relevant statutes, namely, General Statutes §§ 53a-28 and 53a-32 (d). Next, it observed that "[t]he provisions relating to alternatives to incarceration, special parole and probation, must be read in harmony." The court further stated that "[i]n State v. Santos T. , 146 Conn. App. 532, 535–36, 77 A.3d 931, [cert. denied, 310 Conn. 965, 83 A.3d 345] (2013), the Connecticut Appellate Court implicitly recognized a trial court's authority to impose a term of special parole after a parole violation hearing and sentencing."⁷ Finally, it reasoned that the dispositional phase of a probation revocation proceeding, in substance,...