State v. Holmes

182 Conn.App. 124

189 A.3d 151

STATE of Connecticut

v.Evan J. HOLMES

AC 40677

Appellate Court of Connecticut.

Argued February 8, 2018

Officially released May 22, 2018

Evan J. Holmes, self-represented, the appellant (defendant).

Paul J. Narducci, senior assistant state's attorney, with whom were Sarah Bowman, assistant state's attorney, and, on the brief, Michael L. Regan, state's attorney, for the appellee (state).

DiPentima, C.J., and Alvord and Dewey, Js.

DEWEY, J.

The self-represented defendant, Evan J. Holmes, appeals from the judgment of the trial court denying his motion to correct an illegal sentence.¹ On appeal, the defendant claims, in essence, that the court erroneously denied his motion to correct by finding that his sentence for felony murder had been based on the predicate offense of burglary, which the court had vacated pursuant to State v. Polanco , 308 Conn. 242, 245, 61 A.3d 1084 (2013). We are not persuaded and, accordingly, affirm the judgment of the trial court.

In the defendant's unsuccessful direct appeal from his conviction, this court recited the following facts. See State v. Holmes , 176 Conn. App. 156, 159–61, 169 A.3d 264, cert. granted, 327 Conn. 984, 175 A.3d 561 (2017). Early in the morning of November 12, 2011, the defendant went to a club with friends, including Davion Smith. Id., at 159–60, 169 A.3d 264. Outside the club, the defendant was involved in a fight with other party guests, including Todd Silva. Id., at 160, 169 A.3d 264. After the fight, around 4 a.m. that same day, the defendant and Smith forced entry into the apartment where Silva and the victim, Jorge Rosa, lived. Id. The victim and his girlfriend, Gabriela Gonzales, who had previously been in a romantic relationship with the defendant, were asleep in the victim's bed. Id."Gonzales awoke to find the defendant and Smith standing at the foot of [the] bed, each pointing a gun at the victim .... The defendant then fired ten shots from an automatic pistol at the victim, who died within a few minutes from numerous gunshot wounds.... The defendant and Smith subsequently fled the apartment." Id. Gonzales called 911. Id., at 161, 169 A.3d 264. The police arrived, and Gonzales eventually told them "that the defendant had shot the victim" and described the defendant's car. Id. At about 9:30 a.m., a patrolman saw the defendant's car at a Days Inn. Id. When more police units arrived, the defendant attempted to flee. Id. A K–9 officer and his K–9, Zeus, assisted in apprehending the defendant in the parking lot. Id.

The defendant was charged in a substitute information with murder in violation of General Statutes § 53a–54a(a) ; felony murder in violation of General Statutes (Rev. to 2011) § 53a–54c; home invasion in violation of General Statutes § 53a–100aa(a)(2) ; conspiracy to commit home invasion in violation of General Statutes §§ 53a–48(a) and 53a–100aa ; and burglary in the first degree in violation of General Statutes § 53a–101(a)(1).² The jury found the defendant not guilty of murder, but returned a verdict of guilty on the lesser included offense of manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a–55(a)(1) and 53a–55a, and found the defendant guilty of felony murder, home invasion, conspiracy to commit home invasion, and burglary in the first degree. In December, 2013, at the defendant's sentencing hearing, the court vacated the convictions of manslaughter in the first degree with a firearm and burglary in the first degree as lesser included offenses of felony murder and home invasion, respectively, so as to avoid violating the double jeopardy protections of the federal and state constitutions.³ See State v. Polanco , 308 Conn. at 245, 61 A.3d 1084 ("when a defendant has been convicted of greater and lesser included offenses, the trial court must vacate the conviction for the lesser offense rather than merging the convictions"); see also State v. Miranda , 317 Conn. 741, 742, 120 A.3d 490 (2015) ("vacatur remedy prescribed in ... Polanco ... applies to the double jeopardy violation caused by cumulative homicide convictions arising from the killing of a single victim" [citation omitted] ). The court sentenced the defendant to a total effective sentence of seventy years incarceration for his convictions of felony murder, home invasion, and conspiracy to commit home invasion.⁴

On March 1, 2017, during the pendency of the defendant's direct appeal from his conviction, the defendant filed a motion to correct pursuant to Practice Book § 43–22, arguing that his sentence for felony murder is illegal. The defendant premised his arguments on his understanding that when the court vacated his conviction of burglary in the first degree, his conviction of home invasion became the predicate offense for his sentence for felony murder. In 2011, when the defendant committed the offenses, the felony murder statute listed burglary, but not home invasion, as a predicate offense for felony murder. General Statutes (Rev. to 2011) § 53a–54c.⁵ The defendant argued that, therefore, basing his sentence for felony murder on his home invasion conviction violated the ex post facto provision of the constitution of the United States and his due process rights under the state and federal constitutions. On April 27, 2017, the state filed an opposition to the defendant's motion to correct,⁶ arguing that the defendant's sentence for felony murder was not illegal because that conviction and sentence rested on his vacated conviction of burglary in the first degree, not on his home invasion conviction. The court held a hearing on May 4, 2017, and, agreeing with the state's reasoning, denied the defendant's motion to correct. This appeal followed. Additional procedural history will be set forth as necessary.

On appeal, the defendant claims, in essence, that the court erroneously denied his motion to correct by finding that his sentence for felony murder had been based on the predicate offense of burglary, which the court had vacated so as to avoid double jeopardy.⁷ In response, the state argues that "[t]he vacatur of the burglary verdict does not erase the fact that the jury found the defendant guilty of burglary and consequently of felony murder," and that thus, "the court's sentence on the [f]elony [m]urder count was valid and the trial court properly denied [the defendant's m]otion to [c]orrect an [i]llegal [s]entence." We agree with the state.

We begin by setting forth the standard of review and relevant law. "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 discretion, 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." (Internal quotation marks omitted.) State v. Logan , 160 Conn. App. 282, 287, 125 A.3d 581 (2015), cert. denied, 321 Conn. 906, 135 A.3d 279 (2016).

Practice Book § 43–22 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." "[A]n illegal sentence is essentially one [that] either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory. By contrast ... [s]entences imposed in an illegal manner have been defined as being within the relevant statutory limits but ... imposed in a way [that] 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 .... These definitions are not exhaustive, however, and the parameters of an invalid sentence will evolve ... as additional rights and procedures affecting sentencing are subsequently recognized under state and federal law." (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. Jason B. , 176 Conn. App. 236, 243–44, 170 A.3d 139 (2017). "It is well settled that [t]he purpose of ... § 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 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." (Citations omitted; internal quotation marks omitted.) State v. Cruz , 155 Conn. App. 644, 651, 110 A.3d 527 (2015).

At the court's hearing on the defendant's motion to correct, the defendant argued that at the sentencing proceeding, at the moment when "[t]he burglary is vacated ... you rely on home invasion to be the predicate felony of felony murder. The moment you erased the burglary, home invasion became the underlying felony." The court disagreed, reasoning that "the jury found the defendant guilty of burglary in the first degree, as the predicate conviction for the felony murder charge. Simply because the court was required to vacate the conviction on the burglary first charge, pursuant to State v. Polanco , 308 Conn. 242, 61 A.3d 1084 (2013), at the time of the sentencing, for double jeopardy purposes, that does not alter the fact that it remained the predicate for the felony murder charge. Under all of these circumstances then, the sentence was not an illegal sentence, and ... the motion is denied." We now address whether the court abused its discretion when finding that a conviction, which the court had vacated as a lesser included offense of a greater offense pursuant t...