State v. King

220 Conn.App. 549

300 A.3d 626

STATE of Connecticut

v.Robert KING

AC 45288

Appellate Court of Connecticut.

Argued March 20, 2023

Officially Released July 25, 2023

Tamar R. Birckhead, assigned counsel, Hamden, for the appellant (defendant).

Meryl R. Gersz, deputy assistant state's attorney, with whom, on the brief, were David R. Applegate, state's attorney, Stephen J. Sedensky III, special assistant state's attorney, and Mary-Caitlin Harding, deputy assistant state's attorney, for the appellee (state).

Elgo, Cradle and Keller, Js.

KELLER, J.

The defendant, Robert King, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant claims that the court improperly denied that motion, which challenged the sentencing court's imposition of a special condition of probation that he register as a sex offender pursuant to General Statutes § 54-254 (a).¹

In response, the state argues, inter alia, that the trial court lacked subject matter jurisdiction over the defendant's motion to correct because the requirement that the defendant register as a sex offender was not part of his sentence. We agree with the state and, accordingly, we reverse the judgment of the trial court and remand the case with direction to dismiss the motion to correct.

The following procedural history and facts, as undisputed or made a part of the record at the time the defendant entered his plea, are relevant to this appeal. Between 2012 and 2016, the defendant operated a prostitution ring in the Danbury area. Specifically, the defendant recruited and delivered fifteen male victims to meet with either William Trefzger or Bruce Bemer,² who paid the victims directly in exchange for sexual contact. The victims then shared with the defendant a portion of the money given by either Trefzger or Bemer. All of the fifteen victims suffered from mental health issues or substance abuse issues.

On August 13, 2016, the defendant was arrested and charged with promoting prostitution in the second degree in violation of General Statutes § 53a-87 and tampering with a witness in violation of General Statutes § 53a-151. See State v. King , Superior Court, judicial district of Danbury, Docket No. CR-16-0153866-S. On March 31, 2017, the defendant was arrested and charged with conspiracy to commit trafficking in persons in violation of General Statutes (Supp. 2016) § 53a-192a and General Statutes § 53a-48. See State v. King , Superior Court, judicial district of Danbury, Docket No. CR-17-0155231-S.

On August 24, 2018, the court held a hearing at which the defendant pleaded guilty to the charge of conspiracy to commit trafficking in persons in violation General Statutes (Supp. 2016) § 53a-192a and § 53a-48. The defendant entered his guilty plea pursuant to a plea agreement in which the state agreed to nolle the charges brought against him in Docket No. CR-16-0153866-S. In exchange, the defendant agreed to fully cooperate with the state in its case against Bemer and to be sentenced to twenty years of incarceration, suspended after four and one-half years, and thirty-five years of probation. The court canvassed the defendant and confirmed that he understood the plea proceedings, previously discussed the case with his attorney, knew the elements of the charged offense, understood the plea agreement, and was satisfied with the service of his attorneys. The court confirmed that the defendant was aware that his plea would result in him giving up his rights to remain silent, to continue pleading not guilty, to receive a trial by court or jury, to cross-examine the state's witnesses and evidence, and to present his own witnesses and evidence. The court also confirmed that no one had threatened or forced the defendant to plead guilty. The court accepted the defendant's plea and determined that it was freely, voluntarily, and intelligently made.

There was no mention at the plea hearing as to whether the defendant was, or should be, required to register as a sex offender.

On June 19, 2019, the court held the defendant's sentencing hearing. At the outset, the court recalled that the plea agreement provided for thirty-five years of probation. Nevertheless, the court noted that, as a result of a 2017 amendment to § 53a-192a,³ the maximum period of probation was five years. Both parties agreed with the court's representation. The court stated that, despite the fact that it was "not happy about it," the court would reduce the period of probation from thirty-five years to five years. Defense counsel confirmed that was the plea deal that the defendant wanted and that the defendant did not want to withdraw his plea and start over.

The state then requested that the court impose the four special conditions of probation recommended by the presentence investigation report (PSI): (1) sexual offender evaluation and treatment; (2) mental health evaluation and treatment; (3) no contact with Bemer and Trefzger; and (4) no contact with the victims. The state further requested that the court require the defendant to register as a sex offender because "this was a crime committed for sexual purposes."⁴

After hearing from certain victims and their representatives, the court offered defense counsel the opportunity to respond. Neither the defendant nor defense counsel objected to, or otherwise opposed, the state's request that the defendant be required to register as a sex offender. Rather, defense counsel spoke briefly about how the defendant cooperated with the state in its case against Bemer and the reduction in the period of probation. Defense counsel concluded by "ask[ing] the court impose the sentence as [he] think[s] the court is inclined to doing ...."

The court then sentenced the defendant to twenty years of incarceration, suspended after four and one-half years, and five years of probation. In accordance with the recommendations in the PSI and by the state, the court also stated, "Specifically to that probation, in addition to anything else probation deems necessary, is that you will participate in sex offender evaluation and treatment. You will register on the sex offender registry. You will submit to mental health evaluation and treatment. You will have no contact at all with either Mr. Bemer or Mr. Trefzger. You will have absolutely no contact whatsoever with any of the victims that you have been given the list of—there's seventeen of them, if you're ever in doubt, you should contact probation and find out—or their families. You are not to contact Ability Beyond or go to any of its properties, no alcohol, no drugs and you are to—oh, I did that, registration, you're to go on the re—the sex offender registry."

Following the imposition of the sentence, neither the defendant nor defense counsel took exception to the court requiring that the defendant register as a sex offender. Instead, defense counsel confirmed the length of the time period that the defendant must register as a sex offender. Specifically, the court asked, "Counsel, what else do I have to do?" Defense counsel responded, "I think the period of the registration, Your Honor." The court stated, "Oh, that's a ten year, isn't it?" The state confirmed, "Yes, Your Honor," and the court stated, "It's a ten year registration. I have that written down right here." The written order of probation, filed on June 20, 2019, evinces that the court imposed the requirement that the defendant register as a sex offender as a special condition of probation pursuant to General Statutes § 54-251. The defendant did not file a direct appeal from his conviction, and he did not file a motion to vacate or withdraw his guilty plea.

Two years later, on July 15, 2021, the defendant filed a motion to correct an illegal sentence and a memorandum of law in support thereof. The defendant argued that the sentencing court illegally required him to register as a sex offender because the court, prior to accepting his plea, failed to comply with § 54-254 (a), which provides in relevant part: "If the court finds that a person has committed a felony for a sexual purpose and intends to require such person to register under this section, prior to accepting a plea of guilty or nolo contendere from such person with respect to such felony, the court shall (1) inform the person that the entry of a finding of guilty after acceptance of the plea will subject the person to the registration requirements of this section, and (2) determine that the person fully understands the consequences of the plea. ..."⁵ (Emphasis added.) The defendant argued that "there was no mention at all of the sex offender registration requirement of § 54-254 (a) during the defendant's plea acceptance hearing. At no time during the plea acceptance was the defendant advised he would be required to register as a sex offender as is required by § 54-254. The first mention of sex offender registration was at the defendant's sentencing, when [the state] asked the judge to impose registration in accordance with § 54-254. There was also no formal finding that the defendant had committed conspiracy to commit human trafficking for a sexual purpose." As for relief, the defendant requested that the court "correct the defendant's illegal sentence, vacate the defendant's sentence, and order him resentenced under the terms of his plea agreement."

On August 13, 2021, the state filed a motion to dismiss and an objection to the defendant's motion to correct. On September 8, 2021, the state filed a memorandum of law in support of its motion and its objection in which it made two principal arguments.⁶ First, the state contended that the court lacked subject matter jurisdiction pursuant to Practice Book § 43-22 because the defendant's motion to correct contested the requirement that he register as a sex offender, which was separate from his sentence. Second, the state argued that the court should deny the defendant's motion to correct because the defendant, and/or his couns...