State v. Mitchell

195 Conn.App. 199

224 A.3d 564

STATE of Connecticut

v.James MITCHELL

AC 41769

Appellate Court of Connecticut.

Argued October 9, 2019

Officially released January 14, 2020

James E. Mortimer, assigned counsel, for the appellant (defendant).

Matthew A. Weiner, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Donna Mambrino, senior assistant state's attorney, for the appellee (state).

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

DiPENTIMA, C.J.

The defendant, James Mitchell, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant challenges the trial court's denial of his motion to correct on four grounds: (1) that the sentence was imposed in an illegal manner in violation of Santobello v. New York , 404 U.S. 257, 262, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971), because the defendant was sentenced after the nine month period of the Garvin agreement had ended; (2) that the sentence was imposed in an illegal manner because the defendant was not given adequate notice of the sentencing hearing; (3) that he was denied the opportunity to make a statement or present evidence in violation of Practice Book § 43-10 ; and (4) that the imposition of the sentence violated Practice Book § 43-29.¹ We disagree and, accordingly, affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. On November 14, 1997, the defendant was sentenced to ten years imprisonment, execution suspended after four years, and five years of probation for the underlying crime of robbery in the first degree with a firearm. The defendant's probation began on February 23, 2001. During this probation period, the defendant was arrested, subsequently convicted on or about October 25, 2001, for possession of a controlled substance in violation of General Statutes (Rev. to 2001) § 21a-279 (c) and fined $250. The defendant was incarcerated for failure to pay the fine on March 8, 2002, and later released. The defendant was arrested on March 7, 2002, for possession of narcotics and sale of a controlled substance in violation of General Statutes (Rev. to 2001) § 21a-279 (a) and General Statutes (Rev. to 2001) § 21a-277 (b). On April 19 and 30, 2002, the defendant tested positive for the presence of cocaine in two separate urine samples. On May 13, 2002, the defendant was charged with violating his probation. Subsequently, on or about May 25, 2002, the defendant was arrested for possession of a controlled substance in violation of General Statutes (Rev. to 2001) § 21a-279 (c) and sale of a controlled substance in violation of General Statutes (Rev. to 2001) § 21a-277 (b). The defendant was also charged with possession of a controlled substance for conduct occurring on or about October 17, 2002.

On June 18, 2003, after reaching a Garvin agreement with the state,² the defendant appeared before the court, Solomon, J. At the hearing, the court explained its understanding of the terms of the plea agreement: "Here is the deal as I understand it. You are going to admit [to the violation of probation]. You are going to get random drug screenings. You get one positive and if you fail to show up for a test because you don't want to know what the result is, that failure to show up in my opinion is a positive .... You are going to be working full time and you are not going to commit any more crimes. If you do any of those things in the course of the next nine months, I'm going to bring you back. You are going to get at least the six years that you owe on the violation of probation, and with respect to the other charges, I can do whatever I want. I can run concurrent and I can run consecutive .... You make it for nine months, work full time, no crimes, no positive urines, I will continue you on probation at that point in time. Whether you go to jail is entirely in your hands. There is not going to be a negotiation if you come back and you failed. I'm not going to hear about [how] you did pretty good or you did really well for six months. As far as I'm concerned, if you fail, you failed, and you get the six years."

After the defendant admitted to violating his probation and pleaded guilty to two counts of possession of a controlled substance, the court canvassed the defendant and repeated the terms of the plea agreement. "Even though we discussed it on the record, I am going to go through it again with you. The deal, as I understand it, is if you do everything I indicated I expect you to do, no drugs, clean urines, show up for all tests, have full-time regular employment and no more criminal conduct. In other words, don't get arrested for anything. If you do all those things, you are going to come back in nine months and I'm going to continue you on probation. You will still be on probation, but you won't have to serve any jail time as a result of this violation. If you don't do the things that I have told you you have to do, then what's going to happen is I'm not going to wait the nine months. I'm going to bring you back as soon as I find out that there has been a positive urine, or as soon as I find out that you've been arrested, or as soon as I find out that you lose your job. I'm going to bring you back and I am going to sentence you to a minimum of six years, and as much as eight years."

Shortly after this hearing, on August 23, 2003, the defendant was arrested on several felony charges. On September 22, 2005, following a jury trial on these charges, the defendant was convicted of attempt tocommit murder in violation of General Statutes §§ 53a-54a, 53a-49 (a) and 53a-8 ; conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a ; kidnapping in the first degree in violation of General Statutes §§ 53a-92 (a) (2) (A) and 53a-8 ; conspiracy to commit kidnapping in the first degree in violation of §§ 53a-48 and 53a-92 (a) (2) (A) ; sexual assault in the first degree in violation General Statutes §§ 53a-8 and 53a-70 (a) (1) ; conspiracy to commit sexual assault in the first degree in violation of §§ 53a-48 and 53a-70 (a) (1) ; assault in the first degree in violation of General Statutes §§ 53a-59 (a) (5) and 53a-8 ; conspiracy to commit assault in the first degree in violation of §§ 53a-48 (a) and 53a-59 (a) (5) ; and criminal possession of a firearm in violation of General Statutes (Rev. to 2003) § 53a-217 (a) (1).

On October 12, 2005, the defendant was brought before the court, Miano, J. , to be sentenced on the violation of probation charge and the two counts of possession of a controlled substance pursuant to the Garvin agreement. During the sentencing hearing, the defendant communicated to the court as follows: "I was just called out of the blue to come to court so I, as far as what you're telling me now, is the first thing I am hearing what was going on." Defense counsel then requested a continuance of the hearing. The court met with defense counsel and the prosecutor in chambers to discuss the continuance request. Thereafter, the court continued the case to that afternoon. When the parties returned, defense counsel stated that the defendant "[was] prepared to be sentenced on these matters today." The court heard argument from the state and defense counsel, and the defendant declined to speak. The court found a Garvin violation, revoked the defendant's probation and sentenced the defendant to six years of incarceration for violating his probation and one year of incarceration for each of the possession of a controlled substance charges to be served concurrently.

Pursuant to Practice Book § 43-22,³ the defendant filed a motion to correct an illegal sentence on October 4, 2013, and an amended motion on January 7, 2014. In the memorandum in support of this motion, the defendant argued that the conditions imposed on him by the Garvin agreement he entered into on June 18, 2003, expired on March 12, 2004. The defendant also argued that the sentence was imposed illegally because he did not receive notice of the October 12, 2005 sentencing date as required under Practice Book § 43-29.⁴

In opposition, the state contended that (1) the defendant had been thoroughly canvassed and had agreed with the conditions of the plea agreement, (2) he and his attorney knew that sentencing was pending when he was called before the court on October 12, 2005, and (3) the notice procedures of Practice Book § 43-29 were not applicable.

On October 3, 2017, the court issued its written memorandum of decision denying the defendant's motion to correct an illegal sentence. The court noted that during the sentencing hearing, defense counsel told the court that the defendant was "prepared to be sentenced on these matters today." The court further noted that the defendant declined to speak when invited to and was provided with his right to a sentence review. Finally, the court concluded that "[t]he defendant's claim of lack of notice confuses notice of a violation hearing with notice for a sentencing hearing, which was waived by counsel after opportunities to speak with the judge and her client." This appeal followed.

We begin by setting forth the standard of review that guides our analysis. "[A] claim that the trial court improperly denied a defendant's motion to correct an illegal sentence is reviewed pursuant to the abuse of discretion standard." State v. Tabone , 279 Conn. 527, 534, 902 A.2d 1058 (2006). "In reviewing claims under the abuse of discretion standard, we have stated that the ultimate issue is whether the court could reasonably conclude as it did." (Internal quotation marks omitted.) State v. Fairchild , 155 Conn. App. 196, 210, 108 A.3d 1162, cert. denied, 316 Conn. 902, 111 A.3d 470 (2015).

I

The defendant first claims that he was sentenced in violation of the United States Supreme Court's decision in Santobello v. New York , supra, 404 U.S. at 262, 92 S.Ct. 495, because the sentencing occurred after the nine month...