State v. Rivera

177 Conn.App. 242

172 A.3d 260

STATE of Connecticut

v.Jose RIVERA

AC 40218

Appellate Court of Connecticut.

Argued May 15, 2017

Officially released October 17, 2017

W. Theodore Koch III, assigned counsel, Lyme, for the appellant (defendant).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, Melissa E. Patterson, assistant state's attorney, and Thomas R. Garcia, former senior assistant state's attorney, for the appellee (state).

DiPentima, C.J., and Mullins and Pellegrino, Js.

DiPENTIMA, C.J.

The defendant, Jose Rivera, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. We are asked to determine whether our state constitution affords greater protection to juvenile homicide offenders than that provided under the federal constitution. On appeal, the defendant claims that (1) the court erred in dismissing the motion to correct an illegal sentence on the ground that it lacked subject matter jurisdiction, (2) the court erred in dismissing the motion to correct an illegal sentence because the mandatory minimum sentence of twenty-five years of incarceration without the possibility of parole imposed on a juvenile homicide offender is unconstitutional under article first, §§ 8 and 9, of the Connecticut constitution, as it prevented the court from sentencing juveniles to less than twenty-five years of incarceration upon due consideration of the Miller factors¹ and (3) the court committed constitutional error when it accepted the defendant's waiver, through counsel, without a canvass, of his right to a presentence investigation report. We disagree with the defendant and, accordingly, affirm the judgment of the trial court dismissing the motion to correct an illegal sentence.

The following facts and procedural history are relevant to the present appeal. On April 5, 1997, the defendant and an accomplice participated in a shooting that resulted in the death of Harry Morales. The defendant was seventeen years old at the time of the shooting.

On June 3, 1999, when the defendant was nineteen years old, he pleaded guilty to murder in violation of General Statutes § 53a–54a and conspiracy to commit murder in violation of General Statutes §§ 53a–48 (a) and 53a–54a. He also pleaded guilty under a different docket number to assault in the first degree in violation of General Statutes § 53a–59 (a) (1).² The court, Clifford, J. , sentenced the defendant to the mandatory minimum of twenty-five years of incarceration on the charge of murder, twenty years of incarceration on the charge of conspiracy to commit murder and ten years of incarceration, five of which were the mandatory minimum, on the charge of assault in the first degree, with all sentences to be served concurrently. The total effective sentence imposed by the court was twenty-five years of incarceration. At the time the defendant was sentenced, he was not eligible for parole pursuant to General Statutes § 54–125a (b) (1), which provides in relevant part that "[n]o person convicted of [murder], which was committed on or after July 1, 1981, shall be eligible for parole ...."³

On October 1, 2014, the defendant filed a motion to correct an illegal sentence pursuant to Practice Book § 43–22.⁴ In his motion, the defendant claimed that his sentence of twenty-five years of incarceration was imposed in an illegal manner because it violated the eighth amendment to the United States constitution as interpreted by Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012),⁵ and Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).⁶ Oral argument was heard on October 16, 2014.

On February 11, 2015, the trial court, Alexander, J. , issued a memorandum of decision dismissing the defendant's motion to correct an illegal sentence because it lacked subject matter jurisdiction over the motion. This appeal followed.

After the appeal was filed and briefed, our Supreme Court issued decisions in State v. Delgado , 323 Conn. 801, 151 A.3d 345 (2016), and State v. Boyd , 323 Conn. 816, 151 A.3d 355 (2016). The parties were asked to be prepared to address at oral argument the impact of Delgado and Boyd on the present appeal.⁷

I

The defendant first claims that the trial court erred in dismissing the motion to correct an illegal sentence on the ground that it lacked subject matter jurisdiction. We conclude that our Supreme Court's holding in State v. Delgado , supra, 323 Conn. at 801, 151 A.3d 345, is dispositive of the defendant's claim, and, accordingly, we agree with the trial court's dismissal of the defendant's motion to correct.

We begin by setting forth our well established standard of review and legal principles that govern our resolution of this claim. "We apply plenary review in addressing this question of law.... The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal.... At issue is 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." (Citations omitted; internal quotation marks omitted.) Id., at 810, 151 A.3d 345.

In Delgado , the defendant, who was sentenced in 1996 to sixty-five years of incarceration without the possibility of parole for crimes he committed at the age of sixteen, appealed from the judgment of the trial court dismissing his motion to correct an illegal sentence. The issue before the Supreme Court was whether the sentencing court had failed to consider youth related mitigating factors and imposed the equivalent of a life sentence without the possibility of parole in violation of the eighth amendment. Id., at 802–804, 809, 151 A.3d 345. Our Supreme Court first noted that "[f]ollowing the enactment of No. 15–84 of the 2015 Public Acts (P.A. 15–84), now codified in part in General Statutes § 54–125a (f)... the defendant is now eligible for parole and can no longer claim that he is serving a sentence of life imprisonment, or its equivalent, without parole."⁸ State v. Delgado , supra, 323 Conn. at 810, 151 A.3d 345.

The court next explained that "[t]he eighth amendment [to the United States constitution], as interpreted by Miller , does not prohibit a court from imposing a sentence of life imprisonment with the opportunity for parole for a juvenile homicide offender, nor does it require the court to consider the mitigating factors of youth before imposing such a sentence.... Rather, under Miller , a sentencing court's obligation to consider youth related mitigating factors is limited to cases in which the court imposes a sentence of life, or its equivalent, without parole." (Citation omitted; emphasis altered.) Id., at 810–11, 151 A.3d 345. The court went on to state that "[b]ecause Miller and [ State v. Riley , 315 Conn. 637, 110 A.3d 1205 (2015), cert. denied, ––– U.S. ––––, 136 S.Ct. 1361, 194 L.Ed.2d 376 (2016) ], do not require a trial court to consider any particular mitigating factors associated with a juvenile's young age before imposing a sentence that includes an opportunity for parole, the defendant can no longer allege, after the passage of P.A. 15–84, that his sentence was imposed in an illegal manner on the ground that the trial court failed to take these factors into account. Such an allegation is an essential predicate to the trial court's jurisdiction to correct the sentence. An allegation that the court failed to consider youth related factors before imposing a sentence of life with parole is not sufficient to establish a jurisdictional basis for correcting a sentence.... We therefore conclude that the defendant has not raised a colorable claim of invalidity that, if decided in his favor, would require resentencing." (Citations omitted; emphasis in original.) Id., at 812–13, 151 A.3d 345.

As in Delgado , although the defendant here initially was sentenced as a juvenile to twenty-five years of incarceration without the possibility of parole for a homicide offense, he is now eligible for parole pursuant to § 54–125a (f). As explained in Delgado , the sentencing court was not required to consider the mitigating factors of youth before imposing such a sentence. Because the defendant's motion to correct fails to state a colorable claim that his sentence of twenty-five years of incarceration was illegal or imposed in an illegal manner, the trial court does not have subject matter jurisdiction to consider the merits of the motion. See State v. McClean , 173 Conn.App. 62, 64, 164 A.3d 35 (2017) (concluding: "[u]pon reconsideration, we are constrained by Delgado to conclude that the trial court properly dismissed the defendant's motion to correct an illegal sentence and that its judgment should be affirmed"); State v. Martin , 172 Conn.App. 904, 158 A.3d 448 (2017) (same); see also State v. Parker , 173 Conn.App. 901, 159 A.3d 1203 (2017) (same). The court, therefore, properly dismissed the motion to correct an illegal sentence. See State v. Ellis , 174 Conn.App. 14, 17–18, 164 A.3d 829 (2017) ("Following the enactment of P.A. 15–84 ... the defendant is now eligible for parole and can no longer claim that he is serving a sentence of life imprisonment, or its equivalent, without parole. The eighth amendment, as interpreted by Miller , does not prohibit a court from imposing a sentence of life imprisonment with the opportunity for parole for a juvenile homicide offender, nor does it require the court to consider the mitigating factors of youth before imposing such a sentence.... [Thus] the court properly dismissed the defendant's motion to correct an illegal sentence." [Citations omitted; emphasis in original; internal...