State v. Smith

213 Conn.App. 848

279 A.3d 303

STATE of Connecticut

v.Jeffrey SMITH

AC 44525

Appellate Court of Connecticut.

Argued March 10, 2022

Officially released July 19, 2022

Jeffrey Smith, Hartford, self-represented, the appellant (defendant).

Melissa Patterson, senior assistant state's attorney, with whom, on the brief, were Paul J. Narducci, state's attorney, and Michael Reagan, former state's attorney, for the appellee (state).

Bright, C. J., and Alexander and Lavine, Js.

LAVINE, J.

[279 A.3d 850]

The self-represented defendant, Jeffrey Smith, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant claims that the court erred in denying his motion to correct an illegal sentence because (1) his acquittal on the charges of capital felony and murder barred, on double jeopardy grounds,¹ his prosecution during the same trial on the charges of felony murder and manslaughter and (2) the court improperly sentenced him on his felony murder conviction rather than on his manslaughter conviction.² We reject the second claim. As to the first claim, we conclude that the trial court lacked subject matter jurisdiction to consider it and it should be dismissed. Accordingly, we affirm in part and reverse in part the judgment of the trial court.

[279 A.3d 851]

The following procedural history is relevant. Following trial, the jury found the defendant not guilty of the charges of capital felony in violation of General Statutes (Rev. to 1997) § 53a-54b (5) and murder in violation of General Statutes (Rev. to 1997) § 53a-54a. The jury found him guilty of felony murder in violation of General Statutes (Rev. to 1997) § 53a-54c, manslaughter in the first degree in violation of General Statutes § 53a-55, two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and (B), and robbery in the first degree in violation of General Statutes § 53a-134 (a) (1). The trial court, Schimelman , J. , merged the defendant's convictions of felony murder and manslaughter and sentenced him to sixty years in prison on the felony murder conviction, which sentence was to run consecutively to both his concurrent twenty-five year sentences on each kidnapping count, as well as his concurrent sentence of twenty years on the robbery count, for a total effective sentence of eighty-five years of imprisonment. This court affirmed the defendant's conviction on direct appeal. State v. Smith , 107 Conn. App. 746, 946 A.2d 926, cert. denied, 288 Conn. 905, 953 A.2d 650 (2008).

In 2015, the defendant, representing himself, filed an amended motion to correct an illegal sentence (2015 motion) pursuant to Practice Book § 43-22,³ in which he alleged multiple double jeopardy violations. See State v. Smith , 180 Conn. App. 371, 374–75, 184 A.3d 831 (2018) (detailing claims made in 2015 motion), rev'd on other grounds, 338 Conn. 54, 256 A.3d 615 (2021). In a June 27, 2016 memorandum of decision, the court, Strackbein, J. , denied the 2015 motion. On appeal, this court affirmed the judgment of the trial court. Id., at 373, 184 A.3d 831. This court rejected the defendant's claims, including

[279 A.3d 852]

his claim that the sentencing court had violated the principles established by our Supreme Court in State v. Polanco , 308 Conn. 242, 61 A.3d 1084 (2013), and State v. Miranda , 317 Conn. 741, 120 A.3d 490 (2015), by merging his cumulative homicide convictions for felony murder and manslaughter rather than vacating his conviction for manslaughter, reasoning that Polanco and Miranda do not apply retroactively. State v. Smith , supra, 180 Conn. App. at 379–84, 184 A.3d 831. Our Supreme Court reversed the judgment of the Appellate Court, holding that, because the sentencing court did not impose any sentence on the defendant for his merged manslaughter conviction, vacatur of that conviction would have no effect on the length, computation or structure of the sentence and, accordingly, the trial court lacked subject matter jurisdiction over the defendant's Polanco / Miranda claim. State v. Smith , 338 Conn. 54, 63–64, 256 A.3d 615 (2021).

The self-represented defendant filed the present motion to correct an illegal sentence, dated December 13, 2019, in which he claimed multiple double jeopardy violations and sought the vacatur of all his sentences and convictions.⁴ Following several hearings on the motion, during which the defendant was asked to clarify his claims, the court, Strackbein, J. , in a December 22, 2020 memorandum of decision, denied the motion. The court incorporated into its decision the June 27, 2016 memorandum of decision denying the 2015 motion and determined that most of the defendant's arguments already had been addressed by this court in

[279 A.3d 853]

State v. Smith , supra, 107 Conn. App. 746, 946 A.2d 926. The court rejected the defendant's claim "where again he stated he was ‘reprosecuted’ when the jury found him guilty on several charges but not the capital felony and murder" and reasoned that "the trial judge did not impose multiple punishments for the same crime." The court also rejected the defendant's claim that the court should have sentenced him on the manslaughter charge instead of the felony murder charge, and reasoned that "[t]he trial of this defendant predated Polanco , which is not retroactive—but the merger of the manslaughter conviction under the felony murder conviction serves the same purpose of explaining that the lesser included offense is subsumed under the greater offense." This appeal followed.

I

The defendant first claims that "[t]he state must not continue to overlook and give short shrift to the fact that the [defendant] was initially acquitted twice before being illegally convicted twice for a single alleged homicide ...." As we interpret this claim, the defendant argues that, in denying his motion to correct, the court improperly rejected his claim that his convictions for felony murder and manslaughter, after he had been acquitted of both capital felony and murder in the same trial proceeding, constituted a second prosecution for the same offense in violation of his constitutional right against double jeopardy. The state counters that the trial court did not have subject matter jurisdiction to entertain this claim. We agree with the state.

"The determination of whether a claim may be brought via a motion to correct an illegal sentence presents a question of law over which our review is plenary." State v. Thompson , 190 Conn. App. 660, 665, 212 A.3d 263, cert. denied, 333 Conn. 906, 214 A.3d 382 (2019). "A motion to correct an illegal sentence under [279 A.3d 854]

Practice Book § 43-22 constitutes a narrow exception to the general rule that, once a defendant's sentence has begun, the authority of the sentencing court to modify that sentence terminates.... 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.... [A]n illegal sentence is essentially one [that] ... exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory.... In accordance with this summary, Connecticut courts have considered four categories of claims pursuant to ... § 43-22. The first category has addressed whether the sentence was within the permissible range for the crimes charged.... The second category has considered violations of the prohibition against double jeopardy.... The third category has involved claims pertaining to the computation of the length of the sentence and the question of consecutive or concurrent prison time.... The fourth category has involved questions as to which sentencing statute was applicable." (Citations omitted; internal quotation marks omitted.) State v. Holmes , 209 Conn. App. 197, 202–203, 267 A.3d 348 (2021), cert. denied, 342 Conn. 909, 271 A.3d 663 (2022).

The jurisdictional issue raised by the state 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.... 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

[279 A.3d 855]

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.... In determining whether it is plausible that the defendant's motion challenged the sentence, rather than the underlying trial or conviction, we consider the nature of the specific legal claim raised therein." (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. Evans , 329 Conn. 770, 783–85, 189 A.3d 1184 (2018), cert. denied, ––– U.S. ––––, 139 S.Ct. 1304, 203 L.Ed.2d 425 (2019).

The defendant's claim attacks his convictions for felony murder and manslaughter. Because the claim challenges the proceeding leading up to the underlying conviction rather than the sentence or the sentencing proceeding, it does not fall within the purview of Practice Book § 43-22. See, e.g., State v. Holmes , supra, 209 Conn. App. at 204, 267 A.3d 348 ("[s]imply put, our law is clear that motions to correct an illegal sentence that attack the conviction or the proceedings leading up to the conviction are not within the trial court's jurisdiction on a motion to correct an illegal sentence"). Accordingly, the trial court does not have subject matter jurisdiction over such a claim. See State v. Wright , 107 Conn. App. 152, 157, 944 A.2d 991 (claim that sentence...