State v. Syms

200 Conn.App. 55

238 A.3d 135

STATE of Connecticut

v.Marlon SYMS

AC 42346

Appellate Court of Connecticut.

Argued June 15, 2020

Officially released September 15, 2020

David B. Bachman, assigned counsel, for the appellant (defendant).

Brett R. Aiello, deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Richard R. Rubino, senior assistant state's attorney, for the appellee (state).

Keller, Prescott and Devlin, Js.

DEVLIN, J.

The defendant, Marlon Syms, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant claims that (1) his sentencing violated his rights to due process under both the United States and Connecticut constitutions because the sentencing court did not ensure that his guilty pleas were knowing and voluntary, and (2) his sentence, consisting of a term of incarceration followed by a period of special parole, violated the federal constitutional protection against double jeopardy. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant's claims on appeal. On March 19, 2009, in the Hartford judicial district, the defendant entered guilty pleas under the Alford doctrine¹ to one count of robbery in the first degree in violation of General Statutes § 53a-134(a)(4), and one count of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134(a)(4). The

plea agreement provided for a sentence of incarceration ranging between ten and twenty years, subject to the discretion of the sentencing court. The plea agreement further provided that, if the court imposed a period of incarceration of less than twenty years, it could impose a period of special parole provided that the period of incarceration and special parole did not cumulatively exceed twenty years. The court, Gold, J ., canvassed the defendant on his pleas, accepted them, and entered findings of guilty on both charges.

The defendant's sentencing hearing occurred on June 24, 2009, in Hartford. During the hearing, defense counsel informed the court that the defendant was then serving a two year sentence imposed in July, 2008, in an unrelated case, in the judicial district of Tolland at Rockville. Defense counsel requested that the Hartford sentence run concurrently with the Rockville sentence. The court imposed a sentence of fourteen years of incarceration followed by six years of special parole on each of the counts to run concurrently with each other. The court further ordered that the Hartford sentence would run consecutively to the Rockville sentence that the defendant was already serving.

The defendant never moved to withdraw his plea, and he did not file a direct appeal challenging the validity of his plea. In 2010, he filed a petition for a writ of habeas corpus, asserting that his attorney had rendered ineffective assistance because he did not advise him of the risk that his robbery sentence in Hartford could run consecutively to the sentence he was serving that was imposed in Rockville. The habeas court denied the petition, ruling that the defendant had not proved prejudice under the standard set forth in Hill v. Lockhart , 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985),²

because, even if his attorney had advised him of the risk, he still would have pleaded guilty to the charges. This court affirmed that decision. Syms v. Commissioner of Correction , 153 Conn. App. 904, 100 A.3d 473, cert. denied, 315 Conn. 905, 104 A.3d 758 (2014).

On March 8, 2018, the defendant filed an amended motion to correct an illegal sentence, arguing that the plea agreement required his sentence in this matter to run concurrently with his previous two year sentence.³ On June 8, 2018, the trial court, Baldini, J ., held a hearing on the motion. At the hearing, the defendant also argued that, by imposing a sentence that included both a period of incarceration and special parole, the trial court had violated the constitutional prohibition against double jeopardy. The trial court denied the defendant's motion. The court found that whether the Hartford sentence would run concurrently or consecutively to the Rockville sentence was not addressed in the plea agreement. The court also ruled that the sentence imposed was expressly authorized by General Statutes § 53a-28(b)(9) and did not violate the double jeopardy clause or exceed the maximum statutory penalties. This appeal followed.

The following principles govern our review of a trial court's decision on a motion to correct an illegal sentence. "It is axiomatic that, in a criminal case, the jurisdiction of the sentencing court terminates once a defendant's sentence has begun and a court may no longer take any action affecting a sentence unless it expressly has been authorized to act.... Providing such authorization to act, Practice Book § 43-22 states: The 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." (Internal quotation marks omitted.) State v. Starks , 121 Conn. App. 581, 585–86, 997 A.2d 546 (2010). "An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is inherently contradictory." (Internal quotation marks omitted.) Id., at 586, 997 A.2d 546. With these principles in mind, we address the defendant's claims in turn.

I

The defendant first claims that the court violated his due process rights by accepting his guilty pleas without advising him that his sentence could run consecutively to the unrelated sentence he was then serving. As a result of this omission in the plea canvass, the defendant asserts, his guilty pleas were not knowing and voluntary. It is undisputed that this claim was not raised in the trial court. Because the defendant did not raise this due process claim in his motion to correct an illegal sentence, it is unpreserved and he seeks review under State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R ., 317 Conn. 773, 781, 120 A.3d 1188 (2015). We conclude that the claim is unreviewable.

In State v. Starks , supra, 121 Conn. App. at 592, 997 A.2d 546, this court held that Golding review of an unpreserved constitutional claim is unavailable in an appeal from the denial of a motion to correct an illegal sentence filed pursuant to Practice Book § 43-22. In Starks , this court reasoned that the extraordinary review of the claim under Golding was unwarranted in an appeal from a motion to correct an illegal sentence because the defendant may seek and obtain any appropriate redress before the trial court by

filing another motion to correct. Id. Accordingly, as in Starks , because declining to review the unpreserved constitutional claim in this case would not result in any hardship or injustice to the defendant, he is not entitled to Golding review of that claim. See id.⁴

II

The defendant also claims that the court improperly concluded that his total effective sentence did not violate the constitutional prohibition against double jeopardy. The state contends that Connecticut law expressly authorizes the sentence imposed on the defendant and, as such, does not violate the prohibition against double jeopardy. We agree with the state.

"A double jeopardy claim ... presents a question of law, over which our review is plenary." (Internal quotation marks omitted.) State v. Bennett , 187 Conn. App. 847, 851, 204 A.3d 49, cert. denied, 331 Conn. 924, 206 A.3d 765 (2019). The double jeopardy clause prohibits multiple punishments for the same offense in a single trial. State v. Hearl , 182 Conn. App. 237, 271, 190 A.3d 42, cert. denied, 330 Conn. 903, 192 A.3d 425 (2018).

This court, in State v. Farrar , 186 Conn. App. 220, 199 A.3d 97 (2018), rejected a due process claim on similar facts on the ground that the sentence was explicitly authorized by § 53a-28(b)(9). Id., at 223, 199 A.3d 97. In Farrar ,

the defendant was sentenced to a total effective term of seven years of incarceration followed by eight years of special parole. Id., at 222, 199 A.3d 97. The defendant filed a motion to correct an illegal sentence, claiming that his sentence was a violation of his constitutional right against double jeopardy. Id. The trial court denied the defendant's motion, and this court affirmed the judgment on the ground that the sentence was explicitly authorized by § 53a-28(b)(9). Id., at 223, 199 A.3d 97. Section 53a-28(b) provides in relevant part that "when a person is convicted of an offense, the court shall impose one of the following ... (9) a term of imprisonment and a period of special parole ...." Accordingly, the court in Farrar held that an imposition of a term of imprisonment and a period of special parole does not constitute an illegal sentence, provided that the term of imprisonment and the term of special parole do not exceed the statutory maximum for the crime of which the defendant was convicted. State v. Farrar , supra, at 223, 199 A.3d 97.

In the present appeal, the same analysis applies. The defendant's sentence does not violate the prohibition against double jeopardy because it is expressly authorized by § 53a-28(b)(9), and his combined period of incarceration and years of special parole—twenty years—does not exceed the maximum statutory sentence for the crimes of which the defendant was convicted.⁵

The defendant heavily relies on State v. Boyd , 272 Conn. 72, 861 A.2d 1155 (2004), to support his double jeopardy claim. Contrary to the defendant's assertion,

the decision in Boyd is not applicable to the appeal now before the court. In Boyd , the defendant received a sentence of two years and one day of incarceration followed by two years of special parole. Id., at 74, 861 A.2d 1155. In...