State v. Turner

214 Conn.App. 584

280 A.3d 1278

STATE of Connecticut

v.Corey TURNER

AC 44806

Appellate Court of Connecticut.

Argued May 17, 2022

Officially released August 23, 2022

Corey Turner, self-represented, the appellant (defendant).

Jordan C. Levin, certified legal intern, with whom were Michele C. Lukban, senior assistant state's attorney, and, on the brief, Sharmese L. Walcott, state's attorney, and Vicki Melchiorre, supervisory assistant state's attorney, for the appellee (state).

Bright, C. J., and Elgo and Cradle, Js.

CRADLE, J.

The self-represented defendant, Corey Turner, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence pursuant to Practice Book § 43-22. On appeal, the defendant claims (1) that the court erred in dismissing his motion to correct an illegal sentence, in which he alleged that the sentencing court made materially false assumptions about his potential for rehabilitation, for failure to state a colorable claim, and (2) he is entitled to an evidentiary hearing to present expert testimony on juvenile brain science in support of his motion to correct. We agree with the defendant's contention that the court improperly dismissed his motion to correct on the ground that he failed to state a colorable claim but, nevertheless, conclude that the defendant was not entitled to a new sentencing hearing on the basis of the ground alleged in his motion. Additionally, we disagree with the defendant's assertion that he was entitled to an evidentiary hearing. Accordingly, the form of the trial court's judgment is improper in that the court should have denied, rather than dismissed, the defendant's motion to correct an illegal sentence.

The record reflects the following relevant procedural history. On August 8, 1997, the defendant was convicted, following a jury trial, of murder in violation of General Statutes § 53a-54a, and assault in the first degree in violation of General Statutes § 53a-59. At the time he committed the underlying offenses in 1995, the defendant was twenty-one years old.

On October 10, 1997, the court, Koletsky, J. , held a sentencing hearing. At the hearing, the court noted: "Your record is not the worst I've seen, but it indicates a very poor rehabilitative potential. You're bright and

you're able, but you have yet to demonstrate any willingness to live within the norms of our society, and that makes you a dangerous item on the street. The nature of the crime itself is vicious; it's premeditated; it's an ugly crime. It's a murder by ambush and an assault by ambush, from behind in the middle of the night—midnight. And it's on a crowded, active street, with people all around. There is no more—there is no crime that attacks the very fabric of society, where people are entitled to live on a street without bullets suddenly flying through the air. The crime is serious indeed." After considering these factors, the court sentenced the defendant to sixty years of incarceration. Our Supreme Court affirmed the judgment of conviction on direct appeal. State v. Turner , 252 Conn. 714, 750, 751 A.2d 372 (2000).

On September 3, 2019, the defendant filed a motion to correct an illegal sentence, pursuant to Practice Book § 43-22.¹ The defendant subsequently filed an amended motion on February 23, 2021, in which he argued that "[t]he sentencing court's conclusion that the defendant's prior criminal history was an indicator of his future rehabilitative potential ... [was] a materially false assumption rendering the entire sentencing procedure invalid as a violation of due process."² Citing United States v. Malcolm , 432 F.2d 809, 816 (2d Cir. 1970), the defendant claimed that, "when contrasted with the brain science underlying the continuous growth and development of young adults during late

adolescence, the sentencing court's assumptions regarding the defendant's future rehabilitative potential [were] materially false in violation of his right to due process." (Footnote omitted.) The defendant contended that he was entitled to a resentencing hearing because the due process clause of the fourteenth amendment to the United States constitution requires that he be permitted to introduce evidence, including expert testimony, demonstrating that juvenile criminal records are not indicative of rehabilitative potential.

The state filed its response to that motion on March 26, 2021, in which it countered that the sentencing court acted within its discretion in conducting an inquiry into the defendant's prior criminal record and relied only on materially accurate facts therefrom. Further, the state argued that Miller v. Alabama , 567 U.S. 460, 480, 132 S. Ct. 2455, 183 L.Ed.2d 407 (2012) —which requires that a sentencing court consider youth related mitigating factors if it imposes a sentence of life imprisonment, or its functional equivalent, without parole, on a juvenile defendant—did not apply to the defendant because he was twenty-one years old at the time of the offense.

After hearing argument from both parties on March 31, 2021, the court, Graham, J. , dismissed the motion to correct, concluding that "the sentencing court properly relied upon the defendant's criminal record." The court explained: "In essence, the defendant has focused on only one factor out of multiple factors that the sentencing court used to determine his sentence and the defendant has done so to the exclusion of the others. The defendant argues that the court was subjectively wrong in its conclusion, but has not challenged the accuracy of his prior criminal record, which was a factual predicate for the sentencing court's conclusion.

"The defendant has tried to do, what I will characterize, as use the side door into a Miller argument. However, the defendant was twenty-one years of age at the

time of the crime, an age which entitles him to no special consideration under the Miller line of cases.

"In short, the defendant has failed to state a colorable claim for relief with regard to his sentence falling within the parameters of Practice Book [§] 43-22. Therefore, the court has no choice but to dismiss his motion to correct." (Citation omitted.) This appeal followed.

We begin by setting forth the relevant standard of review and relevant legal principles. "The issue of whether a defendant's claim may be brought by way of a motion to correct an illegal sentence, pursuant to Practice Book § 43-22, involves a determination of the trial court's subject matter jurisdiction and, as such, presents a question of law over which our review is plenary." (Footnote omitted; internal quotation marks omitted.) State v. Vivo , 197 Conn. App. 363, 368–69, 231 A.3d 1255 (2020).

Our Supreme Court recently clarified the jurisdictional requirements to raise a colorable claim in a motion to correct an illegal sentence. "A trial court generally has no authority to modify a sentence but retains limited subject matter jurisdiction to correct an illegal sentence or a sentence imposed in an illegal manner. ... Practice Book § 43-22 codifies this common-law rule. ... Therefore, we must decide whether the defendant has raised a colorable claim within the scope of Practice Book § 43-22 .... In the absence of a colorable claim requiring correction, the trial court has no jurisdiction ...." (Footnote omitted; internal quotation marks omitted.) State v. Myers , 343 Conn. 447, 459, 274 A.3d 100 (2022). "[T]o raise a colorable claim within the scope of Practice Book § 43-22, the legal claim and factual allegations must demonstrate a possibility that the defendant's claim challenges his or her sentence or sentencing proceedings, not the underlying conviction. The ultimate legal correctness of the

claim is not relevant to our jurisdictional analysis." State v. Ward , 341 Conn. 142, 153, 266 A.3d 807 (2021).³ "[T]he jurisdictional 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." (Internal quotation marks omitted.) State v. Myers , supra, at 459, 274 A.3d 100. Stated otherwise, where a defendant's motion to correct "plausibly [challenges] the defendant's sentence," that claim is "colorable," and the court has subject matter jurisdiction over that claim even where "the [claim has ] no merit ." (Emphasis added.) Id., at 459–60, 274 A.3d 100.

On appeal, the defendant claims that the court improperly dismissed his motion to correct an illegal sentence for failure to state a colorable claim.⁴ Because

the defendant's motion to correct plausibly challenged his sentence, rather than his underlying conviction, we agree that the court had jurisdiction to consider the defendant's motion to correct an illegal sentence and, therefore, that the dismissal was improper. See State v. Ward , supra, 341 Conn. at 153, 266 A.3d 807. Indeed, the defendant's claim is predicated upon the theory that the sentencing court impermissibly failed to properly consider his potential for rehabilitation when imposing the sixty year sentence of incarceration. Under Ward , this meets the threshold for subject matter jurisdiction. See id. Although we conclude that the defendant has set forth a colorable claim properly invoking the trial court's subject matter jurisdiction, we further conclude that, because the defendant's claim relies on the theory of youth related brain science set forth in Miller and its progeny, for purposes of sentence mitigation, he cannot prevail on his motion to correct an illegal sentence.⁵

We begin with the holding in Miller and how it has been applied by our Supreme Court and this court. Miller highlighted that "developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds—for example, in parts of the brain involved in behavior control. ... [The Supreme Court of the United States] reasoned that those findings—of transient rashness, proclivity for risk, and inability to assess...