Cobham v. Commissioner of Correction

• Decision Date: 11 September 2001
• Docket Number: (SC 16393)
• Citation: 779 A.2d 80,258 Conn. 30
• Court: Connecticut Supreme Court
• Parties: VERNON L. COBHAM v. COMMISSIONER OF CORRECTION

258 Conn. 30

779 A.2d 80

VERNON L. COBHAM v. COMMISSIONER OF CORRECTION

(SC 16393)

Supreme Court of Connecticut.

Argued May 24, 2001.

Officially released September 11, 2001.

Borden, Norcott, Katz, Palmer and Vertefeuille, JS. Temmy Ann Pieszak, chief of habeas corpus services, with whom was Margaret E. Flynn, deputy assistant public defender, for the appellant (petitioner).

Harry Weller, senior assistant state's attorney, with whom, on the brief, were Walter Flanagan, state's attorney, and Angela Macchiarulo, assistant state's attorney, for the appellee (respondent).

Opinion

VERTEFEUILLE, J.

The dispositive issue in this appeal is whether a petition for habeas corpus is an appropriate means by which a defendant can challenge the legality of his sentence. The petitioner, Vernon L. Cobham, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus.¹ He claims that the habeas court improperly concluded that the sentence that had been imposed by the trial court in his underlying criminal trial was lawful and in compliance with the plea agreement between the petitioner and the state. We conclude that the petitioner prematurely brought this petition for a writ of habeas corpus, rather than directly appealing the sentence or moving the trial court, pursuant to Practice Book § 43-22,² to correct the sentence. Accordingly, we affirm the habeas court's judgment dismissing the petition.

The record discloses the following relevant facts and procedural history. On January 21, 1993, the petitioner, pursuant to his plea agreement with the state,³ entered written pleas of nolo contendere to the charges of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2),⁴ and burglary in the first degree in violation of General Statutes § 53a-101 (a) (1).⁵ The petitioner also agreed to a sentence pursuant to which he would serve a total effective prison term of fourteen years.⁶

Pursuant to Practice Book § 39-19,⁷ the trial court, as part of its plea canvass, informed the petitioner that the counts to which he had pleaded were class B felonies, and, thus, each count individually carried maximum penalties of twenty years imprisonment and/or fines of $10,000. The trial court also explained that each count individually carried a mandatory minimum sentence of five years incarceration, which could not be suspended.⁸ Thereafter, the trial court sentenced the petitioner to serve two concurrent terms of fourteen years incarceration. The trial court noted for the record that the petitioner had to serve, for each count, the mandatory minimum of five years incarceration as required under §§ 53a-134 (b) and 53a-101 (c). The petitioner's mittimus indicated that he was required to serve two concurrent terms of fourteen years incarceration with a minimum mandatory sentence of ten years. The petitioner did not object to the sentence imposed, move to withdraw his plea of nolo contendere, or file an appeal.

More than three years later, the issue of whether the department of correction (department) properly understood the defendant's sentence was brought to the trial court's attention. Specifically, Louis Pace, the clerk of the geographical area court, notified the trial court that the department was considering the release of the petitioner after he had served five years of his sentence. The trial court held a hearing on October 7, 1996, at which Pace testified that he had brought the matter to the trial court's attention because he believed that the department's view of the petitioner's sentence differed from the sentence that the trial court had imposed.

The trial court subpoenaed Mary Jane Steele, a record specialist in the department, to testify at the hearing with regard to the petitioner's sentence. Steele testified that she had reviewed the petitioner's sentence and stated that, based on his fourteen year sentence, the petitioner would be eligible for parole in July, 2002, having then served one half of his sentence, or seven years. The trial court responded that Steele's estimated parole eligibility date was incorrect because it had sentenced the petitioner to serve consecutively the two five year minimum sentences, thereby requiring him to serve a minimum mandatory sentence of ten years.

The trial court also subpoenaed John Sieminski, a counselor supervisor in the department, to testify with regard to the petitioner's sentence. Sieminski testified that according to his interpretation of the mittimus, the trial court had sentenced the petitioner to two concurrent fourteen year terms and that the petitioner had to serve consecutively each of the two mandatory minimum sentences of five years by the court's direction. Sieminski also testified, however, that he had doubts about the validity of the mittimus because he previously had not seen such a sentence with regard to the mandatory minimum sentences.⁹

In light of the apparent confusion with regard to the petitioner's sentence, the trial court clarified its intention in imposing the sentence: "It was clearly the intention of the court ... [that] [o]n each count [the petitioner] be sentenced to fourteen years. The two counts were to run concurrently. On each of the mandatory minima, he was sentenced to the mandatory minimum five year sentence. Those two sentences are to run consecutively. The effective sentence is fourteen years to serve. The mandatory minimum in consecutive terms is ten years to serve. That was the intent [of the trial court], that's what was said, apparently not clearly enough to satisfy everyone, but it's being clarified now." After the trial court clarified the sentence, the petitioner did not object to the clarified sentence, move to withdraw his plea of nolo contendere, or file an appeal.

The petitioner thereafter filed an amended petition for a writ of habeas corpus, claiming that the judgment mittimus was inconsistent with the trial court's pronouncement of judgment and the law because it ordered him to serve consecutively the two minimum mandatory sentences.¹⁰ The petitioner contended that because he was incarcerated in accordance with an illegal sentence, his confinement was unlawful. He also asserted that he had raised this claim previously before the trial court during the hearing on October 7, 1996, and that the court had refused to correct the sentence. The petitioner requested the habeas court to correct his sentence to require him to serve a total effective sentence of fourteen years, five years of which were mandatory. The respondent, the commissioner of correction, thereafter filed an answer denying the allegations of the petition. Additionally, the respondent asserted that the petitioner's claim was procedurally defaulted because he had failed to raise his claim before the trial court during sentencing, subsequent to sentencing pursuant to Practice Book § 43-22; see footnote 2 of this opinion; or on direct appeal. The respondent also claimed that the petitioner could not establish cause for the procedural default, nor prejudice that would excuse the procedural default.¹¹ Thus, the respondent contended, the petitioner's claim should not be reviewed for the first time during a habeas corpus proceeding.

The petitioner filed a reply, claiming that the respondent could not assert a defense of procedural default because the petitioner had raised the issue of his illegal sentence, albeit off the record, to the trial court. The petitioner also claimed that § 43-22 did not act as a procedural bar to his claim because it contained no time limitations concerning when he must file a motion to correct an illegal sentence. Finally, the petitioner maintained that the respondent could not assert a defense of procedural default because he was not seeking to vacate his plea or to reverse his conviction.

After a hearing, the habeas court, finding that it properly could hear the petition, dismissed the petition, concluding that the trial court, by imposing a nonsuspendable minimum sentence of ten years, properly had sentenced the petitioner and correctly had followed the plea agreement between the petitioner and the state.¹² This appeal followed.

The petitioner claims that the habeas court improperly dismissed his petition for a writ of habeas corpus to correct his allegedly illegal sentence. Specifically, the petitioner maintains that the habeas court improperly: (1) dismissed his petition in light of the legally and logically impossible sentence imposed by the trial court, which requires the petitioner to serve two concurrent sentences while simultaneously requiring him to serve consecutively the two mandatory minimum sentences; (2) concluded that the statutory language of the crimes to which he had pleaded nolo contendere required that he serve the mandatory minimum sentences consecutively; (3) concluded that the sentence imposed by the trial court constituted specific performance of the plea agreement between him and the state; and (4) concluded, without supporting evidence, that the trial court had made clear its intent that the mandatory minimum sentences were to be imposed consecutively and that such imposition would not affect the calculation of the petitioner's eligibility for parole or time of release. We decline to reach the merits of any of the petitioner's claims, however, due to a procedural default, in that the petitioner prematurely has challenged his sentence before the habeas court.

This court has held that the jurisdiction of the sentencing court terminates once a defendant's sentence has begun, and, therefore, that court may no longer take any action affecting a defendant's sentence unless it expressly has been authorized to act. State v. Walzer, 208 Conn. 420, 424-25, 545 A.2d 559 (1988); see also State v. Mollo, 63 Conn. App. 487, 490, 776 A.2d 1176, cert. denied, 257 Conn. 904, 777 A.2d 194 (2001); State v. Tuszynski, 23 Conn. App. 201, 206, 579 A.2d 1100 (1990)....