State v. Abraham

• Decision Date: 09 September 2014
• Docket Number: No. 35706.,35706.
• Citation: 99 A.3d 1258,152 Conn.App. 709
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Matthew L. ABRAHAM.

152 Conn.App. 709

99 A.3d 1258

STATE of Connecticut

v.Matthew L. ABRAHAM.

No. 35706.

Appellate Court of Connecticut.

Argued May 27, 2014.

Decided Sept. 9, 2014.

Matthew L. Abraham, self-represented, the appellant (defendant).

Toni M. Smith–Rosario, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Kevin C. Doyle, senior assistant state's attorney, for the appellee (state).

KELLER, PRESCOTT and SULLIVAN, Js.

Opinion

KELLER, J.

The defendant, Matthew L. Abraham, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. On appeal, the defendant argues that the court improperly dismissed his motion for lack of subject matter jurisdiction. We agree with the defendant's jurisdictional argument and reverse the judgment of the trial court and remand the case for a new hearing on the defendant's motion.

The following facts and procedural history are relevant to this appeal. In State v. Abraham, 84 Conn.App. 551, 854 A.2d 89, cert. denied, 271 Conn. 938, 861 A.2d 514 (2004), this court set forth the facts that the jury reasonably could have found from the evidence presented at the defendant's criminal trial: “On March 28, 2001, Marquis Bailey and several of his friends assaulted the victim, Marcelino Rivera. Bailey took the victim's [cell phone]. The victim attempted to retrieve the [cell phone] from Bailey by telling him that ‘he just wanted to end it.’ Bailey taunted the victim by using the [cell phone] in front of him and attempted to leave in a taxi. The victim opened the door of the taxi and kicked Bailey in the face. A scuffle ensued. The taxi driver interceded and separated the two men. When the taxi drove away, Bailey still possessed the victim's [cell phone].

“The following day, the victim and some of his friends drove to the area of Chapel Park in New Haven. The victim called Bailey, asking him to return his [cell phone]. Bailey responded that the victim had to ‘give him some money’ to get his [cell phone]. The victim told Bailey that he was ‘gonna get savaged if [he did not] give the phone back,’ or, in other words, he was going to ‘beat up’ Bailey. The victim's friend, Luis Segarra, told Bailey to ‘come to the park’ and ‘give up the phone.’ ... Bailey, the defendant and three other men went to the park. Before arriving at the park, they stopped at a residence ... where the defendant, who was aware of the previous physical altercations between the victim and Bailey, retrieved a gun from the garage. At the park, the victim asked Bailey for his [cell phone], but Bailey responded that he would have to pay for its return. A scuffle ensued between Bailey and Segarra. The victim intervened with a metal baseball bat, which he had hidden against the rear bumper of Segarra's car. The victim swung the bat at Bailey, hitting him on either the upper portion of his body or his head. The defendant pulled out the gun and fired one shot at the victim. The victim dropped the bat and began to run. The defendant fired a second shot which struck the victim and severed an artery in his lung. The victim bled to death at the scene.” Id. at 552–53, 854 A.2d 89.

In the first part of the information, the defendant was charged with murder in violation of General Statutes § 53a–54a and criminal possession of a pistol or revolver in violation of General Statutes § 53a–217c. He also was notified in the second part of the information, part B, that the state intended to seek an enhancement of his sentence, pursuant to General Statutes § 53–202k,¹ if he were to be convicted of the commission of a class A, B or C felony with a firearm. On August 5, 2002, following a jury trial, the defendant was convicted of the lesser included offense of manslaughter in the first degree with a firearm, in violation of General Statutes § 53a–55a (a),² a class B felony, and criminal possession of a pistol or revolver.

After the jury found the defendant guilty of these charges, the defendant's trial counsel, Attorney Thomas Conroy, advised the criminal trial court that he “would stipulate that the elements of the part B [information] have been proven. There's no point in submitting them to a jury ... just as a matter of law.” The court, Licari, J., then addressed the defendant's counsel: “I think that we ... spoke about this before, and my understanding, at this point, based on those verdicts, that you are in agreement, Mr. Conroy, that without any further inquiries of the jury as required by [State v. Velasco, 253 Conn. 210, 751 A.2d 800 (2000) ],³ that the conviction of manslaughter in the first degree—intentional manslaughter with a firearm satisfies all the elements of the part B information as a matter of law, and therefore that no further inquiry of the jury is correct; am I correct in that statement, sir?” (Footnote added.) Defense counsel responded, “Yes, Your Honor,” and the court then stated, “All right. And therefore, the court will make a finding of guilty under the part B [information] as well.”

The court sentenced the defendant to a total effective term of forty years of incarceration, suspended after thirty years, with five years of probation. The defendant's sentence included a consecutive five year enhancement, pursuant to § 53–202k, that was based on his conviction of manslaughter in the first degree with a firearm. This court affirmed the judgment of conviction on appeal; State v. Abraham, supra, 84 Conn.App. at 552, 854 A.2d 89 ; and our Supreme Court denied the defendant's petition for certification to appeal. State v. Abraham, 271 Conn. 938, 861 A.2d 514 (2004). The defendant also filed a petition for a writ of habeas corpus, alleging ineffective assistance of counsel, which was denied by the habeas court and dismissed by this court on appeal. See Abraham v. Commissioner of Correction, 118 Conn.App. 901, 982 A.2d 657 (2009), cert. denied, 294 Conn. 925, 985 A.2d 1061 (2010). The defendant raised no issue regarding his sentence enhancement under § 53–202k in either his direct appeal or his habeas petition.

On December 2, 2011, the defendant, pursuant to Practice Book § 43–22, filed a “Motion to Correct an Illegal Sentence or Other Illegal Disposition,” raising two grounds. First, he claimed that the imposition of the sentence enhancement under § 53–202k was illegal because the jury was never asked to find the statutory elements justifying an enhancement prior to the court's applying the enhancement to his sentence. Second, the defendant argued that he had been sentenced illegally to twice the number of years permitted under § 53–202k.

On May 9, 2012, the trial court, Fasano, J., held a hearing on the defendant's motion. The court noted that a public defender had conducted a review of the defendant's motion under State v. Casiano, 282 Conn. 614, 627–28, 922 A.2d 1065 (2007), and concluded that the motion had no merit. Consequently, the court permitted the withdrawal of a special assistant public defender, Joseph E. Lopez, who had filed an appearance for the defendant for the limited purpose of conducting the Casiano review. The defendant then proceeded to represent himself.⁴

On May 10, 2012,⁵ the court filed a written memorandum of decision. The court first indicated that, at the hearing, the defendant had expressly withdrawn the second claim in his motion, which was that the length of his sentence enhancement exceeded that permitted under § 53–202k. With regard to the defendant's first claim, which was that he was entitled to a jury finding on the part B information before his sentence could be enhanced under § 53–202k, the court decided that it lacked jurisdiction over what it concluded was “a claim of alleged trial error involving the failure of the jury to find facts in connection with the enhancement statute” and dismissed the defendant's motion.⁶ This appeal followed.

I

First, we address the claim raised by the defendant on appeal that the court erroneously dismissed the motion to correct an illegal sentence for lack of subject matter jurisdiction. 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. See State v. Koslik, 116 Conn.App. 693, 697, 977 A.2d 275, cert. denied, 293 Conn. 930, 980 A.2d 916 (2009).

“Jurisdiction involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created.... Article fifth, § 1 of the Connecticut constitution proclaims that [t]he powers and jurisdiction of the courts shall be defined by law, and General Statutes § 51–164s provides that [t]he superior court shall be the sole court of original jurisdiction for all causes of actions, except such actions over which the courts of probate have original jurisdiction, as provided by statute.... The Superior Court is a constitutional court of general jurisdiction.... In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law.” (Citations omitted; internal quotation marks omitted.) State v. Lawrence, 281 Conn. 147, 153, 913 A.2d 428 (2007).

Practice Book § 43–22, which establishes the procedure for correcting an illegal sentence, provides that “[t]he 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.”

“Practice Book rules do not ordinarily define subject matter jurisdiction. General Statutes § 51–14(a) authorizes the judges of the Superior Court to promulgate rules regulating pleading, practice and procedure in judicial proceedings.... Such rules shall not abridge, enlarge or modify any substantive right nor the jurisdiction of any of...