State v. Brown

• Decision Date: 27 August 2019
• Docket Number: AC 41845
• Citation: 192 Conn.App. 147,217 A.3d 690
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Kenya BROWN

192 Conn.App. 147

217 A.3d 690

STATE of Connecticut

v.Kenya BROWN

AC 41845

Appellate Court of Connecticut.

Argued April 23, 2019

Officially released August 27, 2019

Kenya O. Brown, self-represented, the appellant (defendant).

Bruce R. Lockwood, supervisory assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Edward L. Miller, assistant state's attorney, for the appellee (state).

DiPentima, C. J., and Alvord and Diana, Js.

PER CURIAM.

The self-represented defendant, Kenya Brown, appeals from the trial court's denial of his motion to correct an illegal sentence. On appeal, the defendant claims that (1) General Statutes §§ 53a-37¹ and 53a-38² are ambiguous and contradictory, and (2) § 53a-38 is unconstitutional because it violates his constitutional rights to due process, to be free from double jeopardy, and to equal protection. We reverse the judgment of the trial court only as it relates to the portion of the defendant's motion to correct that advances arguments that do not implicate the sentencing proceeding itself. The court should have dismissed, rather than denied, this portion of the motion. We affirm the judgment of the trial court in all other respects.

The following facts are relevant on appeal. In 2003, the defendant pleaded guilty to attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a, and robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). The defendant was sentenced to a total effective term of twenty years imprisonment. In 2006, in connection with the assault of a fellow inmate, the defendant pleaded guilty to assault in the second degree in violation of General Statutes § 53a-60 (a) (2), and was sentenced to a term of eighteen months of imprisonment to run consecutively to the sentence he was serving for the 2003 convictions. In 2012, in connection with threats the defendant had made in a letter to a judge, the defendant pleaded guilty to threatening in the first degree in violation of General Statutes § 53a-61aa, and was sentenced to a term of fifteen months of imprisonment to run consecutively to his sentences for the 2003 and 2006 convictions.

On January 10, 2018, the self-represented defendant filed a motion to correct an illegal sentence challenging the sentences from his 2006 and 2012 convictions.³ The defendant argued that § 53a-37, governing concurrent and consecutive sentences, and § 53a-38, addressing the method of calculation for those sentences, were ambiguous and contradictory, and violated his constitutional rights to due process, to be free from double jeopardy, and to equal protection. Pursuant to State v. Casiano , 282 Conn. 614, 922 A.2d 1065 (2007), Assistant Public Defender Jenna Carriero reviewed the defendant's motion and reported in writing to the court, Welch, J. , that "no sound basis exist[ed] for either the correction of the defendant's sentence in the manner he outline[d] in his motion, or an appeal of the trial court's denial of that motion." At a hearing on April 27, 2018, the court accepted Attorney Carriero's report and denied the defendant's motion to correct an illegal sentence. This appeal followed.

On appeal, the defendant claims the court erred in denying his motion to correct an illegal sentence. The defendant renews his argument that, as applied to his sentences, §§ 53a-37 and 53a-38 are ambiguous and contradictory and that § 53a-38 violated his constitutional rights to due process, to be free from double jeopardy, and to equal protection. We disagree with the defendant.

We begin by setting forth our standard of review. "A motion to correct an illegal sentence under 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." State v. Casiano , supra, 282 Conn. at 624, 922 A.2d 1065. Practice Book § 43-22 states, "[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." "An illegal sentence ... either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory.... Sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but ... imposed in a way which violates [a] defendant's right ... to be addressed personally at sentencing and to speak in mitigation of punishment ... or his right to be sentenced by a judge relying on accurate information or considerations solely on the record, or his right that the government keep its plea agreement promises .... [These examples are not exhaustive and will evolve to encompass rights or procedures] mandated by state law that are intended to ensure fundamental fairness in sentencing, which, if not followed, could render a sentence invalid." (Citations omitted; internal quotation marks omitted.) State v. Parker , 295 Conn. 825, 839–40, 992 A.2d 1103 (2010). Because the defendant's claims raise questions of statutory interpretation and the constitutionality of statutes, our review is plenary. See State v. Meadows , 185 Conn. App. 287, 302–303, 197 A.3d 464 (constitutionality of statutes subject to plenary review), cert. granted on other grounds, 330 Conn. 947, 196 A.3d 327 (2018) ; State v. Holliday , 118 Conn. App. 35, 39, 982 A.2d 268 (2009) (statutory interpretation subject to plenary review), cert. denied, 295 Conn. 909, 989 A.2d 605 (2010).

I

The defendant first claims that §§ 53a-37 and 53a-38 are "ambiguous and contradictory." Essentially, the defendant's argument on appeal is that because his 2006 and 2012 sentences run consecutively, they adversely affected his original 2003 plea agreement and, therefore, he was not provided fair notice that his ability to seek an early release would be altered accordingly. The state responds that the plain language of the two statutes is neither ambiguous nor contradictory and that the Department of Correction's (department) "changing policies regarding the calculation and structure of prison sentences" is not a cognizable claim on a motion to correct an illegal sentence. We agree with the state.

"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) Smith v. Rudolph , 330 Conn. 138, 143, 191 A.3d 992 (2018).

Accordingly, we now turn to the language of §§ 53a-37 and 53a-38. Section 53a-37 provides: "When multiple sentences of imprisonment are imposed on a person at the same time, or when a person who is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and to the undischarged term or terms in such manner as the court directs at the time of sentence . The court shall state whether the respective maxima and minima shall run concurrently or consecutively with respect to each other, and shall state in conclusion the effective sentence imposed. When a person is sentenced for two or more counts each constituting a separate offense, the court may order that the term of imprisonment for the second and subsequent counts be for a fixed number of years each. The court in such cases shall not set any minimum term of imprisonment except under the first count, and the fixed number of years imposed for the second and subsequent counts shall be added to the maximum term imposed by the court on the first count." (Emphasis added.) Additionally, § 53a-38 (b), which governs the calculation of terms of imprisonment, provides: "A definite sentence of imprisonment commences when the prisoner is received in the custody to which he was sentenced. Where a person is under more than one definite sentence, the sentences shall be calculated as follows: (1) If the sentences run concurrently, the terms merge in and are satisfied by discharge of the term which has the longest term to run; (2) if the sentences run consecutively, the terms are added to arrive at an aggregate term and are satisfied by discharge of such aggregate term. " (Emphasis added.)

Taken together, §§ 53a-37 and 53a-38 (b) are neither ambiguous nor contradictory. The relevant portion of § 53a-37 specifically addresses situations, like the defendant's, where a person is subject to an undischarged term of imprisonment and is subsequently sentenced to an additional term of imprisonment. The plain language of § 53a-37 clearly and unambiguously provides that, in such circumstances, the sentences imposed by the court shall run either concurrently or consecutively, as the court directs at the time of sentence. Additionally, § 53a-38 (b) provides an unambiguous method of calculation to determine the total duration for terms of imprisonment where sentences run concurrently and where sentences run consecutively. Section 53a-38 (b) (2) provides that "if the sentences run consecutively, the terms are added to arrive at an aggregate term and are satisfied by the discharge of such aggregate term." The defendant's...