State v. Coleman

• Decision Date: 25 May 2021
• Docket Number: AC 42911
• Citation: 204 Conn.App. 860,254 A.3d 938
• Parties: STATE of Connecticut v. Christopher COLEMAN
• Court: Connecticut Court of Appeals

204 Conn.App. 860

254 A.3d 938

STATE of Connecticut

v.Christopher COLEMAN

AC 42911

Appellate Court of Connecticut.

Argued October 21, 2020

officially released May 25, 2021

Judie Marshall, for the appellant (defendant).

Linda F. Currie-Zeffiro, senior assistant state's attorney, with whom, on the brief, were Joseph T. Corradino, state's attorney, and C. Robert Satti, Jr., supervisory assistant state's attorney, for the appellee (state).

Alvord, Prescott and Moll, Js.

ALVORD, J.

The defendant, Christopher Coleman, appeals from the judgment of the trial court granting his motion to correct an illegal sentence and imposing a new sentence. On appeal, the defendant claims that (1) his newly imposed sentence violates the multiple punishment prohibition of the double jeopardy clause of the fifth amendment to the United States constitution and the Connecticut constitution¹ because he had completed the lawful portion of his sentence at the time of his resentencing, (2) the court lacked jurisdiction to resentence him after the lawful portion of his sentence had been served, and (3) the newly imposed sentence violated his due process rights under the federal and state constitutions. We disagree with the defendant's claims.

The state, in its appellate brief, concedes that the defendant's new sentence is illegal because the court imposed an eleven year period of special parole on the charge of promoting a minor in an obscene performance, which exceeds the ten year special parole limitation set forth in General Statutes § 54-125e (c). The defendant agrees and, in his reply brief, argues that this court has the authority to correct the defendant's sentence. We agree with the parties that the defendant's new sentence is illegal and, accordingly, we reverse the judgment of the trial court and remand the case for resentencing.

The record reflects the following procedural history that is relevant to this appeal. On June 12, 2003, pursuant to a plea agreement, the defendant pleaded guilty under the Alford doctrine² to one count of promoting a minor in an obscene performance in violation of General Statutes § 53a-196b, two counts of risk of injury to a child in violation of General Statutes (Rev. to 2001) § 53-21 (a) (1), one count of sexual assault in the second degree in violation of General Statutes (Rev. to 2001) § 53a-71 (a) (1), one count of possession of child pornography in violation of General Statutes (Rev. to 2001) § 53a-196d, and one count of cruelty to persons in violation of General Statutes (Rev. to 2001) § 53-20.

On July 15, 2003, the parties appeared before the trial court, Damiani, J. The court first noted that "[t]he agreed upon sentence ... was nine years in jail to run consecutive to his present sentence, followed by twenty-five years of special parole."

The court offered the parties the opportunity to be heard and then sentenced the defendant as follows: (1) for the charge of promoting a minor in an obscene performance, nine years of imprisonment, (2) for the charge of risk of injury to a child, nine years of imprisonment, (3) for the charge of risk of injury to a child, nine years of imprisonment, (4) for the charge of sexual assault in the second degree, one year of imprisonment, nine months of which was mandatory, followed by twenty-five years of special parole, (5) for the charge of possession of child pornography, five years of imprisonment, and (6) for the charge of cruelty to persons, one year of imprisonment. The trial court ordered the sentences to run concurrently, resulting in a total effective sentence of nine years of imprisonment, nine months of which was mandatory, followed by twenty-five years of special parole. The sentence was ordered to run consecutively to a sentence that the defendant was already serving.

On November 19, 2018, the defendant filed a motion to correct his sentence pursuant to Practice Book § 43-22.³ In his motion, he argued that his sentence was illegal because the total sentence imposed for the charge of sexual assault in the second degree, one year of imprisonment followed by twenty-five years of special parole, exceeded the statutory maximum penalty available for that offense.⁴ The defendant cited State v. Tabone , 279 Conn. 527, 533, 902 A.2d 1058 (2006), in which our Supreme Court concluded that a sentence in which the total length of the term of imprisonment and period of special parole combined exceeds the maximum sentence of imprisonment violates General Statutes § 54-128 (c).⁵

On December 19, 2018, the parties appeared before the court, Devlin, J. , on the motion to correct. The court stated: "We discussed this in chambers, and I think there are problems with the sentence that Judge Damiani imposed." Noting that the parties wished to file memoranda, the court continued the matter to January 30, 2019.

On January 22, 2019, the state filed a memorandum of law in opposition to the defendant's motion to correct an illegal sentence. The state agreed that the original sentence was illegal, pursuant to State v. Tabone , supra, 279 Conn. at 533, 902 A.2d 1058, but contended that the court had "the authority under the aggregate sentencing theory to resentence the defendant to the same sentence that Judge Damiani did in 2003."⁶

On January 28, 2019, the defendant filed an amended motion to correct an illegal sentence, dated January 16, 2019. In his motion, he argued that his sentence was illegal "in that the one year of incarceration that he received on the charge of sexual assault in the second degree does not render him eligible for any period of special parole whatsoever," pursuant to General Statutes § 54-125e (a).⁷ He alleged that § 54-125e (a) "supplies the trial court's statutory authority to impose special parole [and] expressly conditions that authority on the receipt of a ‘definite sentence of more than two years’ ...." The defendant maintained that resentencing him to apportion the special parole among the other charges "(1) violates the [d]ouble [j]eopardy [c]lauses of the state and federal constitutions, (2) exceeds the trial court's jurisdiction, and (3) violates the [d]ue [p]rocess [c]lauses of the state and federal constitutions." The defendant requested that the court strike the period of special parole imposed.

The court, Devlin, J. , held argument on the motion on January 30, 2019. At the conclusion of oral argument, the court, noting that both parties agreed that the sentence imposed was "not in conformance with the statutory structure," set the matter down for a resentencing. The court stated: "And in the resentencing it will either be the suggestion made by the defense, which is essentially [to] vacate the special parole order and then essentially transform the sentence into a nine year flat sentence. Or attempt to, if possible, implement this aggregate package theory to try and, if not achieve, approximate what Judge Damiani intended, which was the agreed sentence of nine years followed by twenty-five years of special parole."

On March 8, 2019, the state filed a supplemental memorandum of law in opposition to the defendant's amended motion to correct an illegal sentence. In its supplemental memorandum, the state argued that double jeopardy did not preclude a resentencing because the defendant had not completed his sentence. Next, the state argued that the "defendant bargained for and received what he asked for—a [nine] year jail sentence and [twenty-five] years of special parole," and that a defendant's due process rights are not violated when the court corrects an illegal sentence, so long as the new sentence is not more severe than the original sentence. Finally, the state argued that the court retained jurisdiction to correct the defendant's sentence. The state requested that the court "restructure the sentences to reflect the original intent of Judge Damiani by resentencing the defendant to the same total effective sentence."

The parties again appeared before the court, Devlin, J. , on March 13, 2019. Following additional oral argument, the court determined that the defendant's sentence of one year of incarceration followed by twenty-five years of special parole was illegal and granted the defendant's motion to correct. The court noted that "this was part of a plea agreement in which [the defendant] agreed to a total sentence of nine years followed by twenty-five years of special parole. The manner in which the court sought to implement that agreed sentence was illegal, but there's nothing illegal about a plea bargain of nine years followed by twenty-five years of special parole."

The court vacated the defendant's sentence and, in an effort to achieve the same total effective sentence that Judge Damiani had imposed, resentenced him to the following: (1) for the charge of promoting a minor in an obscene performance, three years of imprisonment, followed by eleven years of special parole, (2) for the charge of risk of injury to a child, three years of imprisonment, followed by seven years of special parole, (3) for the charge of risk of injury to a child, three years of imprisonment, followed by seven years of special parole, (4) for the charge of sexual assault in the second degree, one year of imprisonment, (5) for the charge of possession of child pornography, five years of imprisonment, and (6) for the charge of cruelty to persons, five years of imprisonment. The court ordered the sentences on the first three counts, which all involved special parole, to run consecutively to each other. It ordered the sentences on the last three counts to run concurrent with each other and concurrent with the effective sentence on the first three counts. The result was a total effective sentence of nine years of incarceration, followed by twenty-five years of special parole. This appeal followed.

I

The defendant first claims on appeal that the court's restructuring of his sentence violates the multiple punishment prohibition of the double jeopardy clause because, at...