State v. Gamble

• Citation: 261 A.3d 173,206 Conn.App. 837
• Decision Date: 24 August 2021
• Docket Number: AC 43117
• Parties: STATE of Connecticut v. Hudel Clifton GAMBLE
• Court: Connecticut Court of Appeals

206 Conn.App. 837

261 A.3d 173

STATE of Connecticut

v.Hudel Clifton GAMBLE

AC 43117

Appellate Court of Connecticut.

Argued April 19, 2021

Officially released August 24, 2021

Hudel Clifton Gamble, self-represented, the appellant (defendant).

Thai Chhay, deputy assistant state's attorney, with whom, on the brief, were Ronald G. Weller, senior assistant state's attorney, Patrick Griffin, state's attorney, and Reed Durham, assistant state's attorney, for the appellee (state).

Prescott, Clark and DiPentima, Js.

CLARK, J.

For a trial court to have jurisdiction over a defendant's motion to correct an alleged illegal sentence, the defendant must raise "a colorable claim within the scope of Practice Book § 43-22¹ that would, if the merits of the claim were reached and decided in the defendant's favor, require correction of a sentence.... In the absence of a colorable claim requiring correction, the trial court has no jurisdiction to modify the sentence." (Footnote added; internal quotation marks omitted.) State v. Evans , 329 Conn. 770, 783, 189 A.3d 1184 (2018), cert. denied, ––– U.S. ––––, 139 S. Ct. 1304, 203 L. Ed. 2d 425 (2019). "A colorable claim is one that is superficially well founded but that may ultimately be deemed invalid.... For a claim to be colorable, the defendant need not convince the trial court that he necessarily will prevail, he must demonstrate simply that he might prevail.... The 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." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Id., at 784, 189 A.3d 1184.

In the present case, the self-represented defendant, Hudel Clifton Gamble, appeals from the judgment of the trial court dismissing his motion to correct an alleged illegal sentence (motion to correct) for lack of jurisdiction. On appeal, the defendant claims that the court improperly dismissed the motion to correct because it advanced a colorable claim that his sentence on the underlying conviction of manslaughter in the first degree with a firearm was illegally enhanced on the basis of a fact not found by the jury. The state counters that the court properly dismissed the defendant's motion to correct because it challenges his underlying conviction, not the legality of his sentence. We agree with the state and, therefore, affirm the judgment of the trial court.

The present appeal arises out of the defendant's conviction, following a jury trial, of manslaughter in the first degree with a firearm. State v. Gamble , 119 Conn. App. 287, 987 A.2d 1049, cert. denied, 295 Conn. 915, 990 A.2d 867 (2010). The relevant facts, which the jury reasonably could have found, and procedural history were set out in this court's opinion affirming the defendant's conviction on direct appeal.²

On November 29, 2005, the then seventeen year old defendant gave his fifteen year old friend, Ricardo Ramos, a loaded .22 caliber gun. Id., at 290, 987 A.2d 1049. Later that day, Ramos and Daniel Smith were riding in a BMW in the "Hill" section of New Haven. Id. They picked up the defendant, who sat in the backseat while the three drove around smoking marijuana. Id. Smith was driving on Kensington Street when Ramos saw a woman with whom he was acquainted. Id. Smith stopped the vehicle, and the woman "informed Ramos that a person with whom Ramos had a ‘beef’ was in the area." Id. As the three men traveled down Kensington Street a second time, "Ramos observed a person, [whom] he believed had killed his cousin approximately one month earlier .... As Smith drove closer, the group on the sidewalk fired gunshots at the right side of the BMW. Ramos and Smith, who were both carrying weapons, returned fire through the open windows of the BMW. The defendant fired an SKS semiautomatic assault rifle , the barrel of which was resting on an open car window."³ (Emphasis added.) Id. Ramos later learned that Marquis White (victim), whom he did not know and who did not shoot his cousin, had been shot and killed on Kensington Street. Id.

The defendant was arrested and charged with various crimes, including murder.⁴ Id., at 292, 987 A.2d 1049. At trial, "[o]ver the defendant's objection, the court [Holden, J .] granted the state's request for a jury instruction on the lesser included offense of manslaughter in the first degree with a firearm under the theories of [both] principal and accessorial liability. The court so instructed the jury.⁵

"Following deliberations, the jury reached a verdict. After the roll of jurors was called, the foreperson answered ‘not guilty’ as the court clerk read the following charges: murder, manslaughter in the first degree with a firearm, conspiracy to commit murder, possession of an assault weapon and conspiracy to possess an assault weapon. The court ... accepted the verdict.

"Thereafter, the foreperson stated that ‘[s]omething is wrong.’ The court sent the jury back to the deliberation room and informed counsel of the procedure that was to follow. The jury then returned to the courtroom, and the court asked the jury to articulate its concern in a note. The jury returned to the deliberation room and sent out a note that stated: ‘[W]e found [the defendant] guilty of "accessory to manslaughter" and [want] guidance. We were waiting for "accessory" to be read.’ The court described the contents of the note on the record. The court stated that, as evidenced by the note, it was the jury's position that it had not been asked to provide its verdict as to manslaughter in the first degree with a firearm as an accessory. The court indicated that it would have to vacate its finding that the verdict was accepted and recorded, at least as to the manslaughter charge. The court then stated that, unless the parties had an objection, the jury would be asked to return its verdict again as to all the charges, including the lesser included offense of manslaughter in the first degree with a firearm. In an effort to ameliorate any misunderstanding, the court planned to separate the manslaughter charge into two subsets: manslaughter as previously read and manslaughter as an accessory. There was no objection.

"After the jury returned to the courtroom, the court clerk again called the jury roll and then asked for the jury's verdict as to each offense. This time, the court clerk inquired as to the offense of manslaughter in the first degree with a firearm twice: once as previously read and interpreted by the jury to encompass only liability as a principal and once as an accessory. The court clerk inquired: ‘To the lesser included offense in count one, what say you to the lesser included offense of manslaughter in the first degree with a firearm in violation of [General Statutes] § 53a-55 (a) (3)⁶ of the Connecticut General Statutes,’ to which the foreperson responded: ‘Not guilty.’ The court clerk then inquired: ‘For the lesser included offense in count one, what say you to the lesser included offense of manslaughter in the first degree with a firearm as an accessory in violation of the same section of the Connecticut General Statutes,’ to which the foreperson responded :

‘Guilty.’⁷ The jury returned a verdict of not guilty to the remaining charges. The court ... accepted the verdict. The defendant did not object." (Emphasis added; footnotes added.) State v. Gamble , supra, 119 Conn. App. at 292–94, 987 A.2d 1049. The court sentenced the defendant to thirty-seven and one-half years of imprisonment.⁸ This court affirmed the defendant's conviction on direct appeal.⁹ Id., at 304, 987 A.2d 1049.

In January, 2019, the defendant, representing himself, filed the present motion to correct, alleging that "[p]ursuant to State v. Abraham , 152 Conn. App. 709 [99 A.3d 1258 (2014)] [the] court has jurisdiction to consider the sentencing court's decision to impose a sentence enhancement under General Statutes § 53a-55a, when the jury never intended to impose that finding. Because of that failure, the defendant's sentence exceeded the permissible statutory maximum and, thus, is illegal."

In response to the motion to correct, the court, Clifford, J. , pursuant to State v. Casiano , 282 Conn. 614, 620, 922 A.2d 1065 (2007), appointed Attorney Kelly Billings as counsel for the defendant for the limited purpose of determining whether there was a sound basis to the motion to correct. Billings subsequently moved to withdraw as counsel. At the May 15, 2019 hearing on that motion, Billings represented that the defendant was claiming that it was error for the jury to find him guilty of accessory to commit manslaughter in the first degree with a firearm, which concerns the defendant's conviction, not his sentence. Billings explained that, although the defendant contended that the court had enhanced his conviction of manslaughter in the first degree as an accessory, the defendant had never been charged "just" as an accessory to manslaughter. Rather, the defendant initially was charged with murder and, at the state's request, Judge Holden instructed the jury on the lesser included offense of manslaughter in the first degree with a firearm. The jury ultimately found the defendant guilty of manslaughter in the first degree with a firearm.

After hearing from Billings, the court explained to the defendant that it lacked jurisdiction over his motion to correct because courts generally lose jurisdiction over a case once a defendant is sentenced and committed to the custody of the Commissioner of Correction.¹⁰ The defendant argued that the court had jurisdiction because he was not attacking his conviction, only his thirty-seven year sentence.¹¹ Specifically, the defendant claimed that there was a mistake with the "sentence enhancement" and that the court had jurisdiction pursuant to Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). He also argued that the court "could modify the conviction...