State v. Henderson

• Decision Date: 16 May 2017
• Docket Number: AC 38381
• Citation: 163 A.3d 74,173 Conn.App. 119
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Mitchell HENDERSON

173 Conn.App. 119

163 A.3d 74

STATE of Connecticut

v.Mitchell HENDERSON

AC 38381

Appellate Court of Connecticut.

Argued January 9, 2017

Officially released May 16, 2017

Moira L. Buckley, assigned counsel, for the appellant (defendant).

James M. Ralls, assistant state's attorney, with whom, on the brief, were Anne F. Mahoney and Gail P. Hardy, state's attorneys, for the appellee (state).

Keller, Prescott and Harper, Js.

HARPER, J.

The defendant, Mitchell Henderson, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. The defendant was sentenced to a total effective term of forty-five years imprisonment, suspended after thirty-five years, with five years probation, following his conviction of robbery in the first degree, as enhanced for being a persistent dangerous felony offender, pursuant to General Statutes (Rev. to 1991) § 53a–40 (a),¹ and attempt to escape from custody, as enhanced for being a persistent serious felony offender, pursuant to § 53a–40 (b). On appeal, the defendant claims that the court improperly denied his motion to correct an illegal sentence because his classification as a persistent dangerous felony offender and a persistent serious felony offender, and his subsequent enhanced sentence violated the multiple punishment prohibition of the double jeopardy clause. Alternatively, he claims that punishment under both persistent offender provisions runs contrary to the legislature's intent. We affirm the judgment of the court.

In State v. Henderson , 37 Conn.App. 733, 658 A.2d 585, cert. denied, 234 Conn. 912, 660 A.2d 355 (1995), this court set forth the following facts and procedural history underlying the defendant's criminal conviction: "On the afternoon of January 17, 1992, the victim, Victorene Hazel, and her companion, Codella Webley, crossed Baltimore Street in Hartford after leaving the Shawmut Bank. When the two women reached the corner of Baltimore Street and Homestead Avenue, they were approached by the defendant who demanded that Hazel hand over her purse to him. The defendant was standing in front of Hazel, at a distance of one and one-half to two feet. Her view of the defendant was clear and unobstructed. After Hazel refused to turn over her purse, the defendant pulled out a knife, grabbed her by the shirt and hit her. When he grabbed Hazel, who had a heart condition, she experienced pain in her chest. The defendant threatened to kill her if she did not give him the purse. When he swung the knife, she freed herself from his grasp and ran in the direction of the Shawmut Bank with the defendant chasing her. Hazel's purse fell off her shoulder as she was running and the defendant picked it up. Hazel entered the bank screaming that she had been robbed and needed help. When Webley reached the bank, she noticed that Hazel was breathing heavily, holding her chest and saying, 'My heart, my heart.'

"At approximately the same time, Howard Fraser and his cousin, Earl Forrest, were driving on Homestead Avenue when they stopped to look up a telephone number. As Forrest was looking for the number, Fraser noticed from a distance of five to seven yards the victim struggling with her assailant. As he and Forrest were about to drive off, he saw the defendant grab the purse from Hazel. When the victim began to scream, Fraser realized that she was being robbed. Fraser watched the defendant run up Baltimore Street and enter onto private residential property. Fraser realized that the defendant would have to exit on Kent Street, the street parallel to Baltimore Street. Fraser and Forrest drove to Kent Street in anticipation of seeing the defendant. They saw him running down Kent Street toward Albany Avenue with a purse under one arm. Fraser opened the passenger door as they drove up next to the defendant. Forrest told the defendant that they were the police and ordered him not to move. Fraser then jumped out the passenger door and grabbed the defendant. When the defendant resisted, Forrest joined Fraser in an attempt to subdue the defendant. Both Fraser and Forrest repeatedly called for help as they were struggling with the defendant. The defendant struck Fraser during the struggle, and Fraser suffered a wrist injury

from striking the defendant.

"Officer Douglas Frederick of the Hartford police department arrived approximately five minutes after the struggle had begun and saw the defendant holding the victim's purse. While the defendant was struggling with Forrest and Fraser, the victim's purse fell and its contents scattered onto the street. Frederick's attempt to handcuff the defendant was unsuccessful because he continued to resist fiercely. Frederick radioed for assistance and, finally, with the help of other police officers, managed to get the defendant into the police cruiser. Frederick then informed the defendant that he was under arrest.

"At trial, Fraser identified the defendant in court as the man he had caught running down Kent Street with the victim's purse and who had earlier robbed Hazel on Homestead Avenue.

"After Hazel and Webley left the bank, a man in a truck informed them that the robber had been apprehended on Kent Street. The man drove both women to Kent Street. After getting out of the truck, Hazel and Webley saw the defendant sitting in the police cruiser. Frederick had put the victim's purse on top of the cruiser for safekeeping while he was trying to restrain the defendant. Frederick noticed two women running down Kent Street toward his cruiser and he heard Hazel yelling, 'That's him, he robbed me.' Frederick asked both Hazel and Webley to make sure that the man in the cruiser was indeed the robber. Without any difficulty, both women positively identified the defendant as the robber. The weather was clear and there was adequate sunlight to enable the women to make the identification. Although Frederick was able to recover the purse, his search of the defendant did not produce a knife.

"After telling the defendant that he was under arrest and placing him in the police cruiser, Frederick transported him from the scene. The defendant yelled obscenities and threatened to kill the officer. As Frederick drove down Kent Street toward Albany Avenue, the defendant became increasingly violent. The defendant kicked out the rear window of the cruiser and attempted to climb out while the cruiser was in motion. The defendant was able to get his upper torso out of the rear window. Frederick stopped the car and radioed for assistance and an ambulance. Frederick then pulled the defendant out of the cruiser and sat on him until help arrived. When the ambulance arrived, the defendant was put in a body bag and transported to St. Francis Hospital. The defendant was treated for several cuts he had sustained while attempting to climb out of the rear window of the cruiser." Id., at 736–39, 658 A.2d 585.

The defendant subsequently was charged and, following a jury trial, convicted of robbery in the first degree in violation of General Statutes § 53a–134(a)(3), and attempt to escape from custody in violation of General Statutes §§ 53a–171 and 53a–49. In addition to the substantive criminal offenses, the defendant was also charged in two part B informations as a persistent dangerous felony offender pursuant to § 53a–40 (a) regarding his conviction of robbery in the first degree and as a persistent serious felony offender pursuant to § 53a–40 (b) and (g) regarding his conviction of attempted escape. The defendant pleaded guilty to both persistent felony offender charges under the Alford doctrine.² On December 14, 1993, the court imposed an enhanced total effective sentence of forty-five years imprisonment, execution suspended after thirty-five years, and five years of probation. With respect to the defendant's conviction as a persistent dangerous felony offender, the court sentenced the defendant, pursuant to § 53a–40 (f), to twenty-five years imprisonment. With respect to the defendant's conviction as a persistent serious felony offender, the court sentenced the defendant, pursuant to § 53a–40 (g), to twenty years imprisonment, execution suspended after ten years, followed by five years of probation, consecutive to his robbery sentence. In 1995, this court affirmed the defendant's conviction on direct appeal. Id., at 736, 658 A.2d 585.

On September 11, 2014, the defendant filed a motion to correct an illegal sentence. In support of his motion, the defendant claimed that his sentence was illegal because it violated the multiple punishment provision of the double jeopardy clause, and that his enhanced sentence runs contrary to the legislative intent of § 53a–40. The court denied the defendant's motion to correct an illegal sentence and issued a supporting memorandum of decision.

In its memorandum of decision, the court concluded that the defendant's classification as a persistent dangerous felony offender and a persistent serious felony offender pursuant to § 53a–40 (a) and (b), respectively, and his subsequent enhanced sentence pursuant to § 53a–40 (f) and (g) did not violate the double jeopardy clause's prohibition against multiple punishments for the same offense, and that his conviction did not run contrary to the legislature's intent. With respect to the defendant's double jeopardy argument, the court reasoned that the defendant's two persistent felony offender sentence enhancements did not arise from the same transaction because the enhancements were not substantive criminal offenses, but simply a harsher penalty imposed for his conviction of robbery in the first degree and attempt to escape from custody. In rejecting the defendant's claim that his enhanced sentence runs contrary to the legislature's intent, the court observed that the plain language of the relevant persistent felony offender provisions did not support the defendant's claim that his classification as a persistent dangerous felony offender under § 53a–40 (a) precluded his classification as a persistent...