State v. Henderson

• Decision Date: 02 August 2011
• Docket Number: No. 31610.,31610.
• Citation: 24 A.3d 35,130 Conn.App. 435
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticutv.Mitchell HENDERSON.

130 Conn.App. 435

24 A.3d 35

STATE of Connecticut

v.Mitchell HENDERSON.

No. 31610.

Appellate Court of Connecticut.

Argued Jan. 11, 2011.Decided Aug. 2, 2011.

Katharine S. Goodbody, special public defender, for the appellant (defendant).Emily Graner Sexton, special deputy assistant state's attorney, with whom, on the brief, was Gail P. Hardy, state's attorney, and Herbert Carlson, former supervisory assistant state's attorney, for the appellee (state).DiPENTIMA, C.J., and BEAR and BORDEN, Js.DiPENTIMA, C.J.

The defendant, Mitchell Henderson, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. On appeal, the defendant claims that the court improperly dismissed his motion for lack of subject matter jurisdiction. We agree with the defendant's jurisdictional argument. We conclude, however, that as a matter of law, the defendant's motion to correct an illegal sentence must be denied.

In September, 1993, a jury found the defendant guilty of robbery in the first degree, assault in the third degree, threatening and attempt to escape from custody.¹ Following the jury trial, the defendant pleaded guilty, pursuant to the Alford doctrine,² to two part B informations that had charged him with being a persistent dangerous felony offender under General Statutes (Rev. to 1993) § 53a–40 (a) ³ and (f) ⁴ and a persistent serious felony offender under General Statutes (Rev. to 1993) § 53a–40 (b) ⁵ and (g).⁶ The defendant did not admit expressly to the provisions of subsection (g) that the public interest would be best served by extended incarceration and lifetime supervision.⁷ At the sentencing hearing, the court noted the defendant's history of criminal convictions and concluded: “So, really, at this point in your life, having received all of the chances that you've received, the court really has no alternative or much of an alternative but then to impose a lengthy sentence of incarceration.” On December 14, 1993, the court, Espinosa, J., sentenced the defendant, inter alia, to twenty-five years incarceration for the crime of robbery in the first degree as a persistent dangerous felony offender and to a consecutive sentence of twenty years incarceration, execution suspended after ten years, for the crime of attempt to escape custody as a persistent serious felony offender.⁸ Thus the defendant's effective sentence was forty-five years of incarceration, execution suspended after thirty-five years, and five years probation.

On December 9, 2008, the defendant filed a motion to correct an illegal sentence pursuant to Practice Book § 43–22. He alleged that Judge Espinosa had enhanced his sentence ⁹ on the basis of her finding that an extended incarceration and lifetime supervision would best serve the public interest. The defendant then argued that pursuant to our Supreme Court's opinion in State v. Bell, 283 Conn. 748, 931 A.2d 198 (2007), which relied on the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), such a finding by the trial court, and not the jury, violated his constitutional rights to due process and a trial by a jury.

The state filed a brief in opposition to the defendant's motion, and the court, Gold, J., held a hearing. Thereafter, the court issued a memorandum of decision dismissing the motion to correct an illegal sentence. Specifically, the court concluded that it lacked subject matter jurisdiction because the motion failed “to assert any claim which this court is empowered to consider within the context of a motion to correct.” The court reasoned that the sentencing court did not impose an illegal sentence or impose a sentence in an illegal manner; accordingly, it lacked jurisdiction because the defendant's motion fell outside of the purview of Practice Book § 43–22. This appeal followed.

“It is axiomatic that, in a criminal case, the jurisdiction of the sentencing court terminates once a defendant's sentence has begun and a court may no longer take any action affecting a sentence unless it expressly has been authorized to act.... Pursuant to Practice Book § 43–22: The 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 is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is inherently 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 in the record, or his right that the government keep its plea agreement promises.... State v. McNellis, 15 Conn.App. 416, 444, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). A defendant properly may challenge his criminal sentence on the ground that it was imposed in an illegal manner by filing with the trial court a motion pursuant to Practice Book § 43–22.... [T]hese enumerated examples [however] would not encompass rights or procedures subsequently recognized as mandated by federal due process.... Nor would those examples encompass procedures mandated by state law that are intended to ensure fundamental fairness in sentencing, which, if not followed, could render a sentence invalid. Therefore, the examples cited in McNellis are not exhaustive and the parameters of an invalid sentence will evolve.... State v. Parker, 295 Conn. 825, 839–40, 992 A.2d 1103 (2010).” State v. Pierce, 129 Conn.App. 516, 522–23, 21 A.3d 877 (2011). ¹⁰

To place the defendant's motion in the appropriate context, we briefly digress from our jurisdictional discussion in order to explain his legal theory as to why his sentence was illegal. A discussion of Apprendi and Bell will facilitate our explanation. In Apprendi, the United States Supreme Court presented the issue as “whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt.” Apprendi v. New Jersey, supra, 530 U.S. at 469, 120 S.Ct. 2348. The court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.... [I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” (Internal quotation marks omitted.) Id., at 490, 120 S.Ct. 2348.

In State v. Bell, supra, 283 Conn. at 784–85, 931 A.2d 198, our Supreme Court was presented with the question of whether a trial court's decision to enhance a “sentence as a persistent dangerous felony offender ... under § 53a–40 (h) violated the precepts of Apprendi v. New Jersey, supra, 530 U.S. 466, 120 S.Ct. 2348, and its progeny.” The court concluded that a determination by the trial court, rather than the jury, that an extended period of incarceration would best serve the public interest violated the defendant's constitution rights under Apprendi, and, therefore, a new sentencing proceeding was needed. State v. Bell, supra, at 786, 931 A.2d 198. In Bell, after the trial court had made this finding, the defendant's sentence was doubled from the maximum term of incarceration for a class B felony. Id., at 788, 931 A.2d 198.

After discussing Apprendi and its progeny, our Supreme Court in Bell turned to this state's persistent felony offender statute. Id., at 795, 931 A.2d 198. It noted that § 53a–40 (h) imposes two preconditions for an enhanced sentence: First, the jury must find that the defendant is a persistent felony offender, and second, the court must find that the defendant's history and character and the nature and circumstances of his criminal conduct indicate that the public interest will be best served by extended incarceration. Id., at 796, 931 A.2d 198. The court in Bell interpreted § 53a–40 (h) as mandating the enhanced sentence after the jury makes the first predicate finding and the court makes the second predicate finding. Id., at 800, 931 A.2d 198. Because the defendant was exposed to a greater punishment than authorized by the jury's guilty verdict, this statutory scheme was unconstitutional under Apprendi. See id., at 804, 931 A.2d 198. In order to remedy this violation and to save the statute, our Supreme Court excised the offending language from § 53a–40 (h). Id., at 812, 931 A.2d 198.

We now return to the present case and set forth our standard of review. A determination of whether the trial court has jurisdiction to consider a motion to correct an illegal sentence filed pursuant to Practice Book § 43–22 presents a question of law, and, therefore, our review is plenary. State v. Lewis, 108 Conn.App. 486, 488, 948 A.2d 389 (2008); see also State v. Koslik, 116 Conn.App. 693, 697, 977 A.2d 275, cert. denied, 293 Conn. 930, 980 A.2d 916 (2009). It is clear that “[i]n order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding, and not the trial leading to the conviction, must be the subject of the attack.” State v. Lawrence, 281 Conn. 147, 158, 913 A.2d 428 (2007); State v. Koslik, supra, at 699, 977 A.2d 275; see also State v. Lewis, supra, at 488, 948 A.2d 389 (defendant must demonstrate that motion to correct falls within purview of Practice Book § 43–22 or court lacks jurisdiction to entertain it).

In his...