State v. Henderson, 25865.

• Decision Date: 10 January 2006
• Docket Number: No. 25865.,25865.
• Citation: 888 A.2d 132,93 Conn.App. 61
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Daniel J. HENDERSON.

Page 132

888 A.2d 132

93 Conn.App. 61

STATE of Connecticut v. Daniel J. HENDERSON.

No. 25865.

Appellate Court of Connecticut.

Argued June 2, 2005.

Decided January 10, 2006.

COPYRIGHT MATERIAL OMITTED

Daniel J. Henderson, pro se, the appellant (defendant).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Michael A. Gailor, assistant state's attorney, for the appellee (state).

LAVERY, C.J., and DiPENTIMA and GRUENDEL, Js.

GRUENDEL, J.

The pro se defendant, Daniel Henderson, appeals from the trial court's denial of his motion to correct an illegal sentence. On appeal, the defendant claims that the court improperly rejected his claims that (1) the ten year sentence enhancement pursuant to General Statutes § 53a-40b¹ was illegal as it was based on "uncounseled earlier charges," (2) the sentencing court had failed to articulate any reason for enhancing his sentence pursuant to § 53a-40b, (3) he was sentenced on the basis of inaccurate information, (4) the sentencing court should not have enhanced his sentence by ten years pursuant to § 53a-40b because he could not be sentenced beyond the five year "relevant statutory maximum" for the forgery conviction, (5) the sentencing court should not have sentenced him in absentia, (6) § 53a-40b is unconstitutionally vague on its face and as applied to the particular facts of this case, (7) the reference to § 53a-40b in the information was legally insufficient because it did not include the elements of the statute in the language of the charge and (8) his sentence resulted from judicial vindictiveness. We affirm the judgment of the trial court.

The following facts, as set forth by the trial court in its memorandum of decision, are relevant to the defendant's appeal. "[The defendant] was arrested on three related and relevant occasions in 1993. The first of these arrests occurred in February, and the second occurred two months later in April. The specific charges for the first two arrests are not pertinent to these proceedings and, hereinafter, are referred to as his `earlier charges.' In August, 1993, while released on bond for these `earlier charges,' [the defendant] was arrested for the third time, and charged with one count of forgery in the second degree in violation of General Statutes § 53a-139, and two counts of larceny in the sixth degree in violation of General Statutes § 53a-125b. . . . The facts underlying these convictions, at their essence, involved the use of a forged money order in the amount of $250 for the purchase of a $170 meal and $80 in change at a restaurant. . . .

"In the first part of the information in this case, [the defendant] was charged with the forgery and larceny offenses committed in August, 1993. In October, 1994, he was charged in a separate, second part information. In the second part of the information, he was charged with committing these crimes while released on bond, as well as with being a persistent larceny offender, for several of his many, previous larceny convictions. . . .

"After a trial by jury where he was represented by counsel, [the defendant] was found guilty of the forgery and larceny charges against him contained in the first part of the information in this case. The day following his conviction on these charges, [the defendant] pleaded `guilty' to the second part of the information, triggering the application of two sentence enhancement statutes: the first for being a persistent larceny offender under General Statutes § 53a-40(e), and the second for committing these first part crimes of forgery and larceny while released on bond under . . . § 53a-40b. Upon accepting this plea agreement, and after a full and complete canvass by the [court, Kocay, J.], bond was set in the amount of $150,000, cash or surety. A presentence investigation . . . and report was ordered, and a sentencing hearing was scheduled for January 24, 1995, all of which was done in open court and in the presence of [the defendant]. . . .

"[The defendant] was released on bond after his conviction, but failed to appear for his sentencing by the court. At the sentencing hearing, his attorney represented to the court that she was in possession of a message from [the defendant], explaining his absence due to his recent admission to an in-patient drug treatment facility. The state alleged at the sentencing hearing that (1) [the defendant] failed to appear at three previously scheduled sentencing hearings, all involving one Danbury case, (2) he failed to appear for his [presentence investigation] interview and (3) he failed to appear recently for another case in Meriden. All of these failures to appear were alleged by the state to have occurred within the previous three weeks.

"Upon a finding that his absence from court was `voluntary,' the trial court sentenced [the defendant], in absentia, to a total effective sentence of fifteen years to serve in the custody of the commissioner of correction. The particular elements of the sentence were as follows: five years of incarceration on the charge of forgery in the second degree, and three months for one charge of larceny in the sixth degree, concurrently imposed. This sentence of five years was then `enhanced' by the court for an additional ten years for [the defendant's] having committed the felony of forgery [in the second degree] while released on bond for the `earlier charges.'"

Following sentencing, the defendant appealed from his conviction unsuccessfully. He also filed a petition for sentence review, which was denied, and two petitions for a writ of habeas corpus, alleging ineffective assistance of counsel. Both petitions were dismissed. On October 21, 2002, the defendant filed a motion to correct an illegal sentence pursuant to Practice Book § 43-22. Characterizing the defendant's motion as one to modify a sentence, the court denied it on the ground that the court lacked jurisdiction to modify the defendant's sentence because the sentence exceeded the three year maximum sentence that the court is allowed to modify under General Statutes § 53a-39. On appeal, we reversed the judgment in part, concluding that the court had improperly characterized the defendant's motion as one to modify a sentence, and remanded the case for a hearing on the defendant's motion to correct an illegal sentence. State v. Henderson, 82 Conn.App. 473, 475, 844 A.2d 922 (2004).

Shortly thereafter, the defendant filed another motion to correct an illegal sentence. After hearing argument, the court denied the defendant's motion and his subsequent motion for reargument. The defendant now appeals from the court's denial of his motion to correct an illegal sentence.

"We review claims that the court improperly denied the defendant's motion to correct an illegal sentence under an abuse of discretion standard. . . . The jurisdiction of the sentencing court terminates when the sentence is put into effect, and that court may no longer take any action affecting the sentence unless it has been expressly authorized to act." (Citation omitted; internal quotation marks omitted.) State v. Pagan, 75 Conn.App. 423, 429, 816 A.2d 635, cert. denied, 265 Conn. 901, 829 A.2d 420 (2003). The trial court has been provided with express authority to retain jurisdiction after a defendant's sentence has begun and may take action as to the sentence by way of Practice Book § 43-22. Cobham v. Commissioner of Correction, 258 Conn. 30, 37-38, 779 A.2d 80 (2001). Under that section, "[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." Practice Book § 43-22. "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 internally contradictory." (Internal quotation marks omitted.) State v. Pagan, supra, at 429, 816 A.2d 635. A sentence imposed in an illegal manner is one "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. . . ." (Internal quotation marks omitted.) State v. McNellis, 15 Conn.App. 416, 444, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988).²

I

The defendant argues that the court improperly rejected his claim that the ten year sentence enhancement pursuant to § 53a-40b was illegal, as it was based on "uncounseled earlier charges. . . ." We decline to review the defendant's claim.

In his motion to correct an illegal sentence, the defendant offered the following reason, among many others, for the court to conclude that the sentence was illegal: "Since [he] was indigent when the trial [c]ourt `denied' appointment of counsel to defend against said [earlier] charges, and the same [earlier] charges were subsequently used to enhance his sentence, [that] makes [the defendant's] enhancement `illegal.'" The court, in its memorandum of decision, addressed what it perceived to be the defendant's facial attack on § 53a-40b "for authorizing an unconstitutional enhancement of his sentence, based upon his statutory bond-release status, and thereby infringing upon his simultaneous, constitutional status of innocence." It concluded that "[s]uch challenges are not within the scope of [the] court's expressly authorized jurisdiction for a motion to vacate an illegal sentence." In his brief to this court, the defendant argues essentially that the court misinterpreted his claim. His claim, he argues, was not a facial attack on § 53a-40b, but rather was "a challenge to the sentencing c...