State v. Heriberto B.

• Decision Date: 31 August 2021
• Docket Number: AC 43966
• Citation: 207 Conn.App. 192,261 A.3d 838
• Parties: STATE of Connecticut v. HERIBERTO B.
• Court: Connecticut Court of Appeals

207 Conn.App. 192

261 A.3d 838

STATE of Connecticut

v.HERIBERTO B.^*

AC 43966

Appellate Court of Connecticut.

Argued April 6, 2021

Officially released August 31, 2021

John L. Cordani, Jr., assigned counsel, with whom, on the brief, was Andrew A. DePeau, Hartford, assigned counsel, for the appellant (defendant).

Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Brian W. Preleski, state's attorney, and Helen J. McLellan, senior assistant state's attorney, for the appellee (state).

Alvord, Prescott and Flynn, Js.

ALVORD, J.

The defendant, Heriberto B., appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence and to vacate his pleas on the ground that the court lacked subject matter jurisdiction to consider the motion. On appeal, the defendant claims that the trial court (1) improperly dismissed, for lack of subject matter jurisdiction, the first motion to correct an illegal sentence that he filed, and (2) violated his constitutional right to a jury trial under Alleyne v. United States , 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. In an affidavit by the police in support of their application for a warrant for the defendant's arrest, the defendant was accused of sexually assaulting the victim, a child under the age of thirteen, on multiple occasions from November, 2012, through September 22, 2013. In connection with those allegations, the state charged the defendant in a twenty-seven count substitute, long form information with, inter alia, two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2).¹

In count eleven of the operative information, the state "accuse[d] the [defendant] of the crime of injury or risk of injury to or impairing the morals of a child, and allege[d] that on divers[e] dates between November 1, 2012, and September 21, 2013, between the hours of 6:30 a.m. and 4:30 p.m., on a Sunday, at a certain residence located within the city of New Britain, Connecticut ... the [defendant] had contact with the intimate parts, including, but not limited to, the breasts, genital area, groin, inner thighs and buttocks of a child under the age of thirteen years ... and subjected said child to contact with the intimate parts of said [defendant], specifically, his penis, all in a sexual and indecent manner likely to impair the health or morals of such child, said acts having occurred within the bedroom of said child, and all such acts were committed in violation of [§] 53-21 (a) (2) ...."

In count twenty-three of the operative information, the state "further accuse[d] the [defendant] of the crime of injury or risk of injury to or impairing the morals of a child, and allege[d] that, on or about Sunday, September 22, 2013 , between the hours of 6:30 a.m. and 4:30 p.m., at a certain residence located within the city of New Britain, Connecticut, the [defendant] had contact with the intimate parts, including, but not limited to, the breasts, the genital area, the groin, the inner thighs and buttocks, of a child under the age of thirteen years ... and subjected said child to contact with the intimate parts of said [defendant], specifically, his penis, all in a sexual and indecent manner likely to impair the health or morals of such child, said acts having occurred within the bedroom of said child, and all acts were committed in violation of [§] 53-21 (a) (2) ...." (Emphasis added.)

On July 20, 2016, the defendant, represented by counsel, entered Alford pleas² with respect to the two counts of risk of injury to a child.³ During the plea proceeding, the prosecutor articulated the following factual basis for the defendant's pleas: "The first count, count eleven, that he pleaded to that had to do with his sexual contact and intercourse with a ten year old female .... It happened on diverse dates between November 1, 2012, and September 21, 2013. The defendant had moved in with the family. The mother had three children. This was the older of the three daughters. It was the only one involved. Apparently, the mother had to work on occasional Sundays, and, since she didn't have a baby-sitter, she had [the defendant] watch the children. He took advantage of the situation to have intercourse and touching all the intimate parts of the child under thirteen years and also had her [make] contact with his penis, all in a sexual manner. The second [count to which the defendant pleaded ] ... was count twenty-three, and that was on a specific date, and that was November 22, 2013 , same situation on a Sunday while the mother was at work, that it occurred in the bedroom, like the other one, of the young girl. He touched her all over and finally subjected her to penile ... intercourse in her bedroom, and ... some of the bedclothes were tested, and his DNA was found to be on a bedsheet and a blanket. ... By that time ... [the victim] was under thirteen years of age. ... She would have been twelve." (Emphasis added.)

Thereafter, the defendant acknowledged his understanding of the facts that the state would have to prove for him to be found guilty of the two counts of risk of injury to a child, as well as his understanding of the definition of the charge. The court, Alexander, J. , found the defendant's pleas to be knowingly and voluntarily made, and that there was a factual basis for each plea. Accordingly, the court accepted the defendant's Alford pleas and found him guilty of two counts of risk of injury to a child. On October 20, 2016, with respect to each count and in accordance with the plea agreement, the court imposed identical sentences of seven years of incarceration, five years of which was mandatory under each sentence, followed by five years of special parole under each sentence. The court ordered the sentences to run consecutively to one another for a total effective sentence of fourteen years of incarceration, ten years of which was mandatory, followed by ten years of special parole.⁴

On March 7, 2019, the defendant, as a self-represented party, filed a motion to correct an illegal sentence pursuant to Practice Book § 43-22⁵ (first motion to correct), in which he claimed, inter alia, that his sentence on the two counts of risk of injury to a child was illegal because it violated his federal constitutional protection against double jeopardy (double jeopardy claim).⁶ Specifically, the defendant argued that his sentence was illegal because "[f]orcing [him] to defend against two counts of risk of injury for a single act against one victim is in direct opposition to the fifth amendment [to] the United States constitution, which states ... ‘nor shall any person be subject for the same offense to be twice put in jeopardy of life and limb.’ "

Concurrently with his first motion to correct, the defendant filed a motion for appointment of counsel pursuant to General Statutes § 51-296 to assist in preparing and filing a motion to correct an illegal sentence.⁷ Thereafter, the court appointed Attorney William H. Paetzold to represent the defendant. After his review of the issues raised by the defendant in the first motion to correct, Paetzold found no merit to that motion. Specifically, with respect to that motion, Paetzold explained that the defendant "continues to want me to litigate issues that I believe are habeas corpus related issues and are not subject to a motion to correct an illegal sentence."

Instead of pursuing the defendant's first motion to correct, on August 29, 2019, Paetzold filed a subsequent motion to correct an illegal sentence and to vacate the pleas on behalf of the defendant (second motion to correct), which contained an issue that he "thought might have some merit." In the second motion to correct, the defendant claimed that his sentence was illegal because there was no factual basis to support his Alford plea to count twenty-three of the state's operative information and, thus, his plea to one count of risk of injury to a child was not made knowingly and voluntarily.

More specifically, the defendant argued that the state's recitation of the factual basis for his plea with respect to count twenty-three erroneously referenced a November 22, 2013 sexual assault that was not alleged in the arrest warrant or charged in the state's operative information.⁸ Accordingly, the defendant maintained that the court erred by relying on an inadequate factual basis in accepting his Alford plea as to count twenty-three.

On October 10, 2019, the state filed an objection to the second motion to correct. In its objection, the state argued that "the defendant's attack on the factual basis for the plea falls outside the parameters of the grounds permitted to be raised in a motion to correct." The state alternatively maintained that the defendant's claim failed on its merits because his "pleas were fully canvassed before being accepted by the court, and the record supports a factual basis for the elements of the crimes [of] which [he] was convicted."⁹

On November 13, 2019, the defendant, as a self-represented party, filed a motion to discharge Paetzold, his appointed counsel. In support of that motion, the defendant argued, inter alia, that he "recently filed a motion to correct an illegal sentence, which is pending before the court, concerning which ... Paetzold has failed to raise challenge or objection on the state's action of sentencing the [defendant] twice on the same docket number by implication of an unsubstantiated, unproven charge." Accordingly, the defendant requested that "Paetzold be replaced."

On November 18, 2019, the court, Keegan, J. , held a hearing with respect to "two different motions in this case ...." The court stated: "I have a motion here filed by ... Paetzold, motion to correct illegal sentence and vacate the plea, and that's dated August 28, 2019. Then, in October, the state filed an...