State v. Kennibrew

• Decision Date: 05 October 2021
• Docket Number: AC 40970
• Parties: STATE of Connecticut v. Robert KENNIBREW
• Court: Connecticut Court of Appeals

208 Conn.App. 568

264 A.3d 1127

STATE of Connecticut

v.Robert KENNIBREW

AC 40970

Appellate Court of Connecticut.

Submitted on briefs October 5, 2021

Officially released November 2, 2021

Bradford Buchta, senior assistant public defender, filed a brief for the appellant (defendant).

Michael A. Gailor, state's attorney, and Linda F. Rubertone and Russell C. Zentner, senior assistant state's attorneys, filed a brief for the appellee (state).

Alvord, Cradle and Palmer, Js.

ALVORD, J.

The defendant, Robert Kennibrew, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant claims that his convictions and sentences for murder and felony murder, arising from the killing of a single victim, violate the double jeopardy clause of the fifth amendment to the United States constitution and the Connecticut constitution.¹ The state, in its appellate brief, concedes that the defendant "remains burdened by multiple punishments for the same offense" and agrees with the defendant that this court should remand the case to the trial court with direction to vacate the defendant's felony murder conviction and to resentence the defendant. We agree with the parties.

The record reflects the following procedural history that is relevant to this appeal. On April 7, 1998, the defendant pleaded guilty to murder in violation of General Statutes § 53a-54a,² felony murder in violation of General Statutes § 53a-54c, and robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), in connection with the shooting death and robbery of the victim. The trial court, Higgins, J ., sentenced the defendant to forty-five years of incarceration with respect to the murder conviction, forty-five years of incarceration with respect to the felony murder conviction, and twenty years of incarceration with respect to the robbery conviction. The court ordered the sentences to run concurrently, resulting in a total effective sentence of forty-five years of incarceration. The defendant's convictions of murder and felony murder were not merged, nor was the conviction of felony murder vacated, during the sentencing proceeding or at any time thereafter.

The defendant filed a motion to correct his sentence on May 27, 2016, and, following the appointment of counsel, a revised motion, dated February 28, 2017. The defendant argued that his convictions of murder and felony murder with respect to the death of one victim violated the constitutional prohibition against double jeopardy and that cumulative convictions lead to adverse collateral consequences. Relying on State v. Miranda , 317 Conn. 741, 755–56, 120 A.3d 490 (2015), the defendant argued that "[m]erger is no longer the appropriate remedy" and requested that the court vacate the felony murder conviction.

The court, Gold, J ., heard argument on the motion on July 18, 2017. The state and the defendant agreed that "there should no longer be a sentence on the felony murder [conviction]." The question presented to the court was whether the convictions should be merged or the felony murder conviction vacated. The state argued that State v. Chicano , 216 Conn. 699, 725, 584 A.2d 425 (1990) (overruled in part by State v. Polanco , 308 Conn. 242, 61 A.3d 1084 (2013) ), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991), was the controlling authority at the time of the defendant's sentencing and, therefore, the court should merge the defendant's convictions. The state asserted that State v. Polanco , 308 Conn. 242, 245, 61 A.3d 1084 (2013), in which our Supreme Court terminated the use of the merger of convictions approach and readopted vacatur as a remedy for cumulative convictions that violate double jeopardy protections, was not given retroactive effect. The defendant reiterated his argument that merger is no longer the appropriate remedy and that the conviction of felony murder should be vacated. In support of that argument, the defendant maintained that "cumulative convictions for the single victim lead to an adverse collateral consequence" and directed the court to our Supreme Court's statement in State v. Miranda , supra, 317 Conn. at 753, 120 A.3d 490, that it was "not convinced that the opaque remedy of merger can be implemented in a manner that consistently protects defendants from the potential collateral consequences ...."

The parties appeared before the court on August 21, 2017, on which date the court issued its oral ruling denying the defendant's motion to correct an illegal sentence. The court incorrectly stated that, with respect to the convictions of murder and felony murder, that Judge Higgins had "merged those convictions, leaving the convictions intact, but merging them pursuant to the then existing law." Neither the state nor the defendant's counsel informed the court that the convictions never had been merged.

The court then stated that the defendant's motion "asks the court to apply, retroactively, to [his] 1998 conviction the new law in Connecticut first discussed in ... Polanco that rejected the merger rule that had long been in place and had, instead, adopted a rule whereby defendants convicted of murder and felony murder would have the felony murder conviction actually vacated, and it was that relief that [the defendant] asked the court to award here." The court first determined that the motion to correct was an appropriate procedural vehicle for the defendant to seek his requested relief. The court then identified the question before it as "whether or not the rule adopted in Polanco is appropriately applied retroactively to [the defendant's] 1998 conviction." The court found the rule adopted in Polanco to be procedural, determined that it did not rise to the level of "a watershed procedural rule,"³ and concluded that it did not apply retroactively to the defendant's 1998 conviction. Accordingly, the court denied the defendant's motion. This appeal followed.

On appeal, the defendant claims that the court erred in denying his motion to correct an illegal sentence. Specifically, he argues: "First, the trial court incorrectly found that Judge Higgins merged the defendant's convictions and sentences in 1998. That was incorrect, as the defendant's multiple convictions and sentences have never been remedied. Second, the trial court incorrectly concluded that remedying the double jeopardy violation by applying the rule of vacatur adopted by our Supreme Court in State v. Polanco , [supra] 308 Conn. 242, 61 A.3d 1084 ... would amount to an impermissible retroactive application of that decision. That was also incorrect because, as stated earlier, the defendant's multiple convictions and sentences were not merged in 1998. As such, upon the defendant's motion, the trial court was asked for the first time to remedy this clear double jeopardy violation." The state, abandoning the argument it made before the trial court that merger is the proper remedy in this case, responds that, "in light of the existing double jeopardy violation arising from the defendant's cumulative homicide convictions, the state agrees with the defendant that this court should reverse the judgment of the trial court and remand the matter for resentencing with direction to apply the Polanco - Miranda vacatur procedure, which presently is the applicable law in Connecticut." We agree with the parties.

We first set forth our standard of review and legal principles governing motions to correct an illegal sentence. " Practice Book § 43-22 provides in relevant part that [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 .... It is well established that under the common law a trial court has the discretionary power to modify or vacate a criminal judgment [only] before the sentence has been executed. ... This is so because the court loses jurisdiction over the case when the defendant is committed to the custody of the [C]ommissioner of [C]orrection and begins serving the sentence. ... Without a legislative or constitutional grant of continuing jurisdiction ... the trial court lacks jurisdiction to modify its judgment. ...

"Because the judiciary cannot confer jurisdiction on itself through its own rule-making power, [Practice Book] § 43-22 is limited by the common-law rule that a trial court may not modify a sentence if the sentence was valid and its execution has begun. ... Therefore, for the trial court to have jurisdiction to consider the defendant's claim of an illegal sentence, the claim must fall into one of the categories of claims that, under the common law, the court has jurisdiction to review. ...

"[A]n illegal sentence is essentially one [that] ... exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory. ... In accordance with this summary, Connecticut courts have considered four categories of claims pursuant to [Practice Book] § 43-22. The first category has addressed whether the sentence was within the permissible range for the crimes charged. ... The second category has considered violations of the prohibition against double jeopardy. ... The third category has involved claims pertaining to the computation of the length of the sentence and the question of consecutive or concurrent prison time. ... The fourth category has involved questions as to which sentencing statute was applicable. ...

"This court has recognized that a claim is cognizable in a motion to correct an illegal sentence if it is a challenge specifically directed to the punishment imposed, even if relief for that illegal punishment requires the court to in some way modify the underlying convictions, such as for double jeopardy challenges." (Citations omitted; internal quotation marks omitted.) State v. Smith , 338 Conn. 54, 59–60, 256 A.3d 615 (2021). "[C]aims of double jeopardy...