State v. Kokkinakos

• Decision Date: 28 May 2013
• Docket Number: No. 33912.,33912.
• Citation: 143 Conn.App. 76,66 A.3d 936
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Christopher KOKKINAKOS.

143 Conn.App. 76

66 A.3d 936

STATE of Connecticut

v.Christopher KOKKINAKOS.

No. 33912.

Appellate Court of Connecticut.

Argued March 4, 2013.

Decided May 28, 2013.

Prior Version Held Unconstitutional

C.G.S.A. § 53a–40(j)Katherine S. Goodbody, assigned counsel, with whom, on the brief, was Christopher Kokkinakos, pro se, for the appellant (defendant).

Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were David Shepack, state's attorney, and Jonathan Knight, assistant state's attorney, for the appellee (state).

LAVINE, BEACH and BEAR, Js.

BEACH, J.

The defendant, Christopher Kokkinakos, appeals from the denial of his motion to correct an illegal sentence. The defendant claims that the court erred in denying his motion to correct because his sentence was imposed in an illegal manner by virtue of the court's failure to make a finding, pursuant to General Statutes (Rev. to 2007) § 53a–40 (j), that enhancement of his sentence was in the public interest.¹ We reverse the judgment of the trial court.

The record established that on May 8, 2007, the defendant stole a purse from a home in Thomaston and subsequently made purchases with credit cards taken from the purse. The state filed a substitute part A information charging the defendant with burglary in the second degree, credit card theft, and failure to appear, after the defendant failed to appear for a court date in connection with the May 8, 2007 incident. The state also filed a part B information, charging that the defendant was convicted of burglary in the second degree in 1990, and that the defendant was therefore subject to an enhanced penalty pursuant to the persistent serious felony offender statute, General Statutes (Rev. to 2007) § 53a–40 (c). On May 30, 2008, the defendant pleaded guilty under the Alford doctrine ² to the part A and part B informations. On August 8, 2008, the defendant was sentenced to twenty years incarceration, execution suspended after eight years with five years probation. The defendant later filed a motion to correct an illegal sentence. In that motion, the defendant claimed that a finding that the public interest would be best served by his extended incarceration was never made, and the enhancement of his sentence by virtue of the part B information was thus illegal. The court denied the motion and this appeal followed.

Practice Book § 43–22 provides that “[t]he judicial authority may at any time correct an illegal sentence....” Interpreting § 43–22, our Supreme Court, in State v. Lawrence, 281 Conn. 147, 913 A.2d 428 (2007), stated: “Practice Book rules do not ordinarily define subject matter jurisdiction....” Because the judiciary cannot confer jurisdiction on itself through its own rule-making power, § 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 [a 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....

“Connecticut courts have considered four categories of claims pursuant to § 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.” (Citations omitted; internal quotation marks omitted.) Id., at 155–57, 913 A.2d 428.

The court also has jurisdiction to correct sentences imposed in an illegal manner. This category includes sentences that are “within the relevant statutory limits but ... imposed in a way which violates [the] defendants' 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).

“A denial of a motion to correct an illegal sentence is reviewed under the abuse of discretion standard.... Of course, when the court is called upon to exercise its legal discretion, we must determine whether the trial court correctly interpreted and applied the law.” (Citations omitted.) State v. Brown, 133 Conn.App. 140, 148, 34 A.3d 1007, cert. granted on other grounds, 304 Conn. 901, 37 A.3d 745 (2012).

A brief overview of the persistent felony offender statute, § 53a–40, is helpful. Referring to § 53a–40 as it read prior to the January 25, 2008 effective date of Public Acts, Special Session, January 2008, No. 08–1, § 7, our Supreme Court said: “Section 53a–40 sets forth six categories of persistent felony offenders in subsections (a) through (f), and each subsection has a corresponding provision that provides for an increased sentence on the basis of two factual predicates: first, that the defendant was found to be a persistent felony offender as defined in the respective subsection and, second, that ‘the court is of the opinion that such person's history and character and the nature and circumstances of such person's criminal conduct indicate that extended incarceration will best serve the public interest.... ’ The court may not impose an extended sentenceunless both factual predicates are satisfied.” ³ (Citations omitted; emphasis added.) State v. Michael A., 297 Conn. 808, 818–19, 1 A.3d 46 (2010) (discussing General Statutes [Rev. to 1999] § 53a–40 [a] through [f] ).

On September 11, 2007, after the defendant had committed the underlying offenses on May 8, 2007, but before he was sentenced on August 8, 2008, our Supreme Court officially released its decision in State v. Bell, 283 Conn. 748, 931 A.2d 198 (2007). In Bell, the court, relying on the principles stated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), held that “[the 2007 revision of General Statutes] § 53a–40 (h) is unconstitutional, to the extent that it does not provide that a defendant is entitled to have the jury make a required finding [that] expose[s] the defendant to a greater punishment than that authorized by the jury's guilty verdict....” (Emphasis added; internal quotation marks omitted.) State v. Bell, supra, 283 Conn. at 810, 931 A.2d 198. “After the Supreme Court's 2007 decision in Bell, the General Assembly accordingly amended § 53a–40, effective January 25, 2008, to eliminate the public interest finding altogether. See Public Acts, Spec. Sess., January, 2008, No. 08–1, § 7 [ (Spec.Sess.P.A.08–1) ].” State v. Reynolds, 126 Conn.App. 291, 301, 11 A.3d 198 (2011).

The defendant argues that the court erred in denying his motion to correct an illegal sentence. He claims that the sentencing court applied the revision of § 53a–40 that went into effect January 25, 2008, which eliminated the requirement that the court—or the jury after Bell—make the public interest determination, rather than General Statutes (Rev. to 2007) § 53a–40, which existed prior to the enactment of Spec. Sess. P.A. 08–1 and required that the court make the public interest determination. He argues that, in the context of a plea, the court was required to make the public interest finding if the sentence were to be enhanced. Because no public interest finding was made by the court, the defendant argues, his enhanced sentence should be set aside.

The state agrees that General Statutes (Rev. to 2007) § 53a–40, as amended by Spec. Sess. P.A. 08–1, did not apply to the defendant's case, but contends that the defendant, by pleading guilty to the part B information, acknowledged every relevant element of § 53a–40, including an admission that an enhanced sentence was in the public interest.

As both parties agree, the amended revision of § 53a–40, eliminating the need for a specific finding of public interest, did not apply in this case. See State v. Graham, 56 Conn.App. 507, 510, 743 A.2d 1158 (2000) (in determining whether change in statutory law applies in criminal cases courts generally apply law in existence on date of offense); see also State v. Ross, 230 Conn. 183, 283, 646 A.2d 1318 (1994) (relying on date of offense in retroactivity analysis of change in statutory law), cert. denied, 513 U.S. 1165 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995). Special Session P.A. 08–1 provided that it was effective January 25, 2008, and the legislature did not indicatethat it should apply to pending matters.

We next consider whether Bell applies to the enhancement in this case. Ordinarily, it is the general rule that “judgments that are not by their terms limited to prospective application are presumed to apply retroactively ... to cases that are pending....” (Internal quotation marks omitted.) State v. Kitchens, 299 Conn. 447, 454, 10 A.3d 942 (2011); see State v. Ryerson, 201 Conn. 333, 339, 514 A.2d 337 (1986) (“If a new constitutional doctrine is truly right, we should not reverse lower courts which have accepted it; nor should we affirm those which have rejected the very arguments we have embraced.... [C]omplete retroactive effect is most appropriate where a new constitutional principle is designed to enhance the accuracy of criminal trials.” [Citations omitted; internal quotation marks omitted.] ); see also State v. Bell, 303 Conn. 246, 258, 33 A.3d 167 (2011) (retroactive application of § 53a–40 [h] as modified by State v. Bell, supra, 283 Conn. at 748, 931 A.2d 198, does not violate ex post facto principles embodied in fourteenth amendment).

There are exceptions to this general rule. See, e.g., ...