State v. Koslik, 29673.

• Decision Date: 01 September 2009
• Docket Number: No. 29673.,29673.
• Citation: 116 Conn.App. 693,977 A.2d 275
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Richard KOSLIK.

977 A.2d 275

116 Conn.App. 693

STATE of Connecticut v. Richard KOSLIK.

No. 29673.

Appellate Court of Connecticut.

Argued April 28, 2009.

Decided September 1, 2009.

Jodi Zils Gagne, for the appellant (defendant).

Joseph Rubin, associate attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (state).

DiPENTIMA, ROBINSON and ALVORD, Js.

DiPENTIMA, J.

The defendant, Richard Koslik, appeals from the denial of his motion to correct an illegal sentence. On appeal, he claims that his sentence is illegal because the term of probation exceeds the permissible statutory maximum for violations of General Statutes § 20-427(b)(3) and (5). We conclude that the record is inadequate for our review and, therefore, affirm the judgment of the trial court.

The following factual and procedural history is relevant to our discussion. The defendant had been convicted of representing himself falsely as or impersonating a registered home improvement contractor in violation of § 20-427(b)(3) and offering to make home improvements without having a certificate of registration in violation of § 20-427(b)(5). The court, Wollenberg, J., sentenced the defendant to a total effective term of one year imprisonment, execution suspended after 180 days, and three years probation. State v. Koslik, 80 Conn. App. 746, 749, 837 A.2d 813, cert. denied, 268 Conn. 908, 845 A.2d 413 (2004). This court affirmed the judgment on direct appeal. Id., at 748, 837 A.2d 813. The defendant began serving his sentence on April 6, 2004, and his period of probation commenced on September 24, 2004.

On February 28, 2007, a warrant was issued for the defendant's arrest on the basis of a violation of probation.¹ The arrest warrant was executed on April 9, 2007 within the three year period of probation. On September 25, 2007, the defendant, pursuant to Practice Book § 41-8(1), (2), (3) and (9), moved to dismiss the information and filed a motion to correct an illegal sentence pursuant to Practice Book § 43-22. Specifically, he argued that violations of § 20-427(b)(3) and (5) constitute class B misdemeanors, and, therefore, the term of probation could not exceed two years. See General Statutes (Rev. to 2001) § 53a-29 (d).² The defendant then acknowledged that § 20-427(c) authorized probation for a period of not more than five years if the court determined that a defendant, convicted of violating § 20-427, could not fully repay a victim within the period of probation set forth in § 53a-29. The defendant argued that because the sentencing court found that the defendant could repay the victim fully within eighteen months, imposing a probationary period of greater than two years was illegal.

On November 15, 2007, the court, B. Fischer, J., held a hearing on the defendant's motion to correct an illegal sentence. On December 11, 2007, the court denied the defendant's motion. This appeal followed.

I

As a threshold matter, we must address the state's claim that the court lacked jurisdiction to consider the defendant's motion to correct an illegal sentence. The state argues that because the defendant's sentence fell within the permissible parameters of § 20-427, the trial court lacked jurisdiction pursuant to our Supreme Court's decision in State v. Lawrence, 281 Conn. 147, 913 A.2d 428 (2007). We disagree with the state's jurisdictional argument.

We begin by setting forth the legal principles germane to our discussion. "It is axiomatic that jurisdiction involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created." (Internal quotation marks omitted.) State v. Reid, 277 Conn. 764, 774, 894 A.2d 963 (2006). "The Superior Court is a constitutional court of general jurisdiction. In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law." (Internal quotation marks omitted.) State v. Das, 291 Conn. 356, 361, 968 A.2d 367 (2009); see also State v. DeJesus, 288 Conn. 418, 457, 953 A.2d 45 (2008). Issues regarding subject matter jurisdiction present a question of law, and, therefore, we employ the plenary standard of review. State v. Carmona, 104 Conn.App. 828, 832, 936 A.2d 243 (2007), cert. denied, 286 Conn. 919, 946 A.2d 1249 (2008); see also State v. Richardson, 291 Conn. 426, 429, 969 A.2d 166 (2009); State v. Lewis, 108 Conn.App. 486, 488, 948 A.2d 389 (2008) (whether motion fell within scope of Practice Book § 43-22 reviewed under plenary standard). Last, we note our Supreme Court's instruction that "in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) State v. Fowlkes, 283 Conn. 735, 739, 930 A.2d 644 (2007).

Our jurisprudence recognizes that the jurisdiction of a sentencing court terminates once that sentence has begun and, thus, that court may not take any action affecting the sentence unless it expressly has been authorized to act. Cobham v. Commissioner of Correction, 258 Conn. 30, 37, 779 A.2d 80 (2001); see also State v. Das, supra, 291 Conn. at 362-63, 968 A.2d 367; State v. Tabone, 279 Conn. 527, 533, 902 A.2d 1058 (2006). Both this court and our Supreme Court, however, have stated that courts have the power to correct an illegal sentence. State v. Daniels, 207 Conn. 374, 387, 542 A.2d 306, after remand for articulation, 209 Conn. 225, 550 A.2d 885 (1988), cert. denied, 489 U.S. 1069, 109 S.Ct. 1349, 103 L.Ed.2d 817 (1989); State v. Guckian, 27 Conn.App. 225, 245, 605 A.2d 874 (1992), aff'd, 226 Conn. 191, 627 A.2d 407 (1993); State v. Elliott, 8 Conn. App. 566, 574, 513 A.2d 1285 (judicial authority may correct illegal sentence at any time), cert. denied, 201 Conn. 813, 517 A.2d 630 (1986).

In State v. Lawrence, supra, 281 Conn. at 147, 913 A.2d 428, our Supreme Court extensively discussed when a trial court has the authority to modify a criminal judgment after the sentence has been executed. It began by noting that absent a legislative, constitutional or common-law basis for continuing jurisdiction, the trial court lacks jurisdiction to modify its judgment. Id., at 153-55, 913 A.2d 428. The court then explained the common-law exceptions, embodied in Practice Book § 43-22,³ to the rule preventing the court from affecting a sentence after it has begun. "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.) State v. Lawrence, supra, at 156-57, 913 A.2d 428.

Accordingly, if a defendant's claim falls within one of these four categories the trial court has jurisdiction to modify a sentence after it has commenced. It must, however, make the preliminary determination of whether the claim falls within one of these categories before considering the merits of a claim of an illegal sentence. See, e.g., State v. Das, supra, 291 Conn. at 369-70, 968 A.2d 367 (determination concerning jurisdiction made before consideration of merits). If the claim is not within one of these categories, then the court must dismiss the claim for a lack of jurisdiction and not consider its merits. State v. Lawrence, supra, 281 Conn. at 159, 913 A.2d 428. Put another way, because jurisdiction implicates a court's ability to act, a court may only consider the merits of a claim once the preliminary determination has been resolved in favor of jurisdiction.

Our Supreme Court has concluded that to invoke successfully the court's jurisdiction with respect to a claim of an illegal sentence, the focus cannot be on what occurred during the underlying conviction. Id., at 158, 913 A.2d 428; see also State v. Mollo, 63 Conn.App. 487, 491, 776 A.2d 1176, cert. denied, 257 Conn. 904, 777 A.2d 194 (2001). "In 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, supra, 281 Conn. at 158, 913 A.2d 428. In Lawrence, the defendant's claim presupposed an invalid conviction; therefore, it was outside of the scope of the exceptions to the general rule regarding a court's lack of jurisdiction after a sentence has begun. Id., at 159, 913 A.2d 428.

In the present case, the defendant, via his motion, argued that his sentence of three years of probation was illegal. "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. McNellis, 15 Conn.App 416, 443-44, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988); see also State v. Das, supra, 291 Conn. at 363 n. 3, 968 A.2d 367.

The defendant's claim is that his sentence of three years probation was illegal because it exceeded the relevant statutory maximum. Section 20-247(c) provides that violations of § 20-427(b)(3) and (5) are class B misdemeanors. The maximum term of probation for a class B misdemeanor, as stated in § 53a-29 (d), is two years. He argues that because the sentencing court did not make a finding that permits an extended period of probation; see § 40-247(c); his three year sentence of probation exceeded the relevant statutory maximum of two years probation. The defendant's claim presents a "classic"...