State v. Mitchell

• Citation: 195 Conn.App. 543,227 A.3d 522
• Decision Date: 11 February 2020
• Docket Number: AC 41897
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. James MITCHELL

195 Conn.App. 543

227 A.3d 522

STATE of Connecticut

v.James MITCHELL

AC 41897

Appellate Court of Connecticut.

Argued October 9, 2019

Officially released February 11, 2020

James E. Mortimer, assigned counsel, for the appellant (defendant).

Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Donna Mambrino, senior assistant state's attorney, for the appellee (state).

DiPentima, C.J., and Elgo and Moll, Js.

ELGO, J.

The defendant, James Mitchell, appeals from the judgment of the trial court denying in part his motion to correct an illegal sentence. On appeal, the defendant argues that the court improperly rejected his claim that his conviction for two crimes predicated on Pinkerton liability¹ violates the constitutional prohibition against double jeopardy. We affirm the judgment of the trial court.

The facts underlying the defendant's criminal conviction were set forth in this court's decision on his direct appeal. "On August 23, 2003, following an evening at a nightclub, the victim was dropped off at a friend's house in East Hartford. Wanting to return home, and with her residence too distant to walk, the victim called the defendant for a ride. The victim chose to call the defendant because she knew that Denasha Sanders, the mother of one of the defendant's children, had lived in the same building as the victim and that the defendant was frequently in the vicinity. The defendant and the victim's brother had had a prior confrontation concerning the fact that the victim's brother had dated Sanders. Shortly before August 23, the victim's brother and Sanders had moved to North Carolina with the child of Sanders and the defendant.

"The defendant arrived driving a gold Nissan Altima accompanied by another man, unknown to the victim at the time, but later identified as Travis Hampton. The victim agreed to go with the defendant and Hampton to downtown Hartford to get something to eat. Upon leaving a restaurant, the defendant became violent with the victim, striking her with his cell phone and demanding to know the location of the victim's brother. Out of fear that the defendant would harm her, the victim lied to the defendant and told him that her brother was at her grandfather's house. The victim attempted to leave the car, but the defendant pulled her by the hair and locked the doors. During this time, Hampton remained in the backseat of the vehicle.

"The defendant subsequently determined that the victim's brother was not at her grandfather's house. He drove the victim and Hampton to his mother's house in Hartford and ordered the victim out of the car. The victim briefly complied and then returned to the vehicle while the defendant and Hampton entered the house. When the defendant and Hampton returned, the three proceeded to leave the area by car. The defendant apologized to the victim for hitting her and offered her marijuana, which she accepted. Instead of driving the victim home, however, the defendant drove to Market Street in Hartford and parked his vehicle. The defendant told the victim he wanted to have sex with her and proposed that they go to a hotel or to Sanders' house.

"The victim refused and got out of the car, intending to walk home. The defendant produced a shotgun, which he gave to Hampton, who pointed the weapon at the victim's face. The defendant and Hampton told the victim to remove her pants. The victim testified that the defendant raped her vaginally from behind. When the defendant was finished, he forced the victim to perform fellatio on Hampton. The victim complied briefly, and Hampton proceeded to rape her vaginally, while the defendant regained and held the shotgun. The victim grabbed her pants and yelled at the defendant to let her leave. The defendant told the victim she could get into a nearby dumpster or run. As the victim attempted to run, the defendant shot her in the side of the stomach. The victim continued her attempt to run away, followed by Hampton, who now had the shotgun. The defendant pursued the victim in the car and blocked her path. Hampton shot the victim again. He and the defendant then left the scene. Shortly thereafter, the defendant and Hampton returned briefly and then left the area again. The victim dragged herself to the street, where she was found by a passing driver. The police and paramedics were summoned, and the victim was taken to Hartford Hospital for treatment." State v. Mitchell , 110 Conn. App. 305, 308–10, 955 A.2d 84, cert. denied, 289 Conn. 946, 959 A.2d 1012 (2008).

The defendant subsequently was arrested and charged with attempt to commit murder as an accessory in violation of General Statutes §§ 53a-8, 53a-49 (a) and 53a-54a (a), conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a), kidnapping in the first degree in violation of General Statutes §§ 53a-8 and 53a-92 (a) (2) (A), conspiracy to commit kidnapping in the first degree in violation of §§ 53a-48 and 53a-92 (a) (2) (A), sexual assault in the first degree in violation of General Statutes §§ 53a-8 and 53a-70 (a) (1), conspiracy to commit sexual assault in the first degree in violation of §§ 53a-48 and 53a-70 (a) (1), assault in the first degree in violation of General Statutes §§ 53a-8 and 53a-59 (a) (5), conspiracy to commit assault in the first degree in violation of §§ 53a-48 (a) and 53a-59 (a) (5), and criminal possession of a firearm in violation of General Statutes (Rev. to 2003) § 53a-217 (a) (1). Following a trial, the jury found the defendant guilty of all counts.²

At sentencing, the court vacated the defendant's sentences of conspiracy to commit murder, conspiracy to commit sexual assault in the first degree, and conspiracy to commit assault in the first degree. The court, at that time, explained that "[s ]ince the conspiracies merge , [the] sentences [for those three offenses] are vacated to be renewed only if necessary on a resentencing should the conspiracy to [commit] kidnapping be found not to be a valid conviction." (Emphasis added.) The court then sentenced the defendant to a total effective term of fifty-seven years of incarceration.³ From that judgment, the petitioner unsuccessfully appealed to this court. See State v. Mitchell , supra, 110 Conn. App. 305, 955 A.2d 84.

In 2014, the defendant filed a motion to correct an illegal sentence pursuant to Practice Book § 43-22.⁴ The defendant subsequently was appointed counsel, who filed a memorandum of law in support of the defendant's motion. At a hearing held on August 29, 2016, the defendant clarified the twofold nature of his motion to correct. First, the defendant asserted that the conspiracy convictions that "were ordered merged" at sentencing "should have been vacated." Second, the defendant alleged that his convictions for sexual assault in the first degree and assault in the first degree on the basis of Pinkerton liability; see footnote 2 of this opinion; violate the double jeopardy prohibition against multiple punishments in light of his conviction for conspiracy to commit kidnapping in the first degree.

Following the submission of memoranda of law by the parties,⁵ the court granted in part the defendant's motion to correct. The court reviewed the transcript of the November 1, 2005 sentencing proceeding and noted that it had ordered the defendant's convictions for conspiracy to commit murder, conspiracy to commit sexual assault in the first degree, and conspiracy to commit assault in the first degree to be vacated in light of the fact that they had merged with the conviction of conspiracy to commit kidnapping in the first degree.

In granting in part the defendant's motion to correct, the court vacated its November 1, 2005 order and, instead, ordered that the defendant's convictions for conspiracy to commit murder, conspiracy to commit sexual assault in the first degree, and conspiracy to commit assault in the first degree "are simply vacated." See State v. Polanco, 308 Conn. 242, 248, 61 A.3d 1084 (2013). At the same time, the court rejected the defendant's double jeopardy challenge and, accordingly, denied in part the motion to correct. From that judgment, the defendant now appeals.

On appeal, the defendant contends that the court improperly concluded that his convictions for sexual assault in the first degree and assault in the first degree, both of which were predicated on Pinkerton liability, do not violate the prohibition against double jeopardy when considered in light of his conviction for conspiracy to commit kidnapping in the first degree. On our plenary review of that question of law; see State v. Burnell, 290 Conn. 634, 642, 966 A.2d 168 (2009) ; we disagree.

The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb ...."⁶ That constitutional provision is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland , 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). An alleged double jeopardy violation is a proper basis for a motion to correct an illegal sentence. See State v. Wade , 178 Conn. App. 459, 466, 175 A.3d 1284 (2017), cert. denied, 327 Conn. 1002, 176 A.3d 1194 (2018).

As the United States Supreme Court has observed, the double jeopardy clause has three functions: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense. See Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). The third function is at issue in this appeal.

In the multiple punishments context, the interest protected by the double jeopardy clause "is limited to ensuring that the total punishment did not exceed that authorized by the legislature .... The...