State v. Mitchell, 12589

• Citation: 37 Conn.App. 228,655 A.2d 282
• Decision Date: 14 March 1995
• Docket Number: No. 12589,12589
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut, v. Cornell MITCHELL.

Page 282

655 A.2d 282

37 Conn.App. 228

STATE of Connecticut, v. Cornell MITCHELL.

No. 12589.

Appellate Court of Connecticut.

Argued Dec. 8, 1994.

Decided March 14, 1995.

Ross M. Delaney, Asst. Public Defender, for appellant (defendant).

David J. Sheldon, Deputy Asst. State's Atty., with whom, on the brief, were John M. Bailey, Chief State's Atty., and William Bumpus, Former Asst. State's Atty., for appellee (state).

Before HEIMAN, SCHALLER and HENNESSY, JJ.

SCHALLER, Judge.

The defendant appeals from the judgments of conviction rendered in two separate proceedings. In the first proceeding, the defendant was convicted, following his guilty plea, of larceny in the sixth degree in violation of General Statutes § 53a-125b ¹ and being a persistent larceny offender in violation of General Statutes § 53a-40(c). ² In the second proceeding, the defendant was convicted of burglary in the third degree in violation of General Statutes § 53a-103. ³ The defendant claims on appeal that (1) his five year sentence for being a persistent larceny offender should be set aside because he was illegally sentenced in violation of his constitutional right not to be subjected to multiple punishments for the same crime, and (2) his conviction for burglary in the third degree should be reversed because the long form information failed to allege an essential element of the offense in violation of his right under article first, §§ 8 and 9, of the Connecticut constitution. We affirm the judgment of the trial court.

With respect to the first proceeding concerning the larceny charges, the relevant facts are as follows. The defendant was arrested for attempting to steal a pair of boots from the Bradlees department store at 1250 Park Street in Hartford. On March 15, 1993, the defendant was charged with one count of larceny in the sixth degree, and one count of being a persistent larceny offender for the attempted theft. The defendant pleaded guilty to both charges on March 17, 1993. The defendant was sentenced to three months with respect to larceny in the sixth degree, and five years on the persistent larceny offender count. ⁴

With respect to the second proceeding involving the charge of burglary in the third degree, the jury reasonably could have found the following facts. On November 15, 1992, Officers Alfred Fernino and Aurelio Rinaldi responded separately to a dispatcher's report that the burglar alarm of Connecticut Linen Company, located at 439 Homestead Avenue in Hartford, had been activated. Both officers conducted a search outside of the premises, but they found nothing out of the ordinary. After the officers had left, the burglar alarm was again activated. Upon being notified by the dispatcher that the burglar alarm had again been activated, the officers drove to the scene to investigate. Fernino noticed a blue duffel bag placed next to the rear wall of the building and immediately informed Rinaldi by radio. Fernino noticed that the bag contained white towels. He then located another blue duffel bag next to a fence that separated the property from railroad tracks. Fernino found the defendant hiding near the tracks. By this time, Rinaldi had arrived at the rear of the building, and the officers proceeded to arrest the defendant. A search of the defendant produced a screwdriver and a camping knife. After placing the defendant in the cruiser, the officers continued their investigation. The officers located another duffel bag also filled with towels in a shopping cart. The defendant admitted that the shopping cart belonged to him and that he had put the bag in the cart. The officers also discovered that the lock on the rear door had been pried open and that the marks on the lock matched the shape of the defendant's knife. The towels in the duffel bags were found to be the property of Connecticut Linen Company. The defendant was convicted, following a jury trial, of three counts, including burglary in the third degree in violation of General Statutes § 53a-103.

I

The defendant claims that his right under the fifth amendment to the United States constitution ⁵ that he not be subjected to multiple punishments for the same crime was violated by the trial court when it imposed an illegal sentence. We conclude that this claim is moot.

The trial court sentenced the defendant to a term of three months for the larceny in the sixth degree conviction and then sentenced the defendant to a term of five years on the persistent larceny offender count. Section 53a-125b classifies larceny in the sixth degree as a class C misdemeanor. General Statutes § 53a-40(h) allows the court to sentence a persistent larceny offender who has committed larceny in the sixth degree to the term of imprisonment authorized for a class D felony by General Statutes § 53a-35. Section 53a-40(h) provides in relevant part: "When any person has been found to be a persistent larceny offender ... the court, in lieu of imposing the sentence authorized by section 53a-36 for the crime of which such person presently stands convicted, may impose the sentence of imprisonment for a class D felony authorized by section 53a-35...." (Emphasis added.). The trial court improperly sentenced the defendant on both counts.

The trial court may sentence the defendant as a persistent larceny offender or on the underlying larceny count, but not both. General Statutes § 53a-40(c). Practice Book § 935 provides in relevant part: "The judicial authority may at any time correct an illegal sentence...." Accordingly the defendant may challenge the legality of a sentence at any time, and we have the authority to correct the illegal sentence. State v. Daniels, 207 Conn. 374, 387, 542 A.2d 306 (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).

Even though Practice Book § 935 allows this court to correct an illegal sentence, the claim is moot in this case because the sentence has already been corrected. The trial court acting pursuant to an order of the sentence review division ⁶ of the Superior Court resentenced the defendant to three years and three months for being a persistent larceny offender under § 53a-40(h).

Notwithstanding the correction, the defendant argues that the imposition of the illegal sentence by the trial court violated his constitutional right not to be punished for the same crime twice. That argument is unavailing. Until all avenues for challenging the legality of the defendant's sentence are exhausted, "jeopardy does not attach...." State v. Langley, 156 Conn. 598, 601, 244 A.2d 366 (1968), cert. denied, 393 U.S. 1069, 89 S.Ct. 726, 21 L.Ed.2d 712 (1969). It is well established that resentencing does not "involve double jeopardy" in cases where the defendant's first sentence was illegal. Id., 156 Conn. at 602, 244 A.2d 366; see also Mathes v. United States, 254 F.2d 938, 939 (9th Cir.1958); Robinson v. United States, 144 F.2d 392, 397 (6th Cir.1944); McCleary v. Hudspeth, 124 F.2d 445, 447 (10th Cir.1941), cert. denied, 316 U.S. 670, 62 S.Ct. 1043, 86 L.Ed. 1745 (1942). "The common law embodies in itself sufficient reason and common sense to reject the monstrous doctrine that a prisoner, whose guilt is established, by a regular verdict, is to escape punishment altogether, because the court committed an error in passing the sentence. In re Bonner, 151 U.S. 242, 260, 14 S.Ct. 323, 327, 38 L.Ed. 149 [1894] (quoting the Supreme Court of Pennsylvania in Beale v. Commonwealth, 25 Pa.St. 11, 22)." (Internal quotation marks omitted.) State v. Langley, supra, 156 Conn. at 603, 244 A.2d 366.

II

The defendant next claims that the judgment of conviction of burglary in the third degree should be set aside because the information fails to charge a cognizable criminal offense in violation of article first, §§ 8 and 9, of the Connecticut constitution. ⁷ The defendant also argues that under article first, § 8, the trial court lacked jurisdiction because the information was defective.

The long form information filed by the state charging the defendant with burglary in the third degree under General Statutes § 53a-103(a), omitted the word unlawfully. ⁸ Even though the information omitted the word unlawfully, the trial court instructed the jury that in order for the defendant to be guilty of burglary in the third degree the state must prove beyond a reasonable doubt "that the defendant knowingly entered or remained unlawfully in the premises ... you must further find that the unlawful entry or remaining was effected or occurred with defendant's intent to commit a crime in that building."

Practice Book § 811 allows a defendant to raise a jurisdictional claim that an information is defective. ⁹ State v. McMurray, 217 Conn. 243, 249, 585 A.2d 677 (1991); State v. Vincent, 194 Conn. 198, 204 n. 10, 479 A.2d 237 (1984). We note that Practice Book § 815 affords a defendant an opportunity to ask for dismissal of the charges based on "defects in the indictment or information including failure to charge an offense" by filing a pretrial motion. The defendant did not raise the issue of a defect in the long form information before or during the trial.

Moreover, "[w]hen reviewing a claim, not raised prior to the verdict, that an information fails to charge all the essential elements of an offense, we must construe the information liberally in favor of the state." State v. McMurray, supra, 217 Conn. at 250, 585 A.2d 677; see also Hagner v. United States, 285 U.S. 427, 433, 52 S.Ct. 417, 419, 76 L.Ed. 861 (1932); United States v. Hooker, 841 F.2d 1225, 1228-29 (4th Cir.1988); United States v. Previte, 648 F.2d 73, 80 (1st Cir.1981); United States v. Fistel, 460 F.2d 157, 161 (2d Cir.1972). "Under the applicable standard of review, a conviction based upon a challenged information is valid unless the information is so obviously defective that by no reasonable...