State v. Osuch

• Decision Date: 26 October 2010
• Docket Number: No. 30489.,30489.
• Citation: 5 A.3d 976,124 Conn.App. 572
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. David OSUCH.

5 A.3d 976

124 Conn.App. 572

STATE of Connecticut

v.David OSUCH.

No. 30489.

Appellate Court of Connecticut.

Argued May 27, 2010.

Decided Oct. 26, 2010.

Jodi Zils Gagne, special public defender, for the appellant (defendant).

Richard K. Greenalch, Jr., special deputy assistant state's attorney, with whom were Michael E. O'Hare, supervisory assistant state's attorney, and, on the brief, David I. Cohen, state's attorney, Courtney Gates-Graceson, special deputy assistant state's attorney, and Steven G. Weiss, supervisory assistant state's attorney, for the appellee (state).

BISHOP, GRUENDEL and LAVERY, Js.

LAVERY, J.

The defendant, David Osuch,¹ appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. On appeal, the defendant claims that the court improperly determined that it did not have jurisdiction to address his motion and that the court should have corrected his sentence because it was based on inaccurate information. Although we agree with the defendant that the court improperly determined that it lacked jurisdiction, weconclude that the doctrine of res judicata bars review of the merits of his claim.

The following facts and procedural history are relevant to our disposition of the defendant's appeal. After being found guilty of burglary in the third degree on five criminal dockets, the defendant was sentenced, on January 30, 2001, to five consecutive four year terms of incarceration by the court. We upheld the convictions on appeal. See State v. O'Such, 74 Conn.App. 906, 815 A.2d 296, cert. denied, 263 Conn. 902, 819 A.2d 838 (2003).

Subsequently, the defendant filed a petition for a writ of habeas corpus, alleging, inter alia, that the presentence investigation report (report) contained incorrect information,² that his counsel was ineffectivefor failing to review the report with him and that he never met with the probation officer who prepared the report-hence, its inaccuracy. He also claimed that, despite his extensive history of substance abuse, he has never received drug treatment ³ and that he only admitted to the police that he committed one burglary, not five. On November 7, 2006, the court granted the habeas petition in part, restoring the defendant's right to file an application for sentence review. Osuch v. Warden, Superior Court, judicial district of Tolland, Docket No. TSRCV-03-0004174-S, 2006 WL 3360931 (November 7, 2006). The court denied thepetition as to his other claims, including the claims concerning the report. The court deemed not credible the defendant's claim that he never met with the probation officer,⁴ as well as his claim that he informed the police that he was involved in only one burglary.

In specifically responding to the defendant's allegations about the report, the court found that the defendant's attorney "read the [report] prior to sentencing and incorporated references to it when he addressed the sentencing court. Further, the sentencing transcript also shows that [the defendant] himself referenced the [report] when he addressed [the court], a fact that belies [the defendant's] testimony before [the habeas] court and further undermines his credibility." Moreover, the court went on to state that, despite the defendant's "assertions to the contrary, the court finds it extremely unlikely that the errors identified in the [report] would have had any bearing or impact on the sentence imposed by the court. Notably, in its remarks justifying the length of the sentence imposed, the court did not rely upon any of the alleged errors in the [report], but rather cited [the defendant's] lengthy criminal history,⁵ his decision to go to trial and the nature of the present charges. Thus, [the defendant] has failed to prove how, if at all, any errors in the [report] influenced the sentencing court. The claims pertaining to the errors in the [report] are, therefore, without merit." Thereafter, thedefendant appealed following the denial of his petition for certification to appeal from the habeas judgment, and we dismissed the appeal. See O'Such v. Commissioner of Correction, 111 Conn.App. 135, 957 A.2d 887, cert. denied, 289 Conn. 957, 961 A.2d 420 (2008).

Pursuant to the relief granted by the habeas court's decision, the matter came before the sentence review division (division) for a hearing on the merits on March 25, 2008. Before the division, the defendant argued again that he never saw the report prior to sentencing, that his attorney never reviewed the report with him and that the report contained a number of inaccuracies-the same inaccuracies he had cited to the habeas court. Additionally, he alleged that the report overstated the extent to which he received drug treatment. He contended that if these inaccuracies in the report had been corrected prior to sentencing, it is possible that the sentencing court could have reduced his overall sentence by making the sentences on the individual burglary counts concurrent or by imposing drug treatment during probation, as opposed to a long prison sentence.

The division concluded that "[t]aking into consideration the nature of these crimes, the sentence imposed is neither inappropriate nor disproportionate." Rather, given the defendant's past probation violations and accumulated disciplinary problems while incarcerated, the division found that the defendant's twenty year sentence was appropriate because the defendant "was a career burglar who had been convicted of numerous burglaries in the past." The decision of the division could not be appealed. See State v. Rupar, 293 Conn. 489, 498, 978 A.2d 502 (2009).

The defendant, however, pursued another procedural avenue in order to contest his sentence. While the habeas judgment was being considered on appeal, thedefendant filed a motion to correct the sentences pursuant to Practice Book § 43-22.⁶ A hearing on the motion to correct an illegal sentence was held before the trial court, Hon. Martin L. Nigro, judge trial referee, on August 12, 2008.⁷

At the hearing, the defendant again contended that the sentences were imposed in an illegal manner because the report contained inaccuracies-the same inaccuracies previously cited to the habeas court and the division-that the trial court subsequently relied on in sentencing him. He also claimed that he had never met with his probation officer concerning the report and, furthermore, that he had obtained additional evidence in the form of two letters to support his claim. The state, in turn, argued that the trial court lacked jurisdiction to review the motion and that the defendant was estopped from arguing that the court should not rely on the report because, at the time of sentencing, both he and his counsel urged the court to rely on it.

After the attorneys concluded their arguments, the trial court considered whether it had jurisdiction to rule on the motion to correct pursuant to Practice Book § 43-22. Finding that the sentence was legal and well within the sentencing parameters, the court stated that "[t]he sentences are not incorrect in that they did not exceed the possible maximum sentence that could be imposed. And that's the only area where the court is entitled to take jurisdiction." As a result, the court concluded that it did not have jurisdiction to hear the matter and dismissed the defendant's motion to correct. In soordering, however,the court noted that in sentencing the defendant it had taken into account his previous criminal record of similar crimes. It also observed that the defendant might still be able to obtain a correction by way of a habeas petition if he could establish that there was anything false in the report. This appeal followed.

On appeal, the defendant characterizes the court's oral decision on the motion to correct as a denial based on lack of jurisdiction and also as a denial on the merits. Thus, the defendant contends that if we conclude that the court did have jurisdiction to hear the matter, we should then proceed to review his illegal sentence claim on the merits. Although we agree with the defendant that the court improperly dismissed his motion to correct on jurisdictional grounds, the doctrine of res judicata bars consideration of the merits of his claim.

I

We must first discuss the principles of subject matter jurisdiction that guide our resolution of the defendant's claim. "In the absence of statutory or constitutional provisions, the limits of [the trial court's] jurisdiction are delineated by the common law.... Although the [trial] court loses jurisdiction over the case when [a] defendant is committed to the custody of the commissioner of correction and begins serving [his] sentence [Practice Book] § 43-22 embodies a common-law exception that permits the trial court to correct an illegal sentence or other illegal disposition [or it may correct a sentence imposed in an illegal manner].... Thus, if the defendant cannot demonstrate that his motion to correct falls within the purview of [Practice Book] § 43-22, the court lacks jurisdiction to entertain it." (Citations omitted; internal quotation marks omitted.) State v. Lewis, 108 Conn.App. 486, 488, 948 A.2d 389 (2008). Our determination of whether a motion to correct fallswithin the scope of Practice Book § 43-22 is a question of law and, thus, our review is plenary. See id.

The defendant does not argue that the court imposed an illegal sentence. "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). Rather, the defendant argues that his sentence was imposed in an "illegal manner." "Sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but ... imposed in a way which violates defendant's...