State v. Pierre, AC 40618

• Court: Appellate Court of Connecticut
• Decision Date: 14 September 2021
• Docket Number: AC 40618
• Parties: STATE OF CONNECTICUT v. GREGORY PIERRE

STATE OF CONNECTICUT
v.
GREGORY PIERRE

No. AC 40618

Court of Appeals of Connecticut

September 14, 2021

Argued May 27, 2021

Procedural History

Substitute information charging the defendant with two counts of the crime of kidnapping in the first degree, and with one count each of the crimes of capital felony, murder, felony murder and robbery in the first degree, brought to the Superior Court in the judicial district of New London and tried to the jury before Schimelman, J.; verdict and judgment of guilty of two counts of kidnapping in the first degree, and one count each of felony murder, robbery in the first degree and the lesser included offense of manslaughter in the first degree, from which the defendant appealed; thereafter, this court, Foti, West and Hennessey, Js., affirmed the trial court's judgment and, on the granting of certification, the defendant, appealed to the Supreme Court, which affirmed this court's judgment; subsequently, the court, Strackbein, J., denied the defendant's motion to correct an illegal sentence, and the defendant appealed to this court. Improper form of judgment; affirmed in part; judgment directed in part.

Gregory Pierre, self-represented, the appellant (defendant).

Michael L. Regan, state's attorney, for the appellee (state).

Elgo, Suarez and Devlin, Js.

OPINION

PERCURIAM.

The defendant, Gregory Pierre, ^[1] appeals from the judgment of the trial court denying his motion to correct an illegal sentence. The defendant argues that the court abused its discretion in denying his motion. He claims that his sentence violated the constitutional prohibition against double jeopardy, which is enshrined in the fifth amendment to the United States constitution and made applicable to the states through the fourteenth amendment, because (1) the court improperly merged his felony murder and manslaughter convictions, and (2) he was unlawfully convicted of and sentenced on two counts of kidnapping in the first degree for a single act. With respect to the first claim, we conclude that the form of the judgment is improper, and we remand the case to the trial court with direction to dismiss the portion of the motion to correct in which the petitioner raised that claim. We affirm the judgment of the trial court in all other respects.

The record reveals that, in 2001, following a jury trial, the defendant was convicted of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (1), and two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and (B).^[2] At the time of sentencing, the court, Schimelman, J., merged the manslaughter conviction into the felony murder conviction and imposed a sentence of sixty years of imprisonment with respect to the felony murder conviction. The court imposed a sentence of twenty-five years of imprisonment with respect to each of the kidnapping convictions and imposed a sentence of twenty years of imprisonment with respect to the robbery conviction. The sentences for the kidnapping and robbery convictions were concurrent to each other but consecutive to the sentence imposed for felony murder. Thus, the court imposed a total effective sentence of eighty-five years of imprisonment. Thereafter, the defendant appealed, and this court affirmed the judgment of conviction. State v. Pierre, 83 Conn.App. 28, 847 A.2d 1064 (2004), aff'd, 277 Conn. 42, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S.Ct. 2873, 165 L.Ed.2d 904 (2006).^[3]

On September 28, 2015, the defendant, pursuant to Practice Book § 43-22, filed a motion to correct an illegal sentence and a supporting memorandum of law. The motion set forth two grounds. First, the defendant argued that the sentencing court's merger of the felony murder and manslaughter convictions was improper under a retroactive application of the rule set forth in State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013). In Polanco, our Supreme Court, in the exercise of its supervisory authority, determined that, ‘‘when a defendant is convicted of greater and lesser included offenses, the trial court shall vacate the conviction for the lesser offense rather than merging it with the conviction for the greater offense.'' Id., 260. Relying on Polanco, the defendant in the present case asserted that the proper remedy was for his conviction of manslaughter to be vacated. Second, the defendant argued that, in violation of double jeopardy principles, his multiple kidnapping convictions arose from the same act or transaction. The defendant asserted that the proper remedy was for one of the kidnapping convictions to be vacated. The state filed a memorandum of law in opposition to the motion to correct. On April 29, 2016, the court, Strackbein, J., heard argument from the parties with respect to the motion. On May 2, 2016, the court, in a memorandum of decision, denied the motion.

Pursuant to Practice Book § 43-22, ‘‘[t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a...