State v. Pierre
| Decision Date | 14 September 2021 |
| Docket Number | AC 40618 |
| Citation | 207 Conn.App. 544,261 A.3d 1194 |
| Parties | STATE of Connecticut v. Gregory PIERRE |
| Court | Connecticut Court of Appeals |
Gregory Pierre, self-represented, the appellant (defendant).
Michael L. Regan, state's attorney, for the appellee (state).
Elgo, Suarez and Devlin, Js.
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., at 260, 61 A.3d 1084. 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 sentence imposed in an illegal manner or any other disposition made in an illegal manner." "We review the [trial] court's denial of [a] defendant's motion to correct [an illegal] sentence under the abuse of discretion standard of review. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court's decision and every reasonable presumption is given in favor of its correctness. ... We will reverse the trial court's ruling only if it could not reasonably conclude as it did. ...
(Citation omitted; internal quotation marks omitted.) State v. Logan , 160 Conn. App. 282, 287–88, 125 A.3d 581 (2015), cert. denied, 321 Conn. 906, 135 A.3d 279 (2016). On appeal, the defendant relies on the same two grounds that he raised before the trial court.4
The defendant's first claim, which challenges the merger of his felony murder and manslaughter convictions, is controlled by our Supreme Court's recent decision in State v. Smith , 338 Conn. 54, ––– A.3d –––– (2021).5 In Smith , one of the defendant's codefendants, in a motion to correct an illegal sentence, raised the exact same claim as the claim presently before us. See id., at 58, ––– A.3d –––– ; see also footnote 2 of this opinion. After the trial court in Smith denied the motion to correct, the defendant appealed to this court, which affirmed the judgment on its merits. State v. Smith , 180 Conn. App. 371, 384, 184 A.3d 831 (2018), rev'd, 338 Conn. 54, ––– A.3d –––– (2021). Following a grant of certification to appeal related solely to the merger claim, our Supreme Court in Smith concluded that the trial court lacked jurisdiction to entertain the claim because (1) the defendant had not claimed that his sentence was affected by the alleged cumulative convictions, (2) the sentencing court had not imposed any sentence on the merged manslaughter conviction, and (3) the only relief sought by the defendant in the motion to correct was the vacatur of the manslaughter conviction. State v. Smith , supra, 338 Conn. at 63–64, ––– A.3d ––––. Relying on Smith , we conclude that the trial court in the present case lacked jurisdiction over the defendant's merger claim, and, with respect to this claim, the court should have dismissed, rather than denied, the motion to correct an illegal sentence.6
The defendant's second claim, which challenges the multiple kidnapping convictions allegedly arising out of the same act or transaction, is controlled by this court's decision in State v. Smith , supra, 180 Conn. App. at 379, 184 A.3d 831. The defendant in Smith , like the defendant in the present case, was convicted of one count of kidnapping in violation of § 53a-92 (a) (2) (A) and one count of kidnapping in violation of § 53a-92 (a) (2) (B). Id. The convictions in Smith were based on the same operative facts as those at issue in the present case, involving a single victim. See id. The defendant's double jeopardy claim in Smith is identical to the double jeopardy claim raised by the defendant in the present case. In Smith , this court rejected the claim on the ground that subparagraphs (A) and (B) of § 53a-92 (a) (2) are separate offenses for double jeopardy purposes. Relying on this court's opinion in Smith , we conclude that the trial court in the present case properly denied the defendant's motion to correct with respect to this claim.
The form of the judgment is improper with respect to the trial court's denial of the portion of the motion to correct an illegal sentence in which the defendant claimed that the sentencing court improperly merged the homicide convictions, and the case is remanded to the trial court with direction to dismiss that portion of the motion to correct; the judgment is affirmed in all other respects.
1 The defendant was self-represented before the trial court and is self-represented in the present appeal.
2 In a separate trial, one of the defendant's codefendants, Jeffrey Smith, was convicted of the same charges as those of which the defendant was convicted. See State...
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