State v. Pina

• Citation: 440 A.2d 962,185 Conn. 473
• Court: Supreme Court of Connecticut
• Decision Date: 17 November 1981
• Parties: STATE of Connecticut v. Vincent L. PINA.

Page 962

440 A.2d 962

185 Conn. 473

STATE of Connecticut v. Vincent L. PINA.

Supreme Court of Connecticut.

Argued Oct. 8, 1981.

Decided Nov. 17, 1981.

Bruce A. Sturman, Asst. Public Defender, with whom, on the brief, was Richard Emanuel, Asst. Public Defender, New Haven, for appellant (defendant).

Ernest J. Diette, Asst. State's Atty., with whom, on the brief, were Francis M. McDonald, Jr., State's Atty., and Walter H. Scanlon, Asst. State's Atty., for appellee (state).

Before SPEZIALE, PETERS, HEALEY, ARMENTANO and SHEA, JJ.

PETERS, Associate Justice.

The principal issue in this case is the validity of the trial court's correction of the defendant's sentence. The defendant Vincent Louis Pina was tried to a jury and convicted of the crime of robbery in the first degree in violation of General Statutes § 53a-134. After denial of his motion to have the verdict set aside, the defendant was, on June 30, 1978, sentenced to a term of not less than ten nor more than twenty years. On October 6, 1978, at the request of the state, the defendant was returned to court and, despite his objection, resentenced so that his term of ten to twenty years was to run consecutively to any term the defendant was then already serving. The defendant's appeal puts into question the judgment of conviction and the propriety of the resentence.

The jury reasonably could have found the following facts: On March 3, 1977, the defendant entered the American Finance Corporation in Ansonia wearing a green hat and carrying a red canvas bag. The defendant drew from his bag a gun with a scratched barrel and ordered Patricia Alves and Scott Dufresne, two employees of the finance company, to give him the money in the office drawers and safe. After placing the money in his bag and threatening his victims, the defendant left the office without firing any shots. Some three weeks later, on March 25, 1977, the defendant, wearing the same hat and carrying the same bag and gun, robbed the Beneficial Finance Company office in Danbury. He was pursued by a police officer, shots were exchanged, and both the defendant and his pursuer were wounded. The defendant was immediately arrested and his gun recovered. ¹

At his trial for the Ansonia robbery, the defendant's counsel stipulated that the hat, bag, and gun taken into custody at Danbury and entered in evidence were the property of the defendant on March 25, 1977. The defendant later testified to his ownership of the hat, bag, and gun and to firing the gun at Danbury. He testified that he originally obtained the gun from the attic of his parents' home where it had been left by his stepfather.

I

The defendant's first claim of error is that insufficient evidence was presented at trial to permit the jury to conclude beyond a reasonable doubt that the gun used in the Ansonia robbery was capable of firing. Without sufficient evidence of that capacity, the defendant argues, the state has not proved a necessary element of robbery in the first degree as defined by General Statutes §§ 53a-134(a)(2) and 53a-3(6), ² namely use of "a deadly weapon."

The state's proof of this element at trial relied on two sources. The state presented evidence concerning the firing capacity of the gun used at Danbury, and then offered testimony to link the Danbury gun to the Ansonia robbery. That the Danbury gun belonged to the defendant and was capable of being fired was established by stipulation as well as by testimony. At the trial, it was not disputed that the Danbury gun was in fact fired by the defendant during the Danbury robbery. After introduction of the Danbury gun into evidence, the state linked the Danbury gun to the Ansonia robbery through the testimony of two witnesses, Patricia Alves and Scott Dufresne. These witnesses testified that the gun entered into evidence was the gun they observed in the defendant's hand at the time of the Ansonia robbery. Although the witnesses admitted to knowing little about guns, they based their identification of the gun in question on its size, color, and scratched condition. The defendant does not on this appeal contest the admissibility of this evidence, nor does he point to any other evidence of the use of a different gun at Ansonia. Viewing the evidence in its totality, we cannot say that the jury could not reasonably have concluded by inference that the gun used to perpetrate the Ansonia robbery was one from which a shot may be discharged as required by statute. The first claim of error is therefore not sustained.

II

The defendant's second claim of error is that the trial court violated his rights against double jeopardy by altering his sentence in a second hearing conducted in a new term of court after a mittimus had issued and the defendant had commenced serving the original sentence.

The facts are not disputed. On June 30, 1978, following his conviction for robbery in the first degree, the defendant was sentenced by the trial court to a term of not less than ten nor more than twenty years; subsequently a mittimus was issued. No mention was made of whether that sentence was to be served concurrently with or consecutively to the defendant's prior sentence for the Danbury robbery. On October 6, 1978, the defendant, at that time imprisoned in the state correctional facility at Somers, was, at the request of the state, returned to court. In the presence of the defendant and his counsel, the trial court stated that the sentence imposed in June was to run consecutively to the undischarged term imposed previously. The defendant's counsel took immediate exception to this procedure.

It is clear that the June 30 sentence violated General Statutes § 53a-37, which states, inter alia, that when a person subject to an undischarged prison term is sentenced "(t)he court shall state whether the respective maxima and minima shall run concurrently or consecutively with respect to each other, and shall state in conclusion the effective sentence imposed." ³ The defendant argues that, without the required indication by the court, the common-law rule of Redway v. Walker, 132 Conn. 300, 43 A.2d 748 (1945), prevails; that rule provides that "in the absence of statute, where a person has received two or more separate sentences to imprisonment in the same penal institution and the judgments contain no provision that they shall run consecutively, they will be held to run concurrently." Redway v. Walker, supra, 303, 43 A.2d 748. Thus, in the defendant's view, a subsequent statement by the court that the new sentence be served consecutively would increase the defendant's punishment for the same offense in violation of his rights against double jeopardy. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). ⁴

The defendant's argument, however, fails to take into account an established exception to the traditional double jeopardy rule, that an illegal sentence may be corrected by the court imposing it, under specified conditions, even if the defendant receives an increased punishment and has already commenced serving the original term of imprisonment. Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 649, 91 L.Ed. 818 (1947); United States v. Allen 588 F.2d 183, 185 (5th Cir. 1979); Breest v. Helgemoe, 579 F.2d 95, 99 (1st Cir. 1978); Llerena v. United States, 508 F.2d 78, 80-81 (5th Cir. 1975). This exception is now embodied in Rule 35 of the Federal Rules of Criminal Procedure, which states that "(t)he court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence." ⁵

This federal rule survives two recent United States Supreme Court cases because neither calls into question a trial court's authority to correct an illegal sentence. In United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the court held that a federal statute permitting the United States to appeal the sentence imposed upon a "dangerous special offender" did not violate the double jeopardy clause of the fifth amendment because sentences are not to be accorded the same constitutional finality as acquittals. United States v. DiFrancesco, supra, 134, 101 S.Ct., 435-36. The court specifically approved Bozza v. United States, supra, in which a trial court corrected an illegal sentence, and cited it for the proposition that "the Double Jeopardy Clause does not require that a sentence be given a degree of finality that prevents its later increase." United States v. DiFrancesco, supra, 137, 101 S.Ct., 437. In its second decision, Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), the court applied double jeopardy principles to a Missouri capital sentencing procedure and held that a defendant sentenced by a jury to life imprisonment could not on retrial be sentenced to the death penalty. Bullington v. Missouri, supra, 1861-62. The court specifically relied on the resemblance of the Missouri sentencing procedure to a trial on the question of guilt, supra, 1862, and nowhere indicated that other methods of altering or correcting sentences are similarly vulnerable on double jeopardy grounds.

Connecticut has adopted a rule analogous to the federal rule. According to Practice Book § 935, "(t)he judicial authority who sentenced the defendant may, within ninety days, correct an illegal sentence or other illegal disposition, or he may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner." ⁶ A time limitation that restricts a sentencing court's power to correct an illegal disposition must be read as a deliberate effort to balance the state's interest in legal sentences against a defendant's interest in a final, immutable term of punishment that may be mitigated but not increased. Cf. State v. Lloyd, --- Conn. ---, --- - ---, 440 A.2d 867 (43 Conn.L.J., No. 5, pp. 10, 13-14) (1981).

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