State v. Rivera
Decision Date | 17 October 2017 |
Docket Number | AC 40218 |
Citation | 177 Conn.App. 242,172 A.3d 260 |
Parties | STATE of Connecticut v. Jose RIVERA |
Court | Connecticut Court of Appeals |
W. Theodore Koch III, assigned counsel, Lyme, for the appellant (defendant).
Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, Melissa E. Patterson, assistant state's attorney, and Thomas R. Garcia, former senior assistant state's attorney, for the appellee (state).
DiPentima, C.J., and Mullins and Pellegrino, Js.
The defendant, Jose Rivera, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. We are asked to determine whether our state constitution affords greater protection to juvenile homicide offenders than that provided under the federal constitution. On appeal, the defendant claims that (1) the court erred in dismissing the motion to correct an illegal sentence on the ground that it lacked subject matter jurisdiction, (2) the court erred in dismissing the motion to correct an illegal sentence because the mandatory minimum sentence of twenty-five years of incarceration without the possibility of parole imposed on a juvenile homicide offender is unconstitutional under article first, §§ 8 and 9, of the Connecticut constitution, as it prevented the court from sentencing juveniles to less than twenty-five years of incarceration upon due consideration of the Miller factors1 and (3) the court committed constitutional error when it accepted the defendant's waiver, through counsel, without a canvass, of his right to a presentence investigation report. We disagree with the defendant and, accordingly, affirm the judgment of the trial court dismissing the motion to correct an illegal sentence.
The following facts and procedural history are relevant to the present appeal. On April 5, 1997, the defendant and an accomplice participated in a shooting that resulted in the death of Harry Morales. The defendant was seventeen years old at the time of the shooting.
On June 3, 1999, when the defendant was nineteen years old, he pleaded guilty to murder in violation of General Statutes § 53a–54a and conspiracy to commit murder in violation of General Statutes §§ 53a–48 (a) and 53a–54a. He also pleaded guilty under a different docket number to assault in the first degree in violation of General Statutes § 53a–59 (a) (1).2 The court, Clifford, J. , sentenced the defendant to the mandatory minimum of twenty-five years of incarceration on the charge of murder, twenty years of incarceration on the charge of conspiracy to commit murder and ten years of incarceration, five of which were the mandatory minimum, on the charge of assault in the first degree, with all sentences to be served concurrently. The total effective sentence imposed by the court was twenty-five years of incarceration. At the time the defendant was sentenced, he was not eligible for parole pursuant to General Statutes § 54–125a (b) (1), which provides in relevant part that "[n]o person convicted of [murder], which was committed on or after July 1, 1981, shall be eligible for parole ...."3
On October 1, 2014, the defendant filed a motion to correct an illegal sentence pursuant to Practice Book § 43–22.4 In his motion, the defendant claimed that his sentence of twenty-five years of incarceration was imposed in an illegal manner because it violated the eighth amendment to the United States constitution as interpreted by Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012),5 and Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).6 Oral argument was heard on October 16, 2014.
On February 11, 2015, the trial court, Alexander, J. , issued a memorandum of decision dismissing the defendant's motion to correct an illegal sentence because it lacked subject matter jurisdiction over the motion. This appeal followed.
After the appeal was filed and briefed, our Supreme Court issued decisions in State v. Delgado , 323 Conn. 801, 151 A.3d 345 (2016), and State v. Boyd , 323 Conn. 816, 151 A.3d 355 (2016). The parties were asked to be prepared to address at oral argument the impact of Delgado and Boyd on the present appeal.7
The defendant first claims that the trial court erred in dismissing the motion to correct an illegal sentence on the ground that it lacked subject matter jurisdiction. We conclude that our Supreme Court's holding in State v. Delgado , supra, 323 Conn. at 801, 151 A.3d 345, is dispositive of the defendant's claim, and, accordingly, we agree with the trial court's dismissal of the defendant's motion to correct.
We begin by setting forth our well established standard of review and legal principles that govern our resolution of this claim. (Citations omitted; internal quotation marks omitted.) Id., at 810, 151 A.3d 345.
In Delgado , the defendant, who was sentenced in 1996 to sixty-five years of incarceration without the possibility of parole for crimes he committed at the age of sixteen, appealed from the judgment of the trial court dismissing his motion to correct an illegal sentence. The issue before the Supreme Court was whether the sentencing court had failed to consider youth related mitigating factors and imposed the equivalent of a life sentence without the possibility of parole in violation of the eighth amendment. Id., at 802–804, 809, 151 A.3d 345. Our Supreme Court first noted that "[f]ollowing the enactment of No. 15–84 of the 2015 Public Acts (P.A. 15–84), now codified in part in General Statutes § 54–125a (f)... the defendant is now eligible for parole and can no longer claim that he is serving a sentence of life imprisonment, or its equivalent, without parole."8 State v. Delgado , supra, 323 Conn. at 810, 151 A.3d 345.
The court next explained that (Citation omitted; emphasis altered.) Id., at 810–11, 151 A.3d 345. The court went on to state that (Citations omitted; emphasis in original.) Id., at 812–13, 151 A.3d 345.
As in Delgado , although the defendant here initially was sentenced as a juvenile to twenty-five years of incarceration without the possibility of parole for a homicide offense, he is now eligible for parole pursuant to § 54–125a (f). As explained in Delgado , the sentencing court was not required to consider the mitigating factors of youth before imposing such a sentence. Because the defendant's motion to correct fails to state a colorable claim that his sentence of twenty-five years of incarceration was illegal or imposed in an illegal manner, the trial court does not have subject matter jurisdiction to consider the merits of the motion. See State v. McClean , 173 Conn.App. 62, 64, 164 A.3d 35 (2017) ( ); State v. Martin , 172 Conn.App. 904, 158 A.3d 448 (2017) (same); see also State v. Parker , 173 Conn.App. 901, 159 A.3d 1203 (2017) (same). The court, therefore, properly dismissed the motion to correct an illegal sentence. See State v. Ellis , 174 Conn.App. 14, 17–18, 164 A.3d 829 (2017) ( ...
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