State v. Tabone, 17561.

• Decision Date: 15 August 2006
• Docket Number: No. 17561.,17561.
• Citation: 902 A.2d 1058,279 Conn. 527
• Parties: STATE of Connecticut v. John TABONE.
• Court: Connecticut Supreme Court

Page 1058

902 A.2d 1058

279 Conn. 527

STATE of Connecticut v. John TABONE.

No. 17561.

Supreme Court of Connecticut.

Argued January 12, 2006.

Decided August 15, 2006.

Andrew S. Liskov, special public defender, for the appellant (defendant).

Nancy L. Chupak, assistant state's attorney, with whom, on the brief, were Jonathon C. Benedict, state's attorney, and Cara Eschuk, supervisory assistant state's attorney, for the appellee (state).

BORDEN, NORCOTT, PALMER, VERTEFEUILLE and ZARELLA, Js.

ZARELLA, J.

The defendant, John Tabone, appeals¹ from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant claims that the total length of his sentence of ten years of imprisonment and ten years of special parole for the offense of sexual assault in the second degree in violation of General Statutes (Rev. to 1999) § 53a-71² is illegal because it: (1) exceeds the maximum sentence of imprisonment authorized by General Statutes §§ 53a-35a (6) and 53a-71 in violation of General Statutes § 54-128(c);³ and (2) violates the double jeopardy clause of the fifth amendment of the United States constitution. We agree with the defendant's first claim and, accordingly, we reverse the trial court's judgment denying the defendant's motion to correct an illegal sentence.

The following procedural history is relevant to our resolution of the present appeal. On November 2, 2000, pursuant to a plea agreement,⁴ the defendant pleaded guilty under the Alford doctrine⁵ to sexual assault in the second degree in violation of § 53a-71(a)(4), sexual assault in the third degree in violation of General Statutes (Rev. to 1999) § 53a-72a (a)(1)(A)⁶ and risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21(2). The trial court sentenced the defendant as follows: (1) for the charge of sexual assault in the second degree, ten years of imprisonment followed by ten years of special parole; (2) for the charge of sexual assault in the third degree, five years of imprisonment followed by five years of special parole; and (3) for the charge of risk of injury to a child, five years of imprisonment followed by five years of special parole. The trial court ordered all of the sentences to run concurrently, resulting in a total effective sentence of ten years of imprisonment followed by ten years of special parole.

In June, 2004, the defendant filed a motion to correct his sentence for sexual assault in the second degree pursuant to Practice Book § 43-22.⁷ Thereafter, the trial court held a hearing on the defendant's motion. At the hearing, the defendant pointed out that § 53a-35a (6) limits the maximum sentence of imprisonment for sexual assault in the second degree to ten years. See General Statutes (Rev. to 1999) § 53a-71 (b). Because the defendant was sentenced to ten years of imprisonment and ten years of special parole, the defendant maintained that his sentence exceeds the maximum statutory limit and, therefore, is illegal. Moreover, the defendant claimed that § 54-128(c) explicitly prohibited the imposition of such an illegal sentence. See General Statutes § 54-128(c) ("[t]he total length of the term of incarceration and term of special parole combined shall not exceed the maximum sentence of incarceration authorized for the offense for which the person was convicted"). The defendant conceded, however, that General Statutes (Rev. to 1999) § 54-125e (c)⁸ required the trial court to sentence the defendant to a period of special parole of "not less than ten years. . . ."⁹ The defendant maintained, nonetheless, that to the extent that §§ 54-125e (c) and 54-128(c) conflict, "the benefit should go to the defendant." The trial court disagreed and concluded that the defendant's sentence was not illegal because § 53a-35a (6) plainly authorized a sentence of ten years of imprisonment, and § 54-125e (c) plainly authorized a sentence of ten years of special parole for the offense of sexual assault in the second degree.¹⁰ Further, the trial court concluded that §§ 54-125e (c) and 54-128(c) do not conflict because § 54-125e (c) unambiguously "carves out an exception [to the maximum statutory limit] for sex offenses." Accordingly, the trial court denied the defendant's motion to correct his sentence, and this appeal followed.

On appeal, the defendant renews the claim that he raised before the trial court. The defendant further claims that his sentence violates the double jeopardy clause of the fifth amendment of the United States constitution because it "constitutes cumulative multiple punishments exceeding what the legislature intended" for the offense of sexual assault in the second degree.¹¹ The state responds that the trial court properly denied the defendant's motion to correct his sentence. Specifically, the state claims that the total length of the defendant's sentence combined is not illegal because the trial court was authorized to sentence the defendant to ten years of imprisonment under § 53a-35a (6), and to ten years of special parole under General Statutes §§ 53a-28 (b)(9)¹² and 54-125e (c). The state further claims that "§ 54-128(c) does not apply to, much less address, a trial court's authority to impose a particular sentence. Rather § 54-128(c) establishes the period of incarceration that the board of pardons and parole can impose on a defendant who has violated special parole." Lastly, the state claims that the defendant's sentence does not violate the double jeopardy clause because it is authorized by §§ 53a-28 (b)(9), 53a-35a (6) and 54-125e (c).

We conclude that the defendant's sentence violates § 54-128(c) because the total length of the term of imprisonment and term of special parole combined exceeds the maximum term of imprisonment authorized for sexual assault in the second degree. Accordingly, the defendant's sentence is illegal, and we reverse the judgment of the trial court.

As a preliminary matter, we review the trial court's authority to correct an illegal sentence. "This court has held that the jurisdiction of the sentencing court terminates once a defendant's sentence has begun, and, therefore, that court may no longer take any action affecting a defendant's sentence unless it expressly has been authorized to act. State v. Walzer, 208 Conn. 420, 424-25, 545 A.2d 559 (1988); see also State v. Mollo, 63 Conn.App. 487, 490, 776 A.2d 1176, cert. denied, 257 Conn. 904, 777 A.2d 194 (2001); State v. Tuszynski, 23 Conn.App. 201, 206, 579 A.2d 1100 (1990). Practice Book § 43-22, which provides the trial court with such authority, provides that [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. 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. State v. McNellis, 15 Conn.App. 416, 443-44, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). We previously have noted that a defendant may challenge his or her criminal sentence on the ground that it is illegal by raising the issue on direct appeal or by filing a motion pursuant to § 43-22 with the judicial authority, namely, the trial court. See Copeland v. Warden, 225 Conn. 46, 47 n. 2, 621 A.2d 1311(1993)." (Internal quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 37-38, 779 A.2d 80 (2001).

Ordinarily, a claim that the trial court improperly denied a defendant's motion to correct an illegal sentence is reviewed pursuant to the abuse of discretion standard. See, e.g., State v. Henderson, 93 Conn.App. 61, 66, 888 A.2d 132, cert. denied, 277 Conn. 927, 895 A.2d 800 (2006); State v. Pagan, 75 Conn.App. 423, 429, 816 A.2d 635, cert. denied, 265 Conn. 901, 829 A.2d 420 (2003). In the present case, however, the defendant's claim presents a question of statutory interpretation over which our review is plenary. See, e.g., Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1, 7, 882 A.2d 597 (2005). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . ." (Citation omitted; internal quotation marks omitted.) Id.

We begin our analysis with the text of the relevant statutes. General Statutes (Rev. to 1999) § 53a-71 (b) provides that "[s]exual assault in the second degree is a class C felony for which nine months of the sentence imposed may not be suspended or reduced by the court." Section 53a-35a provides that "[f] or any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows . . . (6) for a class C felony, a term not less than one year nor more than ten years . . . ." Pursuant to the plain language of §§ 53a-35a (6) and 53a-71 (b), a conviction of sexual...