State v. Walzer, 13355

• Decision Date: 26 July 1988
• Docket Number: No. 13355,13355
• Citation: 208 Conn. 420,545 A.2d 559
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. John P. WALZER.

Page 559

545 A.2d 559

208 Conn. 420

STATE of Connecticut v. John P. WALZER.

No. 13355.

Supreme Court of Connecticut.

Argued June 2, 1988.

Decided July 26, 1988.

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Gary W. Nicholson, Asst. State's Atty., for appellant (state).

Austin J. McGuigan, with whom were Joseph B. Burns and, on the brief, Richard F. Banbury, Hartford, for appellee (defendant).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, GLASS and HULL, JJ.

SHEA, Associate Justice.

The dispositive issue in this appeal is whether the trial court, Melville, J., had jurisdiction to rule upon a motion filed by the defendant to reduce or correct his sentence after his first appeal from the judgment imposing that sentence had terminated unsuccessfully. We conclude that the court had no such jurisdiction. Accordingly, we find error and remand the case to the trial court with direction to reinstate the original sentence.

The following facts are not disputed. The defendant entered a plea of guilty to the crime of larceny in the first degree by embezzlement, a violation of General Statutes § 53a-119(1) and General Statutes (Rev. to 1981) § 53a-122(a)(2), and in October, 1983, was sentenced by the trial court, Melville, J., to a term of six years to run consecutively with an unrelated federal sentence he was then serving. At this time the court issued a judgment mittimus that gave the commissioner of correction authority to seize the defendant once his federal sentence had been served. The defendant remained incarcerated in the federal penitentiary in Danbury, but a detainer was lodged to prevent his release without notification to state correctional authorities. The sentence review board affirmed the sentence.

Thereafter, the defendant moved to correct the sentence pursuant to Practice Book § 935 on the ground that General Statutes § 53a-37 does not permit our courts to order a sentence to run consecutively with an earlier sentence unless the prior term was imposed by a "court of this state." The trial court, Landau, J., denied the motion and the defendant later filed an appeal.

The defendant filed a motion in the Appellate Court for bail pending his appeal. The Appellate Court referred the motion to the trial court, Landau, J., for determination. On February 5, 1986, the court granted the motion and set an appeal bond at $75,000. In addition, on February 10, 1986, a judgment mittimus was issued that was apparently designed to allow the commissioner of correction to seize the defendant as soon as the appeal was resolved. ¹ The defendant was released from federal custody on February 28, 1986, with a thirty day stay pending the exercise of any detainer. This detainer was removed when the defendant posted his appeal bond and, therefore, he was not required to surrender to the commissioner of correction. The defendant was released into the community subject to the terms of his appeal bond.

On December 23, 1986, the Appellate Court released its decision in State v. Walzer, 9 Conn.App. 365, 518 A.2d 966 (1986), rejecting the defendant's claim that his sentence was illegal. On January 9, 1987, this court denied his petition for certification. State v. Walzer, 202 Conn. 802, 519 A.2d 1207 (1987). The defendant conceded at argument that he did not petition the United States Supreme Court for a writ of certiorari. The state made no effort to incarcerate him after this court denied his petition for certification.

On January 27, 1987, the defendant filed a motion for correction or reduction of his sentence. After a contested hearing, on September 29, 1987, the trial court, Melville, J., granted this motion. It determined that it had jurisdiction to modify the sentence "in view of the fact that the sentence was never executed." Impressed by the defendant's counselling work with persons addicted to drugs, the court found that he had demonstrated significant rehabilitative progress in this and other respects since he had been originally sentenced. It noted that the victim of the crime, E.I. du Pont de Nemours, Inc., had indicated that it did not favor incarcerating the defendant. The court concluded that society would be better off if he performed substantial community service instead of being committed to prison. Accordingly, it vacated the original sentence of six years, and ordered a sentence of six years with execution suspended and a period of five years probation. It imposed several conditions of probation that were not contained in the original sentence, including payment of restitution to the victim of the larceny and the performance of 6000 hours of community service. The state did not seek to stay this new sentence pending appeal and, therefore, the defendant has been serving his new sentence and complying with these probation conditions. ²

At the hearing before the trial court, the state argued that the court lacked jurisdiction to consider the motion and took an exception when the court modified the sentence. The next day the state filed a motion for permission to appeal, which was granted by the court. This appeal followed.

I

The trial court, Melville, J., did not elaborate on why it had determined that the sentence was unexecuted beyond indicating that it had relied "primarily" upon State v. Chisolm, 29 Conn.Sup. 339, 287 A.2d 389 (1971). In Chisolm, the court held that it had the power to revoke post-conviction bail even where by operation of law a stay of execution is in effect and cannot be terminated by the court. Id., 340-43, 287 A.2d 389. "The defendant's position is that bail and stay of execution go together like Siamese twins.... The history of [General Statutes (Rev. to 1968) ] § 54-95 supports the view that bail and stay of execution are separable." Id., 342, 287 A.2d 389. In dictum unrelated to the merits of the decision, the court noted: "In a criminal case the imposition of sentence is the judgment of the court. State v. Smith, 149 Conn. 487, 489 [181 A.2d 446 (1962) ]. When the sentence is put into effect and the prisoner is taken in execution, custody is transferred from the court to the custodian of the penal institution. At this point jurisdiction of the court over the prisoner terminates. When a stay of execution occurs, the court retains jurisdiction of the offender. When an appeal or a notice of appeal is filed in a criminal case, the appeal or notice operates as a stay under General Statutes § 54-95 pending the final determination of the case, 'provided the defendant is admitted to bail....' " Id., 29 Conn.Sup. at 340-41, 287 A.2d 389. In addition, the court concluded that "[a] stay of execution prevents a transfer of custody from the court to the commissioner of correction." Id., 342, 287 A.2d 389. The defendant in the case at bar has relied on these dicta in contending that the court retained jurisdiction over him because his posting of an appeal bond stayed execution of the judgment imposing the original sentence. The court in the present case appears to have accepted this argument in view of the significance it attached to Chisolm.

The state claims that the court erred in determining that the sentence was unexecuted and, therefore, in concluding that it had jurisdiction to modify the sentence. The state contends that the appeal bond expired when this court denied the defendant's petition for certification and that the defendant at that time automatically passed into the jurisdiction of the commissioner of correction because a judgment mittimus had been issued both at the time he was originally sentenced in October, 1983, and again on February 10, 1986, five days after the appeal bond had been filed.

We conclude that the appeal bond and, therefore, the stay of execution expired when this court denied the defendant's petition for certification and he ceased to pursue further appeals by filing a petition pursuant to Practice Book § 4050. We also conclude that he passed into the jurisdiction of the commissioner of correction at the time of the original sentence because a judgment mittimus had been issued at that time transferring his custody to the commissioner of correction subject to completion of his federal sentence. The defendant contends that his appeal bond remained in effect because the state took no action to gain custody over him prior to the sentencing hearing on September 29, 1987. General Statutes § 54-95(b) ³ provides however, that an appeal by a criminal defendant "shall operate as a stay of execution pending the final determination of the case...." The Chisolm court acknowledged that, under an earlier version of this statute, any stay of execution put into effect by an appeal bond expires upon "final determination of the case." State v. Chisolm, supra, 341, 287 A.2d 389. We conclude that the final determination of this case occurred when this court denied certification. The defendant did not file a motion under Practice Book § 4050 to obtain a stay of execution from this court pending a decision in the case by the United States Supreme Court and never sought a writ of certiorari from that court. The purpose of the appeal bond ended once the defendant ceased to pursue appellate remedies. The fact that a second judgment mittimus ⁴ was issued to the commissioner of correction five days after the appeal bond was granted indicates that the stay of execution put into effect by the bond was intended to terminate after the defendant had completed the appeal process and that the first mittimus at the time of sentence was designed to transfer custody of the defendant automatically from the court to prison authorities. The execution of the sentence commenced and the court relinquished jurisdiction over the defendant when the first mittimus transferred custody of him from the court to the commissioner of correction. Alexander v. Robinson, 185 Conn. 540, 546-47, 441 A.2d 166 (1981). The fact that ...