State v. Gamble ( 2021 )

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STATE OF CONNECTICUT v. HUDEL
CLIFTON GAMBLE
(AC 43117)
Prescott, Clark and DiPentima, Js.
Syllabus
Convicted of the crime of manslaughter in the first degree with a firearm,
the defendant appealed from the trial court’s dismissal of his motion
to correct an illegal sentence. The defendant was charged with, inter
alia, murder, and, at trial, the state presented evidence that the defendant
and his accomplices each fired a gun at the victim. At the state’s request,
the judge charged the jury on all of the elements of the lesser included
offense of manslaughter in the first degree with a firearm. At the hearing
on the motion to correct, the defendant acknowledged that he was
challenging his sentence solely on the basis of what he contended was
an unconstitutional conviction of manslaughter in the first degree with
a firearm. The court dismissed the motion for lack of jurisdiction on
the ground that the defendant was attacking his conviction, not the
sentence he received or the manner in which the sentence was imposed.
On appeal, the defendant claimed that there was a colorable claim that
his sentence on the underlying conviction of manslaughter in the first
degree with a firearm was illegally enhanced on the basis of a fact not
found by the jury. Held that the trial court did not err in dismissing the
defendant’s motion to correct for lack of jurisdiction, as the defendant
challenged what transpired at trial, not at sentencing, and his claim
presupposed an invalid conviction; the jury was instructed on all of the
elements of the offense for which the defendant was convicted and
sentenced, including the element of using a firearm, and the jury, not
the judge, found the defendant guilty of that offense; moreover, to
the extent that the defendant argued that the court misled the jury or
incorrectly accepted its verdict, his arguments attacked his underlying
conviction, not his sentence, and despite the defendant’s claim that the
firearm element that enhanced his manslaughter conviction was never
proven to the jury, the record sufficiently demonstrated that the state
presented evidence that the defendant used a gun to shoot at the victim.
Argued April 19—officially released August 24, 2021
Procedural History
Substitute information charging the defendant with
the crimes of murder, conspiracy to commit murder, pos-
session of an assault weapon and conspiracy to possess
an assault weapon, brought to the Superior Court in the
judicial district of New Haven and tried to the jury before
Holden, J.; verdict and judgment of guilty of the lesser
included offense of manslaughter in the first degree with
a firearm as an accessory; thereafter, the court, Clifford,
J., dismissed the defendant’s motion to correct an illegal
sentence, and the defendant appealed to this court.
Affirmed.
Hudel Clifton Gamble, self-represented, the appellant
(defendant).
Thai Chhay, deputy assistant state’s attorney, with
whom, on the brief, were Ronald G. Weller, senior assis-
tant state’s attorney, Patrick Griffin, state’s attorney,
and Reed Durham, assistant state’s attorney, for the
appellee (state).
Opinion
CLARK, J. For a trial court to have jurisdiction over
a defendant’s motion to correct an alleged illegal sen-
tence, the defendant must raise ‘‘a colorable claim
within the scope of Practice Book § 43-221 that would,
if the merits of the claim were reached and decided in
the defendant’s favor, require correction of a sentence.
. . . In the absence of a colorable claim requiring cor-
rection, the trial court has no jurisdiction to modify the
sentence.’’ (Footnote added; internal quotation marks
omitted.) State v. Evans, 329 Conn. 770, 783, 189 A.3d
1184 (2018), cert. denied, U.S. , 139 S. Ct. 1304,
203 L. Ed. 2d 425 (2019). ‘‘A colorable claim is one that
is superficially well founded but that may ultimately be
deemed invalid. . . . For a claim to be colorable, the
defendant need not convince the trial court that he
necessarily will prevail, he must demonstrate simply
that he might prevail. . . . The jurisdictional and mer-
its inquiries are separate, whether the defendant ulti-
mately succeeds on the merits of his claim does not
affect the trial court’s jurisdiction to hear it.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Id., 784.
In the present case, the self-represented defendant,
Hudel Clifton Gamble, appeals from the judgment of
the trial court dismissing his motion to correct an
alleged illegal sentence (motion to correct) for lack of
jurisdiction. On appeal, the defendant claims that the
court improperly dismissed the motion to correct
because it advanced a colorable claim that his sentence
on the underlying conviction of manslaughter in the
first degree with a firearm was illegally enhanced on
the basis of a fact not found by the jury. The state
counters that the court properly dismissed the defen-
dant’s motion to correct because it challenges his under-
lying conviction, not the legality of his sentence. We
agree with the state and, therefore, affirm the judgment
of the trial court.
The present appeal arises out of the defendant’s con-
viction, following a jury trial, of manslaughter in the
first degree with a firearm. State v. Gamble, 119 Conn.
App. 287, 987 A.2d 1049, cert. denied, 295 Conn. 915,
990 A.2d 867 (2010). The relevant facts, which the jury
reasonably could have found, and procedural history
were set out in this court’s opinion affirming the defen-
dant’s conviction on direct appeal.2
On November 29, 2005, the then seventeen year old
defendant gave his fifteen year old friend, Ricardo
Ramos, a loaded .22 caliber gun. Id., 290. Later that day,
Ramos and Daniel Smith were riding in a BMW in the
‘‘Hill’’ section of New Haven. Id. They picked up the
defendant, who sat in the backseat while the three drove
around smoking marijuana. Id. Smith was driving on
Kensington Street when Ramos saw a woman with
whom he was acquainted. Id. Smith stopped the vehicle,
and the woman ‘‘informed Ramos that a person with
whom Ramos had a ‘beef’ was in the area.’’ Id. As the
three men traveled down Kensington Street a second
time, ‘‘Ramos observed a person, [whom] he believed
had killed his cousin approximately one month earlier
. . . . As Smith drove closer, the group on the sidewalk
fired gunshots at the right side of the BMW. Ramos and
Smith, who were both carrying weapons, returned fire
through the open windows of the BMW. The defendant
fired an SKS semiautomatic assault rifle, the barrel of
which was resting on an open car window.’’3 (Emphasis
added.) Id. Ramos later learned that Marquis White
(victim), whom he did not know and who did not shoot
his cousin, had been shot and killed on Kensington
Street. Id.
The defendant was arrested and charged with various
crimes, including murder.4 Id., 292. At trial, ‘‘[o]ver the
defendant’s objection, the court [Holden, J.] granted
the state’s request for a jury instruction on the lesser
included offense of manslaughter in the first degree
with a firearm under the theories of [both] principal and
accessorial liability. The court so instructed the jury.5
‘‘Following deliberations, the jury reached a verdict.
After the roll of jurors was called, the foreperson
answered ‘not guilty’ as the court clerk read the follow-
ing charges: murder, manslaughter in the first degree
with a firearm, conspiracy to commit murder, posses-
sion of an assault weapon and conspiracy to possess an
assault weapon. The court . . . accepted the verdict.
‘‘Thereafter, the foreperson stated that ‘[s]omething
is wrong.’ The court sent the jury back to the delibera-
tion room and informed counsel of the procedure that
was to follow. The jury then returned to the courtroom,
and the court asked the jury to articulate its concern
in a note. The jury returned to the deliberation room and
sent out a note that stated: ‘[W]e found [the defendant]
guilty of ‘‘accessory to manslaughter’’ and [want] guid-
ance. We were waiting for ‘‘accessory’’ to be read.’ The
court described the contents of the note on the record.
The court stated that, as evidenced by the note, it was
the jury’s position that it had not been asked to provide
its verdict as to manslaughter in the first degree with
a firearm as an accessory. The court indicated that it
would have to vacate its finding that the verdict was
accepted and recorded, at least as to the manslaughter
charge. The court then stated that, unless the parties
had an objection, the jury would be asked to return its
verdict again as to all the charges, including the lesser
included offense of manslaughter in the first degree
with a firearm. In an effort to ameliorate any misunder-
standing, the court planned to separate the manslaugh-
ter charge into two subsets: manslaughter as previously
read and manslaughter as an accessory. There was no
objection.
‘‘After the jury returned to the courtroom, the court
clerk again called the jury roll and then asked for the
jury’s verdict as to each offense. This time, the court
clerk inquired as to the offense of manslaughter in the
first degree with a firearm twice: once as previously
read and interpreted by the jury to encompass only
liability as a principal and once as an accessory. The
court clerk inquired: ‘To the lesser included offense in
count one, what say you to the lesser included offense
of manslaughter in the first degree with a firearm in
violation of [General Statutes] § 53a-55 (a) (3)6 of the
Connecticut General Statutes,’ to which the foreperson
responded: ‘Not guilty.’ The court clerk then inquired:
‘For the lesser included offense in count one, what say
you to the lesser included offense of manslaughter in
the first degree with a firearm as an accessory in
violation of the same section of the Connecticut Gen-
eral Statutes,’ to which the foreperson responded:
‘Guilty.’7 The jury returned a verdict of not guilty to
the remaining charges. The court . . . accepted the
verdict. The defendant did not object.’’ (Emphasis
added; footnotes added.) State v. Gamble, supra, 119
Conn. App. 292–94. The court sentenced the defendant
to thirty-seven and one-half years of imprisonment.8
This court affirmed the defendant’s conviction on direct
appeal.9 Id., 304.
In January, 2019, the defendant, representing himself,
filed the present motion to correct, alleging that ‘‘[p]ur-
suant to State v. Abraham, 152 Conn. App. 709 [99 A.3d
1258 (2014)] [the] court has jurisdiction to consider
the sentencing court’s decision to impose a sentence
enhancement under General Statutes § 53a-55a, when
the jury never intended to impose that finding. Because
of that failure, the defendant’s sentence exceeded the
permissible statutory maximum and, thus, is illegal.’’
In response to the motion to correct, the court, Clif-
ford, J., pursuant to State v. Casiano, 282 Conn. 614,
620, 922 A.2d 1065 (2007), appointed Attorney Kelly
Billings as counsel for the defendant for the limited
purpose of determining whether there was a sound
basis to the motion to correct. Billings subsequently
moved to withdraw as counsel. At the May 15, 2019
hearing on that motion, Billings represented that the
defendant was claiming that it was error for the jury
to find him guilty of accessory to commit manslaughter
in the first degree with a firearm, which concerns the
defendant’s conviction, not his sentence. Billings
explained that, although the defendant contended that
the court had enhanced his conviction of manslaughter
in the first degree as an accessory, the defendant had
never been charged ‘‘just’’ as an accessory to man-
slaughter. Rather, the defendant initially was charged
with murder and, at the state’s request, Judge Holden
instructed the jury on the lesser included offense of
manslaughter in the first degree with a firearm. The jury
ultimately found the defendant guilty of manslaughter
in the first degree with a firearm.
After hearing from Billings, the court explained to
the defendant that it lacked jurisdiction over his motion
to correct because courts generally lose jurisdiction
over a case once a defendant is sentenced and commit-
ted to the custody of the Commissioner of Correction.10
The defendant argued that the court had jurisdiction
because he was not attacking his conviction, only his
thirty-seven year sentence.11 Specifically, the defendant
claimed that there was a mistake with the ‘‘sentence
enhancement’’ and that the court had jurisdiction pursu-
ant to Apprendi v. New Jersey, 530 U.S. 466, 490, 120
S. Ct. 2348, 147 L. Ed. 2d 435 (2000). He also argued
that the court ‘‘could modify the conviction if it’s only
challenging the sentence.’’
The following colloquy transpired between the court
and the defendant:
‘‘The Court: Well, you’re challenging . . . the sen-
tence of thirty-seven years because you’re saying you
never should have been convicted of manslaughter in
the first degree with a firearm. Right?
‘‘[The Defendant]: Absolutely.
‘‘The Court: Well, that’s attacking the conviction.
‘‘[The Defendant]: Well, that’s permissible. On the
evidence, that’s permissible.’’
After hearing argument, and over the defendant’s
objection, the court granted Billings’ motion to with-
draw on the ground that the motion to correct lacked
a sound basis. The court, nevertheless, offered the
defendant a continuance to prepare for a separate hear-
ing on the merits of his motion to correct. The defendant
declined the court’s invitation because he felt that the
court already had indicated how it likely would rule on
the jurisdictional issue. Thereafter, the court dismissed
the motion to correct on the grounds that it lacked
jurisdiction because the defendant’s claims were
‘‘attacking the conviction, not the sentence.’’
On appeal, the defendant claims that the court
improperly dismissed his motion to correct because it
raised a colorable claim that the firearm element of
manslaughter in the first degree with a firearm was
not proven beyond a reasonable doubt in violation of
Apprendi v. New Jersey, supra, 530 U.S. 466, and State
v. Evans, supra, 329 Conn. 778. The defendant’s claim
fails because its premise is factually flawed, and it bears
no relation, factually or procedurally, to Apprendi or
Evans.
We begin with the standard of review governing juris-
dictional claims. ‘‘[B]ecause [a] determination regard-
ing a trial court’s subject matter jurisdiction is a ques-
tion of law, our review is plenary.’’ (Internal quotation
marks omitted.) State v. Alexander, 269 Conn. 107, 112,
847 A.2d 970 (2004). ‘‘[J]urisdiction involves the author-
ity of a court to adjudicate the type of controversy
presented by the action before it.’’ (Internal quotation
marks omitted.) State v. Kelley, 164 Conn. App. 232,
237, 137 A.3d 822 (2016), aff’d, 326 Conn. 731, 167 A.3d
961 (2017).
‘‘It is well established that under the common law a
trial court has the discretionary power to modify or
vacate a criminal judgment before the sentence has
been executed. . . . This is so because the court loses
jurisdiction over the case when the defendant is com-
mitted to the custody of the [C]ommissioner of [C]orrec-
tion and begins serving the sentence. . . . There are a
limited number of circumstances in which the legisla-
ture has conferred on the trial courts continuing juris-
diction to act on their judgments after the commence-
ment of sentence . . . . See, e.g., General Statutes
§§ 53a-29 through 53a-34 (permitting trial court to mod-
ify terms of probation after sentence is imposed); Gen-
eral Statutes § 52-270 (granting jurisdiction to trial court
to hear petition for a new trial after execution of original
sentence has commenced); General Statutes § 53a-39
(allowing trial court to modify sentences of less than
three years provided hearing is held and good cause
shown). . . . Without a legislative or constitutional
grant of continuing jurisdiction, however, the trial court
lacks jurisdiction to modify its judgment.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Lawrence, 91 Conn. App. 765, 770–71, 882 A.2d 689(2005), aff’d, 281 Conn. 147, 913 A.2d 428 (2007).
‘‘Under the common law, the court has continuing
jurisdiction to correct an illegal sentence. See, e.g.,
Bozza v. United States, 330 U.S. 160, 166, 67 S. Ct. 645,
91 L. Ed. 818 (1947) (‘an excessive sentence should be
corrected . . . by an appropriate amendment of the
invalid sentence by the court of original jurisdiction’);
Murphy v. Massachusetts, 177 U.S. 155, 157, 20 S. Ct.
639, 44 L. Ed. 714 (1900) (‘in many jurisdictions it has
been held that the appellate court has the power, when
there has been an erroneous sentence, to remand the
case to the trial court for sentence according to law’);
In re Bonner, 151 U.S. 242, 259–60, 14 S. Ct. 323, 38 L.
Ed. 149 (1894) (‘where the conviction is correct . . .
there does not seem to be any good reason why jurisdic-
tion of the prisoner should not be reassumed by the
court that imposed the sentence in order that its defect
may be corrected’).’’ State v. Lawrence, supra, 91 Conn.
App. 772.
‘‘In Connecticut, that grant of jurisdiction is recog-
nized and the procedure by which it may be invoked
is regulated by Practice Book § 43-22. . . . Rules of
practice, however, merely regulate the procedure by
which the court’s jurisdiction may be invoked; they
do not and cannot confer jurisdiction on the court to
consider matters otherwise outside the court’s jurisdic-
tion. For the court to have jurisdiction to consider the
defendant’s claim of an illegal sentence, the claim must
fall into one of the categories of claims that, under the
common law, the court has jurisdiction to review.
‘‘Connecticut has recognized two types of circum-
stances in which the court has jurisdiction to review a
claimed illegal sentence. The first of those is when the
sentence itself is illegal, namely, when the sentence
either exceeds the relevant statutory maximum limits,
violates a defendant’s right against double jeopardy, is
ambiguous, or is internally contradictory. . . . The
other circumstance in which a claimed illegal sentence
may be reviewed is that in which the sentence is within
the relevant statutory limits but was imposed in a way
which violates [the] defendant’s right . . . to be
addressed personally at sentencing and to speak in miti-
gation of punishment . . . or his right to be sentenced
by a judge relying on accurate information or considera-
tions solely in the record, or his right that the govern-
ment keep its plea agreement promises. . . . Both
types of illegal sentence claims share the requirement
that the sentencing proceeding, and not the trial leading
to conviction, be the subject of the attack.’’ (Citations
omitted; footnotes omitted; internal quotation marks
omitted.) Id., 773–75.
In the present case, the defendant was charged with
murder and, at trial, the state presented evidence that
the defendant and his accomplices each fired a gun at
the victim. At the state’s request, and over the defen-
dant’s objection, Judge Holden charged the jury on all
of the elements of the lesser included offense of man-
slaughter in the first degree with a firearm. The jury
found the defendant guilty of that crime beyond a rea-
sonable doubt. At the hearing on the motion to correct
before Judge Clifford, the issue was whether the defen-
dant was attacking his conviction or his sentence. The
defendant acknowledged that he was challenging his
sentence solely on the basis of what he contends was
an unconstitutional conviction of manslaughter in the
first degree with a firearm. Judge Clifford, therefore,
properly dismissed the motion to correct for lack of
jurisdiction because the defendant was attacking his
conviction, not the sentence he received or the manner
in which the sentence was imposed.
The defendant argues that the trial court had jurisdic-
tion to consider his motion to correct because he raised
a colorable claim under both Apprendi and Evans. We
disagree because neither of those cases bears any rela-
tion to the claims the defendant raised in his motion
to correct.
In Apprendi, the defendant was arrested for firing
shots at the home of an African-American family and
was charged by a grand jury with multiple crimes,
including possession of a firearm for an unlawful pur-
pose punishable by a term of imprisonment of between
five and ten years. Apprendi v. New Jersey, supra, 530
U.S. 469–70. New Jersey had a hate crime statute that
provided ‘‘for an extended term of imprisonment if the
trial judge finds, by a preponderance of the evidence,
that [t]he defendant in committing the crime acted with
a purpose to intimidate an individual or group of individ-
uals’’ on a discriminatory basis. (Emphasis added; inter-
nal quotation marks omitted.) Id., 468–69. None of the
charges lodged against the defendant referred to the
hate crime statute and none alleged that he acted with
a racially biased purpose. Id., 469. Pursuant to a plea
agreement, the defendant agreed to plead ‘‘guilty to two
counts . . . of second-degree possession of a firearm
for an unlawful purpose’’ and a third-degree offense.
Id., 469–70. Following a hearing, the judge found by
a preponderance of the evidence that the defendant’s
actions were taken with a purpose to intimidate and
that the hate crime statute applied. Id., 471. The judge
therefore enhanced the defendant’s sentence on the
possession of a firearm for an illegal purpose by several
years. Id., 471. The United States Supreme Court
reversed the defendant’s conviction, holding that,
‘‘[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.’’ Id., 490.
In the present case, the defendant contends that, as
in Apprendi, the firearm element that enhanced his
manslaughter conviction was never proven to the jury.
The record does not support his claim. At trial, the state
presented evidence that the defendant used a gun to
shoot at the victim. See footnote 4 of this opinion. Judge
Holden charged the jury on the elements of manslaugh-
ter in the first degree with a firearm, which is a distinct
and separate criminal offense under Connecticut law.
See footnote 5 of this opinion. The jury returned a guilty
verdict against the defendant for manslaughter in the
first degree with a firearm. The court sentenced the
defendant to thirty-seven and one-half years of incarcer-
ation, which is a permissible sentence for that offense.
See footnote 8 of this opinion. To the extent that the
defendant claims that there was insufficient evidence
to convict him of manslaughter in the first degree with
a firearm or that the court improperly instructed or
accepted the jury’s verdict, those claims attack his
underlying conviction, not the sentence, and are beyond
a court’s jurisdiction on a motion to correct. Moreover,
Apprendi does not apply because the defendant cannot
make a colorable claim that the court, not the jury,
found him guilty of any of the elements of the offense
for which he was convicted and ultimately sentenced.
Because the defendant does not state a colorable
claim under Apprendi, State v. Evans, supra, 329 Conn.
770, also is inapposite. In Evans, the defendant was
charged with one count of possession of narcotics,
among other things. Id., 774. The defendant pleaded
guilty under the Alford doctrine12 to possession of nar-
cotics. Id. During the plea negotiations, the defendant’s
drug dependency, if any, was not addressed and no fact
finder determined whether he was drug-dependent. A
finding of drug dependency would have favorably lim-
ited the defendant’s sentence. Id. The defendant was
sentenced to five years of imprisonment and five years
of special parole, which sentence was permissible only
if he was not drug-dependent at the time he committed
the underlying drug possession offense. Id., 775. The
defendant moved to correct an illegal sentence pursuant
to Practice Book § 43-22, claiming that, under Apprendi
and Alleyne v. United States, 570 U.S. 99, 133 S. Ct.
2151, 186 L. Ed. 2d 314 (2013), his sentence was illegal
because it ‘‘exceeded the statutory time limits and that
the fact triggering the mandatory minimum [sentence]
was not found by a proper [fact finder] or admitted by
the defendant . . . .’’ State v. Evans, supra, 775.
The trial court denied the defendant’s motion for lack
of jurisdiction and the defendant appealed. Id., 773. In
resolving the defendant’s appeal, our Supreme Court
concluded that the trial court had jurisdiction to con-
sider the claim, and affirmed the judgment of the trial
court. Id., 774. In concluding that the trial court had
jurisdiction to consider the defendant’s claim, our
Supreme Court stated that ‘‘a claim is cognizable in a
motion to correct an illegal sentence if it is a challenge
specifically directed to the punishment imposed, even
if relief for that illegal punishment requires the court
to in some way modify the underlying conviction, such
as for double jeopardy challenges.’’ Id., 781.
In the present case, the jury was instructed on all of
the elements of the offense for which the defendant
was convicted and sentenced, including the element
of using a firearm. The jury, not the judge, found the
defendant guilty of that offense. To the extent that the
defendant argues that the court misled the jury or incor-
rectly accepted its verdict, his arguments attack his
underlying conviction, not his sentence. Evans, there-
fore, has no application.
We agree with the state that our Supreme Court’s
decision in State v. Lawrence, 281 Conn. 147, 913 A.2d
428 (2007), is controlling. In Lawrence, the defendant
was charged with one count each of murder, carrying
a pistol without a permit, and tampering with evidence.
Id., 150. ‘‘The murder charge alleged that the defendant
caused the death of a person by use of a firearm. At
trial, the defendant presented a defense of extreme
emotional disturbance with respect to the murder
charge. The court instructed the jury regarding that
defense with the following instruction as the defendant
had requested: If you unanimously find that the state
has proven each of said elements of the crime of murder
beyond a reasonable doubt, and if you also unanimously
find that the defendant has proven by the preponder-
ance of the evidence each of the elements of the affirma-
tive defense of extreme emotional disturbance, you
shall find the defendant guilty of manslaughter in the
first degree with a firearm by reason of extreme emo-
tional disturbance and not guilty of murder.’’ (Internal
quotation marks omitted.) Id. The jury found the defen-
dant guilty of manslaughter in the first degree with a
firearm. Id. The court rendered judgment in accordance
with the verdict and sentenced the defendant to thirty-
five years of incarceration. Id.The defendant in Lawrence filed a motion to correct
an illegal sentence pursuant to Practice Book § 43-22.
Id., 151. He claimed that his conviction for manslaughter
in the first degree with a firearm was improper because
the jury had acquitted him of murder on the basis of
the affirmative defense of extreme emotional distur-
bance and that the proper conviction was manslaughter
in the first degree, which carries a maximum sentence
of twenty years of imprisonment. Id. The trial court
dismissed the motion to correct for lack of jurisdiction.
Id. This court framed the question on appeal as
‘‘whether Practice Book § 43-22 is an appropriate proce-
dural vehicle by which to challenge an allegedly
improper conviction or whether the finality of the defen-
dant’s conviction, subject to any collateral challenges
the defendant may raise via a petition for a writ of
habeas corpus, has left the court without jurisdiction
to entertain his claim.’’ State v. Lawrence, supra, 91
Conn. App. 769. This court concluded that the ‘‘essence
of [his] claim is that he was convicted of the wrong
crime. He did not claim, nor could he, that the sentence
he received exceeded the maximum statutory limits for
the sentence prescribed for the crime for which he was
convicted.’’ Id., 775–76. ‘‘Because the defendant’s claim
falls outside that set of narrow circumstances in which
the court retains jurisdiction over a defendant once that
defendant has been transferred into the custody of the
[C]ommissioner of [C]orrection to begin serving his
sentence, the court cannot consider the claim pursuant
to a motion to correct an illegal sentence under Practice
Book § 43-22.’’ Id., 776.
Upon the grant of certification, the defendant appealed
to our Supreme Court, which concluded that this court
‘‘properly determined that, because the defendant’s
claim did not fall within the purview of [Practice Book]
§ 43-22, the trial court lacked jurisdiction.’’ State v. Law-
rence, supra, 281 Conn. 150. The Supreme Court rea-
soned that a ‘‘challenge to the legality of a sentence
focuses not on what transpired during the trial or on
the underlying conviction. In order for the [trial] court
to have jurisdiction over the motion to correct an illegal
sentence after the sentence has been executed, the sen-
tencing proceeding, and not the trial leading to the
conviction must be the subject of the attack. . . . [T]he
defendant’s claim by its very nature, presupposes an
invalid conviction.’’ Id., 158–59.
The Supreme Court’s decision in State v. Lawrence,
supra, 281 Conn. 147, is directly on point, and compels
us to affirm the trial court’s judgment dismissing the
defendant’s motion to correct. The defendant in this
case claims that the jury intended to find him guilty of
manslaughter in the first degree, not manslaughter in
the first degree with a firearm. Like the defendant in
Lawrence; id.; he challenges what transpired at trial,
not at sentencing, and his claim presupposes an invalid
conviction. We therefore conclude that the court prop-
erly dismissed the motion to correct for lack of jurisdic-
tion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Practice Book § 43-22 provides: ‘‘The 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 disposition made in an
illegal manner.’’
2
On direct appeal, the defendant claimed that the court improperly ‘‘(1)
accepted the jury’s verdict finding him guilty of manslaughter in the first
degree with a firearm under the theory of accessorial liability and not guilty
of the same crime under the theory of principal liability, thereby (a) violating
his right against double jeopardy, (b) resulting in his being convicted of the
nonexistent crime of being an accessory, (c) resulting in a legally inconsistent
verdict and (d) returning a verdict in violation of the principles of collateral
estoppel, and (2) suggested in its jury instructions that defense counsel had
made an improper closing argument, thereby improperly highlighting the
defendant’s decision not to testify.’’ (Internal quotation marks omitted.)
State v. Gamble, supra, 119 Conn. App. 289. The defendant sought to prevail
pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
as he had failed to preserve those claims at trial. This court determined
that the defendant could not prevail under Golding because the alleged
constitutional violations did not exist and the defendant was not denied a
fair trial. State v. Gamble, supra, 294–99.
The defendant also sought to prevail under the plain error doctrine. Id.,291 n.2; see Practice Book § 60-5. This court found that ‘‘[t]here is no error,
plain or otherwise . . . .’’ State v. Gamble, supra, 119 Conn. App. 292 n.2.
3
In August, 2016, the defendant filed a third amended petition for a writ
of habeas corpus in which he alleged ineffective assistance of trial and
appellate counsel. Gamble v. Commissioner of Correction, 179 Conn. App.
285, 289, 289 n.4, 179 A.3d 227, cert. denied, 328 Conn. 921, 181 A.3d 91(2018). In his petition, the defendant alleged that his appellate counsel had
rendered ineffective assistance on appeal by failing to raise a claim of
insufficient evidence. Id., 289. This court found that there was sufficient
evidence before the jury to support a finding that the defendant participated
in the shooting of the victim. ‘‘[T]he victim’s injuries indicated that shots
had been fired from three different types of firearms. Ed Beaumon, a New
Haven resident, testified that in the early evening of November 29, 2005, he
was sitting on his neighbor’s front porch on Kensington Street when he
heard shots being fired, and he ran out to the victim and observed shots
being fired from the front and rear passenger sides of a ‘maroon’ car. The
[defendant] admitted in his statement to police that he was seated in the
backseat of the BMW during the shooting. The jury reasonably could have
inferred that the [defendant] fired one of the three weapons.’’ Id., 297 n.9.
4
The defendant was charged with murder, conspiracy to commit murder,
possession of an assault weapon, and conspiracy to possess an assault
weapon. State v. Gamble, supra, 119 Conn. App. 289 n.1. The jury found the
defendant not guilty of those charges. Id.5
The court charged the jury in relevant part: ‘‘In order for you to find the
defendant guilty of being [an] accessory to the crime of manslaughter in
the first degree under [General Statutes] § 53a-55a (3) . . . you must find
that the defendant . . . had the criminal intent required for the crime of
manslaughter in the first degree; namely, [he] recklessly engaged in conduct
which created a grave risk of death to another person, and the . . . defen-
dant intentionally aided other persons under these circumstances. This
means that the accessory as described to you in count one is applicable to
this lesser included offense as well. My charge on accessory applies to . . .
this lesser included offense as well.
‘‘Now, if you find that the state has proven all [of] the elements of
manslaughter in the first degree then you must consider whether the state
has proven beyond a reasonable doubt that at the time and in the commis-
sion of this crime [of] manslaughter, the lesser included offense, the
accused used, or was armed with or threatened the use or displayed or
represented by his words or conduct that [he] possessed a pistol or revolver
or other firearm capable of firing a shot, then you must find the defendant
guilty of manslaughter . . . in the first degree with a firearm. And if you
find the state has not proven those elements of proof beyond a reasonable
doubt then you would find the defendant not guilty.
‘‘Manslaughter, lesser included offense, a person acting with the mental
state required for the commission of an offense which—in this instance
that, one, under circumstances evincing an extreme indifference to human
life, he recklessly engages in conduct which creates a grave risk of death
to another person and thereby causes the death of another person . . . and
in the commission of the crime he used or represented by his words or
conduct that he possessed a pistol or revolver or a firearm . . . capable
of discharging a shot, then you must find the defendant guilty of manslaugh-
ter with a firearm . . . . If you find the state has not proven that, then
you must find the defendant not guilty. Also, applicable is the accessory
as I’ve described to you in the charge of murder.’’ (Emphasis added.)
The transcript of this portion of the court’s jury instruction regarding the
statutory citation for manslaughter in the first degree, which is an element
of the offense of manslaughter in the first degree with a firearm, references
‘‘§ 53a-55a (3).’’ There is no § 53a-55a (3) in the General Statutes. Manslaugh-
ter in the first degree is codified at General Statutes § 53a-55 (a) (3). Man-
slaughter in the first degree with a firearm is codified at General Statutes
§ 53a-55a. See footnote 7 of this opinion.
6
The court clerk cited § 53a-55 (a) (3) for the offense of manslaughter in
the first degree with a firearm. That statute governs manslaughter in the
first degree. See footnotes 5 and 7 of this opinion. The defendant did not
raise that error in his motion to correct or the present appeal. As a result,
we deem any claims concerning the court clerk’s error abandoned. Moreover,
in light of this court’s prior decisions in the defendant’s direct appeal and
petition for a writ of habeas corpus, Judge Holden’s full instruction to the
jury about the offense of manslaughter in the first degree with a firearm;
see footnote 5 of this opinion; the court clerk’s clear question to the jury
about whether it found the defendant guilty ‘‘of manslaughter in the first
degree with a firearm as an accessory’’; and the judgment file itself, which
states that the jury found the defendant guilty of manslaughter in the first
degree with a firearm as an accessory, any such claim is immaterial for
purposes of the present appeal because it does not give rise to a colorable
claim that the defendant was convicted of anything other than manslaughter
in the first degree with a firearm.
7
General Statutes § 53a-55 (a) provides in relevant part: ‘‘A person is
guilty of manslaughter in the first degree when . . . (3) under circumstances
evincing an extreme indifference to human life, he recklessly engages in
conduct which creates a grave risk of death to another person, and thereby
causes the death of another person.’’
General Statutes § 53a-55a provides in relevant part: ‘‘(a) A person is
guilty of manslaughter in the first degree with a firearm when he commits
manslaughter in the first degree as provided in section 53a-55, and in the
commission of such offense he uses or is armed with . . . a pistol, revolver,
shotgun, machine gun, rifle or other firearm. . . . .
‘‘(b) Manslaughter in the first degree with a firearm is a class B felony
and any person found guilty under this section shall be sentenced to a term
of imprisonment in accordance with subdivision (5) of section 53a-35a of
which five years of the sentence imposed may not be suspended or reduced
by the court.’’
8
General Statutes § 53a-35a provides in relevant part: ‘‘For any felony
committed on or after July 1, 1981, the sentence of imprisonment . . . shall
be fixed by the court as follows . . . (5) For the class B felony of manslaugh-
ter in the first degree with a firearm under section 53a-55a, a term not less
than five years nor more than forty years . . . .’’
9
In addition to a direct appeal, the record discloses that the defendant
has filed several postconviction motions or petitions. In April, 2007, the
defendant filed an application for sentence review, claiming that his sentence
was inappropriate, disproportionate, and contradicted the jury’s verdict. On
January 25, 2011, the sentence review division, Alexander, White and Dooley,
Js., found that the sentence imposed was appropriate and was not dispropor-
tionate given the serious nature of the offense.
In August, 2011, the defendant filed a motion to correct an illegal sentence
claiming that his sentence exceeded the relevant statutory maximum limits,
violated his right against double jeopardy, was ambiguous and was internally
contradictory. The court, Fasano, J., denied the motion to correct stating
that the defendant’s double jeopardy and internally contradictory claims
had been addressed in substance and depth by this court in the defendant’s
direct appeal. ‘‘The judgment, therefore, was final as to those specific issues
and any other matters that might have been offered in connection with the
same issues. State v. Aillon, 189 Conn. 416, 423–25, [456 A.2d 279, cert.
denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122] (1983). Other legal
issues raised by the [defendant] and not related to the claim of double
jeopardy fall outside the limited jurisdiction of the court with respect to
motions to correct illegal sentences. State v. Koslik, 116 Conn. App. 693,
698–700, [977 A.2d 275, cert. denied, 293 Conn. 930, 980 A.2d 916] (2009).’’
10
See State v. McCoy, 331 Conn. 561, 586–87, 206 A.3d 725 (2019) (court
loses jurisdiction upon execution of sentence).
11
Throughout the hearing, the length of the defendant’s sentence was
characterized as thirty-seven years, not thirty-seven and one-half years. The
difference is not relevant to the motion to correct.
12
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970).