State v. Heriberto B. ( 2021 )

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STATE OF CONNECTICUT v. HERIBERTO B.*
(AC 43966)
Alvord, Prescott and Flynn, Js.
Syllabus
The defendant, who had been convicted, on a plea of guilty, of two counts
of the crime of risk of injury to a child, appealed to this court, claiming
that the trial court improperly dismissed for lack of subject matter
jurisdiction the first of two motions he had filed to correct an illegal
sentence and violated his right to a jury trial. The defendant asserted
in his first motion to correct that his sentence on both risk of injury
counts violated the fifth amendment’s prohibition of double jeopardy.
Concurrently with that motion, he filed a motion for the appointment
of counsel to assist him in preparing and filing a motion to correct an
illegal sentence. The trial court appointed P, who found no merit to the
issues raised in the first motion to correct. P then filed a second motion
to correct an illegal sentence and to vacate the guilty plea on the ground
that the defendant’s plea to one of the two risk of injury counts was
not made knowingly and voluntarily because the prosecutor’s recitation
of the factual basis for the plea with respect to that count had referenced
a sexual assault that was not alleged in the arrest warrant or charged
in the state’s operative information. When the trial court then advised
the defendant about the option of proceeding as a self-represented party
if he wanted to pursue the claims in his first motion to correct, he stated
that he did not intend to proceed as a self-represented party. The court
then denied a motion the defendant had filed to discharge P and denied
the second motion to correct an illegal sentence, concluding that the
claims raised in the second motion were more properly brought in a
petition for a writ of habeas corpus. Held:
1. This court declined to review the defendant’s claim that the trial court
improperly dismissed his first motion to correct an illegal sentence; the
trial court could not, and did not, render judgment on the merits of that
motion, as it was superseded by the second motion to correct an illegal
sentence, which became operative when the defendant requested the
appointment of counsel and then declined the trial court’s invitation to
proceed as a self-represented party.
2. This court declined to consider the defendant’s unpreserved constitutional
claim that his right to a jury trial was violated; contrary to the defendant’s
assertion that his claim was ripe for review under State v. Golding (213
Conn. 233) or reversal under the plain error doctrine set forth in the
applicable rule of practice (§ 60-5), extraordinary review under Golding
and § 60-5 was not warranted because the defendant did not first present
his claim to the ‘‘judicial authority,’’ which, in the rule of practice (§ 43-
22) governing motions to correct an illegal sentence, means solely the
trial court, not the appellate courts of this state, and this court’s decision
to decline review of the defendant’s claim would not result in hardship
or injustice to him, as he may seek and obtain any appropriate redress
for an illegal sentence before the trial court, which is in a superior
position to fashion such a remedy.
Argued April 6—officially released August 31, 2021
Procedural History
Substitute information charging the defendant with
six counts of the crime of sexual assault in the first
degree, five counts each of the crimes of risk of injury
to a child and unlawful restraint in the first degree, four
counts each of the crimes of sexual assault in the third
degree and threatening in the second degree, and three
counts of the crime of aggravated sexual assault of a
minor, brought to the Superior Court in the judicial
district of New Britain, where the defendant was pre-
sented to the court, Alexander, J., on pleas of guilty to
two counts of risk of injury to a child; thereafter, the
state entered a nolle prosequi as to the remainder of
the charges; judgment of guilty; subsequently, the court,
Keegan, J., denied the defendant’s motion to correct
an illegal sentence, and the defendant appealed to this
court; thereafter, the court, Keegan, J., issued a cor-
rected judgment dismissing the defendant’s motion to
correct an illegal sentence. Affirmed.
John L. Cordani, Jr., assigned counsel, with whom,
on the brief, was Andrew A. DePeau, assigned counsel,
for the appellant (defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Brian W. Preleski, state’s
attorney, and Helen J. McLellan, senior assistant state’s
attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Heriberto B., appeals
from the judgment of the trial court dismissing his
motion to correct an illegal sentence and to vacate his
pleas on the ground that the court lacked subject matter
jurisdiction to consider the motion. On appeal, the
defendant claims that the trial court (1) improperly
dismissed, for lack of subject matter jurisdiction, the
first motion to correct an illegal sentence that he filed,
and (2) violated his constitutional right to a jury trial
under Alleyne v. United States, 570 U.S. 99, 133 S. Ct.
2151, 186 L. Ed. 2d 314 (2013). We affirm the judgment
of the trial court.
The following facts and procedural history are rele-
vant to this appeal. In an affidavit by the police in
support of their application for a warrant for the defen-
dant’s arrest, the defendant was accused of sexually
assaulting the victim, a child under the age of thirteen,
on multiple occasions from November, 2012, through
September 22, 2013. In connection with those allega-
tions, the state charged the defendant in a twenty-seven
count substitute, long form information with, inter alia,
two counts of risk of injury to a child in violation of
General Statutes § 53-21 (a) (2).1
In count eleven of the operative information, the state
‘‘accuse[d] the [defendant] of the crime of injury or risk
of injury to or impairing the morals of a child, and
allege[d] that on divers[e] dates between November 1,
2012, and September 21, 2013, between the hours of 6:30
a.m. and 4:30 p.m., on a Sunday, at a certain residence
located within the city of New Britain, Connecticut . . .
the [defendant] had contact with the intimate parts,
including, but not limited to, the breasts, genital area,
groin, inner thighs and buttocks of a child under the
age of thirteen years . . . and subjected said child to
contact with the intimate parts of said [defendant], spe-
cifically, his penis, all in a sexual and indecent manner
likely to impair the health or morals of such child, said
acts having occurred within the bedroom of said child,
and all such acts were committed in violation of [§] 53-
21 (a) (2) . . . .’’
In count twenty-three of the operative information,
the state ‘‘further accuse[d] the [defendant] of the crime
of injury or risk of injury to or impairing the morals of a
child, and allege[d] that, on or about Sunday, September
22, 2013, between the hours of 6:30 a.m. and 4:30 p.m.,
at a certain residence located within the city of New
Britain, Connecticut, the [defendant] had contact with
the intimate parts, including, but not limited to, the
breasts, the genital area, the groin, the inner thighs and
buttocks, of a child under the age of thirteen years . . .
and subjected said child to contact with the intimate
parts of said [defendant], specifically, his penis, all in
a sexual and indecent manner likely to impair the health
or morals of such child, said acts having occurred within
the bedroom of said child, and all acts were committed
in violation of [§] 53-21 (a) (2) . . . .’’ (Emphasis
added.)
On July 20, 2016, the defendant, represented by coun-
sel, entered Alford pleas2 with respect to the two counts
of risk of injury to a child.3 During the plea proceeding,
the prosecutor articulated the following factual basis
for the defendant’s pleas: ‘‘The first count, count eleven,
that he pleaded to that had to do with his sexual contact
and intercourse with a ten year old female . . . . It
happened on diverse dates between November 1, 2012,
and September 21, 2013. The defendant had moved in
with the family. The mother had three children. This
was the older of the three daughters. It was the only
one involved. Apparently, the mother had to work on
occasional Sundays, and, since she didn’t have a baby-
sitter, she had [the defendant] watch the children. He
took advantage of the situation to have intercourse
and touching all the intimate parts of the child under
thirteen years and also had her [make] contact with his
penis, all in a sexual manner. The second [count to
which the defendant pleaded] . . . was count twenty-
three, and that was on a specific date, and that was
November 22, 2013, same situation on a Sunday while
the mother was at work, that it occurred in the bedroom,
like the other one, of the young girl. He touched her
all over and finally subjected her to penile . . . inter-
course in her bedroom, and . . . some of the bed-
clothes were tested, and his DNA was found to be on
a bedsheet and a blanket. . . . By that time . . . [the
victim] was under thirteen years of age. . . . She would
have been twelve.’’ (Emphasis added.)
Thereafter, the defendant acknowledged his under-
standing of the facts that the state would have to prove
for him to be found guilty of the two counts of risk of
injury to a child, as well as his understanding of the
definition of the charge. The court, Alexander, J., found
the defendant’s pleas to be knowingly and voluntarily
made, and that there was a factual basis for each plea.
Accordingly, the court accepted the defendant’s Alford
pleas and found him guilty of two counts of risk of
injury to a child. On October 20, 2016, with respect to
each count and in accordance with the plea agreement,
the court imposed identical sentences of seven years
of incarceration, five years of which was mandatory
under each sentence, followed by five years of special
parole under each sentence. The court ordered the sen-
tences to run consecutively to one another for a total
effective sentence of fourteen years of incarceration,
ten years of which was mandatory, followed by ten
years of special parole.4
On March 7, 2019, the defendant, as a self-represented
party, filed a motion to correct an illegal sentence pursu-
ant to Practice Book § 43-225 (first motion to correct),
in which he claimed, inter alia, that his sentence on the
two counts of risk of injury to a child was illegal because
it violated his federal constitutional protection against
double jeopardy (double jeopardy claim).6 Specifically,
the defendant argued that his sentence was illegal
because ‘‘[f]orcing [him] to defend against two counts
of risk of injury for a single act against one victim is
in direct opposition to the fifth amendment [to] the
United States constitution, which states . . . ‘nor shall
any person be subject for the same offense to be twice
put in jeopardy of life and limb.’ ’’
Concurrently with his first motion to correct, the
defendant filed a motion for appointment of counsel
pursuant to General Statutes § 51-296 to assist in prepar-
ing and filing a motion to correct an illegal sentence.7
Thereafter, the court appointed Attorney William H.
Paetzold to represent the defendant. After his review
of the issues raised by the defendant in the first motion
to correct, Paetzold found no merit to that motion.
Specifically, with respect to that motion, Paetzold
explained that the defendant ‘‘continues to want me to
litigate issues that I believe are habeas corpus related
issues and are not subject to a motion to correct an
illegal sentence.’’
Instead of pursuing the defendant’s first motion to
correct, on August 29, 2019, Paetzold filed a subsequent
motion to correct an illegal sentence and to vacate the
pleas on behalf of the defendant (second motion to
correct), which contained an issue that he ‘‘thought
might have some merit.’’ In the second motion to cor-
rect, the defendant claimed that his sentence was illegal
because there was no factual basis to support his Alford
plea to count twenty-three of the state’s operative infor-
mation and, thus, his plea to one count of risk of injury
to a child was not made knowingly and voluntarily.
More specifically, the defendant argued that the state’s
recitation of the factual basis for his plea with respect to
count twenty-three erroneously referenced a November
22, 2013 sexual assault that was not alleged in the arrest
warrant or charged in the state’s operative information.8
Accordingly, the defendant maintained that the court
erred by relying on an inadequate factual basis in
accepting his Alford plea as to count twenty-three.
On October 10, 2019, the state filed an objection to
the second motion to correct. In its objection, the state
argued that ‘‘the defendant’s attack on the factual basis
for the plea falls outside the parameters of the grounds
permitted to be raised in a motion to correct.’’ The
state alternatively maintained that the defendant’s claim
failed on its merits because his ‘‘pleas were fully can-
vassed before being accepted by the court, and the
record supports a factual basis for the elements of the
crimes [of] which [he] was convicted.’’9
On November 13, 2019, the defendant, as a self-repre-
sented party, filed a motion to discharge Paetzold, his
appointed counsel. In support of that motion, the defen-
dant argued, inter alia, that he ‘‘recently filed a motion
to correct an illegal sentence, which is pending before
the court, concerning which . . . Paetzold has failed
to raise challenge or objection on the state’s action of
sentencing the [defendant] twice on the same docket
number by implication of an unsubstantiated, unproven
charge.’’ Accordingly, the defendant requested that
‘‘Paetzold be replaced.’’
On November 18, 2019, the court, Keegan, J., held a
hearing with respect to ‘‘two different motions in this
case . . . .’’ The court stated: ‘‘I have a motion here
filed by . . . Paetzold, motion to correct illegal sen-
tence and vacate the plea, and that’s dated August 28,
2019. Then, in October, the state filed an objection to
the motion to correct illegal sentence and vacate plea,
and now [the defendant] [has] a motion to fire . . .
Paetzold.’’ The court then engaged in the following col-
loquy with the defendant:
‘‘The Court: Okay. Now . . . I’m sure that Judge
Alexander told you when you originally filed your
motion to correct [an] illegal sentence that it would be
assigned to an attorney from the Office of the Public
Defender for review and that, if they believed there was
an issue that was worthy of being considered for a
motion to correct illegal sentence hearing, that the
attorney would stay on with you. And if they found
that there was no basis for it, that you would have to
represent yourself, correct?
‘‘The Defendant: Yeah.
‘‘The Court: Okay. And let me just take this procedur-
ally, okay. . . . Is it your intention to argue this motion
to correct [an] illegal sentence by yourself? . . .
‘‘The Defendant: I wanted the court [to] give me the
different attorney.
‘‘The Court: No, you . . . don’t get a different attor-
ney. . . .
‘‘The Defendant: Your Honor . . . he no represent
me the . . . way he’s supposed.
‘‘The Court: No . . . he’s probably not representing
you the way you want, is that correct?
‘‘The Defendant: He’s supposed to do . . . what I
say. . . .
‘‘The Court: Do you have a law degree? . . .
‘‘The Defendant: No, I learn by myself.’’
The court then had the following colloquy with Paet-
zold:
‘‘The Court: . . . [Y]ou have examined [the defen-
dant’s] original claim. I have that. It’s a handwritten-
out motion from March of 2019.
‘‘Attorney Paetzold: Yes.
‘‘The Court: You filed a motion to correct [an] illegal
sentence and vacate plea. Were there any other grounds
in your legal opinion [that] should have been raised in
this motion to correct [an] illegal sentence and
vacate plea?
‘‘Attorney Paetzold: Your Honor, [the defendant] has
brought a number of issues to my attention. And as I
explained to [the defendant] several times, those issues
that he wants to pursue are issues involving habeas
corpus, ineffective assistance of counsel, things that
his trial counsel failed to do. They’re not subject to
correcting an illegal sentence. And I tried explaining
that to [the defendant]. I also found an issue that I
thought might have some merit . . . .
‘‘The Court: Is this the claim . . . that there’s no
factual basis to support the plea to risk of injury to a
minor because it erroneously references a November,
2013 event, and the state has indicated that that was
an error on the part of the state. It should have been
. . . September, 2013.
‘‘Attorney Paetzold: Yes.’’10
With that background, the court explained to the
defendant: ‘‘[A]n illegal sentence is a very defined cate-
gory of a reason to vacate a guilty plea. It has to exceed
the maximum statutory limits for a crime, if it does not
satisfy the mandatory minimum for a crime, if it violates
double jeopardy rights, if the sentence is ambiguous or
internally contradictory. Those are illegal sentences.
Now, when there is something that happened at a trial
or during the course of representation leading up to
your guilty plea and sentencing, that is not an issue
that’s brought up during a motion to correct an illegal
sentence. That is brought up during a petition for a
[writ of] habeas corpus where you can make a claim
to the court that the representation of your attorney
fell below the limit and . . . the level that we recognize
in court as effective assistance. And so what I’m hearing
from . . . Paetzold, who is a very experienced attorney
. . . [is] that the claims that you want to bring up are
claims that are not for a motion to correct [an] illegal
sentence, but they are habeas corpus claims.’’ Ulti-
mately, the court concluded: ‘‘So, based on the informa-
tion that I have in front of me, I’m not letting . . .
Paetzold withdraw. I am going to accept his argument
today and the . . . motion that he prepared, I have
read the state’s objection. And so I have denied [the
defendant’s] motion to fire . . . Paetzold. I have denied
the motion to correct [an] illegal sentence.’’11 This
appeal followed.
I
The defendant first claims that the trial court improp-
erly dismissed his first motion to correct for lack of
subject matter jurisdiction because it raised ‘‘a well
established type of double jeopardy claim’’ related to
his sentencing on the two counts of risk of injury to a
child. The defendant further asserts that ‘‘[i]t is equally
well established that [a] sentence that violates a defen-
dant’s right against double jeopardy falls within the
recognized definition of an illegal sentence correctable
under Practice Book § 43-22.’’ (Internal quotation marks
omitted.) In response, the state argues that the defen-
dant cannot resurrect the double jeopardy claim con-
tained in his first motion to correct, which was deemed
meritless by Paetzold. The state maintains that the dou-
ble jeopardy claim was not included in the claims
asserted by Paetzold on behalf of the defendant in the
second motion to correct, and was not litigated by the
parties or properly before by the court. We agree with
the state and decline to review the defendant’s claim.
Our discussion of the defendant’s claim that the court
improperly dismissed his first motion to correct is
informed by the underlying procedural posture. In State
v. Casiano, 282 Conn. 614, 627–28, 922 A.2d 1065 (2007),
our Supreme Court recognized that, under § 51-296 (a),
a defendant who wants to file a motion to correct an
illegal sentence ‘‘has a right to the appointment of coun-
sel for the purpose of determining whether . . . [there
exists] a sound basis for doing so. If appointed counsel
determines that such a basis exists, the defendant also
has the right to the assistance of such counsel for the
purpose of preparing and filing such a motion . . . .’’
In State v. Francis, 322 Conn. 247, 267–68, 140 A.3d 927(2016), our Supreme Court expounded on the procedure
with respect to the withdrawal of appointed counsel’s
representation: ‘‘If, after consulting with the defendant
and examining the record and relevant law, counsel
determines that no sound basis exists for the defendant
to file such a motion, he or she must inform the court
and the defendant of the reasons for that conclusion,
which can be done either in writing or orally. If the
court is persuaded by counsel’s reasoning, it should
permit counsel to withdraw and advise the defendant
of the option of proceeding as a self-represented party.’’
At the defendant’s request and pursuant to § 51-296
(a), Paetzold was appointed for the purpose of deter-
mining whether there existed a sound basis for filing
a motion to correct an illegal sentence on behalf of the
defendant. Paetzold determined that there was a sound
basis for pursuing such a motion and, in accordance
with the scope of his representation as set forth in
Casiano, filed the second motion to correct on behalf
of the defendant. Paetzold further represented to the
court that, after reviewing the claims contained in the
first motion to correct, there were no other sound bases
that should have been raised in the second motion to
correct. Before mentioning the first motion to correct,
the court identified the second motion to correct as the
operative motion before it for consideration. Consistent
with the procedure set forth in Francis and in light of
Paetzold’s determination that the claims contained in
the first motion to correct were without merit, the court
advised the defendant of the option of proceeding as
a self-represented party if he instead chose to pursue
the claims contained therein. In response, the defendant
indicated that he did not intend to proceed as a self-
represented party in pursuing the first motion to cor-
rect. Moreover, although the defendant expressed his
desire for substitute counsel, he clarified that he wanted
to pursue a motion to correct an illegal sentence on
the ground that he ‘‘got sentenced for something [he
had] never [been] charged [with].’’ That ground was
consistent with the claim raised by Paetzold in the sec-
ond motion to correct. On the basis of this information,
the court denied the defendant’s motion to discharge
appointed counsel, accepted the second motion to cor-
rect as the operative motion, and ultimately dismissed
that motion.
The defendant’s actions of requesting the appoint-
ment of counsel and subsequently declining the court’s
invitation to proceed as a self-represented party neces-
sarily rendered operative the second motion to correct.
See State v. Henderson, 307 Conn. 533, 546, 55 A.3d
291 (2012) (‘‘The right to counsel and the right to self-
representation present mutually exclusive alternatives.
. . . [S]ince the two rights cannot be exercised simulta-
neously, a defendant must choose between them.’’); see
also State v. DeFreitas, 179 Conn. 431, 446 n.4, 426 A.2d
799 (1980) (When counsel appears on behalf of the
defendant, the defendant’s attempt to interject issues
inconsistent with counsel’s strategic decisions must be
rejected because, ‘‘[i]f . . . trial counsel could employ
one trial tactic, and if that failed, then the defendant
pro se could adopt another trial tactic, the trial court
could be caught between two opposing positions. This
would be a species of trial by ambuscade, a tactic which
this court has been quick to disapprove.’’). In other
words, the second motion to correct superseded the
first motion to correct. Because the first motion to
correct was not properly before the court, the court
could not and, therefore, did not, render judgment on
the merits of that motion.12 Accordingly, we decline to
review the defendant’s claim.
II
The defendant next claims that his right to a jury
trial under the sixth amendment to the United States
constitution was violated, pursuant to Alleyne v. United
States, supra, 570 U.S. 99,13 because he was subjected
to an enhanced mandatory minimum sentence for the
crime of risk of injury to a child in the absence of a
waiver of his right to a jury finding or a specific plea to
the relevant fact necessary to trigger the enhancement.14
The defendant argues that, although ‘‘this issue was not
raised in the trial court, it is ripe for review under State
v. Golding, 213 Conn. 233, [567 A.2d 823 (1989), as
modified by In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015)], and for reversal under the . . . plain
error doctrine’’ set forth in Practice Book § 60-5. The
state responds that the defendant’s claim is unreview-
able because, ‘‘in the context of a motion to correct an
illegal sentence, the only court with the authority to
correct such a sentence is the trial court,’’ and, ‘‘[t]here-
fore, any claim not first presented to the trial court in
a properly filed motion to correct cannot be used as a
basis to alter a defendant’s sentence in an appeal from
such a motion.’’ We conclude that the defendant’s claim
is not entitled to review under Golding or the plain error
doctrine and, accordingly, we decline to consider it.
‘‘Under Golding, a [party] can prevail on a claim of
constitutional error not preserved at trial only if all
of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the
claim is of constitutional magnitude alleging the viola-
tion of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the
[party] of a fair trial; and (4) if subject to harmless error
analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt. In the absence of any one of these
conditions, the [party’s] claim will fail. The appellate
tribunal is free, therefore, to respond to the [party’s]
claim by focusing on whichever condition is most rele-
vant in the particular circumstances.’’ (Internal quota-
tion marks omitted.) In re Riley B., 203 Conn. App. 627,
636, 248 A.3d 756, cert. denied, 336 Conn. 943, 250 A.3d
40 (2021). ‘‘An appellant may obtain review under the
plain error doctrine upon a showing that failure to rem-
edy an obvious error would result in manifest injustice.’’
State v. Starks, 121 Conn. App. 581, 591, 997 A.2d 546(2010); see also State v. Myers, 290 Conn. 278, 289, 963
A.2d 11 (2009) (‘‘[an appellant] cannot prevail under
[the plain error doctrine] . . . unless he demonstrates
that the claimed error is both so clear and so harmful
that a failure to reverse the judgment would result in
manifest injustice’’ (internal quotation marks omitted)).
In support of his argument that his unpreserved con-
stitutional claim is reviewable, the defendant maintains
that, pursuant to Practice Book § 43-22, ‘‘[t]he judicial
authority may at any time correct an illegal sentence
. . . .’’ (Emphasis added.) The defendant relies on the
interpretation of § 43-22 set forth in State v. Cator, 256
Conn. 785, 781 A.2d 285 (2001), which determined that
the term ‘‘judicial authority’’ provides ‘‘[b]oth the trial
court and [an appellate] court, on appeal, have the
power, at any time, to correct a sentence that is illegal.’’
(Internal quotation marks omitted.) Id., 804. As the state
correctly mentions, however, in Cobham v. Commis-
sioner of Correction, 258 Conn. 30, 779 A.2d 80 (2001),
our Supreme Court clarified: ‘‘We recognize that this
court previously has suggested that the language ‘judi-
cial authority,’ found in § 43-22, included the appellate
courts as well as the trial court that had ordered the
sentence. . . . Today we clarify the meaning of ‘judi-
cial authority’ in § 43-22, however, to mean solely the
trial court.’’ (Citations omitted.) Id., 38 n.13. Accord-
ingly, the judicial authority that may, at any time, cor-
rect an illegal sentence pursuant to § 43-22 ‘‘refer[s] to
the trial court, not the appellate courts of this state.’’
State v. Starks, supra, 121 Conn. App. 591.
In State v. Starks, supra, 121 Conn. App. 581, this
court declined to grant review under Golding or the
plain error doctrine of an unpreserved claim of constitu-
tional error on appeal from the denial of a motion to
correct an illegal sentence. The court reasoned that
‘‘[o]ur rules of practice confer the authority to correct
an illegal sentence on the trial court, and that court is
in a superior position to fashion an appropriate remedy
for an illegal sentence. . . . Furthermore, the defen-
dant has the right, at any time, to file a motion to correct
an illegal sentence and raise [a] double jeopardy claim
before the trial court. Typically, our appellate courts
afford review under Golding or the plain error doctrine
in circumstances in which the failure to undertake such
an extraordinary level of review, effectively, would pre-
clude an appellant from obtaining any judicial review
of the claim raised. That is not the case here.’’ (Citation
omitted; emphasis in original.). Id., 592; see also State
v. Syms, 200 Conn. App. 55, 59–60, 238 A.3d 135 (2020)
(declining to grant Golding review of unpreserved claim
of constitutional error on appeal from denial of motion
to correct illegal sentence under same reasoning); State
v. Brescia, 122 Conn. App. 601, 605 n.3, 999 A.2d 848(2010) (same).
In the present case, the defendant may seek and
obtain any appropriate redress for an illegal sentence
before the trial court, which is in a superior position
to fashion such a remedy. As in Starks, we are not
persuaded that extraordinary review of the defendant’s
claim under Golding15 or the plain error doctrine is
warranted or that our declining to review the claim
would result in any hardship or injustice to the defen-
dant. We, therefore, decline to consider it.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to use the
defendant’s full name or to identify the victim or others through whom the
victim’s identity may be ascertained. See General Statutes § 54-86e.
1
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
. . . (2) has contact with the intimate parts, as defined in section 53a-65,
of a child under the age of sixteen years or subjects a child under sixteen
years of age to contact with the intimate parts of such person, in a sexual
and indecent manner likely to impair the health or morals of such child
. . . shall be guilty of . . . a class B felony . . . except that, if . . . the
victim of the offense is under thirteen years of age, such person shall be
sentenced to a term of imprisonment of which five years of the sentence
imposed may not be suspended or reduced by the court.’’
2
‘‘Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970), a criminal defendant is not required to admit his guilt, but
consents to being punished as if he were guilty to avoid the risk of proceed-
ing to trial. . . . A guilty plea under the Alford doctrine is a judicial oxymo-
ron in that the defendant does not admit guilt but acknowledges that the
state’s evidence against him is so strong that he is prepared to accept the
entry of a guilty plea nevertheless. The entry of a guilty plea under the
Alford doctrine carries the same consequences as a standard plea of guilty.
By entering such a plea, a defendant may be able to avoid formally admitting
guilt at the time of sentencing, but he nonetheless consents to being treated
as if he were guilty with no assurances to the contrary.’’ (Emphasis in
original; internal quotation marks omitted.) State v. Simpson, 329 Conn.
820, 824 n.4, 189 A.3d 1215 (2018).
3
The plea agreement was that the defendant would enter Alford pleas to
counts eleven and twenty-three of the operative information, charging him
with two counts of risk of injury to a child, and that the state would enter
dispositions of nolle prosequi on the remaining charges. The sentencing
recommendation to the court was that the defendant serve a maximum total
effective sentence of fifteen years of incarceration, with the defendant having
a right to argue for a minimum of seven years, followed by ten years of
special parole.
4
Specifically, the court, Alexander, J., sentenced the defendant as follows:
‘‘On the first count of risk of injury to a minor, [§] 53-21 (a) (2), it is the
sentence of the court that [the defendant] receive seven years to serve. It
will be followed by five years of special parole. Five years is considered a
mandatory minimum. On the second count of risk of injury to a minor, [§]
53-21 (a) (2), it is the sentence of the court that [the defendant] receive
seven years to serve. That sentence will be followed by five years of special
parole. Five years is a mandatory minimum. Those sentences run consecu-
tively for the effective sentence of fourteen years to serve, ten years being
a mandatory minimum, followed by ten years of special parole.’’
5
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 other disposition made in an
illegal manner.’’
6
In his first motion to correct, the defendant also claimed that (1) the
state’s use of certain words to describe his conduct ‘‘tarnish[ed] his image
in an unlawful way,’’ (2) evidence undermined the credibility of the victim’s
allegations, and (3) special parole constituted a separate sentence from the
period of incarceration imposed and, thus, violated his federal constitutional
protection against double jeopardy.
7
General Statutes § 51-296 (a) provides in relevant part: ‘‘In any criminal
action . . . the court before which the matter is pending shall, if it deter-
mines after investigation by the public defender or his office that a defendant
is indigent as defined under this chapter, designate a public defender, assis-
tant public defender or deputy assistant public defender to represent such
indigent defendant . . . .’’
In State v. Francis, 322 Conn. 247, 140 A.3d 927 (2016), our Supreme
Court explained that ‘‘a defendant who wishes to file a motion to correct
an illegal sentence has a [statutory] right [under § 51-296 (a)] to the appoint-
ment of counsel for the purpose of determining whether . . . [there exists]
a sound basis for doing so. If appointed counsel determines that such a
basis exists, the defendant also has the right to the assistance of such
counsel for the purpose of preparing and filing such a motion and, thereafter,
for the purpose of any direct appeal from the denial of that motion.’’ (Internal
quotation marks omitted.) Id., 260.
8
Paetzold noted that the last incident of sexual assault, as alleged by the
state, occurred on Sunday, September 22, 2013.
9
The state did not address the claims raised in the defendant’s first motion
to correct.
10
During the hearing and consistent with its objection to the second
motion to correct, the state solely addressed the claim asserted by Paetzold
in the second motion to correct. Specifically, the prosecutor argued that,
‘‘based on the transcripts and the information before the court, the court
clearly had a factual basis for the pleas pursuant to the plea agreement.’’
The prosecutor further argued that the court should reject the second motion
to correct because ‘‘[t]he sentence of the court was legal. It’s within statutory
limits. It is consistent with the plea agreement reached by the parties, and
the record clearly demonstrates an adequate factual basis for the defendant’s
pleas. The court canvassed the pleas, accepted them. The matter was set
down for sentencing where the defendant would have the right to address
the court. The victim spoke to the court. The court had the presentence
investigation, the warrant affidavit, and heard argument from both counsel.’’
11
Thereafter, on August 20, 2020, the court corrected the form of the
judgment on the defendant’s second motion to correct and ‘‘enter[ed] a
dismissal, rather than a denial, of the motion.’’ The court explained that
‘‘[t]he motion attacks the plea and not the sentence or the sentencing pro-
ceeding and, therefore, the court lacks jurisdiction.’’
12
The defendant incorrectly claims that the court dismissed his first
motion to correct for lack of subject matter jurisdiction. To support his
position, the defendant references a single statement contained in the
‘‘amended criminal judgment file,’’ prepared by the court clerk, which indi-
cates that ‘‘both motions to correct [an] illegal sentence were denied after
argument by Judge Keegan on [November 18, 2019].’’ We note, however,
that during the November 18, 2019 hearing, the court specifically referenced
the second motion to correct as the relevant motion to be considered,
expressly accepted the second motion to correct as the operative motion
before it, and subsequently rendered judgment on ‘‘the motion to correct
[an] illegal sentence.’’ (Emphasis added.) Moreover, the correction to the
form of the judgment issued by the court on August 20, 2020; see footnote
11 of this opinion; was specifically captioned with respect to the ‘‘motion
to correct an illegal sentence/vacate plea,’’ and, in that correction, the court
rendered a ‘‘dismissal, rather than a denial, of the motion.’’ (Emphasis
added.)
We note that a meticulous review of the case file reveals a November 18,
2019 order signed by Judge Keegan immediately following the first motion
to correct, which stated that, ‘‘after considering in its totality the defendant’s
motion to correct an illegal sentence [it is] ordered: denied.’’ We view this
document as a denial not on the merits of the first motion to correct, but
as simply a denial on procedural grounds and a reflection that the court
could not properly adjudicate that motion in light of the fact that it had
been superseded by the second motion to correct. ‘‘[T]he construction of
[an order or] judgment is a question of law . . . [and] our review . . . is
plenary.’’ (Internal quotation marks omitted.) Avery v. Medina, 174 Conn.
App. 507, 517, 163 A.3d 1271, cert. denied, 327 Conn. 927, 171 A.3d 61 (2017).
We, therefore, find the defendant’s contention misplaced.
13
In Alleyne v. United States, supra, 570 U.S. 103, the United States
Supreme Court held that ‘‘any fact that increases the mandatory minimum
is an ‘element’ that must be submitted to the jury’’ and proved beyond a
reasonable doubt. See also State v. Evans, 329 Conn. 770, 790, 189 A.3d
1184 (2018) (‘‘[a] guilty plea to an underlying offense does not, in the absence
of a specific plea to the specific facts necessary to trigger an enhanced
sentence, operate to waive the defendant’s right to that specific finding’’),
cert. denied, U.S. , 139 S. Ct. 1304, 203 L. Ed. 2d 425 (2019).
14
General Statutes § 53-21 (a) provides in relevant part that a person who
commits a violation of § 53-21 (a) (2) shall be guilty of a class B felony,
‘‘except that, if . . . the victim of the offense is under thirteen years of age,
such person shall be sentenced to a term of imprisonment of which five years
of the sentence imposed may not be suspended or reduced by the court.’’
15
We acknowledge that our Supreme Court in State v. McCleese, 333 Conn.
378, 425 n.23, 215 A.3d 1154 (2019), and State v. Evans, 329 Conn. 770, 809
n.27, 189 A.3d 1184 (2018), cert. denied, U.S. , 139 S. Ct. 1304, 203
L. Ed. 2d 425 (2019), and this court in State v. Arnold, 205 Conn. App. 863,
868 n.9, A.3d (2021), had reviewed unpreserved claims with respect
to motions to correct an illegal sentence under Golding. McCleese and Evans,
however, declined to overrule State v. Starks, supra, 121 Conn. App. 581,
and do not compel our review of the defendant’s unpreserved claim in
this instance.