State v. Robles , 169 Conn. App. 127 ( 2016 )

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STATE OF CONNECTICUT v. ROLANDO ROBLES
(AC 37881)
DiPentima, C. J., and Alvord and Pellegrino, Js.
Argued September 7—officially released October 25, 2016
(Appeal from Superior Court, judicial district of
Hartford, Miano, J. [judgment]; Alexander, J. [motions
to correct illegal sentence; petition for writ of error
coram nobis].)
Rolando Robles, self-represented, the appellant
(defendant).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Gail P. Hardy, state’s attorney, and
David L. Zagaja, senior assistant state’s attorney, for
the appellee (state).
Opinion
DiPENTIMA, C. J. The self-represented defendant,
Rolando Robles, appeals from the judgment of the trial
court dismissing his motion to correct an illegal sen-
tence. The defendant was convicted, following his guilty
pleas made pursuant to the Alford doctrine,1 of kidnap-
ping in the first degree in violation of General Statutes
§ 53a-92 (a) (2) (A), attempt to commit kidnapping in
the first degree in violation of General Statutes §§ 53a-
49 and 53a-92 (a) (2) (A) and sexual assault in the fourth
degree in violation of General Statutes § 53a-73a (a)
(2). On appeal, the defendant, raising a number of con-
stitutional and nonconstitutional issues, claims that the
trial court improperly concluded that it lacked subject
matter jurisdiction to consider his motion to correct
an illegal sentence. The defendant’s appellate claims,
however, challenge the validity of his conviction rather
than his sentence or the sentencing proceeding. We
conclude, therefore, that the court properly determined
that it lacked subject matter jurisdiction. Accordingly,
we affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to our discussion. On August 29, 2007, the defen-
dant appeared before the court, Miano, J., to enter
guilty pleas to the charges pending against him. The
defendant intended to plead guilty pursuant to the
Alford doctrine. The prosecutor recited the factual
bases underlying the charges against the defendant.2
During the plea canvass, a question arose regarding
whether the defendant wanted to plead guilty pursuant
to the Alford doctrine or enter a ‘‘straight guilty plea
to all three of the charges . . . .’’ After further discus-
sion, the court accepted the guilty pleas pursuant to
the Alford doctrine. On October 17, 2007, Judge Miano
sentenced the defendant to fifteen years incarceration,
execution suspended after time served,3 and twenty
years probation.
On July 22, 2011, the defendant filed a motion to
correct an illegal sentence. That motion was denied on
November 10, 2011. On September 3, 2014, the defen-
dant filed another motion to vacate or correct an illegal
sentence or, in the alternative, for a writ of error coram
nobis.4 The defendant requested that the court vacate
or correct the plea disposition and his sentence pursu-
ant to Practice Book § 43-22,5 or, in the alternative, issue
a writ of error coram nobis. He argued that as a result
of the new interpretation of our kidnapping statutes as
set forth in State v. Salamon, 287 Conn. 509, 949 A.2d
1092 (2008),6 the state and the court had committed
‘‘numerous constitutional errors’’ resulting in his sen-
tences7 being void or subject to correction. On Novem-
ber 20, 2014, the state filed a response to the defendant’s
motion arguing, inter alia, that the court lacked jurisdic-
tion to consider the defendant’s claims.
On March 19, 2015, the court, Alexander, J., issued
a memorandum of decision dismissing the defendant’s
motion. With respect to the Practice Book § 43-22 claim,
the court noted that the defendant’s arguments essen-
tially challenged the validity of his conviction, and
therefore it lacked subject matter jurisdiction. As to
the petition for a writ of error coram nobis, the court
observed that it lacked subject matter jurisdiction
because the petition had been filed untimely.8
On appeal, the defendant presents a variety of claims,
including that the dismissal of his motion to correct an
illegal sentence deprived him of his federal and state
constitutional rights to due process, that his conviction
for kidnapping constituted plain error and that the court
abused its discretion and misapplied Practice Book
§ 43-22. The state counters that the court properly dis-
missed the defendant’s motion because it challenged
his convictions and not his sentence or the sentencing
proceeding. We agree with the state.
At the outset, we note that the defendant’s claims
pertain to the subject matter jurisdiction of the trial
court, and therefore present a question of law subject
to the plenary standard of review. State v. Koslik, 116
Conn. App. 693, 697, 977 A.2d 275, cert. denied, 293
Conn. 930, 980 A.2d 916 (2009); see also State v. Bozelko,
154 Conn. App. 750, 759, 108 A.3d 262 (2015); State v.
Abraham, 152 Conn. App. 709, 716, 99 A.3d 1258 (2014).
‘‘The Superior Court is a constitutional court of gen-
eral jurisdiction. In the absence of statutory or constitu-
tional provisions, the limits of its jurisdiction are
delineated by the common law. . . . It is well estab-
lished 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 committed to the custody
of the commissioner of correction and begins serving
the sentence. . . . Because it is well established that
the jurisdiction of the trial court terminates once a
defendant has been sentenced, a trial court may no
longer take any action affecting a defendant’s sentence
unless it expressly has been authorized to act.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Monge, 165 Conn. App. 36, 41–42, 138 A.3d 450, cert.
denied, 321 Conn. 924, 138 A.3d 284 (2016); see also
State v. Cruz, 155 Conn. App. 644, 648–49, 110 A.3d
527 (2015).
‘‘[Practice Book] § 43-22 embodies a common-law
exception that permits the trial court to correct an
illegal sentence or other illegal disposition. . . . Thus,
if the defendant cannot demonstrate that his motion to
correct falls within the purview of § 43-22, the court
lacks jurisdiction to entertain it. . . . [I]n order for the
court to have jurisdiction over a motion to correct an
illegal sentence after the sentence has been executed,
the sentencing proceeding [itself] . . . must be the
subject of the attack. . . . [T]o invoke successfully the
court’s jurisdiction with respect to a claim of an illegal
sentence, the focus cannot be on what occurred during
the underlying conviction.’’ (Citations omitted; internal
quotation marks omitted.) State v. St. Louis, 146 Conn.
App. 461, 466, 76 A.3d 753, cert. denied, 310 Conn. 961,
82 A.3d 628 (2013); see also State v. Francis, 322 Conn.
247, 259–60, 140 A.3d 927 (2016).
‘‘Connecticut courts have considered four categories
of claims pursuant to [Practice Book] § 43-22. The first
category has addressed whether the sentence was
within the permissible range for the crimes charged.
. . . The second category has considered violations of
the prohibition against double jeopardy. . . . The third
category has involved claims pertaining to the computa-
tion of the length of the sentence and the question of
consecutive or concurrent prison time. . . . The fourth
category has involved questions as to which sentencing
statute was applicable. . . . [I]f a defendant’s claim
falls within one of these four categories the trial court
has jurisdiction to modify a sentence after it has com-
menced. . . . If the claim is not within one of these
categories, then the court must dismiss the claim for a
lack of jurisdiction and not consider its merits.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. St. Louis, supra, 146 Conn. App. 466–67; see also
State v. Williams-Bey, 167 Conn. App. 744, 760–61,
A.3d (2016).
As previously noted, the defendant has presented this
court with several different claims. Distilled to their
essence, however, they share a common denominator;
that is, the defendant should not have been convicted
of the crimes of kidnapping in the first degree and
attempt to commit kidnapping in the first degree under
our Supreme Court’s decision in State v. Salamon,
supra, 287 Conn. 509. The defendant’s appellate claims
challenge the validity of his plea, and subsequent con-
viction, on the kidnapping charges and, therefore, do
not fall with the four categories set forth previously. Put
another way, the defendant’s sentence or sentencing
proceeding is not the subject of his attack, and therefore
the trial court lacked jurisdiction over his motion to
correct an illegal sentence. See State v. Casiano, 122
Conn. App. 61, 68, 998 A.2d 792, cert. denied, 298 Conn.
931, 5 A.3d 491 (2010); see also State v. Henderson, 130
Conn. App. 435, 443, 24 A.3d 35 (2011) (‘‘[i]t is clear
that [i]n order for the court to have jurisdiction over a
motion to correct an illegal sentence after the sentence
has been executed, the sentencing proceeding, and not
the trial leading to the conviction, must be the subject of
the attack’’ [internal quotation marks omitted]), appeals
dismissed, 308 Conn. 702, 66 A.3d 847 (2013) (certifica-
tion improvidently granted).
Our decision in State v. Brescia, 122 Conn. App. 601,
606, 999 A.2d 848 (2010), informs both our analysis and
conclusion in the present case. In Brescia, the defen-
dant claimed that he erroneously had pleaded guilty to
the crime of conspiracy to commit forgery in the first
degree when the evidence supported only a charge of
conspiracy to commit forgery in the second degree.
Id., 602. The defendant subsequently filed a motion to
correct an illegal sentence, claiming that he had been
sentenced for ‘‘the wrong crime.’’ (Internal quotation
marks omitted.) Id., 604. We affirmed the decision of
the trial court to dismiss the motion to correct for lack
of subject matter jurisdiction. Id., 604–607. Specifically,
we stated: ‘‘[T]he subject of the defendant’s attack in
the present case is the underlying conviction, not the
sentencing proceeding. He does not allege that the sen-
tence he received exceeded the prescribed statutory
maximum for the crime to which he pleaded guilty. He
simply asserts . . . that he was convicted of the wrong
crime. . . . Under Connecticut law, that collateral
attack on his conviction does not fall within the purview
of Practice Book § 43-22.’’ (Citation omitted; internal
quotation marks omitted.) Id., 606–607.9
In the present case, all of the defendant’s appellate
claims originate from his contention that his guilty pleas
to the kidnapping charges are invalid as a result of
Salamon and its progeny. Similar to the facts of Brescia,
the defendant attacks his conviction, and not his sen-
tence or sentencing proceeding, and the trial court,
therefore, properly concluded that it lacked jurisdic-
tion. Simply stated, a motion to correct an illegal sen-
tence is not the proper procedural path for the
defendant in this case to contest the validity of his guilty
pleas following the change to our kidnapping laws.10
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘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
proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial
oxymoron 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.’’ (Internal quotation marks omitted.)
Rodriguez v. Commissioner of Correction, 167 Conn. App. 233, 234 n.1, 143
A.3d 630 (2016); Misenti v. Commissioner of Correction, 165 Conn. App.
548, 551–52 n.2, 140 A.3d 222, cert. denied, 322 Conn. 902, 138 A.3d 932 (2016).
2
Specifically, the prosecutor stated: ‘‘[T]hat’s an incident that happened
on December 15, 2005, and it was in the area of Sigourney Street and Russ
Street. The complainant, the victim, was a seventeen year old female. She
was on her way to school at Hartford Public High School when this defendant
came up from behind her. He grabbed her and had sexual contact placing
his hand on her buttocks area and genital area and that was over her clothing.
She was able to push him away.
‘‘He followed her. A short distance later and pulled her by the jacket. He
attempted to pull her back behind the apartment building, and these were
her words, she was able to break free. Her jacket did rip. And she was able
to gain freedom. A later identification was made after she filed this complaint
and told family members. One family member had seen him. And she ulti-
mately positively identified the defendant as the person who had done this
‘‘The next incident . . . that happened five days later on December 20,
2005, in the morning hours, 8:40 in the a.m., near the intersection of Capitol
Avenue and Laurel Street. This [incident] involved a sixteen year old female.
She was walking to school. She observed the defendant following her. He
did catch up with her in that area of Capitol Avenue and Laurel Street. He
grabbed her from behind and attempted to pull her or drag her into a fenced
area. She also fought back and freed herself after a short scuffle with him.’’
3
The court noted that the defendant had served approximately twenty-
two months of incarceration.
4
‘‘A writ of error coram nobis is an ancient common-law remedy which
authorized the trial judge, within three years, to vacate the judgment of the
same court if the party aggrieved by the judgment could present facts, not
appearing in the record, which, if true, would show that such judgment was
void or voidable. . . . The facts must be unknown at the time of the trial
without fault of the party seeking relief. . . . A writ of error coram nobis
lies only in the unusual situation [in which] no adequate remedy is provided
by law.’’ (Citations omitted; internal quotation marks omitted.) State v. Das,
291 Conn. 356, 370–71, 968 A.2d 367 (2009).
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 Salamon, our Supreme Court concluded that in order for a defendant
to commit a kidnapping in conjunction with another crime, he or she must
intend to prevent the victim’s liberation for a longer period of time or to a
greater degree than what is necessary to commit the other crime. State v.
Salamon, supra, 287 Conn. 542.
7
In his brief filed in support of his motion, the defendant noted that he had
been ‘‘re-sentenced’’ for violating his probation on two separate occasions.
8
The defendant did not brief any claims on appeal challenging the dis-
missal of the petition for a writ of coram nobis.
9
We note that State v. Brescia, supra, 122 Conn App. 607, is distinguishable
from the present case because in that case, the state agreed that the defen-
dant’s conviction for forgery in the first degree was improper. ‘‘To its credit,
the state recognizes that the defendant’s conviction for conspiracy to commit
forgery in the first degree cannot stand. It concedes that the defendant
erroneously was charged with conspiracy to commit forgery in the first
degree, rather than in the second degree. The state further acknowledges
that the defendant’s inability to prevail upon the claims raised herein is not
an indication that the mistake which occurred in this case is of no conse-
quence and cannot be challenged, noting the defendant’s pending habeas
corpus proceeding in the Superior Court. In addition, the state submits that
permission to file an untimely appeal from the judgment of conviction is
warranted under the circumstances. Doubtless, this appeal is not the final
chapter in this story.’’ (Footnote omitted; internal quotation marks omitted.)
Id., 607–608. In the present case, the state does not agree with the defendant
that his conviction was improper. Our analysis in Brescia does provide an
example of how a collateral attack of a conviction is not within the limited
scope of a motion to correct an illegal sentence filed pursuant to Practice
Book § 43-22.
10
We note that the defendant has challenged the validity of his conviction
in a separate case that presently is pending before this court. See Commis-
sioner of Correction v. Robles, AC 37686.