State v. Bozelko ( 2015 )

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STATE OF CONNECTICUT v. CHANDRA BOZELKO
(AC 35450)
Lavine, Sheldon and Bishop, Js.
Argued October 15, 2014—officially released January 13, 2015
(Appeal from Superior Court, judicial district of
Ansonia-Milford, geographical area number five,
Arnold, J.)
Chandra Bozelko, self-represented, the appellant
(defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Kevin D. Lawlor, state’s attor-
ney, and Paul O. Gaetano, supervisory assistant state’s
attorney, for the appellee (state).
Opinion
SHELDON, J. The self-represented defendant, Chan-
dra Bozelko, appeals from the trial court’s judgment
dismissing her motion to correct illegal sentence under
Practice Book § 43-221 on the ground that it lacked
subject matter jurisdiction over the claims presented
in that motion. The principal issue in this appeal is
whether any of the grounds upon which the defendant
claimed in her motion that her sentence was imposed
in an illegal manner, all of which concern the process
by which her presentence investigation report (PSI)
was prepared, states a valid and sufficient basis for
correcting her sentence under § 43-22, as interpreted
and applied by our Supreme Court in State v. Parker,
295 Conn. 825, 992 A.2d 1103 (2010). We conclude, for
the following reasons, that the defendant’s allegations
stated valid grounds for correcting her sentence under
§ 43-22, and thus that the trial court erred in dismissing
her motion for lack of subject matter jurisdiction.
Accordingly, we reverse the judgment of the trial court
and remand this case for further proceedings on the
merits of the defendant’s motion.
The following facts and procedural history are rele-
vant to our resolution of this appeal. Following a jury
trial, the defendant was convicted of ten felonies and
four misdemeanors based upon her involvement in four
separate incidents involving larceny or attempt to com-
mit larceny, identity theft, illegal use of a credit card,
and forgery.2 After the jury returned its verdict on Octo-
ber 9, 2007, the trial court, Cronan, J., set December
7, 2007, as the sentencing date. Pursuant to General
Statutes § 54-91a3 and Practice Book § 43-3,4 the court
ordered that a PSI be prepared.
On November 14, 2007, Lisa Gerald, the probation
officer assigned to prepare the PSI, sent the defendant
a letter directing her to report for an interview on
November 19, 2007. The following day, the defendant
responded to Gerald by sending her a letter informing
her that she was seeking new counsel to represent her
at sentencing and requesting, on that basis, that she
not be interviewed for the PSI until her new counsel
could be present. Gerald replied to the defendant, in a
letter dated November 15, 2007, that she would not
interview her until all issues ‘‘pertaining to counsel have
been resolved,’’ and that she should report to court on
December 7, 2007, to receive further instructions.
Four days later, however, at the November 19, 2007
hearing on defense counsel’s motion to withdraw,5
Judge Cronan reported that he had received a letter
from Gerald notifying him that the defendant had cho-
sen not to participate in the presentence investigation
interview. In light of that communication, the court
advised the defendant that it intended to proceed with
sentencing on December 7, 2007, and warned her as
follows: ‘‘[Y]ou have to understand that if you talk to
another counsel that there’s the sentencing scheduled
on the seventh of December, and I’m not going to enter-
tain any motion for continuance . . . [s]o, I’m going
to go forward that day. So you just have to be ready.’’
The defendant responded to this warning by telling the
court what Gerald had told her concerning the post-
ponement of her presentence investigation interview
until she had new counsel. The court indicated that it
was not inclined to ‘‘get into the details’’ as to the
presentence investigation, because its only purpose in
the hearing then before it was to consider defense coun-
sel’s motion to withdraw. The court subsequently
granted the motion to withdraw.
On December 7, 2007, the defendant appeared before
the court with her new counsel, Tina D’Amato, who
first presented argument in support of the defendant’s
posttrial motions for judgment of acquittal and for a
new trial. The court denied both motions on the record
immediately after they were argued. D’Amato then
requested that the defendant’s sentencing be continued
so that the office of adult probation could interview
the defendant with D’Amato in attendance. D’Amato
also suggested that the PSI that had been prepared
without the defendant’s participation was misleading,
in that it suggested that she had engaged in delay tactics
in connection with the presentence investigation.6 She
further apprised the court that the defendant had
retained a mitigation specialist and suggested that it
would be improvident for the court to sentence the
defendant without the benefit of mitigating evidence
that she intended to present to the court with the spe-
cialist’s assistance.
The court denied the request for a continuance, not-
ing that it previously had established the ‘‘ground rules’’
as to what would happen if the defendant retained new
counsel prior to sentencing, including its unwillingness
to continue the sentencing to a later date to accommo-
date new counsel. Addressing D’Amato’s assertion that
a complete PSI had not been prepared, the court stated
that it had researched the relevant case law on that
issue in anticipation of the defendant’s sentencing, and
had determined that a PSI was merely an ‘‘aid to the
judge,’’ which the court did not need in order to pro-
ceed.7 The court further stated that it had received the
PSI that had been prepared without the defendant’s
input, as had both the state’s attorney and D’Amato.
The court reiterated, however, that ‘‘there is not an
absolute right for a defendant to get a PSI,’’ and further
stated that it was not going to ‘‘entertain any arguments
of why the interview was or was not done at the appro-
priate time.’’ According to the court, ‘‘the PSI is some-
thing that gets used as a tool by the sentencing judge
and . . . the case law is fairly clear . . . [i]t is not an
absolute right.’’8
Thereafter, the state, in its sentencing remarks, rec-
ommended that the court impose a total effective sen-
tence of ten years incarceration, execution suspended
after five years, followed by five years of probation.
D’Amato, in turn, stated for the record that she was
not prepared for sentencing. On that score, she stated,
more specifically, that she was not in a position to
advocate on behalf of the defendant because she had
‘‘never imagined’’ that the court would proceed with
sentencing on that day. D’Amato remarked, however,
that she had spent approximately thirty or forty hours
with the defendant reviewing trial transcripts, and on
that basis she could provide the court with at least
some information about the defendant, including cer-
tain details as to the defendant’s educational back-
ground, her mental health history, and her troubled
family life.9 D’Amato further argued that in fashioning
an appropriate sentence, the court should consider the
fact that the defendant had made restitution to all of
her victims. In conclusion, D’Amato urged the court to
impose a suspended sentence.
After hearing D’Amato’s remarks and inviting the
defendant to address the court—an invitation which
the defendant declined—the court set forth its consider-
ations in structuring the defendant’s sentence. It stated
that it had taken into account the defendant’s lack of
a previous criminal record, and the nonviolent nature
of her crimes, all of which involved identity theft and
credit card schemes for the acquisition of expensive
cosmetics and jewelry. On the basis of these factors,
the court imposed a total effective sentence of ten years
incarceration, execution suspended after five years, fol-
lowed by four years of probation.
This court later affirmed the defendant’s convictions
on appeal; State v. Bozelko, 119 Conn. App. 483, 987
A.2d 1102 (2010); and our Supreme Court denied the
defendant’s petition for certification to appeal. State v.
Bozelko, 295 Conn. 916, 990 A.2d 867 (2010), cert. cen-
ied, U.S. , 134 S. Ct. 1314, 188 L. Ed. 2d 331 (2014).
The defendant did not raise any claims concerning her
sentencing on direct appeal.10 Thereafter, the defendant
unsuccessfully sought habeas corpus relief from her
convictions, claiming ineffective assistance of counsel
at her criminal trial and in her posttrial proceedings.11
See Bozelko v. Commissioner of Correction, Superior
Court, judicial district of Tolland, Docket No. CV-10-
4003804-S (August 13, 2013).
On December 20, 2011, as a self-represented party,
the defendant filed a motion to correct illegal sentence
pursuant to Practice Book § 43-22, alleging that her
sentence had been imposed in an illegal manner. In
support of her motion, she alleged, inter alia, that the
PSI utilized by the sentencing court had been prepared
without her input, contrary to the relevant rules of prac-
tice, depriving her of the benefit of mitigating evidence
she would otherwise have presented as a basis for
imposing a lesser sentence. Additionally, she alleged
that the incomplete PSI that was prepared by Gerald and
furnished to the court contained material and harmful
misrepresentations about her, particularly concerning
her purported refusal to participate in the presentence
investigation interview. As a result, she claimed, she
was sentenced on the basis of inaccurate and unreliable
information in violation of her due process rights.
On July 31, 2012, the court, Arnold, J.,12 convened an
initial hearing on the defendant’s motion to correct. At
the outset of hearing, the court raised, sua sponte, the
question of whether it had subject matter jurisdiction
over the claims presented in the motion and ordered
the parties to submit supplemental briefs addressing
that question.13 On January 17, 2013, after the parties
had submitted their supplemental briefs on the court’s
jurisdiction, but without convening another hearing for
evidence or argument on that or any other issue raised
by the motion, the court issued a written memorandum
of decision, in which it dismissed the motion for lack
of subject matter jurisdiction, on the basis of its inter-
pretation of our Supreme Court’s decision in State v.
Parker, supra, 295 Conn. 825. This appeal followed.
Additional facts will be set forth as necessary.
I
The defendant claims that the trial court improperly
dismissed her motion to correct illegal sentence.14 Spe-
cifically, she argues that under our Supreme Court’s
holding in State v. Parker, supra, 295 Conn. 825, the
grounds alleged in her motion to correct are sufficient
to invoke the trial court’s subject matter jurisdiction
under Practice Book § 43-22, and thus she is entitled
to a hearing on the merits of her motion. We agree.
The defendant’s claim presents a question of law over
which our review is plenary. State v. Koslik, 116 Conn.
App. 693, 697, 977 A.2d 275, cert. denied, 293 Conn. 930,
980 A.2d 916 (2009). In Parker, our Supreme Court
confirmed that the court’s jurisdiction is properly
invoked under Practice Book § 43-22 when it is alleged
that the court’s manner of sentencing violates manda-
tory procedural rules, the result of which is the imposi-
tion of a sentence predicated on inaccurate or
unreliable information. Id., 837–39. The court explained
that, although a trial court generally loses jurisdiction
over a criminal case once the execution of a defendant’s
sentence begins, § 43-22 embodies two established
exceptions to the general rule. Id., 837. Under the first
such exception, the trial court is authorized to correct
a sentence that is illegal, because, inter alia, it exceeds
the maximum sentence prescribed by law for the
offense in question or its imposition violates the defen-
dant’s right not to be placed twice in jeopardy for the
same offense. Id., 839. Such a sentence may be cor-
rected by the trial court even after its execution has
begun on the theory that it is void ab initio as a matter
of law. Id., 835–36. Under the second exception, the
trial court is authorized to correct a sentence that,
although not illegal and thus void ab initio, was imposed
in an illegal manner. Id., 837. A legal sentence that was
imposed in an illegal manner may be corrected after
its execution has begun on the theory that ‘‘[t]he defen-
dant has a legitimate interest in the character of the
procedure which leads to the imposition of the sen-
tence, even if he may have no right to object to a particu-
lar result of the sentencing process.’’ (Internal quotation
marks omitted.) Id., 839.15 Such a sentence is deemed
to be invalid, and thus voidable upon the filing of a
proper motion to correct.
The court in Parker explained that the mere allega-
tion of a procedural violation in the sentencing process,
standing alone, is not a sufficient basis upon which to
invoke the power of the trial court to correct a sentence
on the ground that it was imposed in an illegal manner.
Id., 846. In addition to alleging a procedural violation,
the defendant must allege: first, that the violation in
question was committed by the trial court, rather than
by her own counsel, and second, that the trial court’s
challenged violation materially impacted her resulting
sentence. Id., 847–50.
To illustrate these requirements more fully, the claim
presented in Parker can usefully be contrasted with
that presented in this court’s subsequent decision in
State v. Charles F., 133 Conn. App. 698, 705, 36 A.3d
731, cert. denied, 304 Conn. 929, 42 A.3d 390 (2012).
The defendant in Parker alleged that his sentence had
been imposed in an illegal manner because he had been
deprived of the opportunity to review the PSI consid-
ered by the trial court at his sentencing, and thus that
he had been deprived of the ability to correct any inac-
curacies contained within it. Id., 840. Although the
Supreme Court agreed with the defendant that ‘‘due
process precludes a sentencing court from relying on
materially untrue or unreliable information in imposing
a sentence’’; id., 843; and that the procedural mecha-
nisms set forth in the General Statutes and our rules
of practice, specifically, General Statutes § 54-91b, and
Practice Book §§ 43-7 and 43-10 (1), are the means by
which defendants are protected from such due process
violations; id., 845–46; it concluded that the defendant
had failed to allege a violation of those mandatory rules
by the sentencing court, and instead had alleged that
his attorney ‘‘had failed to review the [PSI] with him
or to bring any inaccuracies in the report to the court’s
attention.’’ Id., 840. Accordingly, the court determined
that the defendant’s claim was one of ineffective assis-
tance of counsel, which should have been raised in
a habeas corpus petition, and not a claim of judicial
violation of the defendant’s right to be sentenced in a
legal manner, which properly could be raised by way of
a motion to correct illegal sentence pursuant to Practice
Book § 43-22. Id., 851–52.
Our Supreme Court went on to note, moreover, that
aside from alleging a procedural violation, the defen-
dant had failed to advance any claim ‘‘that the purported
inaccuracies [in the PSI] were materially false and that
the sentencing court actually had relied on them in
sentencing him.’’ Id., 850. The Supreme Court noted
that the sole reference in the record to purported inac-
curacies in the PSI was the defendant’s suggestion that
there were ‘‘issues’’ in the report that he would like to
correct. Id., 850 n.19. There was no corollary allegation
that any such issues materially impacted the defen-
dant’s sentence. Accordingly, the Supreme Court rea-
soned, the defendant had stated no basis upon which
to infer that the purported inaccuracies were relevant
to the trial court’s sentencing considerations. Id.
In State v. Charles F., supra, 133 Conn. App. 702–704,
by contrast, this court, in applying the legal principles
set forth in Parker, rejected the state’s contention on
appeal that the trial court lacked jurisdiction to consider
the defendant’s motion to correct, on the basis of the
defendant’s allegations. In that case, the defendant
alleged that he had not received his PSI in timely fash-
ion, and that such untimely receipt of the PSI had
caused the sentencing court to rely on inaccurate infor-
mation in passing sentence upon him. Id., 699–704. This
court distinguished such allegations from those made
by the defendant in Parker, which had failed to expli-
cate any constitutional basis for invoking the trial
court’s jurisdiction, and noted that the defendant had
specifically identified the inaccurate information in his
PSI upon which the trial court allegedly relied to his
detriment when the challenged sentence was imposed.
Id., 703–704. This court determined, however, that
although the trial court had jurisdiction, and thus prop-
erly entertained the defendant’s motion, the defendant
had failed to present any evidence showing that the
sentencing court gave explicit attention to the inaccu-
rate information as a basis for its sentence. Id, 705. For
that reason, this court concluded that the court properly
had denied the defendant’s motion to correct because
he had failed to show any resultant prejudice. Id.,706.
Against this backdrop, we consider the defendant’s
claim in the present case. Indulging every reasonable
presumption in favor of jurisdiction, as we must; see
State v. Smith, 150 Conn. App. 623, 634, 92 A.3d 975
(2014); we review the defendant’s pleadings to deter-
mine whether they present claims of the sort that, if
proved, would establish grounds invoking the court’s
jurisdiction to correct her sentence.16 Here, the defen-
dant alleged that the sentencing court violated several
mandatory procedural rules, as a result of which it
considered and imposed a sentence on the basis of
inaccurate and unreliable information, in violation of
her due process rights.17 More specifically, she argued
in support of her motion that the sentencing court’s
decision to sentence her without a complete PSI, over
her objection and in direct violation of Practice Book
§ 43-3, prejudiced her in two respects: first, it deprived
her of the ability to present critical mitigation evidence
that would have resulted in the imposition of a lesser
sentence upon her, as requested by D’Amato; and sec-
ond, relatedly, substantial inaccurate information was
provided in the incomplete PSI that was furnished to
the court. Specifically, she objected to those portions
of the PSI that described her purported refusal to coop-
erate with Gerald in the preparation of the PSI, includ-
ing her alleged use of ‘‘delay tactics’’ to undermine the
sentencing process. The defendant claimed that she
was prejudiced by the inclusion of such inaccurate
information about her attitude toward the sentencing
process in the PSI.
The defendant acknowledged that she did not have
a constitutional right to the PSI. See State v. Patterson,
236 Conn. 561, 564, 674 A.2d 416 (1996) (defendant’s
right to due process did not include PSI). She argued,
however, that she had a right to be sentenced on the
basis of accurate and reliable information, including
facts related to her personal history and her version of
the offenses underlying her convictions.18 The defen-
dant identified in her motion and memorandum several
‘‘mitigating factors’’ that she would have put before the
court, had she been able to participate in the presen-
tence investigation interview with counsel present, as is
provided for under our rules of practice. Those claimed
factors included: (1) her family dysfunction; (2) the fact
that she was illegally conserved in 2005 and ‘‘forcibly
medicated and incorrectly diagnosed for a number of
years’’; (3) the fact that she ‘‘was effectively denied
treatment through the incorrect diagnoses’’; and (4) the
fact that she subsequently received a correct diagnosis,
depression, and she was now being treated with the
correct medication. The defendant further argued that
her case ‘‘underscore[d] the importance of mitigation
evidence to be presented at sentencing because [she]
was not subject to any mandatory minimum sentence.’’
Finally, the defendant argued that her inability to set
forth such evidence was further exacerbated by the
information that was presented in the PSI, namely, the
alleged misrepresentation pertaining to her ‘‘refusal to
participate’’ in the presentence investigation interview.
She argued that her supposed ‘‘delay tactics,’’ as
reported by Gerald in the PSI, not only consumed the
court’s attention at sentencing and resulted in its proce-
durally unreasonable conduct, but also that she made
every effort to correct that information, to no avail.19
In sum, she contended that she was ‘‘sentenced on the
basis of improper factors [and] erroneous information,’’
and, thus, ‘‘the manner in which her sentence was
imposed was illegal.’’
On the basis of our review of the defendant’s allega-
tions, we conclude that the defendant, in accordance
with the rule set forth in State v. Parker, supra, 295
Conn. 846–47, alleged procedural violations by Judge
Cronan that she asserted resulted in the court’s reliance
on ‘‘unreliable and inaccurate information’’ in determin-
ing her sentence. Moreover, the defendant was entitled
to file and prosecute her motion to correct under Prac-
tice Book § 43-22, and the court had subject matter
jurisdiction to hear and decide such claims. We note,
consistent with this court’s decision in Charles F., that
in order for the defendant to ultimately prevail on her
claims, she will need to prove the court’s actual reliance
on misinformation, which will require a showing that
the court gave ‘‘specific consideration’’ or weight to the
unreliable or inaccurate information she complains of
in imposing her sentence. State v. Charles F., supra,
133 Conn. App. 705.
II
Having concluded that Judge Arnold erred in dismiss-
ing the defendant’s motion to correct illegal sentence
for lack of subject matter jurisdiction, we next consider
the appropriate remedy. The defendant maintains that
her case should be remanded to the trial court for a
hearing on the claims underlying her motion. The state
concedes that the trial court had subject matter jurisdic-
tion over those claims, but argues that no remand is
necessary because the court actually went on to deny
the defendant’s motion on the merits. We disagree. Once
the court determined that it lacked subject matter juris-
diction, it had no authority to decide the case, and did
not purport to do so. See State v. Abraham, 152 Conn.
App. 709, 724, 99 A.3d 1258 (2014) (rejecting state’s
claim that court denied defendant’s motion to correct
on ground that court had no authority to act once it
concluded it lacked subject matter jurisdiction). The
defendant is entitled to a hearing on the merits of
her motion.
The judgment is reversed and the case is remanded
for a hearing on the defendant’s motion to correct ille-
gal sentence.
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 other disposition made in an
illegal manner.’’
2
The defendant was convicted of fourteen counts contained in four sepa-
rate files. In docket number CR-05-128445, the defendant was convicted of
attempt to commit larceny in the first degree in violation of General Statutes
§§ 53a-122 and 53a-49; identity theft in the first degree in violation of General
Statutes § 53a-129b; attempt to commit illegal use of a credit card in violation
of General Statutes §§ 53a-128d and 53a-49; and forgery in the third degree
in violation of General Statutes § 53a-140. In docket number CR-05-128811,
the defendant was convicted of larceny in the third degree in violation of
General Statutes § 53a-124; identity theft in the third degree in violation of
General Statutes § 53a-129d; illegal use of a credit card in violation of § 53a-
128d; and forgery in the third degree in violation of § 53a-140. In docket
number CR-05-129108, the defendant was convicted of attempt to commit
larceny in the fifth degree in violation of General Statutes §§ 53a-125a and
53a-49; attempt to commit illegal use of a credit card in violation of § 53a-
128d and 53a-49; and identity theft in the third degree in violation of § 53a-
129d. In docket number CR-05-129107, the defendant was convicted of lar-
ceny in the fifth degree in violation of § 53a-125a; illegal use of a credit card
in violation of § 53a-128d; and identity theft in the third degree in violation
of § 53a-129d.
3
General Statutes § 54-91a provides in relevant part: ‘‘No defendant con-
victed of a crime . . . the punishment for which may include imprisonment
for more than one year, may be sentenced, or the defendant’s case otherwise
disposed of, until a written report of investigation by a probation officer
has been presented to and considered by the court. . . .’’
4
Practice Book § 43-3 provides in relevant part: ‘‘If the defendant is con-
victed of a crime . . . the punishment for which may include imprisonment
for more than one year, the judicial authority shall order a presentence
investigation. . . .’’
5
The record reveals that the defendant had filed a legal malpractice action
against her trial counsel.
6
D’Amato also requested that the court assign a different probation officer
from outside the jurisdiction to complete the presentence investigation on
the basis of what she claimed to be Gerald’s personal bias against the
defendant.
7
Specifically, the court cited State v. Windley, 95 Conn. App. 62, 68–69,
895 A.2d 270, cert. denied, 278 Conn. 924, 901 A.2d 1222 (2006), in which
this court held that the trial court erred by failing to order a PSI, but
concluded that the error was harmless in light of the record, which revealed
that the court had sentenced the defendant just five days after it had found
that he was a third time offender under General Statutes § 14-277a (g) (3),
and that the defendant failed to identify any relevant information that would
have been contained in the PSI that would have resulted in a different
sentence.
8
Following the court’s remarks, D’Amato requested that the court recuse
itself from further proceedings in the case, and the request was denied by
the court.
9
D’Amato stated that she did not have the full details regarding the defen-
dant’s medical history because the defendant’s former trial counsel was in
possession of the defendant’s medical records; specifically, she stated that
the defendant had seen ‘‘ten or fifteen doctors,’’ and that she did not have the
benefit of the ‘‘boxes’’ of medical records that had been given to trial counsel.
10
‘‘[A] defendant may challenge his or her criminal sentence on the ground
that it is illegal by raising the issue on direct appeal or by filing a motion
pursuant to [Practice Book] § 43-22 with the judicial authority, namely, the
trial court.’’ State v. Tabone, 279 Conn. 527, 534, 902 A.2d 1058 (2006).
11
In her habeas petition, the defendant alleged that D’Amato rendered
ineffective assistance of counsel by failing to provide the court with a
sentencing memorandum and by being unprepared for sentencing. The
habeas court disagreed, finding that D’Amato ‘‘performed admirably given
the severe time constraints under which she labored.’’ Bozelko v. Commis-
sioner of Correction, Superior Court, judicial district of Tolland, Docket
No. CV-10-4003804-S (August 13, 2013).
12
The matter was assigned to Judge Arnold when Judge Cronan, who had
presided over the defendant’s trial and sentencing, recused himself from all
proceedings involving the defendant after she filed a judicial complaint
against him.
13
Although the defendant filed the motion to correct in a self-represented
capacity, she was represented by counsel at the July 31, 2012 hearing and
counsel filed the subsequent memorandum of law addressing the jurisdic-
tional issue.
14
The state argues that the self-represented defendant failed to brief her
claim adequately, and thus abandoned it. We recognize that the defendant’s
brief lacks precision and fails to provide a thorough analysis of the relevant
legal authorities, however, ‘‘[i]t is our policy to give leeway to [self-repre-
sented] litigants regarding their adherence to the rules of this court.’’ In re
Britanny J., 100 Conn. App. 329, 330, 917 A.2d 1024 (2007). ‘‘The modern
trend . . . is to construe pleadings broadly and realistically . . . . The
courts adhere to this rule to ensure that [self-represented] litigants receive
a full and fair opportunity to be heard, regardless of their lack of legal
education and experience.’’ Mourning v. Commissioner of Correction, 120
Conn. App. 612, 625–26, 992 A.2d 1169, cert. denied, 297 Conn. 919, 996 A.2d
1192 (2010).
15
Prior to Parker, sentences imposed in an illegal manner had been held
to include those that are ‘‘within the relevant statutory limits but . . .
imposed in a way which violates [a] defendant’s right . . . to be addressed
personally at sentencing and to speak in mitigation of punishment . . . or
his right to be sentenced by a judge relying on accurate information or
considerations solely in the record, or his right that the government keep
its plea agreement promises . . . .’’ State v. McNellis, 15 Conn. App. 416,
444, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). Parker
clarified that the procedural rights attendant to sentencing, the violation of
which may render a sentence invalid, include not only those rights afforded
under federal due process and federal law, as previously delineated in
McNellis, but also encompass those procedures mandated by state law that
are necessary to ensure fundamental fairness in sentencing. State v. Parker,
supra, 295 Conn. 839–40. Thus, the grounds for correction cited in McNellis
‘‘are not exhaustive and the parameters of an invalid sentence will evolve.’’
Id., 840.
16
‘‘Construction of the effect of pleadings is a question of law and, as
such, our review [of the defendant’s allegations] is plenary.’’ Ross v. Forzani,
88 Conn. App. 365, 368, 869 A.2d 682 (2005).
17
The defendant alleged that the court’s manner of sentencing her violated
the following rules of practice: First, she claimed that the court violated
Practice Book § 43-3 ‘‘by controverting the rule that PSI[s] are mandatory,
by claiming the defendant had no right to the PSI and, by extension, no
right to participate in the [presentence investigation interview].’’ Second,
she claimed that the court violated Practice Book § 43-4 ‘‘by not inquiring
about the defendant’s attitude towards alternate incarceration.’’ Third, she
claimed that the court violated Practice Book § 43-5, by denying her the
right to participate in the presentence investigation interview with D’Amato
present. Fourth, she claimed that the court violated Practice Book §§ 43-10
and 43-11 by not allowing her to present evidence as to Gerald’s misrepresen-
tation as to her willingness to participate in a presentence investigation
interview or other mitigating evidence. Fifth, she claimed that the court
violated Practice Book § 43-13, which allows the defendant’s counsel to be
familiar with the PSI, as D’Amato had the PSI copy for fewer than forty-
eight hours before sentencing. Finally, she claimed that the court violated
Practice Book § 43-14, which allows for correction of any inaccuracies in
the PSI.
18
Additionally, the defendant argued that a presentence investigation inter-
view was the only viable means by which to advance evidence on her behalf,
particularly because she intended to pursue an appeal of her convictions.
19
Our review of the sentencing hearing transcript reveals that the court
stated that it was ‘‘not going to get into or entertain any arguments of why
the interview was or was not done at the appropriate time.’’