State v. McGee ( 2017 )

 STATE OF CONNECTICUT v. FRANK MCGEE
(AC 38771)
DiPentima, C. J., and Sheldon and Bishop, Js.
Syllabus
The defendant, who had been convicted of, inter alia, two counts of the
crime of robbery in the second degree, appealed to this court from the
judgment of the trial court dismissing his motion to correct an illegal
sentence. He claimed that his constitutional right against double jeop-
ardy was violated as a result of the imposition of separate sentences
on the two counts of robbery in the second degree, each of which was
prosecuted in connection with the robbery of a single victim, but under
a different subdivision of the statute ([Rev. to 2007] § 53a-135 [a] [1] and
[2]) governing robbery in the second degree. Held that the defendant’s
sentences on two separate counts of robbery in the second degree in
connection with a single robbery did not violate his constitutional right
against double jeopardy: although the defendant’s conviction of the two
counts arose out of the same act or transaction, each robbery offense
required proof of a fact that the other did not, as the state, to satisfy
the elements of subdivision (1) of § 53a-135 (a), was required to prove
that, while committing a robbery, the defendant was aided by another
person actually present at the time, whereas, to satisfy the elements of
subdivision (2) of § 53a-135 (a), the state had to prove that, in the course
of the commission of a robbery, the defendant or another participant
in the crime displayed or threatened the use of what he represented by
his words or conduct to be a deadly weapon, and § 53a-135 contained
no language indicating the legislature’s intent to bar multiple punish-
ments for perpetrators of robbery in the second degree who, in commit-
ting such offenses, violate multiple subdivisions of that statute, the
defendant did not direct this court to any evidence of such a legislative
intent, and because his claim that the two sentences that were imposed
for one incident of robbery in the second degree was a procedurally
proper double jeopardy claim over which the trial court had jurisdiction
on a motion to correct, the court should have denied, rather than dis-
missed, the defendant’s motion to correct an illegal sentence.
(One judge dissenting)
Argued January 19—officially released August 15, 2017
Procedural History
Substitute information charging the defendant with
two counts of the crime of robbery in the second degree,
and with the crimes of larceny in the second degree,
conspiracy to commit robbery in the second degree,
sexual assault in the third degree, sexual assault in the
fourth degree and breach of the peace in the second
degree, brought to the Superior Court in the judicial
district of Waterbury and tried to the jury before Miano,
J.; verdict and judgment of guilty of two counts of
robbery in the second degree, and one count each of
conspiracy to commit robbery in the second degree,
sexual assault in the fourth degree and breach of the
peace in the second degree, from which the defendant
appealed to this court, which affirmed the judgment of
the trial court; thereafter, the Supreme Court denied
the defendant’s petition for certification to appeal; sub-
sequently, the court, Fasano, J., dismissed the defen-
dant’s motion to correct an illegal sentence, and the
defendant appealed to this court. Improper form of
judgment; judgment directed.
Stephanie L. Evans, assigned counsel, for the appel-
lant (defendant).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Cynthia S. Serafini, senior assistant
state’s attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Frank McGee, appeals
following the trial court’s dismissal of his motion to
correct an illegal sentence. On appeal, the defendant
claims that the court improperly rejected his claim that
the imposition of separate sentences upon him on two
counts of robbery in the second degree, each prose-
cuted in connection with the robbery of a single victim,
but under a different subdivision of the second degree
robbery statute, General Statutes (Rev. to 2007) § 53a-
135 (a), violated his constitutional right against double
jeopardy. We are not persuaded.
The following factual background and procedural his-
tory are relevant to our consideration of the defendant’s
claim on appeal. The defendant was charged in a seven
count substitute information as follows: in count one,
with larceny in the second degree in violation of General
Statutes § 53a-123 (a) (3); in count two, with robbery
in the second degree in violation of § 53a-135 (a) (1);
in count three, with robbery in the second degree in
violation of § 53a-135 (a) (2); in count four, with conspir-
acy to commit robbery in the second degree in violation
of General Statutes §§ 53a-48 (a) and 53a-135 (a) (2);
in count five, with sexual assault in the third degree in
violation of General Statutes § 53a-72a (a) (1) (A); in
count six, with sexual assault in the fourth degree in
violation of General Statutes § 53a-73a (a) (2); and in
count seven, with breach of the peace in the second
degree in violation of General Statutes § 53a-181 (a) (3).1
Following a jury trial, the defendant was found guilty
on both counts of robbery in the second degree and on
the separate counts charging him with conspiracy to
commit robbery in the second degree, sexual assault
in the fourth degree, and breach of the peace in the
second degree. He was acquitted on the individual
counts charging him with larceny in the second degree
and sexual assault in the third degree. Thereafter, on
July 8, 2008, the defendant was sentenced as follows:
on each count of robbery in the second degree, to a
term of ten years of incarceration, to run concurrently
with his other sentence for second degree robbery; on
the count of conspiracy to commit robbery in the sec-
ond degree, to a term of ten years of incarceration, to
run consecutively to his sentences for second degree
robbery; and on the counts of sexual assault in the
fourth degree and breach of the peace in the second
degree, to terms of one year of incarceration and six
months of incarceration, respectively, to run concur-
rently with his sentence for conspiracy to commit sec-
ond degree robbery, for a total effective sentence of
twenty years of incarceration. The defendant’s convic-
tions were affirmed by this court on direct appeal. State
v. McGee, 124 Conn. App. 261, 4 A.3d 837, cert. denied,
299 Conn. 911, 10 A.3d 529 (2010), cert. denied, 563
U.S. 945, 131 S. Ct. 2114, 179 L. Ed. 2d 908 (2011).
In its opinion on direct appeal, this court summarized
the facts underlying the defendant’s convictions as fol-
lows: ‘‘At approximately 1 a.m. on March 23, 2007, the
victims, D and T, were on Pine Street in Waterbury,
where they purchased a small amount of cocaine from
an unidentified individual. Soon thereafter, a silver
Lexus, driven by the defendant, pulled up to the victims.
When the victims started to drive away in D’s car, the
defendant continued to follow them closely until D
pulled over and the victims got out of the car. The
defendant began asking D and T if they wanted to ‘get
shot.’ The defendant reached into his car, took out a
case and told D and T that he had something for them.
D and T both testified that they assumed that there was
a gun in the black case. The defendant started going
through D’s pockets and found $6, which he took from
him. The defendant then searched T for cocaine by
placing his hands on different parts of her body. He
lifted up her shirt and began touching T’s breasts
roughly under her bra, which later caused bruising to
that area. D went to his home, two houses away, and
called 911. Police officers arrived and found a car
matching the description given by D on Congress Ave-
nue. D and T went to Congress Avenue and positively
identified the defendant and the other occupants of his
car, who were arrested.’’ (Footnote omitted.) Id.,
263–64.
On July 5, 2015, seven years after his sentencing, the
defendant, acting on his own behalf, filed a motion to
correct an illegal sentence. In his motion, the defendant
alleged that ‘‘the imposition of sentences for both rob-
bery convictions violates the multiple punishment pro-
hibition of the double jeopardy clause of the fifth
amendment to the United States constitution because
both convictions [on the two separate (subdivisions)
of § 53a-135 (a)] relate to one robbery.’’2 The defendant
argued, in his motion to correct, that the two subdivi-
sions of the robbery in the second degree statute under
which he was charged and convicted were alternative
ways of committing a single criminal offense, and thus
that his ‘‘right against double jeopardy [was] violated
when he was sentenced for two counts of robbery in
the second degree in this case.’’3 (Emphasis added.)
Subsequently, under the procedure prescribed by
State v. Casiano, 282 Conn. 614, 627, 922 A.2d 1065
(2007),4 a public defender appointed by the court con-
ducted a preliminary analysis of the defendant’s double
jeopardy claim and concluded, under the test enunci-
ated in Blockburger v. United States, 284 U.S. 299, 52
S. Ct. 180, 76 L. Ed. 306 (1932),5 that there was a sound
basis for that claim, and thus that counsel should be
appointed to represent the defendant on his motion
to correct. Counsel concluded her analysis as follows:
‘‘[B]ecause the defendant was convicted and sentenced
[for] two robberies that arose out of the same act, the
defendant’s right to be free from double jeopardy was
violated when he was convicted and sentenced [for]
two counts of robbery. As a result, the court must vacate
one of the robbery convictions and sentences.’’
After counsel was appointed, the court conducted a
hearing on the merits of the defendant’s motion to cor-
rect. Thereafter, by memorandum of decision filed
October 7, 2015, the trial court dismissed the defen-
dant’s motion on the ground that the defendant’s convic-
tions on two counts of robbery in the second degree
did not violate his right against double jeopardy because
the defendant’s conduct in committing the robbery in
question constituted two separate criminal offenses. In
reaching this determination, the court expressly relied
on Blockburger v. United States, supra, 284 U.S. 299,
as applied by this court in State v. Underwood, 142
Conn. App. 666, 64 A.3d 1274, cert. denied, 310 Conn.
927, 78 A.3d 146 (2013), in which we determined that
imposing separate sentences for attempted robbery in
the first degree in connection with a single attempted
robbery, based on separate charges brought under dif-
ferent subdivisions of the attempt and first degree rob-
bery statutes, General Statutes §§ 53a-49 and 53a-134,
did not violate the defendant’s double jeopardy rights.
Id., 683. This appeal followed.
Practice Book § 43-22 provides that ‘‘[t]he 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.’’ Our Supreme Court has
stated that an ‘‘illegal sentence is essentially one which
either exceeds the relevant statutory maximum limits,
violates a defendant’s right against double jeopardy,
is ambiguous, or is internally contradictory.’’ (Internal
quotation marks omitted.) State v. Lawrence, 281 Conn.
147, 156, 913 A.2d 428 (2007).6
‘‘Ordinarily, a claim that the trial court improperly
denied a defendant’s motion to correct an illegal sen-
tence is reviewed pursuant to the abuse of discretion
standard. . . . In the present case, however, the defen-
dant’s claim presents a question of statutory interpreta-
tion over which our review is plenary.’’ (Citations
omitted.) State v. Tabone, 279 Conn. 527, 534, 902 A.2d
1058 (2006). ‘‘In undertaking this interpretation, [o]ur
fundamental objective is to ascertain and give effect to
the apparent intent of the legislature. . . . In other
words, we seek to determine, in a reasoned manner,
the meaning of the statutory language as applied to the
facts of [the] case, including the question of whether
the language actually does apply. . . . In seeking to
determine that meaning, General Statutes § 1-2z directs
us first to consider the text of the statute itself and its
relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered.’’
(Internal quotation marks omitted.) Santorso v. Bristol
Hospital, 308 Conn. 338, 355–56, 63 A.3d 940 (2013).
‘‘Double jeopardy attaches where multiple punish-
ments are imposed for the same offense in a single trial.
. . . The question to be resolved is whether the two
offenses charged are actually one.’’ (Internal quotation
marks omitted.) State v. Santiago, 145 Conn. App. 374,
380–81, 74 A.3d 571, cert. denied, 310 Conn. 942, 79
A.3d 893 (2013). ‘‘Traditionally we have applied the [test
set out in Blockburger v. United States, supra, 284 U.S.
304] to determine whether two statutes criminalize the
same offense. . . . Under that test, where the same act
or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other
does not. . . . This test is a technical one and examines
only the statutes, charging instruments, and bill of par-
ticulars as opposed to the evidence presented at trial.
. . . Thus, [t]he issue, though essentially constitutional,
becomes one of statutory construction.’’ (Citations
omitted; internal quotation marks omitted.) State v. Alv-
aro F., 291 Conn. 1, 7, 966 A.2d 712, cert. denied, 558
U.S. 882, 130 S. Ct. 200, 175 L. Ed. 2d 140 (2009).
‘‘Our analysis of [the defendant’s] double jeopardy
[claim] does not end, however, with a comparison of
the offenses. The Blockburger test is a rule of statutory
construction, and because it serves as a means of dis-
cerning [legislative] purpose the rule should not be con-
trolling where, for example, there is a clear indication
of contrary legislative intent. . . . Thus, the
Blockburger test creates only a rebuttable presumption
of legislative intent, [and] the test is not controlling
when a contrary intent is manifest. . . . When the con-
clusion reached under Blockburger is that the two
crimes do not constitute the same offense, the burden
remains on the defendant to demonstrate a clear legisla-
tive intent to the contrary.’’ (Citations omitted; internal
quotation marks omitted.) Id., 12–13.
In this case, the state agrees that the first prong of
Blockburger is satisfied because the defendant’s convic-
tion of two counts of robbery in the second degree
arose out of the same act or transaction, the robbery
of D. The state claims, however, that the defendant’s
claim fails under the second prong of Blockburger
because each robbery offense charged in the informa-
tion, of which the defendant was convicted, requires
proof of a fact the other does not. We agree.7
In considering the defendant’s double jeopardy chal-
lenge, we are guided by State v. Underwood, supra,
142 Conn. App. 666, wherein this court rejected the
defendant’s claim that two convictions for attempt to
commit robbery in the first degree, arising out of a
single act or transaction against a single victim, under
two subdivisions of General Statutes § 53a-134 (a), the
first degree robbery statute, violated his right against
double jeopardy. The court reasoned: ‘‘To convict the
defendant of attempt to commit robbery in the first
degree under §§ 53a-49 (a) (2) and 53a-134 (a) (1), the
state was required to prove, as alleged in count three
of the information, that the defendant possessed the
requisite mental state and took a substantial step
toward committing first degree robbery, and that he or
another, during the attempted robbery or flight there-
from, ‘[c]ause[d] serious physical injury’ to a nonpartici-
pant in the crime. To convict the defendant of attempt
to commit robbery in the first degree under §§ 53a-49
(a) (2) and 53a-134 (a) (2), the state was required to
prove, as alleged in count one of the information, that
the defendant possessed the requisite mental state and
took a substantial step toward committing first degree
robbery, and that he or another, during the attempted
robbery or flight therefrom, was ‘armed with a deadly
weapon . . . .’ Count three did not require the defen-
dant to use a deadly weapon to cause serious physical
injury, and count one did not require that serious physi-
cal injury was caused by the defendant being armed
with a deadly weapon. Because each of the charged
offenses requires proof of an element the other does
not, the charges against and subsequent conviction of
the defendant of two counts of attempted first degree
robbery did not violate the defendant’s right not to be
placed twice in jeopardy for the same offense pursuant
to the Blockburger test.’’ Id., 683–84.
Similarly, it is clear from the plain language of the
relevant portions of § 53a-135 (a) (1) and (2), as charged
in this case, that each offense requires proof of a fact
which the other does not. To satisfy the elements of
§ 53a-135 (a) (1), the state was required to prove that,
while committing a robbery in violation of General Stat-
utes § 53a-133, the defendant was aided by another per-
son actually present at the time. To convict the
defendant under § 53a-135 (a) (2), by contrast, the state
was required to prove that, in the course of commission
of a robbery in violation of § 53a-133, he or another
participant in the crime displayed or threatened the use
of what he represented by his words or conduct to
be a deadly weapon. Because each of these statutory
subdivisions requires proof of different facts—subsec-
tion (a) (1) requiring proof that the defendant was aided
by another person actually present, but not that he or
another participant displayed or threatened the use of
what he represented by his words or conduct to be a
deadly weapon, and subsection (a) (2) requiring proof
that the defendant or another participant in the robbery
displayed or threatened the use of what he represented
by his words or conduct to be a deadly weapon, but
not that he was aided by another person actually pre-
sent—they are two separate offenses. Moreover, § 53a-
135 contains no language indicating the legislature’s
intent to bar multiple punishments for the perpetrators
of single second degree robberies who, in committing
such offenses, violate multiple subdivisions of the sec-
ond degree robbery statute, and the defendant has failed
to direct this court to any evidence of such a legisla-
tive intent.
On the basis of the foregoing, we conclude that the
defendant was properly sentenced on two separate
counts of robbery in the second degree in connection
with the robbery he committed on March 23, 2007, with-
out violating his constitutional right against double
jeopardy. Because, however, the defendant’s claim that
the two sentences were imposed upon him for one
second degree robbery was a procedurally proper dou-
ble jeopardy claim over which the court had jurisdiction
on a motion to correct, the court should have denied,
rather than dismissed, his motion to correct. See State
v. Santiago, supra, 145 Conn. App. 379–80.
The form of judgment is improper, the judgment of
dismissal is reversed and the case is remanded with
direction to deny the defendant’s motion to correct an
illegal sentence.
In this opinion DiPENTIMA, C. J., concurred.
1
The information in this case makes it clear that the two robbery offenses
with which the defendant was charged were based upon different conduct
allegedly undertaken by the defendant. The state charged that the defendant
committed robbery while aided by another person actually present, in viola-
tion of § 53a-135 (a) (1), and that, during the robbery, he displayed or
threatened the use of what he represented by his conduct to be a deadly
weapon, in violation of § 53a-135 (a) (2). Thus, each robbery conviction
related to a specific and separate subdivision of § 53a-135, the statute defin-
ing robbery in the second degree.
2
General Statutes (Rev. to 2007) § 53a-135 (a) provides: ‘‘A person is guilty
of robbery in the second degree when he commits robbery as defined in
section 53a-133 and (1) he is aided by another person actually present; or
(2) in the course of the commission of the crime or of immediate flight
therefrom he or another participant in the crime displays or threatens the
use of what he represents by his words or conduct to be a deadly weapon
or a dangerous instrument.’’
3
We note that the defendant did not claim any error associated with
his underlying convictions—either in the state’s multiplicitous information
charging him with violating two separate subdivisions of the second degree
robbery statute or the jury’s guilty verdicts on both subdivisions. He asserts
no claim of error as to any of the proceedings at trial that resulted in the
jury’s guilty verdicts. Rather, he claimed that, at sentencing, the court should
have vacated one of those convictions and sentenced him only on the
one remaining conviction. See State v. Polanco, 308 Conn. 242, 61 A.3d
1084 (2013).
4
In Casiano, our Supreme Court concluded ‘‘that a defendant has a right
to the appointment of counsel for the purpose of determining whether a
defendant who wishes to file [a motion to correct an illegal sentence] has
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.’’ State
v. Casiano, supra, 282 Conn. 627–28.
5
The Supreme Court in Blockburger stated that ‘‘where the same act or
transaction constitutes a violation of two distinct statutory provisions, the
test to be applied to determine whether there are two offenses or only one,
is whether each provision requires proof of a fact which the other does
not.’’ Blockburger v. United States, supra, 284 U.S. 304. Courts utilize the
Blockburger test to analyze the second part of a two step process to deter-
mine whether a defendant’s protection against double jeopardy has been
violated. State v. Alvaro F., 291 Conn. 1, 6–7, 966 A.2d 712, cert. denied,
558 U.S. 882, 130 S. Ct. 200, 175 L. Ed. 2d 140 (2009). Our Supreme Court
in Alvaro F. stated: ‘‘In determining whether a defendant has been placed
in double jeopardy under the multiple punishments prong, we apply a two
step process. First, the charges must arise out of the same act or transaction.
Second, it must be determined whether the charged crimes are the same
offense. Multiple punishments are forbidden only if both conditions are met.
. . . Traditionally, we have applied the [test set out in Blockburger v. United
States, [supra, 304] to determine whether two statutes criminalize the same
offense . . . .’’ (Citations omitted; internal quotation marks omitted.) State
v. Alvaro F., supra, 6–7.
6
Our dissenting colleague suggests, in an analysis he first proposed at
oral argument on this appeal, that the trial court lacked subject matter
jurisdiction over the defendant’s motion to correct because the claim therein
presented constituted an unlawful collateral attack on his second robbery
conviction rather than a lawful double jeopardy challenge to the sentence
imposed on that conviction. When the state and the defense were given
the opportunity to brief this jurisdictional issue after oral argument, they
disagreed with our colleague’s analysis, concluding in simultaneous supple-
mental briefs that the defendant’s motion to correct, regardless of its substan-
tive merits, raised a procedurally proper double jeopardy challenge to his
multiple sentences for robbery in the second degree rather than an improper
collateral attack on one of his second degree robbery convictions. For the
following reasons, we agree with the parties that the trial court had jurisdic-
tion over the defendant’s motion to correct.
In support of his analysis, our colleague relies heavily on two decisions
from this court, neither of which involved a double jeopardy claim that was
based upon the imposition of two sentences for one criminal act. Both
cases, instead, involve claims mislabeled as double jeopardy claims, which
actually challenged the legality of the guilty verdicts upon which sentences
were imposed and judgments of conviction were rendered rather than multi-
ple sentences imposed upon lawful verdicts that were based upon conduct
claimed to constitute a single criminal offense. In State v. Wright, 107 Conn.
App. 152, 944 A.2d 991, cert. denied, 289 Conn. 933, 958 A.2d 1247 (2008),
for example, the defendant claimed that the sentence imposed upon him
as an accessory to murder was illegal because he was never charged as an
accessory. That claim, though styled a double jeopardy claim, was actually
based upon the defendant’s contention that he could not be found guilty of
a crime with which he had not properly been charged. As this court held, ‘‘the
defendant’s claim, by its very nature, presupposes an invalid conviction.’’ Id.,
157. The court in Wright thus concluded that the defendant’s motion to
correct his sentence constituted an improper collateral attack on his con-
viction.
Similarly, in State v. Starks, 121 Conn. App. 581, 997 A.2d 546 (2010),
upon which the dissent also relies, this court concluded that, in challenging
the legality of his sentence, the defendant was actually ‘‘attacking the validity
of his conviction by challenging the sufficiency of the evidence with regard
to [his conviction].’’ Id., 590. On that basis, the court in Starks court, like
the court in Wright, concluded that the defendant’s motion to correct consti-
tuted an improper collateral attack on his conviction.
Both Wright and Starks are thus readily distinguishable from the instant
case because they both involved challenges to the proceedings that underlay
their guilty verdicts. The defendant in Wright challenged the adequacy of
the state’s information upon which his judgment of conviction was based,
and the defendant in Starks challenged the sufficiency of the evidence upon
which his conviction was based.
Here, by contrast, the defendant has not challenged, in any way, the
validity of his convictions for robbery in the second degree or of the guilty
verdicts upon which they rest. He has not claimed any infirmity with the
state’s information; he has not advanced any claims of insufficiency with
respect to the state’s evidence against him, or of evidentiary error, instruc-
tional error, prosecutorial impropriety, or any other type of error upon
which the legality of trial proceedings or of the verdicts and judgments they
result in are routinely challenged. Rather, he claimed that, at sentencing,
the court should have vacated one of his two second degree robbery convic-
tions and sentenced him only on one of those convictions. See State v.
Polanco, 308 Conn. 242, 61 A.3d 1084 (2013).
7
We agree with the dissent that a motion to correct an illegal sentence
on grounds of double jeopardy must claim error in the imposition of multiple
sentences for a single criminal offense, not error in the trial proceedings
leading up to the guilty verdicts upon which those sentences were imposed.
There are times, however, when a challenged sentence is so intertwined
with a conviction resulting from imposition of that sentence that the vacation
of the sentence requires the vacation of the judgment of conviction as well.
That occurs, for example, where a defendant is found guilty on more than
one count of a multicount information, each of which charges him with the
same criminal offense, based upon the same act or course of conduct, but
under a discrete and different theory of liability. There is, of course, nothing
wrong with charging a defendant with a single criminal offense in multiple
counts, each based upon a discrete and different theory of liability, nor is
there anything wrong with taking a separate guilty verdict on each such
count. An error arises, however, when separate sentences are imposed on
the defendant on two or more of those separate verdicts, for such multiple
sentences constitute multiple punishments for a single criminal offense. That
is precisely the circumstance that gave rise to the defendant’s procedurally
proper motion to correct in this case.