State v. Hathaway , 177 Conn. App. 279 ( 2017 )

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STATE OF CONNECTICUT v. ROBERT HATHAWAY
(AC 40213)
DiPentima, C. J., and Mullins and Pellegrino, Js.
Syllabus
The defendant, who previously had been convicted of the crime of murder
and sentenced to a mandatory minimum term of twenty-five years of
incarceration without the possibility of parole stemming from his role
in a shooting when he was seventeen years old, appealed to this court,
claiming that the trial court improperly dismissed his motion to correct
an illegal sentence for lack of subject matter jurisdiction. The defendant
claimed, inter alia, that the sentence of twenty-five years of incarceration
for murder imposed upon a juvenile violated the prohibition in the eighth
amendment against cruel and unusual punishment, and article first,
§§ 8 and 9, of the state constitution, because there was no meaningful
opportunity for him to obtain release through parole based on demon-
strated maturity and rehabilitation prior to the expiration of his term
of incarceration. Held that the defendant’s claims having been fully
addressed and rejected by this court in the companion case of State v.
Rivera (177 Conn. App. ), which involved the same underlying facts
and issues on appeal, that decision was dispositive of the defendant’s
claim, and, accordingly, the trial court’s judgment was affirmed; more-
over, although the defendant in Rivera was granted parole and the
defendant in the present case was not, the defendant in the present
case was eligible for parole pursuant to statute (§ 54-125a [f]), and,
thus, he could no longer claim that he was serving a sentence of life
imprisonment, or its functional equivalent, without the possibility for
parole.
Argued May 15—officially released October 17, 2017
Procedural History
Substitute information charging the defendant with
the crimes of murder and felony murder, brought to
the Superior Court in the judicial district of Hartford,
where the defendant was presented to the court, Solo-
mon, J., on a plea of guilty to the charge of murder;
thereafter, the state entered a nolle prosequi as to the
charge of felony murder; subsequently, the court ren-
dered judgment in accordance with the plea; thereafter,
the court, Alexander, J., dismissed the defendant’s
motion to correct an illegal sentence, and the defendant
appealed to this court. Affirmed.
W. Theodore Koch III, assigned counsel, for the appel-
lant (defendant).
Melissa E. Patterson, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, Michele C. Lukban and Richard J. Rubino, senior
assistant state’s attorneys, and Dennis J. O’Connor,
former supervisory assistant state’s attorney, for the
appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Robert Hathaway,
appeals from the judgment of the trial court dismissing
his motion to correct an illegal sentence. On appeal,
the defendant claims that (1) the court erred in dismiss-
ing the motion to correct an illegal sentence on the
ground that it lacked subject matter jurisdiction, (2)
the court erred in dismissing the motion to correct
an illegal sentence because the mandatory minimum
sentence of twenty-five years of incarceration without
the possibility of parole for murder is unconstitutional
under article first, §§ 8 and 9, of the state constitution,
as applied to juvenile offenders in that it bars courts
from sentencing juveniles to less than twenty-five years
upon due considerations of the Miller factors,1 and (3)
the court committed constitutional error when it
accepted the defendant’s waiver, through counsel, of
his right to a presentence investigation report. We
addressed these precise issues in State v. Rivera, 177
Conn. App. , A.3d (2017), also released today,
and our resolution of the defendant’s appeal is con-
trolled by our decision in that case. We affirm the judg-
ment of the trial court dismissing the motion to correct
an illegal sentence.
The following facts and procedural history are rele-
vant to the present appeal. On or about May 23, 2001,
the defendant, who was seventeen years old, shot and
killed the victim, Fletcher Fitzgerald. Shortly thereafter,
the defendant was arrested and charged with murder
in violation of General Statutes § 53a-54a (a) and felony
murder in violation of General Statutes § 53a-54c. On
April 16, 2003, when the defendant was nineteen years
old, he pleaded guilty under the Alford doctrine2 to the
charge of murder. On June 13, 2003, the state and the
defendant waived the presentence investigation report,
and, in accordance with the plea agreement, the trial
court, Solomon, J., sentenced the defendant to twenty-
five years of incarceration on the murder charge, which
constituted the statutory mandatory minimum. In addi-
tion, as part of the disposition, the state entered a nolle
prosequi as to the felony murder count.
On November 28, 2013, the defendant filed a pro se
motion to correct an illegal sentence. In that motion,
the defendant claimed that the sentence of twenty-five
years of incarceration without the possibility of parole
for murder imposed upon a juvenile violates the prohibi-
tion against cruel and unusual punishments in the eighth
amendment of the United States constitution and the
due process clauses of article first, §§ 8 and 9, of the
state constitution. The court stated in its memorandum
of decision: ‘‘Specifically, [the defendant] assert[ed]
that his sentence, as imposed, violates the principles
underpinning Miller v. Alabama, 567 U.S. 460, 132 S.
Ct. 2455, 183 L. Ed. 2d 407 (2012), and Graham v. Flor-
ida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825
(2010), because there is no meaningful opportunity for
him to obtain release through parole based on demon-
strated maturity and rehabilitation prior to the expira-
tion of his term of incarceration.’’ The court further
stated: ‘‘On April 1, 2014, the public defender’s office
filed a motion to correct [an] illegal disposition and a
brief in support thereof on behalf of the defendant.
The court heard oral argument on the matter on April
2, 2014.’’
On July 23, 2014, the trial court, Alexander, J., issued
a memorandum of decision dismissing the defendant’s
motion to correct an illegal sentence because it lacked
subject matter jurisdiction over the motion. This
appeal followed.
On appeal, the defendant makes three claims that
are identical to those made in State v. Rivera, supra,
177 Conn. App. . The only noteworthy difference
between the present case and Rivera is the fact that,
after a parole hearing pursuant to General Statutes § 54-
125a (f), the defendant in Rivera was granted parole and
the defendant here was not.3 Despite that difference,
we emphasize that both defendants were eligible for
parole pursuant to § 54-125a (f).4 Thus, even though the
defendant in the present case was not granted parole,
with the enactment of § 1 of No. 15-84 of the 2015 Public
Acts, now codified at § 54-125a (f), he can no longer
claim that he is serving a sentence of life imprisonment,
or its functional equivalent, without the possibility for
parole. Accordingly, we conclude that the present
action is disposed of by our decision in Rivera.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The Miller factors refer to the sentencing court’s obligation to consider
a juvenile’s age and circumstances related to age at an individualized sentenc-
ing hearing as mitigating factors before imposing a sentence of life imprison-
ment without parole. See Miller v. Alabama, 567 U.S. 460, 479–80, 132 S.
Ct. 2455, 183 L. Ed. 2d 407 (2012).
2
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
3
‘‘Furthermore, Montgomery [v. Louisiana, U.S. , 136 S. Ct. 718,
193 L. Ed. 2d 599 (2016)] requires that those whose sentences violated Miller
be given a meaningful opportunity for release; it does not require that all
juvenile offenders be released with no further supervision by the criminal
justice system. Whether juvenile offenders who are granted release pursuant
to § 54-125a (f) return to prison or not is to be determined by their subsequent
behavior.’’ (Emphasis omitted.) State v. Williams-Bey, 167 Conn. App. 744,
780 n.25, 144 A.3d 467 (2016), modified in part on other grounds after
reconsideration, 173 Conn. App. 64, 164 A.3d 31, cert. granted on other
grounds, 326 Conn. 920, A.3d (2017).
4
As the United States Supreme Court explained in Montgomery v. Louisi-
ana, U.S. , 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016): ‘‘Extending parole
eligibility to juvenile offenders does not impose an onerous burden on the
States, nor does it disturb the finality of state convictions. Those prisoners
who have shown an inability to reform will continue to serve life sentences.
The opportunity for release will be afforded to those who demonstrate the
truth of Miller’s central intuition—that children who commit even heinous
crimes are capable of change.’’ (Emphasis omitted; internal quotation marks
omitted.) State v. Williams-Bey, 167 Conn. App. 744, 758–59, 144 A.3d 467
(2016), modified in part on other grounds after reconsideration, 173 Conn.
App. 64, 164 A.3d 31, cert. granted on other grounds, 326 Conn. 920,
A.3d (2017).