State v. Antwon W. , 179 Conn. App. 668 ( 2018 )

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STATE OF CONNECTICUT v. ANTWON W.*
(AC 38915)
Lavine, Sheldon and Harper, Js.
Syllabus
The defendant, who had been convicted of six counts of the crime of sexual
assault in the first degree in violation of statute (§ 53a-70 [a] [1] and
[2]), and of the crimes of sexual assault in the third degree and risk of
injury to a child, appealed to this court from the judgment of the trial
court dismissing his second motion to correct an illegal sentence. He
claimed that the sentencing court improperly relied on inaccurate and
unreliable information in sentencing him on three counts of sexual
assault in the first degree under § 53a-70 (a) (1) because those sentences
were imposed on him before a vacatur, on grounds of double jeopardy,
of his conviction of three parallel counts of and associated concurrent
sentences for sexual assault in the first degree under § 53a-70 (a) (2),
based on the same underlying sexual assaults. Those sentences were
vacated when the trial court granted the defendant’s first motion to
correct an illegal sentence. Held that the trial court did not abuse its
discretion in denying the defendant’s second motion to correct an illegal
sentence, that court having reasonably determined that the sentencing
court did not rely on inaccurate information in sentencing the defendant
on his § 53a-70 (a) (1) charges and, thus, that his sentences on those
charges were not imposed in an illegal manner: the defendant’s claim
was belied by the record, which indicated that the court explicitly
imposed the five year mandatory minimum sentence for each of the three
counts under § 53a-70 (a) (1) and clearly considered the defendant’s
conviction under the different subdivisions of the sexual assault statute
separately and distinctly, and did not enhance its sentence on the counts
under subdivision (1) based on the defendant’s conviction of the charges
under subdivision (2), or the particular conduct on which they were
based, and the vacatur of the defendant’s conviction of the charges
under § 53a-70 (a) (2) on the basis of double jeopardy was not based
on insufficient evidence or any factual or legal findings that would have
invalidated the jury’s guilty verdict on those charges, nor did the vacatur
of the defendant’s conviction of those charges render the information
or statements regarding the facts underlying the jury’s guilty verdict on
those charges inaccurate; nevertheless, because the defendant’s motion
to correct an illegal sentence raised a claim that fell squarely within the
common-law jurisdiction of the trial court and properly invoked the
court’s jurisdiction, the trial court, after properly rejecting the arguments
raised in the motion correct an illegal sentence, should have denied the
motion to correct rather than dismissed it, and, therefore, the form of
the judgment was improper.
Argued November 13, 2017—officially released February 13, 2018
Procedural History
Substitute information charging the defendant with
six counts of the crime of sexual assault in the first
degree, and with the crimes of sexual assault in the
third degree and risk of injury to a child, brought to
the Superior Court in the judicial district of Waterbury,
where the matter was tried to the jury before Cremins,
J.; verdict and judgment of guilty, from which the defen-
dant appealed to this court, which affirmed the judg-
ment of the trial court; thereafter, the court, Fasano,
J., granted the defendant’s motion to correct an illegal
sentence; subsequently, the court, Fasano, J., dismissed
the defendant’s motion to correct an illegal sentence,
and the defendant appealed to this court. Reversed;
judgment directed.
Peter Tsimbidaros, for the appellant (defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Patrick J. Griffin, state’s attorney, for
the appellee (state).
Opinion
SHELDON, J. The defendant, Antwon W., appeals
from the judgment of the trial court dismissing his sec-
ond motion to correct an illegal sentence, in which he
claimed that the sentencing court improperly relied on
inaccurate and unreliable information in sentencing him
on three counts of sexual assault in the first degree
under General Statutes § 53a-70 (a) (1) because those
sentences were imposed upon him before the vacatur,
on grounds of double jeopardy, of his three parallel
convictions of and associated concurrent sentences for
sexual assault in the first degree under § 53a-70 (a) (2)
based upon the same underlying sexual assaults. We
reject the defendant’s claim that the court relied upon
inaccurate information in sentencing him, but conclude
that the form of the judgment is improper and, there-
fore, remand this case with direction to deny the defen-
dant’s motion to correct an illegal sentence.1
On May 17, 2006, the defendant was found guilty of,
inter alia, three counts each of sexual assault in the
first degree, in violation of § 53a-70 (a) (1) and § 53a-
70 (a) (2), in connection with three separate sexual
assaults on different dates. Thereafter, following the
preparation of a presentence investigation report (PSI),
he was sentenced, on the basis of that verdict, as fol-
lows: for each violation of § 53a-70 (a) (1), to a manda-
tory minimum term of five years incarceration followed
by five years of special parole, with all three sentences
to run consecutively to one another; for each violation
of § 53a-70 (a) (2), to a term of five years incarceration
followed by five years of special parole, with each such
sentence to run concurrently with the sentence imposed
for violation of § 53a-70 (a) (1) in connection with the
same underlying sexual assaults; for a total effective
sentence of fifteen years incarceration, all mandatory,
followed by fifteen years of special parole.
On June 22, 2015, the trial court, Fasano, J., granted
the defendant’s first motion to correct an illegal sen-
tence, concluding that the defendant’s convictions and
sentences under both § 53a-70 (a) (1) and (2) violated
his double jeopardy rights because he was sentenced
twice for the same offense. Accordingly, the court
ordered that the defendant’s convictions of the three
counts of sexual assault in the first degree under § 53a-
70 (a) (2) be dismissed and that the sentences imposed
on those convictions be vacated. As a result of the
court’s order, the defendant’s total effective sentence
on his three remaining convictions of sexual assault in
the first degree in violation of § 53a-70 (a) (1), of fifteen
years incarceration, all mandatory, followed by fifteen
years of special parole, remained unchanged.
Thereafter, the defendant filed a second motion to
vacate an illegal sentence, asserting that the vacatur of
his parallel convictions of and concurrent sentences
for sexual assault in the first degree in violation of
General Statutes § 53a-70 (a) (2) required a finding that
the trial court’s original sentence was imposed in an
illegal manner. The defendant argued that his sentence
was illegal because the sentencing court relied upon
inaccurate information in sentencing him. Specifically,
the defendant claims that the court improperly relied,
when it imposed the challenged sentences, upon infor-
mation concerning the guilty verdicts underlying the
three convictions that were subsequently vacated, as
related to the court in the PSI and the prosecutor’s
comments at sentencing. He therefore argues that he
‘‘should be allowed a new sentencing hearing and/or
be resentenced with accurate information.’’ The court,
Fasano, J., dismissed the defendant’s second motion
to correct on December 9, 2015, reasoning that the
original sentencing court did not rely on any of the
vacated charges in imposing the defendant’s sentence.
From that determination, the defendant has filed this
appeal.
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.’’
‘‘[A]n illegal sentence is essentially one [that] either
exceeds the relevant statutory maximum limits, violates
a defendant’s right against double jeopardy, is ambigu-
ous, or is internally contradictory. By contrast . . .
[s]entences imposed in an illegal manner have been
defined as being within the relevant statutory limits but
. . . imposed in a way [that] 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 informa-
tion or considerations solely in the record, or his right
that the government keep its plea agreement promises
. . . . These definitions are not exhaustive, however,
and the parameters of an invalid sentence will evolve
. . . as additional rights and procedures affecting sen-
tencing are subsequently recognized under state and
federal law.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) State v. Jason B.,
176 Conn. App. 236, 243–44, 170 A.3d 139 (2017).
‘‘[A] claim that the trial court improperly denied a
defendant’s motion to correct an illegal sentence is
reviewed pursuant to the abuse of discretion standard.
. . . In reviewing claims that the trial court abused
its discretion, great weight is given to the trial court’s
decision and every reasonable presumption is given in
favor of its correctness. . . . We will reverse the trial
court’s ruling only if it could not reasonably conclude
as it did. . . .
‘‘[D]ue process precludes a sentencing court from
relying on materially untrue or unreliable information
in imposing a sentence. . . . To prevail on such a claim
as it relates to a [PSI], [a] defendant [cannot] . . .
merely alleg[e] that [his PSI] contained factual inaccura-
cies or inappropriate information. . . . [He] must show
that the information was materially inaccurate and that
the [sentencing] judge relied on that information. . . .
A sentencing court demonstrates actual reliance on mis-
information when the court gives explicit attention to
it, [bases] its sentence at least in part on it, or gives
specific consideration to the information before impos-
ing sentence.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) State v. Bozelko, 175
Conn. App. 599, 609–10, 167 A.3d 1128, cert. denied,
327 Conn. 973, 174 A.3d 194 (2017).
On appeal, the defendant reiterates the claim that he
made before the trial court, arguing: ‘‘It is clear based
on the totality of the record that materially inaccurate
information was made available to and then used by
the trial court in imposing the original sentence in the
instant matter. The substance of the information is the
three counts which were later vacated and found to be
improper. The [PSI] and the prosecution made repeated
use of this information which has been deemed to be
inappropriate. The motion to correct an illegal sentence
court therefore erred in failing to adequately resentence
the defendant.’’
In addressing the defendant’s claim that the sentenc-
ing court had relied upon his subsequently vacated con-
victions in imposing his sentence, the court explained:
‘‘In this case, there’s absolutely no evidence of explicit
reliance on the vacated charges. That’s the sex one
under [§ 53a-70] (a) (2). That’s the age and age differ-
ence. In fact, the evidence is just the opposite. He gives
concurrent time on all the sex one’s under [§ 53a-70]
(a) (2), which is the age issue. He treats the conduct
as three separate assaults rather than six. He gives the
mandatory minimum on the [§ 53a-70] (a) (1)s, which
is five years, followed by five years of special parole.
That’s as little as you can get because it has to add up
to ten. And he runs those three incidents consecutive.
He then makes all the other charges, the [§ 53a-70] (a)
(2) charges, the age difference charges, concurrent. And
even the state in its own argument asked that you get
concurrent time on those second convictions under
[§ 53a-70] (a) (2).’’ On that basis, the court concluded,
‘‘there was absolutely no reliance on the vacated
charges.’’
We agree with the court’s conclusion that the defen-
dant’s claim is belied by the record. Our review of the
August 25, 2006 sentencing transcript reveals that the
court explicitly imposed the five year mandatory mini-
mum sentence for each of the three counts of sexual
assault in the first degree in violation of § 53a-70 (a) (1).
The sentencing court clearly considered the convictions
under the different subdivisions of the sexual assault
statute separately and distinctly, and did not enhance
its sentence on any of the defendant’s convictions under
§ 53a-70 (a) (1) based upon any of his convictions under
§ 53a-70 (a) (2), or the particular conduct upon which
they were based. Moreover, the vacatur of the defen-
dant’s convictions for sexual assault in the first degree
in violation of § 53a-70 (a) (2) on the basis of double
jeopardy was not based upon insufficient evidence to
support such convictions or any factual or legal findings
that would invalidate the jury’s guilty verdicts on those
charges. Nor does the vacatur of those convictions ren-
der the information contained in the PSI or the state-
ments made by the prosecutor regarding the facts
underlying the jury’s guilty verdicts on the § 53a-70 (a)
(2) charges inaccurate. Therefore, the trial court reason-
ably determined that the sentencing court did not rely
upon inaccurate information in sentencing the defen-
dant on his § 53a-70 (a) (1) charges, and thus that the
defendant’s sentences on those charges were not
imposed in an illegal manner. We conclude, on that
basis, that the trial court did not abuse its discretion
by denying the defendant’s motion to correct an ille-
gal sentence.
We note that the trial court, having properly rejected
the arguments raised in the defendant’s motion on their
merits, technically should have denied rather than dis-
missed the motion to correct. Only if a defendant fails
to state a claim that brings a motion within the purview
of Practice Book § 43-22 should a court dismiss the
motion for lack of jurisdiction. A claim that the sentenc-
ing court relied upon inaccurate information in impos-
ing its sentence falls squarely within the common-law
jurisdiction of the Superior Court. State v. Charles F.,
133 Conn. App. 698, 702–703, 36 A.3d 731, cert. denied,
304 Conn. 929, 42 A.3d 390 (2012). The defendant’s
motion did not merely raise a collateral attack on the
judgment of conviction but, on its face, attacked the
manner in which his sentence was imposed, and the
court never made a determination that the motion was
jurisdictionally defective. Accordingly, the motion prop-
erly invoked the court’s jurisdiction, and, thus, the form
of the judgment is incorrect.
The form of the judgment is improper, the judgment
dismissing the defendant’s motion to correct an illegal
sentence is reversed and the case is remanded with
direction to render judgment denying the defendant’s
motion.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
1
The defendant also claims that his sentence was illegally enhanced fol-
lowing the vacatur of three of his convictions and sentences by eliminating
the earned risk reduction credits that he had earned prior to said vacatur
and that the elimination of those credits, which he alleges constituted an
increase in the length of his sentence, can be attributed to the vindictiveness
of the court. The defendant did not raise these arguments in his second
motion to correct, and the court therefore did not address them, and they
thus are not properly before us now. We note, however, that because the
five year sentences on each of the incidents of sexual assault were mandatory
minimum sentences for those convictions, the defendant was not entitled
to reduce his sentences by earned risk reduction credits.