State v. Montanez , 149 Conn. App. 32 ( 2014 )

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STATE OF CONNECTICUT v. RICARDO MONTANEZ
(AC 35264)
Gruendel, Sheldon and Pellegrino, Js.
Argued January 16—officially released March 25, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Curran, J. [sale of a narcotic substance, failure
to appear judgments]; Barnett, J. [murder judgment];
Devlin, J. [motion to revise mittimus].)
Darcy McGraw, assistant public defender, for the
appellant (defendant).
Adam E. Mattei, deputy assistant state’s attorney,
with whom, on the brief, was John C. Smriga, state’s
attorney, for the appellee (state).
Opinion
GRUENDEL, J. The defendant, Ricardo Montanez,
appeals from the judgment of the trial court dismissing
his motion to revise a judgment mittimus.1 On appeal,
the defendant claims that the court erred in finding that
it lacked subject matter jurisdiction over the motion.2
We affirm the judgment of the trial court.
The facts and procedural history are not in dispute.
The defendant was charged with the sale of a narcotic
substance in violation of General Statutes § 21a-277 (a)
(drug case). In July, 1986, the defendant pleaded guilty
to that charge. He posted bond and, as a result, he
was not incarcerated prior to sentencing. Thereafter,
in August, 1986, when the defendant failed to appear
for sentencing on his drug case, he was ordered rear-
rested on the drug charge and was further charged
with failure to appear in the first degree in violation of
General Statutes § 53a-172 (a).
In November, 1986, before the defendant was rear-
rested and returned to custody, a second unrelated war-
rant was issued for his arrest on the charge of murder
in violation of General Statutes § 53a-54a (a). The defen-
dant initially fled to Puerto Rico, but in January, 1987,
he was finally recaptured, extradited to the United
States, and returned to state custody.
In September, 1987, the defendant pleaded guilty to
the charge of failure to appear in the first degree. There-
after, in October, 1987, he was sentenced by the court
to consecutive terms of four years incarceration on the
drug charge and one year incarceration on the failure
to appear charge, for a total effective sentence of five
years to serve. Subsequently, in May, 1988, a jury found
the defendant guilty of murder, for which he was later
sentenced, in July, 1988, to a term of forty years incar-
ceration. The court ordered the defendant’s murder sen-
tence to run concurrently with his previously imposed
sentences on the drug charge and the failure to appear
charge, but the court was silent as to whether it intended
him to receive presentence jail credit for the time he
spent in pretrial custody on the murder charge.
The Department of Correction (department) initially
deducted 526 days from the defendant’s murder sen-
tence to account for the time he had spent in pretrial
custody from January 29, 1987, the date he returned to
state custody, and July 8, 1988, the date on which he
was sentenced for murder. Twenty-two years later,
however, in a letter dated July 15, 2010, the department
wrote to the defendant to inform him: ‘‘In December,
2004 [our] Supreme Court ruled on three court cases;
Harris v. Commissioner of Correction, [271 Conn. 808,
860 A.2d 715 (2004)]; Hunter v. Commissioner of Cor-
rection, [271 Conn. 856, 860 A.2d 700 (2004)]; and Cox
v. Commissioner of [Correction, 271 Conn. 844, 860
A.2d 708 (2004)]. In these cases the defendants wanted
presentence credits to apply to concurrent sentences
imposed on different days. There is language in the
Cox decision that the statute that governs presentence
credit, [General Statutes §] 18-98d, does not permit the
[department] to transfer credits from one sentence to
another. . . . For those inmates that had their presen-
tence credits transferred to another sentence received
on a different day, the presentence credits had to be
removed and put back on the first sentence they were
earned.’’ The department then recalculated the defen-
dant’s murder sentence and added back the 526 days
previously credited to him as presentence jail credit.
In August, 2012, the defendant filed a motion to revise
his judgment mittimus. He claimed that his murder sen-
tence was improper because it had been recalculated
to require him to serve an extra 526 days in jail ‘‘due
to the way in which the [department] applies the credit
to the defendant’s two cases.’’ The state filed an objec-
tion to the motion, arguing that the criminal trial court
no longer possessed jurisdiction. A hearing followed
and, in August, 2013, the court dismissed the motion
for lack of jurisdiction over the defendant’s case for
the purpose of modifying his sentence. In its memoran-
dum of decision, the court stated in relevant part:
‘‘Absent some express authority that supplies continued
jurisdiction, a trial court loses jurisdiction over a case
when the defendant is committed to the custody of the
[department] and begins serving the sentence. State v.
Luzietti, 230 Conn. 427, 431–32, [646 A.2d 85] (1994);
see also State v. Das, 291 Conn. 356, 361–62, [968 A.2d
367] (2009).
‘‘The [defendant] cites to no authority that would
provide the court with jurisdiction. . . . [C]ounsel for
the defendant suggested that the motion should be con-
strued as a motion to correct [an] illegal sentence filed
pursuant to Practice Book § 43-22. In support of this
position, the defense relies on Orcutt v. Commissioner
of Correction, 284 Conn. 724, [937 A.2d 656] (2007). In
Orcutt, however, the defendant was claiming that his
sentence violated his right to be sentenced in accor-
dance with the term of his plea agreement as mandated
by Santobello v. New York, 404 U.S. 257, [92 S. Ct. 495,
30 L. Ed. 2d 427] (1971). Specifically, that the sentence
as calculated by the [department] differed substantially
from the sentence agreed to by the defendant, the prose-
cutor and the court. Orcutt v. Commissioner of Correc-
tion, supra, 729.
‘‘Unlike Orcutt, the present motion is based not on
a claimed violation of a plea agreement but rather on
notions of fairness and justice. Stated differently, it is
an equitable appeal rather than a legal one. The court
lacks any general equitable authority to open a criminal
judgment after the defendant has begun serving the
sentence. State v. Alegrand, 130 Conn. App. 652, [23
A.3d 1250] (2011).’’
The defendant then filed a motion to reconsider the
court’s ruling on his motion to revise the judgment
mittimus, relying on the trial court decision in State
v. Torres, Superior Court, judicial district of Hartford,
Docket No. CR-94-0148154 (April 12, 2011) (Gold, J.).
The court granted the motion for reconsideration, but
denied the relief requested, reasoning as follows: ‘‘This
court has considered the applicability of State v. Torres,
[supra, Superior Court, Docket No. CR-94-0148154] to
the defendant’s motion. Although both cases involve
claims for jail credit, this court finds Torres distinguish-
able for both legal and factual reasons. Legally, the
basis of the court’s assertion of jurisdiction in Torres
was a claimed violation of a plea agreement. Judge Gold
correctly found that such a claim may be raised in a
motion to correct [an] illegal sentence filed pursuant
to Practice Book § 43-22. State v. McNellis, 15 Conn.
App. 416, 444, [546 A.2d 292, cert. denied, 209 Conn.
809, 548 A.2d 441] (1988). Factually, the defendant in
Torres first went to trial and later worked out a plea
agreement for concurrent time. In the present case, the
defendant first pled to the drug case for a five year
agreed sentence and thereafter went to trial on the
murder case. There was never a plea agreement on the
murder case nor (as was the situation in Torres) a global
plea agreement covering both cases.’’ This appeal
followed.
‘‘Subject matter jurisdiction [implicates] the authority
of the court to adjudicate the type of controversy pre-
sented by the action before it. . . . [A] court lacks dis-
cretion to consider the merits of a case over which it is
without jurisdiction . . . .’’ (Internal quotation marks
omitted.) Fort Trumbull Conservancy, LLC v. New Lon-
don, 282 Conn. 791, 802, 925 A.2d 292 (2007). ‘‘If it
becomes apparent to the court that such jurisdiction
is lacking, the appeal must be dismissed.’’ Milford
Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616,
625, 822 A.2d 196 (2003). ‘‘A determination regarding a
trial court’s subject matter jurisdiction is a question of
law. When . . . the trial court draws conclusions of
law, our review is plenary and we must decide whether
its conclusions are legally and logically correct and find
support in the facts that appear in the record.’’ (Internal
quotation marks omitted.) Fort Trumbull Conservancy,
LLC v. New London, supra, 802.
Our Supreme Court ‘‘has held that the jurisdiction
of the sentencing court terminates once a defendant’s
sentence has begun, and, therefore, that court may no
longer take any action affecting a defendant’s sentence
unless it expressly has been authorized to act.’’ Cobham
v. Commissioner of Correction, 258 Conn. 30, 37, 779
A.2d 80 (2001). Practice Book § 43-22 is a narrow excep-
tion to this general rule. It 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.’’ Practice Book § 43-22.
‘‘Connecticut has recognized two types of circum-
stances in which the [sentencing] court has jurisdiction
to review a claimed illegal sentence. The first of those
is when the sentence itself is illegal, namely, when the
sentence either exceeds the relevant statutory maxi-
mum limits, violates a defendant’s right against double
jeopardy, is ambiguous, or is internally contradictory.
. . . The other circumstance in which a claimed illegal
sentence may be reviewed is that in which the sentence
is within the relevant statutory limits . . . but [is]
imposed in a way which violates [the] 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
. . . .’’ (Internal quotation marks omitted.) State v. Cas-
iano, 282 Conn. 614, 624 n.14, 922 A.2d 1065 (2007).
The United States Supreme Court in Santobello v.
New York, supra, 404 U.S. 257, first described when a
defendant may invoke a provision such as Practice
Book § 43-22 to challenge a sentence imposed in an
illegal manner for an alleged violation of his right that
the government keep its plea agreement promises. The
court in Santobello held that ‘‘the adjudicative element
inherent in accepting a plea of guilty, must be attended
by safeguards to insure the defendant what is reason-
ably due in the circumstances. Those circumstances
will vary, but a constant factor is that when a plea rests
in any significant degree on a promise or agreement of
the prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be
fulfilled.’’ Santobello v. New York, supra, 262.
The defendant claims that the court erred in finding
that it lacked subject matter jurisdiction over his motion
to revise the judgment mittimus because that motion
properly raised a claim that his sentence had been
imposed upon him in violation of the principles enunci-
ated in Santobello. He argues that, at the time his murder
sentence was imposed, he expected, and the sentencing
judge understood and intended, that he would be given
presentence jail credit on that sentence. He thus con-
cludes that the court has subject matter jurisdiction to
consider whether his sentence had been imposed upon
him in an illegal manner.3 The state, in contrast, argues
that Santobello does not apply to the present case
because the prosecution did not promise the defendant
anything during or after his murder trial on which it
has failed to deliver. We agree with the state.
A Santobello claim provides a remedy when the terms
of a valid and enforceable plea agreement have not been
upheld. Santobello, and the principles derived from it,
are thus inapplicable to the present case. The defendant
did not enter into a plea agreement on his murder charge
but decided, instead, to go to trial. Rather, he pleaded
guilty only on the drug and failure to appear charges,
which occurred prior to his murder trial and sentencing.
In addition, the record does not reveal that the state
made any promises to the defendant regarding the
department’s application of presentence confinement
credit to his murder sentence. Furthermore, unlike the
defendant in the present case, who filed a motion to
revise a judgment mittimus after the trilogy of Supreme
Court cases changing the way presentence credits may
be administered, the defendant in Santobello objected
to his sentence at his sentencing hearing and later
appealed from his conviction. Id., 259. Because the cir-
cumstances in Santobello stand in stark contrast to the
present circumstances, we conclude, as did the trial
court, that Santobello does not apply. We also agree
with the reasoned analysis of the trial court in finding
Orcutt and Torres similarly distinguishable and inappli-
cable to the present case.
The defendant’s motion is therefore not reviewable
because it does not make a colorable claim under the
rule of Santobello. Furthermore, because the defendant
did not set forth any alternative basis to invoke the
court’s subject matter jurisdiction over his sentence,
the present motion cannot be considered as the correc-
tion of an illegal sentence or a sentence imposed in
an illegal manner. See Crawford v. Commissioner of
Correction, 294 Conn. 165, 199 n.21, 982 A.2d 620 (2009)
(‘‘[i]n order for the court to have jurisdiction over a
motion to correct an illegal sentence [under Practice
Book § 43-22] after the sentence has been executed,
the sentencing proceeding . . . must be the subject of
the attack’’ [internal quotation marks omitted]). Our
general rule that the jurisdiction of the sentencing court
terminates once a defendant’s sentence has begun, then,
is dispositive. Cobham v. Commissioner of Correction,
supra, 258 Conn. 37. The court, therefore, properly dis-
missed the case due to a lack of subject matter jurisdic-
tion over the defendant’s motion to revise the
judgment mittimus.
The judgment is affirmed.
In this opinion the other judges concurred.
1
As our Supreme Court has explained, a judgment mittimus is ‘‘merely
. . . a clerical document by virtue of which a person is transported to and
rightly held in prison.’’ Commissioner of Correction v. Gordon, 228 Conn.
384, 392, 636 A.2d 799 (1994).
2
The defendant also claims that the court should reach the merits of his
motion to revise the judgment mittimus and correct his sentence to reflect
what he claims to have been the original agreement of the parties and the
clear intent of the sentencing judge. Our resolution of the first claim makes
it unnecessary for us to reach the second claim.
3
The defendant also makes the same arguments that he made to the trial
court, namely, that Orcutt v. Commissioner of Correction, supra, 284 Conn.
724, and State v. Torres, supra, Superior Court, Docket No. CR-94-0148154,
are applicable and controlling in this matter.