State v. Holmes ( 2021 )

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STATE OF CONNECTICUT v. EVAN
JARON HOLMES
(AC 43632)
Moll, Alexander and Flynn, Js.
Syllabus
The defendant, who had previously been convicted of, inter alia, the crimes
of manslaughter in the first degree with a firearm and felony murder,
appealed to this court from the judgment of the trial court dismissing
in part and denying in part his motion to correct an illegal sentence.
The defendant claimed that the protection of the federal constitution
against double jeopardy was violated when the state subjected and
prosecuted him for multiple, mutually exclusive homicide offenses for
a single act and also when the trial court vacated his conviction of
manslaughter instead of his conviction of felony murder. The court
determined that it did not have subject matter jurisdiction over the
defendant’s first claim, reasoning that it attacked the charging document
itself rather than the sentencing proceeding. As to the defendant’s second
claim, the court reasoned that the sentencing court properly vacated
his manslaughter conviction and sentenced him on his felony murder
conviction. Held:
1. The trial court properly dismissed for lack of subject matter jurisdiction the
defendant’s claim that the charging document listed multiple homicide
offenses in violation of his constitutional right against double jeopardy;
although the claim purportedly pertained to double jeopardy, which can
be raised in a motion to correct, it actually attacked the proceedings
leading up to the conviction, namely, the charging document itself, and
not the sentence or sentencing proceeding, and our case law is clear
that motions to correct an illegal sentence that attack the conviction
or the proceedings leading up to the conviction are not within the trial
court’s jurisdiction on a motion to correct an illegal sentence.
2. The trial court properly denied the defendant’s claim that his sentence
for his felony murder conviction was illegal because the sentencing
court improperly vacated his conviction of manslaughter in the first
degree with a firearm and instead sentenced him on the felony murder
conviction, the sentencing court not having imposed multiple punish-
ments for the single act of causing the death of the victim: this court,
having conducted a double jeopardy analysis under a two step process,
determined, first, that it was undisputed that the charges of manslaughter
in the first degree with a firearm and felony murder arose out of the same
act or transaction, and, second, under the rule of statutory construction
pursuant to Blockburger v. United States (284 U.S. 299), that the crimes
were separate because both required proof of elements that the other
did not, but further determined, as our Supreme Court explained in
State v. John (210 Conn. 652), that the legislature intended that felony
murder and manslaughter in the first degree, which are alternative means
of committing the same offense, be treated as a single crime for double
jeopardy purposes, such that it did not intend that a defendant could
be sentenced for both; moreover, the sentencing court’s decision to
vacate the less serious felony of manslaughter was proper despite the
erroneous statements of both counsel that manslaughter was a lesser
included offense of felony murder because vacatur of the less serious
homicide offense was proper under John, and the defendant failed to
demonstrate that the sentencing court abused its discretion in determin-
ing that the felony murder conviction controlled and in vacating the
manslaughter conviction.
Argued September 20—officially released December 14, 2021
Procedural History
Substitute information charging the defendant with
the crimes of murder, felony murder, home invasion,
conspiracy to commit home invasion, burglary in the
first degree and criminal possession of a pistol or
revolver, brought to the Superior Court in the judicial
district of New London, where the first five counts were
tried to the jury before Jongbloed, J.; verdict of guilty
of the lesser included offense of manslaughter in the
first degree with a firearm, felony murder, home inva-
sion, conspiracy to commit home invasion and burglary
in the first degree; thereafter, the charge of criminal
possession of a pistol or revolver was tried to the court;
judgment of guilty; subsequently, the court vacated the
verdict as to the lesser included offense of manslaughter
in the first degree with a firearm and burglary in the
first degree, and rendered judgment of guilty of felony
murder, home invasion, conspiracy to commit home
invasion and criminal possession of a pistol or revolver;
thereafter, the court, Strackbein, J., dismissed in part
and denied in part the defendant’s motion to correct
an illegal sentence, and the defendant appealed to this
court. Affirmed.
Evan J. Holmes, self-represented, the appellant
(defendant).
Kathryn W. Bare, senior assistant state’s attorney,
with whom, on the brief, was Paul J. Narducci, state’s
attorney, for the appellee (state).
Opinion
FLYNN, J. The defendant,1 Evan Jaron Holmes,
appeals from the judgment of the trial court dismissing
in part and denying in part his motion to correct an
illegal sentence. On appeal, the defendant claims that
the court improperly determined (1) that it lacked sub-
ject matter jurisdiction over his claim that the charging
document listed multiple homicide offenses in violation
of his federal constitutional right against double jeop-
ardy and (2) that the sentencing court properly vacated
the manslaughter conviction and sentenced him on the
felony murder conviction. We conclude that the court
properly dismissed in part and denied in part the defen-
dant’s motion to correct an illegal sentence and affirm
its judgment.
The following factual scenario, which the jury reason-
ably could have found, is gleaned from the opinion of
this court in the defendant’s direct appeal affirming the
judgment of conviction. See State v. Holmes, 176 Conn.
App. 156, 169 A.3d 264 (2017), aff’d, 334 Conn. 202, 221
A.3d 407 (2019). At 4 a.m. on November 12, 2011, the
defendant and another man forced entry into an apart-
ment occupied by Todd Silva, with whom the defendant
had a fight previously, and the victim, Jorge Rosa. Id.,
159–60. The defendant fired ten shots into the victim’s
body, who died within a few minutes due to his wounds.
Id., 160.
The jury found the defendant not guilty of murder in
violation of General Statutes § 53a-54a (a), and guilty
of the lesser included offense of manslaughter in the
first degree with a firearm in violation of General Stat-
utes §§ 53a-55 (a) (1) and 53a-55a. The jury also found
the defendant guilty of felony murder in violation of
General Statutes § 53a-54c, home invasion in violation
of General Statutes § 53a-100aa (a) (2), conspiracy to
commit home invasion in violation of General Statutes
§§ 53a-48 (a) and 53a-100aa, and burglary in the first
degree in violation of General Statutes § 53a-101 (a)
(1). The defendant elected to be tried by the court,
Jongbloed, J., on a separate charge of criminal posses-
sion of a pistol or revolver in violation of General Stat-
utes § 53a-217 and was found guilty. At the defendant’s
December 3, 2013 sentencing hearing, the court vacated
the defendant’s convictions for manslaughter and bur-
glary on double jeopardy grounds and sentenced him
to a total effective sentence of seventy years of incarcer-
ation.2
On August 26, 2019, the self-represented defendant
filed his third motion to correct an illegal sentence
pursuant to Practice Book § 43-22,3 which is the subject
of this appeal.4 In his memorandum of law in support
of the motion, the defendant argued that the trial court
violated the protection of the federal constitution against
double jeopardy when it (1) ‘‘simultaneously subjected
and prosecuted the [defendant] for a slew of ‘mutually
exclusive’ homicide offenses, that inevitably prejudiced
the [defendant] in a plethora of ways’’ and (2) convicted
and sentenced him ‘‘for the conduct of ‘murder’ ’’
despite that he was acquitted of murder. The state filed
an objection to the defendant’s motion. After an Octo-
ber 9, 2019 hearing at which the defendant and the state
presented arguments, the motion court, Strackbein, J.,
dismissed in part and denied in part the defendant’s
motion to correct in an October 11, 2019 memorandum
of decision. The court determined that it did not have
subject matter jurisdiction over the defendant’s first
claim, in which he alleged double jeopardy violations
as a result of the trial court’s improperly having permit-
ted him to be charged with multiple homicide offenses
when there had only been one death resulting from a
‘‘single alleged act.’’ In dismissing the claim, the court
reasoned that it attacked the charging document itself
rather than the sentencing proceeding, which is imper-
missible in a motion to correct an illegal sentence. With
respect to the defendant’s second claim, the court rea-
soned that the sentencing court properly vacated his
manslaughter conviction and sentenced him on his fel-
ony murder conviction, and denied that claim. The court
further determined that the defendant’s argument that
his right to be free of double jeopardy was violated
when he was acquitted of murder and found guilty of
felony murder, although incorrect, was not a claim over
which the court had subject matter jurisdiction because
it attacked the underlying conviction and not the sen-
tence itself. This appeal followed.
I
The defendant first challenges the decision of the
motion court that it lacked subject matter jurisdiction
to review his first claim in his motion to correct that the
charging document listed multiple homicide offenses
in violation of his federal constitutional right against
double jeopardy. He argues that ‘‘[r]ather than commit
to a single theory as to the commission of an alleged
offense—to ensure that they are given their one and
only, full and fair, opportunity to convict—prosecutors
can now circumvent the double jeopardy clause and
subject defendants to literally all of the different stat-
utes pertaining to an alleged offense; only to later have
to ‘remedy’ the violation by vacating all of the ‘unlawful’
convictions with the foresight that should the defendant
prevail on a postconviction challenge to the seated con-
viction, the state can simply ‘resurrect’ one of its vio-
lative convictions.’’ The state counters that the court
properly dismissed this claim for lack of subject matter
jurisdiction. We agree with the state.
We begin with our standard of review and relevant
legal principles. ‘‘[J]urisdiction involves the authority
of a court to adjudicate the type of controversy pre-
sented by the action before it.’’ (Internal quotation
marks omitted.) State v. Alexander, 269 Conn. 107, 112,
847 A.2d 970 (2004). ‘‘[B]ecause [a] determination
regarding a trial court’s subject matter jurisdiction is a
question of law, our review is plenary.’’ (Internal quota-
tion marks omitted.) Id.‘‘[I]t is axiomatic 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 . . . .’’ (Internal quotation marks omit-
ted.) State v. Francis, 322 Conn. 247, 259, 140 A.3d 927(2016); see Practice Book § 43-22. ‘‘A motion to correct
an illegal sentence under Practice Book § 43-22 consti-
tutes a narrow exception to the general rule that, once
a defendant’s sentence has begun, the authority of the
sentencing court to modify that sentence terminates.’’
State v. Casiano, 282 Conn. 614, 624, 922 A.2d 1065(2007). ‘‘In order for the court to have jurisdiction over
a motion to correct an illegal sentence after the sen-
tence has been executed, the sentencing proceeding,
and not the trial leading to the conviction, must be the
subject of the attack.’’ State v. Lawrence, 281 Conn.
147, 158, 913 A.2d 428 (2007).
‘‘[A]n illegal sentence is essentially one [that] . . .
exceeds the relevant statutory maximum limits, violates
a defendant’s right against double jeopardy, is ambigu-
ous, or is internally contradictory. . . . In accordance
with this summary, Connecticut courts have considered
four categories of claims pursuant to [Practice Book]
§ 43-22. The first category has addressed whether the
sentence was within the permissible range for the
crimes charged. . . . The second category has consid-
ered violations of the prohibition against double jeop-
ardy. . . . The third category has involved claims per-
taining to the computation of the length of the sentence
and the question of consecutive or concurrent prison
time. . . . The fourth category has involved questions
as to which sentencing statute was applicable.’’ (Inter-
nal quotation marks omitted.) State v. Smith, 338 Conn.
54, 60, 256 A.3d 615 (2021).
It is useful to state what the defendant’s first claim
is not about. He did not claim in his motion to correct
that the fifty-eight years to which he was sentenced for
felony murder exceeds the statutory maximum limit for
felony murder of sixty years, that his total effective
sentence was computed improperly, that the sentence
was ambiguous or internally contradictory or imposed
in any way in an illegal manner, or that he was deprived
of his right to due process during the sentencing hear-
ing, but rather he argued that his right against double
jeopardy was violated because the state charged him
with felony murder despite that he was also charged
with both murder and manslaughter with a firearm. In
his own words, the defendant argued in his motion to
correct that his right to not be subject to double jeop-
ardy was violated when the state charged him with ‘‘a
slew of ‘mutually exclusive’ homicide offenses . . . .’’
Although this claim purportedly pertains to double jeop-
ardy, which can be raised in a motion to correct, the
claim actually attacks the proceedings leading up to
the conviction, namely, the charging document itself,
and not the sentence or sentencing proceeding. Simply
put, our law is clear that motions to correct an illegal
sentence that attack the conviction or the proceedings
leading up to the conviction are not within the trial
court’s jurisdiction on a motion to correct an illegal
sentence. See, e.g., State v. Lawrence, supra, 281 Conn.
158. Because the defendant’s claim does exactly that—
it attacks the proceeding leading up to the underlying
conviction and not the sentence or the sentencing pro-
ceeding—it does not fall within the purview of the cate-
gories of claims permitted to be raised in a motion to
correct an illegal sentence pursuant to Practice Book
§ 43-22. See id., 150. We conclude that the court properly
determined that it lacked subject matter jurisdiction
over the defendant’s first claim in his motion to correct.
The court properly dismissed the claim because where
a court lacks jurisdiction over the motion to correct,
dismissal is proper. See State v. Saunders 132 Conn.
App. 268, 271–72, 50 A.3d 321 (2011), cert. denied, 303
Conn. 924, 34 A.3d 394 (2012).
II
We next turn to the defendant’s second claim, as
clarified at the hearing on his motion to correct, that
his sentence for his felony murder conviction was illegal
in that the sentencing court improperly vacated the
manslaughter in the first degree with a firearm convic-
tion and sentenced him instead to fifty-eight years on
the felony murder conviction. This claim rests on his
argument that ‘‘felony murder is murder’’ and that,
because he was acquitted of murder in violation of
§ 53a-54a (a), he could not be convicted of felony mur-
der in violation of § 53a-54c. He clarified at the hearing
on his motion to correct that ‘‘[m]y argument is not
that you can’t be punished for the same crime’’ but that
the ‘‘second conviction for the same offense’’ was in
error and gave him ‘‘more time’’ than if he had been
sentenced on the manslaughter with a firearm charge
instead. In other words, the defendant challenges on
double jeopardy grounds the action of the sentencing
court in vacating his conviction for manslaughter in the
first degree with a firearm and sentencing him on the
felony murder conviction.
We first observe that the jury reasonably could have
acquitted the defendant of murder in violation of § 53a-
54a because it did not find it proved that he brought
about the death of the victim with the intent to kill him,
but that it could have convicted the defendant of felony
murder because it found he had the intent to commit
the underlying felony, and, in the course of and in fur-
therance of such crime, caused the victim’s death.
To the extent that the defendant’s claim rests on the
notion it somehow violated his right against double
jeopardy for the jury to acquit him of murder and find
him guilty of felony murder, we already have concluded
that the motion court properly determined that it lacked
jurisdiction over this claim.5 This argument attacks the
underlying conviction rather than the sentence or the
sentencing proceeding and, accordingly, is not a claim
that falls within the purview of Practice Book § 43-22.
See State v. Lawrence, supra, 281 Conn. 158.
We next turn to the portion of the defendant’s claim in
which he contends that the sentencing court improperly
vacated his conviction for manslaughter instead of
vacating his conviction for felony murder. We note the
following relevant procedural history. Both the prose-
cutor in this case and the defense counsel told the court
that the charge of manslaughter with a firearm was a
lesser included offense of felony murder. The sentenc-
ing court vacated the conviction of manslaughter in the
first degree with a firearm and sentenced the defendant
on the felony murder conviction. The state has later
correctly conceded that manslaughter in the first degree
with a firearm is not a lesser included offense of felony
murder. In its appellate brief, the state cites State v.
John, 210 Conn. 652, 695, 557 A.2d 93, cert. denied, 493
U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989), and cert.
denied sub nom. Seebeck v. Connecticut, 493 U.S. 824,
110 S. Ct. 84, 107 L. Ed. 2d 50 (1989) (John), as authority
for that proposition. The defendant also argues that the
sentencing court erroneously vacated his conviction of
manslaughter because it was a lesser included offense
of felony murder. We do not conclude that this error
in counsels’ representation to the court affects the out-
come of this appeal because we conclude that the court
properly vacated the manslaughter conviction for rea-
sons that follow.
We begin with our standard of review and relevant
legal principles. ‘‘Ordinarily, 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.’’ (Internal quotation marks omit-
ted.) State v. Bennett, 187 Conn. App. 847, 851, 204 A.3d
49, cert. denied, 331 Conn. 924, 206 A.3d 765 (2019).
However, a double jeopardy claim presents an issue of
law over which our review is plenary. State v. Bozelko,
119 Conn. App. 483, 507, 987 A.2d 1102, cert. denied,
295 Conn. 916, 990 A.2d 867 (2010), cert. denied, 571
U.S. 1215, 134 S. Ct. 1314, 188 L. Ed. 2d 331 (2014).
The double jeopardy clause of the fifth amendment
to the United States constitution, which is applicable
to the states through the due process clause of the
fourteenth amendment, provides in relevant part: ‘‘[N]or
shall any person be subject for the same offense to be
twice put in jeopardy of life or limb . . . .’’ The double
jeopardy clause prohibits not only multiple trials for
the same offense but also multiple punishments for
the same offense. John, supra, 210 Conn. 693. ‘‘Double
jeopardy analysis in the context of a single trial is a
[two step] process. First, the charges must arise out of
the same act or transaction. Second, it must be deter-
mined whether the charged crimes are the same
offense. Multiple punishments are forbidden only if
both conditions are met.’’ (Internal quotation marks
omitted.) Id.In the present case, the first step is satisfied. It is
undisputed that the charges of manslaughter in the first
degree with a firearm and felony murder arose out of
the same act or transaction. We next determine whether
these crimes are separate or the same offenses for pur-
poses of double jeopardy. In so determining, we apply
the rule of statutory construction pursuant to
Blockburger v. United States, 284 U.S. 299, 304, 52 S.
Ct. 180, 76 L. Ed. 306 (1932), to determine whether two
statutes criminalize the same offense, thereby placing
a defendant who is prosecuted under both statutes in
double jeopardy. See State v. Tinsley, Conn. ,
, A.3d (2021). ‘‘The applicable rule is that
where the same act or transaction constitutes a viola-
tion 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, 304. ‘‘Our case law has been con-
sistent and unequivocal that the second step of
Blockburger is a technical one and examines only the
statutes, charging instruments, and bill of particulars
as opposed to the evidence presented at trial.’’ (Internal
quotation marks omitted.) State v. Tinsley, supra, .
The crimes of felony murder and manslaughter in the
first degree with a firearm are separate crimes because
both require proof of elements that the other does not.
See John, supra, 210 Conn. 693–97. Felony murder
requires proof beyond a reasonable doubt of all the
elements of the predicate offense, which in the present
case is burglary,6 and that the victim’s death was caused
in the furtherance of that felony offense. See State v.
Castro, 196 Conn. 421, 428–29, 493 A.2d 223 (1985); see
also General Statutes § 53a-54c.7 ‘‘Our felony murder
statute, § 53a-54c, contains no mens rea requirement
beyond that of an intention to commit the underlying
felony upon which the felony murder charge is predi-
cated.’’ (Internal quotation marks omitted.) State v.
Amado, 42 Conn. App. 348, 358, 680 A.2d 974 (1996).
Unlike felony murder, manslaughter in the first degree
with a firearm does not require proof of a predicate
offense, but requires a mens rea element to the act of
causing the death of the victim. Manslaughter in the
first degree with a firearm requires proof beyond a
reasonable doubt that the defendant, with the specific
intent to cause serious physical injury to another,
causes the death of such person or another person, and
that the defendant used or threatened to use a firearm
in the commission of that crime. See General Statutes
§§ 53a-55a and 53a-55.8
This does not end our inquiry because ‘‘Blockburger
is merely a method for ascertaining the [legislative]
intent to impose separate punishment for multiple
offenses which arise during the course of a single act
or transaction’’ and, therefore, ‘‘is best viewed as a
rebuttable presumption of legislative intent that is over-
come when a contrary [legislative] intent is manifest.’’
(Internal quotation marks omitted.) State v. Mitchell,
195 Conn. App. 543, 553, 227 A.3d 522, cert. denied, 335
Conn. 912, 229 A.3d 118 (2020). The issue of what the
legislature intended was settled by our Supreme Court
in John, supra, 210 Conn. 695. The legislature intended
that felony murder and manslaughter in the first degree,
which are alternative means of committing the same
offense, be treated as a single crime for double jeopardy
purposes. Id. ‘‘[T]he legislature contemplated that only
one punishment would be imposed for a single homi-
cide, even if that homicide involved the violation of
two separate statutory provisions. It follows from this
discussion, therefore, that the imposition of sentences
for both the manslaughter and the felony murder con-
victions, for a single homicide, was contrary to the
intention of the legislature as expressed in the statutes
and as ascertainable from the history of the adoption
of § 53a-54c.’’ Id., 696–97. In sum, felony murder and
manslaughter with a firearm are separate crimes, but
the legislature did not intend that a defendant could be
sentenced for both.
We next turn to whether the court properly vacated
the manslaughter conviction. In State v. Johnson, 137
Conn. App. 733, 752–58, 49 A.3d 1046 (2012), rev’d in
part on other grounds, 316 Conn. 34, 111 A.3d 447(2015), and aff’d, 316 Conn. 45, 111 A.3d 436 (2015),
this court decided, on the basis of the United States
Supreme Court’s decision in Rutledge v. United States,
517 U.S. 292, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996),
that merging what would otherwise be two convictions
is violative of double jeopardy and, therefore, was no
longer permissible as a matter of federal constitutional
law. Our Supreme Court in State v. Polanco, 308 Conn.
242, 245, 61 A.3d 1084 (2013), later ruled as a matter
of state law and as part of its supervisory function that
merging convictions of lesser included offenses was no
longer permissible and that a proper remedy was to
vacate one of the lesser included convictions that would
otherwise constitute double jeopardy, so that sentence
was imposed on only one conviction. Therefore, according
to Polanco, the proper remedy is vacatur.9 Id., 248. In
the present case, the sentencing court vacated the man-
daughter with a firearm conviction. The defendant argues,
however, that the sentencing court acted improperly in
vacating the manslaughter conviction instead of the
felony murder conviction.
According to Polanco, ‘‘when a defendant has been
convicted of greater and lesser included offenses, the
trial court must vacate the conviction for the lesser
offense rather than merging the convictions . . . .’’ Id.,
245. Manslaughter in the first degree with a firearm
is a less serious felony offense than felony murder.
Manslaughter in the first degree with a firearm is a
class B felony; General Statutes § 53a-55a (b); which is
punishable by a term of imprisonment of not less than
five years and not more than forty years; General Stat-
utes § 53a-35a (5); whereas felony murder is a class A
felony punishable by a term of imprisonment of not
less than twenty-five years nor more than life. See State
v. Adams, 308 Conn. 263, 273–74, 63 A.3d 934 (2013);
see also General Statutes § 53a-35a (2). However, man-
slaughter is not a lesser included offense of felony mur-
der because each contains statutory elements that the
other offense does not. In State v. Miranda, 145 Conn.
App. 494, 508, 75 A.3d 742 (2013), aff’d, 317 Conn. 741,
120 A.3d 490 (2015), this court held that ‘‘[d]eciding
which convictions must be vacated when the cumula-
tive convictions reflect alternative means of committing
the same crime, however, is generally in the discretion
of the sentencing court.’’ In John, our Supreme Court,
after determining that subjecting the defendant to pun-
ishment for both his manslaughter and felony murder
convictions violated double jeopardy, remanded the
case to the trial court to vacate the conviction of man-
slaughter while at the same time affirming his convic-
tion of felony murder. State v. John, supra, 210 Conn.
695–97. After affirming the conviction for felony mur-
der, our Supreme Court in John specifically in its
rescript directed the trial court to vacate the manslaugh-
ter conviction. Id., 697. We, therefore, agree with the
state that there is authority for the imposition of a
sentence on the more serious felony murder charge
while vacating the less serious felony of manslaughter.
The sentencing court’s decision to vacate the less seri-
ous felony of manslaughter was proper despite errone-
ous statements of both counsel that manslaughter is a
lesser included offense of felony murder. The court
properly vacated the manslaughter conviction because
vacatur of the less serious homicide offense is proper.
See id., 695.
In the present case, when sentencing the defendant,
the court stated that ‘‘[t]o shoot a person sleeping in
their bed in this way is just about as serious and as
violent as it gets’’ and concluded that ‘‘a very lengthy
sentence of incarceration is appropriate. This type of
violence cannot be tolerated.’’ The defendant has not
demonstrated that the court abused its discretion in
determining that the felony murder conviction controls
and, accordingly, vacating the manslaughter conviction.
Because the sentencing court did not impose multiple
punishments for the single act of causing the death of
the victim, but, rather, properly vacated the less serious
felony of manslaughter in the first degree with a firearm
and sentenced the defendant on the conviction of felony
murder, we conclude that the court did not err in deny-
ing the defendant’s second claim in his motion to cor-
rect an illegal sentence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant was self-represented before the motion court and in
this appeal.
2
The court sentenced the defendant to fifty-eight years of incarceration
for felony murder, twelve years for home invasion to be served consecutively
to the felony murder conviction, and concurrent sentences on conspiracy
to commit home invasion and criminal possession of a firearm.
3
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.’’
4
The defendant’s two prior motions to correct an illegal sentence were
denied.
5
We note, however, that the defendant’s argument that, because felony
murder is classified as a murder pursuant to State v. Adams, 308 Conn. 263,
273–74, 63 A.3d 934 (2013), he cannot be punished for felony murder after
having been acquitted of murder wrenches out of context the holding of
Adams. Adams held that because felony murder is a felony classified as
murder, it is punishable as a class A felony. Id., 273.
6
With respect to the defendant’s second motion to correct, this court in
State v. Holmes, 182 Conn. App. 124, 134–35, 189 A.3d 151, cert. denied, 330
Conn. 913, 193 A.3d 1210 (2018), rejected his claim that the trial court
erroneously denied his motion to correct by finding that his sentence for
felony murder had been based on the predicate offense of burglary, which
had been vacated so as to avoid double jeopardy. This court determined
that, ‘‘[b]ecause the court could have reinstated the defendant’s burglary
conviction, had it later reversed the defendant’s conviction of home invasion
. . . it follows that the court could rely on the vacated burglary conviction
when sentencing the defendant for felony murder.’’ (Citations omitted.) Id.
7General Statutes § 53a-54c provides: ‘‘A person is guilty of murder when,
acting either alone or with one or more persons, such person commits or
attempts to commit robbery, home invasion, burglary, kidnapping, sexual
assault in the first degree, aggravated sexual assault in the first degree,
sexual assault in the third degree, sexual assault in the third degree with a
firearm, escape in the first degree, or escape in the second degree and, in
the course of and in furtherance of such crime or of flight therefrom, such
person, or another participant, if any, causes the death of a person other
than one of the participants, except that in any prosecution under this
section, in which the defendant was not the only participant in the underlying
crime, it shall be an affirmative defense that the defendant: (1) Did not
commit the homicidal act or in any way solicit, request, command, impor-
tune, cause or aid the commission thereof; and (2) was not armed with a
deadly weapon, or any dangerous instrument; and (3) had no reasonable
ground to believe that any other participant was armed with such a weapon
or instrument; and (4) had no reasonable ground to believe that any other
participant intended to engage in conduct likely to result in death or serious
physical injury.’’
8
General Statutes § 53a-55a provides in relevant part: ‘‘(a) A person is
guilty of manslaughter in the first degree with a firearm when he commits
manslaughter in the first degree as provided in section 53a-55, and in the
commission of such offense he uses, or is armed with and threatens the
use of or displays or represents by his words or conduct that he possesses
a pistol, revolver, shotgun, machine gun, rifle or other firearm. No person
shall be found guilty of manslaughter in the first degree and manslaughter
in the first degree with a firearm upon the same transaction but such person
may be charged and prosecuted for both such offenses upon the same
information. . . .’’
General Statutes § 53a-55 provides in relevant part: ‘‘(a) A person is guilty
of manslaughter in the first degree when: (1) With intent to cause serious
physical injury to another person, he causes the death of such person or
of a third person; or (2) with intent to cause the death of another person,
he causes the death of such person or of a third person under circumstances
which do not constitute murder because he committed the proscribed act
or acts under the influence of extreme emotional disturbance, as provided
in subsection (a) of section 53a-54a, except that the fact that homicide was
committed under the influence of extreme emotional disturbance constitutes
a mitigating circumstance reducing murder to manslaughter in the first
degree and need not be proved in any prosecution initiated under this
subsection; or (3) under circumstances evincing an extreme indifference to
human life, he recklessly engages in conduct which creates a grave risk of
death to another person, and thereby causes the death of another person.
. . .’’
9
The defendant also argues that his sentence for felony murder was
impermissible in light of his conviction for manslaughter and contends that,
according to Ball v. United States, 470 U.S. 856, 105 S. Ct. 1668, 84 L. Ed.
2d 740 (1985), ‘‘the second conviction, even if it results in no greater sentence,
is an impermissible punishment.’’ Id., 865. In Ball, the Supreme Court, after
conducting a Blockburger analysis, determined that Congress did not intend
for the defendant to be punished for the conduct of both offenses of receiving
and possessing a firearm where that conduct arose out of a single act, and,
therefore, the proper remedy for a conviction of both counts was for the
court ‘‘to exercise its discretion to vacate one of the underlying convictions.’’
Id., 864. The Supreme Court concluded that ‘‘[t]he second conviction, whose
concomitant sentence is served concurrently, does not evaporate simply
because of the concurrence of the sentence. The separate conviction, apart
from the concurrent sentence, has potential adverse collateral consequences
that may not be ignored. For example, the presence of two convictions on
the record may delay the defendant’s eligibility for parole or result in an
increased sentence under a recidivist statute for a future offense. Moreover,
the second conviction may be used to impeach the defendant’s credibility
and certainly carries the societal stigma accompanying any criminal convic-
tion. . . . Thus, the second conviction, even if it results in no greater sen-
tence, is an impermissible punishment.’’ (Citations omitted; emphasis omit-
ted.) Id., 864–65. In the present case, the sentencing court did exactly that:
it vacated one of two homicide convictions when both the felony murder
and manslaughter convictions arose from a single act.