State v. Abraham ( 2014 )

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STATE OF CONNECTICUT v.
MATTHEW L. ABRAHAM
(AC 35706)
Keller, Prescott and Sullivan, Js.
Argued May 27—officially released September 9, 2014
(Appeal from Superior Court, judicial district of New
Haven, Licari, J. [judgment]; Fasano, J. [motion to
correct illegal sentence].)
Matthew L. Abraham, self-represented, the appel-
lant (defendant).
Toni M. Smith-Rosario, senior assistant state’s attor-
ney, with whom, on the brief, were Michael Dearington,
state’s attorney, and Kevin C. Doyle, senior assistant
state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Matthew L. Abraham,
appeals from the judgment of the trial court dismissing
his motion to correct an illegal sentence. On appeal,
the defendant argues that the court improperly dis-
missed his motion for lack of subject matter jurisdic-
tion. We agree with the defendant’s jurisdictional
argument and reverse the judgment of the trial court
and remand the case for a new hearing on the defen-
dant’s motion.
The following facts and procedural history are rele-
vant to this appeal. In State v. Abraham, 84 Conn. App.
551, 854 A.2d 89, cert. denied, 271 Conn. 938, 861 A.2d
514 (2004), this court set forth the facts that the jury
reasonably could have found from the evidence pre-
sented at the defendant’s criminal trial: ‘‘On March 28,
2001, Marquis Bailey and several of his friends assaulted
the victim, Marcelino Rivera. Bailey took the victim’s
[cell phone]. The victim attempted to retrieve the [cell
phone] from Bailey by telling him that ‘he just wanted
to end it.’ Bailey taunted the victim by using the [cell
phone] in front of him and attempted to leave in a taxi.
The victim opened the door of the taxi and kicked
Bailey in the face. A scuffle ensued. The taxi driver
interceded and separated the two men. When the taxi
drove away, Bailey still possessed the victim’s [cell
phone].
‘‘The following day, the victim and some of his friends
drove to the area of Chapel Park in New Haven. The
victim called Bailey, asking him to return his [cell
phone]. Bailey responded that the victim had to ‘give
him some money’ to get his [cell phone]. The victim
told Bailey that he was ‘gonna get savaged if [he did
not] give the phone back,’ or, in other words, he was
going to ‘beat up’ Bailey. The victim’s friend, Luis
Segarra, told Bailey to ‘come to the park’ and ‘give up
the phone.’ . . . Bailey, the defendant and three other
men went to the park. Before arriving at the park, they
stopped at a residence . . . where the defendant, who
was aware of the previous physical altercations
between the victim and Bailey, retrieved a gun from
the garage. At the park, the victim asked Bailey for his
[cell phone], but Bailey responded that he would have
to pay for its return. A scuffle ensued between Bailey
and Segarra. The victim intervened with a metal base-
ball bat, which he had hidden against the rear bumper
of Segarra’s car. The victim swung the bat at Bailey,
hitting him on either the upper portion of his body or
his head. The defendant pulled out the gun and fired
one shot at the victim. The victim dropped the bat and
began to run. The defendant fired a second shot which
struck the victim and severed an artery in his lung. The
victim bled to death at the scene.’’ Id., 552–53.
In the first part of the information, the defendant was
charged with murder in violation of General Statutes
§ 53a-54a and criminal possession of a pistol or revolver
in violation of General Statutes § 53a-217c. He also was
notified in the second part of the information, part B,
that the state intended to seek an enhancement of his
sentence, pursuant to General Statutes § 53-202k,1 if he
were to be convicted of the commission of a class A, B
or C felony with a firearm. On August 5, 2002, following a
jury trial, the defendant was convicted of the lesser
included offense of manslaughter in the first degree
with a firearm, in violation of General Statutes § 53a-
55a (a),2 a class B felony, and criminal possession of a
pistol or revolver.
After the jury found the defendant guilty of these
charges, the defendant’s trial counsel, Attorney Thomas
Conroy, advised the criminal trial court that he ‘‘would
stipulate that the elements of the part B [information]
have been proven. There’s no point in submitting them
to a jury . . . just as a matter of law.’’ The court, Licari,
J., then addressed the defendant’s counsel: ‘‘I think that
we . . . spoke about this before, and my understand-
ing, at this point, based on those verdicts, that you
are in agreement, Mr. Conroy, that without any further
inquiries of the jury as required by [State v. Velasco,
253 Conn. 210, 751 A.2d 800 (2000)],3 that the conviction
of manslaughter in the first degree—intentional man-
slaughter with a firearm satisfies all the elements of
the part B information as a matter of law, and therefore
that no further inquiry of the jury is correct; am I correct
in that statement, sir?’’ (Footnote added.) Defense coun-
sel responded, ‘‘Yes, Your Honor,’’ and the court then
stated, ‘‘All right. And therefore, the court will make a
finding of guilty under the part B [information] as well.’’
The court sentenced the defendant to a total effective
term of forty years of incarceration, suspended after
thirty years, with five years of probation. The defen-
dant’s sentence included a consecutive five year
enhancement, pursuant to § 53-202k, that was based on
his conviction of manslaughter in the first degree with
a firearm. This court affirmed the judgment of convic-
tion on appeal; State v. Abraham, supra, 84 Conn. App.
552; and our Supreme Court denied the defendant’s
petition for certification to appeal. State v. Abraham,
271 Conn. 938, 861 A.2d 514 (2004). The defendant also
filed a petition for a writ of habeas corpus, alleging
ineffective assistance of counsel, which was denied by
the habeas court and dismissed by this court on appeal.
See Abraham v. Commissioner of Correction, 118
Conn. App. 901, 982 A.2d 657 (2009), cert. denied, 294
Conn. 925, 985 A.2d 1061 (2010). The defendant raised
no issue regarding his sentence enhancement under
§ 53-202k in either his direct appeal or his habeas
petition.
On December 2, 2011, the defendant, pursuant to
Practice Book § 43-22, filed a ‘‘Motion to Correct an
Illegal Sentence or Other Illegal Disposition,’’ raising
two grounds. First, he claimed that the imposition of
the sentence enhancement under § 53-202k was illegal
because the jury was never asked to find the statutory
elements justifying an enhancement prior to the court’s
applying the enhancement to his sentence. Second, the
defendant argued that he had been sentenced illegally
to twice the number of years permitted under § 53-202k.
On May 9, 2012, the trial court, Fasano, J., held a
hearing on the defendant’s motion. The court noted
that a public defender had conducted a review of the
defendant’s motion under State v. Casiano, 282 Conn.
614, 627–28, 922 A.2d 1065 (2007), and concluded that
the motion had no merit. Consequently, the court per-
mitted the withdrawal of a special assistant public
defender, Joseph E. Lopez, who had filed an appearance
for the defendant for the limited purpose of conducting
the Casiano review. The defendant then proceeded to
represent himself.4
On May 10, 2012,5 the court filed a written memoran-
dum of decision. The court first indicated that, at the
hearing, the defendant had expressly withdrawn the
second claim in his motion, which was that the length
of his sentence enhancement exceeded that permitted
under § 53-202k. With regard to the defendant’s first
claim, which was that he was entitled to a jury finding
on the part B information before his sentence could be
enhanced under § 53-202k, the court decided that it
lacked jurisdiction over what it concluded was ‘‘a claim
of alleged trial error involving the failure of the jury to
find facts in connection with the enhancement statute’’
and dismissed the defendant’s motion.6 This appeal
followed.
I
First, we address the claim raised by the defendant
on appeal that the court erroneously dismissed the
motion to correct an illegal sentence for lack of subject
matter jurisdiction. The issue of whether a defendant’s
claim may be brought by way of a motion to correct
an illegal sentence, pursuant to Practice Book § 43-22,
involves a determination of the trial court’s subject
matter jurisdiction and, as such, presents a question of
law over which our review is plenary. See State v. Kos-
lik, 116 Conn. App. 693, 697, 977 A.2d 275, cert. denied,
293 Conn. 930, 980 A.2d 916 (2009).
‘‘Jurisdiction involves the power in a court to hear
and determine the cause of action presented to it and
its source is the constitutional and statutory provisions
by which it is created. . . . Article fifth, § 1 of the Con-
necticut constitution proclaims that [t]he powers and
jurisdiction of the courts shall be defined by law, and
General Statutes § 51-164s provides that [t]he superior
court shall be the sole court of original jurisdiction for
all causes of actions, except such actions over which
the courts of probate have original jurisdiction, as pro-
vided by statute. . . . The Superior Court is a constitu-
tional court of general jurisdiction. . . . In the absence
of statutory or constitutional provisions, the limits of
its jurisdiction are delineated by the common law.’’
(Citations omitted; internal quotation marks omitted.)
State v. Lawrence, 281 Conn. 147, 153, 913 A.2d 428
(2007).
Practice Book § 43-22, which establishes the proce-
dure for correcting an illegal sentence, 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 rules do not ordinarily define subject
matter jurisdiction. General Statutes § 51-14 (a) autho-
rizes the judges of the Superior Court to promulgate
rules regulating pleading, practice and procedure in
judicial proceedings . . . . Such rules shall not
abridge, enlarge or modify any substantive right nor
the jurisdiction of any of the courts. . . . Because the
judiciary cannot confer jurisdiction on itself through
its own rule-making power, § 43-22 is limited by the
common-law rule that a trial court may not modify a
sentence if the sentence was valid and its execution
has begun. . . . Therefore, for the trial court to have
jurisdiction to consider the defendant’s claim of an ille-
gal sentence, the claim must fall into one of the catego-
ries of claims that, under the common law, the court
has jurisdiction to review.’’ (Citations omitted; internal
quotation marks omitted.) State v. Lawrence, supra,
281 Conn. 155. Practice Book § 43-22 has been held to
be ‘‘consistent with the broader common-law meaning
of illegality, permitting correction of both illegal senten-
ces and sentences imposed in an illegal manner.’’ State
v. Parker, 295 Conn. 825, 837, 992 A.2d 1103 (2010);
State v. Smith, 150 Conn. App. 623, 635, 92 A.3d 975
(2014). ‘‘[I]n determining whether a court has subject
matter jurisdiction, every presumption favoring juris-
diction should be indulged.’’ (Internal quotation marks
omitted.) State v. Smith, supra, 634.
The categories previously recognized under the com-
mon law were summarized by this court in State v.
McNellis, 15 Conn. App. 416, 443–44, 546 A.2d 292, cert.
denied, 209 Conn. 809, 548 A.2d 441 (1988). We
explained that ‘‘[a]n illegal sentence is essentially one
which either exceeds the relevant statutory maximum
limits, violates a defendant’s right against double jeop-
ardy, is ambiguous, or is inherently contradictory.’’
(Internal quotation marks omitted.) Id. ‘‘Accordingly,
if a defendant’s claim falls within one of these four
categories the trial court has jurisdiction to modify a
sentence after it has commenced.’’ (Emphasis added.)
State v. Koslik, supra, 116 Conn. App. 698–99. ‘‘In order
for the court to have jurisdiction over a motion to cor-
rect an illegal sentence after the sentence has been
executed, the sentencing proceeding, and not the trial
leading to the conviction, must be the subject of the
attack.’’ (Emphasis added.) State v. Lawrence, supra,
281 Conn. 158.7
The need to draw a distinction between what occurs
during the sentencing proceeding and what occurs dur-
ing the trial leading to the conviction, in determining
the court’s jurisdiction over a motion to correct an
illegal sentence, was discussed by this court in State
v. Henderson, 130 Conn. App. 435, 24 A.3d 35 (2011),
appeals dismissed, 308 Conn. 702, 66 A.3d 847 (2013)
(certification improvidently granted). Despite the fact
that jury instructions are delivered during the trial, and
not in the context of sentencing, in that case, this court
held that a trial court has jurisdiction to consider a
defendant’s claim that a sentence enhancement was
imposed in an illegal manner because the jury was not
instructed to make one of the requisite findings under
another enhancement statute, the persistent felony
offender law, General Statutes § 53a-40. Id., 446. Citing
State v. Parker, supra, 295 Conn. 839–40, and State v.
Pierce, 129 Conn. App. 516, 522, 21 A.3d 877, cert.
denied, 302 Conn. 915, 27 A.3d 368 (2011), this court
in Henderson indicated that the enumerated categories
of illegal sentences subject to consideration under Prac-
tice Book § 43-22 ‘‘would not encompass rights or pro-
cedures subsequently recognized as mandated by
federal due process. . . . Therefore, the examples
cited in McNellis are not exhaustive and the parameters
of an invalid sentence will evolve.’’ (Internal quotation
marks omitted.) State v. Henderson, supra, 441. The
defendant in Henderson challenged the imposition of
an illegal sentence, claiming that ‘‘he could not be sen-
tenced to a term of imprisonment authorized by the
next more serious degree of felony [under § 53a-40]
unless the jury, and not the sentencing court, made
the required statutory findings. He maintain[ed] that
because this did not occur, his sentence exceeded the
permissible statutory maximum and therefore was ille-
gal.’’ Id., 446. We agreed with the defendant that ‘‘such
a claim falls within the trial court’s jurisdiction and
properly was raised by a motion pursuant to Practice
Book § 43-22.’’ Id. In reaching this conclusion, we deter-
mined that a challenge to a court’s finding, rather than
to a jury’s finding, of a fact that increased the prescribed
range of penalties to which the defendant was exposed,
in light of Apprendi v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and State v. Bell,
283 Conn. 748, 931 A.2d 198 (2007), was appropriately
the subject of a motion to correct an illegal sentence.8 Id.
‘‘In Apprendi, the United States Supreme Court pre-
sented the issue as ‘whether the Due Process Clause
of the Fourteenth Amendment requires that a factual
determination authorizing an increase in the maximum
prison sentence for an offense from 10 to 20 years be
made by a jury on the basis of proof beyond a reasonable
doubt.’ . . . The court held that [o]ther than the fact
of a prior conviction,9 any fact that increases the penalty
for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a rea-
sonable doubt. . . . [I]t is unconstitutional for a legis-
lature to remove from the jury the assessment of facts
that increase the prescribed range of penalties to which
a criminal defendant is exposed. . . .
‘‘In State v. Bell, supra, 283 Conn. 784–85, our
Supreme Court was presented with the question of
whether a trial court’s decision to enhance a sentence
as a persistent dangerous felony offender . . . under
§ 53a-40 (h) violated the precepts of Apprendi . . . and
its progeny. The court concluded that a determination
by the trial court, rather than the jury, that an extended
period of incarceration would best serve the public
interest violated the defendant’s constitutional rights
under Apprendi, and, therefore, a new sentencing pro-
ceeding was needed.’’ (Citations omitted; footnote
added; internal quotation marks omitted.) State v. Hen-
derson, supra, 130 Conn. App. 441–42. In Bell, our
Supreme Court also stated: ‘‘[I]n those cases in which
the defendant chooses to waive his right to a jury trial
under § 53a-40, the court may continue to make the
requisite finding. Additionally, the court properly may
impose an enhanced sentence if the defendant admits
to the fact that extended incarceration is in the public
interest.’’ State v. Bell, supra, 812.
This court recently reviewed a defendant’s claim that
the trial court improperly denied his motion to correct
an illegal sentence. The defendant argued, in part, that
he was entitled to a new trial and to a new jury determi-
nation as to the applicability of § 53-202k. The trial court
exercised jurisdiction and denied the motion, and its
decision was affirmed on the merits. See State v. Vivo,
147 Conn. App. 414, 417–18, 81 A.3d 1241 (2013).
Although Vivo does not cite Henderson, we raised no
concerns in Vivo regarding the trial court’s jurisdiction
to decide the defendant’s challenge to the imposition
of a sentence enhancement under § 53-202k.
Also, recently, in State v. Kokkinakos, 143 Conn. App.
76, 66 A.3d 936 (2013), overruled in part on other
grounds by State v. Henderson, 312 Conn. 585, 599 n.13,
A.3d (2014), this court exercised jurisdiction
and considered, on appeal, the merits of a defendant’s
motion to correct an illegal sentence on the ground
that a finding as to a requisite element of § 53a-40—
the enhancement statute in effect at the time that he
committed the underlying offenses—that the extended
incarceration of the defendant best served the public
interest, was never made by either the court or the jury,
and thus the enhancement of his sentence was illegal.
Id., 81–82. The trial court had considered and denied
the motion on its merits. Id., 79. On appeal, the state
argued that the defendant, by pleading guilty to a part
B information, implicitly acknowledged every relevant
element of § 53a-40, including the fact that an enhanced
sentence best served the public interest.10 Id., 82. We
noted, ‘‘The state essentially argues that by virtue of
the defendant’s guilty plea on the part B information,
he admitted to a finding that an enhanced sentence
would be in the public interest . . . . Our Supreme
Court in State v. Bell, supra, 283 Conn. 812, contem-
plated cases in which the defendant would plead guilty
to being a persistent offender under § 53a-40. The court
stated: ‘Of course, in those cases in which the defendant
chooses to waive his right to a jury trial under § 53a-
40, the court may continue to make the requisite finding.
Additionally, the court properly may impose an
enhanced sentence if the defendant admits to the fact
that extended incarceration is in the public interest.’ ’’
State v. Kokkinakos, supra, 86–87. After reviewing the
court’s canvass of the defendant’s guilty plea, which
pertained to the defendant’s waiver of a jury trial as to
§ 53a-40, we found the canvass inadequate because,
although he admitted that he did not want a jury trial
on the enhancement issue, he never expressly admitted
that an enhancement of his sentence would best serve
the public interest. Id., 85–87. We then concluded,
‘‘Under our case law . . . there are two ways in which
the public interest factor can be satisfied in the context
of a guilty plea. The court can make an express finding,
or the defendant can expressly agree to the determina-
tion.’’11 Id., 87. Accordingly, we found that the court
erred in denying the defendant’s motion to correct an
illegal sentence. Id., 87–88.
In the present case, the defendant claims that the
trial court improperly dismissed his motion to correct
an illegal sentence for lack of subject matter jurisdic-
tion. The state concedes that the court improperly con-
cluded that it lacked jurisdiction. On the basis of this
court’s decisions in State v. Henderson, supra, 130
Conn. App. 435, State v. Vivo, supra, 147 Conn. App.
414, and State v. Kokkinakos, supra, 143 Conn. App.
76, we agree with the defendant that the trial court
had jurisdiction pursuant to Practice Book § 43-22 to
consider the sentencing court’s decision to impose a
sentence enhancement, under § 53-202k, without first
obtaining the necessary jury finding. We further con-
clude that this jurisdiction encompasses a claim that
the defendant did not properly waive his right to a jury
determination of the violation, resulting in a sentence
imposed in an illegal manner that exceeds the statutory
limit for the underlying crimes of which he was found
guilty by the jury. See State v. Henderson, supra, 443.
Accordingly, the defendant’s claim that the sentencing
court’s imposition of the five year enhancement under
§ 53-202k was illegal absent the requisite jury findings
was cognizable by the court, and the court improperly
dismissed the motion to correct an illegal sentence for
lack of subject matter jurisdiction.
II
Having concluded that the trial court improperly dis-
missed the defendant’s motion, we now consider the
proper remedy. The defendant seeks reversal of the
court’s decision and a remand for a new hearing on his
motion. The state requests that we consider the merits
of the defendant’s motion without the necessity of a
remand for a new hearing by either adopting, as an
alternate ground for affirmance, the trial court’s finding
that the parties had conceded the elements of the
enhancement statute at the end of the criminal trial, or
by conducting the harmless error analysis employed in
State v. Velasco, supra, 253 Conn. 230. We conclude that
the defendant’s suggested remedy is more appropriate
under the circumstances of this case.
After concluding that it lacked subject matter juris-
diction, the court nonetheless opined on the merits
of the defendant’s motion and rejected his claim of
entitlement to a jury finding under § 53-202k. The court
stated: ‘‘[T]he parties at trial conceded the elements of
the enhancement statute and agreed that the issue need
not be submitted to the jury under the circumstances.’’
Because jurisdiction implicates a court’s ability to act,
the court should have considered the merits of the
defendant’s claim only if its preliminary determina-
tion—as to whether the claim fell within one of the
four common-law categories that permit a trial court
to modify a criminal judgment after the sentence has
been executed—was resolved in favor of an exercise
of its jurisdiction. See State v. Koslik, supra, 116 Conn.
App. 699. Once the court found that it lacked subject
matter jurisdiction, any ruling on the merits of the
defendant’s motion was improper. See id.
We note that the state did not comply with Practice
Book § 63-4 (a) (1).12 If the record, however, was ade-
quate for review of the court’s ruling, or if our determi-
nation as to the propriety of this ruling was solely
dependent on our resolution of an issue of law, we
could, in the interest of judicial economy, consider the
ruling at a party’s request or sua sponte after determin-
ing that our review would not prejudice the defendant
and the appellee was entitled as a matter of law to a
ruling in its favor. See State v. Henderson, supra, 312
Conn. 596; State v. Martin M., 143 Conn. App. 140,
151–52, 70 A.3d 135, cert. denied, 309 Conn. 919, 70
A.3d 41 (2013). For the following reasons, we are unable
to resolve the defendant’s motion on its merits because
it raises the issue of whether the defendant properly
waived his right to have the jury determine whether
the state had proven beyond a reasonable doubt the
elements necessary for sentence enhancement pursu-
ant to § 53-202k, and we do not have an adequate record
on which to evaluate this issue.
On appeal, the state argues that under the harmless
error analysis employed in State v. Velasco, supra, 253
Conn. 230–31, there is no question that a rational jury
would have found that the state had proven the
enhancement elements beyond a reasonable doubt if
the requisite factual findings relied on by the state in
this case, a class B felony conviction and use of a fire-
arm, had been submitted to the jury for determination.
In Velasco, our Supreme Court determined that the trial
court’s failure to allow the jury to make the factual
determinations pursuant to § 53-202k is subject to harm-
less error analysis. Id., 230. The court set forth the
standard by which harmless error in omitted jury
instructions should be measured: ‘‘A jury instruction
that improperly omits an essential element from the
charge constitutes harmless error if a reviewing court
concludes beyond a reasonable doubt that the omitted
element was uncontested and supported by overwhelm-
ing evidence, such that the jury verdict would have
been the same absent the error. . . . Neder v. United
States, 527 U.S. 1, 17, 119 S. Ct. 1827, 144 L. Ed. 2d 35
(1999).’’ (Emphasis in original; internal quotation marks
omitted.) State v. Velasco, supra, 232–33. In Velasco, the
court concluded that the evidence that the defendant
utilized a firearm during the commission of the felony
was neither overwhelming nor uncontested. Id., 234.
Accordingly, the trial court’s error was determined to be
harmful and our Supreme Court vacated the enhanced
penalty under § 53a-40.13 Id., 249.
Subsequently, in State v. Montgomery, 254 Conn. 694,
735, 759 A.2d 995 (2000), the court also found that a
jury, under § 53-202k, is required to make the determina-
tion of whether a defendant used a firearm in the com-
mission of a class A, B or C felony and that the failure
by the court to submit the issue to the jury was subject
to a harmless error determination. ‘‘[A] jury instruction
that improperly omits an essential element from the
charge constitutes harmless error if a reviewing court
concludes beyond a reasonable doubt that the omitted
element was uncontested and supported by overwhelm-
ing evidence, such that the jury verdict would have
been the same absent the error . . . .’’ (Emphasis omit-
ted; internal quotation marks omitted.) Id., 738. Because
the defendant in Montgomery did not contest the fact
that the victim’s fatal wounds were inflicted by a fire-
arm, and because the jury found beyond a reasonable
doubt that the defendant was guilty of the victim’s mur-
der, a class A felony, the court found that the trial court’s
failure to instruct the jury regarding the elements of
§ 53-202k was harmless error. Id.
Accordingly, the omission of an essential element in
a jury instruction is considered a nonstructural error
and, thus, may be reviewed under a harmless error
analysis. See Neder v. United States, supra, 527 U.S. 1,
8–15; State v. Velasco, supra, 253 Conn. 232; State v.
Beall, 61 Conn. App. 430, 435 n.6, 769 A.2d 708, cert.
denied, 255 Conn. 954, 772 A.2d 152 (2001). A review
of Connecticut appellate cases in which harmless error
analysis has been performed by the reviewing court as
a result of a trial court’s failure to submit the sentence
enhancement elements to the jury reveals that the ques-
tion has been presented as the trial court’s failure to
instruct the jury properly,14 and not the trial court’s
failure to canvass a defendant properly on a waiver of
the right to have the jury decide the enhancement fac-
tors. Here, by contrast, the defendant claims that the
court relied on defense counsel’s statement that the
matter need not go to the jury and entered a finding
of guilty on the enhancement violation without ever
speaking to the defendant personally and obtaining an
affirmative waiver of his right to a jury trial.15
Our Supreme Court has recognized that in pleading
guilty to a charge of being a persistent offender, the
accused ‘‘waives several constitutional rights,’’ includ-
ing the right to a jury determination of ultimate facts
that trigger the enhanced sentence. State v. Wright,
207 Conn. 276, 287, 542 A.2d 299 (1988). ‘‘[I]n criminal
matters involving defendants . . . subject to an
enhanced sentence . . . a trial judge may properly
determine the defendant’s prior conviction status only
after a knowing and voluntary waiver of the right to a
jury trial by the defendant.’’ (Citation omitted.) State
v. Velasco, supra, 253 Conn. 223–24; see also State v.
Michael A., 297 Conn. 808, 819–21, 1 A.3d 46 (2010)
(defendant who pleads guilty to sentence enhancement
under persistent felony offender statute, § 53a-40, nec-
essarily waives right to have jury make requisite factual
findings thereunder); State v. Groomes, 232 Conn. 455,
475–76, 656 A.2d 646 (1995) (judge determines prior
conviction under persistent felony offender law only
after defendant knowingly and voluntarily waives right
to jury trial); State v. Moore, 141 Conn. App. 814, 823,
64 A.3d 787 (when defendant voluntarily pleads guilty
to sentence enhancement provision, defendant waives
any right to jury trial thereon), cert. denied, 309 Conn.
908, 68 A.3d 663 (2013); State v. Reynolds, 126 Conn.
App. 291, 294, 11 A.3d 198 (2011) (defendant’s guilty
plea on persistent serious felony offender charge set
forth in part B of information necessarily and validly
waived right to jury determination as to guilt under part
B information); State v. Smalls, 78 Conn. App. 535, 536
n.1, 827 A.2d 784 (defendant waived right to required
jury trial under § 53-202k), cert. denied, 266 Conn. 931,
837 A.2d 806 (2003).
The procedure employed by the trial court in the
present case, which removed the sentence enhance-
ment determination from the jury, does not fall into
the category of instructional error, but rather into the
category of whether the defendant’s right to a jury trial
was waived properly. If the trial court that found the
defendant guilty of the § 53-202k violation relied solely
on defense counsel’s concession that the enhancement
elements of § 53-202k were proven beyond a reasonable
doubt and entered a guilty finding without taking a plea
from the defendant and properly canvassing him, then
a harmless error analysis would be inappropriate. A
claim that a waiver of a jury trial is invalid, unlike a
claim of an omitted or erroneous jury instruction, is a
claim of structural error that is per se prejudicial and
is not subject to harmless error analysis. State v. Gore,
288 Conn. 770, 790 n.20, 955 A.2d 1 (2008); see State v.
Lopez, 271 Conn. 724, 739, 859 A.2d 898 (2004).
In State v. Gore, supra, 288 Conn. 770, our Supreme
Court, employing its supervisory authority, adopted a
rule that ‘‘in the future, when a defendant, personally
or through counsel, indicates that he wishes to waive
a jury trial in favor of a court trial in the absence of a
signed written waiver by the defendant, the trial court
should engage in a brief canvass of the defendant in
order to ascertain that his or her personal waiver of
the fundamental right to a jury trial is made knowingly,
intelligently and voluntarily. . . . This canvass need
not be overly detailed or extensive, but it should be
sufficient to allow the trial court to obtain assurance
that the defendant: (1) understand that he or she person-
ally has the right to a jury trial; (2) understands that
he or she possesses the authority to give up or waive
the right to a jury trial; and (3) voluntarily has chosen
to waive the right to a jury trial and to elect a court
trial.’’ (Footnotes omitted.) Id., 787–89.
Our task, in reviewing a waiver of the right to a jury
trial on appeal, is to ‘‘determine whether the totality of
the record furnishes sufficient assurance of a constitu-
tionally valid waiver of the right to a jury trial. . . .
Our inquiry is dependent upon the particular facts and
circumstances surrounding [each] case, including the
background, experience, and conduct of the accused.
. . . In examining the record, moreover, we will indulge
every reasonable presumption against waiver of funda-
mental constitutional rights and . . . [will] not pre-
sume acquiescence in the loss of fundamental rights.
. . . In addition, a waiver of a fundamental constitu-
tional right is not to be presumed from a silent record.’’
(Citations omitted; internal quotation marks omitted.)
Id., 776–77. The defendant must give some affirmative
indication of the waiver on the record. Counsel may
not make that decision as a matter of trial strategy, and
a defendant’s passive silence in the case while defense
counsel waives the defendant’s right to a jury trial is
not sufficient to demonstrate a knowing, intelligent and
voluntary waiver. Id., 777–78. ‘‘A defendant’s personal
assertion of a waiver of the right to a jury trial is not
conclusive evidence that the waiver was made know-
ingly, intelligently and voluntarily, but its absence is a
fatal blow to the validity of a waiver.’’ Id., 782. ‘‘If this
condition precedent had been satisfied, namely, if there
had been an affirmative indication of a jury trial waiver
on the record from the defendant personally, we would
conduct a totality of the circumstances analysis to
determine whether the defendant’s personal waiver of
a jury trial was made knowingly, intelligently and volun-
tarily.’’ Id., 782 n.12.
Although this court, on appeal, has the power, at any
time, to correct a sentence that is illegal,16 we may
decline to do so when the record is not adequate for
review. ‘‘When presented with an inadequate record,
we are precluded from reviewing the claim on appeal.
. . . It is not an appropriate function of this court, when
presented with an inadequate record, to speculate . . .
or to presume error from a silent record.’’ (Citation
omitted; internal quotation marks omitted.) Clelford v.
Bristol, 150 Conn. App. 229, 236, 90 A.2d 998 (2014);
see also State v. Henderson, supra, 312 Conn. 595–96
(record adequate for consideration of alternate ground
for affirmance of denial of motion to correct illegal
sentence).
The following additional facts are relevant to our
discussion of the adequacy of the record. The only tran-
scripts provided in the record of this appeal are of
the hearing on the motion to correct, the criminal trial
sentencing proceeding and a partial transcript of the
last day of trial, from the point in time at which the
jury returned its verdict of guilty of manslaughter in
the first degree with a firearm and criminal possession
of a pistol or revolver. In the partial transcript that
contains the colloquy between the criminal trial court
and defense counsel—which the state claims consti-
tutes a concession, as a matter of law, that a jury finding
‘‘would be superfluous,’’ and does not constitute a
waiver by the defendant that the elements of the part
B enhancement provision had been proven—the court
merely referred to a prior discussion on the issue. In
addition, the defendant, in his principal brief, in contra-
dictory fashion, claims that the concession by his
defense counsel was insufficient to constitute a valid
waiver on his part, but also indicates that he is not
challenging the ‘‘canvassing.’’ The reference by the
court to a previous discussion regarding the enhance-
ment statute and the defendant’s reference to a canvass
may be an indication that a waiver of the defendant’s
right to have the jury determine the elements of § 53-
202k occurred at some other point in the criminal trial
for which we have no record, but we decline to specu-
late. As such, we cannot determine, on the basis of
the limited record before us, whether the defendant
personally waived, in writing or on the record, as
required under State v. Gore, supra, 288 Conn. 788–89,
his right to a jury trial under § 53-202k. Under these
circumstances, we must remand the case with direction
to the trial court to determine whether the imposition
of the enhanced sentence was appropriate.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
General Statutes § 53-202k provides: ‘‘Any person who commits any class
A, B or C felony and in the commission of such felony uses, or is armed
with and threatens the use of, or displays, or represents by his words or
conduct that he possesses any firearm, as defined in section 53a-3, except
an assault weapon, as defined in section 53-202a, shall be imprisoned for a
term of five years, which shall not be suspended or reduced and shall
be in addition and consecutive to any term of imprisonment imposed for
conviction of such felony.’’
This statute is a sentence enhancement provision rather than a separate
offense. State v. Dash, 242 Conn. 143, 146, 698 A.2d 297 (1997); see also
State v. Davis, 255 Conn. 782, 792, 772 A.2d 559 (2001).
Although a separate part B information is important to avoid any prejudice
in cases in which the state seeks enhancement under a persistent offender
statute, because such cases require proof of potentially prejudicial prior
convictions (see Practice Book § 36-14; State v. Ferrone, 96 Conn. 160, 173,
113 A. 452 [1921]), our Supreme Court rejected a similar need for a separate
part B information in conjunction with prosecutions under § 53-202k in State
v. Velasco, 253 Conn. 210, 225 n.13, 751 A.2d 800 (2000). In the present case,
the state initially filed a single, three count information that included the § 53-
202k violation as the third count. Subsequently, the state filed an amended
information in two parts, and alleged the § 53-202k violation in a part B infor-
mation.
2
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. . . .
‘‘(b) Manslaughter in the first degree with a firearm is a class B felony
. . . .’’
General Statutes § 53a-55 (a) provides in relevant part: ‘‘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 . . . .’’
3
In State v. Velasco, supra, 253 Conn. 218–27, our Supreme Court deter-
mined that although § 53-202k constitutes a sentence enhancement provi-
sion, and not an independent criminal offense, the predicate facts for
imposition of an enhanced sentence must nevertheless be found by a jury
before a judge can sentence a defendant to a greater term of years than
otherwise applicable by the underlying offense alone. Id., 224. The court
also held, however, that if the trial court commits an instructional error
and fails to submit the issue to a jury, that error is subject to harmless error
analysis. Therefore, if a reviewing court concludes beyond a reasonable
doubt that the omitted element was uncontested and supported by over-
whelming evidence, such that the jury verdict would have been the same
absent the error, no reversal is necessary. Id., 232–33.
4
On appeal, the defendant raises no issue with respect to the court’s
granting permission to the special public defender to withdraw as defen-
dant’s counsel.
5
The court’s memorandum of decision is misdated 2011, rather than 2012.
6
The court relied on State v. Koslik, 116 Conn. App. 693, 698–99, 977 A.2d
275, cert. denied, 293 Conn. 930, 980 A.2d 916 (2009), which sets forth the
limited types of claims that can be raised in a motion to correct an illegal
sentence over which a trial court has jurisdiction. On July 22, 2013, after
the defendant had filed his appeal, he filed a motion for articulation
requesting that the court articulate its jurisdictional decision and explain
its reliance on Koslik. The state objected to this motion, arguing that ‘‘[t]he
trial court’s purpose in citing to Koslik was clear—it simply set forth the
boilerplate jurisdictional rules surrounding a trial court’s ability to act on
a Practice Book § 43-22 motion to correct an illegal sentence.’’ On August
2, 2013, the trial court denied the motion for articulation and sustained the
state’s objection. The defendant did not file a motion for review.
7
‘‘In Lawrence, the defendant’s claim presupposed an invalid conviction;
therefore, it was outside of the scope of the exceptions to the general rule
regarding a court’s lack of jurisdiction after a sentence has begun.’’ State
v. Koslik, supra, 116 Conn. App. 699.
8
The Henderson court concluded that the defendant’s claim that he was
deprived of a jury determination was the proper subject of a motion to
correct an illegal sentence despite the state’s claim that the defendant’s use
of the motion was improper because the defendant was challenging the
validity and sufficiency of his plea canvass. State v. Henderson, supra, 130
Conn. App. 443. The defendant had pleaded guilty under the doctrine of
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970),
to the part B informations that charged him with being a persistent dangerous
felony offender and a persistent serious felony offender. State v. Henderson,
supra, 437–38. The defendant expressly had disavowed any challenge to the
canvass following his Alford plea. Id., 443. His sole claim was that a subse-
quent change in the law as a result of the decisions in Apprendi and Bell
resulted in an illegal sentence because the court, and not the jury, had
determined that an enhancement would best serve the public interest. Id.,
443-45. We held that the defendant was not entitled to have the rules in
those cases applied retroactively to his case. Id., 448.
9
Cf. State v. Myers, 290 Conn. 278, 963 A.2d 11 (2009).
10
The defendant in Kokkinakos claimed that a public interest finding was
necessary to enhance his sentence because an amendment enacted by the
General Assembly that eliminated the public interest finding from § 53a-40;
see Public Acts, Spec. Sess., January, 2008, No. 08-1, § 6; was passed after
he had committed the underlying offenses. State v. Kokkinakos, supra, 143
Conn. App. 81–82.
11
In State v. Henderson, supra, 312 Conn. 599 n.13, our Supreme Court
partially overruled the holding in Kokkinakos, ruling: ‘‘To the extent that
the Appellate Court’s holding in State v. Kokkinakos, supra, 143 Conn. App.
87, that the trial court must make an ‘express finding’ means that the trial
court must actually consider a defendant’s history and character and the
nature and circumstances of his criminal conduct before imposing an
enhanced sentence, and cannot assume that the defendant agreed to an
enhanced sentence by pleading guilty, the state does not challenge that
holding in the present case. To the extent that the Appellate Court concluded
that the trial court must talismanically recite the relevant statutory language,
however, any such holding is hereby overruled. We emphasize, however,
that it would be preferable for the trial court to recite the statutory language
in order to remove all doubt as to whether it made the finding.’’
12
Practice Book § 63-4 (a) (1) provides in relevant part: ‘‘If any appellee
wishes to . . . (A) present for review alternate grounds upon which the
judgment may be affirmed . . . that appellee shall file a preliminary state-
ment of issues within twenty days from the filing of the appellant’s prelimi-
nary statement of issues . . . .’’
The alternate grounds the state raised are contained in a preliminary
statement of issues that appears to be generic in nature, intended to be
broadly applicable to all types of criminal appeals, but nowhere do its
generalized provisions include an alternate ground for affirmance similar
to the grounds raised in the state’s brief.
13
The court in Velasco, citing State v. Dash, 242 Conn. 143, 150 n.8, 698
A.2d 297 (1997), noted that § 53-202k is markedly similar to our persistent
felony offender statute, § 53a-40, as both statutes specifically constitute
sentence enhancement provisions, the application of which turns on the
existence of a predicate fact that does not itself reflect an element of the
underlying offense. State v. Velasco, supra, 253 Conn. 225. Therefore, the
procedural safeguards with respect to the identity of the fact finder under
§ 53-202k are analogous in scope to those that apply to factual determinations
made pursuant to § 53a-40. Id.
14
See State v. Davis, 255 Conn. 782, 795–96, 772 A.2d 559 (2001) (absence
of § 53-202k instruction harmless beyond reasonable doubt where defen-
dant’s first degree robbery and burglary conviction, class B felonies, neces-
sarily encompassed jury findings that defendant committed class B felonies
and that defendant or another participant in crime was armed with deadly
weapon, and evidence was uncontested and overwhelming that defendant
or another participant used firearm); State v. Nieves, 89 Conn. App. 410,
421–25, 873 A.2d 1066 (absence of § 53-202k instruction harmless beyond
reasonable doubt where defendant’s robbery conviction encompassed jury
finding that defendant or accomplice used or threatened use of firearm),
cert. denied, 275 Conn. 906, 882 A.2d 679 (2005); State v. Rivera, 74 Conn.
App. 129, 152–55, 810 A.2d 824 (2002) (trial court committed harmless error
by failing to submit to jury question of sentence enhancement because it
was clear beyond reasonable doubt that defendant’s conviction of assault
in first degree, class B felony, necessarily included finding that defendant
had used firearm); State v. Roman, 67 Conn. App. 194, 207–11, 786 A.2d
1147 (2001) (absence of § 53-202k instruction harmless beyond reasonable
doubt when jury, by finding defendant guilty of class A and class B felonies
under information expressly alleging that defendant committed crimes with
use of firearm, necessarily found elements of enhancement statute proven,
and evidence of use of firearm uncontroverted and overwhelming), rev’d in
part on other grounds, 262 Conn. 718, 817 A.2d 100 (2003); State v. Cooper,
65 Conn. App. 551, 575–77, 783 A.2d 100 (absence of § 53-202k instruction
harmless beyond reasonable doubt where defendant’s robbery conviction
encompassed jury finding that defendant displayed or represented that he
possessed firearm, and evidence defendant used firearm overwhelming and
uncontroverted), cert. denied, 258 Conn. 940, 786 A.2d 427 (2001); State v.
Beall, supra, 61 Conn. App. 434–36 (failure to instruct jury under § 53-202k
harmless error because evidence uncontroverted and overwhelming that
defendant committed assault in first degree, class B felony, with firearm).
15
Practice Book § 42-2 provides: ‘‘When an information is divided into
two parts under [Practice Book §] 36-14, on a finding of guilty on the first
part of the information, a plea shall be taken and, if necessary, election
made on the second part and the trial thereon proceeded with. If the defen-
dant elects a jury trial on the second part of the information, such trial may
be had to the same or to another jury as the judicial authority may direct.’’
16
See, e.g., State v. Daniels, 207 Conn. 374, 387, 542 A.2d 306, after remand
for articulation, 209 Conn. 225, 550 A.2d 885 (1988), cert. denied, 489 U.S.
1069, 109 S. Ct. 1239, 103 L. Ed. 2d 817 (1989); State v. Koslik, supra, 116
Conn. App. 697–98; State v. Mungroo, 104 Conn. App. 668, 684, 935 A.2d
229 (2007), cert. denied, 285 Conn. 908, 942 A.2d 415 (2008).