State v. Jason B. , 176 Conn. App. 236 ( 2017 )

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STATE OF CONNECTICUT v. JASON B.*
(AC 39287)
DiPentima, C. J., and Keller and Mullins, Js.
Syllabus
The defendant, who had been convicted of the crimes of sexual assault in
the first degree and unlawful restraint in the first degree, appealed to
this court from the judgment of the trial court dismissing his motion to
correct an illegal sentence. The trial court determined that the defendant
had failed to present a colorable claim that the sentence had been
imposed in an illegal manner and, therefore, the trial court lacked juris-
diction over the motion. On appeal, the defendant claimed that the trial
court had jurisdiction because his motion fell within the applicable
rule of practice (§ 43-22) in that it alleged that the sentencing court
improperly ordered his sentences to run consecutively on the basis of
inaccurate information or considerations not contained in the record.
Held that the trial court properly dismissed the motion to correct an
illegal sentence, the defendant having failed to raise even the possibility
that the sentencing court relied on information that was inaccurate or
outside the record and, therefore, the court did not have jurisdiction to
entertain the defendant’s motion; although the sentencing court com-
mented on the seriousness of the defendant’s actions in driving the
victim around his car for what appeared to be a period longer than was
necessary to commit the sexual assault on the victim and that, had the
defendant been charged with and convicted of kidnapping rather than
unlawful restraint, he would have received a greater sentence, those
comments were based on the facts of the case and merely served as a
rhetorical admonition by the sentencing court regarding the seriousness
of the defendant’s actions and his failure to take responsibility for them
and did not constitute facts that reasonably could be viewed as informa-
tion that was inaccurate or outside the record.
Argued May 31—officially released September 5, 2017
Procedural History
Substitute information charging the defendant with
the crimes of sexual assault in the first degree and
unlawful restraint in the first degree, brought to the
Superior Court in the judicial district of Fairfield and
tried to the jury before Rodriguez, J.; verdict and judg-
ment of guilty, from which the defendant appealed to
this court, which affirmed the judgment of the trial
court; thereafter, the court, Devlin, J., dismissed the
defendant’s motion to correct an illegal sentence, and
the defendant appealed to this court. Affirmed.
Jason B., self-represented, the appellant (defendant).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Adam E. Mattei, assistant state’s attorney,
for the appellee (state).
Opinion
MULLINS, J. The defendant, Jason B., appeals from
the judgment of the trial court dismissing the defen-
dant’s motion to correct an illegal sentence.1 The court
dismissed the motion on the ground that the defendant
failed to present a colorable claim that his sentence
had been imposed in an illegal manner. The defendant
claims this was error. We affirm the judgment of the
trial court.
The following facts, which were set forth by this court
in the defendant’s direct appeal from his judgment of
conviction of sexual assault in the first degree in viola-
tion of General Statutes § 53a-70 (a) (1) and unlawful
restraint in the first degree in violation of General Stat-
utes § 53a-95 (a), inform our review. ‘‘The victim . . .
and the defendant were married in September, 1999,
and had a daughter . . . . [The victim] filed for divorce
in October, 2005, and their divorce became final in
February, 2006.
‘‘On February 21, 2006, the defendant repeatedly con-
tacted [the victim] and requested to meet with her. They
. . . eventually met at a Borders bookstore at about
8:30 p.m. They later walked to a nearby Boston Market
for dinner, where the defendant asked [the victim] to
have sex with him. She refused, and he asked her to
join him in his car for a cigarette. She got into the
car, where the defendant renewed his requests for sex,
which [the victim] continued to turn down. She tried
to get out of the car at least once, but the defendant
pulled her back in by the arm. The defendant then
informed [the victim] that he had withdrawn all of the
money from their joint bank account, approximately
$6000, which was all of [the victim’s] savings. He also
told her that he was going to make her life very difficult,
that he was going to take [their daughter], that she
would never see [her] again and that he was going to
hurt everyone that she knew. He told [the victim] that
if she slept with him, he would give back the money
and leave her alone. [The victim] again tried to get out
of the car, but the defendant pulled her back in.
‘‘The defendant then drove off with [the victim] in
the car, and [the victim] began screaming out the win-
dow; at some point, he had locked all of the doors. He
eventually stopped the car in a dark, wooded area with
no houses nearby. He climbed from the driver’s side to
the passenger’s side of the car, where [the victim] was
sitting, and began touching her between her legs. [The
victim] testified that she tried to fight him off but that
she was unable to because he had her left arm pinned
behind her head and he was stronger than she was. At
one point, he also took her [cell phone] from her and
threw it in the backseat. He also repeatedly put his
hand over her mouth to the point where she could not
breathe, and he stopped only when she told him she
would not fight him anymore.
‘‘The defendant eventually climbed off of [the victim],
started the car and told her he would bring her home.
Instead, while he was driving, he unzipped his pants,
removed his penis and ordered [the victim] to perform
fellatio. She began to do so but began to feel sick and
. . . asked the defendant to stop the car. He stopped
the car, and she opened the car door and vomited on
the side of the road. The defendant started the car again
and continued to drive; [the victim] did not know where
she was or what town she was in. [The victim] asked
to use a bathroom, and the defendant stopped the car
again and she got out to urinate. [The victim] returned
to the car and the defendant instructed her to lie down
as he reclined the seat. The defendant then began touch-
ing [the victim’s] vagina, asking her if she liked it. She
told him she wanted him to stop, and he said: ‘No you
don’t. He took off his belt, flexed it and ordered her
into the backseat of the car. They both got into the
backseat, and the defendant penetrated the victim’s
vagina and anus with his penis. After he stopped, the
defendant returned to the driver’s seat of the car and
drove away. He eventually returned to the Boston Mar-
ket, where [the victim] had left her car, and dropped
her off. [The victim] got into her car and drove home.
[The victim’s] mother, who was at home, called 911,
and, after [the victim] was taken to a hospital, she told
the emergency room physician that her former husband
had forced her to have sex with him.’’ (Footnote omit-
ted.) State v. Jason B., 111 Conn. App. 359, 360–62, 958
A.2d 1266 (2008), cert. denied, 290 Conn. 904, 962 A.2d
794 (2009).
After a jury trial, the court, in accordance with the
jury’s verdict, rendered a judgment of conviction of
sexual assault in the first degree and unlawful restraint
in the first degree. At the sentencing hearing, the state
requested that the court impose lengthy sentences and
that the court order the sentences to run consecutively.
Defense counsel argued in relevant part: ‘‘I disagree
with the consecutive sentences. However, Your Honor,
that would be up to Your Honor . . . . I just think that
consecutive sentences are . . . inappropriate at this
point . . . and I think that there would be no need to
do that in light of the charges.’’ (Emphasis added.)
Addressing the defendant, the sentencing court
stated: ‘‘Mr. [B.], I believe that your [former] wife is
rightfully afraid of you, and it is clear to me that you
are a person who shows no respect for your [former]
wife, nor for your daughter based upon your conduct
during the months [that] preceded the sexual assault
. . . . You also appear to have a significant problem
with self-control and a compulsion for the control of
others.
‘‘The unlawful restraint, in my opinion, given the
facts of this case, was a lesser included offense of kid-
napping in the first or second degree, which would
expose you to a greater sentence. And, when your law-
yer . . . makes note of his objection to the state’s
request in light of the charges for that reason, because
kidnapping in the first or second degree would have
exposed you to a greater period of incarceration for
that conduct when you were driving around, lost in the
dark, against her wishes in your truck, and forcing her
to engage in sexual contact with you . . . .
‘‘You refuse to take responsibility for your conduct,
as far as the court is concerned. You attempted to make
this a case of consent. It’s never been about consent.
This . . . incident with your [former] wife was sexual
assault.’’ (Emphasis added.)
As a result, on the sexual assault count, the court
sentenced the defendant to twenty years incarceration,
execution suspended after ten years, with thirty-five
years of probation and lifetime sex offender registra-
tion. On the unlawful restraint count, the court sen-
tenced the defendant to five years incarceration. The
court ordered that each count would run consecutive
with each other, for a total effective sentence of twenty-
five years incarceration, execution suspended after fif-
teen years, with thirty-five years of probation and life-
time sex offender registration. The judgment of
conviction was affirmed on direct appeal. State v. Jason
B., supra, 111 Conn. App. 368. The record reveals that,
since his direct appeal, the defendant has filed various
petitions for a writ of habeas corpus, appeals from
judgments denying his petitions, a motion to correct
an illegal sentence, an appeal from the denial of that
motion, and a request for sentence review.
On February 2, 2016, nearly ten years after the court
sentenced the defendant on the underlying charges, the
defendant filed a second motion to correct an illegal
sentence. In that motion, he claimed that his sentence
had been imposed in an illegal manner because the
court sentenced him to consecutive, rather than concur-
rent, terms of imprisonment and did so for improper
reasons. He argued that the sentencing court mentioned
a charge of kidnapping, which was outside of the record
and not something with which he had been charged,
and that the court ordered his sentence to run consecu-
tively on that basis. The defendant requested that the
trial court grant his motion to correct and order that
his sentences run concurrently. The trial court dis-
missed the defendant’s motion for lack of subject matter
jurisdiction on the ground that the defendant had not
presented a colorable claim that his sentence had been
imposed in an illegal manner. This appeal followed.
On appeal, the defendant claims that the court
improperly held that it did not have jurisdiction to con-
sider the defendant’s motion. He argues that his motion
sufficiently alleged that the sentencing court relied on
inaccurate information and information that was not
part of the record when it sentenced him to consecutive
prison terms, and, therefore, it imposed his sentence
in an illegal manner. Specifically, the defendant cites
to the sentencing court’s statements that the charge of
‘‘unlawful restraint . . . was a lesser included offense
of kidnapping in the first or second degree, which would
expose you to a greater sentence’’ and that ‘‘kidnapping
in the first or second degree would have exposed you
to a greater period of incarceration . . . .’’
The state argues that, although the defendant is cor-
rect in stating that a sentencing court’s reliance on
inaccurate information at sentencing can form a proper
basis for a motion to correct an illegal sentence, ‘‘in
this case, the sentencing court’s comments to which
the defendant points as evidence of the court’s reliance
on inaccurate and outside the record information, on
their face, refute his claim.’’ (Emphasis in original.)
Therefore, the state argues, ‘‘the defendant has failed
to raise a colorable claim that his sentence was imposed
in an illegal manner, and the trial court properly deter-
mined that it did not have jurisdiction to entertain his
motion.’’ We agree with the state.
We first set forth our standard of review. Because
‘‘the defendant’s [claim] pertain[s] to the subject matter
jurisdiction of the trial court, [it] . . . present[s] a ques-
tion of law subject to the plenary standard of review.
. . .
‘‘The Superior Court is a constitutional court of gen-
eral jurisdiction. In the absence of statutory or constitu-
tional provisions, the limits of its jurisdiction are
delineated by the common law. . . . It is well estab-
lished that under the common law a trial court has
the discretionary power to modify or vacate a criminal
judgment before the sentence has been executed. . . .
This is so because the court loses jurisdiction over the
case when the defendant is committed to the custody
of the commissioner of correction and begins serving
the sentence. . . . Because it is well established that
the jurisdiction of the trial court terminates once a
defendant has been sentenced, a trial court may no
longer take any action affecting a defendant’s sentence
unless it expressly has been authorized to act. . . .
‘‘[Practice Book] § 43-22 embodies a common-law
exception that permits the trial court to correct an
illegal sentence or other illegal disposition. . . . Thus,
if the defendant cannot demonstrate that his motion
to correct falls within the purview of § 43-22, the court
lacks jurisdiction to entertain it. . . . [I]n order for
the court to have jurisdiction over a motion to correct
an illegal sentence after the sentence has been exe-
cuted, the sentencing proceeding [itself] . . . must be
the subject of the attack.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) State v.
Robles, 169 Conn. App. 127, 131–32, 150 A.3d 687 (2016),
cert. denied, 324 Conn. 906, 152 A.3d 544 (2017).
‘‘[A]n illegal sentence is essentially one [that] either
exceeds the relevant statutory maximum limits, violates
a defendant’s right against double jeopardy, is ambigu-
ous, or is internally contradictory. By contrast . . .
[s]entences imposed in an illegal manner have been
defined as being within the relevant statutory limits but
. . . imposed in a way [that] violates [a] defendant’s
right . . . to be addressed personally at sentencing and
to speak in mitigation of punishment . . . or his right
to be sentenced by a judge relying on accurate informa-
tion or considerations solely in the record, or his right
that the government keep its plea agreement promises
. . . . These definitions are not exhaustive, however,
and the parameters of an invalid sentence will evolve
. . . as additional rights and procedures affecting sen-
tencing are subsequently recognized under state and
federal law.’’ (Citations omitted; emphasis added; inter-
nal quotation marks omitted.) State v. Cruz, 155 Conn.
App. 644, 649, 110 A.3d 527 (2015); see State v. Parker,
295 Conn. 825, 839–40, 922 A.2d 1103 (2010).
Recently, our Supreme Court explained, in
addressing the trial court’s dismissal on jurisdictional
grounds of a motion to correct an illegal sentence that
‘‘[t]he subject matter jurisdiction requirement may not
be waived by any party, and also may be raised by a
party, or by the court sua sponte, at any stage of the
proceedings, including on appeal. . . . State v. Taylor,
91 Conn. App. 788, 791, 882 A.2d 682, cert. denied, 276
Conn. 928, 889 A.2d 819 (2005). At issue is whether the
defendant has raised a colorable claim within the scope
of Practice Book § 43-22 that would, if the merits of
the claim were reached and decided in the defendant’s
favor, require correction of a sentence. Id., 793. In the
absence of a colorable claim requiring correction, the
trial court has no jurisdiction to modify the sentence.
See id., 793–94.’’ (Emphasis added; internal quotation
marks omitted.) State v. Delgado, 323 Conn. 801, 810,
151 A.3d 345 (2016).
Therefore, as made clear by our Supreme Court in
Delgado, for the trial court to have jurisdiction over
a defendant’s motion to correct a sentence that was
imposed in an illegal manner, the defendant must put
forth a colorable claim that his sentence, in fact, was
imposed in an illegal manner. A colorable claim is ‘‘[a]
claim that is legitimate and that may reasonably be
asserted, given the facts presented and the current law
(or a reasonable and logical extension or modification
of the current law).’’ Black’s Law Dictionary (10th Ed.
2014), p. 302. For jurisdictional purposes, to establish
a colorable claim, a party must demonstrate that there
is a possibility, rather than a certainty, that a factual
basis necessary to establish jurisdiction exists; see State
v. Patel, 174 Conn. App. 298, 310–11, A.3d (2017);
such as, in the present context, that the sentencing court
relied on inaccurate information or considerations that
were outside of the record.
In the present case, the defendant claims that the
court improperly dismissed his motion to correct a sen-
tence that was imposed in an illegal manner. He argues
that the motion clearly fell within Practice Book § 43-
22, in that he properly alleged that the sentencing court
violated his right to be sentenced by a judge relying on
accurate information or considerations solely in the
record. We disagree and conclude that the defendant’s
motion, on its face, does not fall within the limited
circumstances under which the trial court has jurisdic-
tion to correct a sentence imposed in an illegal manner.
See State v. Delgado, supra, 323 Conn. 816 (if defendant
fails to allege claim that, if proven, would require resen-
tencing, sentencing court has no jurisdiction to consider
motion to correct). In other words, because the court’s
statements cannot reasonably be viewed as relying on
inaccurate facts or facts outside the record, the defen-
dant’s claim does not raise even the possibility that the
sentencing court relied on inaccurate or extrarecord
facts. Thus, his claims fell outside the purview of a
sentence imposed in an illegal manner. Accordingly, we
conclude that the trial court properly concluded that
it did not have subject matter jurisdiction to entertain
the motion.
Here, the record establishes that the sentencing court
commented on the seriousness of the defendant’s
actions and the court gave its opinion that the defendant
refused to take responsibility for his actions. As set
forth previously in this opinion, the sentencing court
commented specifically to the defendant that, on the
basis of the facts of this case, the unlawful restraint
conviction was separate and apart from the sexual
assault conviction, that the facts supporting the unlaw-
ful restraint conviction demonstrated that it was akin
to a lesser included offense to a kidnapping charge,
and that, had the defendant been charged with and
convicted of kidnapping, he would have received a
greater sentence.
Those comments were based on the facts of the case,
however, not on anything outside the record. Also, given
the facts of this case, where the defendant detained the
victim in the car for what appeared to be a longer period
than necessary to commit the sexual assault, the court’s
comments were not inaccurate. See Farmer v. Commis-
sioner of Correction, 165 Conn. App. 455, 459, 139 A.3d
767 (‘‘[A] defendant may be convicted of both kidnap-
ping and another substantive crime if, at any time prior
to, during or after the commission of that other crime,
the victim is moved or confined in a way that had
independent criminal significance, that is, the victim
was restrained to an extent exceeding that which was
necessary to accomplish or complete the other crime.
Whether the movement or confinement of the victim
is merely incidental to and necessary for another crime
will depend on the particular facts and circumstances
of each case.’’ [Internal quotation marks omitted.]), cert.
denied, 323 Conn. 905, 105 A.3d 685 (2016). Accordingly,
we agree with the trial court’s assessment that the sen-
tencing court merely was using a rhetorical device to
try to convey to the defendant the seriousness of his
actions and the fact that, had additional charges been
brought by the state, based solely on the evidence pre-
sented at the defendant’s trial, the defendant could have
been convicted of more serious offenses2 and also sub-
ject to greater penalties.
Thus, the defendant’s allegation that the sentencing
court imposed his sentence in an illegal manner by
referencing and relying on information that was not in
the record simply has no basis in fact. Indeed, a review
of the statements to which the defendant specifically
cites reveal nothing more than a rhetorical admonition
by the sentencing court regarding the facts of the case,
the opinion of the judge regarding the seriousness of
the defendant’s criminal actions, and the defendant’s
failure to take responsibility for those actions. The
defendant did not allege anything that reasonably could
be viewed, on its face, as inaccurate or outside of the
record. Thus, we agree with the trial court that it was
without jurisdiction to consider the defendant’s motion
to correct an illegal sentence.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
The court, in the alternative, also held that the motion failed on the
merits. The defendant claims this, too, was error. We conclude that because
the court dismissed the case for want of jurisdiction, it had no authority to
also rule on the merits of the motion. See Fullerton v. Administrator,
Unemployment Compensation Act, 280 Conn. 745, 754, 911 A.2d 736 (2006)
(‘‘[a] court lacks discretion to consider the merits of a case over which it
is without jurisdiction’’ [internal quotation marks omitted]); State v. Bozelko,
154 Conn. App. 750, 766, 108 A.3d 262 (2015) (‘‘[o]nce the [trial] court
determined that it lacked subject matter jurisdiction, it had no authority to
decide the case’’). ‘‘Once it becomes clear that the trial court lacked subject
matter jurisdiction . . . any further discussion of the merits is pure dicta.
. . . Lacking jurisdiction, the court should not deliver an advisory opinion
on matters entirely beyond [its] power to adjudicate. . . . Such an opinion
is not a judgment and is not binding on anyone.’’ (Citations omitted; internal
quotation marks omitted.) Shockley v. Okeke, 92 Conn. App. 76, 85, 882 A.2d
1244 (2005), appeal dismissed, 280 Conn. 777, 912 A.2d 991 (2007). Here,
because the Superior Court determined that it lacked jurisdiction, it was
improper for the court to address the merits of the motion. Its alternative
conclusions in that regard, therefore, are mere dicta, lacking the force and
effect of a judgment, and are void.
2
Following its attempts to explain to the defendant that the facts of his
case were serious, the sentencing court then proceeded to sentence the
defendant to a permissible term of imprisonment on the specific crimes for
which he had been charged and convicted. Then, in accordance with General
Statutes § 53a-37, the court ordered those sentences to run consecutively.
General Statutes § 53a-37 provides: ‘‘When multiple sentences of imprison-
ment are imposed on a person at the same time, or when a person who is
subject to any undischarged term of imprisonment imposed at a previous
time by a court of this state is sentenced to an additional term of imprison-
ment, the sentence or sentences imposed by the court shall run either
concurrently or consecutively with respect to each other and to the undis-
charged term or terms in such manner as the court directs at the time of
sentence. The court shall state whether the respective maxima and minima
shall run concurrently or consecutively with respect to each other, and
shall state in conclusion the effective sentence imposed. When a person is
sentenced for two or more counts each constituting a separate offense, the
court may order that the term of imprisonment for the second and subse-
quent counts be for a fixed number of years each. The court in such cases
shall not set any minimum term of imprisonment except under the first
count, and the fixed number of years imposed for the second and subsequent
counts shall be added to the maximum term imposed by the court on the
first count.’’