State v. Syms ( 2020 )

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STATE OF CONNECTICUT v. MARLON SYMS
(AC 42346)
Keller, Prescott and Devlin, Js.
Syllabus
The defendant, who had been convicted on pleas of guilty to robbery in
the first degree and conspiracy to commit robbery in the first degree,
appealed to this court from the trial court’s denial of his motion to
correct an illegal sentence. The defendant claimed that the agreement
with the state under which he pleaded guilty required that his sentence
run concurrently with a sentence he was then serving on an unrelated
conviction. The plea agreement provided, inter alia, that, if the court
imposed a period of incarceration of less than twenty years, it could
impose a period of special parole, provided that the period of incarcera-
tion and the period of special parole did not cumulatively exceed twenty
years. Defense counsel requested that the sentence the court would
impose run concurrently with the sentence the defendant was then
serving. The court sentenced the defendant to concurrent terms of
fourteen years of incarceration on the robbery charges followed by six
years of special parole and ordered that the sentence run consecutively
to the sentence the defendant was currently serving. On appeal, the
defendant claimed that his rights to due process were violated because
the court did not advise him that his sentence could run consecutively
to the sentence he was then serving, and because his sentence violated
the double jeopardy clause of the United States constitution. Held:
1. The defendant’s unpreserved claim that the trial court accepted his guilty
pleas without advising him that his sentence could run consecutively
to the sentence he was then serving could not be reviewed; review under
State v. Golding (213 Conn. 233) was unwarranted because the defendant
could file another motion to correct an illegal sentence, and this court’s
decision to decline review would not result in any hardship or injustice
to the defendant.
2. The defendant could not prevail on his claim that the combination of
the sentence of incarceration followed by special parole violated the
prohibition against double jeopardy; the defendant’s sentence was
expressly authorized by statute (§ 53a-28 (b) (9)), and the combined
period of incarceration and special parole did not exceed the maximum
statutory sentence for the crimes of which the defendant was convicted.
Argued June 15—officially released September 15, 2020
Procedural History
Information charging the defendant with the crimes
of robbery in the first degree and conspiracy to commit
robbery in the first degree, brought to the Superior
Court in the judicial district of Hartford, where the
defendant was presented to the court, Gold, J., on pleas
of guilty; judgment of guilty in accordance with the
pleas; thereafter, the court, Baldini, J., denied the
defendant’s motion to correct an illegal sentence, and
the defendant appealed to this court. Affirmed.
David B. Bachman, assigned counsel, for the appel-
lant (defendant).
Brett R. Aiello, deputy assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Richard R. Rubino, senior assistant state’s
attorney, for the appellee (state).
Opinion
DEVLIN, J. The defendant, Marlon Syms, appeals
from the judgment of the trial court denying his motion
to correct an illegal sentence. On appeal, the defendant
claims that (1) his sentencing violated his rights to due
process under both the United States and Connecticut
constitutions because the sentencing court did not
ensure that his guilty pleas were knowing and voluntary,
and (2) his sentence, consisting of a term of incarcera-
tion followed by a period of special parole, violated the
federal constitutional protection against double jeop-
ardy. We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to the defendant’s claims on appeal. On March 19,
2009, in the Hartford judicial district, the defendant
entered guilty pleas under the Alford doctrine1 to one
count of robbery in the first degree in violation of Gen-
eral Statutes § 53a-134 (a) (4), and one count of conspir-
acy to commit robbery in the first degree in violation
of General Statutes §§ 53a-48 and 53a-134 (a) (4). The
plea agreement provided for a sentence of incarceration
ranging between ten and twenty years, subject to the
discretion of the sentencing court. The plea agreement
further provided that, if the court imposed a period of
incarceration of less than twenty years, it could impose
a period of special parole provided that the period of
incarceration and special parole did not cumulatively
exceed twenty years. The court, Gold, J., canvassed the
defendant on his pleas, accepted them, and entered
findings of guilty on both charges.
The defendant’s sentencing hearing occurred on June
24, 2009, in Hartford. During the hearing, defense coun-
sel informed the court that the defendant was then
serving a two year sentence imposed in July, 2008, in
an unrelated case, in the judicial district of Tolland at
Rockville. Defense counsel requested that the Hartford
sentence run concurrently with the Rockville sentence.
The court imposed a sentence of fourteen years of incar-
ceration followed by six years of special parole on each
of the counts to run concurrently with each other. The
court further ordered that the Hartford sentence would
run consecutively to the Rockville sentence that the
defendant was already serving.
The defendant never moved to withdraw his plea, and
he did not file a direct appeal challenging the validity
of his plea. In 2010, he filed a petition for a writ of
habeas corpus, asserting that his attorney had rendered
ineffective assistance because he did not advise him of
the risk that his robbery sentence in Hartford could run
consecutively to the sentence he was serving that was
imposed in Rockville. The habeas court denied the peti-
tion, ruling that the defendant had not proved prejudice
under the standard set forth in Hill v. Lockhart, 474
U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985),2
because, even if his attorney had advised him of the
risk, he still would have pleaded guilty to the charges.
This court affirmed that decision. Syms v. Commis-
sioner of Correction, 153 Conn. App. 904, 100 A.3d 473,
cert. denied, 315 Conn. 905, 104 A.3d 758 (2014).
On March 8, 2018, the defendant filed an amended
motion to correct an illegal sentence, arguing that the
plea agreement required his sentence in this matter to
run concurrently with his previous two year sentence.3
On June 8, 2018, the trial court, Baldini, J., held a
hearing on the motion. At the hearing, the defendant
also argued that, by imposing a sentence that included
both a period of incarceration and special parole, the
trial court had violated the constitutional prohibition
against double jeopardy. The trial court denied the
defendant’s motion. The court found that whether the
Hartford sentence would run concurrently or consecu-
tively to the Rockville sentence was not addressed in the
plea agreement. The court also ruled that the sentence
imposed was expressly authorized by General Statutes
§ 53a-28 (b) (9) and did not violate the double jeopardy
clause or exceed the maximum statutory penalties. This
appeal followed.
The following principles govern our review of a trial
court’s decision on a motion to correct an illegal sen-
tence. ‘‘It is axiomatic that, in a criminal case, the juris-
diction of the sentencing court terminates once a defen-
dant’s sentence has begun and a court may no longer
take any action affecting a sentence unless it expressly
has been authorized to act. . . . Providing such autho-
rization to act, Practice Book § 43-22 states: 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.’’ (Internal quotation marks
omitted.) State v. Starks, 121 Conn. App. 581, 585–86,
997 A.2d 546 (2010). ‘‘An illegal sentence is essentially
one which either exceeds the relevant statutory maxi-
mum limits, violates a defendant’s right against double
jeopardy, is ambiguous, or is inherently contradictory.’’
(Internal quotation marks omitted.) Id., 586. With these
principles in mind, we address the defendant’s claims
in turn.
I
The defendant first claims that the court violated his
due process rights by accepting his guilty pleas without
advising him that his sentence could run consecutively
to the unrelated sentence he was then serving. As a
result of this omission in the plea canvass, the defendant
asserts, his guilty pleas were not knowing and volun-
tary. It is undisputed that this claim was not raised in
the trial court. Because the defendant did not raise this
due process claim in his motion to correct an illegal
sentence, it is unpreserved and he seeks review under
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
(1989), as modified by In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1188 (2015). We conclude that the claim
is unreviewable.
In State v. Starks, supra, 121 Conn. App. 592, this
court held that Golding review of an unpreserved con-
stitutional claim is unavailable in an appeal from the
denial of a motion to correct an illegal sentence filed
pursuant to Practice Book § 43-22. In Starks, this court
reasoned that the extraordinary review of the claim
under Golding was unwarranted in an appeal from a
motion to correct an illegal sentence because the defen-
dant may seek and obtain any appropriate redress
before the trial court by filing another motion to correct.
Id. Accordingly, as in Starks, because declining to
review the unpreserved constitutional claim in this case
would not result in any hardship or injustice to the
defendant, he is not entitled to Golding review of that
claim. See id.4
II
The defendant also claims that the court improperly
concluded that his total effective sentence did not vio-
late the constitutional prohibition against double jeop-
ardy. The state contends that Connecticut law expressly
authorizes the sentence imposed on the defendant and,
as such, does not violate the prohibition against double
jeopardy. We agree with the state.
‘‘A double jeopardy claim . . . presents a question
of law, over which our review is plenary.’’ (Internal
quotation marks omitted.) State v. Bennett, 187 Conn.
App. 847, 851, 204 A.3d 49, cert. denied, 331 Conn.
924, 206 A.3d 765 (2019). The double jeopardy clause
prohibits multiple punishments for the same offense in
a single trial. State v. Hearl, 182 Conn. App. 237, 271, 190
A.3d 42, cert. denied, 330 Conn. 903, 192 A.3d 425 (2018).
This court, in State v. Farrar, 186 Conn. App. 220,
199 A.3d 97 (2018), rejected a due process claim on
similar facts on the ground that the sentence was explic-
itly authorized by § 53a-28 (b) (9). Id., 223. In Farrar,
the defendant was sentenced to a total effective term
of seven years of incarceration followed by eight years
of special parole. Id., 222. The defendant filed a motion
to correct an illegal sentence, claiming that his sentence
was a violation of his constitutional right against double
jeopardy. Id. The trial court denied the defendant’s
motion, and this court affirmed the judgment on the
ground that the sentence was explicitly authorized by
§ 53a-28 (b) (9). Id., 223. Section 53a-28 (b) provides in
relevant part that ‘‘when a person is convicted of an
offense, the court shall impose one of the following
. . . (9) a term of imprisonment and a period of special
parole . . . .’’ Accordingly, the court in Farrar held
that an imposition of a term of imprisonment and a
period of special parole does not constitute an illegal
sentence, provided that the term of imprisonment and
the term of special parole do not exceed the statutory
maximum for the crime of which the defendant was
convicted. State v. Farrar, supra, 223.
In the present appeal, the same analysis applies. The
defendant’s sentence does not violate the prohibition
against double jeopardy because it is expressly author-
ized by § 53a-28 (b) (9), and his combined period of
incarceration and years of special parole—twenty
years—does not exceed the maximum statutory sen-
tence for the crimes of which the defendant was con-
victed.5
The defendant heavily relies on State v. Boyd, 272
Conn. 72, 861 A.2d 1155 (2004), to support his double
jeopardy claim. Contrary to the defendant’s assertion,
the decision in Boyd is not applicable to the appeal
now before the court. In Boyd, the defendant received
a sentence of two years and one day of incarceration
followed by two years of special parole. Id., 74. In con-
sidering the defendant’s motion to modify that sen-
tence, the trial court ruled that the sentence exceeded
three years and was, in effect, a definite sentence of
four years and one day of incarceration, and, thus, the
defendant needed prosecutor approval to seek modifi-
cation pursuant to General Statutes § 53a-39.6 Id. In
arriving at its decision, the trial court relied on case
law describing split sentences that have both an exe-
cuted and unexecuted portion, the combination of
which constitutes the definite sentence for sentence
modification purposes. Id., 75. In Boyd, our Supreme
Court, also in the context of a motion to modify a
sentence pursuant to § 53a-39, held that for purposes
of the special parole statute (General Statutes § 54-125e
(a)), the term ‘‘definite sentence’’ refers only to the
period of incarceration that precedes special parole.
Id., 79.
In the present appeal, the defendant claims that the
combination of the definite sentence of fourteen years
of incarceration with the special parole of six years
violates the prohibition against double jeopardy. This
argument lacks merit because, as stated, our law con-
templates and expressly authorizes sentences with
components of incarceration and special parole in
§ 53a-28 (b) (9). Boyd concerned sentence modification
and did not involve any constitutional claims asserting
a violation of double jeopardy or motions to correct
illegal sentences. Therefore, Boyd has no bearing on
the current appeal, and the defendant’s sentence of
incarceration followed by special parole does not vio-
late the constitutional prohibition against double
jeopardy.
The judgment is affirmed.
In this opinion the other judges concurred.
1
See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
2
‘‘For claims of ineffective assistance of counsel arising out of the plea
process, the United States Supreme Court [in Hill v. Lockhart, supra, 474
U.S. 59] has modified the second prong of the [test set forth in Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]
to require that the petitioner produce evidence that there is a reasonable
probability that, but for counsel’s errors, [the petitioner] would not have
pleaded guilty and would have insisted on going to trial.’’ (Internal quotation
marks omitted.) Thiersaint v. Commissioner of Correction, 316 Conn. 89,
101, 111 A.3d 829 (2015).
3
On March 11, 2018, the defendant also filed a motion for specific perfor-
mance of the plea agreement, which is not at issue on appeal.
4
We note that, even if the defendant’s due process claim was reviewable
under Golding, it would fail under Golding’s third prong because the trial
court lacked subject matter jurisdiction over this claim. This is because the
defendant’s claim is not addressed to his sentence but, rather, to the court’s
acceptance of his guilty plea. ‘‘In order for the court to have jurisdiction
over a motion to correct an illegal sentence after the sentence has been
executed, the sentencing proceeding, and not the [proceeding] leading to
the conviction, must be the subject of the attack.’’ State v. Lawrence, 281
Conn. 147, 158, 913 A.2d 428 (2007); see also State v. Casiano, 122 Conn.
App. 61, 68, 998 A.2d 792 (trial court lacked jurisdiction to consider motion
to correct illegal sentence that was based on ‘‘alleged flaws in the court’s
acceptance of the [guilty] plea’’), cert. denied, 298 Conn. 931, 5 A.3d 491
(2010).
5
The defendant was charged with one count of robbery in the first degree
pursuant to § 53a-134 (a) (4) and one count of conspiracy to commit robbery
in the first degree pursuant to §§ 53a-48 and 53a-134 (a) (4). Both charges
are class B felonies pursuant to General Statutes § 53a-35 (b) (2) and carry
maximum sentences of twenty years each. Accordingly, the maximum statu-
tory sentence that the defendant faced was twenty years of incarceration on
each count charged for a potential maximum of forty years of incarceration.
6
General Statutes § 53a-39 provides in relevant part: ‘‘(a) At any time
during the period of a definite sentence of three years or less, the sentencing
court or judge may, after hearing and for good cause shown, reduce the
sentence, order the defendant discharged, or order the defendant discharged
on probation or conditional discharge for a period not to exceed that to
which the defendant could have been originally sentenced.
‘‘(b) At any time during the period of a definite sentence of more than
three years, upon agreement of the defendant and the state’s attorney to
seek review of the sentence, the sentencing court or judge may, after hearing
and for good cause shown, reduce the sentence, order the defendant dis-
charged, or order the defendant discharged on probation or conditional
discharge for a period not to exceed that to which the defendant could have
been originally sentenced. . . .’’