State v. Turner ( 2022 )

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STATE OF CONNECTICUT v. COREY TURNER
(AC 44806)
Bright, C. J., and Elgo and Cradle, Js.
Syllabus
The defendant, who had been convicted of the crimes of murder and assault
in the first degree, appealed to this court from the judgment of the trial
court dismissing his motion to correct an illegal sentence. At the time the
defendant committed the crimes, he was twenty-one years old. Following
trial, the defendant was sentenced to sixty years of incarceration. In
his motion to correct, the defendant argued that his right to due process
was violated when the court made assumptions at his sentencing pro-
ceeding regarding his future rehabilitative potential that were materially
false when contrasted with the brain science underlying the continuous
growth and development of young adults during late adolescence. He
also contended that he was entitled to a resentencing hearing because
the due process clause of the fourteenth amendment to the United States
constitution permitted him to present evidence demonstrating that juve-
nile criminal records are not indicative of rehabilitation potential. The
court dismissed the motion to correct, concluding that the defendant
failed to state a colorable claim for relief under Miller v. Alabama (567
U.S. 460), and its progeny. On the defendant’s appeal to this court, held:
1. Although the trial court erred in holding that the defendant failed to state
a colorable claim for relief, the defendant could not prevail on his motion
to correct an illegal sentence: because the defendant’s claim relied on
the theory of youth related brain science set forth in Miller and its
progeny for purposes of sentence mitigation, the defendant properly
invoked the trial court’s subject matter jurisdiction as his claim chal-
lenged his sentence or sentence proceedings and not the underlying
conviction, his claim having been predicated on the theory that the court
impermissibly failed to properly consider his potential for rehabilitation
when imposing the sentence of incarceration; moreover, it is well settled
that a defendant who was an adult at the time he committed the offense
for which he was sentenced could not succeed on a federal constitutional
claim that he was entitled to be resentenced based on the youth related
brain science underlying Miller and its progeny, and, here, the defendant
was twenty-one years of age when he committed the underlying offenses;
accordingly, because the defendant stated a colorable claim properly
invoking the court’s subject matter jurisdiction, but could not prevail
on his motion to correct an illegal sentence, the court should have
denied rather than dismissed his motion.
2. The defendant could not prevail on his claim that he was entitled to an
evidentiary hearing to present expert testimony on juvenile brain science
in support of his motion to correct; although the defendant relied on a
state case, State v. Miller (186 Conn. App. 654), in which it was contended
that the state constitution could be interpreted as permitting youth
related sentencing mitigation for defendants above the age of eighteen,
the defendant’s state constitutional due process claim was not advanced
in either his appellate brief or at oral argument on appeal, and, therefore,
the claim was abandoned.
Argued May 17—officially released August 23, 2022
Procedural History
Substitute information charging the defendant with
the crimes of murder and assault in the first degree,
brought to the Superior Court in the judicial district of
Hartford and tried to the jury before Koletsky, J.; verdict
and judgment of guilty, from which the defendant
appealed to the Supreme Court, which affirmed the
judgment of the trial court; thereafter, the court, Gra-
ham, J., dismissed the defendant’s motion to correct
an illegal sentence, and the defendant appealed to this
court. Improper form of judgment; reversed; judgment
directed.
Corey Turner, self-represented, the appellant (defen-
dant).
Jordan C. Levin, certified legal intern, with whom
were Michele C. Lukban, senior assistant state’s attor-
ney, and, on the brief, Sharmese L. Walcott, state’s
attorney, and Vicki Melchiorre, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
CRADLE, J. The self-represented defendant, Corey
Turner, appeals from the judgment of the trial court
dismissing his motion to correct an illegal sentence
pursuant to Practice Book § 43-22. On appeal, the defen-
dant claims (1) that the court erred in dismissing his
motion to correct an illegal sentence, in which he
alleged that the sentencing court made materially false
assumptions about his potential for rehabilitation, for
failure to state a colorable claim, and (2) he is entitled
to an evidentiary hearing to present expert testimony
on juvenile brain science in support of his motion to
correct. We agree with the defendant’s contention that
the court improperly dismissed his motion to correct
on the ground that he failed to state a colorable claim
but, nevertheless, conclude that the defendant was not
entitled to a new sentencing hearing on the basis of the
ground alleged in his motion. Additionally, we disagree
with the defendant’s assertion that he was entitled to
an evidentiary hearing. Accordingly, the form of the
trial court’s judgment is improper in that the court
should have denied, rather than dismissed, the defen-
dant’s motion to correct an illegal sentence.
The record reflects the following relevant procedural
history. On August 8, 1997, the defendant was convicted,
following a jury trial, of murder in violation of General
Statutes § 53a-54a, and assault in the first degree in
violation of General Statutes § 53a-59. At the time he
committed the underlying offenses in 1995, the defen-
dant was twenty-one years old.
On October 10, 1997, the court, Koletsky, J., held a
sentencing hearing. At the hearing, the court noted:
‘‘Your record is not the worst I’ve seen, but it indicates
a very poor rehabilitative potential. You’re bright and
you’re able, but you have yet to demonstrate any willing-
ness to live within the norms of our society, and that
makes you a dangerous item on the street. The nature
of the crime itself is vicious; it’s premeditated; it’s an
ugly crime. It’s a murder by ambush and an assault
by ambush, from behind in the middle of the night—
midnight. And it’s on a crowded, active street, with
people all around. There is no more—there is no crime
that attacks the very fabric of society, where people
are entitled to live on a street without bullets suddenly
flying through the air. The crime is serious indeed.’’
After considering these factors, the court sentenced the
defendant to sixty years of incarceration. Our Supreme
Court affirmed the judgment of conviction on direct
appeal. State v. Turner, 252 Conn. 714, 750, 751 A.2d
372 (2000).
On September 3, 2019, the defendant filed a motion
to correct an illegal sentence, pursuant to Practice Book
§ 43-22.1 The defendant subsequently filed an amended
motion on February 23, 2021, in which he argued that
‘‘[t]he sentencing court’s conclusion that the defen-
dant’s prior criminal history was an indicator of his
future rehabilitative potential . . . [was] a materially
false assumption rendering the entire sentencing proce-
dure invalid as a violation of due process.’’2 Citing
United States v. Malcolm, 432 F.2d 809, 816 (2d Cir.
1970), the defendant claimed that, ‘‘when contrasted
with the brain science underlying the continuous
growth and development of young adults during late
adolescence, the sentencing court’s assumptions
regarding the defendant’s future rehabilitative potential
[were] materially false in violation of his right to due
process.’’ (Footnote omitted.) The defendant contended
that he was entitled to a resentencing hearing because
the due process clause of the fourteenth amendment
to the United States constitution requires that he be
permitted to introduce evidence, including expert testi-
mony, demonstrating that juvenile criminal records are
not indicative of rehabilitative potential.
The state filed its response to that motion on March
26, 2021, in which it countered that the sentencing court
acted within its discretion in conducting an inquiry into
the defendant’s prior criminal record and relied only
on materially accurate facts therefrom. Further, the
state argued that Miller v. Alabama, 567 U.S. 460, 480,
132 S. Ct. 2455, 183 L.Ed.2d 407 (2012)—which requires
that a sentencing court consider youth related mitigat-
ing factors if it imposes a sentence of life imprisonment,
or its functional equivalent, without parole, on a juvenile
defendant—did not apply to the defendant because he
was twenty-one years old at the time of the offense.
After hearing argument from both parties on March
31, 2021, the court, Graham, J., dismissed the motion to
correct, concluding that ‘‘the sentencing court properly
relied upon the defendant’s criminal record.’’ The court
explained: ‘‘In essence, the defendant has focused on
only one factor out of multiple factors that the sentenc-
ing court used to determine his sentence and the defen-
dant has done so to the exclusion of the others. The
defendant argues that the court was subjectively wrong
in its conclusion, but has not challenged the accuracy
of his prior criminal record, which was a factual predi-
cate for the sentencing court’s conclusion.
‘‘The defendant has tried to do, what I will character-
ize, as use the side door into a Miller argument. How-
ever, the defendant was twenty-one years of age at the
time of the crime, an age which entitles him to no
special consideration under the Miller line of cases.
‘‘In short, the defendant has failed to state a colorable
claim for relief with regard to his sentence falling within
the parameters of Practice Book [§] 43-22. Therefore,
the court has no choice but to dismiss his motion to
correct.’’ (Citation omitted.) This appeal followed.
We begin by setting forth the relevant standard of
review and relevant legal principles. ‘‘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.’’ (Footnote omitted; internal quotation marks
omitted.) State v. Vivo, 197 Conn. App. 363, 368–69, 231
A.3d 1255 (2020).
Our Supreme Court recently clarified the jurisdic-
tional requirements to raise a colorable claim in a
motion to correct an illegal sentence. ‘‘A trial court
generally has no authority to modify a sentence but
retains limited subject matter jurisdiction to correct an
illegal sentence or a sentence imposed in an illegal
manner. . . . Practice Book § 43-22 codifies this com-
mon-law rule. . . . Therefore, we must decide whether
the defendant has raised a colorable claim within the
scope of Practice Book § 43-22 . . . . In the absence
of a colorable claim requiring correction, the trial court
has no jurisdiction . . . .’’ (Footnote omitted; internal
quotation marks omitted.) State v. Myers, 343 Conn.
447, 459, 274 A.3d 100 (2022). ‘‘[T]o raise a colorable
claim within the scope of Practice Book § 43-22, the
legal claim and factual allegations must demonstrate a
possibility that the defendant’s claim challenges his or
her sentence or sentencing proceedings, not the under-
lying conviction. The ultimate legal correctness of the
claim is not relevant to our jurisdictional analysis.’’
State v. Ward, 341 Conn. 142, 153, 266 A.3d 807 (2021).3
‘‘[T]he jurisdictional and merits inquiries are separate;
whether the defendant ultimately succeeds on the mer-
its of his claim does not affect the trial court’s jurisdic-
tion to hear it.’’ (Internal quotation marks omitted.)
State v. Myers, supra, 459. Stated otherwise, where a
defendant’s motion to correct ‘‘plausibly [challenges]
the defendant’s sentence,’’ that claim is ‘‘colorable,’’
and the court has subject matter jurisdiction over that
claim even where ‘‘the [claim has] no merit.’’ (Emphasis
added.) Id., 459–60.
On appeal, the defendant claims that the court
improperly dismissed his motion to correct an illegal
sentence for failure to state a colorable claim.4 Because
the defendant’s motion to correct plausibly challenged
his sentence, rather than his underlying conviction, we
agree that the court had jurisdiction to consider the
defendant’s motion to correct an illegal sentence and,
therefore, that the dismissal was improper. See State
v. Ward, supra, 341 Conn. 153. Indeed, the defendant’s
claim is predicated upon the theory that the sentencing
court impermissibly failed to properly consider his
potential for rehabilitation when imposing the sixty year
sentence of incarceration. Under Ward, this meets the
threshold for subject matter jurisdiction. See id.Although we conclude that the defendant has set forth
a colorable claim properly invoking the trial court’s
subject matter jurisdiction, we further conclude that,
because the defendant’s claim relies on the theory of
youth related brain science set forth in Miller and its
progeny, for purposes of sentence mitigation, he cannot
prevail on his motion to correct an illegal sentence.5
We begin with the holding in Miller and how it has
been applied by our Supreme Court and this court.
Miller highlighted that ‘‘developments in psychology
and brain science continue to show fundamental differ-
ences between juvenile and adult minds—for example,
in parts of the brain involved in behavior control. . . .
[The Supreme Court of the United States] reasoned
that those findings—of transient rashness, proclivity
for risk, and inability to assess consequences—both
lessened a child’s moral culpability and enhanced the
prospect that, as the years go by and neurological devel-
opment occurs, his deficiencies will be reformed.’’
(Citation omitted; footnote omitted; internal quotation
marks omitted.) Miller v. Alabama, supra, 567 U.S. 471–
72. As a result, ‘‘[i]n Miller . . . the United States
Supreme Court held that the [e]ighth [a]mendment for-
bids a sentencing scheme that mandates life in prison
without possibility of parole for juvenile offenders.’’6
(Citation omitted; internal quotation marks omitted.)
State v. Arnold, 205 Conn. App. 863, 865 n. 2, 259 A.3d
716, cert. denied, 339 Conn. 904, 260 A.3d 1225 (2021).
Our Supreme Court subsequently held ‘‘that the dictates
set forth in Miller may be violated even when the sen-
tencing authority has discretion to impose a lesser sen-
tence than life without parole if it fails to give due
weight to evidence that Miller deemed constitutionally
significant before determining that such a severe pun-
ishment is appropriate.’’ State v. Riley, 315 Conn. 637,
653, 110 A.3d 1205 (2015), cert. denied, 577 U.S. 1202,
136 S. Ct. 1361, 194 L. Ed. 2d 376 (2016).
It is well settled that a defendant who was an adult
at the time he committed the offense for which he was
sentenced cannot succeed on a federal constitutional
claim that he is entitled to be resentenced based upon
the brain science of Miller, even without relying on the
precise holding of that case. See State v. Mukhtaar,
179 Conn. App. 1, 4, 177 A.3d 1185 (2017).7 In Mukhtaar,
the defendant was twenty years old at the time of his
underlying offense, and acknowledged that the federal
constitutional protections afforded to juveniles under
the holding of Miller did not apply to him. Id., 3, 4.
However, the defendant stated that he was not relying
on the precise holding of Miller but, rather, ‘‘based [his
constitutional claims] on the brain science underlying
that case.’’ (Internal quotation marks omitted.) Id., 4.
‘‘In his motion to correct, the defendant asserted that
Miller should be extended to apply to adult defendants
whose mental age, at the time of the crime, was not
substantially different from that of juveniles.’’ Id., 7.
This court rejected the defendant’s argument under the
eighth amendment to the United States constitution,
noting that ‘‘the brain science referenced in Miller, upon
which the defendant seeks to rely, also emphasized
the differences between juveniles and adults.’’ (Internal
quotation marks omitted.) Id., 8. This court concluded
that only juvenile offenders could avail themselves of
a federal constitutional argument based on the brain
science of Miller, and clarified that ‘‘juvenile offenders’’
refers ‘‘to persons who committed a crime when they
were younger than eighteen years of age.’’ (Internal
quotation marks omitted.) Id., 7. Because the defendant
in Mukhtaar was twenty years old at the time he com-
mitted the crime for which he was sentenced, this court
concluded that the defendant was not entitled to consid-
eration of the mitigating factors of youth at the time of
sentencing and, thus, was precluded from raising an
argument based on the brain science underlying Miller.
Id., 9. Resultantly, this court concluded that his argu-
ments brought under the eighth and fourteenth amend-
ments to the United States constitution were barred
because the defendant was not a juvenile offender. Id.,
3 n.1, 9.
In the present case, there is no dispute that the defen-
dant’s claim is predicated on the brain science underly-
ing Miller. Indeed, the defendant argues that the sen-
tencing court erred in ‘‘explicitly [relying] upon [his]
criminal record as an indicator of his future rehabilita-
tive prospects’’ and claims that ‘‘when contrasted with
the brain science underlying the continuous growth and
development of young adults during late adolescence,
the sentencing court’s assumptions regarding the defen-
dant’s future rehabilitative potential was materially
false . . . .’’ (Internal quotation marks omitted.) He
also expressly acknowledges that his claim may ‘bear
a striking similarity to’ a Miller claim insofar as both
claims are grounded in the same brain science . . . .’’
Allowing the defendant to present evidence pertaining
to juvenile brain science for the purpose of mitigating
the negative effect his criminal record had on his sen-
tence would, in effect, allow him to bring a youth based
mitigation argument as an adult, which is exactly what
this court proscribed in Mukhtaar. See State v. Mukh-
taar, supra, 179 Conn. App. 9. Because the defendant
was twenty-one years of age at the time he committed
the crime for which he was sentenced, he cannot suc-
ceed on a claim to correct an illegal sentence predicated
on the theory of juvenile brain science set forth under
Miller and its progeny. See id., 3 n.1, 4, 9.
Finally, we address the defendant’s claim that he is
entitled to an evidentiary hearing based on this court’s
decision in State v. Miller, 186 Conn. App. 654, 200 A.3d
735 (2018). The defendant in State v. Miller, supra,662–63, filed a motion to correct an illegal sentence that
attempted to raise an issue of first impression that—
although the mandate of youth related sentencing miti-
gation under the eighth amendment to the United States
constitution was limited to offenders under the age of
eighteen—the Connecticut state constitution could be
interpreted as permitting such sentencing mitigation
for defendants above the age of eighteen. The trial court,
sua sponte, denied the defendant’s motion to correct
an illegal sentence without a hearing. Id., 656. On
appeal, this court agreed with the defendant that ‘‘the
trial court improperly denied his motion to correct an
illegal sentence without first providing him an opportu-
nity to be heard on the motion.’’ Id., 658. Furthermore,
this court concluded that, ‘‘[i]n order to pursue this
novel claim,8 including any subsequent appellate review
thereof, the defendant . . . was entitled to make an
evidentiary record of any facts that would be relevant
to it, including evidence of the underlying brain science
that would justify treating a nineteen year old like a
seventeen year old.’’ (Footnote added.) Id., 663.
The defendant in the present case briefly mentioned
our state constitution in his motion to correct. However,
unlike in State v. Miller, supra, 186 Conn. App. 662, the
defendant’s state constitutional due process claim was
not advanced in either his appellate brief or at oral
argument on appeal.9 Therefore, that claim is aban-
doned. See State v. Buhl, 321 Conn. 688, 724, 138 A.3d
868 (2016) (appellate courts are not required to review
issues that have been abandoned by way of insufficient
analysis in appellant’s brief). Therefore, the defendant
was not entitled to an evidentiary hearing.
In sum, because the defendant stated a colorable
claim by demonstrating ‘‘a possibility that the [defen-
dant] . . . [challenged his] sentence or sentencing pro-
ceedings, not the underlying conviction,’’ the court had
subject matter jurisdiction over his motion. State v.
Ward, supra, 341 Conn. 153. Therefore, the court should
have denied, rather than dismissed, the defendant’s
motion to correct.10 See State v. Myers, supra, 343
Conn. 468.
The form of the judgment is improper, the judgment
dismissing the defendant’s motion to correct an illegal
sentence is reversed and the case is remanded with
direction to render judgment denying the defendant’s
motion to correct an illegal sentence.
In this opinion the other judges concurred.
1
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.’’
2
A public defender was appointed as defense counsel, but, on October
30, 2019, the public defender filed a motion for permission to withdraw his
appearance. The motion was granted on January 14, 2020. The defendant
was self-represented for the filing of the amended motion to correct an
illegal sentence.
3
We note that neither party addressed State v. Ward, supra, 341 Conn.
142, or State v. Myers, supra, 343 Conn. 447, in their briefs to this court.
Ward was officially released two weeks after the defendant filed his appel-
lant’s brief, and Myers was officially released after the oral argument.
4
‘‘We emphasize that a Superior Court traditionally loses jurisdiction over
a criminal case once the defendant begins serving a sentence; a motion to
correct pursuant to Practice Book § 43-22 is an exception. Few categories
of claims qualify for consideration under that exception.’’ State v. Mukhtaar,
179 Conn. App. 1, 8-9, 177 A.3d 1185 (2017). Among those exceptions are
claims alleging cruel and unusual punishment concerning life sentences
without parole for juveniles; see id., 7–8; and claims alleging due process
violations manifested by a sentencing court’s reliance on materially false
information. See State v. Belcher, 342 Conn. 1, 13, 268 A.3d 616 (2022).
The defendant argues that he is advancing a due process claim rather
than a claim under Miller v. Alabama, supra, 567 U.S. 460. We note that at
least one member of our Supreme Court has alluded to the possibility that
a defendant might have a due process claim based on a sentencing court’s
reliance on materially false information pertaining to the brain science of
juvenile offenders. See State v. McCleese, 333 Conn. 378, 429, 215 A.3d 1154(2019) (Palmer, J., concurring) (noting that ‘‘when a juvenile is sentenced
to life in prison or its functional equivalent—even if the juvenile is later
afforded the opportunity for parole in satisfaction of the requirements of
the eighth amendment’’ to United States constitution, any principles of
fairness violated thereby are rooted ‘‘in the due process clauses of the federal
and state constitutions’’). Nevertheless, that possibility was recognized only
as to juvenile defendants. Id. (defendant was seventeen years old when he
committed offense).
5
Typically, if we determine that a court improperly dismissed a case for
lack of subject matter jurisdiction, we will remand the case for a consider-
ation of the merits. In this case, however, the court determined that it did
not have subject matter jurisdiction precisely because it concluded that, on
the merits, the defendant had failed to set forth a colorable claim. Further-
more, because the defendant’s claim fails as a matter of law, a remand for
further consideration of the merits would serve no useful purpose.
6
Montgomery v. Louisiana, 577 U.S. 190, 212, 136 S. Ct. 718, 193 L.
Ed. 2d 599 (2016) clarified that the doctrine announced in Miller applied
retroactively to individuals sentenced to life without parole. However, it
further stated that Miller did not require courts to relitigate every such
sentence, and permitted remedy for the aforementioned violations of the
eighth amendment to the United States constitution by allowing juvenile
offenders to be considered for parole. Id. We recently noted that our Supreme
Court subsequently held, in State v. Delgado, 323 Conn. 801, 810–13, 151
A.3d 345 (2016), that No. 15-84 of the 2015 Public Acts, ‘‘providing an opportu-
nity for parole to those who previously had been sentenced as juveniles to
life without parole,’’ was constitutional, because it ‘‘sufficiently negated any
violations created by the retroactive application of the rule established in
Miller.’’ State v. Arnold, 205 Conn. App. 863, 866 n.5, 259 A.3d 716, cert.
denied, 339 Conn. 904, 260 A.3d 1225 (2021).
7
In State v. Mukhtaar, supra, 179 Conn. App. 9, this court reversed a
judgment denying a motion to correct an illegal sentence on the ground
that it failed to state a colorable claim and therefore should have been
dismissed. Although the jurisdictional conclusions in Mukhtaar have proven
incorrect in light of our Supreme Court’s recent decisions in State v. Ward,
supra, 341 Conn. 153, and State v. Myers, supra, 343 Conn. 459–60, the
substantive analysis proscribing youth related sentencing mitigation claims
brought with regard to nonjuvenile offenses remains good law.
8
This novel claim remains undecided by any Connecticut court.
9
We note that the defendant also did not meaningfully pursue his state
constitutional claim before the trial court.
10
See footnote 5 of this opinion.