State v. McCoy

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STATE OF CONNECTICUT v. KENNETH LEE MCCOY
(SC 19905)
Palmer, McDonald, Robinson, D’Auria, Mullins,
Kahn and Vertefeuille, Js.*
Syllabus
Convicted of murder in connection with the shooting death of the victim,
the defendant appealed from the trial court’s judgment, claiming that
he had been deprived of a fair trial as a result of certain prosecutorial
improprieties and that the trial court had improperly denied his motion
for a new trial for lack of jurisdiction. An eyewitness to the shooting
and the state’s key witnesses, M, initially told the police that he could
not identify the shooter. Subsequently, M gave a second statement to
the police implicating the defendant in the shooting. Before trial, the
prosecutor asked the trial court whether M’s second statement would
be admissible as a prior consistent statement. The court deferred its
ruling, and, at trial, M testified about these statements without objection.
Following that testimony, the prosecutor asked another question per-
taining to M’s second statement. The trial court sustained defense coun-
sel’s objection to that question. After the prosecutor asked another
question regarding M’s second statement during the same direct exami-
nation, the trial court excused the jury and directed the prosecutor not
to inquire about the substance of the conversation the defendant had
with the police when he gave his second statement without prior permis-
sion of the court. On one other occasion, the prosecutor asked M
whether, after the shooting, he told the victim’s family what had hap-
pened. Defense counsel objected, and the trial court sustained that
objection. During closing arguments, the prosecutor referenced testi-
mony indicating that M had spoken to his mother after the shooting
and then asked the jury to speculate about what was said. The trial court
sustained defense counsel’s objection to that remark and instructed the
jury not to speculate. After the jury found the defendant guilty but before
he was sentenced, the defendant filed a motion for a new trial in which
he alleged prosecutorial impropriety. At the defendant’s sentencing, the
parties and the trial court agreed to hear that motion at a later date.
Months after the defendant started serving his sentence, he attempted
to have his motion for a new trial heard. The trial court denied the
motion, without a hearing, on the ground that it had lost jurisdiction
upon execution of the defendant’s sentence. On appeal, the Appellate
Court concluded that, regardless of any improprieties that may have
occurred during trial, the defendant was not deprived of his constitu-
tional right to due process. The Appellate Court also concluded that
the trial court lost jurisdiction once the defendant’s sentence was exe-
cuted and, therefore, that the trial court did not improperly deny the
defendant’s motion for a new trial. The Appellate Court affirmed the
judgment of conviction, and the defendant, on the granting of certifica-
tion, appealed to this court. Held:
1. The Appellate Court correctly concluded that the claimed prosecutorial
improprieties did not deprive the defendant of a fair trial; applying the
factors set forth in State v. Williams (204 Conn. 523), this court could
not conclude that the defendant’s right to due process was violated
because, although the alleged improprieties related to the critical issue
of M’s credibility and were not induced by either the argument or conduct
of defense counsel, and although the state’s case was not particularly
strong, the improprieties were not severe, as evidence regarding M’s
second statement already had been admitted into evidence without
objection and M never answered the prosecutor’s allegedly improper
questions, the improprieties were not frequent, as only four claimed
improprieties had occurred over the course of a weeklong trial, and the
trial court adopted curative measures in response to the alleged impro-
prieties.
2. The Appellate Court correctly concluded that the trial court lost jurisdic-
tion over the defendant’s motion for a new trial upon execution of the
defendant’s sentence but improperly upheld the trial court’s denial of
that motion because the motion should have been dismissed rather
than denied: in light of the long and consistent history underlying the
traditional rule that a criminal court loses jurisdiction upon the execution
of a sentence in the absence of a constitutional or legislative grant of
authority to act, this court could not conclude that the trial court in the
present case retained jurisdiction to decide the defendant’s motion for
a new trial when it did not act on that motion before the defendant’s
sentence was executed; moreover, because the trial court lacked juris-
diction to decide the defendant’s motion for a new trial and therefore
should have dismissed rather than denied that motion, this court con-
cluded that the form of the trial court’s judgment was improper, reversed
that part of the Appellate Court’s judgment upholding the denial of
the motion, and remanded the case with direction that the trial court
ultimately dismiss the defendant’s motion for a new trial.
3. The defendant could not prevail on his claim that the trial court committed
reversible error by imposing sentence while his motion for a new trial
was pending; even if this court assumed that the trial court violated the
rule of practice (§ 42-53 [a]), which governs rulings on motions for a
new trial, by imposing sentence before ruling on the defendant’s pending
motion, the defendant had failed to explain how or why such a violation
could have resulted in harm.
4. The defendant was not entitled to have his sentence vacated pursuant to
the plain error doctrine: although it was improper for the trial court not
to decide the defendant’s motion prior to sentencing, in light of certain
anomalies in this court’s case law concerning a criminal court’s jurisdic-
tion over a pending and timely motion for a new trial after sentencing,
the trial court’s error was not so clear as to necessitate reversal under
the plain error doctrine; moreover, even if that error had been clear,
this court could not conclude that the trial court’s failure to rule on
the defendant’s motion resulted in manifest injustice, as the claims of
prosecutorial impropriety raised in that motion were considered and
rejected by both this court and the Appellate Court, and also could be
raised through a petition for a writ of habeas corpus.
(Three justices concurring in part and dissenting
in part in one opinion)
Argued March 28, 2018—officially released May 7, 2019
Procedural History
Substitute information charging the defendant with
the crime of murder, brought to the Superior Court in
the judicial district of New Haven and tried to the jury
before Blue, J.; verdict and judgment of guilty; there-
after, the court denied the defendant’s motion for a
new trial, and the defendant appealed to this court;
subsequently, the appeal was transferred to the Appel-
late Court, Beach, Sheldon and Flynn, Js., which
affirmed the judgment of the trial court, and the defen-
dant, on the granting of certification, appealed to this
court. Reversed in part; judgment directed.
Daniel J. Foster, assigned counsel, for the appel-
lant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, Maxine Wilensky, senior assistant state’s
attorney, and Mary Elizabeth Baran, former senior
assistant state’s attorney, for the appellee (state).
Opinion
MULLINS, J. In this appeal, the defendant, Kenneth
Lee McCoy, challenges the judgment of the Appellate
Court affirming the judgment of conviction rendered
after a jury trial of one count of murder in violation of
General Statutes § 53a-54a (a). On appeal, the defendant
contends that the Appellate Court improperly con-
cluded that (1) he was not deprived of a fair trial due
to prosecutorial improprieties, and (2) the trial court
properly denied his motion for a new trial for lack of
jurisdiction. We disagree but conclude that the form of
the trial court’s judgment is improper in that the trial
court should have dismissed rather than denied the
motion for a new trial. Accordingly, we reverse in part
the judgment of the Appellate Court and remand the
case to that court with direction to render judgment
consistent with this opinion.
The following underlying relevant facts and proce-
dural history are set forth in the Appellate Court’s deci-
sion. ‘‘During the fall of 2011, the victim, Dallas Boomer,
saw both the defendant and Tramont Murray, his close
friends, on a daily basis. The three men often conducted
drug deals together out of rental cars . . . . During
November, 2011, the defendant became estranged from
both the victim and Murray. . . .
‘‘On December 6, 2011, at approximately 1 o’clock in
the morning, the victim was sitting in the driver’s seat
of a parked rental car on a residential street in New
Haven. Murray was sleeping in the reclined passenger
seat. The victim saw the defendant’s car pull over to
the side of the road and idle nearby, so he shook Murray
awake. Murray instructed the victim to drive away. The
defendant then approached the victim’s parked vehicle
with his hand in his sleeve and began shooting at the
windshield. The victim attempted to drive away, but
could not. Six bullets struck the rental car, and the
victim suffered fatal injuries as a result.
‘‘Immediately after the shooting, Murray, the sole wit-
ness, was questioned by the police. When the police
asked Murray to identify the shooter, he stated that he
had not seen the shooter . . . . Three weeks later, on
December 27, Murray made a second statement to the
police in which he identified the defendant as the
shooter. Murray testified consistently with this state-
ment at the defendant’s trial.’’ State v. McCoy, 171 Conn.
App. 311, 312–13, 157 A.3d 97 (2017).
After the jury returned its verdict, but prior to the
sentencing date, the defendant filed a motion for a new
trial. Id., 323. At the sentencing hearing, the defendant
sought to have the motion heard by the trial court;
however, the parties and the trial court subsequently
agreed to go forward with the sentencing and to hear
the motion at a later date. Id., 323–24. As a result, the
sentencing hearing went forward, and the court sen-
tenced the defendant to sixty years incarceration. Id.,
324.
Months after the sentencing, the defendant attempted
to have his motion for a new trial heard. Because the
defendant’s sentence already had been executed, how-
ever, the court denied the motion without a hearing on
the ground that it had lost jurisdiction. Id. The defendant
then appealed from the judgment of conviction,1
asserting that the prosecutor had engaged in a series
of improprieties that deprived him of his constitutional
right to a fair trial and that the trial court improperly
denied his motion for a new trial for lack of jurisdiction.
Id., 312.
The Appellate Court concluded that, regardless of
any improprieties that may have been committed by the
state during the trial, the defendant was not deprived
of his due process right to a fair trial. Id., 314–23. The
Appellate Court also concluded that the trial court lost
jurisdiction once the defendant’s sentence was exe-
cuted and, therefore, that the trial court did not improp-
erly deny the defendant’s motion for a new trial. Id.,
323–27. This certified appeal followed.2 Additional facts
will be set forth as necessary.
I
The defendant first claims that the Appellate Court
improperly determined that he was not deprived of
a fair trial by prosecutorial improprieties committed
during his trial. Specifically, the defendant claims that
the Appellate Court improperly concluded that the pros-
ecutor did not deprive him of a fair trial when she (1)
violated a court order by attempting on three occasions
to elicit inadmissible prior consistent statements made
by Murray, and (2) asked the jury during closing argu-
ment to speculate about the contents of a conversation
between Murray and his mother that was not in evi-
dence. In response, the state asserts that the Appellate
Court properly concluded that these claimed improprie-
ties did not deprive the defendant of his right to a fair
trial.3 We agree with the state.
With respect to the defendant’s claim that the prose-
cutor thrice violated the trial court’s order related to the
inadmissibility of Murray’s prior consistent statements,
the Appellate Court’s decision sets forth the following
relevant facts. ‘‘On the first day of trial, outside the
presence of the jury, the prosecutor asked the court
whether Murray’s second statement to the police, in
which he identified the defendant as the shooter, would
be admissible as a prior consistent statement. The court
responded: ‘Well, again, without finally ruling on that,
the answer is not necessarily because the rule generally
is that when a witness is impeached for a prior inconsis-
tent statement, prior consistent statements are not nor-
mally admissible. They can be admissible under the
discretion of the court, particularly—and I emphasize
particularly—where the prior consistent statement pre-
cedes the prior inconsistent statement. . . . [W]e may
have to see what develops, but certainly the answer to
what you just said is not necessarily.’ The court further
stated: ‘I haven’t given my final rulings on this because
I have to see what the witness says on direct, obviously,
but I think you must be aware of the general way that
I look at this so that you are not surprised, and I think
that I have said so.’ ’’ (Emphasis omitted.) Id., 315–16.
During the state’s direct examination of Murray, after
establishing that Murray had failed to identify the defen-
dant as the shooter in his initial encounter with the
police, the prosecutor engaged in the following colloquy
with Murray:
‘‘ ‘[The Prosecutor]: Did there come a time about
three weeks later when you went back into the police
department and gave another statement?
‘‘ ‘[Murray]: Yes.
‘‘ ‘[The Prosecutor]: And in that statement, did you
essentially tell the police what you have testified to
today in court?
‘‘ ‘[Murray]: Yes.’ ’’ Id., 322 n.4
Defense counsel did not object to this testimony.
After this testimony, the prosecutor committed the
first of the alleged improprieties when she asked:
‘‘ ‘Now, with regard to giving that statement [to the
police] on December 27, which is essentially what you
spoke about today . . . .’ Defense counsel objected,
and the court sustained the objection, noting that ‘[t]he
contents of the second interview should not be divulged
further than they already have been without [express]
permission of the court. As you know, there are eviden-
tiary rules pertaining thereto.’ ’’ Id., 316.
Later, during that same direct examination, the sec-
ond alleged impropriety occurred when ‘‘the prosecutor
asked Murray: ‘And let me just ask you this: when you
spoke to the police again, what did you tell them with
regard to who was the shooter?’ The court sua sponte
excused the jury and addressed the prosecutor, stating:
‘I don’t know how many times I have told you on the
record, and, I believe, explicitly, that . . . prior consis-
tent statements are not admissible into evidence unless
they precede prior inconsistent statements. . . . I have
told you, with respect to the second interview, on multi-
ple occasions, multiple occasions do not get into the
contents.’
‘‘After the prosecutor indicated that she did not think
that the court had been explicit in ruling that Murray’s
prior consistent statements were inadmissible, the
court stated that ‘[u]nder no circumstances without
prior permission of the court . . . may you ask this
witness about any prior consistent statement postdating
the original inconsistent statement of December 6. You
may not ask him about the substance of that without
prior permission of the court, that includes, but is not
limited to . . . the substance of his statement to the
police on December 27. I had thought that I was explicit,
but perhaps I was not, and if so, please forgive me.’
The court continued, stating: ‘I have told you repeatedly
not to go there. If you go there again, without prior
permission of the court, you are asking—you are basi-
cally going to require me to do things that, believe me,
I do not want to do. So, don’t go there.’ ’’ Id., 316–17.
Finally, the prosecutor engaged in the third alleged
impropriety related to prior consistent statements. This
impropriety occurred when, ‘‘after asking Murray
whether he had visited the victim’s family the day after
the victim’s murder, the prosecutor asked: ‘With regard
to what had occurred with [the victim’s] murder, did
you tell them what happened?’ Defense counsel
objected, and the court sustained the objection,
instructing the prosecutor to ‘[a]sk your next question,
keeping in mind rulings that the court has already
made.’ ’’ Id., 317.
With respect to the claim that the prosecutor improp-
erly referred to facts not in evidence, the factual under-
layment is as follows. During the trial, the state
presented evidence that Murray’s mother encountered
Murray crying at his girlfriend’s home. The prosecutor
asked Murray’s mother to describe Murray’s demeanor
as she spoke to him, and she began to tell the jury what
Murray had said to her during that encounter. Defense
counsel objected. The court sustained the objection and
did not permit Murray’s mother to testify about what
Murray had said. Then, in closing argument, when refer-
ring to Murray’s encounter with his mother at his girl-
friend’s home, the prosecutor argued: ‘‘ ‘They talked,
and he told her things, I can’t say what they were,
but I think you can think about it.’ Defense counsel
objected, and the court instructed the jury that ‘[t]his
is not in evidence. Do not speculate. That is improper
argument.’ ’’ Id., 319.
In analyzing these alleged improprieties, the Appel-
late Court assumed that the prosecutor had improperly
disregarded the trial court’s evidentiary rulings related
to Murray’s prior consistent statements. Id., 318. As to
the prosecutor’s closing argument inviting the jurors to
speculate about statements not in evidence regarding
Murray’s conversation with his mother, the Appellate
Court determined, consistent with a concession by the
state, that this argument was improper. Id., 319. The
Appellate Court concluded, however, that these impro-
prieties did not deprive the defendant of a fair trial.
Id., 320–21.
In the present appeal, the defendant asserts that the
Appellate Court improperly concluded that the alleged
improprieties did not deprive him of a fair trial.4 We
disagree and conclude that the Appellate Court properly
determined that the claimed improprieties did not
deprive the defendant of a fair trial. Because the Appel-
late Court either assumed that these actions of the
prosecutor were improper or accepted the state’s con-
cession to that effect, we need only address whether the
Appellate Court properly concluded that these claimed
improprieties constituted a violation of the defendant’s
right to due process.
We begin with the standard of review. ‘‘[T]he touch-
stone of due process analysis in cases of alleged prose-
cutorial [impropriety] is the fairness of the trial, and
not the culpability of the prosecutor. . . . The issue is
whether the prosecutor’s conduct so infected the trial
with unfairness as to make the resulting conviction a
denial of due process. . . . In determining whether the
defendant was denied a fair trial [by virtue of prosecu-
torial impropriety] we must view the prosecutor’s com-
ments in the context of the entire trial.’’ (Internal
quotation marks omitted.) State v. Campbell, 328 Conn.
444, 543, 180 A.3d 882 (2018).
‘‘[O]ur determination of whether any improper con-
duct by the state’s attorney violated the defendant’s fair
trial rights is predicated on the factors set forth in State
v. Williams, [204 Conn. 523, 540, 529 A.2d 653 (1987)],
with due consideration of whether that [impropriety]
was objected to at trial. . . . Those factors include the
extent to which the [impropriety] was invited by
defense conduct or argument . . . the severity of the
[impropriety] . . . the frequency of the [impropriety]
. . . the centrality of the [impropriety] to the critical
issues in the case . . . the strength of the curative mea-
sures adopted . . . and the strength of the state’s
case.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Campbell, supra, 328 Conn. 542.
We consider each of these factors in turn. First, there
is no dispute that the comments of the prosecutor were
not invited by either the argument or conduct of
defense counsel.
Second, we conclude that the claimed impropri-
eties were not severe. With respect to the prosecutor’s
allegedly improper comments regarding Murray’s prior
consistent statements, the severity of the alleged impro-
prieties is belied by the fact that Murray’s prior consis-
tent statement identifying the defendant as the shooter
already had been admitted into evidence without objec-
tion. Indeed, the jury already had heard that Murray
had given a second statement to the police that was
consistent with his testimony at trial. The fact that evi-
dence regarding Murray’s prior consistent statement
was already admitted into evidence without objection
demonstrates both that it was not severe, in that it did
not elicit an objection when it was first introduced
by the state, and that the impact of the prosecutor’s
allegedly improper questions was lessened by the fact
that the jury had already heard evidence pertaining to
that statement.
Moreover, it is important to note that Murray did not
answer any of the prosecutor’s questions. It is axiomatic
that questions are not evidence, only the answers to
the questions are evidence. In the present case, the
fact that the witness did not answer these allegedly
improper questions supports the Appellate Court’s con-
clusion that the alleged improprieties were not severe.
Accordingly, we conclude that the severity factor
weighs in favor of the state.
With respect to the third factor, namely, the frequency
of the impropriety, we conclude that this factor also
weighs in favor of the state. The defendant points to
three instances in which the prosecutor may have
improperly referred to Murray’s prior consistent state-
ments, and one instance in which the prosecutor
improperly commented on statements not in evidence.
Therefore, over the course of a weeklong trial, the
defendant claims four instances of prosecutorial impro-
priety. Thus, we cannot conclude that these improprie-
ties were pervasive.
Fourth, we consider whether the claimed improprie-
ties involved a critical issue in the case. We conclude
that the statements made by the prosecutor in the pres-
ent case did involve a critical issue—namely, the credi-
bility of Murray, the state’s key witness and the primary
source of evidence used to obtain a conviction of the
defendant. Accordingly, we conclude that this factor
weighs in favor of the defendant.
With respect to the fifth factor, we conclude that the
trial court adopted curative measures in response to the
alleged improprieties. In response to the prosecutor’s
improper comments regarding Murray’s prior consis-
tent statements, the trial court sustained each of the
defendant’s objections and once even interjected, sua
sponte, to prevent Murray from answering an inappro-
priate question. Moreover, the trial court provided an
instruction prior to jury deliberations as follows: ‘‘[i]t
is the answer, not the question or the assumption made
in the question that is the evidence.’’
In connection with the prosecutor’s improper refer-
ence to facts not in evidence during the closing argu-
ment, defense counsel immediately objected and the
trial court gave a curative instruction. The court
instructed as follows: ‘‘Do not speculate on this. This
is not in evidence. Do not speculate. That is improper
argument.’’ ‘‘[W]e have previously recognized that a
prompt cautionary instruction to the jury regarding
improper prosecutorial remarks or questions can obvi-
ate any possible harm to the defendant. . . . Moreover,
[i]n the absence of an indication to the contrary, the
jury is presumed to have followed [the trial court’s]
curative instructions.’’ (Citations omitted; internal quo-
tation marks omitted.) State v. Ceballos, 266 Conn. 364,
413, 832 A.2d 14 (2003). Therefore, we conclude that
the strength of the prompt curative measures weighs
in favor of the state.
Finally, we consider the sixth factor, namely the
strength of the state’s case. We cannot conclude that the
state’s case was particularly strong. There was limited
physical evidence, and no murder weapon was ever
recovered. Nevertheless, ‘‘we have never stated that the
state’s evidence must have been overwhelming in order
to support a conclusion that prosecutorial [impropriety]
did not deprive the defendant of a fair trial.’’ (Internal
quotation marks omitted.) State v. Stevenson, 269 Conn.
563, 596, 849 A.2d 626 (2004). Under the circumstances
presented in this case, in which the objectionable evi-
dence already was before the jury, the witness was
never permitted to answer the improper questions, and
prompt curative instructions were given, we simply can-
not conclude that the defendant’s right to due process
was violated. Accordingly, because the majority of the
Williams factors weigh in favor of the state, we con-
clude that the claimed improprieties in the present case
did not deprive the defendant of a fair trial.
II
The defendant next argues that the Appellate Court
improperly upheld the trial court’s denial of his motion
for a new trial on the ground that the trial court lost
jurisdiction upon the execution of the defendant’s sen-
tence. In particular, the defendant asserts that a trial
court continues to have jurisdiction over a criminal
matter for four months after judgment pursuant to State
v. Myers, 242 Conn. 125, 136, 698 A.2d 823 (1997), and,
therefore, should have ruled on the merits of his timely
filed motion for a new trial. The state counters that the
Appellate Court properly upheld the trial court’s denial
of that motion because the trial court lost jurisdiction
upon execution of the defendant’s sentence. We agree
with the state’s jurisdictional conclusion. In light of
that jurisdictional defect, however, we further conclude
that, as a matter of form, the trial court should have
dismissed rather than denied the defendant’s motion
for a new trial.
The following additional facts set forth in the Appel-
late Court’s decision are relevant to the defendant’s
claim. ‘‘On March 18, 2013, one week after the defendant
was convicted of murder, he filed a motion for a new
trial alleging that the prosecutor had ‘continually elic-
ited hearsay statements that the court had precluded
by an earlier ruling and offered inadmissible hearsay
statements during closing [argument].’ . . .
‘‘[Subsequently, at] the defendant’s sentencing hear-
ing . . . defense counsel attempted to argue the defen-
dant’s motion for a new trial, but was stymied by the
unavailability of the trial transcript. Both defense coun-
sel and the court agreed to postpone arguments until
the transcript became available. Defense counsel stated
that, so long as the motion was heard at a later date,
he did not have a problem going forward with the defen-
dant’s sentencing. The court agreed, stating: ‘[T]he
proper way to consider this argument, which . . . let
me just say I view as colorable . . . [i]s to have
[defense counsel] file a memorandum with transcript
references . . . give the state a fair opportunity to file
a memorandum of [its] own with transcript references,
and then perhaps schedule argument, you know, at a
convenient time. Obviously, there are a lot of family
members here that are here to see the sentencing, and
you’re not proposing postponing the sentencing. You’re
just proposing having the—having the motion for [a]
new trial heard at a [later] date.’ The court then sen-
tenced the defendant to sixty years incarceration.
‘‘Approximately three months later on September 3,
2013, the defendant amended his motion for a new trial
to include a claim that the prosecutor had, in violation
of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963), failed to disclose consideration
given to Murray in exchange for his testimony. On Sep-
tember 20, 2013, the court denied the defendant’s
motion for a new trial for lack of jurisdiction, citing
State v. Luzietti, 230 Conn. 427, 646 A.2d 85 (1994), for
the proposition that a trial court loses jurisdiction over
a criminal case once the defendant has been sentenced.
As a result, the court did not reach the merits of the
defendant’s motion.’’ (Footnote omitted.) State v.
McCoy, supra, 171 Conn. App. 323–24.
‘‘The defendant [then] filed a motion for reconsidera-
tion, arguing that the court retained jurisdiction under
State v. Myers, [supra, 242 Conn. 125]. The court granted
the motion for reconsideration, but again denied the
motion for a new trial for lack of jurisdiction, stating
that Myers ‘does not address the jurisdictional issue.’ ’’
State v. McCoy, supra, 171 Conn. App. 324–25. The
Appellate Court affirmed the judgment of the trial court,
concluding that the trial court had lost jurisdiction upon
execution of the defendant’s sentence and, thus, prop-
erly denied the motion for a new trial. Id., 327.
We begin with the standard of review. ‘‘Because a
determination regarding the trial court’s subject matter
jurisdiction raises a question of law, our review is ple-
nary.’’ (Internal quotation marks omitted.) Ferri v. Pow-
ell-Ferri, 326 Conn. 438, 448–49, 165 A.3d 1137 (2017).
‘‘The Superior Court is a constitutional court of general
jurisdiction. . . . In the absence of statutory or consti-
tutional provisions, the limits of its jurisdiction are
delineated by the common law.’’5 (Internal quotation
marks omitted.) State v. Parker, 295 Conn. 825, 834,
992 A.2d 1103 (2010). There is no legislative or constitu-
tional provision governing when a trial court loses juris-
diction following the execution of a criminal sentence;
therefore, the issue is governed by the common law.
The central issue in the present case is whether the
trial court lost jurisdiction upon the execution of the
defendant’s sentence. To resolve this issue, some con-
text on the jurisdiction of criminal courts relating to
sentencing is helpful.
Early case law explains that a court’s jurisdiction
over a case ends when the term of that court ends.6
State v. Pallotti, 119 Conn. 70, 74, 174 A. 74 (1934)
(‘‘[t]he established rule is that a sentence in a criminal
case may be modified at any time during the term of
court at which it was imposed, if no act has been done
in execution of it’’). More specifically, early cases recog-
nized that, even when the term had not yet ended, the
trial court lost jurisdiction when a person had begun
to serve his or her sentence. See State v. Vaughan, 71
Conn. 457, 461, 42 A. 640 (1899) (noting that common-
law power of King’s Bench to admit bail belongs to
Superior Court and ceases when sentence is executed);
State v. Henkel, 23 Conn. Supp. 135, 138, 177 A.2d 684
(Conn. Cir. 1961) (‘‘[w]hile the established rule is that
sentence in a criminal case may be modified at any
time during the term of court at which it was imposed,
such modification cannot be made after an act has
been done in execution of it’’ [internal quotation marks
omitted]); Commonwealth v. Weymouth, 84 Mass. (2
Allen) 144, 145–46 (1861) (explaining and adopting prac-
tice exercised by courts in England that court could
modify sentence during court term but could not modify
sentence once term was over).
One rationale for this rule was that once sentence
was executed, double jeopardy protected a defendant
from having his sentence increased. United States v.
Benz, 282 U.S. 304, 307–308, 51 S. Ct. 113, 75 L. Ed. 354
(1931). Another separate, but related, rationale underly-
ing this rule is the importance of protecting the finality
of judgments. See, e.g., Carpentier v. Hart, 5 Cal. 406,
407 (1855) (reason for rule that court loses jurisdiction
when term of court ends ‘‘is obvious . . . [in that] there
must be some finality in legal proceedings, and a period
beyond which they cannot extend’’).
In 1934, this court expressly recognized this common-
law rule. In State v. Pallotti, supra, 119 Conn. 74, this
court explained that ‘‘[t]he established rule is that a
sentence in a criminal case may be modified at any
time during the term of court at which it was imposed,
if no act has been done in execution of it.’’ (Empha-
sis added.)
Then, in 1962, this court decided Kohlfuss v. Warden,
149 Conn. 692, 695–96, 183 A.2d 626, cert. denied, 371
U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962), in which
this court again noted its approval of the rule in Pallotti,
explaining as follows: ‘‘Another generally accepted rule
of the common law is that a sentence cannot be modi-
fied by the trial court, even at the same term, if the
sentence was valid and execution of it has commenced.
. . . The reason for this rule has been variously
assigned. According to one view, the rule rests on the
principle of double jeopardy. According to another
view, the rule is based on the proposition that the trial
court has lost jurisdiction of the case.’’ (Citation
omitted.)
Although we recognized the two rationales for this
common-law rule, after Kohlfuss, case law reveals a
movement away from double jeopardy as a primary
basis for the rule. See Wilson v. State, 123 Nev. 587,
591–92, 170 P.3d 975 (2007) (explaining Supreme
Court’s gradual retreat from prohibition against increas-
ing sentence after defendant had begun to serve it and
pointing to North Carolina v. Pearce, 395 U.S. 711, 721,
89 S. Ct. 2072, 23 L. Ed. 2d 656 [1969], which permitted
court to impose a more severe sentence after reconvic-
tion without violating double jeopardy). Additionally,
the concerns related to double jeopardy being one of
the animating principles behind this rule have lessened
over the years, as the law regarding the ability of courts
to modify illegal sentences became clearer. See Benton
v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed.
2d 707 (1969) (concluding that concurrent sentences
doctrine did not preclude court from exercising juris-
diction over appeal claiming double jeopardy violation).
Nevertheless, the underlying rationale that the rule
is supported by the interest in protecting the finality of
judgments remains solid. See, e.g., People v. Karaman,
4 Cal. 4th 335, 348, 842 P.2d 100, 14 Cal. Rptr. 2d 801
(1992) (recognizing common-law rule ‘‘that the trial
court may change its judgment only during the term in
which the judgment was rendered, but not thereafter
. . . was established in order to provide litigants with
some finality to legal proceedings’’ [citations omitted;
footnote omitted]). Indeed, this court recognized the
rule again in 1982, when we reiterated that ‘‘[o]rdinarily
a sentence may not be modified if any act [has been]
done in execution of it.’’ State v. Nardini, 187 Conn.
109, 123, 445 A.2d 304 (1982).
Notwithstanding this well established rule, in 1986,
this court decided State v. Wilson, 199 Conn. 417, 513
A.2d 620 (1986). In that case, this court addressed
whether the trial court could amend its written decision
over three years after the defendant was sentenced, in
response to a motion for rectification. Id., 432–34. This
court explained that ‘‘[n]either our General Statutes nor
our [rules of practice] define the period during which
a trial court may modify or correct its judgment in a
criminal case. On the civil side, however, [our rules of
practice provide] that any civil judgment or decree may
be opened or set aside within four months succeeding
the date on which it was rendered or passed. We see
no reason to distinguish between civil and criminal
judgments in this respect, and we therefore hold that,
for purposes of the [common-law] rule, a criminal judg-
ment may not be modified in matters of substance
beyond a period of four months after the judgment has
become final.’’ (Emphasis omitted; internal quotation
marks omitted.) Id., 437; see also Practice Book § 17-
4; Practice Book (1978–97) § 326.
Despite making this pronouncement, this court did
not use the four month rule to find that the trial court
had jurisdiction. Instead, this court concluded that the
trial court in that case was without jurisdiction to
modify the judgment. State v. Wilson, supra, 199 Conn.
438. This court explained that ‘‘the judgment in this
case became final when the defendant was sentenced
. . . . The trial court, when it filed its amended memo-
randum of decision [over three years later] was clearly
without jurisdiction to alter its previous finding . . . .’’
Id., 437. Therefore, this court struck the amended mem-
orandum of decision. Id., 438.
Thereafter, in 1994, this court decided State v. Luzie-
tti, supra, 230 Conn. 431–32. In Luzietti, we addressed
whether the trial court had jurisdiction to rule on the
defendant’s motion for judgment of acquittal, filed six
weeks after he began serving his sentence. Id., 428.
Despite our decision in Wilson, this court did not deem
the trial court to have had continued jurisdiction for
four months and, thus, the ability to rule on the defen-
dant’s motion postsentencing. Id.
Instead, this court once more reiterated its approval
of the traditional rule, stating as follows: ‘‘It is well
established 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 [C]ommissioner of [C]orrection and begins serv-
ing the sentence.’’7 (Citations omitted; footnote omit-
ted.) Id., 431–32. Consequently, because the defendant
already had begun to serve his sentence, we held that
the court lacked jurisdiction to address his motion.
Three years after Luzietti, in 1997, the court decided
State v. Myers, supra, 242 Conn. 125, upon which the
defendant in the present case principally relies. In
Myers, prior to sentencing, the defendant filed a motion
for a new trial, claiming juror bias. Id., 129. Without
ruling on the motion for a new trial, the trial court
sentenced the defendant. Id., 131. Approximately five
months after sentencing the defendant, the trial court
ruled on the motion for a new trial. The trial court
first granted the defendant’s motion for a new trial but
subsequently vacated that decision, determining that
the defendant’s claim should have been brought by way
of a petition for a new trial. Id., 131–32. This court
reversed the judgment of the trial court, concluding
that a motion for a new trial was an appropriate vehicle
for a claim of juror bias. Id., 132.
The central point of Myers was that a claim of juror
bias had to be addressed in whatever form it was raised.
Id., 139. Thus, the defendant’s motion for a new trial
in that case was appropriate. Id. Although the nature
of the claim does not appear necessary to its holding
that a motion for a new trial is an appropriate vehicle
to alert the court to juror bias, the court made the
following statement upon which the defendant seizes:
‘‘the trial court retained jurisdiction to entertain the
motion for a new trial after sentencing because it could
have opened the judgment.’’ (Footnote omitted.) Id.,
136, citing State v. Wilson, supra, 199 Conn. 436.
In Myers, this court neither acknowledged Luzietti
nor otherwise discussed any of our well established
precedent, including Vaughan, Nardini, Pallotti, or
Kohlfuss, holding that a trial court loses jurisdiction
upon the execution of the sentence. Instead, in support
of its conclusion, this court cited State v. Wilson, supra,
199 Conn. 436, a case that did not even find jurisdiction
under the four month rule it had espoused.
Additionally, a close examination of Myers reveals
serious concerns about both its rationale and the impli-
cations of its decision were we to follow it without
question. Specifically, although this court relied on the
four month rule to find that the court had jurisdiction
in Myers, the trial court in that case did not rule on
the motion for a new trial within four months of the
judgment but waited until approximately five months
after the judgment to rule on the motion. State v. Myers,
supra, 242 Conn. 131. Myers did not address the fact
that the ruling on the motion occurred beyond the four
month grant of jurisdiction or, more importantly, under
what authority the trial court could rule on a motion
five months after the sentencing. The concurring and
dissenting opinion in the present case, however, notes
the discrepancy but attempts to salvage the reasoning
of Myers by focusing on the fact that the motion was
filed prior to sentencing. Of course, nothing in Myers
states that it was the fact that the motion was filed
prior to sentencing that permitted the trial court to
exercise jurisdiction beyond the four month period.
Furthermore, even if we were to assume that filing the
motion prior to sentencing extended the jurisdiction of
the court, it certainly would not be extended in perpetu-
ity. Yet that is precisely what Myers and the concurring
and dissenting opinion suggest. Indeed, although the
court paid lip service to the four month rule in Myers,
it actually permitted an extension of five months.
Noting this disparity, the concurring and dissenting
opinion further attempts to salvage the rationale of
Myers by explaining that this court ‘‘not only applied
the four month rule, but determined that the trial court
retains jurisdiction over a motion for a new trial as long
as it was timely filed prior to sentencing, even if the
court did not rule on the motion within the four month
time frame.’’ By doing so, the concurring and dissenting
opinion no longer relies on Myers for its application of
the four month rule but seems to assert that, as long
as a motion is timely filed prior to sentencing, the trial
court retains jurisdiction to modify the sentence at any
time to rule on the motion. We disagree.
First, the concurring and dissenting opinion’s posi-
tion is not even supported by Wilson. As explained
previously in this opinion, in Wilson, this court sug-
gested that the civil rule that allows trial courts to
reopen or set aside civil judgments within four months
of judgment applies to criminal cases. Nothing in Wilson
or the rule of practice on which that decision relied
addresses retaining the limited extension of jurisdiction
past a four month period even if the motion was filed
before sentencing. Second, if we were to agree with
the concurring and dissenting opinion and adopt its
reading of Myers, we would essentially give courts an
even broader ability to modify criminal judgments than
that allowed in civil judgments under the four month
rule. We decline to take such a dramatic departure from
our well established common law.
Furthermore, over the years following this court’s
decision in Myers, we consistently have reaffirmed the
principle that a trial court loses jurisdiction upon the
execution of the defendant’s sentence, unless it is
expressly authorized to act. See State v. Ramos, 306
Conn. 125, 134–35, 49 A.3d 197 (2012) (‘‘in criminal
cases . . . once a defendant’s sentence has begun [the]
court may no longer take any action affecting a defen-
dant’s sentence unless it expressly has been authorized
to act’’ [emphasis omitted; internal quotation marks
omitted]);8 State v. Parker, supra, 295 Conn. 835–36 (‘‘a
generally accepted rule of the common law is that a
sentence cannot be modified by the trial court . . . if
the sentence was valid and execution of it has com-
menced’’ [internal quotation marks omitted]); State v.
Das, 291 Conn. 356, 361–62, 968 A.2d 367 (2009) (con-
cluding that trial court lacked jurisdiction over defen-
dant’s motion to vacate judgment of conviction and to
withdraw plea after sentence had been executed and
that no constitutional violation exception existed);
State v. Lawrence, 281 Conn. 147, 155, 913 A.2d 428
(2007) (acknowledging established rule that once defen-
dant’s sentence has begun, a court may not take action
affecting a defendant’s sentence unless it expressly has
been authorized to act); State v. Reid, 277 Conn. 764,
774, 894 A.2d 963 (2006) (‘‘In a criminal case the imposi-
tion of sentence is the judgment of the court. . . .
When the sentence is put into effect and the prisoner
is taken in execution, custody is transferred from the
court to the custodian of the penal institution. At this
point jurisdiction of the court over the prisoner termi-
nates.’’ [Internal quotation marks omitted.]); Cobham
v. Commissioner of Correction, 258 Conn. 30, 37, 779
A.2d 80 (2001) (‘‘[t]his court has held that the jurisdic-
tion of the sentencing court terminates once a defen-
dant’s sentence has begun, and, therefore, that court
may no longer take any action affecting a defendant’s
sentence unless it expressly has been authorized to
act’’). As these cases demonstrate, post-Myers, this
court has not wavered from the rule that a trial court’s
jurisdiction is lost upon the execution of the defendant’s
sentence. By contrast, we cannot find, and the defen-
dant does not point to, any case in which this court
has relied on Myers for the proposition that a trial court
retains jurisdiction after the defendant’s sentence has
been executed.
Accordingly, given the long and consistent history of
our courts applying the traditional rule that jurisdiction
is lost upon the execution of a sentence, we cannot
conclude that Myers reflects a retreat from that com-
mon-law rule. Instead, we acknowledge that Myers and
Wilson are anomalies in this court’s case law, and we
take this opportunity to clarify and reiterate, as we have
consistently done since Myers, that a trial court loses
jurisdiction once the defendant’s sentence is executed,
unless there is a constitutional or legislative grant of
authority. State v. Luzietti, supra, 230 Conn. 431–32.
Thus, any reliance on Myers by the defendant to extend
the jurisdiction of the trial court beyond the point at
which his sentence was executed is misplaced.
In the present case, the defendant’s motion for a new
trial, although filed before his sentence was executed,
was not ruled upon before the sentence was executed.
Consequently, the trial court lost jurisdiction. A motion
for a new trial—even a timely filed motion that is not
ruled upon before sentence is executed—is not a special
grant of authority that imbues the trial court with juris-
diction until it is ruled upon. We note that this is an
unusual circumstance, and not one that makes us ques-
tion or need to revisit the well established rule that the
court loses jurisdiction upon sentencing. Although we
acknowledge that the trial court incorrectly failed to
rule on the motion for a new trial before sentencing
the defendant, we are mindful of the old adage that bad
facts make bad law. Therefore, we refuse to expand
the jurisdiction of criminal courts in an effort to address
the highly unusual circumstances of the present case.
Indeed, the circumstance this case presents is
exceedingly rare and unlikely to recur because a mecha-
nism already exists for trial courts to maintain jurisdic-
tion in this type of situation. Specifically, the court
simply could have stayed the execution of the sentence
until the motion was heard and ruled upon. To be sure,
‘‘[t]he common law has long recognized a court’s ability
to stay the execution of a criminal sentence’’ in order
to ‘‘fulfill its duty to implement the penalties dictated
by the legislature for criminal offenses and to promote
the ends of justice.’’ Copeland v. Warden, 225 Conn.
46, 49–50, 621 A.2d 1311 (1993). When the court stays
the execution of the sentence, it retains jurisdiction.
State v. Walzer, 208 Conn. 420, 425, 545 A.2d 559 (1988).9
In the present case, because the trial court did not
stay the execution of the defendant’s sentence prior to
ruling on his motion for a new trial, however, the court
lost jurisdiction. The fact that it was not the intent of
the court or the parties to do so does not alter the fact
that jurisdiction was lost. Jurisdiction does not turn on
the intent of the parties or the court. See, e.g., State
v. Das, supra, 291 Conn. 358 (denying postsentencing
motion to vacate judgment of conviction and to with-
draw plea of nolo contendere on ground that trial court
lost jurisdiction upon sentencing, and concluding that
there is no constitutional violation exception).
Accordingly, the trial court, albeit inadvertently, lost
jurisdiction over the defendant’s case. Although we
observe that this was unintentional, we believe the trial
court correctly ruled that ‘‘the jurisdictional argument
is not a matter of my intent . . . . [T]he trial court just
plain has no jurisdiction. It’s not a matter of intent or
good faith or bad faith, or anything else. The court just
flat out [has] no jurisdiction.’’10 The Appellate Court,
therefore, properly concluded that the trial court cor-
rectly determined that it had lost jurisdiction over the
defendant’s case when the defendant began serving his
sentence. As we explained previously in this opinion,
the trial court denied the defendant’s motion for a new
trial. Given that it lacked jurisdiction, however, it should
have dismissed that motion. Therefore, the trial court’s
judgment is improper in form, and the case must be
remanded to the Appellate Court with direction to
remand the case to the trial court with direction to
dismiss the defendant’s motion for a new trial.
III
The defendant next claims that, if the trial court had
lost jurisdiction because it sentenced him, then the trial
court erred when it sentenced him while his motion for
a new trial was pending. Specifically, the defendant
asserts that the trial court violated Practice Book § 42-
53, which required the trial court to adjudicate his
motion for a new trial. The defendant further claims
that, by sentencing him before ruling on the motion,
the trial court improperly rendered itself unable to adju-
dicate the motion because it lost jurisdiction.
Practice Book § 42-53 (a) provides: ‘‘Upon motion of
the defendant, the judicial authority may grant a new
trial if it is required in the interests of justice. Unless
the defendant’s noncompliance with these rules or with
other requirements of law bars his or her asserting the
error, the judicial authority shall grant the motion: (1)
For an error by reason of which the defendant is consti-
tutionally entitled to a new trial; or (2) For any other
error which the defendant can establish was materially
injurious to him or her.’’ The defendant recognizes that
the language of § 42-53 does not expressly require the
trial court to rule on all motions for a new trial. Rather,
he asserts that the requirement is implicit because it
expressly requires that the trial court ‘‘shall grant the
motion’’ if certain conditions are met. Practice Book
§ 42-53 (a).
‘‘It is well settled that [n]ot every deviation from the
specific requirements of a Practice Book rule necessi-
tates reversal. . . . Ordinarily, our courts apply a
harmless error analysis in determining whether a viola-
tion of a rule of practice amounts to reversible error.
. . . To the extent that a failure to comply with a rule
of practice rises to the level of a constitutional violation,
[t]he United States Supreme Court has recognized that
most constitutional errors can be harmless.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Ayala, 324 Conn. 571, 590–91, 153 A.3d 588 (2017).
In the present case, the defendant does not allege that
the trial court’s alleged failure to comply with Practice
Book § 42-53 constitutes a violation of his constitutional
rights to due process. Furthermore, on appeal to this
court, the defendant did not establish harm that resulted
from the trial court’s alleged error in failing to adjudi-
cate his motion for a new trial prior to sentencing him.
Instead, the defendant merely asserts that the appro-
priate remedy for the error is to vacate his sentence so
that his motion for a new trial can be adjudicated. We
disagree. Even if the trial court violated § 42-53, the
defendant has failed to explain how or why that viola-
tion amounts to reversible error. See, e.g., Adams v.
Dept. of Correction, Docket No. M2013-00370-COA-R3-
CV, 2014 WL 4536557, *3 (Tenn. App. September 11,
2014) (‘‘[u]nder circumstances where the pending
motions would not have affected the outcome, the over-
sight, or failure to rule on pending motions, has been
considered harmless error’’) Thus, because he has not
demonstrated harm, we reject the defendant’s claim.
IV
Following oral argument, this court requested supple-
mental briefing, limited to the following question: ‘‘If
we conclude that the trial court lost subject matter
jurisdiction upon sentencing the defendant, is the doc-
trine of plain error applicable to the trial court’s failure
to have decided the defendant’s pending and timely
filed motion for a new trial before it sentenced the
defendant?’’ Thereafter, the defendant argued that the
failure of the trial court to rule on his motion for a new
trial prior to sentencing constituted plain error that
requires vacating his sentence and remanding the case
to the trial court to rule on his motion for a new trial.
The state contends that the trial court did not commit
plain error, because the mistake was neither so obvious
nor so harmful as to constitute manifest injustice. We
agree with the state.
We begin with the standard of review and applicable
law. An appellant cannot prevail under the plain error
doctrine ‘‘unless he demonstrates that the claimed error
is both so clear and so harmful that a failure to reverse
the judgment would result in manifest injustice. . . . It
is clear that an appellate court addressing an appellant’s
plain error claim must engage in a review of the trial
court’s actions and, upon finding a patent error, deter-
mine whether the grievousness of that error qualifies
for the invocation of the plain error doctrine and the
automatic reversal that accompanies it.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) State v. Myers, 290 Conn. 278, 288–89, 963
A.2d 11 (2009).
In the present case, although the trial court delayed
hearing the defendant’s motion in order to complete
the sentencing out of respect for the families of the
victim in attendance at the sentencing, we cannot con-
clude that the trial court had authority to refuse to hear
the defendant’s motion that was timely filed pursuant
to Practice Book § 42-53. See Ahneman v. Ahneman,
243 Conn. 471, 482, 706 A.2d 960 (1998) (‘‘the trial court
lacked authority to refuse to consider the defendant’s
motions’’); Amato v. Erskine, 100 Conn. 497, 499, 123
A. 836 (1924) (‘‘[i]t is a rule essential to the efficient
administration of justice, that where a court is vested
with jurisdiction over the [subject matter] upon which
it assumes to act, and regularly obtains jurisdiction of
the person, it becomes its right and duty to determine
every question which may arise in the cause, without
interference from any other tribunal’’ [internal quota-
tion marks omitted]).
Nevertheless, as we explained in part II of this opin-
ion, a thorough review of our case law demonstrates
that the well established rule is that a trial court loses
jurisdiction upon execution of the defendant’s sen-
tence. We acknowledge, however, that State v. Wilson,
supra, 199 Conn. 436, and State v. Myers, supra, 242
Conn. 136, were anomalies in our case law and may
have resulted in some confusion. Accordingly, although
we conclude that it was improper for the trial court to
neglect ruling on the defendant’s motion for a new trial
prior to the execution of his sentence, we do not agree
that it was so clear an error as to satisfy the first prong
of the plain error doctrine.
In any event, even if that error were deemed to be
clear, the defendant’s claim of plain error fails on the
second prong—namely, whether the error is ‘‘so harm-
ful that a failure to reverse the judgment would result in
manifest injustice.’’ (Internal quotation marks omitted.)
State v. Myers, supra, 290 Conn. 289. The defendant
contends that the trial court’s failure to decide his
motion for a new trial constitutes manifest injustice
because the opportunity to have a trial court review
that motion was a unique opportunity and that any
other avenue for review would be inadequate. The state
argues that the defendant was not harmed by the trial
court’s failure to review his motion for a new trial
because there were other avenues for the defendant to
have his claims resolved and, more generally, that a
trial court’s failure to comply with a rule of procedure
is not enough, by itself, to necessitate reversal for plain
error. We agree with the state.
We certainly acknowledge the benefits of having the
trial judge, as opposed to a reviewing court, decide the
motion for a new trial in the first instance. See State
v. Smith, 313 Conn. 325, 347, 96 A.3d 1238 (2014)
(‘‘[a]ppellate review of a trial court’s decision granting
or denying a motion for a new trial must take into
account the trial judge’s superior opportunity to assess
the proceedings over which he or she has personally
presided’’ [internal quotation marks omitted]). Under
the circumstances of the present case, however, we
simply cannot conclude that the trial court’s failure to
rule on the defendant’s claims was an error so harmful
that it resulted in manifest injustice.
In his motion for a new trial, the defendant raised
the claim that the prosecutor engaged in impropriety
by attempting to elicit previously precluded hearsay
and by referring to statements not in evidence during
closing arguments. These are some of the same issues
that the defendant raised as stand-alone claims of prose-
cutorial impropriety on direct appeal. Indeed, the Appel-
late Court and now this court have reviewed the merits
of those claims of impropriety and both courts have
concluded that the defendant was not deprived a fair
trial.11 See State v. McCoy, supra, 171 Conn. App. 314–23;
see also part I of this opinion. In other words, the
prosecutorial impropriety claims raised in the defen-
dant’s motion for a new trial themselves have no merit.
We therefore cannot conclude that the trial court’s fail-
ure to review those claims equates to an error so harm-
ful that it was a manifest injustice necessitating reversal
pursuant to plain error review.
The concurring and dissenting opinion concludes that
‘‘the manifest injustice in this case is not necessarily
that the defendant would have prevailed on his claims,
but rather that the parties and this court have lost
the benefit of the trial court’s considered views of his
claims, especially in light of the fact that the trial judge
deemed the defendant’s motion for a new trial ‘color-
able.’ ’’12 Anytime a trial judge fails to rule on a motion,
we are deprived of the trial court’s views. That, how-
ever, does not by definition result in reversible error.
We might agree that the trial court’s failure to rule on
the defendant’s motion in this case could be an error,
but that error in itself does not satisfy the separate
and distinct prong of the plain error test. ‘‘As we have
explained . . . the defendant also must demonstrate,
under the second prong of the plain error test, that the
omission was so harmful or prejudicial that it resulted
in manifest injustice. . . . This stringent standard will
be met only upon a showing that, as a result of the
obvious impropriety, the defendant has suffered harm
so grievous that fundamental fairness requires a new
trial.’’ (Citation omitted.) State v. Jamison, 320 Conn.
589, 598–99, 134 A.3d 560 (2016).
As with any error that is not structural—and there
is no claim here that the court’s failure to rule on the
motion for a new trial is structural—a defendant must
demonstrate how the error harmed him. As with any
trial court error in which we must engage in an analysis
of harm, we are either deprived of the trial court’s
considered decision or we are reviewing an erroneous
decision. We then must take that nonexistent or errone-
ous ruling and consider the effect that it had on the
conviction. In the plain error context, the error must
be so harmful as to amount to a manifest injustice
requiring a new trial. State v. Myers, supra, 290
Conn. 289.
To assess the harm, we must look at the substance
of the motion to see if it has any merit. Indeed, it would
be truly bizarre if a court’s failure to rule on a meritless
or frivolous motion for a new trial could amount to an
error so harmful that a manifest injustice has occurred.
That circumstance is what we are presented with here—
lack of a ruling on a meritless motion. As we have
explained previously in this opinion, the defendant’s
motion sought a new trial based on the prosecutor’s
attempts to elicit a prior consistent statement from a
witness. We already have found that that claim lacks
merit. See part I of this opinion. Indeed, the concurring
and dissenting opinion agrees with this conclusion.
Thus, unlike the concurring and dissenting opinion, we
cannot conclude that the failure to get the trial court’s
‘‘considered views’’ of a motion that so obviously lacks
merit was an error so harmful that a manifest injustice
has occurred.
We are also guided by this court’s decision in State v.
Myers, supra, 290 Conn. 278. In that case, the defendant
appealed from a judgment of conviction for possession
of narcotics. Id., 280–81. On appeal, the defendant
alleged that the trial court committed plain error when
it did not comply with Practice Book § 42-2 by not
affording the defendant a hearing regarding his repeat
offender status. Id., 284–85. The Appellate Court agreed,
observing that a failure to comply with ‘‘applicable rules
of practice’’ was, per se, plain error. (Internal quotation
marks omitted.) Id., 285.
On appeal to this court, we observed as follows:
‘‘Although we agree with the Appellate Court that the
trial court’s failure to comply with the procedures of
Practice Book § 42-2 was clearly improper, we conclude
that the Appellate Court abused its discretion in vacat-
ing the defendant’s sentence because the [trial court’s]
error . . . did not ‘result in manifest injustice.’ . . .
Indeed, apart from the trial court’s failure to comply
strictly with the applicable rule of practice, which we
do not condone, the defendant has failed to raise any
doubt with respect to the validity of his prior conviction.
A trial court’s failure to comply with a rule of criminal
procedure, without more, is insufficient to require
reversal for plain error.’’ (Citation omitted; emphasis
in original; footnote omitted.) Id., 289–90.
Similarly, although we do not condone the trial
court’s failure to rule on the motion for a new trial
before sentencing the defendant without a stay of exe-
cution, its failure to do so, without more, is insufficient
to require reversal for plain error. Indeed, in the present
case, as in State v. Myers, supra, 290 Conn. 278, the
defendant has failed to raise any doubt with respect to
the validity of his conviction, particularly when we have
had the opportunity to review, and reject, the very
claims of prosecutorial impropriety raised in his motion
for a new trial.
Furthermore, we agree with the state that there are
other avenues by which a defendant may address such
claims of prosecutorial impropriety. For instance, a
defendant could (1) pursue a direct appeal from his
or her conviction, as the defendant did in the present
appeal, or (2) file a petition for writ of habeas corpus.
The defendant further contends that his other claim
within the motion for a new trial, namely, the claim
that the state violated Brady v. Maryland, supra, 373
U.S. 83, should be addressed by the trial court because
the trial court is in a unique position to understand the
intricacies of the present case. We are not persuaded.
First and foremost, as the state points out, the defen-
dant’s Brady claim was only added to his motion for
a new trial three months after his sentence was exe-
cuted. As a result, the trial court already had lost juris-
diction over the motion. Consequently, the trial court
never had jurisdiction over this claim.
Second, although it is true that this court has recog-
nized the importance of the trial judge’s ‘‘superior
opportunity to assess the proceedings over which he or
she has personally presided’’; (internal quotation marks
omitted) State v. Smith, supra, 313 Conn. 347; this does
not mean that the trial court is the only court that can
review a Brady claim. Indeed, this court has regularly
entertained claims of Brady violations that were not
distinctly raised at trial, as long as those claims satisfied
Golding.13 See, e.g., State v. Jordan, 314 Conn. 354,
369–76, 102 A.3d 1 (2014); State v. Ouellette, 295 Conn.
173, 185–87, 989 A.2d 1048 (2010). Moreover, as the
Appellate Court noted in the present case, newly discov-
ered Brady claims may also be brought by way of a
petition for a new trial up to three years after sentenc-
ing. State v. McCoy, supra, 171 Conn. App. 328 n.6; see
also General Statutes § 52-270. Therefore, we cannot
conclude that the trial court’s failure to review the
defendant’s Brady claim constitutes manifest injustice.
Accordingly, we conclude that the defendant is not enti-
tled to have his sentence vacated pursuant to the plain
error doctrine.
The judgment of the Appellate Court is reversed inso-
far as that court affirmed the trial court’s denial of
the defendant’s motion for a new trial, and the case
is remanded to the Appellate Court with direction to
reverse that ruling and to remand the case to the trial
court with direction to dismiss the defendant’s motion;
the judgment of the Appellate Court is affirmed in all
other respects.
In this opinion ROBINSON, C. J., and KAHN and
VERTEFEUILLE, Js., concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
The defendant appealed directly to this court pursuant to General Stat-
utes § 51-199 (b) (3), and we subsequently transferred the appeal to the
Appellate Court. See General Statutes § 51-199 (c); Practice Book § 65-1.
2
We granted certification to appeal, limited to the following questions:
(1) ‘‘Did the Appellate Court properly affirm the trial court’s judgment by
concluding that, notwithstanding any improper conduct by the state, the
defendant was not deprived of a fair trial?’’ (2) ‘‘Did the Appellate Court
properly conclude that the trial court lost jurisdiction to hear the defendant’s
motion for a new trial?’’ And (3) ‘‘In the alternative, did the trial court
improperly sentence the defendant while his motion for a new trial was
pending?’’ State v. McCoy, 325 Conn. 911, 158 A.3d 321 (2017).
Following oral arguments, this court requested supplemental briefing from
the parties, limited to the following question: ‘‘If we conclude that the trial
court lost subject matter jurisdiction upon sentencing the defendant, is the
doctrine of plain error applicable to the trial court’s failure to have decided
the defendant’s pending and timely filed motion for a new trial before it
sentenced the defendant?’’
3
The defendant also asserts that the Appellate Court improperly con-
cluded that the prosecutor did not violate State v. Singh, 259 Conn. 693,
793 A.2d 226 (2002), when she made statements during closing arguments
suggesting to the jury that, in order to find that the state’s key witness had
a plea deal with the state, the jury would have to conclude that other
witnesses were lying. The state asserts that the defendant’s claim alleging
a violation of State v. Singh, supra, 693, is not reviewable because he did
not include that issue in his petition for certification to appeal. We agree
with the state.
The Appellate Court concluded that the prosecutor did not violate Singh
and, thus, did not engage in any impropriety regarding this issue. Therefore,
the Appellate Court did not consider that alleged impropriety when it con-
cluded that the defendant was not deprived of a fair trial. In his petition
for certification to appeal, the defendant did not ask this court to certify a
question regarding the alleged violation of State v. Singh, supra, 259 Conn.
693. Instead, the defendant only sought, and we only granted, certification on
the issue of whether the Appellate Court’s conclusion that the improprieties,
either found or assumed, did not deprive the defendant of a fair trial. See
footnote 2 of this opinion. Accordingly, we conclude that the Singh claim
is not properly before this court.
4
The defendant also asserts that the Appellate Court improperly assumed,
without deciding, that the prosecutor improperly attempted to elicit prior
consistent statements in violation of the court’s evidentiary ruling. The
defendant asserts that the Appellate Court should have determined that
these actions by the prosecutor were improper. We reject this claim. Indeed,
the Appellate Court’s decision to assume, without deciding, that these state-
ments were improper afforded it the opportunity to conduct the due process
analysis in the same manner it would have if it had decided that the state-
ments were improper.
5
The concurring and dissenting opinion misapprehends the common law
related to jurisdiction of a trial court in a criminal case. The concurring
and dissenting opinion characterizes the rule ‘‘at issue [as] the product of
common law; it is a common-law exception to the court’s inherent authority
to open, correct, and modify judgments. . . . Accordingly, because the rule
at issue is a common-law rule, this court has the authority to clarify, develop,
and adapt the rule, including limiting its scope and applicability through
exceptions.’’ (Citations omitted.) We disagree. This court has explained
repeatedly that it must rely on a legislative or constitutional grant of jurisdic-
tion to enable it to have jurisdiction over a criminal judgment after the
execution of the sentence. In criminal cases, the well established principle
is 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 [C]ommissioner of [C]orrection
and begins serving the sentence. . . . Without a legislative or constitu-
tional grant of continuing jurisdiction, however, the trial court lacks juris-
diction to modify its judgment.’’ (Emphasis added; internal quotation marks
omitted.) State v. Evans, 329 Conn. 770, 778, 189 A.3d 1184 (2018), cert.
denied, U.S. , 139 S. Ct. 1304, 203 L. Ed. 2d 425 (2019).
The concurring and dissenting opinion further asserts that the question
presented in the present case ‘‘is a question of judicial policy . . . .’’ We
disagree. This court has repeatedly explained that ‘‘the judiciary cannot
confer jurisdiction on itself through its own rule-making power’’ and that
courts are ‘‘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.’’ State v.
Lawrence, 281 Conn. 147, 155, 913 A.2d 428 (2007). Instead of being allowed
to expand the jurisdiction of a criminal court as a matter of ‘‘policy,’’ this
court must have a legislative or constitutional grant of continuing jurisdic-
tion. The defendant and the concurring and dissenting opinion do not assert
that either of these exists in the present case. Accordingly, we will not
contort our well established case law to reach the result that the concurring
and dissenting opinion urges this court to adopt.
6
We have explained previously that, ‘‘ ‘[a]t common law, the trial court’s
jurisdiction to modify or vacate a criminal judgment was also limited to the
‘‘term’’ in which it had been rendered. . . . Since our trial courts no longer
sit in ‘‘terms,’’ that particular [common-law] limitation no longer has vitality
in this state.’’ (Citation omitted.) State v. Parker, supra, 295 Conn. 834 n.7.
7
In Luzietti, the dissenting justice opined that this court’s decision in
Wilson reflected a movement away from the traditional common-law view
that a trial court loses jurisdiction upon the execution of the defendant’s
sentence and that the majority decision represented a departure from the
rule announced in Wilson. State v. Luzietti, supra, 230 Conn. 436–37 (Katz,
J., dissenting). A majority of this court rejected the dissenting justice’s claim.
Given the dissenting opinion in Luzietti, the concurring and dissenting
opinion’s assertion that Luzietti was decided ‘‘without . . . even discussing
Wilson’’ is somewhat misleading. A complete reading of Luzietti demon-
strates that the dissent in that case took the same position as the concurring
and dissenting opinion espouses in the present case—that Wilson stood for
the proposition that the civil rule allowing a trial court to modify its judgment
within four months applies to criminal cases. However, by concluding that
‘‘once judgment has been rendered and the defendant has begun serving
the sentence imposed, the trial court lacks jurisdiction to modify its judgment
in the absence of a legislative or constitutional grant of continuing jurisdic-
tion,’’ the majority in Luzietti rejected the dissent’s position and its interpre-
tation of Wilson. State v. Luzietti, supra, 230 Conn. 431. Because Wilson
was explicitly argued by the dissent in Luzietti, and the majority’s conclusion
is completely contrary to Wilson, we conclude that the court in Luzietti
considered the reading of Wilson asserted by the concurring and dissenting
opinion in the present case and rejected it.
8
The concurring and dissenting opinion repeatedly quotes from State v.
Ramos, supra, 306 Conn. 133–35, for the proposition that there is a ‘‘strong
presumption in favor of jurisdiction.’’ Although the concurring and dissenting
opinion once notes that ‘‘the strong presumption in favor of jurisdiction
must be considered in light of the common-law rule at issue,’’ its repeated
citation to Ramos for the presumption in favor of jurisdiction and consistent
analogy to the civil context for this rule misses the mark. Indeed, Ramos
highlights this critical distinction when it explained that, ‘‘although this
court has recognized the general principle that there is a strong presumption
in favor of jurisdiction . . . in criminal cases, this principle is considered
in light of the common-law rule that, ‘once a defendant’s sentence has
begun [the] court may no longer take any action affecting a defendant’s
sentence unless it expressly has been authorized to act.’ ’’ (Emphasis added.)
State v. Ramos, supra, 134–35. Accordingly, Ramos is entirely consistent
with our position and contrary to the one espoused by the concurring and
dissenting opinion.
9
The concurring and dissenting opinion refers to this mechanism as a
‘‘work-around’’ and asserts that it ‘‘undercuts not only the finality of the
judgment, but also the other policy justification the state offers for the
draconian rule the majority adheres to, i.e., that trial judges will take too
long to rule on such motions.’’ We disagree. As this court repeatedly has
recognized, a judge sitting in the criminal court often finds that it is necessary
to stay the execution of a defendant’s sentence to ensure that criminal
sentences are imposed in the manner intended. See Copeland v. Warden,
225 Conn. 46, 49, 621 A.2d 1311 (1993). For instance, if a defendant has
charges pending in multiple jurisdictions, staying the execution of the sen-
tence in one jurisdiction until the defendant is able to resolve his matters
in another jurisdiction enables the defendant to receive appropriate credit
for the time served on the charges. Therefore, instead of being a ‘‘work-
around,’’ as the concurring and dissenting opinion asserts, this is a useful
mechanism, which is expressly rooted in case law and routinely utilized by
Superior Court judges, and could have been utilized by the trial court in
the present case to avoid the result the concurring and dissenting opinion
seeks to avoid. Given the fact that a trial court loses jurisdiction in a criminal
case upon execution of the defendant’s sentence, the well established proce-
dure, which the law has recognized for years, is more properly viewed as
a way to promote the ends of justice and efficiency.
10
The concurring and dissenting opinion asserts that, ‘‘[e]ven if the major-
ity is correct that Luzietti has thrown cold water on Wilson and Myers, the
trial court could have opened the judgment to rule on the new trial motion
under the related concept of mutual mistake.’’ The concurring and dissenting
opinion then proposes that this court should apply the civil mutual mistake
doctrine, which allows a party to file a motion to open or set aside a judgment
within four months from the date of judgment if it was obtained because
of a mutual mistake. It is important to note that neither of the parties asked
this court to adopt this rule, and it was not argued at the trial court or the
Appellate Court. Accordingly, we decline to address it. See, e.g., State v.
Fauci, 282 Conn. 23, 26 n.1, 917 A.2d 978 (2007).
11
The concurring and dissenting opinion asserts that it ‘‘would reverse
the judgment of the Appellate Court and remand the case to that court with
direction to remand the case to the trial court with direction to rule on that
motion—a simple solution that [it] cannot fathom our law does not permit.’’
Presumably, in the concurring and dissenting opinion’s view, the defendant’s
conviction would remain intact, and his perfectly legal sentence would
remain intact, but this court would send the case back to the same trial
judge solely for the purpose of making a ruling on the motion for a new trial.
The concurring and dissenting opinion’s position ignores the complicated
procedural posture of this case.
First, it is not at all clear that the trial court can rule on the motion
for a new trial without vacating the defendant’s sentence. Second, if the
concurring and dissenting opinion is suggesting that we reverse the Appellate
Court’s judgment and also vacate the defendant’s sentence, then it is not
entirely clear whether the same trial judge would hear the case on remand.
See General Statutes § 51-183c.
Moreover, if the remand to the trial court is to serve any more than a
perfunctory purpose, it would seem necessary to not only reverse the judg-
ment of the Appellate Court, but to vacate the decision of the Appellate
Court that considered, and rejected, the merits of the same prosecutorial
impropriety claims alleged in the defendant’s motion for new trial. Other-
wise, the trial court would be in the unenviable position of either ignoring
the Appellate Court’s decision in its entirety or grappling with its determina-
tions on issues that the Appellate Court has determined have no merit.
However, it is unclear what authority this court has to vacate the decision
of the Appellate Court in these circumstances.
Rather than tackle these procedural complexities, the concurring and
dissenting opinion’s proposal is to ‘‘reverse the judgment of the Appellate
Court and remand the case to that court with direction to remand the case
to the trial court to rule on the motion for a new trial.’’ Not only does this
suggested remand order ignore the defendant’s sentence—which was not
an illegal sentence—but it disregards the fact that the Appellate Court has
considered the merits of the defendant’s prosecutorial impropriety claims
and found those claims to be meritless.
12
The concurring and dissenting opinion appears to read much into the
trial court’s statement that the motion for new trial was colorable. We do
not believe that this statement tips the scales in any measurable way in
favor of the defendant’s satisfaction of his burden to show egregious harm.
The trial court’s unqualified and unexplained statement that the defendant’s
motion was ‘‘colorable’’ is not enough for us to find that the court’s failure
to rule on the motion is a harm egregious enough to warrant reversal under
the plain error doctrine. This is especially so given that both the Appellate
Court and this court have concluded that the claims raised in that motion
lack merit.
13
See State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989); see
also In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying
Golding’s third prong).