State v. Ward

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STATE OF CONNECTICUT v. JEFFREY K. WARD
(AC 40534)
Alvord, Sheldon and Moll, Js.*
Syllabus
The defendant, who had been convicted, on pleas of guilty, of the crimes
of manslaughter in the first degree and assault in the first degree in
connection with an incident that occurred at a motel, appealed to this
court from the trial court’s denial of his motion to correct an illegal
sentence. The defendant had a long history of untreated mental health
issues for which he began treatment after his arrest. After the court
canvassed the defendant, the court accepted his pleas of guilty and
sentenced him to a total effective sentence of twenty-five years of incar-
ceration. Thereafter, the defendant filed a motion to correct an illegal
sentence, claiming, inter alia, that he was incompetent at the time of
his sentencing hearing and, therefore, that his sentence was imposed
in an illegal manner. On appeal to this court, the defendant claimed that
the trial court improperly dismissed his motion to correct illegal sentence
for lack of subject matter jurisdiction. Held:
1. The defendant could not prevail on his unpreserved claim that his due
process rights, under the federal constitution, were violated when the
trial court failed to refer his motion to correct to the sentencing judge,
whom the defendant claimed was familiar with the defendant and his
mental health issues, and was better situated to consider the issues
raised in the motion to correct; this court previously has determined
that due process does not require the sentencing court to hear and
adjudicate a defendant’s motion to correct an illegal sentence or a
sentence imposed in an illegal manner, there was no appellate authority
in support of the defendant’s claim, and due process, which seeks to
assure a defendant a fair trial, not a perfect one, does not mandate that
a motion to correct an illegal sentence or a sentence imposed in an
illegal matter be heard by the judge whom the defendant preferred or
who had the greatest familiarity with the defendant.
2. The trial court did not err in dismissing the motion to correct an illegal
sentence for lack of subject matter jurisdiction, as the defendant failed
to set forth a colorable claim that his sentence was imposed in an illegal
manner; the defendant’s motion failed to establish any possibility that
he was incompetent at the time of sentencing or that there was sufficient
information before the sentencing court requiring a competency exami-
nation and hearing prior to the defendant’s sentencing, although the
parties and the sentencing court were aware that the defendant had a
history of mental health issues, nothing in the transcripts indicated that
he had been incompetent when he was sentenced or that a competency
evaluation and hearing prior to sentencing were required, and a police
report, psychiatric report and records on which the defendant relied in
support of his claim could not be viewed reasonably to support a conclu-
sion that he was incompetent at the time of sentencing, as those records
suggested that the defendant had a history of mental health issues
and was at risk of experiencing symptoms in the future, but failed to
demonstrate that there was any likelihood that he was incompetent
when sentenced.
(One judge dissenting in part and concurring in part)
Argued February 11—officially released October 29, 2019
Procedural History
Substitute information charging the defendant with
the crimes of manslaughter in the first degree and
assault in the first degree, brought to the Superior Court
in the judicial district of Hartford, where the defendant
was presented to the court, Alexander, J., on pleas of
guilty; judgment of guilty; thereafter, the court, Dewey,
J., dismissed the defendant’s motion to correct an illegal
sentence, and the defendant appealed to this court.
Affirmed.
Aimee Lynn Mahon, assigned counsel, with whom
was Temmy Ann Miller, assigned counsel, for the appel-
lant (defendant).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Gail P. Hardy, state’s attorney, and
John F. Fahey, senior assistant state’s attorney, for the
appellee (state).
Opinion
MOLL, J. The defendant, Jeffrey K. Ward, appeals
from the judgment of the trial court dismissing his
motion to correct a sentence imposed in an illegal man-
ner (motion to correct). On appeal, the defendant claims
that the court erred in (1) adjudicating the motion to
correct, rather than referring the motion to the sentenc-
ing court, and (2) concluding that it lacked subject
matter jurisdiction over the motion to correct.1 We dis-
agree and, accordingly, affirm the judgment of the trial
court.
The following facts and procedural history are rele-
vant to our resolution of the appeal. On June 25, 2012,
pursuant to a plea agreement, the defendant pleaded
guilty to manslaughter in the first degree in violation
of General Statutes § 53a-55 (a) (1) and assault in the
first degree in violation of General Statutes § 53a-59 (a)
(1) in connection with an incident that had occurred
at a motel in Enfield on September 29, 2011. After
canvassing the defendant, the trial court, Alexander,
J., accepted the defendant’s guilty pleas. On July 23,
2012, following a sentencing hearing, Judge Alexander
sentenced the defendant to a period of twenty years of
incarceration on the count of manslaughter in the first
degree and five years of incarceration on the count of
assault in the first degree, to run consecutively to the
sentence on the count of manslaughter in the first
degree, for a total effective sentence of twenty-five
years of incarceration, as agreed to by the parties.2 The
defendant did not appeal from his conviction.
On November 3, 2016, pursuant to Practice Book § 43-
22, the defendant filed the motion to correct, accompa-
nied by a memorandum of law and exhibits. Specifically,
the defendant contended that his sentence was imposed
in an illegal manner on the grounds that (1) he had
been incompetent at the time of sentencing and (2) the
sentencing court had failed to order, sua sponte, that
a competency evaluation and hearing be conducted pur-
suant to General Statutes § 54-56d before the defen-
dant’s sentencing on the basis of information known
to the sentencing court.
On November 17, 2016, the trial court, Dewey, J.,
held a hearing on the motion to correct. At the outset
of the hearing, the state argued that the court lacked
subject matter jurisdiction over the motion to correct,
contending that the defendant’s claims should be raised
by way of a petition for a writ of habeas corpus. In
addition, the state argued that the record did not demon-
strate that the defendant’s sentence was imposed in an
illegal manner. The defendant argued that the court had
subject matter jurisdiction over the motion to correct
because his alleged incompetence at the time of sen-
tencing and the sentencing court’s failure to order, sua
sponte, that a competency evaluation and hearing be
conducted before sentencing were germane to the legal-
ity of the manner in which his sentence was imposed.
Following argument, the court reserved its decision
regarding jurisdiction and heard the parties on the mer-
its of the motion to correct. On March 7, 2017, the
court issued a memorandum of decision dismissing the
motion to correct for lack of subject matter jurisdiction.
This appeal followed. Additional facts and procedural
history will be set forth as necessary.
I
We first address the defendant’s claim that Judge
Dewey erred in hearing and ruling on the motion to
correct, rather than referring the motion to correct to
Judge Alexander, the sentencing judge. Specifically, the
defendant asserts that due process3 required the motion
to correct to be adjudicated by Judge Alexander, who,
as the sentencing judge, had observed and interacted
with the defendant, was familiar with the defendant
and his mental health issues, and was better situated
to consider the issues raised in the motion to correct.
We are not persuaded.
As a preliminary matter, the defendant concedes that
this claim is unpreserved;4 he argues, however, that his
unpreserved claim is reviewable pursuant to State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781,
120 A.3d 1188 (2015). Under Golding, ‘‘a defendant can
prevail on a claim of constitutional error not preserved
at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim
of error; (2) the claim is of constitutional magnitude
alleging the violation of a fundamental right; (3) the
alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial; and (4) if subject
to harmless error analysis, the state has failed to demon-
strate harmlessness of the alleged constitutional vio-
lation beyond a reasonable doubt. In the absence of
any one of these conditions, the defendant’s claim will
fail.’’ (Emphasis in original; footnote omitted.) State
v. Golding, supra, 239–40. ‘‘The first two steps in the
Golding analysis address the reviewability of the claim,
while the last two steps involve the merits of the claim.’’
(Internal quotation marks omitted.) State v. Jerrell R.,
187 Conn. App. 537, 543, 202 A.3d 1044, cert. denied,
331 Conn. 918, 204 A.3d 1160 (2019).
At the outset, in response to a question raised by the
state in its appellate brief, we note that the defendant’s
unpreserved claim does not fall within the ambit of
those cases that stand for the proposition that a defen-
dant is not entitled to Golding review of an unpreserved
claim challenging the legality of a sentence that was
not raised by way of a motion to correct an illegal
sentence. See, e.g., State v. Gang Jin, 179 Conn. App.
185, 195–96, 179 A.3d 266 (2018). Here, the unpreserved
claim at issue concerns the actions of Judge Dewey
in not referring the motion to correct to Judge Alexan-
der, as opposed to the legality of the sentence imposed
by Judge Alexander, and, thus, Golding review may
be available. See Mozell v. Commissioner of Correc-
tion, 291 Conn. 62, 67 n.2, 967 A.2d 41 (2009) (reject-
ing respondent’s argument that Golding review inappli-
cable in all circumstances arising from appeal from
judgment of habeas court and concluding that Golding
review may be available to challenge certain actions of
habeas court); see also State v. White, 182 Conn. App.
656, 673–74, 191 A.3d 172 (concluding that defendant’s
unpreserved claim, that trial court erred by not recusing
itself from hearing merits of motion to correct illegal
sentence, failed under third prong of Golding), cert.
denied, 330 Conn. 924, 194 A.3d 291 (2018).
The defendant’s unpreserved claim, that, as a mat-
ter of law, the sentencing court was the only judicial
authority permitted to decide the motion to correct,
meets the first two prongs of Golding and, therefore,
is reviewable. Turning to the first prong of Golding,
we conclude that the record is adequate to review the
defendant’s claim of error. With respect to the second
prong of Golding, the defendant’s due process claim is
of constitutional magnitude. See State v. Battle, 192
Conn. App. 128, 144, A.3d (2019) (claim that
defendant’s right to due process was violated because
sentencing court did not act on motion to correct illegal
sentence was of constitutional magnitude).
Although the defendant’s due process claim is review-
able, we conclude that the claim does not satisfy the
third prong of Golding in light of this court’s recent
decision in State v. Battle, supra, 192 Conn. App. 146–47,
wherein this court concluded that due process does
not require the sentencing court to hear and adjudicate
a defendant’s motion to correct an illegal sentence or
a sentence imposed in an illegal manner.
In Battle, this court observed that the current version
of Practice Book § 43-225 ‘‘does not limit the ‘judicial
authority’ empowered to correct an illegal sentence or a
sentence imposed in an illegal manner to the sentencing
court.’’ Id., 145. This court further observed that there
was no appellate authority ‘‘holding that a defendant’s
motion to correct an illegal sentence or a sentence
imposed in an illegal manner must be heard and adju-
dicated by the particular judge who imposed the sen-
tence.’’ (Emphasis in original.) Id. Ultimately, this court
concluded: ‘‘Due process does not mandate that a
motion to correct an illegal sentence or a sentence
imposed in an illegal manner be heard by the judge
whom the defendant prefers or who has the greatest
familiarity with the defendant. Due process seeks to
assure a defendant a fair trial, not a perfect one.’’ (Inter-
nal quotation marks omitted.) Id., 146–47.
The defendant’s due process claim is controlled by
Battle. Accordingly, we conclude that the defendant in
the present case did not suffer a due process violation
and, therefore, his claim fails under the third prong
of Golding.6
II
We now turn to the defendant’s claim that the court
erred in dismissing the motion to correct for lack of
subject matter jurisdiction. Specifically, the defendant
asserts that the court misconstrued his claim in the
motion to correct, which led the court to conclude
erroneously that it lacked subject matter jurisdiction
over the motion to correct. He contends that he raised
a colorable claim contesting the legality of the manner
in which his sentence was imposed, thereby invoking
the court’s subject matter jurisdiction. Although we
agree with the defendant that the court’s analysis in
dismissing the motion to correct was flawed, we never-
theless conclude that the defendant failed to present a
colorable claim that his sentence was imposed in an
illegal manner, and, thus, the court properly dismissed
the motion to correct for lack of subject matter juris-
diction.
We begin by setting forth the relevant standard of
review and legal principles that guide our analysis of
the defendant’s claim. ‘‘Because the defendant’s [claim]
pertain[s] to the subject matter jurisdiction of the trial
court, [it] . . . present[s] a question of law subject to
the plenary standard of review. . . .
‘‘The Superior Court is a constitutional court of gen-
eral jurisdiction. In the absence of statutory or constitu-
tional provisions, the limits of its jurisdiction are deline-
ated by the common law. . . . It is well established
that under the common law a trial court has the discre-
tionary 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 com-
missioner of correction and begins serving the sen-
tence. . . . Because it is well established that the juris-
diction of the trial court terminates once a defendant
has been sentenced, a trial court may no longer take
any action affecting a defendant’s sentence unless it
expressly has been authorized to act. . . .
‘‘[Practice Book] § 43-22 embodies a common-law
exception that permits the trial court to correct an
illegal sentence or other illegal disposition. . . . Thus,
if the defendant cannot demonstrate that his motion to
correct falls within the purview of § 43-22, the court
lacks jurisdiction to entertain it. . . . [I]n order for the
court to have jurisdiction over a motion to correct an
illegal sentence after the sentence has been executed,
the sentencing proceeding [itself] . . . must be the
subject of the attack. . . .
‘‘[A]n illegal sentence is essentially one [that] either
exceeds the relevant statutory maximum limits, violates
a defendant’s right against double jeopardy, is ambigu-
ous, or is internally contradictory. By contrast . . .
[s]entences imposed in an illegal manner have been
defined as being within the relevant statutory limits but
. . . imposed in a way [that] violates [a] defendant’s
right . . . to be addressed personally at sentencing and
to speak in mitigation of punishment . . . or his right
to be sentenced by a judge relying on accurate informa-
tion or considerations solely in the record, or his right
that the government keep its plea agreement promises
. . . . These definitions are not exhaustive, however,
and the parameters of an invalid sentence will evolve
. . . as additional rights and procedures affecting sen-
tencing are subsequently recognized under state and
federal law.’’ (Citation omitted; emphasis omitted; inter-
nal quotation marks omitted.) State v. Jason B., 176
Conn. App. 236, 242–44, 170 A.3d 139 (2017). Pursuant
to § 54-56d (a), ‘‘[a] defendant shall not be tried, con-
victed or sentenced while the defendant is not compe-
tent. For the purposes of this section, a defendant is
not competent if the defendant is unable to understand
the proceedings against him or her or to assist in his
or her own defense.’’ (Emphasis added.) A defendant
is presumed to be competent, and the burden of proving
that a defendant is not competent is on the party raising
the issue, or on the state if the trial court raises the
issue. See General Statutes § 54-56d (b). In addition,
‘‘[i]f, at any time during a criminal proceeding, it appears
that the defendant is not competent, counsel for the
defendant or for the state, or the court, on its own
motion, may request an examination to determine the
defendant’s competency.’’ General Statutes § 54-56d
(c).
In the motion to correct, the defendant claimed that
his sentence was imposed in an illegal manner because
(1) he had been incompetent at the time of sentencing
and (2) the sentencing court had failed to order, sua
sponte, that a competency hearing be held prior to
sentencing on the basis of information known to the
court. The defendant also asserted that he had been
incompetent when he had entered his guilty pleas on
June 25, 2012, and that he believed that he was entitled
to withdraw his guilty pleas if the motion to correct
were granted and a new sentencing hearing were
ordered; however, he stated expressly in the motion to
correct that ‘‘[t]he issue [raised in the motion to correct]
. . . is [the defendant’s] sentencing, and given [the
defendant’s] incompetence at the time, it was imposed
in an illegal manner.’’ In addition, during the hearing
held on the motion to correct, defense counsel stressed
that the defendant was not challenging the legality of
his sentence but, rather, the legality of the manner in
which it was imposed. The defendant submitted the
following with the motion to correct: four pretrial tran-
scripts and the sentencing transcript; a police report;
a report completed following a psychiatric evaluation
of the defendant (psychiatric report), which was filed
under seal; and certain of the defendant’s psychiatric
records from the Department of Correction (psychiatric
records), which were filed under seal.
In its memorandum of decision dismissing the motion
to correct, the court interpreted the defendant’s chief
claim to be that ‘‘[the defendant] was incompetent at
the time of sentencing and, consequently, the sentence
was imposed in an illegal manner.’’ The court continued:
‘‘The difficulty with the defendant’s position is that the
sentencing procedure in the present case complied with
all constitutional and statutory requirements.’’ Citing
State v. Robles, 169 Conn. App. 127, 133, 150 A.3d 687
(2016), cert. denied, 324 Conn. 906, 152 A.3d 544 (2017),
the court determined that the defendant’s claims did
not fall into any of the categories of claims identified
in Robles over which a trial court has jurisdiction to
modify a sentence after it has commenced. The court
then determined that, in substance, the defendant was
making an improper collateral attack on his conviction
on the basis of his purported incompetence. The court
determined that the defendant had entered his guilty
pleas knowingly, intelligently, and voluntarily, and that
a motion to correct was not the proper vehicle by which
to challenge the voluntariness of his pleas.
In addition, the court stated that the defendant ‘‘sug-
gests that the trial court has an obligation, sua sponte,
to suspect the defendant’s competency. Nothing in the
record before the trial court reflected an inappropriate
mental health status. To the contrary, there was a pre-
sumption in favor of competence.’’ The court deter-
mined that nothing in the pretrial proceedings demon-
strated that the defendant was unable to assist in his
defense or to consult with his counsel, and that the
court’s participation in the pretrial proceedings had not
put the court on notice that a more searching inquiry
into the defendant’s competence to enter his guilty pleas
was necessary.
We agree with the defendant that the court’s analysis
in dismissing the motion to correct was flawed. After
the court correctly construed the defendant’s claim to
be that his sentence was imposed in an illegal manner
stemming from his alleged incompetence at the time
of sentencing, the court determined that the defendant’s
claim failed to fall into any of the categories recited in
Robles and, thus, the court lacked jurisdiction to con-
sider it. In Robles, this court stated in relevant part:
‘‘Connecticut courts have considered four categories
of claims pursuant to [Practice Book] § 43-22. The first
category has addressed whether the sentence was
within the permissible range for the crimes charged.
. . . The second category has considered violations of
the prohibition against double jeopardy. . . . The third
category has involved claims pertaining to the computa-
tion of the length of the sentence and the question of
consecutive or concurrent prison time. . . . The fourth
category has involved questions as to which sentencing
statute was applicable. . . . [I]f a defendant’s claim
falls within one of these four categories the trial court
has jurisdiction to modify a sentence after it has com-
menced. . . . If the claim is not within one of these
categories, then the court must dismiss the claim for a
lack of jurisdiction and not consider its merits.’’ (Inter-
nal quotation marks omitted.) State v. Robles, supra,
169 Conn. App. 133. The foregoing analysis applies,
however, only to a claim that a sentence is illegal, as
opposed to a claim that a sentence was imposed in
an illegal manner.7 See State v. Evans, 329 Conn. 770,
779–80, 189 A.3d 1184 (2018) (discussing trial court’s
jurisdiction to entertain claims challenging legality of
sentence and legality of manner in which sentence
imposed), cert. denied, U.S. , 139 S. Ct. 1304,
203 L. Ed. 2d 425 (2019). Thus, the court erred in relying
on Robles in adjudicating the defendant’s claim that his
sentence was imposed in an illegal manner. In addition,
the court’s determination that it lacked subject matter
jurisdiction over the motion to correct because the
defendant was collaterally attacking his conviction and
the validity of his guilty pleas was erroneous. Although
the defendant argued that he would seek to withdraw
his guilty pleas if the court granted the motion to correct
and ordered a new sentencing hearing, the pleadings
and the record make clear that the singular focus of
the motion to correct was the sentencing proceeding
and the legality of the manner in which the defendant’s
sentence was imposed. Thus, the court’s examination
of the circumstances surrounding the defendant’s guilty
pleas and its focus on his competence at the time that
he had entered his guilty pleas were misplaced.
Although the court’s analysis in dismissing the motion
to correct was flawed, we nevertheless conclude that
the court properly dismissed the motion to correct for
lack of subject matter jurisdiction on different grounds.
See HSBC Bank USA, National Assn. v. Lahr, 165 Conn.
App. 144, 151, 138 A.3d 1064 (2016) (affirming judgment
of trial court on different grounds). The defendant
asserts that he raised a colorable claim in the motion
to correct asserting that his sentence was imposed in
an illegal manner and, thus, the court had subject matter
jurisdiction to entertain the motion to correct.8 We dis-
agree and conclude that the motion to correct, on its
face, did not set forth a colorable claim contesting the
legality of the manner in which the defendant’s sentence
was imposed, thereby depriving the court of subject
matter jurisdiction.
‘‘Recently, our Supreme Court explained [in State v.
Delgado, 323 Conn. 801, 810, 151 A.3d 345 (2016)], in
addressing the trial court’s dismissal on jurisdictional
grounds of a motion to correct an illegal sentence that
[t]he subject matter jurisdiction requirement may not
be waived by any party, and also may be raised by a
party, or by the court sua sponte, at any stage of the
proceedings, including on appeal. . . . At issue is
whether the defendant has raised a colorable claim
within the scope of Practice Book § 43-22 that would,
if the merits of the claim were reached and decided in
the defendant’s favor, require correction of a sentence.
. . . In the absence of a colorable claim requiring cor-
rection, the trial court has no jurisdiction to modify the
sentence. . . .
‘‘Therefore, as made clear by our Supreme Court in
Delgado, for the trial court to have jurisdiction over
a defendant’s motion to correct a sentence that was
imposed in an illegal manner, the defendant must put
forth a colorable claim that his sentence, in fact, was
imposed in an illegal manner. A colorable claim is [a]
claim that is legitimate and that may reasonably be
asserted, given the facts presented and the current law
(or a reasonable and logical extension or modification
of the current law). . . . For jurisdictional purposes,
to establish a colorable claim, a party must demonstrate
that there is a possibility, rather than a certainty, that a
factual basis necessary to establish jurisdiction exists.’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) State v. Jason B., supra, 176 Conn.
App. 244–45.
In State v. Jason B., supra, 176 Conn. App. 241–42,
the defendant filed a ‘‘motion to correct an illegal sen-
tence,’’ asserting that his sentence was imposed in an
illegal manner because, on the basis of statements made
by the sentencing court at his sentencing hearing, the
sentencing court had considered information that was
inaccurate and outside of the record when imposing
his sentence. The trial court dismissed the defendant’s
motion for lack of subject matter jurisdiction, conclud-
ing that the defendant had not raised a colorable claim
that his sentence was imposed in an illegal manner. Id.,
242. On appeal, this court affirmed the judgment. Id.,
248. After reviewing the record, this court determined
that the sentencing court’s statements at issue in the
defendant’s motion to correct could not reasonably be
viewed as demonstrating that the court considered
information that was inaccurate or outside of the
record. Id., 245–47. Accordingly, this court concluded
that the defendant’s motion to correct, on its face, failed
to present a colorable claim invoking the subject matter
jurisdiction of the trial court. Id.
Here, in the motion to correct, the defendant asserted
that his sentence was imposed in an illegal manner
because (1) he had been incompetent at the time of
sentencing and (2) the sentencing court had failed to
order, sua sponte, a competency evaluation and hearing
on the basis of information known to the court when
it had sentenced the defendant. The defendant attached
several exhibits to the motion to correct to support his
assertions. Guided by the rationale of Jason B., and for
the reasons discussed as follows, we conclude that the
motion to correct, on its face, did not set forth a color-
able claim that the defendant’s sentence was imposed
in an illegal manner.
In support of the motion to correct, the defendant
relied on transcripts of several pretrial proceedings and
the sentencing hearing. During a pretrial proceeding on
April 10, 2012, defense counsel informed Judge Alexan-
der that the defendant had undergone a psychiatric
evaluation during the prior week and that counsel
expected to receive the psychiatric report in the imme-
diate future. Judge Alexander stated that she intended
to review the psychiatric report ‘‘before we can start
discussing any disposition . . . .’’ During a pretrial pro-
ceeding on April 26, 2012, defense counsel informed
Judge Alexander that additional information needed to
be provided to the psychiatrist to complete the psychiat-
ric report for the court’s review. During a pretrial pro-
ceeding on May 15, 2012, the court stated that it was
going to continue the case as a result of ongoing plea
discussions. There was no mention of the defendant’s
psychiatric evaluation or mental health during the May
15, 2012 hearing. During a pretrial proceeding on June
25, 2012, after canvassing the defendant, the trial court
accepted the defendant’s guilty pleas. There was no
discussion of the defendant’s psychiatric evaluation or
mental health at that time. During the sentencing hear-
ing on July 23, 2012, the prosecutor stated that sentenc-
ing the defendant to a total effective sentence of twenty-
five years of incarceration was an appropriate disposi-
tion as a result of the defendant’s ‘‘psychiatric back-
ground’’ and ‘‘mental health history.’’ In addition,
defense counsel represented that the defendant had
been experiencing ‘‘psychotic symptoms which dimin-
ished his capacity to conform his behavior to the law’’
at the time of the incident in September, 2011. Defense
counsel also noted that the psychiatrist hired by defense
counsel to evaluate the defendant had diagnosed him
with paranoid type schizophrenia; the defendant had
been suffering from a mental illness throughout most
of his adult life; in October, 2011, following his incarcer-
ation, the defendant began receiving mental health
treatment and taking anti-psychotic medication; and the
defendant’s symptoms had improved significantly and,
at the time of the sentencing hearing, he was ‘‘calm,
rational, and . . . [understood] and [appreciated] the
seriousness of this situation.’’ Before sentencing the
defendant, Judge Alexander acknowledged that the
defendant had a ‘‘mental health disease,’’ she accepted
defense counsel’s representations that the Department
of Correction was treating the defendant, and she com-
mented that she hoped the defendant would continue
to take the proper medication as it was ‘‘essential for
[his] clear thinking.’’ In the motion to correct, the defen-
dant asserted that the transcripts demonstrated that
the parties and Judge Alexander were aware that the
defendant had ‘‘serious mental health issues’’ prior to
his sentencing.
Next, the defendant relied on a police report dated
September 30, 2011. The police report indicated that
during an interview conducted by a police detective on
that day, the defendant inserted a pencil approximately
five to six inches into his right nostril and, after the
detective had intervened, the defendant attempted to
stab himself in the neck with the pencil, causing a minor
laceration. In the motion to correct, the defendant
asserted that the police report helped demonstrate that
he had been incompetent at the time that he was sen-
tenced.
The next item on which the defendant relied was the
psychiatric report, which included a cover letter dated
May 8, 2012. The psychiatrist who authored the psychi-
atric report based his findings on information that he
had gathered from, inter alia, a ninety minute interview
with the defendant conducted on April 5, 2012, three
and one-half months before sentencing. In the motion
to correct, the defendant asserted that the psychiatric
report contained findings establishing that the defen-
dant was socially withdrawn as an adolescent9 and
began experiencing auditory hallucinations in his early
twenties, which led the defendant to attempt to commit
suicide on multiple occasions; the defendant experi-
enced episodes of paranoid ideation and depression;
the defendant displayed significant mood symptoms
and obsessive and compulsive symptoms, which inter-
fered with his ability to think; the defendant had para-
noid type schizophrenia; the defendant had been receiv-
ing and responding well to anti-psychotic medication,
but he had suffered from psychotic symptoms for many
years without treatment, which could contribute to an
increased likelihood of worse, chronic, and/or more
frequent exacerbations of symptoms; and even with
continued treatment, the defendant was at a significant
risk of continuing to suffer symptoms of his schizophre-
nia. The defendant contended that the findings set forth
in the psychiatric report helped demonstrate that he
had been incompetent when sentenced.
Last, the defendant relied on the psychiatric records,
which comprised clinical records from the Department
of Correction. In the motion to correct, the defendant
asserted that the psychiatric records revealed that in
October, 2011, the defendant reportedly was having
auditory hallucinations and exhibiting paranoid thought
processes, and that he did not believe that his medica-
tions were working; on May 4, 2012, the defendant
reportedly failed to take several doses of medication;
on May 31, 2012, the defendant reportedly was referred
to ‘‘psych for med. re-evaluation’’ and reportedly stated
that he had ‘‘agreed to 20 years for murder’’ but was not
yet sentenced; on July 2, 2012, the defendant reportedly
missed multiple doses of medication, although he was
not exhibiting symptoms of his psychosis; on July 11,
2012, the defendant reportedly missed taking his medi-
cation ‘‘intermittently’’ and reportedly was hearing
voices at night; on July 13, 2012, the defendant report-
edly stated that he was going to be sentenced to twenty
years of incarceration for manslaughter and that his
medication was working to suppress the voices but not
his depression; and on August 24, 2012, the defendant
reportedly stated that he had been sentenced to thirty
years of incarceration for manslaughter. The defendant
contended that the psychiatric records helped establish
that he had been incompetent at the time of his sen-
tencing.
We conclude that, on its face, the motion to correct
did not raise the possibility that the defendant was
incompetent at the time of his sentencing or that Judge
Alexander had information prior to sentencing that
required her to order that a competency evaluation
and hearing be conducted. The pretrial and sentencing
transcripts indicate that the parties and Judge Alexan-
der were aware that the defendant had a history of
mental health issues, but nothing in the transcripts
raises any indication that the defendant had been
incompetent when he was sentenced or that a compe-
tency evaluation and hearing prior to sentencing were
required. Likewise, the police report, the psychiatric
report, and the psychiatric records cannot be viewed
reasonably to support a conclusion that the defendant
was incompetent at the time of sentencing.10 The inci-
dent described in the police report, which occurred in
September, 2011, well before the defendant’s sentenc-
ing and before the defendant had begun receiving men-
tal health treatment from the Department of Correction,
provides no support for the proposition that the defen-
dant was incompetent at the time of sentencing. The
psychiatric report, dated over two months prior to the
defendant’s sentencing, suggests that the defendant had
a history of mental health issues and was at risk of
experiencing symptoms in the future, but it does not
establish that there was any likelihood that the defen-
dant was incompetent when sentenced. Similarly, the
representations in the psychiatric records that, in the
weeks and months preceding his sentencing, the defen-
dant had failed to maintain a strict medication schedule
and had experienced symptoms associated with his
mental health issues do not imply that the defendant
was incompetent when sentenced. In addition, the state-
ments reportedly made by the defendant before and
after his sentencing suggesting that he misunderstood
the length of his sentence cannot be viewed rationally
as establishing that he was not competent at the time
of his sentencing. Accordingly, the defendant failed to
raise a colorable claim in the motion to correct that his
sentence was imposed in an illegal manner.11
The defendant, citing State v. Evans, supra, 329 Conn.
770, appears to contend that his claim that his sentence
was imposed in an illegal manner is colorable per se
because his claim challenges the actions of the sentenc-
ing court and, if successful, would require a new sen-
tencing hearing. We are not persuaded.
In Evans, our Supreme Court concluded that the trial
court had subject matter jurisdiction over a motion to
correct an illegal sentence filed by the defendant, in
which the defendant claimed that his sentence was
illegal because, inter alia, under United States Supreme
Court precedent, the sentence exceeded the relevant
statutory limits. Id., 775. In analyzing whether the court
had subject matter jurisdiction to entertain the defen-
dant’s claim, our Supreme Court stated that ‘‘[t]he juris-
dictional and merits inquiries are separate; whether the
defendant ultimately succeeds on the merits of his claim
does not affect the trial court’s jurisdiction to hear it.
. . . It is well established that, in determining whether
a court has subject matter jurisdiction, every presump-
tion favoring jurisdiction should be indulged. . . . We
emphasize, however, that this general principle that
there is a strong presumption in favor of jurisdiction
. . . in criminal cases . . . 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 affect-
ing a defendant’s sentence unless it expressly has been
authorized to act. . . . Thus, the presumption in favor
of jurisdiction does not itself broaden the nature of
the postsentencing claims over which the court may
exercise jurisdiction in criminal cases, but merely
serves to emphasize that the jurisdictional inquiry is
guided by the plausibility that the defendant’s claim is
a challenge to his sentence, rather than its ultimate
legal correctness. . . . In determining whether it is
plausible that the defendant’s motion challenged the
sentence, rather than the underlying trial or conviction,
we consider the nature of the specific legal claim raised
therein.’’ (Citations omitted; internal quotation marks
omitted.) Id., 784.
Our Supreme Court determined that the defendant
had presented a ‘‘sufficiently plausible’’ interpretation
of the statutes at issue in that case to render his claim
‘‘colorable for the purpose of jurisdiction over his
motion [to correct an illegal sentence]’’ and observed
that the defendant was not requesting that his convic-
tion be disturbed but, rather, was seeking a remand for
resentencing. Id., 786.
Evans supports, rather than conflicts with, our con-
clusion that the defendant failed to set forth a colorable
claim that his sentence was imposed in an illegal man-
ner. In Evans, our Supreme Court did not conclude that
the defendant had raised a colorable claim contesting
the legality of his sentence merely because the defen-
dant’s claim was directed to the validity of his sentence
and the defendant would be entitled to a new sentencing
hearing if the claim was successful; instead, our
Supreme Court determined that the defendant’s claim
was colorable on the ground that the defendant had
set forth a ‘‘sufficiently plausible’’ interpretation of the
statutory scheme underlying his contention that his sen-
tence exceeded statutory limits. Id., 785–86. In the pres-
ent case, in contrast, the defendant’s claim is not color-
able because the defendant’s motion to correct, on its
face, failed to establish any possibility that he was
incompetent at the time of sentencing or that there was
sufficient information before Judge Alexander requiring
a competency examination and hearing prior to the
defendant’s sentencing.
In sum, we conclude that the court lacked subject
matter jurisdiction to entertain the motion to correct
on the basis that the defendant failed to set forth a
colorable claim in the motion to correct that his sen-
tence was imposed in an illegal manner. Therefore, the
court properly dismissed the motion to correct for lack
of subject matter jurisdiction.
The judgment is affirmed.
In this opinion ALVORD, J., concurred.
* The listing of the judges reflects their seniority status on this court as
of the date of oral argument.
1
For ease of discussion, we address the defendant’s claims in a different
order than they are set forth in his principal appellate brief.
2
In addition to pleading guilty to manslaughter in the first degree and
assault in the first degree, the defendant admitted to two counts of violating
his probation in violation of General Statutes § 53a-32. Judge Alexander
revoked and terminated the defendant’s probations.
3
The defendant does not specify whether his due process claim is raised
pursuant to the federal constitution or the state constitution. Therefore, we
treat the defendant’s claim as limited to the federal constitution. See State
v. Alvarez, 257 Conn. 782, 796 n.10, 778 A.2d 938 (2001).
4
Not only did the defendant never request that Judge Alexander adjudicate
the motion to correct, but the proposed order attached to the motion to
correct specifically contemplated Judge Dewey being the deciding authority.
5
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.’’
6
In his reply brief, the defendant asserts for the first time that we should
invoke our inherent supervisory authority to review his unpreserved claim
if we conclude that his claim fails under Golding. ‘‘Generally, this court
does not consider claims raised for the first time in a reply brief.’’ Perry v.
State, 94 Conn. App. 733, 740 n.5, 894 A.2d 367, cert. denied, 278 Conn. 915,
899 A.2d 621 (2006). Even if the defendant’s request were proper, we observe
that ‘‘[b]ypass doctrines permitting the review of unpreserved claims such
as [Golding] and plain error, are generally adequate to protect the rights of
the defendant and the integrity of the judicial system . . . . [T]he supervi-
sory authority of this state’s appellate courts is not intended to serve as a
bypass to the bypass, permitting the review of unpreserved claims of case
specific error—constitutional or not—that are not otherwise amenable to
relief under Golding or the plain error doctrine. Rather, the integrity of the
judicial system serves as a unifying principle behind the seemingly disparate
use of our supervisory powers. . . . Thus, a defendant seeking review of
an unpreserved claim under our supervisory authority must demonstrate
that his claim is one that, as a matter of policy, is relevant to the perceived
fairness of the judicial system as a whole, most typically in that it lends
itself to the adoption of a procedural rule that will guide the lower courts
in the administration of justice in all aspects of the criminal process.’’
(Internal quotation marks omitted.) State v. Leach, 165 Conn. App. 28, 35–36,
138 A.3d 445, cert. denied, 323 Conn. 948, 169 A.3d 792 (2016). We see no
reason to invoke our supervisory powers here.
7
The excerpt in Robles cited by the trial court quotes language that was
first set forth by our Supreme Court in State v. Lawrence, 281 Conn. 147,
156–57, 913 A.2d 428 (2007), in analyzing the parameters of a claim that a
sentence is illegal.
8
On June 24, 2019, after the parties had submitted their respective appel-
late briefs and following oral argument, we, sua sponte, ordered the parties
to file supplemental briefs addressing the following question: ‘‘Whether the
facts pleaded by the defendant in support of his motion to correct a sentence
imposed in an illegal manner were sufficient to state a colorable claim of
incompetency at sentencing. See State v. Mukhtaar, 189 Conn. App. 144,
150 n.6., 207 A.3d 29 (2019); State v. Jason B., [supra], 176 Conn. App.
[244–45].’’ The parties filed their respective supplemental briefs on July
8, 2019.
9
The defendant was born in 1977.
10
There is nothing in the record to suggest that Judge Alexander had been
provided with the police report, the psychiatric report, or the psychiatric
records prior to sentencing, and, thus, Judge Alexander could not have
relied on those documents to consider ordering that a competency evaluation
and hearing be conducted.
11
We observe that in State v. Mukhtaar, supra, 189 Conn. App. 149–50,
the defendant appealed from a judgment dismissing his motion to correct
an illegal sentence in which he asserted that his sentence was illegal because,
inter alia, the trial court had failed to order a competency hearing on his
behalf before or after his criminal trial. This court concluded that the trial
court lacked jurisdiction to entertain that claim because the defendant was
not attacking the sentencing proceeding itself. Id., 150. In a footnote, this
court additionally stated that ‘‘a claim regarding a defendant’s competency
at the sentencing proceeding; see General Statutes § 54-56d (a); or a claim
that the court failed to inquire, sua sponte, into a defendant’s competency
at the sentencing proceeding when there is sufficient evidence at that pro-
ceeding to raise a reasonable doubt as to whether that defendant can under-
stand the proceeding or assist in his or her defense therein; State v. Yeaw,
162 Conn. App. 382, 389–90, 131 A.3d 1172 (2016); would fall within the
jurisdiction of the trial court for the purpose of a motion to correct an illegal
sentence filed pursuant to Practice Book § 43-22.’’ Id., 150 n.6. Our conclusion
that the court lacked subject matter jurisdiction over the motion to correct
in the present case does not conflict with the aforementioned language in
Mukhtaar. If the defendant had raised a colorable claim in the motion to
correct regarding his competency at the time of his sentencing or the sentenc-
ing court’s failure to order that a competency evaluation and hearing be
conducted, then the court would have had subject matter jurisdiction over
the motion. Because the defendant failed to raise a colorable claim in the
motion to correct, however, the court lacked subject matter jurisdiction to
entertain the motion.