State v. Pierre

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STATE OF CONNECTICUT v. GREGORY PIERRE
(AC 40618)
Elgo, Suarez and Devlin, Js.
Syllabus
Convicted, inter alia, of the crimes of manslaughter in the first degree, felony
murder and two counts of kidnapping in the first degree in violation of
statute (§ 53a-92 (a) (2) (A) and (B)), the defendant appealed to this
court from the judgment of the trial court denying his motion to correct
an illegal sentence. The sentencing court had merged the defendant’s
manslaughter conviction into the felony murder conviction and sen-
tenced him to sixty years of incarceration on the felony murder convic-
tion. The court also sentenced the defendant to twenty-five years of
incarceration on each of the two counts of kidnapping. In his motion
to correct, the defendant claimed, inter alia, that the constitutional
prohibition against double jeopardy was violated because, under a retro-
active application of State v. Polanco (308 Conn. 242), the sentencing
court incorrectly merged the felony murder and manslaughter convic-
tions instead of vacating the manslaughter conviction. He further
claimed that he was unlawfully convicted of and sentenced on the two
kidnapping counts because each count arose out of the same act or
transaction, and the trial court improperly failed to vacate one of the
kidnapping convictions. Held that the trial court improperly denied the
defendant’s motion to correct an illegal sentence as to his challenge to
the court’s failure to vacate the manslaughter conviction, and, because
the form of the court’s judgment was improper, its judgment was
reversed as to that claim and the case was remanded with direction to
dismiss the motion to correct as to that claim: the trial court lacked
jurisdiction over the defendant’s claim that the manslaughter conviction
should have been vacated, as he did not assert that his sentence was
affected by his conviction of the felony murder and manslaughter
charges, he was not sentenced on the merged manslaughter conviction,
and the only relief he sought in his motion to correct was the vacatur
of the manslaughter conviction; moreover, the defendant’s claim that
his sentence on each of the kidnapping counts violated his right to be
free of double jeopardy was unavailing, as subparagraphs (A) and (B)
of § 53a-92 (a) (2) are separate offenses for double jeopardy purposes.
Argued May 27—officially released September 14, 2021
Procedural History
Substitute information charging the defendant with
two counts of the crime of kidnapping in the first
degree, and with one count each of the crimes of capital
felony, murder, felony murder and robbery in the first
degree, brought to the Superior Court in the judicial
district of New London and tried to the jury before
Schimelman, J.; verdict and judgment of guilty of two
counts of kidnapping in the first degree, and one count
each of felony murder, robbery in the first degree and
the lesser included offense of manslaughter in the first
degree, from which the defendant appealed; thereafter,
this court, Foti, West and Hennessey, Js., affirmed the
trial court’s judgment and, on the granting of certifica-
tion, the defendant, appealed to the Supreme Court,
which affirmed this court’s judgment; subsequently, the
court, Strackbein, J., denied the defendant’s motion to
correct an illegal sentence, and the defendant appealed
to this court. Improper form of judgment; affirmed in
part; judgment directed in part.
Gregory Pierre, self-represented, the appellant
(defendant).
Michael L. Regan, state’s attorney, for the appellee
(state).
Opinion
PER CURIAM. The defendant, Gregory Pierre,1 appeals
from the judgment of the trial court denying his motion
to correct an illegal sentence. The defendant argues that
the court abused its discretion in denying his motion.
He claims that his sentence violated the constitutional
prohibition against double jeopardy, which is enshrined
in the fifth amendment to the United States constitution
and made applicable to the states through the four-
teenth amendment, because (1) the court improperly
merged his felony murder and manslaughter convic-
tions, and (2) he was unlawfully convicted of and sen-
tenced on two counts of kidnapping in the first degree
for a single act. With respect to the first claim, we
conclude that the form of the judgment is improper,
and we remand the case to the trial court with direction
to dismiss the portion of the motion to correct in which
the petitioner raised that claim. We affirm the judgment
of the trial court in all other respects.
The record reveals that, in 2001, following a jury trial,
the defendant was convicted of manslaughter in the
first degree in violation of General Statutes § 53a-55 (a)
(1), felony murder in violation of General Statutes § 53a-
54c, robbery in the first degree in violation of General
Statutes § 53a-134 (a) (1), and two counts of kidnapping
in the first degree in violation of General Statutes § 53a-
92 (a) (2) (A) and (B).2 At the time of sentencing, the
court, Schimelman, J., merged the manslaughter con-
viction into the felony murder conviction and imposed
a sentence of sixty years of imprisonment with respect
to the felony murder conviction. The court imposed
a sentence of twenty-five years of imprisonment with
respect to each of the kidnapping convictions and
imposed a sentence of twenty years of imprisonment
with respect to the robbery conviction. The sentences
for the kidnapping and robbery convictions were con-
current to each other but consecutive to the sentence
imposed for felony murder. Thus, the court imposed a
total effective sentence of eighty-five years of imprison-
ment. Thereafter, the defendant appealed, and this
court affirmed the judgment of conviction. State v.
Pierre, 83 Conn. App. 28, 847 A.2d 1064 (2004), aff’d,
277 Conn. 42, 890 A.2d 474, cert. denied, 547 U.S. 1197,
126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006).3
On September 28, 2015, the defendant, pursuant to
Practice Book § 43-22, filed a motion to correct an illegal
sentence and a supporting memorandum of law. The
motion set forth two grounds. First, the defendant
argued that the sentencing court’s merger of the felony
murder and manslaughter convictions was improper
under a retroactive application of the rule set forth in
State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013).
In Polanco, our Supreme Court, in the exercise of its
supervisory authority, determined that, ‘‘when a defen-
dant is convicted of greater and lesser included
offenses, the trial court shall vacate the conviction for
the lesser offense rather than merging it with the convic-
tion for the greater offense.’’ Id., 260. Relying on
Polanco, the defendant in the present case asserted that
the proper remedy was for his conviction of manslaugh-
ter to be vacated. Second, the defendant argued that,
in violation of double jeopardy principles, his multiple
kidnapping convictions arose from the same act or
transaction. The defendant asserted that the proper
remedy was for one of the kidnapping convictions to
be vacated. The state filed a memorandum of law in
opposition to the motion to correct. On April 29, 2016,
the court, Strackbein, J., heard argument from the par-
ties with respect to the motion. On May 2, 2016, the
court, in a memorandum of decision, denied the motion.
Pursuant to Practice Book § 43-22, ‘‘[t]he 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.’’ ‘‘We review the [trial]
court’s denial of [a] defendant’s motion to correct [an
illegal] sentence under the abuse of discretion standard
of review. . . . In reviewing claims that the trial court
abused its discretion, great weight is given to the trial
court’s decision and every reasonable presumption is
given in favor of its correctness. . . . We will reverse
the trial court’s ruling only if it could not reasonably
conclude as it did. . . .
‘‘An illegal sentence is essentially one which either
exceeds the relevant statutory maximum limits, violates
a defendant’s right against double jeopardy, is ambigu-
ous, or is inherently contradictory. . . . Sentences
imposed in an illegal manner have been defined as being
within the relevant statutory limits but . . . imposed
in a way which violates the defendant’s right . . . to
be addressed personally at sentencing and to speak in
mitigation of punishment . . . or his right to be sen-
tenced by a judge relying on accurate information or
considerations solely in the record, or his right that the
government keeps its plea agreement promises . . . .’’
(Citation omitted; internal quotation marks omitted.)
State v. Logan, 160 Conn. App. 282, 287–88, 125 A.3d
581 (2015), cert. denied, 321 Conn. 906, 135 A.3d 279(2016). On appeal, the defendant relies on the same
two grounds that he raised before the trial court.4
The defendant’s first claim, which challenges the
merger of his felony murder and manslaughter convic-
tions, is controlled by our Supreme Court’s recent deci-
sion in State v. Smith, 338 Conn. 54, A.3d
5
(2021). In Smith, one of the defendant’s codefendants,
in a motion to correct an illegal sentence, raised the
exact same claim as the claim presently before us. See
id., 58; see also footnote 2 of this opinion. After the
trial court in Smith denied the motion to correct, the
defendant appealed to this court, which affirmed the
judgment on its merits. State v. Smith, 180 Conn. App.
371, 384, 184 A.3d 831 (2018), rev’d, 338 Conn. 54,
A.3d (2021). Following a grant of certification to
appeal related solely to the merger claim, our Supreme
Court in Smith concluded that the trial court lacked
jurisdiction to entertain the claim because (1) the defen-
dant had not claimed that his sentence was affected by
the alleged cumulative convictions, (2) the sentencing
court had not imposed any sentence on the merged
manslaughter conviction, and (3) the only relief sought
by the defendant in the motion to correct was the vaca-
tur of the manslaughter conviction. State v. Smith,
supra, 338 Conn. 63–64. Relying on Smith, we conclude
that the trial court in the present case lacked jurisdic-
tion over the defendant’s merger claim, and, with
respect to this claim, the court should have dismissed,
rather than denied, the motion to correct an illegal
sentence.6
The defendant’s second claim, which challenges the
multiple kidnapping convictions allegedly arising out
of the same act or transaction, is controlled by this
court’s decision in State v. Smith, supra, 180 Conn.
App. 379. The defendant in Smith, like the defendant
in the present case, was convicted of one count of
kidnapping in violation of § 53a-92 (a) (2) (A) and one
count of kidnapping in violation of § 53a-92 (a) (2) (B).
Id. The convictions in Smith were based on the same
operative facts as those at issue in the present case,
involving a single victim. See id. The defendant’s double
jeopardy claim in Smith is identical to the double jeop-
ardy claim raised by the defendant in the present case.
In Smith, this court rejected the claim on the ground
that subparagraphs (A) and (B) of § 53a-92 (a) (2) are
separate offenses for double jeopardy purposes. Rely-
ing on this court’s opinion in Smith, we conclude that
the trial court in the present case properly denied the
defendant’s motion to correct with respect to this claim.
The form of the judgment is improper with respect
to the trial court’s denial of the portion of the motion
to correct an illegal sentence in which the defendant
claimed that the sentencing court improperly merged
the homicide convictions, and the case is remanded to
the trial court with direction to dismiss that portion of
the motion to correct; the judgment is affirmed in all
other respects.
1
The defendant was self-represented before the trial court and is self-
represented in the present appeal.
2
In a separate trial, one of the defendant’s codefendants, Jeffrey Smith,
was convicted of the same charges as those of which the defendant was
convicted. See State v. Smith, 107 Conn. App. 746, 946 A.2d 926, cert. denied,
288 Conn. 905, 953 A.2d 650 (2008). An additional codefendant, Abin Britton,
was convicted in a separate trial of manslaughter in the first degree, two
counts of kidnapping in the first degree, and one count of robbery in the
first degree. See State v. Britton, 283 Conn. 598, 600, 929 A.2d 312 (2007).
3
A detailed recitation of the facts underlying the judgment of conviction
is set forth in State v. Pierre, 277 Conn. 42, 47–52, 890 A.2d 474, cert. denied,
547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006).
4
We note however, that, in his appellate brief, the defendant has substan-
tively changed what relief he believes to be proper with respect to his first
claim. Specifically, he argues that the proper remedy with respect to that
claim is for the conviction of felony murder to be vacated, instead of the
manslaughter conviction, and he seeks to be resentenced accordingly. We
decline to consider this unpreserved alteration in the defendant’s claim.
See, e.g., State v. Syms, 200 Conn. App. 55, 59–60, 238 A.3d 135 (2020)
(declining to review claim not raised in motion to correct illegal sentence);
State v. Starks, 121 Conn. App. 581, 592, 997 A.2d 546 (2010) (review under
State v. Golding, 213 Conn, 233, 239–40, 567 A.2d 823 (1989), is unavailable
in appeal from denial of motion to correct illegal sentence brought under
Practice Book § 43-22).
5
This court stayed the present appeal pending our Supreme Court’s final
determination in State v. Smith, supra, 338 Conn. 54. Prior to oral argument
before this court, which took place on May 27, 2021, this court notified the
parties to be prepared to address the impact of Smith on this appeal.
6
Our Supreme Court’s grant of certification to appeal in Smith was limited
to the issue of whether the trial court properly denied the claim raised in
the motion to correct that the sentencing court had improperly merged the
homicide convictions; the certified issue was whether Polanco should be
applied retroactively. See State v. Smith, 330 Conn. 908, 193 A.3d 559 (2018).
Thus, our Supreme Court’s grant of certification did not encompass the
other double jeopardy claims that this court considered and rejected on
their merits in State v. Smith, supra, 180 Conn. App. 376–79, nor did the
court in its opinion refer to this court’s resolution of those claims. We note,
however, that, in Smith, our Supreme Court stated that this court’s judgment
was ‘‘reversed,’’ and it remanded the case to this court with direction to
remand the case to the trial court with direction to dismiss the defendant’s
motion to correct an illegal sentence. State v. Smith, supra, 338 Conn. 65.
Because our Supreme Court did not grant certification to appeal with
respect to this court’s resolution of the other double jeopardy claims resolved
in State v. Smith, supra, 180 Conn. App. 376–79, our Supreme Court did not
address the other claims in any manner in its opinion, and its conclusion
with respect to the certified issue related to merger does not appear to have
required a different outcome with respect to the other claims, we do not
interpret the court’s opinion to have reversed this court’s judgment with
respect to those other claims.