State v. Flores

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STATE OF CONNECTICUT v. LUIS NEFTALI FLORES
(AC 34703)
Lavine, Robinson and Borden, Js.*
Argued October 15, 2013—officially released February 4, 2014
(Appeal from Superior Court, judicial district of
Hartford, Hon. John F. Mulcahy, Jr., judge trial referee
[criminal judgment]; Dewey, J. [motion to correct].)
Katharine S. Goodbody, assigned counsel, for the
appellant (defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Chris Pelosi, senior assistant state’s attorney,
for the appellee (state).
Opinion
BORDEN, J. The defendant, Luis Neftali Flores,
appeals from the judgment of the trial court denying
his motion to correct an illegal sentence, filed pursuant
to Practice Book § 43-22.1 The defendant claims that he
is entitled to a new sentencing procedure because: (1)
his sentence was based on inaccurate information; (2)
his sentence was imposed in an illegal manner; and
(3) it is appropriate in the present case to apply the
aggregate package doctrine to his sentence. Because
we conclude that the present case is controlled by this
court’s decision in State v. Martin M., 143 Conn. App.
140, 141–50, 70 A.3d 135, cert. denied, 309 Conn. 919,
70 A.3d 41 (2013), we reject the defendant’s claims and,
accordingly, affirm the judgment.
The self-represented defendant filed a motion to cor-
rect an illegal sentence. The court, Dewey, J., denied
the motion. This appeal followed.
The following procedural history is pertinent to the
present case. Pursuant to a jury trial, the defendant was
convicted and sentenced on seven charges set forth in
a long form information. The trial court, Hon. John F.
Mulcahy, Jr., judge trial referee, imposed the following
sentences: on count one, robbery in the first degree,
sixteen years of incarceration; on count two, conspiracy
to commit robbery in the first degree, sixteen years of
incarceration; on count three, burglary in the second
degree, ten years of incarceration; on count four, con-
spiracy to commit burglary in the second degree, ten
years of incarceration; on count five, kidnapping in
the first degree, sixteen years of incarceration; and on
counts six and seven, larceny in the third degree, three
years of incarceration on each count. The court ordered
all of the sentences to run concurrently, for a total
effective sentence of sixteen years of incarceration.
Subsequently, the court vacated the sentence on count
four and ordered that count merged with the conviction
on count two, but did not change the total effective
sentence of sixteen years of incarceration.
The facts of the case, as stated by the Supreme Court
in the defendant’s direct appeal, are as follows: ‘‘At
approximately 6 a.m. on August 13, 2004, the defendant,
together with Luis Vega and Jorge Marrero, entered the
apartment of Madeline Garay on Zion Street in the city
of Hartford. All three men were dressed in dark clothing
and wearing ski masks. Garay knew Vega and Marrero
from the neighborhood but did not socialize with them.
The defendant and Garay, however, had known each
other for many years, and Garay considered him to be
a friend. After entering the apartment, the three men
proceeded to the bedroom where Garay and her boy-
friend, Carlos Ortiz, were sleeping. Garay’s two children
were asleep in another bedroom. The defendant awak-
ened Garay by tapping her on the shoulder with a gun
and whispering, ‘[where’s] the money . . . ?’ Garay,
fearing for her life, responded in a loud voice that there
was no money. The defendant then passed the gun to
one of his accomplices and attempted to cover Garay’s
mouth with duct tape, but Garay immediately resisted.
While the defendant was attempting to cover her mouth,
Garay recognized the defendant’s voice and a distinctive
roll of fat on the back of his neck. She called out his
name to see if it was him, and the defendant immediately
responded and told her, ‘don’t worry, we’re not going
to hurt you.’ He then turned to Vega and Marrero and
said: ‘Fuck it. She . . . know[s] who we are.’ Immedi-
ately thereafter, the defendant, Vega and Marrero
removed their masks. Garay testified that, when the
defendant told her that he was not going to hurt her,
she believed him because he used to be the boyfriend
of her best friend’s sister, and she had known him for
many years.
‘‘The defendant then proceeded to search the room
for valuables. While he was doing so, one of his accom-
plices pointed the gun between Garay and Ortiz and
appeared to pull the trigger, although no bullets dis-
charged. At some point, Ortiz got up from the bed,
hoping to escape through a window. When he attempted
to lift the window shade, however, Vega asked him
what he was doing. Vega then pointed the gun at Ortiz,
demanded that he open his mouth, placed the gun inside
his mouth, told him to ‘calm down’ and asked, ‘who’s
the man?’ At the same time, Marrero came over and hit
Ortiz on the head. Although Garay, who was on the bed
the entire time, did not see Marrero hit Ortiz, she did
see Vega put the gun inside Ortiz’ mouth, at which
point she told everyone to whisper so as not to wake
her children.
‘‘The defendant, Vega and Marrero left the apartment
as soon as they had finished searching the bedroom,
taking with them Garay’s two sets of car keys, the keys
to her apartment, her jewelry, and her cell phone. Once
outside, the defendant, Vega and Marrero drove away
in Garay’s two automobiles. The entire incident lasted
between five and twenty minutes. Later that morning,
when Garay called her cell phone, Marrero answered
it and told her where she could find one of the vehicles.
Marrero also told her that he, the defendant and Vega
had had no intention of hurting her that morning and
that what they had done ‘had nothing to do with [her].’ ’’
(Footnotes omitted.) State v. Flores, 301 Conn. 77, 80–
82, 17 A.3d 1025 (2011).
The Supreme Court affirmed the judgment of convic-
tion, except as to count five, kidnapping in the first
degree. Id., 102. As to that count, the court, pursuant
to its decisions in State v. Salamon, 287 Conn. 509, 949
A.2d 1092 (2008), and State v. DeJesus, 288 Conn. 418,
953 A.2d 45 (2008), superseded in part after reconsidera-
tion by State v. Sanseverino, 291 Conn. 574, 579, 969
A.2d 710 (2009), held that the defendant was entitled
to a new trial because the trial court failed to instruct
the jury in accordance with Salamon that, in order to
find the defendant guilty of kidnapping, it must find
that the restraint or movement involved in the kidnap-
ping was not merely incidental to one of the other
crimes, and that this impropriety resulted in harmful
error. State v. Flores, supra, 301 Conn. 82–89. There-
after, the state nolled the kidnapping charge, and Judge
Dewey dismissed the charge at the defendant’s request.
These proceedings followed.
The defendant raises three closely related claims,
namely, that his sentence was illegal and he must be
resentenced because: (1) the trial court relied on inac-
curate information; (2) even if the trial court did not rely
on inaccurate information, his sentence was imposed in
an illegal manner; and (3) it is appropriate to apply the
aggregate package doctrine in resentencing the defen-
dant. The first claim rests on the factual premise that
Judge Mulcahy relied on the fact that the defendant
had been convicted of kidnapping at the time of sentenc-
ing, but that that conviction was subsequently vacated
by the Supreme Court and the charge dismissed by
Judge Dewey. The second claim rests on the legal prem-
ise that ‘‘a sentence imposed at a time when the defen-
dant had been convicted of seven counts, was imposed
in an illegal manner when the defendant subsequently
stands convicted of only five counts.’’ The third claim,
which flows from the first two, is that ‘‘the aggregate
package theory dictates that the sentence in a
multicount conviction be vacated and the defendant be
resentenced after one or more counts of a multicount
conviction are set aside.’’ We disagree.
In State v. Martin M., supra, 143 Conn. App. 140, the
defendant moved to correct an illegal sentence pursuant
to Practice Book § 43-22 on the ground that his sentence
had been imposed in an illegal manner, in part because
his kidnapping conviction was subsequently reversed
on appeal. Id., 141–42. The trial court denied his motion,
and this court affirmed the judgment. Id., 143–50. The
facts and procedural history of Martin M. are strikingly
similar to those in the present case.
In Martin M., the defendant was convicted of two
counts of risk of injury to a child, one count of sexual
assault in the first degree, and one count of kidnapping
in the first degree. Id., 142. The court, Prescott, J.,
imposed sentence as follows: twenty years of incarcera-
tion for sexual assault in the first degree; twenty years
of incarceration for kidnapping in the first degree; and
ten years of incarceration for each count of risk of
injury to a child. The terms of incarceration for the
sexual assault and kidnapping were to be served con-
currently with each other, and the terms for the two
counts of risk of injury were to run concurrently with
each other but consecutively to the terms for sexual
assault and kidnapping, for a total effective sentence
of thirty years imprisonment. Id.
On direct appeal, this court, on the basis of State v.
DeJesus, supra, 288 Conn. 418, reversed the kidnapping
conviction and ordered a new trial on that count. State
v. Martin M., supra, 143 Conn. App. 142–43. After the
remand, the state nolled the kidnapping charge, and
the defendant in Martin M. subsequently moved to cor-
rect an illegal sentence, which the trial court, Damiani,
J., denied. Id., 143.
In his subsequent appeal from the denial of his motion
to correct an illegal sentence, the defendant in Martin
M. raised three claims: (1) the sentence was imposed
in an illegal manner because Judge Prescott had relied
on inaccurate information in imposing the sentence,
namely, the conviction of kidnapping that was subse-
quently reversed; (2) State v. Raucci, 21 Conn. App.
557, 563, 575 A.2d 234, cert. denied, 215 Conn. 817, 576
A.2d 546 (1990), required a resentencing hearing; and
(3) the defendant was entitled to a new sentencing
hearing pursuant to the aggregate package doctrine.
State v. Martin M., supra, 143 Conn. App. 147–49. This
court rejected each claim.
With respect to the defendant’s first claim in Martin
M., this court concluded that ‘‘the record does not
reflect that Judge Prescott relied on the reversed con-
viction of kidnapping when sentencing the defendant.’’
Id., 147. This court stated: ‘‘The sentence imposed for
kidnapping was to be served concurrently with the sen-
tence imposed for sexual assault, giving the sentence
imposed for kidnapping essentially no punitive effect.
After conducting a careful review of the sentencing
hearing, it is clear that Judge Prescott focused on the
sex offenses and considered the danger the defendant
posed as a recidivist sex offender—the kidnapping con-
viction was incidental. . . . Judge Prescott mentioned
the kidnapping count only in rote recitation and never
discussed any of its particulars. . . . Aside from a brief
colloquy discussing the relevant penalties in the presen-
tence investigation report and a brief mention in the
state’s summation, the arguments presented at the hear-
ing did not involve the kidnapping conviction. Rather,
the arguments concerned the sexual offenses; prior mis-
conduct, including other sex offenses, domestic vio-
lence, burglary and violation of a protective order; and
the effect of the assaults on the victim and the interests
of the victim. The defendant has not shown that Judge
Prescott relied on the kidnapping conviction in impos-
ing sentence.’’ (Citations omitted.) Id., 147–48.
With respect to the reliance by the defendant in Mar-
tin M. on State v. Raucci, supra, 21 Conn. App. 557,
as mandating a resentencing, this court distinguished
Raucci on the ground that the sentence vacated therein
was consecutive to the sentences imposed on all of the
other counts. State v. Martin M., supra, 143 Conn. App.
149. In addition, in Raucci, the record showed that the
sentencing court depended on the vacated conviction
in arriving at the overall effective sentence. State v.
Raucci, supra, 559. Thus, unlike Judge Prescott in Mar-
tin M., the court in Raucci did rely on the sentence
imposed on the vacated conviction in imposing the total
effective sentence. State v. Martin M., supra, 149.
Finally, this court in Martin M. rejected the defen-
dant’s claim that the aggregate package doctrine enti-
tled him to a new sentencing hearing for two reasons.
First, ‘‘the doctrine concerns review of a revised sen-
tence; it does not apply to the present appeal, which
concerns whether an original sentence was imposed
in an illegal manner.’’ (Emphasis in original.) Id. Second,
the doctrine does not ‘‘[obviate] the requirement that
there must be a showing of reliance on misinformation
for a court to have jurisdiction to modify a sentence.’’
(Emphasis in original.) Id., 149–50.
With this background in mind, we now return to the
defendant’s claims in the present case. The first claim
is that, in sentencing the defendant, the court relied on
the fact that he had been convicted of kidnapping,
which conviction was subsequently reversed by the
Supreme Court, and which count was subsequently dis-
missed by Judge Dewey. This claim fails for the same
reason its counterpart failed in Martin M., namely, that
it is clear from the record that Judge Mulcahy did not
rely on the kidnapping conviction in imposing the origi-
nal sentence.
All of the sentences imposed, including the sentence
for kidnapping, ran concurrently, for an effective sen-
tence of sixteen years of incarceration. That concurrent
sixteen year sentence was equal to the sentences
imposed for the conviction of robbery and conspiracy to
commit robbery. There were no consecutive sentences
imposed. In addition, in its sentencing remarks, the
court referred to the purposes of sentencing, namely,
the protection of society, deterrence, and punishment
‘‘for engaging in . . . felonious activity of a very seri-
ous nature.’’ Additionally, the court referred to the
defendant’s extensive criminal record, and to the seri-
ousness of the defendant’s conduct, namely, intruding
in the early morning hours into a residence where two
young children were sleeping, using duct tape on the
victim and demanding money, and using a gun, all of
which constituted ‘‘very, very serious, truly criminal
conduct, posing a great risk to other persons . . . [and]
a great danger . . . to children.’’ Thus, the court con-
cluded, ‘‘a significant sentence’’ was appropriate. As
the state aptly points out, the court never even men-
tioned the kidnapping conviction in its sentencing
remarks, except when referencing the conviction on
the fifth count of the information.
In his second claim, the defendant asserts that his
sentence was imposed in an illegal manner because it
was imposed when he had been convicted of seven
counts, whereas he now stands convicted of only five
counts. In this respect, the defendant, like the defendant
in Martin M., relies principally on Raucci. Again, this
claim fails for the same reason that its counterpart in
Martin M. failed, namely, that, unlike the situation in
Raucci, the sentencing court did not rely on the kidnap-
ping conviction that was subsequently reversed, and
the court made clear in its sentencing remarks that it
did not rely on that conviction in imposing its overall
sentence of sixteen years imprisonment.
Finally, the defendant’s third claim, resting on the
aggregate package doctrine, fails for the same reasons
that a similar claim failed in Martin M. That doctrine
does not apply to the present case, which involves
whether an original sentence was imposed in an illegal
manner—not a revised sentence as the doctrine
requires; and there is nothing in that doctrine that obvi-
ates the requirement that there must be a showing of
reliance on misinformation for a court to modify a sen-
tence. We conclude, therefore, that Judge Dewey prop-
erly denied the defendant’s motion to correct an
illegal sentence.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
‘‘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.’’ Practice Book
§ 43-22.