State v. McGee

 STATE v. MCGEE—DISSENT
BISHOP, J., dissenting. Finding that the trial court
had jurisdiction to hear the motion to correct an illegal
sentence filed by the defendant, Frank McGee, my col-
leagues in the majority analyze the defendant’s claim
on the merits and, finding none, reverse the court’s
dismissal and remand the case to the trial court with
direction to deny the motion. Unlike my colleagues, I
do not believe that the trial court had jurisdiction to
hear this motion, as I view it as no more than a collateral
attack on the defendant’s conviction.1 Therefore, I
would affirm the dismissal of the motion, albeit not for
the reasons stated by the trial court.
This case began with the July 5, 2015 filing of a motion
to correct an illegal sentence by the (then) self-repre-
sented defendant. In that motion, the defendant claimed
that his sentences for two counts of robbery in the
second degree were illegal because they constituted
two punishments for the commission of one offense.
Nowhere in his motion did he make any argument that
his sentences, themselves, violated double jeopardy
except for his argument that they flowed from convic-
tions that he claimed violated his right not to be con-
victed twice for one offense.
Also, it is notable that nowhere in his motion or
any of the supporting documents that he filed, either
personally or through counsel, did the defendant spec-
ify the relief he sought except by the caption of his
motion to ‘‘correct an illegal sentence.’’ After being
appointed, pursuant to State v. Casiano, 282 Conn. 614,
627–28, 922 A.2d 1065 (2007), to review the defendant’s
petition, counsel filed a report in which she indicated
her belief that there was a sound basis to the motion.
Counsel’s analysis consisted entirely of a discussion
of whether the offenses of which the defendant was
convicted were, in fact, the same offense for double
jeopardy purposes. From her analysis, counsel con-
cluded that the two counts of robbery constituted only
one offense and, therefore, the defendant’s double jeop-
ardy rights were violated when he was convicted and
sentenced on both counts. In reaching this conclusion,
counsel asserted no claim that the sentences, them-
selves, violated double jeopardy apart from the fact that
they flowed from flawed convictions. On the basis of
her assessment, counsel concluded: ‘‘As a result, the
court must vacate one of the robbery convictions
and sentences.’’2
With respect to the relief the defendant seeks, his
brief provides no more illumination than his motion
or counsel’s sound basis analysis. While the defendant
repeats his claim that his double jeopardy rights were
violated when he was sentenced for two counts of rob-
bery in the second degree, his entire analysis focuses
on whether his underlying conduct constituted two
offenses, as charged and found by the jury, or simply
two alternative ways of committing the same offense.
In the concluding portion of his brief, the defendant
states: ‘‘For the same reasons articulated by [the Appel-
late Court] and the Supreme Court, the defendant’s
conviction for two counts of robbery, second, violates
the double jeopardy clause by receiving multiple pun-
ishments for the same crime.’’3
I first turn to the general principles that guide my
analysis of the court’s lack of jurisdiction to hear the
defendant’s motion. At common law, once a court ren-
ders a judgment of conviction and sentences a defen-
dant, the court loses jurisdiction over the defendant
and the sentence, unless the court expressly has been
authorized to act. State v. Lawrence, 281 Conn. 147,
154, 913 A.2d 428 (2007). We know, as well, that there
is no legislative or constitutional grant of continuing
jurisdiction to give the trial court power to correct a
sentence. Id. Finally, we know that there is, however,
a common-law exception to this rule, which permits a
court, at any time, to correct an illegal sentence. Id.,
154–55. Practice Book § 43-22 is the embodiment of
that common-law exception. It 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.’’4 Practice Book § 43-22.
It is axiomatic in Connecticut jurisprudence that
‘‘Practice Book rules do not ordinarily define subject
matter jurisdiction. General Statutes § 51-14 (a) autho-
rizes the judges of the Superior Court to promulgate
rules regulating pleading, practice and procedure in
judicial proceedings . . . . Such rules shall not
abridge, enlarge or modify any substantive right nor
the jurisdiction of any of the courts.’’ (Internal quotation
marks omitted.) State v. Lawrence, supra, 281 Conn.
155. Thus, ‘‘[b]ecause the judiciary cannot confer juris-
diction on itself through its own rule-making power,
[Practice Book] § 43-22 is 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. . . .
Therefore, for the trial court to have jurisdiction to
consider the defendant’s claim of an illegal sentence,
the claim must fall into one of the categories of claims
that, under the common law, the court has jurisdiction
to review.’’ (Citation omitted.) Id.
Our decisional law teaches that there are four catego-
ries of claims cognizable under Practice Book § 43-22.
‘‘[A]n 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 internally contradictory. . . . In accordance
with this summary, Connecticut courts have considered
four categories of claims pursuant to § 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.’’ (Citations omitted; internal
quotation marks omitted.) Id., 156–57.5
From my review of decisional law on this topic, it is
apparent that confusion abounds on the question of the
jurisdiction of the trial court to hear a motion to correct
an illegal sentence. On one hand, there is a stream of
cases which hold that the focus of a motion to correct
an illegal sentence must be on the sentencing procedure
and not on the trial proceedings. But, there is also a
countercurrent of cases which appear to suggest that
a motion to correct an illegal sentence may properly
be utilized to correct dual convictions for single
offenses. The disarray is palpable from the number of
reversals by this court on the basis of our determination,
on review, that the trial court either incorrectly deter-
mined it had no jurisdiction when it did, or it exercised
jurisdiction when it was lacking.6 My colleagues in the
majority have not righted the ship. Thus, our course in
this jurisprudence remains aimless, lending confusion
and uncertainty to litigants and the trial bench as well.
It is high time to find the proper course.
We and our Supreme Court, have opined that a
motion to correct an illegal sentence must focus on
the sentencing proceedings, and may not be used as a
collateral attack on one’s conviction. In State v. Mollo,
63 Conn. App. 487, 776 A.2d 1176, cert. denied, 257
Conn. 904, 777 A.2d 194 (2001), we affirmed the trial
court’s decision holding that Practice Book § 43-22 does
not authorize the trial court to vacate a conviction. In
Mollo, we concluded: ‘‘The defendant does not claim
that the court imposed the sentence in an illegal manner
but, rather, that the concept of illegal sentence under
Practice Book § 43-22 includes any sentence based on
a voidable conviction. We do not agree.’’ (Internal quota-
tion marks omitted.) Id., 491. In State v. Koslik, 116
Conn. App. 693, 977 A.2d 275, cert. denied, 293 Conn.
930, 980 A.2d 916 (2009), we expressly followed Mollo
and observed: ‘‘Our Supreme Court has concluded that
to invoke successfully the court’s jurisdiction with
respect to a claim of an illegal sentence, the focus can-
not be on what occurred during the underlying convic-
tion. . . . In order for the court to have jurisdiction
over a motion to correct an illegal sentence after the
sentence has been executed, the sentencing proceeding,
and not the trial leading to the conviction, must be
the subject of the attack.’’ (Citations omitted; internal
quotation marks omitted.) Id., 699.
Later, in State v. Smith, 150 Conn. App. 623, 92 A.3d
975, cert. denied, 314 Conn. 904, 99 A.3d 1169 (2014),
we reaffirmed our view of the narrow scope of Practice
Book § 43-22 in our statement that: ‘‘The purpose of
. . . [Practice Book] § 43-22 is not to attack the validity
of a conviction by setting it aside but, rather to correct
an illegal sentence or disposition, or one imposed or
made in an illegal manner.’’ (Internal quotation marks
omitted.) Id., 635; accord State v. Starks, 121 Conn.
App. 581, 591–92, 997 A.2d 546 (2010). The same point
was made, again, in a slightly different manner in State
v. Saunders, 132 Conn. App. 268, 270, 50 A.3d 321 (2011),
cert. denied, 303 Conn. 924, 34 A.3d 394 (2012); accord
State v. Parker, 295 Conn. 825, 835, 992 A.2d 1103 (2010).
In State v. Saunders, supra, 132 Conn. App. 271, we
restated language found in Mollo that ‘‘the relief allowed
by . . . [Practice Book] § 43-22 . . . require[s], as a
precondition, a valid conviction.’’ (Internal quotation
marks omitted.)
We have held, as well, that the fact that the defendant
frames his motion as an attack on his sentence, if, in
reality, his focus is on his underlying conviction, the
court will not have jurisdiction pursuant to Practice
Book § 43-22. State v. Wright, 107 Conn. App. 152, 944
A.2d 991, cert. denied, 289 Conn. 933, 958 A.2d 1247
(2008). In Wright, a case with significant parallels to
the case at hand, a panel of this court found that the trial
court had no jurisdiction even though the defendant
assailed his sentence as a violation of his protection
against double jeopardy. Id., 157–58. There, the defen-
dant filed a motion to correct an illegal sentence approx-
imately three and one-half years after his sentencing,
in which he claimed that his sentence violated his con-
stitutional protection against double jeopardy. Id., 154–
56. A panel of this court agreed with the trial court’s
dismissal on jurisdictional grounds. In its opinion, the
panel observed: ‘‘The defendant claims that the court
had jurisdiction to correct his sentence because it vio-
lated his constitutional protection against double jeop-
ardy. Specifically, he argues that he could not be
convicted as an accessory to murder because the infor-
mation did not include an accessorial liability charge.
He claims that the polling of the jurors demonstrated
that he was ‘acquitted’ as being the principal in the
crime. For that reason, he argues that the sentence
imposed for his conviction as an accessory to murder
violates the prohibition against double jeopardy.’’
(Footnote omitted.) Id., 155. In concluding that the trial
court had correctly determined it had no jurisdiction,
the panel in Wright observed: ‘‘In the present case, the
defendant’s claim, by its very nature, presupposes an
invalid conviction. The defendant does not claim that
the sentence he received exceeded the maximum statu-
tory limits prescribed for the crime for which he was
convicted. He also does not claim that he was denied
due process at his sentencing hearing or that his sen-
tence is ambiguous or internally contradictory. If the
defendant’s claim were to fall into any of those catego-
ries, Practice Book § 43-22 would be the proper vehicle
by which he could invoke the trial court’s jurisdiction.
Because the defendant’s claim falls outside that set
of narrow circumstances in which the court retains
jurisdiction over a defendant once that defendant has
been transferred into the custody of the commissioner
of correction to begin serving his sentence, the court
lacks jurisdiction to consider the claim pursuant to a
motion to correct an illegal sentence under Practice
Book § 43-22. . . .
‘‘We conclude that the defendant’s claim that his sen-
tence is illegal because it violates his constitutional
protection against double jeopardy is actually a claim of
an improper conviction, which is, in reality, a collateral
attack on his conviction and does not fall within the
purview of Practice Book § 43-22.’’ (Citation omitted;
footnote omitted.) Id., 157.
In State v. Starks, supra, 121 Conn. App. 590, this
court expressly followed Wright in holding that, not-
withstanding a defendant’s nominal attack on his sen-
tence, where his claim is, in reality, an attack on his
conviction, the court lacks jurisdiction under Practice
Book § 43-22 to hear the motion. There, we stated: ‘‘Our
Supreme Court has concluded that to invoke success-
fully the court’s jurisdiction with respect to a claim of an
illegal sentence, the focus cannot be on what occurred
during the underlying conviction. . . . In order for the
court to have jurisdiction over a motion to correct an
illegal sentence after the sentence has been executed,
the sentencing proceeding, and not the trial leading
to the conviction, must be the subject of the attack.’’
(Internal quotation marks omitted.) Id. The court in
Starks concluded: ‘‘Insofar as this portion of the defen-
dant’s motion to correct constituted a collateral attack
on his conviction and, thus, was outside of the court’s
jurisdiction, the court should have dismissed, rather
than denied, this portion of the motion. See, e.g., State
v. Wright, [supra, 107 Conn. App. 157–58].’’ State v.
Starks, supra, 590.
Notwithstanding Wright, our subsequent express
adherence to it, and the several cases in which we have
held that a Practice Book § 43-22 motion may not be
utilized as a vehicle to attack one’s conviction, we
appear to have sanctioned just that approach in State
v. Santiago, 145 Conn. App. 374, 74 A.3d 571, cert.
denied, 310 Conn. 942, 79 A.3d 893 (2013), a case which
I am unable to distinguish from Wright. Both Wright
and Santiago involve defendants who filed motions to
correct illegal sentences on the basis of double jeop-
ardy, but resulted in different outcomes on appeal. In
Wright, the trial court dismissed the defendant’s motion
as a collateral attack on his conviction, over which the
court had no continuing jurisdiction. We affirmed the
court’s determination on appeal. State v. Wright, supra,
107 Conn. App. 158. In Santiago, the trial court also
dismissed the defendant’s motion for lack of jurisdic-
tion, but on appeal, we reversed, ordering instead that
the court deny the motion on the basis that the defen-
dant had made a double jeopardy claim even though
it, too, attacked his conviction. State v. Santiago, supra,
384. From my perspective Wright and Santiago cannot
be harmonized.
To be sure, the defendant in Santiago, unlike the
defendant in the case at hand who received concurrent
sentences, alleged that the imposition of consecutive
sentences on the two charges of which he was con-
victed, which arose out of the same incident, violated
his rights against double jeopardy. Id., 377. In Santiago,
we determined that the trial court did have jurisdiction
over a motion to correct an illegal sentence because
he had founded his claim on an allegation of double
jeopardy, language which we apparently then thought
adequate to confer jurisdiction. Id., 379–80. Having fur-
ther reviewed the underpinnings to Santiago, I have
concluded that it is inconsistent with our prior jurispru-
dence that a motion to correct an illegal sentence may
not be used as a vehicle to attack one’s conviction even
if framed as an illegal sentence claim. Thus, I have
concluded, with respect, that our decision in Santiago
was incorrect and should not be followed.7
I believe that the holding in Wright is applicable to
the case at hand. In opining that a motion to correct
an illegal sentence may not be used as a vehicle to
collaterally attack a sentence, the court in Wright stood
on solid ground and within the parameters of its com-
mon law antecedents.
That said, Santiago does not represent the only cross-
current to the view that a court, pursuant to a motion to
correct an illegal sentence, may not affect a conviction.
Rather, it finds some support in a few decisions in which
Practice Book § 43-22 appears to have been legitimized
as a vehicle to alter a conviction and not merely a
sentence. In State v. Cator, 256 Conn. 785, 781 A.2d 285
(2001), the defendant had been convicted of murder,
felony murder, conspiracy to commit murder, kidnap-
ping in the second degree and conspiracy to commit
kidnapping in the second degree. Id., 787–88. On direct
appeal to our Supreme Court, the defendant claimed,
inter alia, that his convictions and sentences for both
murder and felony murder violated his right to the pro-
tection of double jeopardy as did his convictions for
conspiracy to commit kidnapping and conspiracy to
commit murder, because the murder and felony murder
convictions were for the same act, and his two conspir-
acy convictions were supported by evidence of a single
agreement to kidnap and murder the victim. Id., 803–
808. In its opinion, our Supreme Court observed, with
apparent approval, that, after trial, the trial court, pursu-
ant to the state’s motion to correct an illegal sentence,
had merged the defendant’s convictions for murder and
felony murder and imposed one sentence for the
merged offenses. The court opined: ‘‘In this case, the
trial court had jurisdiction to correct the defendant’s
sentences pursuant to Practice Book § 43-22 . . . .
Both the trial court and this court, on appeal, have the
power, at any time, to correct a sentence that is illegal.’’
(Internal quotation marks omitted.) Id., 803–804.8 The
court in Cator stated, as well: ‘‘It is clear in this case
that the trial court at first imposed an illegal sentence.
That court retained jurisdiction to correct that sentence
pursuant to Practice Book § 43-22. Accordingly, it was
proper for the trial court to merge the convictions for
murder and felony murder pursuant to [State v. Chi-
cano, 216 Conn. 699, 584 A.2d 425 (1990), cert. denied,
501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991)].
Once this was done, the defendant’s claim of double
jeopardy became moot.’’ State v. Cator, supra, 805.9
This court later appears to have applied the reasoning
of Cator to sanction the action of the trial court in
vacating a conviction pursuant to § 43-22. In State v.
Brown, 153 Conn. App. 507, 101 A.3d 375 (2014), cert.
granted, 319 Conn. 901, 122 A.3d 636 (2015) (appeal
withdrawn August 15, 2016), on direct appeal, we
observed: ‘‘The defendant . . . claims that his convic-
tion of certain charges violated his constitutional right
against double jeopardy. In his reply brief and at oral
argument before this court, however, the defendant
subsequently withdrew certain aspects of this claim.
He did so specifically because the state conceded that
the failure to merge the conviction of conspiracy to
commit larceny in the third degree with the conviction
of conspiracy to commit burglary in the third degree
violated principles of double jeopardy, and because the
court later granted his motion to correct an illegal sen-
tence and vacated without prejudice the conviction of
one of the two conspiracy counts.’’ Id., 532.
While recognizing the Cator line of cases, I do not
believe the intent of the court, in these cases, was to
open wide the door to attacks on convictions through
the guise of a Practice Book § 43-22 motion, nominally
assailing a sentence. To do so, as I believe, with respect,
the majority now does, would vitiate the limited pur-
pose of § 43-22, and unreasonably expand the court’s
postconviction jurisdiction beyond its common-law
bounds. Nevertheless, I believe that the holdings of the
cases cited herein, in toto, create currents and crosscur-
rents in need of calming by a higher power.
The majority holds that the trial court had jurisdiction
over the defendant’s claims in the case at hand because
he claimed, as the basis of his motion, that his convic-
tions and sentences violate the constitutional proscrip-
tion against double jeopardy. As noted, however, we
know that where a defendant only nominally attacks
his sentence in order to attempt to fit a conviction claim
into the ambit of a Practice Book § 43-22 motion, a
reviewing court will look to the substance and not the
precise language of a defendant’s motion to determine
if it is, in fact, a sentencing issue. In this case at hand,
however, as in Santiago, the majority appears to have
credited the defendant’s claim as a true sentencing
claim even though, like Wright, it is an attack on his con-
viction.
In order to calm this jurisprudence, it is appropriate
and useful to reflect on our Supreme Court’s character-
ization of a motion to correct an illegal sentence. In
State v. Francis, 322 Conn. 247, 259–60, 140 A.3d 927
(2016), the court opined: ‘‘A motion to correct an illegal
sentence constitutes a narrow exception to the general
rule that, once a defendant’s sentence has begun, the
authority of the sentencing court to modify that sen-
tence terminates. . . . Indeed, [i]n order for the court
to have jurisdiction over a motion to correct an illegal
sentence after the sentence has been executed, the sen-
tencing proceeding [itself] . . . must be the subject of
the attack. . . . Therefore, the motion is directed to
the sentencing court, which can entertain and resolve
the challenge most expediently.’’ (Internal quotation
marks omitted.) While the court, in Francis, assessed
whether appointed counsel in a motion to correct an
illegal sentence should be required to write an Anders
brief10 in order to be relieved of further representation,
in coming to the conclusion that counsel could be
excused through a less rigorous process, the court char-
acterized a motion for the correction of an illegal sen-
tence in a manner instructive to our present analysis.
There, the court opined: ‘‘In light of the limited and
straightforward nature of the claims that may be raised
in a motion to correct, the potential merits of such a
motion frequently will be apparent to the court and
appointed counsel from a simple review of the sentenc-
ing record. . . . Accordingly, we can perceive no rea-
son why appointed counsel, having carefully reviewed
the record for possible sentencing errors in light of the
governing legal principles and determined that none
exist, must then be required to file an Anders brief
identifying anything in the record that might arguably
support a countervailing view, or why the trial court
should then be required to undertake a full and indepen-
dent review of the record to determine whether it agrees
with defense counsel’s assessment of the defendant’s
claimed sentencing error.’’ (Citations omitted.) Id., 265–
66. And yet, to decide this defendant’s claim on the
merits, both the trial court and the majority on review,
were required to do just that.
Unfortunately, the observations of the court in Fran-
cis regarding the narrow focus and expedited process
of a motion to correct an illegal sentence do not reflect
the course such motions have taken over the past sev-
eral years. Rather, it appears that the filing of a motion
to correct an illegal sentence has gained in practice as
courts on review have muddied the jurisdictional waters
with a result that more and more defendants appear
willing to give it a try, even though, in the main, the
vast majority of them are ultimately unsuccessful.11
To be true to Francis, I believe, respectfully, we need
to reset the parameters of a motion to correct an illegal
sentence. If it is intended to be an expedited and limited
review of the sentencing procedure, perhaps we should
return to a time period in which such a motion must
be filed. And, to harmonize the State v. Polanco, 308
Conn. 242, 61 A.3d 1084 (2013), and Miranda line of
cases; see footnote 9 of this dissenting opinion; perhaps
it should be made clear that only when it is obvious from
the criminal information and verdict that convictions
violate the protection against double jeopardy that a
court may vacate a conviction and resentence a defen-
dant pursuant to Practice Book § 43-22 and that such
remedial action can only be taken before a defendant
has commenced serving his or her sentence.12 In the
absence of clarification, it is likely that an increasing
number of defendants, in reliance on Santiago, this
case, and the Polanco-Miranda cases will be filing
motions to correct illegal sentences which are simply
collateral attacks on convictions which could have been
timely appealed.
Because I believe the majority has mistakenly fol-
lowed Santiago, which veered from its antecedents,
and because, I believe, this court has expanded the
reach of Polanco and Miranda beyond their intended
reach, I would affirm the trial court’s dismissal.13
Accordingly, I respectfully dissent.
1
The majority asserts that ‘‘the defendant did not claim any error associ-
ated with his underlying convictions . . . .’’ This assertion is contradicted
by the record. Indeed, in the concluding paragraph of the defendant’s opening
brief, he states: ‘‘For the same reasons articulated by our court and the
Supreme Court, the defendant’s conviction for two counts of robbery, sec-
ond, violates the double jeopardy clause by receiving multiple punishments
for the same crime. . . . As a result, the defendant respectfully requests
that this court find that the trial court erred, that the robbery, second, statute
simply provides alternate ways in which to commit the same crime and that
his conviction and sentence violate the protections of the double jeop-
ardy clause.’’
Additionally, it is noteworthy that the defendant’s argument focuses
entirely on whether his convictions for two counts of robbery in the second
degree violated the prohibition against double jeopardy. Nowhere does he
make a claim that his concurrent sentences or the sentencing proceedings,
themselves, violated his double jeopardy rights. Rather, he attacks the trial
proceedings. As a consequence, in order to review the defendant’s claim,
on the merits, the trial court and the majority on appeal were required to
examine the trial record and preconviction proceedings, an examination
beyond the scope of the court hearing a motion to correct an illegal sentence.
2
Interestingly, counsel did not suggest, in this sound basis analysis, which
of the convictions should be vacated. Presumably the court could, if it found
jurisdiction and merit to the defendant’s quest, simply pick one of the
convictions at random and its attendant sentence, leaving the other in place,
an outcome beyond the court’s authority and, in my view, a legally
absurd proposition.
3
In characterizing the sentencing as the trigger for a double jeopardy
claim, counsel conflated sentencing with conviction and, doing so, ignored
the basic law that if the defendant was, in fact, twice convicted for one
offense, the convictions themselves constitute punishment in violation of
the protection against double jeopardy. Thus, apart from any sentencing
issue, the defendant could have directly appealed from his convictions on
the basis of double jeopardy. See Rutledge v. United States, 517 U.S. 292,
116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996); State v. Cator, 256 Conn. 785, 781
A.2d 285 (2001). He now apparently seeks, through collateral attack, to do
that which he did not do on direct appeal. In doing so, counsel for the
defendant acknowledged her belief that she now is required to file a motion
to correct an illegal sentence as a precondition to later filing a habeas
petition attacking the conviction on ineffectiveness grounds. See Cobham
v. Commissioner of Correction, 258 Conn. 30, 39, 779 A.2d 80 (2001) (‘‘[w]e
. . . conclude that, in order to challenge an illegal sentence, a defendant
either must appeal the sentence directly or file a motion to correct the
sentence pursuant to [Practice Book] § 43-22 with the trial court before
raising a challenge for the first time in a petition for a writ of habeas
corpus’’). Query whether the rule of Cobham applies to require a defendant
to file a motion nominally attacking a sentence as illegal but which is, in
fact, only a collateral attack on one’s convictions.
4
Practice Book § 43-22 has an interesting pedigree. The rule’s predecessor,
Practice Book (1982) § 935, had provided: ‘‘The judicial authority who sen-
tenced the defendant may, within ninety days, correct an illegal sentence
or other illegal disposition, or he may correct a sentence imposed in an
illegal manner or any other disposition made in an illegal manner.’’ In Decem-
ber, 1982, on the recommendation of then Superior Court Judge Frank
Kinney, the rules committee of the Superior Court amended the rule to its
present form. The transmittal regarding Judge Kinney’s recommendation
stated: ‘‘Judge Kinney suggests that we adopt a rule permitting the correction
of an illegal sentence at any time instead of the 90 day limitation.’’ Memoran-
dum to Carl Testo from Frank Buonocore (December 15, 1982) (copy con-
tained in the file of this case in the Appellate Court clerk’s office).
The transmittal also makes reference to our Supreme Court’s opinion in
State v. Pina, 185 Conn. 473, 477–78, 440 A.2d 962 (1981), in which the
trial court had sentenced the defendant to periods of incarceration for the
commission of two crimes, but did not specify whether the terms were to run
consecutively or concurrently. Discovering this omission, the state moved to
correct the illegal sentence more than ninety days after its imposition. Id.,
482 n.7. After the trial court responded by specifying that the sentences
were to be served consecutively, the defendant appealed on the basis of
double jeopardy. Id., 477–78. Our Supreme Court rejected the defendant’s
double jeopardy argument on the ground that the constitutional protections
against double jeopardy are not as rigorous regarding sentencing as they
are regarding convictions. The court set aside the judgment, nevertheless,
on the ground that because the state’s motion had been filed more than
ninety days after the date of sentencing, the trial court was without power
to act. Id., 482. From this chain of events, all we can conclude is that the
time limit for filing a motion to correct an illegal sentence was removed
from the rule of practice in 1982.
5
As noted, an illegal sentence includes a sentence that violates a defen-
dant’s right to protection from double jeopardy. In my view, the reference
to double jeopardy is tied to the sentence and not to the underlying convic-
tion. If not, then the jurisprudence stating that a Practice Book § 43-22
motion presumes a valid conviction has no meaning. The majority’s view
that one may legitimately utilize this rule of practice as a vehicle to attack
multiple convictions as violating the protection against double jeopardy
represents an unwarranted expansion of the scope of this rule beyond its
common-law basis. As noted by several cases cited herein, the focus of the
court when confronted with a § 43-22 motion must be on the sentencing
and not on the underlying conviction. The majority appears to have the
view that double jeopardy claims are in a separate category and that a
defendant may utilize § 43-22 to attack both convictions and sentencings
which are claimed to violate double jeopardy protections. While I agree that
the State v. Cator, supra, 256 Conn. 785, State v. Chicano, 216 Conn. 699,
584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed.
2d 1062 (1991), overruled in part by State v. Polanco, 308 Conn. 242, 248,
261, 61 A.3d 1084 (2013), and the State v. Polanco, 308 Conn. 242, 61 A.3d
1084 (2013), line of cases appear to suggest that a court, pursuant to § 43-22,
may vacate a conviction, I cannot harmonize those cases with our Supreme
Court’s view of § 43-22, as expressed in State v. Francis, 322 Conn. 247,
140 A.3d 927 (2016), and State v. Lawrence, supra, 281 Conn. 147.
In my view, Practice Book § 43-22, to be true to its origins, is available
only to correct an illegal sentence. And, indeed, our jurisprudence reflects
a range of sentencing-only double jeopardy claims that fall within the ambit
of § 43-22.
For example, in State v. Tabone, 279 Conn. 527, 902 A.2d 1058 (2006), the
defendant argued that his sentence was illegal under two separate grounds:
1. the sentence exceeded the maximum statutory punishment; and 2. the
sentence violated double jeopardy. In his second claim, the defendant argued
in the trial court and on appeal that his sentence violated his protection
against double jeopardy because it ‘‘constitutes cumulative multiple punish-
ments exceeding what the legislature intended . . . .’’ (Internal quotation
marks omitted.) Id., 532. In deciding the defendant’s first claim, our Supreme
Court held that a sentence of ten years of imprisonment and ten years of
special parole exceeds the maximum statutory limit for the offense of sexual
assault in the second degree. Id., 533. Although the court did not reach the
defendant’s double jeopardy claim; id., 544 n.7; the case is an apt demonstra-
tion of a colorable double jeopardy claim as it relates only to sentencing.
Similarly, in State v. Baker, 168 Conn. App. 19, 145 A.3d 955, cert. denied,
323 Conn. 932, 150 A.3d 232 (2016), the defendant asserted a colorable,
although unsuccessful, double jeopardy claim focused solely on punishment
when he asserted that the sentence he received upon being convicted for
the possession of a weapon or dangerous instrument in a correctional facility
amounted to a double punishment in light of the administrative punishment
he had received from the Department of Correction for the same behavior.
Additionally, in Steve v. Commissioner of Correction, 39 Conn. App. 455,
665 A.2d 168, cert. denied, 235 Conn. 929, 667 A.2d 555 (1995), this court
followed federal precedent in holding that ‘‘time served on [a] vacated
sentence must be treated and credited as postconviction confinement. To
fail to do so would be a violation of the fifth amendment guarantee against
double jeopardy.’’ Id., 463. In so holding, we followed the United States
Supreme Court’s decision in North Carolina v. Pearce, 395 U.S. 711, 89 S.
Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled in part by Alabama v. Smith,
490 U.S. 794, 798–99, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989), which
addressed a sentencing-only double jeopardy claim. There, the defendant
was convicted of assault with the intent to commit rape, a conviction that
was later reversed, and, upon retrial, the defendant was convicted and
resentenced. At the time of his resentencing, the defendant had already
served six and one-half years of incarceration on his original conviction,
onto which the court added the new sentence. The defendant argued that
this violated his protection against double jeopardy and the Supreme Court
agreed, holding that ‘‘the constitutional guarantee against multiple punish-
ments for the same offense absolutely requires that punishment already
exacted must be fully credited in imposing sentence upon a new conviction
for the same offense. If, upon a new trial, the defendant is acquitted, there
is no way the years he spent in prison can be returned to him. But if he is
reconvicted, those years can and must be returned—by subtracting them
from whatever new sentence is imposed.’’ (Footnote omitted; internal quota-
tion marks omitted.) Id., 718–19.
A number of state court decisions, in addition to Steve, have followed
the Pearce reasoning in the resentencing context. For example, in State v.
Taparra, 82 Haw. App. 83, 919 P.2d 995 (1996), the Intermediate Court of
Appeals of Hawaii, applying Pearce, held that the defendant, upon resentenc-
ing, must be credited for the days he had already served in prison, the
portion of the fine he had already paid, and the community service hours
he had already served. Id., 89.
In Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L. Ed. 872 (1873), the United
States Supreme Court addressed another type of sentencing-only double
jeopardy claim. There, a defendant was convicted of stealing federal mail
bags, a crime which carried a punishment of either imprisonment or a fine.
The defendant, however, was sentenced to both imprisonment and a fine.
The United States Supreme Court held that subjecting the defendant to both
punishments violated double jeopardy. Id., 176. The Ex parte Lange holding
sparked over a century’s worth of cases nationwide, which highlight the
fact that a defendant very well may bring a double jeopardy claim challenging
only his sentence, independent from his conviction. For instance, in United
States v. Versaglio, 85 F.3d 943 (2d Cir.), modified after reh. on other grounds,
96 F.3d 637 (2d Cir. 1996), the defendant was convicted of criminal contempt
and sentenced, like the defendant in Ex parte Lange, to pay a fine and to
a term of imprisonment. He argued that, statutorily, he could only be sen-
tenced to one or the other and, since he had already paid his fine, the prison
sentence should be vacated. Id., 945. The United States Court of Appeals
for the Second Circuit Court, relying on Ex parte Lange and its progeny,
agreed with the defendant and stated ‘‘the rule of Lange . . . [precludes]
imposition of the alternative punishment of imprisonment.’’ Id., 948.
The Nevada Supreme Court reaffirmed its commitment to the Ex parte
Lange line of reasoning in 2007 in Wilson v. State, 123 Nev. 587, 594, 170
P.3d 975 (2007). There, the defendant was convicted of four counts of
production of child pornography and four counts of possession of child
pornography. On direct appeal, the court reversed three of the four produc-
tion convictions as violative of double jeopardy and remanded the case
for resentencing. Thereafter, the defendant was resentenced and the court
increased his sentences for the possession convictions, and changed the
sentences from running concurrently to running consecutively. The Nevada
Supreme Court held that the court’s ‘‘resentencing on the lawful portions
of [the defendant’s] conviction surviving direct appeal violated [the defen-
dant’s] rights against double jeopardy.’’ Id., 597.
Courts have also addressed claims in which defendants argue that their
double jeopardy rights had been violated by courts adding requirements to
their sentence after they were released from custody or probation. See State
v. Schubert, 212 N.J. 295, 53 A.3d 1210 (2012), wherein the New Jersey
Supreme Court held that the trial court’s action in amending its judgment
to add a requirement of community supervision for life after the defendant
had been discharged from probation violated the defendant’s double jeop-
ardy rights. Id., 316; see also People v. Williams, 14 N.Y.3d 198, 925 N.E.2d
878, 899 N.Y.S.2d 76, cert. denied, 562 U.S. 947, 131 S. Ct. 125, 178 L. Ed.
2d 242 (2010), wherein the New York Court of Appeals held that defendants
who had been released from prison before resentencing proceedings were
commenced had a legitimate expectation of finality of their originally
imposed sentences and, thus, to impose previously omitted terms of postre-
lease supervision at resentencing violated their double jeopardy rights.
Id., 217.
6
In the following cases, this court, on review, reversed the trial court
either for deciding a matter on the merits when we determined it did not
have the jurisdiction to do so, or we reversed the trial court for having
dismissed a motion for want of jurisdiction where we determined that the
court, in fact, had jurisdiction: State v. McClean, 173 Conn. App. 62,
A.3d (2017) (trial court dismissed motion to correct illegal sentence for
lack of jurisdiction, on appeal, court determined there was jurisdiction; on
remand from our Supreme Court, this court affirmed original dismissal for
lack of jurisdiction); State v. Williams-Bey, 173 Conn. App. 64, A.3d
(trial court dismissed motion to correct illegal sentence for lack of
jurisdiction, on appeal, court determined there was jurisdiction; on remand
from our Supreme Court, this court affirmed original dismissal for lack of
jurisdiction), cert. granted on other grounds, 326 Conn. 920, A.3d
(2017); State v. Abraham, 152 Conn. App. 709, 99 A.3d 1258 (2014) (trial
court incorrectly dismissed motion to correct for lack of jurisdiction); State
v. Meikle, 146 Conn. App. 660, 79 A.3d 129 (2013) (trial court incorrectly
exercised jurisdiction in denying motion to correct); State v. St. Louis, 146
Conn. App. 461, 76 A.3d 753 (trial court incorrectly exercised jurisdiction
in denying motion to correct), cert. denied, 310 Conn. 961, 82 A.3d 628
(2013); State v. Santiago, 145 Conn. App. 374, 74 A.3d 571 (trial court
incorrectly dismissed motion for lack of jurisdiction), cert. denied, 310 Conn.
942, 79 A.3d 893 (2013); State v. Clark, 136 Conn. App. 421, 47 A.3d 391
(trial court incorrectly exercised jurisdiction in denying motion to correct),
cert. denied, 307 Conn. 906, 53 A.3d 221 (2012); State v. Henderson, 130
Conn. App. 435, 24 A.3d 35 (2011) (trial court incorrectly dismissed motion
for lack of jurisdiction), appeals dismissed, 308 Conn. 702, 66 A.3d 847
(2013); State v. Osuch, 124 Conn. App. 572, 5 A.3d 976 (trial court incorrectly
dismissed motion for lack of jurisdiction), cert. denied, 299 Conn. 918, 10
A.3d 1052 (2010); State v. Starks, 121 Conn. App. 581, 997 A.2d 546 (2010)
(trial court incorrectly exercised jurisdiction in denying portion of motion
to correct); State v. Delgado, 116 Conn. App. 434, 975 A.2d 736 (2009) (trial
court incorrectly exercised jurisdiction in denying motion to correct); State
v. Taylor, 91 Conn. App. 788, 882 A.2d 682 (trial court incorrectly exercised
jurisdiction in denying motion to correct), cert. denied, 276 Conn. 928, 889
A.2d 819 (2005); State v. Francis, 69 Conn. App. 378, 793 A.2d 1224 (trial
court incorrectly exercised jurisdiction in denying motion to correct), cert.
denied, 260 Conn. 935, 802 A.2d 88, cert. denied, 537 U.S. 1056, 123 S. Ct.
630, 154 L. Ed. 2d 536 (2002).
7
I am aware, of course, of the stated policy of this court that one panel
will not overturn the decision of a prior panel. See Consiglio v. Trans-
america Ins. Group, 55 Conn. App. 134, 138 n.2, 737 A.2d 969 (1999) (‘‘[T]his
court’s policy dictates that one panel should not, on its own, reverse the
ruling of a previous panel. The reversal may be accomplished only if the
appeal is heard en banc.’’). Whatever the source of that policy, it has not
been enshrined in a discrete rule of practice and has become a rule of thumb
only by practice. That said, I do not dispute that following this policy
enhances collegiality on the court as well as confidence in the reliability
and consistency of the Appellate Court generally. In the rare circumstance
in which both panels in the original and subsequent appeals are comprised
of the same judges, however, I believe we could revisit our earlier opinion
if we thought doing so would serve justice, as we would then only be
reviewing our own work. In Chung v. Commissioner of Correction, 245
Conn. 423, 434 n.7, 717 A.2d 111 (1998), the late Justice David M. Borden,
in disavowing a prior opinion he had authored, quoted Justice Robert Jack-
son who, in a somewhat parallel circumstance, opined: ‘‘Precedent, however,
is not lacking for ways by which a judge may recede from a prior opinion
that has proven untenable and perhaps misled others.’’ (Internal quotation
marks omitted.) Having gained time for reflection, if not wisdom, I now
believe that we erroneously misled the bench and bar in Santiago and, in
this instance, remorse begs correction either by this panel or on the next
rung of Connecticut’s judicial ladder.
8
Since Cator, the availability of an attack on one’s sentence on direct
appeal appears to have narrowed. In State v. Urbanowski, 163 Conn. App.
377, 384–85, 136 A.3d 236, cert. granted, 321 Conn. 905, 138 A.3d 280 (2016),
this court held that, where a defendant had not sought to correct an illegal
sentence by filing a Practice Book § 43-22 motion in the trial court, it is
inappropriate to raise an illegal sentence claim for the first time on direct
appeal. Also, in the context of a habeas corpus petition, our Supreme Court
has held that a petitioner who attacks his sentence or disposition as illegal,
and who did not first file a motion to correct an illegal sentence, may be
procedurally defaulted from later raising such a claim in a habeas petition.
Crawford v. Commissioner of Correction, 294 Conn. 165, 197–99, 982 A.2d
620 (2009). One can only speculate as to whether the holdings in Urbanowski
and Crawford have contributed to the surge of Practice Book § 43-22
motions. In the case at hand, counsel conceded her belief that she was
required to file such a motion in the trial court in order to preserve her
client’s later habeas opportunity. To me, such confusion makes it abundantly
clear that the court needs to clearly explicate the difference between a
sentencing claim and a conviction claim in the context of Practice Book
§ 43-22 and, if the two can be intertwined, the limited circumstances in
which that may be permitted.
9
Cator appears to have derived its pedigree from Chicano, in which our
Supreme Court opined that when a defendant is convicted of both a lesser
and greater offense, the proper course for the court is to merge the convic-
tions into one. State v. Chicano, supra, 216 Conn. 725. More recently, our
Supreme Court has reversed that jurisprudence and now holds that the
proper course, in such a situation, is for the court to vacate the lesser
conviction and sentence on the conviction for the greater offense. State v.
Polanco, supra, 308 Conn. 245. Later, the rule of Polanco was expanded to
include situations involving cumulative convictions for the same offense.
See State v. Miranda, 317 Conn. 741, 755–56, 120 A.3d 490 (2015).
In this line of cases, it appears, from Cator, that the trial court has
jurisdiction to take such remedial action pursuant to Practice Book § 43-
22, notwithstanding that adherence to our Supreme Court in this regard
would appear to expand the jurisdiction of the trial court in a Practice Book
§ 43-22 circumstance to permit the court to affect both a conviction and an
attendant sentence.
10
‘‘In Anders [v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d
493 (1967)], the United States Supreme Court outlined a procedure that is
constitutionally required when, on direct appeal, appointed counsel con-
cludes that an indigent defendant’s case is wholly frivolous and wishes to
withdraw from representation. . . . Under Anders, before appointed coun-
sel may withdraw, he or she must provide the court and the defendant with
a brief outlining anything in the record that may support the appeal, and
the defendant must be given time to raise any additional relevant points.
. . . Thereafter, the court, having conducted its own independent review
of the entire record of the case, may allow counsel to withdraw, if it agrees
with counsel’s conclusion that the appeal is entirely without merit.’’ (Cita-
tions omitted.) State v. Francis, supra, 322 Conn. 250 n.3.
11
My research for the time period 2000 through the end of 2016 reveals
that the number of Superior Court decisions on motions to correct illegal
sentences has dramatically increased over the past nearly two decades, with
a substantial acceleration in the past few years. From 2000 through 2006,
the numbers ranged from zero to three. From 2007 through 2012 the number
of filings ranged from five to twelve, and from 2013 through 2016 the numbers
ranged from five to twenty-four. Allowing for filings based upon the United
States Supreme Court’s juvenile justice decisions, the top number of that
range would be reduced by eight such filings in 2016, the highest year.
And, finally, the record puts in doubt the notion advanced by the court
in Francis that a motion to correct an illegal sentence should result in an
expedited hearing before the original sentencing judge. State v. Francis,
supra, 322 Conn. 259–60. Indeed, with respect to fifteen cases randomly
surveyed, the time period between sentencing and the hearing on the motion
to correct averaged 9.3 years, with a low of seven months and a high of
sixteen years and, understandably, the judge who heard the motion to correct
was the original sentencing judge in only one of those cases. Finally, it may
be factually, if not legally, interesting to note in regard to the fifteen surveyed
cases, that the defendants in fourteen of those cases were unsuccessful either
on the merits or because the court lacked jurisdiction to hear the motion.
12
This suggestion, if found sensible, could perhaps be accomplished by
the creation of a rule that, after conviction but before imposition of sentence,
either party may move to have a conviction vacated pursuant to either State
v. Polanco, supra, 308 Conn. 242, or State v. Miranda, supra, 317 Conn. 741.
13
At trial, the court initially dismissed the motion, not for want of jurisdic-
tion but on the merits. The majority reverses only the form of the judgment.
I would affirm the judgment not for the reason stated by the trial court but
because the court had no jurisdiction. It is axiomatic that on appeal we
may affirm a trial court on alternative grounds. See Johnson v. Rell, 119 Conn.
App. 730, 736, 990 A.2d 354 (2010) (question of subject matter jurisdiction can
be raised sua sponte by the court).
In the case at hand, after oral argument, we asked counsel to brief the
question of whether the trial court had jurisdiction to hear the defendant’s
motion. The majority summarily concludes that both parties agree that the
court had jurisdiction over the defendant’s motion to correct. I think it is
a fair observation that while both parties stated their belief that the court
had jurisdiction, the state came to that conclusion on the basis of its belief
that we are constrained by Santiago. It is noteworthy that the state, neverthe-
less, offered its view that this jurisprudence may be incorrect and, accord-
ingly, the state reserved its right to argue the question of jurisdiction should
this opinion be reviewed by the Supreme Court. In brief, and after reviewing
our jurisprudence in this regard, the state commented: ‘‘Notwithstanding
Connecticut jurisprudence suggesting that true double jeopardy claims may
be raised via a motion to correct an illegal sentence, that conclusion may
be misguided given the multifaceted nature of double jeopardy claims, which
come in various forms and can arise at various points in a prosecution. As
such, double jeopardy claims cannot be considered as purely relating to
sentencing.’’ Thus, I believe it would be more accurate to conclude that the
state feels constrained by our somewhat confusing jurisprudence on this
issue and not that the state embraces it as a correct understanding of the
parameters of Practice Book § 43-22.