Opinion
No. CR 97-260322T
October 26, 2005
ARTICULATION
On December 6, 1999, the defendant was sentenced by this court after conviction by jury of three crimes, Attempt at Murder, in violation of Connecticut General Statutes § 53a-49(a)(2) and § 53a-54a(a), Assault in the 1st Degree, in violation of' § 53a-59(a)(1) and Assault in the 1st Degree, in violation of § 53a-59(a)(5).
The court sentenced the defendant to a term of eighteen years on each of the three convictions and ordered that the sentences were to run concurrently for a total effective sentence of eighteen years.
The defendant appealed from his convictions. His convictions were affirmed by the Appellate Court. There was no request for certification.
On May 20, 2004, approximately three and one-half years after his sentence was imposed, the defendant filed a motion to correct what he considers to be an illegal sentence. In that motion, the defendant moved to have the court correct "his multiple convictions, multiple sentence's (sic) and multiple punishments, imposed for greater and lesser included offense's (sic) which were all imposed in an illegal manner."
In his memorandum in support of the motion to correct, Moore raised three issues — (1) did the convictions and sentences for all three counts violate the State and Federal Constitutional prohibitions against double jeopardy; (2) Did the trial courts err in its failure to give a lesser included offense instruction and an acquittal first instruction; and (3) Did the court err in allowing the State to "amend CT Page 13938-fv the information several times, never putting the defendant to plea in person, and allowing the State to expand the Bill of Particulars."
As noted, this motion to correct is addressed to the appropriateness of the defendant's sentences, not his convictions. His convictions were affirmed on appeal.
See footnote 1, above.
See footnote 1, above.
On June 14, 2004, this court summarily denied the relief sought in the motion to correct.
The court hereby articulates its reason for the denial of the motion to correct.
The facts and circumstances regarding that sentence are similar to those raised in the matter of State v. Ricky Lee Barnett, 53 Conn.App. 581 (1999) wherein the defendant, after his conviction was affirmed by the Appellate Court, filed a motion to correct his sentence, claiming, for the first time on appeal, that his sentence was illegal.
Such a claim is a challenge to his sentence and not to his underlying conviction. See State v. Lawrence, 86 Conn.App. 784, 793 (2005).
As noted, after a jury trial, the defendant Brian Moore was convicted of attempt at murder, in violation of § 53a-49(a)(2) and 53a-54a(a), assault in the 1st degree with a firearm, in violation of § 53a-59(a)(1), and assault in the 1st degree, in violation of § 53a-59(a)(5).
Thereafter, the court sentenced the defendant to the custody of the Commissioner of Correction for a period of 18 years on each of the three convictions, and ordered that those three sentences were to run concurrently with each other for a total effective sentence of 18 years.
Each of those crimes is a separate and distinct offense. As the court held in Blockburger v. United States, 284 U.S. 299 (1932), "In analyzing whether two offenses constitute the same offense, the United States Supreme Court has stated that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires the proof of a fact CT Page 13938-fw which the other does not . . . Blockburger, supra, p. 306 (Emphasis in the original), as cited in Barnett, supra, p. 603.
In this case the defendant, Moore, was charged and convicted as to two counts of the very same offense as was Barnett — assault in the 1st degree. He was also charged and convicted of attempt at murder. Although the crimes arose out of the same act, each of those offenses requires proof of a fact which the other does not.
Section 53a-54a provides, in relevant part, "(a) A person is guilty of murder when, with the intent to cause the death of another person, he causes the death of such person or a third person . . ."
Section 53a-49(a)(2) provides, in relevant part, "A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for the commission of the crime, he: (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime."
Section 53a-59(a) provides, in relevant part, "A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument (emphasis added).
Section 53a-59(a) provides, in relevant part, "A person is guilty of assault in the first degree when: (5) With intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm (emphasis added).
In Barnett, our Appellate Court found that under the test articulated in Blockburger v. United States, supra, 284 U.S. 204, the offenses of assault in the first degree pursuant to § 53a-59a(1) and (5) are two separate offenses for double jeopardy purposes. They are not lesser included offenses as to each other. The jury CT Page 13938-fx could have found the defendant guilty of one and not guilty of the other. It found him guilty as to both. In denying the relief sought in the motion to correct, this court concluded, additionally, that the offense of attempt at murder is, likewise, a separate and distinct offense from assault in the first degree.
As previously noted, at the time of sentencing, this court sentenced the defendant to a term of eighteen years on each of the three counts for which he was convicted. Those three sentences were ordered to run concurrently with each other for a total effective sentence of eighteen years. The conviction for § 53a-59(a)(1), carries with it a mandatory minimum sentence of five years which cannot be reduced or modified.
Also, as in Barnett, the defendant herein, "did not provide this court with any legal analysis of the legislative intent that these [three] subdivisions should be treated as one offense for double jeopardy purposes, and, therefore, failed to rebut the presumption in Blockburger that he was convicted of [three] crimes warranting separate punishments." Barnett, supra, p. 602-03.
The defendant's claim that the sentence imposed is incorrect is erroneous. The defendant did not receive multiple sentences for the same offense. He received multiple sentences for multiple convictions on multiple charges. The sentences were ordered to be served concurrently. The sentence involving all three convictions, running concurrently, did not add any more time to the defendant's sentence then he received for any one of them. The defendant's sentence was not violative of any of his rights or protections under either the Connecticut Constitution or the United States Constitution.