Opinion
No. CR 55737
June 11, 2009
MEMORANDUM OF DECISION IN RE DEFENDANT'S MOTION TO CORRECT AN ILLEGAL SENTENCE
After a jury trial, the defendant was convicted of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A) and (B), robbery in the third degree in violation of § 53a-136, larceny in the second degree in violation of § 53a-123(a)(3) and assault in the third degree in violation of § 53a-61(a)(1). State v. Smith, 219 Conn. 160, 161 (1991). The court sentenced the defendant to a total effective term of thirty-five years imprisonment, Id.
By motion dated October 10, 2008, the defendant, appearing as a self-represented party, seeks to correct this sentence on the ground that it is illegal. Specifically, the defendant asserts that due to the recent Supreme Court decisions State v. Salamon, 287 Conn. 509 (2008), State v. Sanserverino, 287 Conn. 608 (2008), and State v. DeJesus, 288 Conn. 418 (2008), his sentence for kidnapping in the first degree should be vacated and he should be resentenced for unlawful restraint in the second degree. The state filed a motion to dismiss for lack of subject matter jurisdiction on February 13, 2009. A hearing was held before this court on February 26, 2009.
On or about December 2, 2008, pursuant to State v. Casiano, 282 Conn. 614 (2007), the public defender reported to the court that the defendant's motion to correct lacked sufficient merit to warrant the appointment of counsel.
For the following reasons, the court concludes that it lacks jurisdiction to consider the defendant's motion to correct. Accordingly, the motion is hereby dismissed.
SUBJECT MATTER JURISDICTION
As an initial matter, the court must determine whether it has jurisdiction to consider the defendant's motion to correct an illegal sentence. "Jurisdiction involves the power in a court to hear and determine the cause of action presented to it . . ." (Internal quotation marks omitted.) State v. Lawrence, 281 Conn. 147, 153 (2007). "[T]he jurisdiction of the sentencing court terminates once a defendant's sentence has begun, and, therefore, that court may no longer take any action affecting a defendant's sentence unless it expressly has been authorized to act . . . Practice Book § 43-22, which provides the trial court with such authority, provides that `[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.'" (Citations omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 37-38 (2001).
"An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory . . . A sentence imposed in an illegal manner is one within the relevant statutory limits but . . . imposed in a way which 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 information or considerations solely in the record, or his right that the government keep its plea agreement promises . . ." (Citation omitted; internal quotation marks omitted.) State v. Henderson, 93 Conn.App. 61, 67, cert. denied, 277 Conn. 927 (2006). "[I]f the defendant cannot demonstrate that his motion to correct falls within the purview of § 43-22, the court lacks jurisdiction to entertain it." State v. Lewis, 108 Conn.App. 486, 488 (2008) (per curiam).
The purpose of § 43-22 is to correct an illegal sentence, "not to attack the validity of a conviction by setting it aside . . ." (Internal quotation marks omitted.) State v. Lewis, supra, 488. In other words, "the sentencing proceeding, and not the trial leading to the conviction, must be the subject of the attack." State v. Lawrence, supra, 281 Conn. 158. Accordingly, "the relief allowed by . . . § 43-22 . . . require[s], as a precondition, a valid conviction." State v. Mollo, 63 Conn.App. 487, 491, cert. denied, 257 Conn. 904 (2001).
In State v. Lawrence, the defendant filed a motion to correct an illegal sentence in which he claimed that his conviction for manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a(a) was improper. The defendant asserted that the proper conviction should have been manslaughter in the first degree in violation of § 53a-55(a)(2) and he requested to be resentenced in accordance with that provision. The Supreme Court concluded that the defendant's claim, rather than falling within the purview of Practice Book § 43-22, challenged the validity of the underlying conviction, and, therefore, the trial court lacked jurisdiction to consider the motion to correct. State v. Lawrence, supra, 281 Conn. 158-59.
Like the defendant in Lawrence, the defendant here cites to Practice Book § 43-22 in his motion and alleges that "[t]he sentences imposed . . . are illegal." Upon closer examination of the substance of the motion and the defendant's prayer for relief, however, it becomes clear that the defendant is attempting to fit a square peg into a round hole. The true essence of the defendant's claim concerns not the sentence imposed, but rather the validity of the underlying conviction itself. Specifically, the defendant asserts that due to the recent Supreme Court decisions concerning the interpretation of Connecticut's kidnapping statute; State v. Salamon, supra, State v. Sanserverino, supra, and State v. DeJesus, supra; and the facts and circumstances of his case, this court should vacate his kidnapping conviction and resentence him for unlawful restraint in the second degree. This request amounts not to the correction of an alleged illegal sentence, but rather to a direct attack on the legality of the defendant's kidnapping conviction — an attack which simply cannot be mounted via a Practice Book § 43-22 motion. See State v. Lewis, supra, 108 Conn.App. 488.
The principles articulated in State v. Salamon, supra, 287 Conn. 542, which were applied in Sanserverino and DeJesus, establish as a requirement for the crime of kidnapping an intent to "prevent the victim's liberation for a longer period of time or to a greater degree than that which is necessary to commit [an underlying] crime." In reaching that conclusion, the court reconsidered and overruled its prior interpretation of the kidnapping statutes.
The defendant relies on State v. Raucci, 21 Conn.App. 557, cert. denied, 215 Conn. 817 (1990), for the proposition that Practice Book § 43-22 may be used to vacate a judgment of conviction. This reliance, however, is misplaced. In Raucci, the trial court, acting on a motion to correct an illegal sentence, vacated the defendant's conviction for conspiracy to commit burglary in the third degree and resentenced the defendant on the remaining counts. Id., 559. The Appellate Court considered whether "the trial court when correcting an illegal sentence pursuant to Practice Book § 935 [now § 43-22] after a multi-count conviction has been partially set aside, may restructure the entire sentencing plan in order to effectuate its original sentencing intent." (Emphasis in original; internal quotation marks omitted.) State v. Mollo, supra, 63 Conn.App. 491. In other words, at issue in Raucci was the trial court's sentencing authority, not its action in setting aside the defendant's conviction pursuant to a motion to correct an illegal sentence. Thus, contrary to the defendant's assertion, Raucci does not stand for "the proposition that Practice Book § 43-22 may be an avenue to attack the validity of a conviction." State v. Mollo, supra, 491.
Because the defendant's claim falls outside of the purview of Practice Book § 43-22, this court concludes that it lacks jurisdiction to consider the defendant's motion to correct an illegal sentence.
In light of the court's conclusion that it lacks jurisdiction to consider the defendant's motion, the court need not determine whether the Salamon, Sanseverino and DeJesus line of cases should be applied retroactively to convictions that were final prior to the release of these decisions. See State's Motion to Dismiss, p. 1.
CONCLUSION
Based on the forgoing, the court dismisses the defendant's motion to correct an illegal sentence for lack of subject matter jurisdiction.
CT Page 9947