State v. Gang Jin, 179 A.3d 266, 179 Conn. App. 185 (2018)

Jan. 9, 2018 · Connecticut Appellate Court · AC 39893
179 A.3d 266, 179 Conn. App. 185

STATE of Connecticut
v.
GANG JIN

AC 39893

Appellate Court of Connecticut.

Argued November 13, 2017
Officially released January 9, 2018

*268Nitor V. Egbarin, for the appellant (defendant).

James M. Ralls, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Courtney M. Chaplin, assistant state's attorney, for the appellee (state).

DiPentima, C.J., and Elgo and Flynn, Js.

DiPENTIMA, C.J.

*187The defendant, Gang Jin, appeals from the denial of his motion to open the judgment of conviction,1 after his guilty plea made pursuant to the Alford doctrine,2 of conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a-103 and 53a-48. On appeal, the defendant claims that the court (1) improperly denied his application for the accelerated rehabilitation program pursuant to General Statutes § 54-56e3 and (2) erred in determining that he had received the effective assistance of counsel. The state counters that, following the imposition of the defendant's sentence, the court lacked jurisdiction to consider the defendant's motion to open. Additionally, *188the state argues that the defendant's claim that the court retained jurisdiction because he had been sentenced in an illegal manner,4 which was raised for the first time on appeal, fails because he challenges *269the "events prior to his conviction and guilty plea, rather than events at sentencing." The state further contends that the defendant's guilty plea, made pursuant to the Alford doctrine, waives all prior nonjurisdictional defects. We agree with the state that, following the imposition of the defendant's sentence, the court's jurisdiction terminated. Additionally, we decline to consider the defendant's claim of an illegal sentence because he failed to present this issue to the trial court via a motion to correct an illegal sentence. Finally, the form of the judgment is improper, and therefore we reverse the judgment and remand the case with direction to dismiss the defendant's motion to open.

The following facts and procedural history are relevant to our discussion. In an information dated April 3, 2014, the state charged the defendant with burglary in the second degree in violation of General Statutes § 53a-102, conspiracy to commit burglary in the second degree in violation of General Statutes §§ 53a-102 and 53a-48, possession of burglar's tools in violation of General Statutes § 53a-106 and attempt to commit larceny in the sixth degree in violation of General Statutes § 53a-125. On November 10, 2014, the defendant filed an application for accelerated rehabilitation.

The defendant, represented by Attorney Theodore A. Kowar, Jr., appeared before the court, Baldini, J. , on January 12, 2016. At the outset of this proceeding, the clerk confirmed the defendant's eligibility for accelerated rehabilitation. Kowar stated the defendant was withdrawing the application for accelerated rehabilitation. The prosecutor and Kowar informed the court that they had reached a plea agreement. Specifically, the *189defendant agreed to plead guilty to the substituted charge of conspiracy to commit burglary in the third degree in exchange for a five year sentence, execution suspended, and five years of probation.5

After canvassing the defendant,6 the court found that plea was made knowingly and voluntarily with the assistance of competent counsel. It accepted the defendant's *270Alford plea and rendered a judgment of conviction. The court imposed the agreed-upon sentence of five years incarceration, execution suspended, and five years of probation.7 *190On November 7, 2016, the defendant, now represented by Attorney Nitor Egbarin, filed a motion to open the judgment. The defendant, who claimed to be a legal permanent resident of the United States, requested to have his case opened "to allow him to continue with his application for [accelerated rehabilitation] to which he is eligible." He further alleged that he had not been advised of the immigration benefits of the accelerated rehabilitation application, and that Kowar's withdrawal of that application "was neither a correct action nor correct legal advice," constituting a denial of his "right to effective assistance of counsel."

On November 22, 2016, the court, Kwak, J. , held a hearing on the defendant's motion. Egbarin requested that the court open the case to afford the defendant the opportunity to pursue his application for accelerated rehabilitation. The prosecutor, in an attempt to clarify any issues regarding the application for accelerated rehabilitation, noted that Judge Baldini had indicated in certain pretrial conversations that she would not find good cause to grant accelerated rehabilitation in this case.8 Nevertheless, the defendant's application for accelerated rehabilitation, which was filed on November 10, 2014, remained pending until the January 12, 2016 hearing. At that hearing the defendant withdrew the application, pleaded guilty and was sentenced. Accordingly, the prosecutor reasoned the court's jurisdiction over the case terminated at that time. Thus, the prosecutor requested that the court deny the defendant's motion to open.

In response, Egbarin referred to his claim of ineffective assistance of counsel, and requested that Judge Kwak consider whether good cause existed with *191respect to the application for accelerated rehabilitation. Following a recess, the court issued its decision. It determined that the defendant withdrew his application for accelerated rehabilitation on January 12, 2016. It then denied the defendant's motion to open. Finally, it observed that "once a person has been sentenced, the court no longer has jurisdiction to vacate a plea. This is not the proper procedure. And a habeas is more-a habeas petition is more a proper procedure than to have the trial court [open] judgment."

On appeal, the defendant first claims that the court improperly denied his application for accelerated rehabilitation. Specifically, he argues that he was denied the opportunity to present evidence of good cause in support of his application, that a person charged with a class C felony is eligible for accelerated rehabilitation upon a showing of good cause and that Judge Baldini improperly denied the application in chambers and not in open court.

These arguments suffer from two substantial flaws. First, the record is clear the Judge Baldini did not deny the defendant's application for accelerated rehabilitation. She never ruled on this application because the application was withdrawn at the January 12, 2016 proceeding where the defendant pleaded guilty pursuant to the *271Alford doctrine. Thus, the foundation for the defendant's arguments collapses because it is based on an action of the trial court that simply did not occur. Although we agree that the record suggests that Judge Baldini was inclined to deny the application for accelerated rehabilitation, that inclination is immaterial because the court never acted on the application for accelerated rehabilitation following the withdrawal of said application. Put another way, the defendant cannot now complain about a ruling that the court never made. See, e.g., Durso v. Aquilino , 64 Conn. App. 469, 475, 780 A.2d 937 (2001) (claim of error is not reviewable *192where objection to admission of evidence was withdrawn at trial); State v. Rodriguez , 10 Conn. App. 357, 358, 522 A.2d 1250 ("[i]t is axiomatic that, absent exceptional circumstances, appellate review of all issues ... [is limited ] to those on which the trial court has had an opportunity to rule " [emphasis added; internal quotation marks omitted] ), cert. denied, 204 Conn. 804, 528 A.2d 1151 (1987).

Second, we agree with the state that the court lacked jurisdiction over the motion to open. The court sentenced the defendant on January 12, 2016, the same day it accepted his guilty plea. Under our well established law, the court was divested of jurisdiction at that time. Accordingly, it lacked the power to hear and determine the defendant's November 7, 2016 motion to open.

"The Superior Court is a constitutional court of general jurisdiction. In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law.... It is well established that under the common law a trial court has the discretionary power to modify or vacate a criminal judgment before the sentence has been executed.... This is so because the court loses jurisdiction over the case when the defendant is committed to the custody of the commissioner of correction and begins serving the sentence.... Because it is well established that the jurisdiction of the trial court terminates once a defendant has been sentenced, a trial court may no longer take any action affecting a defendant's sentence unless it expressly has been authorized to act. " (Emphasis added; internal quotation marks omitted.) State v. Robles , 169 Conn. App. 127, 132, 150 A.3d 687 (2016), cert. denied, 324 Conn. 906, 152 A.3d 544 (2017) ; see also State v. Banks , 321 Conn. 821, 830, 146 A.3d 1 (2016) ; State v. Monge , 165 Conn. App. 36, 41-42, 138 A.3d 450, cert. denied, *193321 Conn. 924, 138 A.3d 284 2016). We conclude, therefore, that the trial court lacked jurisdiction to consider the defendant's motion to open.

Next, we address the defendant's claim of ineffective assistance of counsel. He contends that Kowar was constitutionally ineffective by advising the defendant to withdraw his application for accelerated rehabilitation and to plead guilty pursuant to the Alford doctrine. Specifically, the defendant argues that Kowar failed to advise him that his guilty plea would subject him to removal from the United States and this failure violated his sixth amendment right to effective assistance of counsel pursuant to Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).9

We again conclude that the court lacked jurisdiction to consider the defendant's *272claim of ineffective assistance of counsel.10 We iterate that following the imposition of the defendant's sentence on January 12, 2016, *194the court was divested of jurisdiction. Accordingly, it was without the power to consider the defendant's claim of ineffective assistance of counsel that was raised in the November 7, 2016 motion to open.

Finally, the defendant argues, for the first time on appeal, that the trial court had jurisdiction, pursuant to Practice Book § 43-22, to correct that illegal sentence. Specifically, he contends that his sentence was imposed in an illegal manner, and therefore the court had jurisdiction to correct it at any time. As a general matter, § 43-22"embodies a common-law exception that permits the trial court to correct an illegal sentence or other illegal disposition.... [I]n order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding [itself] ... must be the subject of the attack.... [T]o invoke successfully the court's jurisdiction with respect to a claim of an illegal sentence, the focus cannot be on what occurred during the underlying conviction....

"Connecticut courts have considered four categories of claims pursuant to [Practice Book] § 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 computation 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.... [I]f a defendant's claim falls within one of these four categories, the trial court has jurisdiction to modify a sentence after it has commenced.... If the claim is not within one of these categories, then the court must dismiss the claim for a *195lack of jurisdiction and not consider its merits." (Citations omitted; internal quotation marks omitted.) State v. Robles , supra, 169 Conn. App. at 132-33, 150 A.3d 687.

In the present case, however, the defendant did not file a motion to correct an illegal sentence and instead raised his Practice Book § 43-22 claim for the first time on appeal. We recently have concluded that "it is inappropriate to review an illegal sentence claim that is raised for the first time on appeal. Our rules of practice confer the authority to correct an illegal sentence on the trial court, and that court is in a superior position to fashion an appropriate remedy for an illegal sentence *273.... Furthermore, the defendant has the right, at any time, to file a motion to correct an illegal sentence and raise [an illegal sentence] claim before the trial court.... State v. Starks , 121 Conn. App. 581, 592, 997 A.2d 546 (2010) (declining to review unpreserved claim of illegal sentence under State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 [1989], or plain error doctrine embodied in Practice Book § 60-5 ); see also Cobham v. Commissioner of Correction , 258 Conn. 30, 38 n.13, 779 A.2d 80 (2001) (clarifying that judicial authority in context of Practice Book § 43-22 refers exclusively to trial court); State v. Crump , 145 Conn. App. 749, 766, 75 A.3d 758 ( [i]t is not appropriate to review an unpreserved claim of an illegal sentence for the first time on appeal ...), cert. denied, 310 Conn. 947, 80 A.3d 906 (2013) ; State v. Brown , 133 Conn. App. 140, 145-46 n.6, 34 A.3d 1007 (2012) (same), rev'd on other grounds, 310 Conn. 693, 80 A.3d 878 (2013)." (Internal quotation marks omitted.) State v. Urbanowski , 163 Conn. App. 377, 385, 136 A.3d 236 (2016), aff'd, 327 Conn. 169, 172 A.3d 201 (2017) ; see also State v. Rivera , 177 Conn. App. 242, 248-51, 172 A.3d 260 (judicial authority to consider motion to correct illegal sentence is with trial court, not appellate courts of this state), petition for cert. filed (Conn. December 21, 2017) (No. 170342). We *196therefore decline to review the defendant's claim of an illegal sentence.11

Having determined that the court lacked subject matter jurisdiction to consider the motion to open, we conclude that the court should have dismissed rather than denied that motion.

The form of the judgment is improper, the judgment denying the motion to open is reversed, and the case is remanded with direction to render judgment dismissing the motion to open.

In this opinion the other judges concurred.