State v. Bennett, 187 A.3d 1200, 182 Conn. App. 71 (2018)

May 15, 2018 · Connecticut Appellate Court · AC 40395
187 A.3d 1200, 182 Conn. App. 71

STATE of Connecticut
v.
Erick BENNETT

AC 40395

Appellate Court of Connecticut.

Argued February 6, 2018
Officially released May 15, 2018

*1202Erick Bennett, self-represented, the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, Karen A. Roberg, assistant state's attorney, and Mary Elizabeth Baran, former senior assistant state's attorney, for the appellee (state).

Sheldon, Elgo and Shaban, Js.

SHELDON, J.

*72The defendant, Erick Bennett was found guilty by a jury on the charge of murder on June *7329, 2011, and was later sentenced on that charge, on August 26, 2011, to a term of fifty years imprisonment. He now appeals from the subsequent judgment of the trial court dismissing three postjudgment motions to dismiss the information on which he was convicted of murder, and dismissing in part and denying in part his contemporaneous motion to correct an illegal sentence in relation to the sentence imposed on him for that offense, which he filed and prosecuted during the pendency of his ultimately unsuccessful direct appeal. State v. Bennett , 324 Conn. 744, 155 A.3d 188 (2017). We affirm the judgment of the trial court.

In March, 2016, more than four years after he was sentenced, as aforesaid, for murder, the defendant filed three motions to dismiss the information under which he was convicted of that offense. In his first motion to dismiss, which he titled "Motion Challenging Original Subject Matter Jurisdiction," the defendant alleged that the original trial court lacked subject matter jurisdiction over his murder prosecution because the warrant under which he was arrested was based on evidence seized illegally pursuant to an invalid and illegally executed search and seizure warrant. In his second motion to dismiss, he alleged that the state had violated his right to a fair trial by obtaining without a warrant, and later using against him at trial, detailed *1203information concerning his trial strategy, which its agents had recorded on twenty-two CDs of his telephone conversations with others while he was in jail awaiting trial. In his third motion to dismiss, he alleged that the state had violated his rights to due process and a fair trial under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963), by failing to disclose to him or his counsel exculpatory information concerning the arrest of the state medical examiner who had performed the autopsy *74on the victim in his murder case. On July 6, 2016, the defendant also filed a motion to correct an illegal sentence,1 which he later amended on July 28, 2016.2

The trial court, Clifford, J. , heard argument on the foregoing motions, then ruled on them from the bench, on August 4, 2016. Initially addressing the defendant's three motions to dismiss, the court concluded that it lacked jurisdiction over such motions because they did not fall within any of the narrow exceptions to the general common-law rule that a trial court loses jurisdiction over a criminal case after the defendant has begun to serve his sentence therein.3 Accordingly, it *75ordered that *1204each such motion be dismissed. Then, addressing the defendant's amended motion to correct an illegal sentence, the court first noted that, although a trial court retains jurisdiction over a criminal case, after the defendant has begun to serve his sentence in that case, to decide a proper motion to correct, under Practice Book § 43-22, in which the defendant challenges either the legality of his sentence or the legality of the manner in which that sentence was imposed, it has no jurisdiction under that rule to adjudicate any challenge to the legality of the underlying conviction on which the challenged sentence was imposed. To the extent that the motion to correct challenged the legality of the underlying conviction, the court ordered that that motion, like the defendant's three postjudgment motions to dismiss, must also be dismissed. Finally, the court turned to the one claim raised in the defendant's motion to correct over which it found that it had jurisdiction, to wit: that the trial court, in passing sentence on the defendant, had improperly relied on inaccurate information concerning his criminal record. The court rejected that claim on the merits, finding that the defendant had not proved either that materially inaccurate information had been presented to the trial court in *76relation to his sentencing for murder or that the court had relied on such information in imposing sentence on him. With respect to that final aspect of the defendant's motion to correct, the court ordered that the motion be denied.4 This appeal followed. Additional facts will be set forth as necessary.

I

The defendant's first claim on appeal is that the trial court erred in dismissing5 his first postjudgment motion to dismiss challenging the original trial court's subject matter jurisdiction over his murder prosecution. We conclude that the court correctly determined that it *77lacked jurisdiction over this motion, and thus affirm its judgment dismissing the motion.

"We have long held that because [a] determination regarding a trial court's *1205subject matter jurisdiction is a question of law, our review is plenary." (Internal quotation marks omitted.) State v. Brundage , 320 Conn. 740, 747, 135 A.3d 697 (2016).

"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 .... There are a limited number of circumstances in which the legislature has conferred on the trial courts continuing jurisdiction to act on their judgments after the commencement of sentence.... See, e.g., General Statutes §§ 53a-29 through 53a-34 (permitting trial court to modify terms of probation after sentence is imposed); General Statutes § 52-270 (granting jurisdiction to trial court to hear petition for a new trial after execution of original sentence has commenced); General Statutes § 53a-39 (allowing trial court to modify sentences of less than three years provided hearing is held and good cause shown).... Without a legislative or constitutional grant of continuing jurisdiction, however, the trial court lacks jurisdiction to modify its judgment." (Internal quotation marks omitted.) Turner v. State , 172 Conn. App. 352, 366, 160 A.3d 398 (2017).

On appeal, the defendant reiterates the claims he made before the trial court, arguing that a search and seizure warrant issued for his house and vehicle on July 11, 2009, was not executed and evidence obtained on the basis of the warrant (two pieces of screws from a knife, which had blood like substances on them and *78were found in the defendant's car) was "fraudulently fabricated." He thus alleges that the arrest warrant based on the evidence seized was invalid and the jurisdiction of the original trial court was "infect[ed] ...." In his appeal, the defendant additionally claims that his conviction was not final and his docket number was still open pursuant to Practice Book § 62-4.6 He argues that because a challenge to a court's original subject matter jurisdiction can be raised at any time, citing to Practice Book § 10-33, and the power of a court to vacate a judgment due to fraud is "inherent and independent of statutory provisions authorizing the opening of judgment[s]," citing to Kenworthy v. Kenworthy , 180 Conn. 129, 131, 429 A.2d 837 (1980), the trial court did have jurisdiction to review his motion to dismiss and abused its discretion by dismissing the motion.7 We are not persuaded.

Following his conviction, the defendant was sentenced in August, 2011. His motion does not raise an issue over which the trial court has jurisdiction beyond his sentencing date, and therefore, the trial court properly dismissed his motion.

II

The defendant's second claim on appeal is that the trial court erred in dismissing his second postjudgment motion to dismiss for alleged "failure to disclose, and theft of [his] trial strategy." As set forth in part I of this opinion, because the defendant's motion challenges the legality of his underlying conviction without falling within any of the narrow exceptions to the general common-law rule that a trial court loses jurisdiction *79over a criminal case *1206after the defendant has begun to serve his sentence therein, the court properly dismissed the motion for lack of jurisdiction.

III

The defendant's third claim on appeal is that the trial court erred in dismissing his third postjudgment motion to dismiss for failure to disclose Brady8 materials. As set forth in part I of this opinion, because the defendant's motion challenges the legality of his underlying conviction without falling within any of the narrow exceptions to the general common-law rule that a trial court loses jurisdiction over a criminal case after the defendant has begun to serve his sentence therein, the court properly dismissed the motion for lack of jurisdiction.

IV

The defendant's fourth and final claim on appeal is that the court erred in denying his motion to correct an illegal sentence.9

Practice Book § 43-22 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."

"[A]n illegal sentence is essentially one [that] either exceeds the relevant statutory maximum limits, violates *80a defendant's right against double jeopardy, is ambiguous, or is internally contradictory. By contrast ... [s]entences imposed in an illegal manner have been defined as being within the relevant statutory limits but ... imposed in a way [that] 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 .... These definitions are not exhaustive, however, and the parameters of an invalid sentence will evolve ... as additional rights and procedures affecting sentencing are subsequently recognized under state and federal law....

"[A] claim that the trial court improperly denied a defendant's motion to correct an illegal sentence is reviewed pursuant to the abuse of discretion standard.... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court's decision and every reasonable presumption is given in favor of its correctness.... We will reverse the trial court's ruling only if it could not reasonably conclude as it did....

"[D]ue process precludes a sentencing court from relying on materially untrue or unreliable information in imposing a sentence.... To prevail on such a claim as it relates to a [presentence investigation report (report) ], [a] defendant [cannot] ... merely alleg[e] that [his report] contained factual inaccuracies or inappropriate information.... [He] must *1207show that the information was materially inaccurate and that the [sentencing] judge relied on that information.... A sentencing court demonstrates actual reliance on misinformation when the court gives explicit attention to it, [bases] its sentence at least in part on it, or gives specific *81consideration to the information before imposing sentence." (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Antwon W. , 179 Conn. App. 668, 672-73, 181 A.3d 144, cert. denied, 328 Conn. 924, 180 A.3d 965 (2018).

On appeal, the defendant reiterates the claim that he made before the trial court, arguing: "[U]pon commencing the sentence upon the defendant, the trial judge relied on vital inaccurate information in the presentence report ... because the trial judge took into consideration a pending case of the defendant ... which was interfering/and [carrying] a firearm while under the influence, which is a misdemeanor, but ... the presentence ... report that he considered said that the defendant had a pending case that consist[s] of interfering/resisting arrest and illegal use of a firearm while under the influence, which is a felony.... Thus, violating the [defendant's] right to be sentence[d] by a judge relying on accurate information ...."10 (Citations omitted.)

The trial court acknowledged that it had jurisdiction over the defendant's motion to correct an illegal sentence on the basis of his claim that he had been sentenced on the basis of materially inaccurate *82information. The court denied the motion because it found that the defendant failed to satisfy his burden of proving that the information was inaccurate or that the sentencing judge gave the allegedly inaccurate information explicit attention and that it affected the defendant's sentence.

We agree with the court's conclusion that the defendant's claim is belied by the record. Our review of the August 26, 2011 sentencing transcript reveals that the court explicitly referenced only the defendant's pending charges for interfering with a police officer and illegal use of a firearm, and in fact that the court gave the defendant a degree of credit in sentencing because of his lack of a criminal record.11 Moreover, our review of the report reveals that the defendant's pending charges were *1208listed as violations of General Statutes §§ 53a-167a and 53-206d (a).12

Last, we note that at the time of sentencing before the original trial court, when the defendant was asked if he wanted to make any changes to the report after having had an opportunity to review it with his trial *83counsel, he requested no changes and otherwise raised no issue as to the accuracy of the report.13 Therefore, the trial court reasonably determined that the sentencing court did not rely on inaccurate information in sentencing the defendant, and thus that the defendant's sentence was not imposed in an illegal manner. We conclude, on that basis, that the trial court did not abuse its discretion by denying that limited portion of the defendant's motion to correct an illegal sentence over which it had subject matter jurisdiction.

The judgment is affirmed.

In this opinion the other judges concurred.