State v. Boyd

S
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      STATE OF CONNECTICUT v. JAMAR BOYD
                  (AC 43082)
                     Lavine, Prescott and Cradle, Js.*

                                 Syllabus

The defendant, who had been previously convicted, on a plea of guilty, of
   assault in the first degree, appealed to this court from the judgment of
   the trial court denying in part and dismissing in part his motion to
   correct an illegal sentence. The defendant claimed that the trial court
   improperly denied that portion of his motion in which he alleged that
   the sentencing court had imposed his sentence in an illegal manner by
   relying on inaccurate information. Held that the defendant could not
   prevail on his claim asserted as a matter of law as the motion failed to
   advance a colorable claim that invoked the jurisdiction of the court;
   rather than truly attacking the legality of the sentencing proceedings
   or the sentence itself, the defendant instead challenged the continued
   validity of his choice to plead to reduced charges under the doctrine
   enunciated in North Carolina v. Alford (

400 U.S. 25

), and, in order for
   the court to have granted the defendant the relief he requested in his
   motion, it would have been required to open the judgment of conviction
   and vacate the plea agreement that was the actual basis of the challenged
   sentence, and, because the court lacked any authority to do so as part
   of the limited jurisdiction afforded under a motion to correct an illegal
   sentence, the motion, correctly construed, was nothing more than a
   collateral attack on the plea underlying the defendant’s conviction;
   accordingly, this court concluded that the claim was properly rejected
   by the trial court but that the form of the judgment was improper with
   respect to this portion of the defendant’s motion, and the case was
   remanded with direction to render judgment dismissing that portion of
   the defendant’s motion.
       Argued November 10, 2020—officially released May 4, 2021

                            Procedural History

  Substitute information charging the defendant with
two counts each of the crimes of assault in the first
degree and robbery in the first degree, and with one
count each of the crimes of larceny in the second degree
and carrying a pistol without a permit, brought to the
Superior Court in the judicial district of New Haven,
where the defendant was presented to the court, Dami-
ani, J., on a plea of guilty to one count of assault in
the first degree; judgment of guilty in accordance with
the plea; thereafter, the court, Clifford, J., denied in
part and dismissed in part the defendant’s motion to
correct an illegal sentence, and the defendant appealed
to this court. Reversed in part; judgment directed.
  Robert T. Rimmer, assigned counsel, for the appel-
lant (defendant).
   Ana L. McMonigle, special deputy assistant state’s
attorney, with whom, on the brief, were Patrick J. Grif-
fin, state’s attorney, and Sean McGuinness, assistant
state’s attorney, for the appellee (state).
                         Opinion

   PRESCOTT, J. The defendant, Jamar Boyd, appeals
from the judgment of the trial court denying in part and
dismissing in part his amended motion to correct an
illegal sentence. Specifically, the defendant claims on
appeal that the court improperly denied that portion of
his motion in which he alleged that the sentencing court
had imposed his sentence in an illegal manner by relying
on inaccurate information.1 We conclude that only the
form of the judgment was improper with respect to
this portion of the defendant’s motion. Accordingly, we
reverse the judgment in part and remand the case with
direction to render a judgment dismissing this portion
of the defendant’s motion to correct an illegal sentence.
We affirm the judgment of the court in all other
respects.
   The record reveals the following facts and procedural
history. In 2005, following an armed robbery and shoot-
ing, the defendant was charged with assault in the first
degree in violation of General Statutes § 53a-59 (a) (1)
and (5), robbery in the first degree in violation of Gen-
eral Statutes § 53a-134 (a) (2) and (4), larceny in the
second degree in violation of General Statutes (Rev. to
2005) § 53a-123, and carrying a pistol without a permit
in violation of General Statutes § 29-35. The defendant
initially entered pleas of not guilty to these charges. In
two other files, the defendant faced additional charges
of sexual assault in the second degree in violation of
General Statutes (Rev. to 2005) § 53a-71 (a) (1) and a
violation of probation. See General Statutes § 53a-32.
   On February 24, 2006, three days prior to the start
of jury selection in the armed robbery file, the defendant
appeared before the court, Damiani, J., in order to
change his pleas and accept a long-standing plea agree-
ment offered by the state that resolved all three of his
pending files. At the start of the hearing, the defendant
informed the court that he wanted it to appoint him
new counsel. According to the defendant, he was not
getting along with his public defender and was unhappy
with how the public defender was handling the case.
Among numerous complaints, he asserted that his attor-
ney had failed to obtain a copy of a taped statement
purportedly made by Thomas Lopes, a witness to the
shooting. The court informed the defendant that no
taped statement by Lopes existed. The prosecutor con-
firmed the court’s observation on the record, indicating
that the police had interviewed Lopes twice but that
those interviews were not taped. After listening to the
defendant’s arguments, and ensuring there were no out-
standing discovery issues, the court stated that the
defendant had given it no valid reason to remove his
attorney and that the defendant could either accept the
state’s plea deal, which the state had held open for
months, or proceed to trial the following week. The
public defender indicated that, given the defendant’s
stated belief that his case had been mishandled and not
adequately investigated, he would advise the defendant
not to accept the plea agreement and to go to trial. The
defendant rejected that advice.
   Under the terms of the plea agreement, which were
stated on the record by the court, the defendant agreed
to plead guilty under the Alford doctrine2 to one count
of assault in the first degree in the armed robbery file
and one count of risk of injury to a child under a sepa-
rate docket number in exchange for a definite sentence
of twenty years, five of which were mandatory, and no
probation.3 The state agreed that it would nolle the
remaining charges. The agreement contained no provi-
sion giving the defendant the right to argue for less
than the agreed upon twenty years of incarceration or
otherwise giving the sentencing court discretion as to
the sentence it imposed. After canvassing the defendant
regarding both his understanding of the plea agreement
and the voluntariness of his plea, the court accepted
the defendant’s plea and scheduled a sentencing hearing
for April 28, 2006. At the sentencing hearing, the court,
after hearing from the attorneys, a family member of
the shooting victim, and the defendant, sentenced the
defendant to the agreed upon effective sentence of
twenty years of incarceration. Because the parties had
agreed to a sentence with definite terms, the court effec-
tively had no sentencing discretion other than to reject
the entire plea agreement. The court did not discuss
the factual basis for the defendant’s plea when it
imposed the sentence.
  Sometime after sentencing, the defendant learned
that Lopes, in fact, had given a taped statement, and
the defendant obtained a transcript of that statement.
The gravamen of Lopes’ statement was that he saw the
defendant take something from the victim, which led
to an argument between the victim and the defendant.
When the victim attempted to run away, the defendant
chased after the victim, eventually shooting the victim
in the chest. The taped statement sets forth facts that
arguably differ in minor respects from the factual basis
provided by the state during the court’s plea canvass.
   On December 13, 2017, the defendant filed a motion
to correct an illegal sentence in which he argued that
his sentence was illegal and/or imposed in an illegal
manner. The defendant later amended his motion to
claim in relevant part that his ‘‘sentence was imposed
in an illegal manner because [he] was denied [his] right
to be sentenced by a judge relying on accurate informa-
tion and/or considerations solely within the record.’’
Specifically, the defendant argued that portions of
Lopes’ taped statement reasonably could be construed
as lessening his culpability, the court had accepted his
plea with the erroneous belief that no taped statement
existed, and, because the sentencing court presumably
relied on this inaccurate information as stated on the
record at the plea hearing, the defendant was denied
‘‘his right to be sentenced by a judge relying on accurate
information.’’4
   At the hearing on the motion to correct an illegal
sentence, the defendant argued with respect to this
claim that he believed portions of Lopes’ statement
tended to prove that he never had the intent to seriously
injure the victim,5 and that he would have pleaded guilty
only to a lesser crime and received a lesser sentence.
He also argued that the state’s failure to disclose the
taped statement amounted to a Brady violation.6
   The state took the position that this aspect of the
defendant’s motion to correct an illegal sentence should
be dismissed for lack of subject matter jurisdiction
because the defendant was seeking to attack the judg-
ment of conviction, claiming ‘‘he has reduced culpabil-
ity based on this alleged new favorable information
. . . .’’ The state further argued that, even if the court
determined that it had jurisdiction over the motion, it
failed on its merits because ‘‘there is no evidence that
[the sentencing court] relied in any substantial way on
the prosecutor’s particular recitation of the facts’’ and,
regardless, the sentence imposed ‘‘was an agreed upon
disposition that the defendant himself agreed to
enter into.’’
   With respect to the jurisdictional question, the court,
Clifford, J., concluded that it had jurisdiction because
the defendant’s motion was predicated on a claim that
the sentencing court had relied on inaccurate informa-
tion at the sentencing hearing. Regarding the merits,
the court first explained that, to prevail on a motion to
correct an illegal sentence on the basis of a sentencing
court’s alleged reliance on inaccurate information, the
defendant, in addition to showing that some informa-
tion provided to the court by the state or defense coun-
sel was, in fact, inaccurate, had to show that the sen-
tencing court explicitly referred to the inaccurate
information, gave specific attention to it, and relied on
it in reaching the imposed sentence.
   In ruling against the defendant, the court first noted
that the sentence the defendant received was not the
result of ‘‘a wide open sentencing’’ but, rather, reflected
the definite sentence agreed to by the state and the
defendant in the plea agreement. The court also dis-
agreed with the defendant’s characterization of the
import of the Lopes statement or that its discovery after
the fact helped the defendant to establish that he was
sentenced on the basis of any inaccurate information.
The court stated: ‘‘First of all, [the sentencing court]
hardly said anything when [it] imposed the sentence.
[It] didn’t give any specific attention to the state’s facts
at all. . . . [It] didn’t talk about . . . a witness’s poten-
tial statement, what the victim might have said, nothing.
. . . I know that you plead[ed] to this under the Alford
doctrine; that you agreed to this particular sentence.
So . . . I think you’re attacking the whole fairness of
the procedure. I really don’t think you’re attacking
whether the sentence was imposed in an illegal manner
or that it’s inaccurate. I think you’re trying to attack
the underlying facts but they were not inaccurate facts
that the [sentencing court] relied upon at all in the
exhibits that you’ve shown me. So on that basis, I’m
denying your motion.’’ This appeal followed.
   The sole claim raised by the defendant on appeal is
that the court improperly denied that portion of his
motion to correct an illegal sentence in which he
asserted that the sentencing court had relied upon inac-
curate information in imposing the agreed upon recom-
mendation. In support of this claim, the defendant
argues in his brief that ‘‘the newly discovered taped
statement of [Lopes] demonstrated reckless conduct
rather than intentional conduct . . . [and], therefore,
that [the defendant] should not have received a twenty
year sentence . . . .’’ (Citation omitted.) We conclude
that the substance of the defendant’s claim does not
attack the manner in which the sentence was imposed
but is, in fact, a collateral attack on his plea, which
falls outside the postsentence jurisdiction of the court.
Accordingly, we conclude that the claim was properly
rejected by the court but that the form of the judgment
rendered was incorrect.
   ‘‘The Superior Court is a constitutional court of gen-
eral jurisdiction. . . . In the absence of statutory or
constitutional provisions, the limits of its jurisdiction
are delineated by the common law. . . . Under the
common law, a trial court’s jurisdiction over a criminal
case terminates once the defendant has begun serving
his or her sentence. . . . An exception to this general
principle exists, however, that permits a trial court to
retain jurisdiction to correct an illegal sentence. . . .
This exception is recognized in Practice Book § 43-22,
which provides that [t]he judicial authority may at any
time correct an illegal sentence or other illegal disposi-
tion, or it may correct a sentence imposed in an illegal
manner or any other disposition made in an illegal man-
ner.
   ‘‘[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. By contrast . . .
[s]entences imposed in an illegal manner have been
defined as being 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 informa-
tion 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 sen-
tencing are subsequently recognized under state and
federal law.
   ‘‘Thus, to invoke the jurisdiction of a trial court to
correct an illegal sentence, a defendant must allege
that his or her sentence is illegal, or has been illegally
imposed, for one of the reasons recognized under our
common law. . . . Determining whether a defendant
has satisfied this jurisdictional threshold presents a
question of law over which our review is plenary.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Cruz, 

155 Conn. App. 644

, 648–50, 

110 A.3d 527

(2015).
   In State v. Casiano, 

122 Conn. App. 61

, 68, 

998 A.2d
792

, cert. denied, 

298 Conn. 931

, 

5 A.3d 491

(2010), this
court held that the trial court did not have jurisdiction
over a motion to correct an illegal sentence filed by
the defendant because the defendant challenged the
validity of his guilty plea on the ground that trial counsel
had given erroneous advice prior to entry of the plea.
This court explained: ‘‘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 [proceedings] leading to the
conviction, must be the subject of the attack. . . . The
defendant’s claim does not attack the validity of the
sentence. Instead, it pertains to . . . alleged flaws in
the court’s acceptance of the plea. As such, it does not
fit within any of the four categories of claims recognized
under Practice Book § 43-22.’’ (Citation omitted; inter-
nal quotation marks omitted.) Id.; see also State v.
Monge, 

165 Conn. App. 36

, 43–44, 

138 A.3d 450

(relying
on Casiano in holding that motion seeking to vacate
pleas and to open judgments of conviction fell outside
court’s limited postsentencing jurisdiction), cert.
denied, 

321 Conn. 924

, 

138 A.3d 284

(2016).
   In the present case, the motion to correct an illegal
sentence nominally challenges the sentencing proceed-
ings by asserting that the sentencing court had relied
on inaccurate information at the time of sentencing.
The court denied the defendant’s motion to correct an
illegal sentence, concluding that although the motion
invoked the jurisdiction of the court because it facially
challenged the manner in which his sentence was
imposed, he failed to meet his burden of demonstrating
that the court had relied on any inaccurate information
in sentencing the defendant in accordance with the
definite terms agreed to pursuant to the plea agreement.
See State v. Martin M., 

143 Conn. App. 140

, 145, 

70
A.3d 135

, cert. denied, 

309 Conn. 919

, 

70 A.3d 41

(2013).
Nevertheless, in ruling on the defendant’s motion, the
court also made the following observation, which
appears to undermine its finding of jurisdiction: ‘‘I really
don’t think you’re attacking whether the sentence was
imposed in an illegal manner or that it’s inaccurate.’’
  ‘‘[F]or the trial court to have jurisdiction over a defen-
dant’s motion to correct a sentence that was imposed
in an illegal manner, the defendant must put forth a
colorable claim that his sentence, in fact, was imposed
in an illegal manner. A colorable claim is [a] claim that
is legitimate and that may reasonably be asserted, given
the facts presented and the current law (or a reasonable
and logical extension or modification of the current
law). . . . For jurisdictional purposes, to establish a
colorable claim, a party must demonstrate that there
is a possibility, rather than a certainty, that a factual
basis necessary to establish jurisdiction exists . . . .’’
(Citation omitted; internal quotation marks omitted.)
State v. Jason B., 

176 Conn. App. 236

, 244–45, 

170 A.3d
139

(2017). ‘‘For a claim to be colorable, the defendant
need not convince the trial court that he necessarily
will prevail; he must demonstrate simply that he might
prevail.’’ (Emphasis omitted; internal quotation marks
omitted.) State v. Evans, 

329 Conn. 770

, 784, 

189 A.3d
1184

(2018), cert. denied,      U.S.    , 

139 S. Ct. 1304

,

203 L. Ed. 2d 425

(2019).
   Having thoroughly reviewed the record in this case,
we conclude that, under the circumstances, the defen-
dant could not prevail on the claim asserted as a matter
of law and, therefore, the motion failed to advance a
colorable claim that invoked the jurisdiction of the
court. Rather than truly attacking the legality of the
sentencing proceedings or the sentence itself, the defen-
dant instead challenges the continued validity of his
choice to plead to reduced charges under the Alford
doctrine. By electing to accept the proffered plea deal,
the defendant received the benefit of a definite twenty
year sentence with no probation and avoided the real
risk posed by going to trial on all charges, including
those nolled by the state, and thus potentially facing a
far more substantial sentence if found guilty of all
charges, including potentially having to register as a
sex offender if the state prevailed on the sexual
assault charge.
   Here, in order for the court to have granted the defen-
dant the relief he requested in his motion—a term of
incarceration of less than twenty years—the court
would have been required to do more than simply grant
a new sentencing hearing. Rather, because the sentence
imposed was the result of a plea agreement in which
the defendant agreed to accept a definite sentence of
twenty years and the state agreed to nolle a substantial
number of other charges, the only way the court could
have granted the defendant any practical relief on his
motion to correct an illegal sentence was by opening the
judgment of conviction and vacating the plea agreement
that was the actual basis of the challenged sentence.
Because the court lacked any authority to do so as part
of the limited jurisdiction afforded under a motion to
correct an illegal sentence, the motion, correctly con-
strued, is nothing more than a collateral attack on the
plea underlying the defendant’s conviction rather than
a true challenge to the legality of the sentence imposed
or to the sentencing proceedings. As such, despite any
perceived superficial facial validity, the motion failed
to state a colorable claim that his sentence was imposed
in an illegal manner, and the court should have dis-
missed, rather than denied, the defendant’s motion.
   The form of the judgment is improper, the judgment
is reversed only with respect to the trial court’s denial of
that portion of the motion to correct an illegal sentence
claiming that the sentence was imposed in an illegal
manner due to the sentencing court’s alleged reliance
on inaccurate information, and the case is remanded
with direction to render judgment dismissing that por-
tion of the defendant’s motion to correct an illegal sen-
tence; the judgment is affirmed in all other respects.
   In this opinion the other judges concurred.
   * The listing of judges reflects their seniority status on this court as of
the date of oral argument.
   1
     The defendant does not challenge on appeal the court’s dismissal for
lack of subject matter jurisdiction that portion of his motion arguing that
the sentencing court had failed to account for his youth as a mitigating
factor in light of our Supreme Court’s decision in State v. Williams-Bey,

333 Conn. 468

, 473–77, 

215 A.3d 711

(2019). The defendant also does not
challenge the court’s denial of that portion of his motion arguing that the
sentencing court violated his right to allocution, conceding that the transcript
of the sentencing hearing demonstrates that the court both provided him
with an opportunity to allocute and that he exercised his right of allocution
by making a direct statement to the court on his own behalf.
   2
     See North Carolina v. Alford, 

400 U.S. 25

, 37, 

91 S. Ct. 160

, 

27 L. Ed. 2d
162

(1970).
   3
     The sentence was comprised of a twenty year sentence of imprisonment
for the assault charge, five years of which was a mandatory minimum, and
a concurrent five year sentence on the risk of injury charge. With respect
to the probation violation, the court agreed to resolve that file by vacating
the remainder of the defendant’s unserved period of probation at the sentenc-
ing hearing.
   4
     The court initially appointed counsel for the defendant pursuant to State
v. Casiano, 

282 Conn. 614

, 

922 A.2d 1065

(2007). Prior to counsel making
the requisite ‘‘sound basis’’ determination; see

id., 627;

the defendant elected
to proceed as a self-represented party and the court granted counsel permis-
sion to withdraw. The defendant does not challenge the propriety of these
procedures on appeal.
   5
     The defendant’s position, as he explained at the hearing on the motion
to correct, was that Lopes had indicated in his statement that the victim
and the defendant had engaged in an argument, and that it was during this
fight that the firearm went off. The defendant explained further: ‘‘It wasn’t
my intent to run up to the victim to just shoot him, which I’m standing right
now convicted under and there’s also evidence within [Lopes’ statement]
that said [a third party] had something to do with the actual crime.’’
   6
     See Brady v. Maryland, 

373 U.S. 83

, 87, 

83 S. Ct. 1194

, 

10 L. Ed. 2d
215

(1963).

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