State v. Berrios

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State v. Berrios

STATE OF CONNECTICUT v. EDWIN
EDDIE BERRIOS
(AC 46463)
Clark, Seeley and Prescott, Js.

Syllabus

The defendant, who had been convicted, on a plea of guilty, of the crime
of burglary in the first degree as a persistent felony offender, appealed
to this court from the judgment of the trial court denying his motions
to withdraw his guilty plea, which were filed nearly three months after
he had begun serving his sentence. The defendant previously had been
charged with several crimes in addition to burglary, including assault
in the third degree and criminal mischief in the third degree. A jury
found the defendant guilty on the assault count and not guilty on the
criminal mischief count but was unable to reach a unanimous verdict
on the remaining charges. The trial court declared a mistrial as to those
charges, and the state, in a new docket, subsequently charged the defen-
dant with those crimes, including the burglary count, and with being a
persistent felony offender. Held that the defendant could not prevail on
his claim that the trial court improperly denied his motions to withdraw
his guilty plea in which he challenged his conviction on double jeopardy
grounds, namely, that his prior conviction of assault and acquittal of
criminal mischief precluded the state from retrying him on the charge
of burglary in the first degree: because the defendant already had begun
serving his sentence at the time he filed his motions, the trial court
no longer had jurisdiction to decide the motions, which could not be
construed as challenging the defendant’s sentence, and the defendant
did not claim, nor could this court conclude after reviewing the motions,
that any legislative or constitutional grant of continuing jurisdiction
applied that would have allowed the trial court to retain jurisdiction
over the motions; accordingly, although the trial court properly rejected
the defendant’s postsentencing motions, the form of the court’s judgment
was improper, as the court should have dismissed, rather than denied,
the motions, and the case was remanded to the trial court with direction
to render judgment dismissing the motions.
Argued January 29—officially released April 16, 2024

Procedural History

Two part information charging the defendant, in the
first part, with the crimes of burglary in the first degree,
burglary in the second degree and robbery in the third
degree, and, in the second part, with being a persistent
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State v. Berrios

felony offender, brought to the Superior Court in the
judicial district of Danbury, where the defendant was
presented to the court, Pavia, J., on pleas of guilty to
burglary in the first degree and being a persistent felony
offender; thereafter, the state entered a nolle prosequi
as to the charges of burglary in the second degree and
robbery in the third degree; judgment in accordance
with the pleas; subsequently, the court, Stango, J.,
denied the defendant’s motions to vacate and to dismiss,
and the defendant appealed to this court. Improper
form of judgment; reversed; judgment directed.
Edwin Eddie Berrios, self-represented, the appellant
(defendant).
Timothy F. Costello, supervisory assistant state’s
attorney, with whom, on the brief, were David R.
Applegate, state’s attorney, and Matthew Knopf, assis-
tant state’s attorney, for the appellee (state).
Opinion

SEELEY, J. The self-represented defendant, Edwin
Eddie Berrios, who had been convicted following his
guilty plea to a charge of burglary in the first degree,
appeals from the judgment of the trial court denying
certain motions he filed after he was sentenced (post-
sentencing motions), in which he challenged his convic-
tion on double jeopardy grounds. The defendant initially
had been tried on the charge of burglary in the first
degree, but after the jury was unable to reach a unani-
mous verdict on that charge, among others, the court
declared a mistrial. The state subsequently charged him
under a new criminal docket number with various
crimes, including burglary in the first degree, after
which he entered his guilty plea to that charge. On
appeal, the defendant challenges the trial court’s judg-
ment denying his postsentencing motions and raises a
number of arguments in support of his claim that the
state was precluded from seeking to prosecute him
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State v. Berrios

again for burglary in the first degree following the mis-
trial on that count.1 In response, the state argues, inter
alia, that the court lacked jurisdiction to decide the
defendant’s motions because they were filed after the
court had sentenced the defendant.2 We agree with the
state that the court lacked jurisdiction over the defen-
dant’s postsentencing motions,3 and that, therefore, the
form of the judgment is improper, as the court should
have dismissed rather than denied the motions. We,
thus, reverse the judgment denying the defendant’s
postsentencing motions and remand the case with
direction to render judgment dismissing those motions.
The following facts and procedural history are rele-
vant to this appeal. The defendant was arrested in May,
2019, following an incident in which he entered an
unlocked apartment in Danbury and attempted to take
a small safe. During the incident, the resident4 of the
apartment returned home, confronted and fought the
defendant, and eventually overpowered him. At that
point, the resident was able to call the police, who
arrested the defendant at the scene. He subsequently
was charged, under Docket No. XX-XXXXXXX-S, with one
1
See footnotes 8 and 10 of this opinion.
2
The state also argues, in the alternative, that the defendant waived his
double jeopardy claims regarding the charge of burglary in the first degree
when he unconditionally pleaded guilty to that charge and that the defen-
dant’s claims fail on the merits because there was no double jeopardy
violation. Because we conclude that the trial court lacked jurisdiction, we
do not reach these alternative arguments.
3
The state acknowledges in its appellate brief that it failed to raise the
issue of jurisdiction before the trial court. The issue of subject matter
jurisdiction, however, may be raised by a party at any time, including on
appeal. See, e.g., State v. Evans, 329 Conn. 770, 777 n.11, 189 A.3d 1184
(2018), cert. denied, U.S. , 139 S. Ct. 1304, 203 L. Ed. 2d 425 (2019).
4
In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018), as
amended by the Violence Against Women Act Reauthorization Act of 2022,
Pub. L. No. 117-103, § 106, 136 Stat. 49, 851; we decline to identify any person
protected or sought to be protected under a protection order, protective
order, or a restraining order that was issued or applied for, or others through
whom that person’s identity may be ascertained.
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State v. Berrios

count each of burglary in the first degree in violation
of General Statutes § 53a-101 (a) (2), robbery in the
third degree in violation of General Statutes § 53a-136
(a), assault in the third degree in violation of General
Statutes § 53a-61 (a) (1), attempt to commit larceny in
the sixth degree in violation of General Statutes §§ 53a-
49 and 53a-125b, and criminal mischief in the third
degree in violation of General Statutes § 53a-117 (a) (1).

The jury found the defendant guilty of assault in the
third degree and not guilty of criminal mischief in the
third degree. The jury was unable to reach a unanimous
verdict with respect to the remaining charges, and the
court declared a mistrial as to those counts. The state
subsequently filed a long form information under a new
criminal docket number, Docket No. XX-XXXXXXX-A,
charging the defendant with burglary in the first degree,
burglary in the second degree, and robbery in the third
degree. The state also filed a part B information charg-
ing the defendant with being a persistent felony
offender.

On July 13, 2022, the defendant entered into an agree-
ment with the state and pleaded guilty to the charge of
burglary in the first degree as a persistent felony
offender. The court canvassed the defendant and found
that his plea was ‘‘entered knowingly and voluntarily
with the assistance of competent counsel.’’ The court
accepted the defendant’s plea and sentenced him in
accordance with the plea agreement. On the charge of
burglary in the first degree as a persistent felony
offender, the court imposed a sentence of twenty-five
years of incarceration, execution suspended after five
years, followed by five years of probation.5 The state
5
In the prior case, under Docket No. XX-XXXXXXX-S, the court imposed
a consecutive sentence of 364 days of incarceration for the defendant’s
conviction of assault in the third degree.
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State v. Berrios

entered a nolle prosequi6 on each of the remaining
charges.
Nearly three months after his sentencing, the defen-
dant filed the first of several postsentencing motions
that are at issue in this appeal. Specifically, those
motions included a motion to vacate for lack of subject
matter jurisdiction filed on October 7, 2022; a motion
to vacate for lack of subject matter jurisdiction filed
on October 17, 2022; an amended motion to vacate for
lack of subject matter jurisdiction filed on October 17,
2022; and a motion to reverse and dismiss for lack of
subject matter jurisdiction filed on December 16, 2022.7
In those motions, the defendant argued that the state
6
‘‘A nolle prosequi is a declaration of the prosecuting officer that he will
not prosecute the suit further at that time. . . . As our Supreme Court has
explained, [t]he effect of a nolle is to terminate the particular prosecution
of the defendant without an acquittal and without placing him in jeopardy.’’
(Citations omitted; internal quotation marks omitted.) State v. Richard P.,
179 Conn. App. 676, 682, 181 A.3d 107, cert. denied, 328 Conn. 924, 181 A.3d
567 (2018).
7
On appeal, the defendant and the state both reference a motion to dismiss
for lack of subject matter jurisdiction dated September 28, 2022, as one of
the postsentencing motions the court denied that is the subject of this
appeal. The trial court file does not show that any such motion was filed
with or decided by the court. The transcript of the March 23, 2023 hearing
indicates that, at the outset of the hearing, the court referenced five motions
that were the subject of that hearing: (1) a motion for guilty plea and
sentencing transcripts; (2) a motion to compel the defendant’s attorney to
produce the defendant’s file; (3) a motion to vacate for lack of subject
matter jurisdiction filed October 7, 2022; (4) an amended motion to vacate
for lack of subject matter jurisdiction filed October 17, 2022; and (5) a
motion to reverse and dismiss for lack of subject matter jurisdiction filed
December 16, 2022. Even though the March 23, 2023 transcript shows three
motions to vacate or dismiss for lack of subject matter jurisdiction that
were denied by the court, the defendant’s motion to vacate for lack of
subject matter jurisdiction filed on October 17, 2022, includes a notation
by the trial court indicating that it was part of the remote hearing and that
the motion was denied. Accordingly, our decision in this appeal is limited
to the four relevant motions to vacate or dismiss that were addressed and
denied by the court. We note, nonetheless, that, even if our decision also
concerned the September 28, 2022 motion, that would in no way impact or
change our decision in this appeal.
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State v. Berrios

was precluded from prosecuting him again on the bur-
glary in the first degree charge for a number of reasons,
mainly, on double jeopardy grounds.8
On March 23, 2023, the court, Stango, J., heard argu-
ments on all four of the defendant’s motions. After the
court addressed two unrelated motions, it turned to the
motions to dismiss and/or vacate at issue in this appeal
and asked the defendant if he wanted to vacate his
guilty plea, to which the defendant initially replied that
he did not and, instead, wanted to have the information
reversed or dismissed as defective. The court then
explained that ‘‘the first step in that would be having
the guilty pleas vacated. You have [pleaded] guilty and
were fully canvassed. So, you’re a convicted person on
this case now, and you’re sentenced, and you’re here
in front of me as a sentenced prisoner. . . . [S]o, you
have decided to do some research on your own that
the state was without subject matter jurisdiction to
prosecute you, and, therefore, you should not have
[pleaded] guilty?’’ The defendant replied that he ‘‘should
not have [pleaded] guilty.’’
Thereafter, the defendant reiterated the arguments
contained in his motions. After hearing those argu-
ments, the court denied the defendant’s postsentencing
motions, stating: ‘‘You chose to have a trial. At that
trial, you were acquitted of some counts, convicted of
some counts, and [on] other [counts] the jury [was]
unable to reach a verdict. At that point, any of those
matters where the jury was unable to reach a verdict
could be retried by the prosecutor. You can’t be retried
8
In his motions, the defendant made two primary arguments, namely,
that (1) burglary in the first degree is a greater offense of assault in the
third degree, and robbery in the third degree and assault in the third degree
are greater and lesser included offenses, and (2) double jeopardy bars succes-
sive prosecutions for greater and lesser included offenses. In his motions,
the defendant sought to reverse, dismiss, and/or vacate his conviction of
burglary in the first degree and the sentence imposed on July 13, 2022.
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State v. Berrios

on something you were convicted of. You can’t be
retried on something that you were acquitted of. But
the ones where the jury [was] unable to [reach] a ver-
dict, the prosecutor brought another case against you.
[On] [t]hose charges, you wound up pleading guilty
and [were] thoroughly canvassed . . . .’’ This appeal
followed.9
On appeal, the defendant argues that (1) his convic-
tion of assault in the third degree precluded a subse-
quent prosecution for burglary in the first degree and
(2) his acquittal on the charge of criminal mischief in
the third degree precluded a subsequent prosecution
for burglary in the first degree.10 The state counters
that, because the defendant’s postsentencing motions
were filed after the court already had sentenced the
defendant, the court did not have jurisdiction to decide
the defendant’s motions. We agree with the state.
We first set forth the legal principles that are relevant
to our resolution of this appeal. ‘‘It is axiomatic that
jurisdiction involves the power in a court to hear and
determine the cause of action presented to it and its
source is the constitutional and statutory provisions by
9
The defendant has not appealed from his conviction under Docket No.
XX-XXXXXXX-S of assault in the third degree. See footnote 5 of this opinion.
10
On appeal, the defendant also argues that the state could not prosecute
him again for robbery in the third degree because that charge shares a
common element with assault in the third degree, for which he previously
was convicted. This claim also was raised in his motion to reverse and
dismiss for lack of subject matter jurisdiction filed on December 16, 2022.
Although, for the reasons stated in this opinion, we do not reach the merits
of the defendant’s claims, we do note that this claim concerns a crime of
which the defendant was never convicted. See State v. Just, 185 Conn. 339,
356, 441 A.2d 98 (1981) (defendant could not make argument that court
erroneously instructed jury concerning unlawful restraint in first degree as
lesser offense of kidnapping in first degree because he was not convicted
of unlawful restraint in first degree); State v. David O., 104 Conn. App. 722,
732, 937 A.2d 56 (2007) (defendant could not have been prejudiced by
prosecutor’s remarks regarding crimes of which defendant was not con-
victed), cert. denied, 285 Conn. 915, 943 A.2d 473 (2008).
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which it is created. . . . Article fifth, § 1 of the Con-
necticut constitution proclaims that [t]he powers and
jurisdiction of the courts shall be defined by law, and
General Statutes § 51-164s provides that [t]he superior
court shall be the sole court of original jurisdiction for
all causes of action, except such actions over which
the courts of probate have original jurisdiction, as pro-
vided by statute. . . . The Superior Court is a constitu-
tional 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 exe-
cuted.’’ (Citations omitted; emphasis in original; inter-
nal quotation marks omitted.) State v. Reid, 277 Conn.
764, 774, 894 A.2d 963 (2006); see also State v. McCoy,
331 Conn. 561, 585, 206 A.3d 725 (2019) (‘‘a trial court
loses jurisdiction upon the execution of the defendant’s
sentence, unless it is expressly authorized to act’’).
Our Supreme Court consistently has held that, in
criminal cases, ‘‘the imposition of sentence is the judg-
ment of the court. . . . When the sentence is put into
effect and the prisoner is taken in execution, custody
is transferred from the court to the custodian of the
penal institution. At this point jurisdiction of the court
over the prisoner terminates.’’ (Internal quotation
marks omitted.) State v. Reid, supra, 277 Conn. 775;
see also State v. Butler, 348 Conn. 51, 69, 300 A.3d 1145
(2023) (recognizing existing common-law rule that ‘‘a
trial court has the discretionary power to modify or
vacate a criminal judgment before the sentence has
been executed’’ (internal quotation marks omitted));
State v. Evans, 329 Conn. 770, 778, 189 A.3d 1184 (2018)
(‘‘[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
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State v. Berrios

jurisdiction over the case when the defendant is com-
mitted to the custody of the [C]ommissioner of [C]orrec-
tion and begins serving the sentence.’’ (Emphasis
added; internal quotation marks omitted.)), cert.
denied, U.S. , 139 S. Ct. 1304, 203 L. Ed. 2d 425
(2019); State v. Parker, 295 Conn. 825, 834, 992 A.2d
1103 (2010) (‘‘[a] generally accepted rule of the common
law is that a sentence cannot be modified by the trial
court . . . if the sentence was valid and execution of
it has commenced’’ (internal quotation marks omitted));
State v. Das, 291 Conn. 356, 370, 968 A.2d 367 (2009)
(trial court lacked jurisdiction to consider postsentenc-
ing motion to withdraw plea); State v. Lawrence, 281
Conn. 147, 154, 913 A.2d 428 (2007) (‘‘[w]ithout a legisla-
tive or constitutional grant of continuing jurisdiction
. . . the trial court lacks jurisdiction to modify its judg-
ment’’ (internal quotation marks omitted)).
Accordingly, because the defendant already had been
sentenced, the trial court no longer had jurisdiction to
decide his postsentencing motions, unless there exists
a legislative or constitutional grant of continuing juris-
diction that applies in this case. See State v. Luzietti,
230 Conn. 427, 431, 646 A.2d 85 (1994) (‘‘once judgment
has been rendered and the defendant has begun serving
the sentence imposed, the trial court lacks jurisdiction
to modify its judgment in the absence of a legislative
or constitutional grant of continuing jurisdiction’’
(emphasis added)). In that vein, our Supreme Court has
‘‘note[d] that there are a limited number of circum-
stances in which the legislature expressly 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 the trial court to modify terms of proba-
tion after sentence is imposed); General Statutes § 52-
270 (granting jurisdiction to trial court to hear a petition
for a new trial after execution of original sentence has
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State v. Berrios

commenced) . . . .’ ’’ State v. Reid, supra, 277 Conn.
775 n.13; see also State v. Das, supra, 291 Conn. 362
(court may correct illegal sentence or sentence imposed
in illegal manner pursuant to Practice Book § 43-22).
In the present case, the defendant has not claimed
that any such exception applies that would have
allowed the trial court to retain jurisdiction over his
postsentencing motions, and his motions cannot be con-
strued as challenging his sentence. Furthermore, our
review of the substance of the motions leads us to
conclude that they do not fall within any of these catego-
ries as to which the legislature has conferred continuing
jurisdiction on the trial court to act on a judgment
following the imposition of sentence. We, thus, need
not examine the applicability of these exceptions to the
defendant’s postsentencing motions.
In its appellate brief, the state argues that, despite
the various titles of the defendant’s motions, they all
were, in substance, motions to withdraw his plea of
guilty to the burglary charge. In light of the colloquy at
the March 23, 2023 hearing and the arguments raised
in the motions, we agree with the state and treat the
motions as such. See Torres v. Carrese, 149 Conn. App.
596, 613, 90 A.3d 256 (‘‘[c]ourts analyze pleadings for
what they are, rather than for what their titles state
they are’’), cert. denied, 312 Conn. 912, 93 A.3d 595
(2014). Pursuant to Practice Book § 39-26, ‘‘[a] defen-
dant may withdraw his or her plea of guilty or nolo
contendere as a matter of right until the plea has been
accepted. . . . A defendant may not withdraw his or
her plea after the conclusion of the proceeding at which
the sentence was imposed.’’ (Emphasis added.) In State
v. Das, supra, 291 Conn. 356, the defendant appealed
from the trial court’s dismissal of his motion to vacate
the judgment of conviction against him and to withdraw
his plea of nolo contendere. Id., 358. Our Supreme Court
affirmed the trial court’s dismissal of his motion on the
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State v. Berrios

ground that, because the defendant’s sentence already
had begun, the trial court no longer had jurisdiction to
consider a postsentencing request to withdraw a plea.11
See id., 361–62. It therefore follows that, because the
defendant in the present case already had begun serving
his sentence, the trial court did not have jurisdiction
to consider his postsentencing motions seeking, in
effect, a withdrawal of his guilty plea. It is also signifi-
cant that the previously mentioned limited circum-
stances in which the legislature expressly has conferred
continuing jurisdiction on the trial courts are not ‘‘rele-
vant . . . to a trial court’s jurisdiction to consider a
defendant’s postsentencing request to withdraw his
plea.’’ Id., 363; see id., 362 (‘‘[a]lthough there are several
exceptions to th[e] rule [that a defendant may not with-
draw his plea after the conclusion of the proceeding at
which the sentence was imposed] that afford the trial
court jurisdiction over a defendant’s challenge to his
sentence, we find it instructive that none of these excep-
tions extends the trial court’s jurisdiction to consider
a postsentencing attack on the plea itself’’ (emphasis
in original)).
In sum, in the present case, the defendant pleaded
guilty, and the court sentenced him on July 13, 2022.
The defendant did not file his first postsentencing
motion until nearly three months after the sentence had
been imposed, at which point he already had started
serving his sentence. Therefore, on March 23, 2023,
when the court heard argument on and denied the post-
sentencing motions, the court no longer had jurisdiction
to rule on the motions. See, e.g., State v. Luzietti, supra,
230 Conn. 432 (‘‘court loses jurisdiction over the case’’
once defendant has begun serving his sentence). For
11
Furthermore, our Supreme Court stated that there is no ‘‘constitutional
violation exception to the trial court’s lack of jurisdiction over a defendant’s
motion to withdraw his plea after the sentence has been executed . . . .’’
State v. Das, supra, 291 Conn. 368.
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that reason, the court should have dismissed, rather
than denied, the defendant’s postsentencing motions.12
The form of the judgment is improper, the judgment
is reversed and the case is remanded with direction to
render judgment dismissing the defendant’s postsen-
tencing motions.
In this opinion the other judges concurred.

12
In light of our determination that the trial court did not have jurisdiction
over the defendant’s postsentencing motions, we do not reach the merits
of his double jeopardy claims on appeal, including the question of whether
he waived such a claim by pleading guilty. See, e.g., State v. Adams, 186
Conn. App. 84, 88, 198 A.3d 691 (2018) (‘‘defendant’s valid guilty plea . . .
constitutes a waiver of his double jeopardy claim’’ (internal quotation
marks omitted)).