State v. Smith

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STATE OF CONNECTICUT v. DANIEL SMITH
(AC 35393)
Beach, Bear and Sheldon, Js.*
Argued February 6—officially released June 3, 2014

(Appeal from Superior Court, judicial district of New
Haven, Damiani, J. [judgment]; Clifford, J. [motion to
correct].)
Katharine S. Goodbody, assigned counsel, for the
appellant (defendant).
Brett R. Aiello, special deputy assistant state’s attor-
ney, with whom, on the brief, was Michael Dearington,
state’s attorney, for the appellee (state).
Opinion

SHELDON, J. The defendant, Daniel Smith, appeals
from the trial court’s denial of his amended motion to
correct illegal sentence under Practice Book § 43-22,1
in which he challenged the legality of the manner in
which his current thirty year prison sentence for acces-
sory to manslaughter in the first degree with a firearm
in violation of General Statutes §§ 53a-8 and 53a-55a
came to be imposed upon him. The challenged sentence
was imposed pursuant to the defendant’s agreement
with the state to plead guilty to a substituted informa-
tion charging him with accessory to manslaughter in
the first degree with a firearm instead of going to trial
on his more serious original charges, including murder
under General Statutes § 53a-54a, after the sentencing
court, Damiani, J., reinstated the original charges upon
finding that he had violated the terms of an earlier,
more favorable plea agreement, under which he had
pleaded guilty to and was to have received a total effec-
tive sentence of no more than twenty-five years in
prison on the less serious charges of conspiracy to
commit murder, in violation of General Statutes §§ 53a-
48 and 53a-54a, and carrying a pistol without a permit,
in violation of General Statutes § 29-35.
On appeal, the defendant claims that the sentencing
court erred in finding that he had violated the terms of
his initial plea agreement, and thus in vacating his initial
guilty pleas and reinstating his original charges against
him. On that basis as well, he claims that the trial court,
Clifford, J., erred in denying his amended motion to
correct illegal sentence, wherein he claimed that his
current sentence was imposed upon him in an illegal
manner because he would not have been constrained
to enter into the second plea agreement, pursuant to
which it was imposed, had the sentencing court not
vacated his initial guilty pleas and reinstated his origi-
nal charges.
The state argues that the trial court lacked subject
matter jurisdiction to hear and adjudicate the defen-
dant’s amended motion to correct because the motion
improperly challenged the legality of his conviction for
accessory to manslaughter in the first degree with a
firearm under his second plea agreement, instead of
his thirty year sentence for that offense. We agree.
The following facts and procedural history are rele-
vant to our resolution of this appeal. On November 29,
2005, the defendant and two other individuals, Hudel
Gamble and Ricardo Ramos, shot and killed Marquis
White in a drive-by shooting on Kensington Street in
New Haven. Forensic examination of the bullets recov-
ered from White’s body during an autopsy revealed that
he had been shot with three different types of firearms
on the evening in question, supporting an inference that
the defendant and both of his companions had fired
their weapons at him. The defendant later was arrested
by New Haven police in connection with the incident
on charges of murder under § 53a-54a, conspiracy to
commit murder under §§ 53a-48 and 53a-54a, illegal pos-
session of an assault weapon under General Statutes
§ 53-202c, conspiracy to possess an assault weapon
under §§ 53a-48 (a) and 53-202c, and carrying a pistol
without a permit under § 29-35 (a).
On November 6, 2006, approximately one year after
the defendant was arrested, he pleaded guilty, as afore-
said, to charges of conspiracy to commit murder and
carrying a pistol without a permit pursuant to his initial
plea agreement with the state. Under the terms of that
agreement, the defendant expressly agreed to ‘‘articu-
late and indicate [at Gamble’s then impending trial] who
did the shooting that led to the death of the decedent
in this case and indicate who fired what.’’ Consistent
with that agreement, at the very outset of the defen-
dant’s plea proceeding, the sentencing court explained
to him as follows, in the presence of his mother, who
accompanied him, how the length of his sentence would
depend upon the nature and quality of his testimony at
Gamble’s trial:
‘‘The Court: [The defendant] is going to articulate his
involvement in the shooting that night before me in
open court. Now, Mr. Gamble is going to start his jury
selection today. He—it was he, Mr. Ramos, and [the
defendant] in the car. If [the defendant] is called to
testify by the state of Connecticut, and if he testifies
truthfully in accordance with what he tells me in open
court today . . . then at the time of sentencing, I’ll
listen to the state . . . and I’ll decide if he’s going to
get twenty, twenty-one, twenty-two, whatever . . . . It
can’t be more than twenty-five. If he takes the stand
during the Gamble trial and just doesn’t cooperate and
everything [has] to be pulled out of him piece by piece,
then he’s looking at the twenty-five years for sure. . . .
And if he ends up testifying at the trial that what he
told me here is not the truth, then I’m going to vacate
his pleas and put him on trial. Because I’m agreeing to
this based upon what you’re going to tell me, Mr. Smith.
Do you understand that?
‘‘The Defendant: Yes, sir.
‘‘The Court: So, if the truth is that you were the only
shooter and you take the stand and [say], ‘Gamble had
nothing to do with it, I did it all,’ I’m going to vacate
your plea and you are going to go to trial on murder.
Do you understand that?
‘‘The Defendant: Yes.’’
After receiving the court’s foregoing explanation, and
acknowledging his understanding of it, the defendant
pleaded guilty, as he had agreed, to the charges of
conspiracy to commit murder and carrying a pistol with-
out a permit, and then admitted on the record to his
involvement in the shooting, inculpating himself as well
as Gamble and Ramos. Specifically, he explained his
and his companions’ involvement in the events of the
evening in question as follows:
‘‘The Defendant: We were driving around—
‘‘The Court:—you are in a car. Who’s driving?
‘‘The Defendant: It was me.
‘‘The Court: And who else was in the car with you?
‘‘The Defendant: Ricardo Ramos and Hudel.
‘‘The Court: Ramos and Hudel Gamble?
‘‘The Defendant: Yes.
‘‘The Court: Now, who’s in the front seat with you?
‘‘The Defendant: Ramos.
‘‘The Court: And Gamble’s in the back?
‘‘The Defendant: Yes.
‘‘The Court. Okay. So, you’re driving around, what
happens?
‘‘The Defendant: We’re driving around, began, uh,
smoking marijuana—
‘‘The Court:—you’re smoking marijuana. Go ahead.
‘‘The Defendant: We was driving down Kensington
Street—
‘‘The Court:—Kensington?
‘‘The Defendant: Yes.
‘‘The Court: Go ahead.
‘‘The Defendant: We stopped first to—drawing out a
little bit more crowd of people. They start shooting—
then—
‘‘The Court:—so, the crowd of people started shoot-
ing at you?
‘‘The Defendant: Yes.
‘‘The Court: And then what happened?
‘‘The Defendant: Then we all started firing back.
‘‘The Court: What kind of gun did you have?
‘‘The Defendant: .357.
‘‘The Court: What kind of gun did Mr. Ramos have?
‘‘The Defendant: The shooter.
‘‘The Court: The SK-47?
‘‘The Defendant: Yes.
‘‘The Court: What kind of gun did Mr. Gamble have?
‘‘The Defendant: .22.
‘‘The Court: And all three of you were firing at the
crowd?
‘‘The Defendant: Yes.
‘‘The Court: And one person got hit?
‘‘The Defendant: Yes.’’
At the end of this detailed colloquy, the sentencing
court revisited as follows the issues of the defendant’s
responsibility, under the plea agreement, to testify
truthfully at Gamble’s trial and the consequences of
failing to do so:
‘‘The Court: Now, your responsibility [is] that if [you
are] called to testify, that you testify truthfully based
upon what you just told me. Do you understand that?
‘‘The Defendant: Yes.
‘‘The Court: If that’s not the truth—tell me that now.
‘‘The Defendant: The truth.
‘‘The Court: But if you go and are called at the Gamble
trial and you end up changing your story, then it’s not
going to be the truth and I’m going to vacate your plea.
You’re going to go on trial. Do you understand that?
‘‘The Defendant: Yes.’’
Thereafter, following brief additional questioning by
the court and counsel as to the precise location of
the crowd from which gunshots had been fired at the
defendant and his companions before they returned
fire,2 the sentencing court accepted the defendant’s
pleas and continued the case for sentencing.
At Gamble’s trial, when the state called the defendant
to testify in accordance with his plea agreement, the
defendant invoked his fifth amendment privilege
against self-incrimination and refused to testify. There-
after, the state promptly moved to vacate the defen-
dant’s prior guilty pleas. At a later hearing on that
motion, the sentencing court, Damiani, J., found that
the defendant ‘‘didn’t live up to his end of the bargain
by testifying truthfully at the trial,’’ and thus granted
the motion, whereupon all of the original charges
against the defendant, including murder, were rein-
stated against him.
The state and the defendant subsequently reached a
new plea agreement under which the defendant agreed
to plead guilty to accessory to manslaughter in the first
degree with a firearm, which carries a maximum possi-
ble sentence of forty years’ imprisonment. The agreed
upon sentence to be imposed on the defendant under
his new plea agreement was thirty years’ imprisonment.
The court subsequently accepted the defendant’s guilty
plea to accessory to manslaughter in the first degree
with a firearm after conducting a full canvass in open
court, and later sentenced him on that charge to thirty
years’ imprisonment.
Five years later, the defendant, initially representing
himself, filed a motion to correct illegal sentence. After
counsel was appointed to represent him pursuant to
General Statutes § 51-296 (a),3 the defendant filed the
amended motion to correct. In his amended motion,
the defendant claimed that the vacation of his initial
guilty pleas violated his initial plea agreement, pursuant
to which he should have been given a total effective
sentence of twenty-five years’ imprisonment due to his
failure to cooperate with the state at Gamble’s trial. On
September 26, 2012, the trial court, Clifford, J., heard
argument on the amended motion to correct. At that
hearing, the defendant argued that the invocation of
his fifth amendment privilege against self-incrimination
did not constitute testifying falsely at Gamble’s trial,
which he claimed to be the necessary precondition to
vacating his guilty pleas and reinstating the original
charges against him. Instead, he argued, his conduct
constituted not cooperating with the state at that trial,
which should have resulted in the imposition of a sen-
tence of twenty-five years’ imprisonment. The court
denied the motion, explaining its logic as follows: ‘‘[The
defendant] certainly violated the first option . . .
where, if he testified in accordance with the statement
he made at the time when he pled guilty and he testified
truthfully in accordance with that, he could have gotten
a sentence of twenty years. Well, he certainly did not
do that.
‘‘And then the other option . . . if he took the stand
and doesn’t cooperate and everything is kind of pulled
out of him piece by piece, then he would get twenty-
five years.
‘‘And then that last option, that if he testifies that
what he said during the guilty plea was not the truth
and just rejects all of that and testifies in a different
version, then [the court] would have . . . vacat[ed] the
plea.’’ The court concluded that ‘‘clearly, the defendant
violated the spirit of that agreement . . . he did not
cooperate. He did not testify truthfully. He did not tes-
tify at all.’’ Furthermore, although the court did not
question its own jurisdiction to hear the defendant’s
amended motion to correct, it noted that ‘‘really, what
should have happened at the time when the judge was
vacating his plea, [is that] the lawyer should have
objected to that, and there should have been an appeal
for violating the plea agreement because . . . what he
was sentenced on was actually quite a legal sentence.
He rebargained, pled guilty to this manslaughter charge,
agreed to thirty years and received thirty years. So, he
did a whole brand new bargain. So, this new sentence
is clearly a legal sentence and imposed . . . in a legal
manner.’’ The court ultimately denied the motion on
two grounds: ‘‘One is that . . . [the defendant] did vio-
late the agreement, which allowed the vacating of the
plea,’’ and the other is ‘‘that the present sentence clearly
was a sentence imposed in a legal manner because
there [were] new negotiations, and this last plea and
sentencing [of] thirty years was clearly a correct sen-
tence.’’ This appeal followed.
As a threshold matter, we must address the state’s
claim that the trial court lacked jurisdiction to consider
the defendant’s amended motion to correct illegal sen-
tence because his motion improperly sought to chal-
lenge the legality of his conviction rather than his
sentence, as required to obtain relief under Practice
Book § 43-22. ‘‘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 constitu-
tional and statutory provisions by which it is created.
. . . The Superior Court is a constitutional court of
general jurisdiction. In the absence of statutory or con-
stitutional provisions, the limits of its jurisdiction are
delineated by the common law. . . . Issues regarding
subject matter jurisdiction present a question of law,
and, therefore, we employ the plenary standard of
review. . . . Last, we note our Supreme Court’s
instruction that in determining whether a court has
subject matter jurisdiction, every presumption favoring
jurisdiction should be indulged. . . .
‘‘Our jurisprudence recognizes that the jurisdiction
of a sentencing court terminates once that sentence
has begun and, thus, that court may not take any action
affecting the sentence unless it expressly has been
authorized to act. . . . Both this court and our
Supreme Court, however, have stated that courts have
the power to correct an illegal sentence.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Koslik, 116 Conn. App. 693, 697, 977 A.2d 275, cert.
denied, 293 Conn. 930, 980 A.2d 916 (2009). As explained
by our Supreme Court in State v. Lawrence, 281 Conn.
147, 155, 913 A.2d 428 (2007), that common-law power is
now codified in Practice Book § 43-22, which provides:
‘‘The 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.’’ So written, § 43-
22 has been held to be ‘‘consistent with the broader
common-law meaning of illegality, permitting correc-
tion of both illegal sentences and sentences imposed
in an illegal manner.’’ State v. Parker, 295 Conn. 825,
837, 992 A.2d 1103 (2010).
This court, in State v. McNellis, 15 Conn. App. 416,
443–44, 546 A.2d 292, cert. denied, 209 Conn. 809, 548
A.2d 441 (1988), explained that ‘‘[a]n ‘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.’’ By contrast, the court explained, ‘‘[s]en-
tences imposed in an illegal manner have been defined
as being within the relevant statutory limits but . . .
imposed in a way which violates defendant’s right . . .
to be addressed personally at sentencing and to speak
in mitigation of punishment . . . or his right to be sen-
tenced by a judge relying on accurate information or
considerations solely in the record, or his right that the
government keep its plea agreement promises . . . .’’
(Internal quotation marks omitted.) Id., 444.
The state argues that the defendant’s claim falls out-
side the narrow exceptions provided for in Practice
Book § 43-22, as explained by this court in State v.
McNellis, supra, 15 Conn. App. 443–44, and by our
Supreme Court in State v. Lawrence, supra, 281 Conn.
158, because his claim attacks the validity of his convic-
tion as opposed to his sentence. ‘‘The purpose of . . .
§ 43-22 is not to attack the validity of a conviction by
setting it aside but, rather to correct an illegal sentence
or disposition, or one imposed or made in an illegal
manner.’’ (Internal quotation marks omitted.) Id. We
agree with the state that the court lacked jurisdiction
to hear and adjudicate the defendant’s amended motion
to correct illegal sentence because his motion fell out-
side the narrow scope of § 43-22.
Although the defendant alleges that the state
breached the terms of its plea agreement, which, under
State v. McNellis, supra, 15 Conn. App. 443–44, would
ordinarily constitute a claim that the sentence was
imposed in an illegal manner, his current claim relates
not to the state’s alleged breach of his second plea
agreement, pursuant to which the sentence here chal-
lenged was imposed, but to his initial plea agreement,
which he claims not to have been enforced according
to its terms. For this court to reach the merits of that
claim and grant the relief the defendant requests would
therefore require more than the correction of his cur-
rent sentence. Instead, it would require the setting aside
of his conviction for accessory to manslaughter in the
first degree with a firearm, the reinstatement of the
lesser charges to which the defendant pleaded guilty
under his initial plea agreement, and the imposition of
sentence on those charges under the terms of the initial
plea agreement. Entering such orders is well beyond
the narrow purpose of Practice Book § 43-22. That pur-
pose, to reiterate, is to afford defendants an effective
vehicle for challenging and correcting illegalities in their
current sentences in connection with otherwise valid
criminal convictions, not an alternative vehicle for chal-
lenging the validity of the underlying convictions them-
selves.
Here, then, because the defendant’s amended motion
to correct alleged that his current sentence is illegal
because the conviction pursuant to which it was
imposed resulted from the improper reinstatement of
the original charge of murder, the motion is actually
an attack on the validity of his conviction for accessory
to manslaughter in the first degree with a firearm, which
‘‘falls outside that set of narrow circumstances in which
the court retains jurisdiction over a defendant’’ under
Practice Book § 43-22. State v. Lawrence, supra, 281
Conn. 159. For that reason, the trial court’s denial of
that motion on the ground that the sentence therein
challenged was itself imposed in a legal manner, pursu-
ant to his valid, independently negotiated second plea
agreement, was improper.
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 amended
motion to correct illegal sentence for lack of subject
matter jurisdiction.
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
Practice Book § 43-22 provides: ‘‘The 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.’’
2
The following colloquy occurred before the sentencing court:
‘‘[The Prosecutor]: Just one, may I inquire further in terms of—
‘‘The Court:—sure.
‘‘[The Prosecutor]:—the shots fired from the crowd. Which side of the
street the shots came from, the right or the left, as they drove down the street?
‘‘The Court: What side of the street?
‘‘The Defendant: The left side, sir, Your Honor.
‘‘The Court: Left side.
‘‘The Defendant: The car was on the right side.
‘‘The Court: What?
‘‘The Defendant: The car was on the right side of the street.
‘‘[Defense Counsel]: The shots came from the other direction?
‘‘The Defendant: Yeah, the other direction.
‘‘[Defense Counsel]: The shots came from the other direction from the
crowd. The crowd was on the right and the shots came from the left, he says.
‘‘[The Prosecutor]: Well, I guess—
‘‘The Court:—you’re going down Kensington; which direction are you
headed?
‘‘The Defendant: Toward Chapel.
‘‘The Court: You’re heading toward Chapel and the crowd is on the—
‘‘The Defendant:—left—
‘‘The Court:—driver’s side or the passenger?
‘‘The Defendant: Passenger, passenger.
‘‘The Court: Passenger side?
‘‘The Defendant: Yes.
‘‘The Court: And the shots that were fired at the car, are they from the
driver’s side or the passenger side?
‘‘The Defendant: They came from the driver’s side of the [car]—
‘‘The Court:—from the driver’s side?
‘‘The Defendant: Yeah.
‘‘The Court: So, the crowd was on the passenger’s side—the shots from
the driver’s side, right?
‘‘The Defendant: Yes, sir.
‘‘[The Prosecutor]: That’s fine, thank you.
‘‘The Court: Okay. And then you guys shot—
‘‘The Defendant:—toward the crowd.
‘‘The Court: Toward the passenger side?
‘‘The Defendant: Yes.’’
3
General Statutes § 51-296 (a) provides in relevant part: ‘‘In any criminal
action . . . the court before which the matter is pending shall, if it deter-
mines after investigation by the public defender or his office that a defendant
is indigent as defined under this chapter, designate a public defender, assis-
tant public defender or deputy assistant public defender to represent such
indigent defendant . . . .’’