State of Connecticut v. Hector Rodriguez (2010)

MEMORANDUM OF DECISION RE MOTION TO CORRECT ILLEGAL SENTENCE

The defendant, Hector Rodriguez, has filed the present motion to correct illegal sentence asserting that the thirty-year sentence imposed by the trial court (Hauser, J.) must be corrected because the persistent serious felony statute (General Statutes § 53a-40(c)) was illegally applied to his case.   Although the defendant sought representation by appointed counsel, the public defender's office declined to file an appearance after conducting the review prescribed by State v. Casiano, 282 Conn. 614 (2007).   Thereafter, a hearing was conducted on the present motion on June 23, 2010.

For the reasons set forth below, the motion to correct illegal sentence must be denied.

BACKGROUND

The defendant's cases were consolidated for a joint jury trial.   The jury returned guilty verdicts convicting the defendant of:  two counts of burglary in the second degree in violation of General Statutes § 53a-102(a), one count of attempt to commit burglary in the second degree in violation of General Statutes § 53a-49 and § 53a-102(a), one count of burglary in the third degree in violation of General Statutes § 53a-103, one count of larceny in the third degree in violation of General Statutes § 53a-124(a)(1), one count of larceny in the sixth degree in violation of General Statutes § 53a-125b and one count of criminal trespass in the second degree in violation of General Statutes § 53a-108(a).

Immediately following the jury verdicts, the defendant pleaded guilty to a part B information that charged him with being a persistent serious felony offender pursuant to General Statutes § 53a-40(c).  As noted above, he was thereafter sentenced to a total effective sentence of thirty years.   The defendant's convictions were affirmed on direct appeal.  State v. Rodriguez, 91 Conn.App. 112, cert. denied, 276 Conn. 909 (2005).

DISCUSSION

While the jurisdiction of a sentencing court usually terminates once the sentence has begun, a court retains jurisdiction to consider whether the correct sentencing statute was applied.  State v. Lawrence, 281 Conn. 147, 157 (2007).   Accordingly, this court has jurisdiction to consider the defendant's motion on its merits.

The persistent serious felony statute reads as follows:

“A persistent serious felony offender is a person who (1) stands convicted of a felony, and (2) has been prior to the commission of the present felony, convicted and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime.   This subsection shall not apply where the present conviction is for a crime enumerated in subsection (1) of subdivision (a) of this section and the prior conviction was for a crime other than those enumerated in subsection (a) of this section.”

General Statutes § 53a-40(c).

The defendant does not contest that following the jury's verdicts he stood convicted of a felony;  nor does he contest that he had a prior conviction for a crime for which a sentence of more than one year was imposed.   The defendant phrases his claim as follows:

“The defendant's prior conviction was for burglary in the second degree in violation of C.G.S. § 53a-102(a) therefore the defendant's prior is not on the persistent dangerous felony offender list in fact none of the defendant's priors are on the list.”   Motion to Correct Illegal Sentence, p. 4.

The defendant's assertion is correct in that a conviction for burglary in the second degree (§ 53a-102(a)) is not an enumerated crime to qualify for treatment as a persistent dangerous felony offender pursuant to General Statutes § 53a-40(a).   The defendant, however, was not treated as a persistent dangerous felony offender (§ 53a-40(a)) but rather as persistent serious felony offender (§ 53a-40(c)).  As far as being a persistent serious felony offender, a prior conviction for burglary in the second degree is a qualifying prior conviction provided the requisite sentence of more than one year was imposed.

In sum, the court finds that the persistent serious felony offender statute was correctly and legally applied in the defendant's case.   Accordingly, the Motion To Correct Illegal Sentence must be denied.

SO ORDERED at Bridgeport Connecticut this 25th day of June 2010.

ROBERT J. DEVLIN, JR., JUDGE

Devlin, Robert J., J.