State of Connecticut v. Roger Brown (2011)

ORDER

The defendant in the above-captioned matter was arrested on January 24, 2007 and charged with Sexual Assault in the First Degree in violation of Connecticut General Statutes § 53a-70(a)(2) and two counts of Sexual Assault in the Fourth Degree in violation of Connecticut General Statutes § 53a-73(a)(1)(a) and three counts of Risk of Injury to a Minor in violation of Connecticut General Statutes § 53-21(2).

On January 23, 2008, the defendant was found guilty by a jury on all six counts and on April 18, 2008, the trial court sentenced the defendant to a total effective sentence of 29 years incarceration suspended after the service of 23 years to be followed by 30 years of probation.

Following his sentence, the defendant filed a timely appeal and on July 27, 2010, the Supreme Court affirmed the defendant's conviction.

On October 15, 2010, the defendant filed a motion for a new trial pursuant to Practice Book § 42-53(a)(1) and (2) and 42-54 and Connecticut General Statutes § 52-582 and § 52-270(a).

“Practice Book § 42-53 provides for the granting of a motion for a new trial in the interests of justice, for constitutional error or for other materially injurious error.   A motion for a new trial under Practice Book [§ 42-53] is limited to trial errors, and cannot be based upon newly discovered evidence ․” (Citation omitted.)  State v. Santaniello, 96 Conn.App. 646 (2006);  State v. Jones, 205 Conn. 723, 730 (1988);  State v. Murdick, 23 Conn.App. 692, 704 (1991).  Practice Book § 42-54 requires that “[u]nless otherwise permitted by the judicial authority in the interests of justice, a motion for a new trial shall be made within five days after a verdict or finding of guilty or within any further time the judicial authority allows during the five-day period.”   Here, the defendant was found guilty on January 23, 2008 and the five-day period elapsed on January 28, 2008.   Thus, his motion is filed more than eighteen months after the five-day period of § 42-54 expired.

The Court agrees with the state's argument that the court lacks jurisdiction over this matter.   It is a “well established” that “ ‘the jurisdiction of the sentencing court terminates once a defendant's sentence has begun, and, therefore, that court may no longer take any action affecting a defendant's sentence unless it expressly has been authorized to act.’  ․” State v. Das, 291 Conn. 356, 362 (2009);  State v. Reid, 277 Conn. 764, 774-75 (2006);  State v. Asherman, 180 Conn. (1984);  State v. Colon, 8 Conn.App. 111 (1986);  State v. Burnhannon, 34 Conn.App. 537 (1994), 141 (State v. Luzietti, 230 Conn. 427, 431-32 (1994) (trial court had no jurisdiction to consider motion for a new trial filed six weeks after defendant began serving his sentence).   There is no exception to this jurisdictional rule for alleged constitutional violations.  State v. Das, supra, 291 Conn. at 363-70.   Also see State v. Parker, 295 Conn. 825 (2010), here the defendant claimed by way of a motion to correct an illegal sentence that he had been deprived of an opportunity to review and correct certain inaccuracies in his presentence report and that he had been deprived of his constitutional right to effective assistance of counsel at sentencing.   The court held that the defendant's claim did not fall within the limited circumstances under which the trial court has jurisdiction to correct a sentence imposed in an illegal manner at p. 828.

On December 21, 2010 and February 3, 2011, the defendant appeared in court and presented his oral argument in support of said motion.   If the reviewing court does confer jurisdiction upon the trial court to consider the substantive claims made by the defendant in his oral argument and in his brief, the trial court finds that the two claims of error cited by the defendant are without merit and would not give the court cause pursuant to Practice Book § 42-53 to grant a motion for a new trial in the interests of justice, for constitutional error or for other materially injurious error.   The defendant's claims are best addressed by the appellate and or habeas review.

The defendant's Motion for a New Trial is hereby denied.

BY THE COURT,

Ginocchio, J.

Ginocchio, James P., J.