State of Connecticut v. Gerald Williams (2013)

MEMORANDUM OF DECISION RE MOTION TO CORRECT ILLEGAL SENTENCE

BACKGROUND

Following a jury trial, the defendant, Gerald Williams, was convicted of attempted sexual assault in the first degree in violation of General Statutes § 53a–49(a)(2) and § 53a–70(a)(2) and three counts of risk of injury to a child in violation of General Statutes § 53–21(a)(2).   The trial court (Thim, J.) imposed a total effective sentence of forty years imprisonment.   The defendant's conviction was affirmed on direct appeal.   See State v. Gerald W., 103 Conn.App. 784 (2007).   In the present motion, the defendant asserts five reasons in support of his claim that his sentence is illegal.

A hearing was conducted on the present motion on October 16, 2013.   Prior to that date, the public defender conducted the review prescribed by State v. Casiano, 282 Conn. 614 (2007) and declined to appear.   The defendant is therefore self-represented.

As stated above, the defendant advances five claims:  (1) that the state did not demonstrate his guilt at trial, (2) that the use at sentencing of his prior conviction for sexual assault violated Apprendi v. New Jersey, 530 U.S. 466 (2000), (3) that the sentence imposed was in retaliation for his going to trial, (4) that the use of his prior conviction and the imposition of consecutive sentences violated his double jeopardy rights and (5) that he received inadequate advice from his trial counsel about the amount of prison time he would face if convicted after trial.   For the reasons set forth below, the defendant's claims are either dismissed because this court lacks jurisdiction to consider them or denied on their merits.

DISCUSSION

Practice Book § 43–22 authorizes the judicial authority to correct an illegal sentence or a sentence imposed in an illegal manner.   This section provides an exception to the general rule that a sentence may not be modified once judgment enters.   Our Supreme Court has explained this principle as follows:  “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.”  State v. Parker, 295 Conn. 825, 834 (2010).   On the other hand, if a court imposes an invalid sentence, it retains jurisdiction to substitute a valid sentence.  Id., 835.   Stated differently, a trial court has continuing jurisdiction to correct an illegal sentence.   Id. Connecticut practice is consistent with the common-law meaning of illegality, permitting correction of both illegal sentences and sentences imposed in an illegal manner.  Id., 837.

An “illegal sentence” is essentially one that exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous or internally contradictory.  Id., 839.

A sentence “imposed in an illegal manner” is one that (while within the relevant statutory limits) is imposed in a way that violates a defendant's right to be addressed personally at sentencing and to speak in mitigation of punishment, or the right to be sentenced by a judge relying on accurate information or considerations solely on the record or the right that the government keep its plea agreement promises.  Id. The above examples are not exhaustive but rather illustrate the fundamental proposition that the defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence.

It is useful to bear in mind that “a challenge to the legality of a sentence focuses not on what transpired during the trial or on the underlying conviction.   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 trial leading to the conviction, must be the subject of the attack.”  State v. Lawrence, 281 Conn. 147, 158 (2007).

The defendant's claims must be considered in the light of the foregoing legal principles.

Insufficient Evidence

This claim asserts that the state did not establish the defendant's guilt at trial.   The motion to correct illegal sentence on this ground must be dismissed because this court lacks jurisdiction to consider such a claim.  State v. Luzietti, 230 Conn. 427, 432 (1994).

Use of Prior Conviction

The defendant asserts that the use at sentencing of his prior conviction for sexual assault in the first degree violated the rule set forth in Apprendi v. New Jersey, supra.  Apprendi held that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt.”  Id., 490.   In the present case, the trial judge's consideration of the prior conviction was to determine the appropriate sentence within the applicable statutory range.   Such use did not increase the penalty beyond the maximums for the crimes of conviction.   The Apprendi rule has no application in this situation.   Moreover, consideration of a defendant's prior record is well within the broad inquiry permitted in connection with a sentencing.  State v. Connelly, 129 Conn.App. 373, 379 (2011).   The motion to correct illegal sentence on this ground is denied.

Retaliatory Prosecution

In his sentencing remarks, the prosecutor noted that the defendant had forced the complainants to testify at his trial.   The defense objected to these remarks.   The defendant now claims that the prosecutor's remarks demonstrate that his sentence was imposed in retaliation for his going to trial.   This claim lacks merit.   The defendant has made no showing that the trial court punished the defendant for going to trial.   To the contrary, the record demonstrates that the sentence imposed by the trial court was approximately twenty years less than the one recommended by the prosecutor.

The motion to correct illegal sentence on this ground is denied.   To the extent the defendant's claim goes to the trial itself, the court lacks jurisdiction to consider it.

Double Jeopardy

The defendant claims that his double jeopardy rights were violated at sentencing because:  (1) the trial court considered his prior conviction for sexual assault and (2) the trial court imposed consecutive sentences on each of the four counts for which the defendant was convicted.   The prohibition against double jeopardy is not implicated when a sentencing judge considers prior convictions in imposing sentence.  State v. Garvin, 43 Conn.App. 142, 153 (1996).   The defendant's claim that the imposition of consecutive sentences violates double jeopardy lacks merit.   See General Statues § 53a–37 (authorizing the court to impose consecutive sentences).

Ineffective Legal Advice

This court has no jurisdiction to consider the defendant's claim that, in connection with his decision to reject the plea offer and go to trial, he received ineffective assistance of counsel.

CONCLUSION

For the reasons set forth above, the motion to correct illegal sentence is denied as to those claims for which the court has jurisdiction and dismissed as to those claims for which the court lacks jurisdiction.

So Ordered at Bridgeport, Connecticut this 22nd day of October 2013.

Robert J. Devlin, Jr., Judge

Devlin, Robert J., J.