State of Connecticut v. William Gemmell (2013)

MOTION TO CORRECT ILLEGAL SENTENCE

ATTY. MOORE:  William Gemmell, Your Honor.   Justina Moore for the State.

THE COURT:  Yes.

ATTY. STEVENSON:  Good afternoon, Your Honor.   Attorney Deborah Stevenson representing Mr. Gemmell.

THE COURT:  Good afternoon.

THE CLERK:  Do you have your copies?

THE COURT:  Yes I do.

ATTY. STEVENSON:  This is about a motion to correct an illegal sentence.

A little factual background, as explained in the motion itself, the defendant lived with someone named Kimberly Planeta for about 15 years—

THE COURT:  Actually, I read your whole motion, so I'm—I'm—

ATTY. STEVENSON:  Okay.

THE COURT:—and  i Tried the case, so i'M familiar with it and—

ATTY. STEVENSON:  Excellent, Your Honor.

THE COURT:—you've  got all the information in there, for the record.

ATTY. STEVENSON:  We'll dispense with that then.   I do—I do—I'm asking for the sentence to be corrected on two different grounds.

One is, as explained in the motion, because the order of protection was not signed until May 3rd and the actual incident occurred on April 30th and so—

THE COURT:  Right, but I—I've got a question for you there, because when I read that I thought, well this is very odd and I went back to look at the evidence.

The order of protection that was signed on May 3rd is the order of protection in the case—that was entered as part of another case.   That is not the order of protection he was charged with violating.

Are you counsel for the appeal?

ATTY. STEVENSON:  I am counsel for the appeal.

THE COURT:  Okay. Have you looked at the exhibits from the trial?

ATTY. STEVENSON:  I have looked at the exhibits, Your Honor.

THE COURT:  And what is the date, not the—not the record—you said the clerk's record has that copy.   What is the date of the protective order that was entered into evidence, at trial, that he is alleged to have violated?

ATTY. STEVENSON:  When I came down here, prior to filing the brief on appeal and looked at the evidence the clerk had in hand—

THE COURT:  No, no, no, exhibits entered at trial—

ATTY. STEVENSON:  I understand—

THE COURT:—is  what i'M asking, if you've seen those?

ATTY. STEVENSON:—and  I asked for that, Your Honor.   And the clerk, at the time, indicated that the only thing that they had available, and I asked, both prior to coming down and looking myself, by telephone, asked—research—for the clerk to research exactly what was that and in the transcript of the trial, it does indicate that there was a witness who appeared, a clerk who appeared, who said that the clerk heard the Judge order a—a protective order on April 26th, I believe.

However, there was nothing in the record and nothing that I could see from the transcript, or anything that the clerk could show me—

THE COURT:  Did you see an exhibit being marked in the transcript at that time?

ATTY. STEVENSON:  I—what I saw was the record of—there was a, not an exhibit, there was a—the testimony of the clerk and there was, and I can't remember exactly, Your Honor, at this particular time.

THE COURT:  Okay. Hold on one second.   Could—could you please go ask Mr. Kim to get the Gemmell trial exhibits?   They would be in an envelope—I thought I had made a copy of it, so that we could use it, but it's not attached to this.

I believe it was exhibit 14, but he could just bring in the whole envelope of exhibits—

THE MARSHAL:  Okay. Yes, Your Honor.

THE COURT:—it's  like a large—thank you.

Okay. Let's hold on that for now because, I recall, I actually looked at the exhibits.

The protective order that was entered into evidence is a protective order that was entered on the dates as stated.

There was another protective order entered, with respect to another file, on the dates that you indicate.

ATTY. STEVENSON:  Well, Your Honor, like—as I indicated, I did do research when I came down here.   I asked specifically for—is there any other protective order that was signed, at any other time, because the transcript is showing—

THE COURT:  You have it here.

ATTY. STEVENSON:—that  there was testimony.

THE COURT:  It's attached to your motion.

ATTY. STEVENSON:  There's—there is a—

THE COURT:  April 26, 2010.   Maybe I stapled it here.   Maybe this is the copy I've been looking for.

ATTY. STEVENSON:  I don't—no, I never had one that said that, Your Honor.

THE COURT:  Okay.

ATTY. STEVENSON:  I was never given that or shown that by the clerk's office.   And again, I asked repeatedly.

THE COURT:  All—copies of all the exhibits are part of the appellate record.

ATTY. STEVENSON:  Your Honor, I looked and I asked.

THE COURT:  Okay. Well, anyway—so assuming that there was a protective order that was entered on April 26th of 2010, do you withdraw that claim in your motion?

ATTY. STEVENSON:  Your Honor, I—I—before I say anything, I would like to reserve that and do further research on it.

THE COURT:  Okay. Well, let me ask you my second, basic question.   He was—you're—he—if a valid protective order existed and he's found guilty of violating the protective order, then it's not an illegal sentence.   It's within the range of sentences for that charge.

ATTY. STEVENSON:  Your Honor, if there was a valid order in effect—

THE COURT:  Okay.

ATTY. STEVENSON:—then  the argument is different, correct.

THE COURT:  Okay. And if there were but correspondingly, if there were not a valid order in effect, but the jury convicted him of it, would your argument not be to the appellate court that there was insufficient evidence?

ATTY. STEVENSON:  The argument is being made to the appellate court on similar grounds.   But, in addition to the appeal of the conviction, the sentencing also, if the—there was not a valid order in effect.

The issue is, the sentencing itself is also made in an illegal manner, in addition to the conviction, which would go on appeal.

THE COURT:  Okay. So you're indicating you have never had an opportunity to review the exhibits from the actual trial?

ATTY. STEVENSON:  I was down here and I was never provided with the exhibits.   I asked, repeatedly, if there was anything, anywhere that—any other record of a—a protective order prior to May 3rd

THE COURT:  Did—but did you request the exhibits from the trial?

ATTY. STEVENSON:  I did.   I believe I did, Your Honor.

THE COURT:  I mean, exhibits with—with—

ATTY. STEVENSON:  I believe I did.

THE COURT:—exhibit  one, two, three—

ATTY. STEVENSON:  That's why I came—

THE COURT:—with  the stickers on them.

ATTY. STEVENSON:—down  here, to look.

THE COURT:  And when—and when they gave you whatever they gave you, you didn't say, no, I need the thing that says—

ATTY. STEVENSON:  Yes I did.

THE COURT:—exhibit  one, two, three and a And b?

ATTY. STEVENSON:  Yes, Your Honor.   I believe I asked for the exhibit list.   I looked in the transcript, I came down here, I made telephone calls and I was not given anything other than this.

And, as a matter of fact, I called the protective registry and they also have no documentation of any order prior to May 3rd.

THE COURT:  No, because it's expired now.   It's not in the registry anymore.

ATTY. STEVENSON:  Well, the May 3rd one is.   They—they—

THE COURT:  Well, anyway—I guess I'm still questioning, if he's convicted of a violation of a protective order—and the sentence that he received on that charge was what?

ATTY. STEVENSON:  One year, I believe.

THE COURT:  Okay. So something less than five years—

ATTY. STEVENSON:  Yes.

THE COURT:—and  the penalty on a—for a violation of protective order is up to five years, how is there an illegal sentence?

ATTY. STEVENSON:  Again, Your Honor, if he was—if there was a valid protective order, the argument changes.

My argument, right now, especially since the the registry of protective orders does not show an April 26th protective order that—that by law, it has to be provided to them within, I think it's within 24 hours, or very shortly thereafter its issue, should be provided to the protective registry.

THE COURT:  So what are you saying—

ATTY. STEVENSON:  I'm saying, I still—I still have not seen it.   I have asked, repeatedly.   I absolutely did due diligence before filing anything, both in this court and the appellate court, and I could not find, with all the information that I had requested, in all the various ways I requested it, anything prior to the May 3rd.

So not having seen that and not having that information and having that doubt right now, and no disrespect—

THE COURT:  No, no, no.   I understand, but I—but I don't see—you're asking me to vacate the conviction then.

ATTY. STEVENSON:  No—

THE COURT:  You're saying that he shouldn't have been convicted of it.

ATTY. STEVENSON:  I'm saying—I'm saying, that's on direct appeal—

THE COURT:  Right, but—

ATTY. STEVENSON:—but—but  what I'm saying is, in addition to that, assuming that to be the case and there is nothing, you know, that I had found prior to this that shows there was a protective order in existence, if there was not a protective order in existence, also, he cannot be sentenced for that crime of violating the protective order.

THE COURT:  No, then he was wrongfully convicted.

ATTY. STEVENSON:  In addition to being wrongfully sentenced.

THE COURT:  Well, no, because an illegal sentence means that I've, in some way, exceeded the guidelines for the crime for which he was convicted.

ATTY. STEVENSON:  But the statute says it's sentenced in an illegal manner and that's—that's the terminology that I'm going by.

THE COURT:  Okay. All right, and then the second part of your argument, again, is that he—

ATTY. STEVENSON:  The second part—

THE COURT:—shouldn't  have been convicted of home invasion?

ATTY. STEVENSON:  That's correct, Your Honor, because—because also the conviction itself, again not attacking that here, the conviction itself is on appeal on the basis that, yes, the order of protection does come with a notification and in that notification, by statute, he's notified that if he remains on the premises, he is subject to criminal trespass.

Nowhere in that notice is he warned that he can also be charged with home invasion for the same set of facts and circumstances.

THE COURT:  Wow. So let me ask you this, we have a protective order in effect and the notice in the protective order or the notice in the statute says, if you go on the premises you could be arrested for criminal trespass.   And someone goes in and viciously stabs somebody 52 times, all over their body, and the person dies.   Are you saying that the perpetrator could only be charged with criminal trespass?

ATTY. STEVENSON:  No, Your Honor, but that's—those are not the facts here.   The facts here are only that the—the—the actions taken were incident to the initial, if we want to call it, violation of a protective order, okay.

THE COURT:  Well, that's—that's your reading of the facts.   From what I've heard from you today, you still have not even looked at the exhibits or anything else.

So you haven't seen the photographs with the person being led upstairs with something pointing into her back that was—

ATTY. STEVENSON:  I have the whole—

THE COURT:—purported  to be a weapon and you

ATTY. STEVENSON:  I have seen photographs.   I have not—what is in the trial file that I was given, okay.

THE COURT:  Okay. Do you have the transcripts?

ATTY. STEVENSON:  I have the transcripts.

THE COURT:  Okay. But you don't have—you don't have any of the exhibits?

ATTY. STEVENSON:  I—I do not have the—anything that shows a protective order dated April 26th.

THE COURT:  Do you have any of the exhibits?

ATTY. STEVENSON:  You're asking from memory?

THE COURT:  Do you have the CD? Do you have the recording log?   Do you have the picture of the lobby of 75 Maple Street?   Do you have the picture of the lobby with the defendant entering?   Do you have the picture of the defendant entering the elevator?   Do you have the picture of the defendant entering the basement?   Do you have the picture of the defendant in basement with victim?   Do you have picture of defendant and victim in basement?   Picture of defendant and victim in front of elevator?   Picture of defendant and victim going into, probably apartment?   Picture of defendant and victim open apartment door?   Picture of defendant holding door open?   Picture of defendant holding door open?   Certified protective order dated 4–26–10?   Plastic gun?   Laundry room?   Photo of plastic bag, toothbrush, etc?   Box cutter?   Photo of laundry basket?   Eye glasses?   Photo of clothes?   Transcript dated 4–26, 2010, when the protective order was entered?

ATTY. STEVENSON:  I have all of the documents that trial counsel—defense counsel had.

THE COURT:  Okay. Well, I don't know—I don't know what that means, but if you're doing an appeal, you need the exhibits.

ATTY. STEVENSON:  I understand that, Your Honor, which is why I came down here to see everything and I was not shown anything about April 26th.

THE COURT:  Okay. Look, I don't know—I—

ATTY. STEVENSON:  I don't know what happened either, Your Honor.

THE COURT:  You just—when you ask for exhibits, someone goes into the basement and gets the exhibits and they're in an envelope that says exhibits.

ATTY. STEVENSON:  And I did and I recall waiting in the clerk's office while—

THE COURT:  Okay.

ATTY. STEVENSON:—they  got something.

THE COURT:  Okay. So—but again, you're—he's convicted of home invasion and I believe, I don't recall what the sentence was I gave him, but—

ATTY. STEVENSON:  15 years.

THE COURT:  Pardon me?

ATTY. STEVENSON:  15 years.

THE COURT:  Okay. And 10 of which is a mandatory minimum on a home invasion?

ATTY. STEVENSON:  Yes.

THE COURT:  So it's a mandatory minimum of 10 up to what, what's the range of penalties?

ATTY. STEVENSON:  I don't recall off hand, Your Honor.

THE COURT:  Okay. So—but the 15 does not exceed the range of penalties for a home invasion?

ATTY. STEVENSON:  I don't believe so, Your Honor.

THE COURT:  Okay. So—

ATTY. STEVENSON:  Again, we're arguing—

THE COURT:—but—

ATTY. STEVENSON:—what  my argument is is that it was sentenced in an illegal manner.

THE COURT:  But you're telling—that I would have to change the charges that he was convicted of.

ATTY. STEVENSON:  Well, Your Honor, when there is—when there—if, and when, there is an error, that's the appropriate thing, according to the statutes and to the practice book, is to come back to the trial court to correct that error.

And that—and the law does allow circumstances when it—when the sentence—when the person is sentenced in an illegal manner, not just that the actual sentence itself was illegal.

THE COURT:  But I think your—I think he may—if you are right, he may have been convicted of the wrong charge.

ATTY. STEVENSON:  I agree with that, which is why we filed the appeal.

THE COURT:  But—but that's up to the appellate court.

ATTY. STEVENSON:  I understand.

THE COURT:  So I don't see that I have jurisdiction, because you would be asking me to change his sentence to something not less—not more than a year, if you're saying he only should've been sentenced for criminal trespass.

And he's convicted of a home invasion and the legislature tells me I have to give him at least 10.   I have no discretion over the first 10.

ATTY. STEVENSON:  Well, Your Honor, obviously you have to do what you have to do, but my argument, it still remains the same, that—and I—and there may be a need for a change in the statutes and a change in law and more clarification—

THE COURT:  But that's not up to me.

THE COURT:  But—but it is up to you if the sentence was given in an illegal manner.

And so I'm just going by the statute, Your Honor, that does provide that, and I'm seeing that this—if you look at the statutes, and look at what was—what was provided and apply the facts to the statutes, I'm seeing a valid argument to be made that this particular defendant was sentenced in an illegal manner on the two different—

THE COURT:  So what are you asking me to do, give him a one-year on the home invasion?

ATTY. STEVENSON:  I'm—whatever the appropriate sentence is for the criminal trespass.

THE COURT:  Well, what is the appropriate sentence for a criminal trespass?

ATTY. STEVENSON:  I would have to look that up, Your Honor, I believe it's in my—

THE COURT:  But he's not convicted of a criminal trespass and the legislature says if he's convicted of a home invasion, I must give him 10 years.

ATTY. STEVENSON:  But the statute and the protective order that this Court ordered, if it's a valid protective order, came with a notice and the notice said, it's right in the notice, that he—if he stayed, remained on the premises, he could be convicted—I believe I have the answer.   I can look it up right here.

Additionally, in accordance with section 53a–107 of the statutes, entering or remaining in a building or on any other premises in violation of this order constitutes criminal trespass in the first degree, which is punishable by a term of imprisonment of not more than one year, a fine of not more than $2,000, or both.

THE COURT:  Okay. But that says, additionally.

ATTY. STEVENSON:  Yes, and that's what it would be because he additionally was charged with home invasion.

He should have been additionally charged and sentenced to criminal trespass according to—

THE COURT:  Well, that's a question—that's a question for the appellate court and, perhaps, if he had only remained sleeping in the basement, it might only have been 53a–110, criminal violation of protective order and entering or remaining in a building, 53a–107, if he had just—if he had just slept in the basement and stayed there.

ATTY. STEVENSON:  I would agree with you that part of this is up to the appellate court, the conviction part.

THE COURT:  Mm-hmm.

ATTY. STEVENSON:  I disagree, respectfully, that the sentencing is—

THE COURT:  Okay. I—

ATTY. STEVENSON:—because  the appellate court would not re-sentence him, anyway—

THE COURT:  Right—

ATTY. STEVENSON:—that's  up to—that's the jurisdiction of—

THE COURT:  No, and if the appellate court sends it back—sends it back to me and says it shouldn't be a home invasion, it should only be a criminal trespass because there was insufficient evidence or because of other arguments that—where you persuade them of that, then I would vacate the conviction and sentence him on whatever they indicated.

But unless they find error, excuse me, and unless they vacate—find error and send it back, I can't now find that he was not convicted of a home invasion.   I don't have the authority to do that.

ATTY. STEVENSON:  But, Your Honor, again, I respectfully disagree, in part, with what you stated because I do believe you have jurisdiction to correct the manner in which the defendant was sentenced.   And that's all I'm asking.

THE COURT:  Okay. But—but I'm asking you, when the legislature says it has to be 10 years on a home invasion, what are you asking me—what authority do I have to sentence him to one year?

ATTY. STEVENSON:  Well, in my opinion, because the Court, assuming it's a valid protective order, warned him, initially, about criminal trespass—that the Court did have jurisdiction and does have jurisdiction to sentence him—

THE COURT:  I didn't warn him about any criminal trespass and I don't think anybody else did.   I think people told him that if he violates the protective order he's gonna be charged with a violation of a protective order punishable by five years in jail, $5,000 fine, or both.

ATTY. STEVENSON:  Your Honor, that's—

THE COURT:  That's what I tell everybody.

ATTY. STEVENSON:  I understand that may be true, verbally what you say, but is printed on the form for the protective order and the notice that goes with it.

THE COURT:  Well—does the State wish to be heard at all?

ATTY. MOORE:  Your Honor, the State just asserts that under State v. Lawrence, the Court really does not have jurisdiction over this, as she's—as counsel and her client are attacking the validity of the conviction.

THE COURT:  Do you wish to respond to that, Counsel?

ATTY. STEVENSON:  Again, I disagree that we are not attacking the validity of the conviction in this Court, while we are attacking that in the direct appeal.

What we are simply requesting this Court is to correct the sentence in terms of it being imposed in an illegal manner.

THE COURT:  Okay. I—your motion is denied based on the fact that I don't have jurisdiction to do what you're asking me to do.

ATTY. STEVENSON:  I respectfully take exception, Your Honor, for the record.

THE COURT:  You're—you may do so.

ATTY. STEVENSON:  Thank you, Your Honor.

THE COURT:  How are you Mr. Gemmell?

THE DEFENDANT:  Thank you, Your Honor.   Good, how are you Mrs. Dennis?

THE COURT:  I'm okay.   Okay. Meanwhile, could—who has—Mr.   Kim?

MR. KIM:  Yes, Your Honor?

THE COURT:  Would you please make copies of all the exhibits, for this attorney.

ATTY. STEVENSON:  Thank you.

THE COURT:  She's indicated she's come before and either gotten the wrong things or whatever, but that way you'll make sure you have copies of everything.

ATTY. STEVENSON:  Thank you very much, Your Honor, I appreciate that.

THE COURT:  Your welcome.

THE DEFENDANT:  Thanks Mrs.—Your Honor.

THE COURT:  But make sure, whenever you go, you ask for exhibits wherever you go.

ATTY. STEVENSON:  Yes, Your Honor.   I did—

THE COURT:  Okay.

* * *

Dennis, J.

Dennis, Maureen D., J.