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*********************************************** 
STATE OF CONNECTICUT v. GARY ALAN PECOR

(AC 39613)

Lavine, Bright and Flynn, Js.

Syllabus

The defendant, who previously had been convicted on a guilty plea of the

crime of robbery in the second degree, appealed to this court from the

trial court’s dismissal of his motion to correct an illegal sentence. The

trial court initially had sentenced the defendant to a definite period of

incarceration of two years followed by a period of eight years of special

parole. In September, 2014, following a motion to correct an illegal

sentence filed by the defendant, the trial court vacated the defendant’s

sentence and resentenced him to two years and one day of incarceration,

followed by seven years and 364 days of special parole. Subsequently,

the defendant filed a second motion to correct an illegal sentence, in

which he claimed, inter alia, that the court did not have jurisdiction to

modify the two years of incarceration to which he was originally sentenced because that was not an illegal sentence, and that the court was

permitted to modify only the illegal portion of the sentence, namely,

the eight years of special parole. Additionally, he claimed that the new

sentence violated his constitutional right against double jeopardy. The

trial court rendered judgment dismissing the defendant’s second motion

to correct an illegal sentence, determining that because the defendant

was collaterally attacking its September, 2014 judgment, the claim was

moot and, thus, that it lacked subject matter jurisdiction to address the

defendant’s claims. Held:

1. The trial court improperly determined that it lacked jurisdiction to address

the defendant’s motion to correct an illegal sentence; because the court

could have granted the defendant relief by correcting the alleged illegal

sentence that had been imposed in September, 2014, the issue was not

moot, and the court’s conclusion that it lacked subject matter jurisdiction

because the defendant was collaterally estopped from claiming that his

new sentence was illegal was incorrect, as the doctrine of collateral

estoppel did not implicate the trial court’s subject matter jurisdiction.

2. The state could not prevail on its claim that the defendant’s claims were

barred by the doctrine of res judicata, as the claims regarding the new

sentence imposed in September, 2014, were not fully and fairly litigated

prior to the imposition of that new sentence: although the defendant’s

original sentence was found to be illegal in September, 2014, a new

sentence was imposed at that time, and the defendant’s challenge to

that sentence as illegal had not been considered and decided on the

merits when the defendant later filed his second motion to correct an

illegal sentence; furthermore, the defendant’s claim that he was being

deprived of his liberty unconstitutionally was of such import that it

should be heard on its merits and not ignored because it could have

been raised at an earlier proceeding, and res judicata did not preclude

the defendant’s claims because an illegal sentence is always capable of

correction in the interest of justice.

3. This court declined to address the merits of the defendant’s motion to

correct an illegal sentence on appeal, in which he alleged that the trial

court, by imposing an additional day of incarceration to the definite

period of incarceration that he already had completed, violated his

constitutional rights to due process and against double jeopardy:

although the defendant’s double jeopardy claim ostensibly presented a

question of law, there were factual findings that could be relevant to

the resolution of that claim, the issue had not been properly briefed

and there was an insufficient factual record to determine whether the

defendant’s due process rights were violated, which involved a factual

issue of whether the defendant had engaged in wrongdoing that could

not be resolved by this court; accordingly, the case was remanded for

a hearing on the merits of the defendant’s motion to correct.

Argued November 16, 2017—officially released February 27, 2018

Procedural History
Substitute information charging the defendant with

the crime of robbery in the second degree, brought to

the Superior Court in the judicial district of Danbury,

where the defendant was presented to the court, Cobb,

J., on a plea of guilty; judgment of guilty in accordance

with the plea; thereafter, the court, Shaban, J., dismissed the defendant’s motion to correct an illegal sentence, and the defendant appealed to this court.

Reversed; further proceedings.

Michael K. Courtney, public defender, for the appellant (defendant).

Matthew A. Weiner, assistant state’s attorney, with

whom, on the brief, was Stephen J. Sedensky III, state’s

attorney, for the appellee (state).
Opinion

BRIGHT, J. The defendant, Gary Alan Pecor, appeals

from the judgment of the trial court dismissing his

motion to correct an illegal sentence. On appeal, the

defendant claims that the court improperly determined

that it did not have jurisdiction to address his motion

to correct. He also claims that this court should find,

as matter of law, that his sentence is illegal and remand

the case to the trial court with direction to resentence

him as he has requested. The state agrees that the trial

court incorrectly dismissed the defendant’s motion to

correct, but argues that the defendant’s claim of illegality is barred by the doctrine of res judicata. The state

asks this court to reverse the judgment of the trial court

and remand the case with instruction that the court

deny the defendant’s motion, or, in the alternative, that

this court remand the case to the trial court for a hearing

on the merits. We agree with the parties that the trial

court erred in dismissing the defendant’s motion for

lack of subject matter jurisdiction. We disagree, though,

that res judicata precludes the defendant’s claim. We

also disagree with the defendant that we should address

the merits of his claim on the basis of the record before

us. Accordingly, we reverse the judgment of the trial

court, and remand the case for a hearing on the merits

of the defendant’s motion to correct an illegal sentence.

The following facts and procedural history are relevant to our resolution of the defendant’s claim on

appeal. On June 7, 2011, the defendant pleaded guilty

under the Alford doctrine1

to robbery in the second

degree in violation of General Statutes § 53a-135. The

factual basis for the plea was that, on March 4, 2011,

the defendant attempted to steal a beef tenderloin from

a supermarket in Brookfield. When the supermarket’s

employees attempted to detain him, he displayed a knife

in an effort to escape. Pursuant to the plea agreement,

the trial court sentenced the defendant to a definite

period of incarceration of two years followed by a

period of eight years of special parole. The two years

of incarceration were to run concurrently with the sentence that the defendant then was serving on an unrelated conviction.

On May 7, 2013, the defendant filed a motion to correct an illegal sentence.2 The defendant claimed that

the sentence imposed by the court on June 7, 2011, was

illegal because he had been sentenced to a period of

special parole without receiving a definite sentence of

more than two years in violation of General Statutes

§ 54-125e (a).3 See State v. Boyd, 272 Conn. 72, 78, 861

A.2d 1155 (2004) (‘‘[s]ection 54-125e [a] applies only to

defendants who have received a definite sentence of

more than two years followed by a period of special

parole’’ [emphasis added; internal quotation marks

omitted]).
Following a series of continuances, and a reclaim

of the defendant’s motion to correct, the trial court

conducted a hearing on September 12, 2014. Although

the defendant withdrew his motion the previous day,

the state indicated to the trial court that the court still

was required to correct the illegal sentence. At the hearing, the state acknowledged that the defendant’s sentence was illegal, and it proposed that the court simply

resentence the defendant to two years and one day of

incarceration followed by seven years and 364 days of

special parole. Defense counsel stated that he believed

that the court could restructure the defendant’s sentence in that manner, although he believed that the

court was required to afford the defendant the opportunity to withdraw his guilty plea.

Rejecting defense counsel’s argument that it was

required to permit the defendant to withdraw his guilty

plea, the court vacated the defendant’s sentence and

resentenced him to two years and one day of incarceration, followed by seven years and 364 days of special

parole.4 The defendant received sentence credit for all

of the time that he previously had served. There was

no appeal taken from the court’s judgment.

On January 15, 2016, approximately sixteen months

after the defendant was resentenced, he filed a second

motion to correct an illegal sentence. In his second

motion, the defendant challenged the sentence imposed

on September 12, 2014, claiming that because the two

years of incarceration to which he was originally sentenced was not an illegal sentence, the court did not

have jurisdiction to modify it. The defendant argued

that the court was permitted to modify only the illegal

portion of the sentence, the eight years of special parole.

Additionally, the defendant claimed that by sentencing

him to an additional day of incarceration after he had

completed his definite sentence of two years incarceration, the trial court violated his constitutional right

against double jeopardy. The state, in a written objection to the defendant’s motion in the trial court, claimed

that (1) the matter previously was decided on September 12, 2014, and (2) the court did not have jurisdiction

over the motion because the court imposed a legal

sentence on September 12, 2014, from which the defendant did not appeal.

On March 11, 2016, the court conducted a hearing.

At the hearing, the state argued that the defendant

should have taken an appeal from the court’s judgment

on September 12, 2014. Defense counsel argued that

the defendant was challenging the sentence imposed

on September 12, 2014, on the ground that the court

improperly increased the defendant’s sentence by sentencing him to an additional day of incarceration after

he had completed the original sentence of two years

of incarceration. Defense counsel disagreed with the

state’s contention that an appeal needed to be taken
from the court’s previous judgment, stating that ‘‘the

Practice Book doesn’t require an appeal to be taken, if

the sentence is illegal . . . . It’s illegal today; it’s illegal

ten years from now.’’

The court issued a written decision on the defendant’s

motion to correct on July 6, 2016. The court reasoned

that the defendant’s motion essentially sought reconsideration of the court’s judgment on September 12, 2014.

The court reasoned that ‘‘[t]hrough his motion, the

defendant attempts to collaterally attack the court’s

[September 12, 2014 judgment]. However, the defendant

is collaterally estopped from doing so.’’ The court concluded that the issue, therefore, was moot because its

‘‘prior [judgment] already [had] addressed the defendant’s challenge to the legality of his original sentence.’’

Accordingly, the court determined that it lacked subject

matter jurisdiction, and it dismissed the motion to correct an illegal sentence. This appeal followed.

I

The defendant contends that the trial court improperly determined that it did not have jurisdiction to

address his motion to correct. The state now agrees

with the defendant, and so do we.

‘‘[T]he 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. . . . Practice Book § 43-22, which

provides the trial court with such authority, provides

that [t]he 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. An 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. . . . We previously have

noted that a defendant may challenge his or her criminal

sentence on the ground that it is illegal by raising the

issue on direct appeal or by filing a motion pursuant

to . . . § 43-22 with the judicial authority, namely, the

trial court. . . . [B]oth the trial court, and this court,

on appeal, have the power, at any time, to correct a

sentence that is illegal. . . . [T]he issue is one of law,

and we afford it plenary review.’’ (Citations omitted;

internal quotation marks omitted.) State v. Ruiz, 173

Conn. App. 608, 616–17, 164 A.3d 837 (2017).

In the present case, the trial court understood the

defendant’s motion to be a collateral attack on the

court’s September 12, 2014 judgment. The defendant,

however, explained that he was not collaterally

attacking the judgment that held that his original sentence had been illegal, but, rather, he was challenging

the new sentence imposed on September 12, 2014, and
the manner in which it was imposed. He specifically

argued that the court improperly modified the legally

correct part of his sentence and had violated his right

against double jeopardy by sentencing him to an additional day of incarceration after he already had completed the definite portion of his sentence. The

defendant argued that his claims appropriately were

brought pursuant to Practice Book § 43-22. The trial

court, however, determined that the claim was moot,

and it dismissed the motion to correct.

‘‘Mootness is a question of justiciability that must be

determined as a threshold matter because it implicates

[a] court’s subject matter jurisdiction . . . . It is well

settled that [a]n issue is moot when the court can no

longer grant any practical relief.’’ (Citation omitted;

internal quotation marks omitted.) Middlebury v. Connecticut Siting Council, 326 Conn. 40, 53–54, 161 A.3d

537 (2017). Additionally, we recognize that ‘‘the doctrine

of collateral estoppel does not implicate a court’s subject matter jurisdiction.’’ State v. T.D., 286 Conn. 353,

360 n.6, 944 A.2d 288 (2008).

Here, the court could have granted the defendant

relief by correcting the alleged illegal sentence that had

been imposed on September 12, 2014. Therefore, the

issue was not moot. Furthermore, the court’s conclusion that it lacked subject matter jurisdiction because

the defendant was collaterally estopped from claiming

that his new sentence was illegal was incorrect. See id.

Accordingly, the court improperly dismissed the defendant’s motion to correct for lack of subject matter jurisdiction.

II

Although the state concedes that the trial court

improperly concluded that it lacked subject matter

jurisdiction to address the merits of the defendant’s

motion to correct, it argues that this court should conclude that the defendant’s claims are barred by the

doctrine of res judicata. The state, therefore, asks this

court to remand the case with direction to the trial

court to deny the defendant’s motion to correct an

illegal sentence. Because we conclude that the defendant’s claims are not barred by the doctrine of res

judicata, we decline the state’s invitation.

‘‘Res judicata is a judicial doctrine . . . designed to

inhibit the ability of a plaintiff to litigate the same question over and over again, encumbering the mechanisms

our society has established to resolve disputes . . . .

At the same time, our Supreme Court has instructed

that this doctrine of preclusion should be flexible and

must give way when [its] mechanical application would

frustrate other social policies based on values equally

or more important than the convenience afforded by

finality in legal controversies. . . . For that reason, the

scope of matters precluded necessarily depends on
what has occurred in the former adjudication. . . .

‘‘Under the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the

merits, is an absolute bar to a subsequent action on the

same claim. A judgment is final not only as to every

matter [that] was offered to sustain the claim, but also

as to any other admissible matter [that] might have

been offered for that purpose. . . . Nonetheless, in

applying the doctrine of res judicata to a [criminal]

defendant’s constitutional claim, special policy considerations must be taken into account. The interest in

achieving finality in criminal proceedings must be balanced against the interest in assuring that no individual

is deprived of his liberty in violation of his constitutional

rights. . . . Whether two claims in a criminal case are

the same for the purposes of res judicata should therefore be considered in a practical frame and viewed with

an eye to all the circumstances of the proceedings. . . .

Because the doctrine has dramatic consequences for

the party against whom it is applied . . . we should

be careful that the effect of the doctrine does not work

an injustice.’’ (Citations omitted; internal quotation

marks omitted.) State v. Brundage, 148 Conn. App. 550,

561–62, 87 A.3d 582 (2014), aff’d, 320 Conn. 740, 135

A.3d 697 (2016).

‘‘We must determine, therefore, whether the claim

raised by the defendant in his motion to correct an

illegal sentence was already litigated and determined

in an earlier proceeding. The applicability of res judicata

principles depends on whether the present claim is

sufficiently similar to the previous claim to warrant our

giving preclusive effect to the prior judgment.’’ State v.

Osuch, 124 Conn. App. 572, 581, 5 A.3d 976, cert. denied,

299 Conn. 918, 10 A.3d 1052 (2010).

During the hearing on September 12, 2014, defense

counsel conceded that the court would be permitted

to sentence the defendant to an additional day of incarceration, provided that the court allowed the defendant

the opportunity to withdraw his plea. In the second

motion to correct an illegal sentence, the defendant

argued that the court, under any circumstance, could

not modify his sentence in this way. Instead, he claimed

that because a portion of his original sentence—two

years of incarceration—was a legal sentence, the court

had no jurisdiction or authority to modify it, and could

only strike the special parole portion of the sentence,

which was illegal because the incarceration portion of

the sentence did not exceed two years. Furthermore, he

claimed that the court violated the prohibition against

double jeopardy by adding an additional day of incarceration to the definite sentence of incarceration that he

already had completed.

Although the state contends that these claims are

barred by res judicata, we conclude that the claims

regarding the new sentence imposed on September 12,
2014, were not fully and fairly litigated prior to the

imposition of that new sentence.

In support of its argument, the state relies on this

court’s decision in State v. Osuch, supra, 124 Conn.

App. 572. We conclude that such reliance is misplaced.

In Osuch, the defendant challenged his original sentence for a third time on the basis of the same claim

that the presentence investigation report contained

incorrect information. Id., 582. This court concluded

that the defendant’s claim in his motion to correct an

illegal sentence was barred by the doctrine of res judicata because it was ‘‘the same claim that both the

habeas court and the [sentence review] division had

previously considered and decided on the merits

through the issuance of final judgments.’’ Id.

In the present case, the defendant’s claim that the

sentence imposed on September 12, 2014, is illegal was

not previously considered and decided on the merits.

Although the defendant’s original sentence was found

to be illegal on September 12, 2014, a new sentence

was imposed on that date. A challenge to that sentence

had not been considered and decided on the merits

when the defendant filed his motion to correct an illegal

sentence on January 15, 2016. Moreover, applying the

doctrine to the defendant’s claim would work an injustice. The defendant’s claim involves his having been

resentenced to an additional day of incarceration, after

he had been released from custody and after completing

the definite period of incarceration. A claim by a defendant that he is being deprived of his liberty unconstitutionally is of such import that it should be heard on its

merits and not ignored because it could have been

raised at an earlier proceeding. Accordingly, we conclude that the defendant’s claims in his motion to correct an illegal sentence are not barred by the doctrine

of res judicata.

This court’s decision in State v. Gaskin, 7 Conn. App.

131, 508 A.2d 40 (1986), further supports our conclusion

in the present case. In Gaskin, the trial court had

granted the defendant’s motion to correct an illegal

sentence, and the state did not appeal from that judgment. Id., 133, 135. Several months after the court rendered judgment, the state moved to correct the

amended sentence, claiming that the defendant’s original sentence was not illegal. Id., 133. The trial court

denied the motion, and the state appealed. Id. On

appeal, the defendant claimed that the state’s motion

was improper because the state should have appealed

from the judgment of the trial court granting his motion

to correct. Id., 135.

This court rejected the defendant’s claim, stating that

‘‘[t]he defendant categorizes the state’s motion as a

transparent device to relitigate issues now res judicata,

and to resurrect rights to appeal now expired. Practice

Book § [43-22], however, expressly provides that [t]he
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. . . . An illegal

sentence is always capable of correction in the interest

of justice.’’ (Emphasis in original; footnote omitted;

internal quotation marks omitted.) Id., 135–36. In this

case, the state takes the same position that it argued

against in Gaskin. Nevertheless, the principle remains

the same: ‘‘An illegal sentence is always capable of

correction in the interest of justice.’’ Id., 136. Therefore,

res judicata does not preclude the defendant’s claims.

III

Having concluded that the trial court incorrectly dismissed the defendant’s motion, and that the defendant’s

claims are not barred by the doctrine of res judicata,

we now consider the proper remedy. The defendant

requests that we address the merits of his motion to

correct an illegal sentence and remand this case to

the trial court with direction to resentence him to the

original sentence of two years incarceration that he

already has served and eliminate the special parole

portion of the sentence. The state, however, requests

that we remand the case to the trial court with direction

to hold a hearing on the merits of the defendant’s claims.

We conclude that the state’s requested remedy is more

appropriate under the circumstances of this case.

‘‘Although this court, on appeal, has the power, at

any time, to correct a sentence that is illegal, we may

decline to do so when the record is not adequate for

review. When presented with an inadequate record, we

are precluded from reviewing the claim on appeal. . . .

It is not an appropriate function of this court, when

presented with an inadequate record, to speculate . . .

or to presume error from a silent record.’’ (Footnote

omitted; internal quotation marks omitted.) State v.

Abraham, 152 Conn. App. 709, 731, 99 A.3d 1258 (2014).

Although the defendant’s double jeopardy claim

ostensibly presents a question of law, we conclude that

there are factual findings that may be relevant to the

resolution of his claim. Therefore, we decline to address

the merits of the defendant’s claim on appeal.

First, the state did not argue the merits of the defendant’s claims in the trial court, and the issue received

only cursory attention in its appellate brief. Second,

the trial court only briefly addressed the merits of the

defendant’s claim, and it did not make factual findings.

In particular, the record is not clear as to whether the

defendant had completed the definite portion of his

sentence when he filed his May, 2013 motion to correct

an illegal sentence, which might affect the court’s conclusion as to whether the defendant had a reasonable

expectation of finality in connection with the defendant’s double jeopardy argument. See, e.g., State v.
Wade, 178 Conn. App. 459, 465, A.3d (2017)

(‘‘[e]ven if the defendant had raised claims that challenged only some of the counts under which he had

been convicted, the fact that he exercised his right to

an appeal undermines his argument to an expectation

of finality in the sentence originally imposed’’ [internal

quotation marks omitted]), cert. denied, 327 Conn. 1002,

A.3d (2018).

Third, we question whether double jeopardy is the

correct lens through which to examine the defendant’s

claim, in light of our Supreme Court’s decision in State

v. Tabone, 292 Conn. 417, 973 A.2d 74 (2009). The defendant’s principal claim is that the trial court, by imposing

an additional day of incarceration to the definite period

of incarceration that the defendant already had completed, violated the double jeopardy clause of the fifth

amendment to the United States constitution. In State

v. Tabone, supra, 292 Conn. 426, 430–31, our Supreme

Court addressed a similar claim under the due process

clauses of the federal and state constitutions. The court

reaffirmed the guiding principle that a defendant’s due

process rights are not violated when the court corrects

an illegal sentence, so long as the new sentence is not

more severe than the original sentence. Id., 428.

Applying that principle to the present case, we have

serious concerns about a purportedly corrective sentence that increased the defendant’s period of incarceration, even if only by one day.

Nevertheless, the issue has not been properly briefed

and there is an insufficient factual record for us to

determine whether the defendant’s due process rights

were violated. As the defendant recognized in his

motion to correct, whether the defendant’s due process

rights have been violated may depend, in part, on

whether the defendant engaged in some wrongdoing in

order to obtain the illegal sentence. While the defendant

claims that such a conclusion would be ludicrous, it is

nonetheless a factual issue that we are not in a position

to resolve. In light of these issues, we conclude that

the trial court is in a better position to address fully

the defendant’s constitutional claims. Therefore, we

decline to address the merits of the defendant’s motion

to correct, and, accordingly, we remand the case to the

trial court for a hearing on the merits of the defendant’s

motion to correct an illegal sentence.

The judgment is reversed, and the case is remanded

for further proceedings according to law.

In this opinion the other judges concurred.

1 See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d

162 (1970).

2 The record is not clear as to whether the defendant had completed the

definite period of incarceration when he filed the motion to correct.

3 General Statutes § 54-125e (a) applies to ‘‘[a]ny person convicted of a

crime committed on or after October 1, 1998, who received a definite sentence of more than two years followed by a period of special parole . . . .’’

4 Although the court signed the defendant’s motion to correct an illegal

sentence on September 12, 2014, after it had been withdrawn by the defen-
dant on September 11, 2014, and the judgment file reflects that the court

granted the defendant’s motion, it is clear from the record that the court

corrected the defendant’s illegal sentence in accordance with the state’s oral

request, after acknowledging that the defendant had withdrawn his motion.