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*********************************************** 
STATE OF CONNECTICUT v. CALVIN BENNETT

(AC 40443)

DiPentima, C. J., and Elgo and Harper, Js.

Syllabus

The defendant, who had been convicted by a three judge panel of the crimes

of felony murder, home invasion and burglary in the first degree in

connection with the shooting death of the victim, appealed to this court

from the trial court’s denial of his motion to correct an illegal sentence.

On appeal, the defendant claimed that his sentence for both burglary in

the first degree and home invasion violated his constitutional protection

against double jeopardy because the home invasion was part of the same

transaction as the burglary and his intent throughout the transaction

was to carry out a larceny. Held that the defendant’s conviction of

burglary in the first degree and home invasion did not violate his constitutional protection against double jeopardy; although the defendant

claimed that the robbery that gave rise to the home invasion was incidental to the completion of the larceny that gave rise to the burglary charge

and, therefore, could be considered as part of an uninterrupted course

of conduct in furtherance of the burglary, the acts were susceptible to

separation into parts that supported a conviction of both burglary in

the first degree and home invasion, as the burglary charge arose from

the defendant’s distinct and separate act of entering the victim’s dwelling

at night with the intent to commit a larceny, while the home invasion

charge arose from the defendant’s separate act of threatening the use

of physical force against the victim’s girlfriend after the defendant and

an associate entered the home and were committing the larceny, and

although the defendant’s conduct constituted one transaction and the

defendant may have had the intent to commit a larceny throughout

the transaction, the defendant’s intent was not a factor in determining

whether the transaction was susceptible to separation into parts that

supported a conviction of both crimes.

Argued October 25, 2018—officially released February 19, 2019

Procedural History

Substitute information charging the defendant with

the crimes of aiding and abetting murder, felony murder, home invasion and burglary in the first degree,

brought to the Superior Court in the judicial district of

Waterbury and tried to a three judge court, Cremins,

Crawford and Schuman, Js.; judgment of guilty, from

which the defendant appealed to our Supreme Court,

which reversed the judgment in part and remanded

the case for further proceedings; thereafter, the court,

Fasano, J., denied the defendant’s motion to correct

an illegal sentence, and the defendant appealed to this

court. Affirmed.

W. Theodore Koch III, assigned counsel, for the appellant (defendant).

Linda Currie-Zeffiro, assistant state’s attorney, with

whom, on the brief, were Maureen Platt, state’s attorney, and John Davenport, senior assistant state’s attorney, for the appellee (state).
Opinion

HARPER, J. The defendant, Calvin Bennett, appeals

from the judgment of the trial court denying his motion

to correct an illegal sentence. On appeal, the defendant

argues that the court improperly rejected his claim that

his sentence for both burglary in the first degree in

violation of General Statutes § 53a-101 (a) (3)1 and home

invasion in violation of General Statutes § 53a-100aa (a)

(1)2 violates his constitutional protection against double

jeopardy. We affirm the judgment of the trial court.

Our Supreme Court, in its opinion addressing the

defendant’s direct appeal, recited the following procedural history and facts relevant to this appeal. ‘‘The

defendant . . . was charged with aiding and abetting

murder in violation of General Statutes §§ 53a-8 and

53a-54a, felony murder in violation of General Statutes

§ 53a-54c, home invasion in violation of General Statutes § 53a-100aa (a) (1), and burglary in the first degree

in violation of General Statutes § 53a-101 (a) (3). The

defendant elected a trial to a three judge court (panel).

See General Statutes § 54-82. The panel, consisting of

Cremins, Crawford and Schuman, Js., rendered a

unanimous verdict of guilty on all of the charges except

aiding and abetting murder, on which a majority of

the panel found the defendant guilty, and thereafter

rendered judgment in accordance with the verdict and

imposed a total effective sentence of sixty years imprisonment. . . .

‘‘[The victim] James Caffrey lived in the second floor

apartment of 323 Hill Street in Waterbury with his girlfriend Samantha Bright and one other roommate.

James’ mother, Emilia Caffrey, lived in the first floor

apartment. In the late afternoon of Saturday, October

26, 2008 . . . Caffrey and Bright had five visitors,

including Tamarius Maner, in their living room. Maner

had a clear view of the bedroom from where he was

seated in the living room. Maner purchased a small

amount of marijuana from . . . Caffrey and paid him

some money, which Caffrey put in the bedroom. Caffrey

kept the marijuana in the bedroom. Caffrey remarked

that he had saved $500 for a child that he was expecting

with Bright.

‘‘At about that time, Maner and the defendant lived

next door to each in other in Bridgeport and had done

drug business together. Maner contacted the defendant

by cell phone during the evening of Saturday, October

26. Shortly after midnight on Sunday, October 27, Maner

and the defendant drove from Bridgeport to Waterbury

to go to James Caffrey’s apartment. They were carrying

loaded handguns.

‘‘Just after 1 a.m., the doorbell to the second floor

apartment at 323 Hill Street rang and Caffrey answered

the door. A conversation of a few seconds with . . .

Caffrey ensued. Maner then shot Caffrey in the face
from a distance of one to three feet with a .45 caliber

handgun. Caffrey fell in the hallway in a pool of blood

and died from the gunshot wound to the head.

‘‘Maner and the defendant walked past Caffrey and

into the bedroom. Then the defendant put a gun to

Bright’s head and asked: ‘Where is everything?’ Bright

understood the question to inquire about money and

drugs. Bright referred them to the top dresser drawer.

Maner opened it and threw its contents on the bedroom floor.

‘‘At about that time, they heard the screams of Emilia

Caffrey, who had heard the shot and discovered her

son lying in the second floor hallway. The defendant

told Bright to keep her head down and face the wall.

Maner and the defendant then ran into the kitchen,

which Emilia Caffrey had also entered to call 911.

Maner, who was standing at the stove, fired one shot

at [Emilia] Caffrey and missed. The defendant was

standing at the window.

‘‘Maner and the defendant then ran out of the kitchen,

pushing [Emilia] Caffrey to the floor as they left. They

returned to their car and arrived back in Bridgeport

around 2 a.m.

‘‘Police interviews of some of the Waterbury visitors

to James Caffrey’s apartment on the afternoon of October 26 led to the identity of Maner, who was also known

in Bridgeport as T or Trigger. Further police investigation, including analysis of Maner’s cell phone calls,

brought police to an apartment in Bridgeport where

they found the defendant. The defendant voluntarily

returned to Waterbury with the police and told them

that he had not left Bridgeport on the night in question.

When confronted with the fact that his cell phone

records showed him in Waterbury during the time of

the crimes, the defendant put his head down for a

minute and then indicated that he had nothing more to

say. A search, pursuant to a warrant, of his apartment

in Bridgeport revealed a suitcase containing the defendant’s clothes, a loaded .45 caliber pistol, and a sock

containing sixty-one rounds of ammunition.’’ (Internal

quotation marks omitted.) State v. Bennett, 307 Conn.

758, 760–63, 59 A.3d 221 (2013). Our Supreme Court

vacated the defendant’s conviction of aiding and abetting murder and affirmed the judgment in all other

aspects. Id., 777.

On November 16, 2015, the defendant filed a pro

se motion to correct an illegal sentence pursuant to

Practice Book § 43-22,3 arguing that his sentence for

both burglary in the first degree and home invasion

violates his constitutional protection against double

jeopardy. The defendant subsequently was appointed

counsel, who filed a memorandum of law in support

of the defendant’s motion. After a hearing, the trial

court orally denied the motion. This appeal followed.
We begin by setting forth the standard of review and

relevant law. ‘‘Ordinarily, a claim that the trial court

improperly denied a defendant’s motion to correct an

illegal sentence is reviewed pursuant to the abuse of

discretion standard. . . . A double jeopardy claim,

however, presents a question of law, over which our

review is plenary.’’ (Citations omitted; internal quotation marks omitted.) State v. Baker, 168 Conn. App. 19,

24, 145 A.3d 955, cert. denied, 323 Conn. 932, 150 A.3d

232 (2016).

‘‘The double jeopardy clause of the fifth amendment

to the United States constitution provides: [N]or shall

any person be subject for the same offense to be twice

put in jeopardy of life or limb. The double jeopardy

clause is applicable to the states through the due process clause of the fourteenth amendment. . . . This

constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments

for the same offense in a single trial. . . .

‘‘Double jeopardy analysis in the context of a single

trial is a two-step process. First, the charges must arise

out of the same act or transaction. Second, it must be

determined whether the charged crimes are the same

offense. Multiple punishments are forbidden only if

both conditions are met.’’ (Internal quotation marks

omitted.) State v. Schovanec, 326 Conn. 310, 325, 163

A.3d 581 (2017). If we determine that the charges do

not arise from the same act or transaction, we do not

need to proceed to the second step of the analysis.

Id., 328.

‘‘At step one, it is not uncommon that we look to the

evidence at trial and to the state’s theory of the case

. . . in addition to the information against the defendant, as amplified by the bill of particulars. . . . If it

is determined that the charges arise out of the same

act or transaction, then the court proceeds to step two,

where it must be determined whether the charged

crimes are the same offense. . . . At this second step,

we [t]raditionally . . . have applied the Blockburger

test to determine whether two statutes criminalize the

same offense, thus placing a defendant prosecuted

under both statutes in double jeopardy: [W]here the

same act or transaction constitutes a violation of two

distinct statutory provisions, the test to be applied to

determine whether there are two offenses or only one,

is whether each provision requires proof of a fact which

the other does not. . . . In applying the Blockburger

test, we look only to the information and bill of particulars—as opposed to the evidence presented at trial—

to determine what constitutes a lesser included offense

of the offense charged.’’ (Citations omitted; internal

quotation marks omitted.) State v. Porter, 328 Conn.

648, 662, 182 A.3d 625 (2018). This test is ‘‘a technical

one and examines only the statutes, charging instruments, and bill of particulars as opposed to the evidence
presented at trial.’’ Id., 656.

In the present case, we begin our analysis by

determining whether the conviction for burglary in the

first degree and home invasion arose from the same

act or transaction.4

‘‘The same transaction . . . may

constitute separate and distinct crimes where it is susceptible of separation into parts, each of which constitutes a completed offense. . . . [T]he test is not

whether the criminal intent is one and the same and

inspiring the whole transaction, but whether separate

acts have been committed with the requisite criminal

intent and are such as are made punishable by the

[statute].’’ (Emphasis added; internal quotation marks

omitted.) State v. Tweedy, 219 Conn. 489, 497–98, 594

A.2d 906 (1991). When determining whether two

charges arose from the same act or transaction, our

Supreme Court has asked whether a jury reasonably

could have found separate factual basis for each offense

charged. State v. Schovanec, supra, 326 Conn. 329; see

also State v. Snook, 210 Conn. 244, 265, 555 A.2d 390,

cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed.

2d 603 (1989). Logically, it follows that we must ask

whether the three judge panel reasonably could have

found separate factual bases for the burglary and home

invasion charges.

The defendant argues that the home invasion was

part of the same transaction as the burglary and that

his intent throughout the transaction was to carry out

a larceny. We agree that the commission of the burglary

did not cease until the defendant left the dwelling. See

White v. Commissioner of Correction, 170 Conn. App.

415, 434, 154 A.3d 1054 (2017) (burglary, once commenced, continues until all participants in burglary have

left the premises). Nevertheless, although the defendant’s conduct constituted one transaction and the

defendant may have had the intent to commit a larceny

throughout the transaction, the relevant inquiry does

not focus on the defendant’s intent. Rather, we must

determine whether the transaction is susceptible to separation into parts that support a conviction of both

burglary in the first degree and home invasion. We conclude that the acts are susceptible to separation into

parts.

The information alleges that the defendant committed burglary in the first degree when he ‘‘entered and

remained unlawfully in a dwelling at night with the

intent to commit a crime therein, namely a larceny.’’

(Emphasis added.) The information further alleges that

the defendant committed home invasion when he

‘‘entered and remained unlawfully in a dwelling, while

a person other than the participant in the crime [was]

actually present in such dwelling, with the intent to

commit a crime therein, here, a larceny, and, in the

course of committing the offense, acting with one or

more persons, such person or another participant in
the crime commit[ted] . . . a felony, here, a robbery

against the person of Samantha Bright, who was not a

participant in the crime who was actually present in

such dwelling.’’ (Emphasis added.)

As the charges are presented in the information, the

panel could have reasonably found a factual basis to

support the burglary charge when the defendant unlawfully entered Caffrey’s home at night with the intent of

committing a larceny by stealing Caffrey’s drugs and

money. Additionally, the panel reasonably could have

found a factual basis to support the home invasion

charge when, subsequent to the unlawful entry, the

defendant pointed a gun at Bright’s head while asking

‘‘where is everything?’’ The threatened use of physical

force during the commission of the larceny gave rise

to the felonious act of robbery and, therefore, completed the offense of home invasion.5

In other words,

the burglary charge arose from the distinct and separate

act of entering the dwelling at night with the intent to

commit a larceny, while the home invasion charge arose

from the separate act of threatening the use of physical

force against Bright after the defendant and Maner

entered the home and were committing the larceny.

See State v. Meadows, 185 Conn. App. 287, 295, 197 A.3d

464 (transaction giving rise to conviction of prohibited

contact with victim and threatening and harassing victim in violation of standing criminal protective order

constituted separate acts because conduct described

in long form information was susceptible to separation

into parts despite close proximity of acts), cert. granted,

330 Conn. 947, 196 A.3d 327 (2018); State v. James E.,

154 Conn. App. 795, 833-834, 112 A.3d 791 (2015) (two

counts of assault of elderly person considered separate

acts or transactions because conduct described in information was susceptible to separation into parts despite

victim being shot twice in short period of time), aff’d,

327 Conn. 212, 173 A.3d 380 (2017).

In an attempt to support his argument, the defendant

cites to White v. Commissioner of Correction, supra,

170 Conn. App. 433–34, seemingly for the proposition

that when a burglary is in progress, actions taken after

entry into a home may be considered as part of an

uninterrupted course of conduct in furtherance of the

burglary .6 The relevant portion of our decision in White

did not address a double jeopardy argument, but rather

addressed, following our Supreme Court’s decision in

State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008),

whether a defendant’s conduct that gave rise to a kidnapping conviction was incidental to the commission

of a burglary.7

Id., 433. We disagree, therefore, with the

defendant’s analogy.

Framed differently, the defendant essentially argues

that the home invasion, specifically the robbery that

gave rise to the home invasion, was incidental to the

completion of the larceny that gave rise to the burglary
charge. Our court rejected a similar claim in State v.

Gemmell, 151 Conn. App. 590, 603–604, 94 A.3d 1253,

cert. denied, 314 Conn. 915, 100 A.3d 405 (2014), in

which the defendant argued that, according to Salamon,

his conviction of home invasion was incidental to the

charges of violation of a protective order or unlawful

restraint. In rejecting the defendant’s claim, the court

noted that Salamon was applicable only to the state’s

kidnapping statutes, and not to other crimes. Id. We

similarly reject the defendant’s claim in the present

case.

In conclusion, the burglary in the first degree and

home invasion charges arose from a transaction that

was susceptible to separation into parts. Accordingly,

the defendant’s conviction of both offenses did not violate his constitutional protection against double jeopardy. Because we conclude that the charges arose from

separate acts, we need not move to the second step of

our double jeopardy analysis.

The judgment is affirmed.

In this opinion the other judges concurred.

1 General Statutes § 53a-101 (a) provides in relevant part: ‘‘A person is

guilty of burglary in the first degree when . . . (3) such person enters or

remains unlawfully in a dwelling at night with intent to commit a crime

therein.’’

2 General Statutes § 53a-100aa (a) provides in relevant part: ‘‘A person is

guilty of home invasion when such person enters or remains unlawfully in

a dwelling, while a person other than a participant in the crime is actually

present in such dwelling, with intent to commit a crime therein, and, in the

course of committing the offense: (1) Acting either alone or with one or

more persons, such person or another participant in the crime commits or

attempts to commit a felony against the person of another person other than

a participant in the crime who is actually present in such dwelling . . . .’’

3 Practice Book § 43-22 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.’’

4 We note that the defendant did not seek a bill of particulars to aid in

our analysis.

5 Robbery is defined in General Statutes § 53a-133, which provides in

relevant part: ‘‘A person commits robbery when, in the course of committing

a larceny he uses or threatens the immediate use of physical force upon

another person for the purpose of . . . compelling the owner of such property or another person to deliver up the property or to engage in other

conduct which aids in the commission of the larceny.’’ (Emphasis added.)

6 The defendant argues in his reply brief that one of the state’s arguments

in the present case is analogous to one of its arguments in White, in which

it argued that the commission of the burglary was completed upon entry

into the home and, therefore, any actions subsequent to the burglary were

not incidental to the burglary. Although the state’s brief in the present case

does state that the burglary was completed upon entry into the dwelling,

the state also acknowledged that the burglary continued as long as the

defendant and Maner remained in the dwelling. By use of the word ‘‘completed,’’ the state appears to mean that liability for burglary attached upon

entry into the dwelling.

7

In Salamon, our Supreme Court reexamined this state’s kidnapping statutes in holding that a defendant could not be convicted of kidnapping if

restraint of a victim was merely incidental in the commission of a separate

offense. See State v. Salamon, supra, 287 Conn. 509.