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*********************************************** 
STATE OF CONNECTICUT v. OMAR MILLER

(AC 40217)

Alvord, Prescott and Moll, Js.

Syllabus

The defendant, who previously had been convicted of the crime of murder,

appealed to this court from the judgment of the trial court denying his

motion to correct an illegal sentence. In his motion to correct an illegal

sentence, the defendant claimed that his sentence of thirty-five years of

incarceration violated, inter alia, the prohibition in the state constitution

against cruel and unusual punishment. Specifically, the defendant

claimed that, despite the fact that he was nineteen years old at the time

he committed the offense, the court unconstitutionally failed to consider

mitigating factors related to his young age, which it would have been

constitutionally required to consider had he committed the offense when

he was less than eighteen years old. The trial court sua sponte denied

the defendant’s motion to correct an illegal sentence, without a hearing,

and the defendant appealed to this court. After the defendant filed a

motion requesting that the trial court comply with the applicable rule

of practice (§ 64-1) by either filing a written memorandum of decision

or by stating its decision orally in open court and then providing a

signed copy of the transcript, the court ordered the parties to appear for

the purpose of orally stating its decision on the record and, subsequently,

signed a transcript of its oral decision and filed it with this court. Held

that the trial court improperly denied the defendant’s motion to correct

an illegal sentence without first providing him with a meaningful opportunity to be heard on the motion: because that court was not authorized

to dispose summarily of the motion pursuant to the applicable rule of

practice (§ 43-22), or any other relevant legal authorities, an opportunity

for a hearing was necessary prior to disposing of the entire proceeding

on the defendant’s motion, and the proceeding that took place after the

court already had denied the motion to correct an illegal sentence did

not constitute a sufficient opportunity for the defendant to be heard,

as a careful review of the entire proceeding, including the statements

of the court, demonstrated that the court had already decided to deny

the motion and that the purpose of the subsequent proceeding was

limited to the court’s compliance with § 64-1 by orally stating the decision

that it had reached months before; moreover, given that the defendant

had attempted to raise an issue of first impression under our state

constitution, namely, whether the increased understanding of psychology and brain science justifies interpreting our state constitutional guarantees protecting against cruel and unusual punishment to apply to

individuals who were nineteen years old when they committed the underlying offense, he was entitled to make an evidentiary record of any facts

that would be relevant to that novel claim, including evidence of the

underlying brain science that would justify treating a nineteen year old

like a seventeen year old, and the court frustrated the defendant’s right

to assert fully his claim by sua sponte adjudicating his motion without

the benefit of an opportunity to be heard.

Argued September 24—officially released December 18, 2018

Procedural History

Substitute information charging the defendant with

the crime of murder, brought to the Superior Court in

the judicial district of New London, where the defendant was presented to the court, Stanley, J., on a plea

of guilty; judgment of guilty in accordance with the

plea; thereafter, the court, Strackbein, J., denied the

defendant’s motion to correct an illegal sentence, and

the defendant appealed to this court; subsequently, the

matter was transferred to our Supreme Court, which
transferred the matter back to this court. Reversed;

further proceedings.

Kevin W. Munn, with whom, on the brief, was

Michael W. Brown, for the appellant (defendant).

Lawrence J. Tytla, supervisory assistant state’s attorney, with whom, on the brief, was Michael L. Regan,

state’s attorney, for the appellee (state).
Opinion

PRESCOTT, J. The defendant, Omar Miller, appeals

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

illegal sentence. The defendant claims on appeal that

the court improperly denied his motion to correct an

illegal sentence without first conducting a hearing on

the merits of the motion. We agree and, accordingly,

reverse the judgment of the trial court and remand

the case for further proceedings in accordance with

this opinion.1

The record reveals the following undisputed facts

and procedural history, which are relevant to our resolution of this appeal. On September 27, 1991, the defendant pleaded guilty to murder, in violation of General

Statutes (Rev. to 1991) § 53a-54a. The defendant was

nineteen years of age when he committed the offense.

After he entered his plea, but before he was sentenced,

he escaped from the custody of the Commissioner of

Correction. On November 6, 1991, the trial court, Stanley, J., sentenced the defendant, in absentia, to a thirtyfive year term of incarceration. He remained at large

until 1997, when he was apprehended in New York City

and ultimately returned to Connecticut to begin serving

his sentence.

On June 2, 2016, the defendant filed a pro se motion

to correct an illegal sentence pursuant to Practice Book

§ 43-22.2 The essence of the claim raised in the defendant’s motion is that the thirty-five year sentence

imposed on him by Judge Stanley violated article first,

§§ 8 and 9, of our state constitution’s prohibition against

cruel and unusual punishment.3 Specifically, the defendant asserted that, despite the fact that he was nineteen

years old at the time he committed the offense, the

court unconstitutionally failed to consider mitigating

factors related to his young age, as it would be constitutionally required to had he committed the offense when

he was less than eighteen years old.

On June 30, 2016, the trial court, Strackbein, J., sua

sponte denied the defendant’s motion. Notice of the

denial was sent to the defendant on July 5, 2016. On

August 18, 2016, the defendant appealed from the denial

of his motion to correct an illegal sentence.4

On September 1, 2016, in order to perfect his appeal,

the defendant filed a motion requesting that the trial

court comply with Practice Book § 64-1 by either filing

a written memorandum of decision setting forth the

factual and legal basis for denying his motion to correct

an illegal sentence or by stating its decision orally in

open court and then providing a signed copy of the

transcript.5 Upon receipt of the defendant’s § 64-1 notice

from the appellate clerk’s office, the trial court ordered

the parties to appear on September 29, 2016, for the

purpose of orally stating its decision on the record.

After doing so, the court signed a transcript of its oral
decision and filed it with this court. Additional facts

and procedural history will be set forth as necessary.

The defendant claims that the trial court improperly

denied his motion to correct an illegal sentence without

first providing him an opportunity to be heard on the

motion. The state claims that the court provided the

defendant an adequate hearing on his motion at the

September 29, 2016 proceeding. We agree with the

defendant.

We begin by setting forth our standard of review.

Whether the court is required to hold a hearing prior

to disposing of a motion to correct an illegal sentence

presents a question of law subject to plenary review.

See Green v. Commissioner of Correction, 184 Conn.

App. 76, 82, 194 A.3d 857, cert. denied, 330 Conn. 933,

195 A.3d 383 (2018); State v. LaVoie, 158 Conn. App.

256, 268, 118 A.3d 708, cert. denied, 319 Conn. 929, 125

A.3d 203 (2015), cert. denied, U.S. , 136 S. Ct.

1519, 194 L. Ed. 2d 604 (2016). Furthermore, to the

extent that we are called upon to construe our rules of

practice, that process is ‘‘governed by the same principles as those regulating statutory interpretation. . . .

The interpretation and application of a statute, and thus

a Practice Book provision, involves a question of law

over which our review is plenary.’’ (Internal quotation

marks omitted.) Meadowbrook Center, Inc. v. Buchman, 328 Conn. 586, 594, 181 A.3d 550 (2018).

We first address whether a hearing is required before

disposing of a motion to correct an illegal sentence.

Practice Book § 43-22 does not contain any language

that explicitly or implicitly permits the court to dispose

of a motion to correct an illegal sentence without first

providing an opportunity for a hearing. Additionally,

we are not aware of, nor have the parties directed our

attention to, any statutes or case law expressly or

implicitly authorizing a court to dispose of a motion to

correct an illegal sentence without a hearing.

Although we have construed other provisions of our

rules of practice to allow the court to dispose of a

petition or motion without a hearing; see, e.g., Practice

Book § 23-24; Green v. Commissioner of Correction,

supra, 184 Conn. App. 81–84;6 no language in Practice

Book § 43-22 can be construed to permit such action.

Because the court is not authorized to dispose summarily of a motion to correct an illegal sentence pursuant to Practice Book § 43-22, or any other relevant legal

authorities, we conclude that an opportunity for a hearing was necessary before disposing of the entire proceeding on the defendant’s motion.

Next, we reject the state’s argument that the ‘‘hearing’’ that took place on September 29, 2016, during

which the court sought to comply with Practice Book

§ 64-1, constituted a sufficient opportunity for the

defendant to be heard. By the time the defendant
appeared in court on September 29, 2016, the court

already had denied the motion to correct an illegal

sentence. Specifically, the court, Strackbein, J., sua

sponte denied the motion in chambers, without a hearing, and sent notice of this decision to the defendant.

The purpose of the September 29, 2016 proceeding was

to memorialize the court’s decision to deny the motion

to correct an illegal sentence and to set forth the factual

and legal basis for that ruling. By September 29, 2016,

the defendant already had appealed from the denial of

his motion and sought the trial court’s compliance with

§ 64-1.7

We recognize that aspects of the proceeding arguably

could be construed as constituting a hearing on the

motion. For example, during the proceeding, the defendant was given a brief opportunity to discuss the merits

of his motion to correct an illegal sentence. The defendant stated that he was ‘‘trying to make a case of first

impression based upon the brain science . . . that an

individual’s brain does not fully develop until the age

of twenty-five.’’

Additionally, at one point the court stated that: ‘‘[O]n

the motion to correct [an] illegal sentence that’s in front

of me today, I have to deny [the motion] . . . .’’ This

statement, read in isolation, might suggest that the merits of the motion to correct an illegal sentence were

considered anew at the proceeding. It was also, however, stated on multiple occasions throughout the proceeding that the court already had made its decision

and that the hearing was solely for the purpose of putting that decision on the record. Therefore, we conclude

that the purpose of this proceeding was limited to the

court’s compliance with Practice Book § 64-1 by orally

stating the decision that it had reached months before.

Our conclusion is fully supported by a careful review

of the entire proceeding. For example, the court

explained: ‘‘The motion that’s in front of us really today

[is] a motion for the court to render a memorandum of

decision, but we need to back up on that to go over what

[the] motion to correct [an] illegal sentence actually was

and what the state’s position is on that.’’ Accordingly,

it is apparent that any discussion of the merits was

strictly for the purpose of explaining the court’s prior

ruling. The court also stated to the defendant: ‘‘Because

you wanted a memorandum of decision, this transcript

will serve as that.’’ The court again stated: ‘‘For today’s

purposes, the issue was you said, I was nineteen years

old and I was a juvenile. That’s why I declined to go

forward, because that’s legally insufficient. So, you’re

having a hearing now. You requested for the court to

have a memorandum of decision regarding that . . .

and that’s why we’re here today.’’ (Emphasis added.)

The court’s statements demonstrate that it had already

decided to deny the motion to correct an illegal sentence and that the purpose of the hearing simply was
to comply with Practice Book § 64-1.

Furthermore, during the September 29, 2016 proceeding, the state argued: ‘‘There’s a pro se motion to correct

[an] illegal sentence . . . filed with the court [on] July

18, 2016. . . . It’s my understanding that Your Honor

reviewed the allegation in the motion, and determined

on the face of it that there was no cause for it, and

summarily denied the motion to correct [an] illegal sentence. [The defendant], apparently, has chosen to pursue an appeal, and my understanding is that—I don’t

know the mechanism by which it was returned to the

court for Your Honor to make a record and provide a

basis for the ruling that Your Honor made. . . . As

such, [the defendant is] entitled to a hearing to determine if he should have been afforded relief.’’ Therefore,

the state acknowledged at the hearing that the court

already had summarily denied the motion to correct an

illegal sentence, and that the purpose of the hearing

was for the judge to provide a basis for the ruling that

the court had already made. Although the supervisory

assistant state’s attorney concluded by stating that the

defendant is entitled to a hearing to determine whether

he should be afforded relief, the decision already had

been made by the court summarily.8 We, therefore, conclude that the proceeding held on September 29, 2016,

did not constitute an adequate hearing on the merits

of the defendant’s motion.

A more fulsome discussion of the contours of the

defendant’s claim is helpful to explain why the trial

court’s failure to provide the defendant with a hearing

was improper. ‘‘Although the unique aspects of adolescence had long been recognized in the [United States]

Supreme Court’s jurisprudence, it was not until [more

recent cases] that the court held that youth and its

attendant characteristics have constitutional significance for purposes of assessing proportionate punishment under the eighth amendment [to the United States

constitution].’’ (Footnote omitted.) State v. Riley, 315

Conn. 637, 644–45, 110 A.3d 1205 (2015), cert. denied,

U.S. , 136 S. Ct. 1361, 194 L. Ed. 2d 376 (2016).

In Miller v. Alabama, 567 U.S. 460, 465, 132 S. Ct. 2455,

183 L. Ed. 2d 407 (2012), the United States Supreme

Court held that the imposition of a mandatory life sentence without the possibility of parole on an individual

who was less than eighteen years old when the offense

was committed violates the eighth amendment prohibition on cruel and unusual punishment. This court, in

discussing these recent cases, recognized that ‘‘[e]ighth

amendment jurisprudence relating to the sentencing of

juvenile offenders unequivocally recognizes a juvenile

offender as an individual who has not attained the age

of eighteen.’’ Haughey v. Commissioner of Correction,

173 Conn. App. 559, 571, 164 A.3d 849, cert. denied, 327

Conn. 906, 170 A.3d 1 (2017).

In his motion, the defendant has attempted to raise
an issue of first impression under our state constitution.

Specifically, he contends that the constitutional protections that prevent the imposition of a life sentence on

a person less than eighteen years old without adequate

consideration by the sentencing court of the defendant’s

youth and immaturity should be extended under our

state constitution to all individuals who are less than

twenty years old when they commit the offense.

Although this court has declined to afford such protections to individuals who are eighteen years or older

pursuant to our federal constitution; see id.; we have

not yet had occasion to decide whether our state constitution provides greater rights in this context. In the

defendant’s view, the increased understanding of psychology and brain science that underlies our eighth

amendment jurisprudence; see State v. Riley, supra, 315

Conn. 645; justifies interpreting our state constitutional

guarantees protecting against cruel and unusual punishment to apply to individuals who were nineteen years

old when they committed the underlying offense.

We express no opinion regarding the merits of this

novel claim. We do note, however, that at least one

other state has entertained a similar claim under its

respective state constitution. See, e.g., People v. House,

72 N.E.3d 357, 388–89 (Ill. App. 2015) (defendant who

was nineteen years old when offense was committed

entitled under state constitution to consideration of his

youth and immaturity before imposition of mandatory

life sentence), appeal denied and vacated, Docket No.

122134, 2018 WL 6242309 (Ill. November 28, 2018), and

appeal denied, Docket No. 122140, 2018 WL 6242310

(Ill. November 28, 2018); see also State v. O’Dell, 183 Wn.

2d 680, 696, 358 P.3d 359 (2015) (pursuant to statutory

sentencing scheme, defendant who was eighteen years

old at time of commission of offense entitled to have

his youth considered as mitigating factor). In order to

pursue this novel claim, including any subsequent

appellate review thereof, the defendant in the present

case was entitled to make an evidentiary record of any

facts that would be relevant to it, including evidence of

the underlying brain science that would justify treating

a nineteen year old like a seventeen year old.

In the defendant’s motion to correct an illegal sentence, the defendant requested that ‘‘the court [give]

him a reasonable opportunity . . . to present a complete biographical, sociological, and psychological profile of himself; expert testimony explaining the

relationship between adolescent brain development

and behavioral development, including impulsivity,

decision-making judgment, understanding of consequences, and the effects of peer influences; and expert

witness [testimony] applying these concepts of adolescent brain and brain behavioral development to the

defendant’s biological, sociological, and psychological

profile.’’ (Footnote omitted.) By sua sponte adjudicating

his motion without the benefit of an opportunity to be
heard, the trial court frustrated the defendant’s right to

assert fully his claim, including making any evidentiary

presentation that he believed necessary. Prior to the

denial of the motion, the defendant was not advised

regarding his right to counsel,9 allowed to call witnesses, or given an opportunity to present expert testimony. Accordingly, we conclude that the court

improperly denied his motion without first providing

him a meaningful opportunity to be heard.

The judgment is reversed and the case is remanded

for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

1 The defendant also claims that the trial court improperly (1) failed to

adequately protect his right to counsel under State v. Casiano, 282 Conn.

614, 922 A.2d 1065 (2007), and (2) denied his motion to correct an illegal

sentence on the merits. Because we conclude that the trial court improperly

denied the motion to correct an illegal sentence without first conducting a

hearing, we do not reach the merits of these claims. Additionally, on remand

the defendant will have an opportunity to obtain counsel from the trial court

in accordance with Casiano.

2 Practice Book § 43-22 provides: ‘‘The 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.’’

3 The defendant also argues that his sentence violated his constitutional

right to be free from cruel and unusual punishment, as protected by the

eighth and fourteenth amendments to the United States constitution.

4 The defendant initially appealed to this court (AC 39539). The defendant’s

appeal was transferred to our Supreme Court (SC 19766), but later was

transferred back to this court (AC 40217).

5 Practice Book § 64-1 is titled ‘‘Statement of Decision by Trial Court;

When Required; How Stated; Contents’’ and provides in relevant part: ‘‘(a)

The trial court shall state its decision either orally or in writing, in all of

the following: (1) in rendering judgments in trials to the court in civil and

criminal matters, including rulings regarding motions for stay of executions,

(2) in ruling on aggravating and mitigating factors in capital penalty hearings

conducted to the court, (3) in ruling on motions to dismiss under Section

41-8, (4) in ruling on motions to suppress under Section 41-12, (5) in granting

a motion to set aside a verdict under Section 16-35, and (6) in making any

other rulings that constitute a final judgment for purposes of appeal under

Section 61-1, including those that do not terminate the proceedings. The

court’s decision shall encompass its conclusion as to each claim of law

raised by the parties and the factual basis therefor. If oral, the decision shall

be recorded by a court reporter, and, if there is an appeal, the trial court

shall create a memorandum of decision for use in the appeal by ordering

a transcript of the portion of the proceedings in which it stated its oral

decision. The transcript of the decision shall be signed by the trial judge

and filed with the clerk of the trial court. . . .

‘‘(b) If the trial judge fails to file a memorandum of decision or sign a

transcript of the oral decision in any case covered by subsection (a), the

appellant may file with the appellate clerk a notice that the decision has

not been filed in compliance with subsection (a). The notice shall specify

the trial judge involved and the date of the ruling for which no memorandum

of decision was filed. The appellate clerk shall promptly notify the trial

judge of the filing of the appeal and the notice. The trial court shall thereafter

comply with subsection (a).’’

6

In Green v. Commissioner of Correction, supra, 184 Conn. App. 81–84,

this court interpreted the language of Practice Book § 23-24 to permit a

habeas court to dispose of a petition for habeas corpus without a hearing

by ‘‘declining to issue the writ’’ if the court concluded, among other things,

that the court lacked jurisdiction over the writ.

7 Neither party filed a motion for reconsideration or to vacate the prior

judgment. The judgment denying the defendant’s motion rendered on June

30, 2016, was not set aside or opened prior to the proceeding on September

29, 2016.

8 Additionally, we note that the judgment file is consistent with our conclu-
sion that the court’s decision to deny the motion was made prior to the

hearing. The judgment file provides: ‘‘On June 30, 2016, the [c]ourt, having

reviewed the motion in chambers, denied the defendant’s motion to correct

[an] illegal sentence. On September 29, 2016, having heard the parties, the

[c]ourt reiterated its June 30 decision and stated reasons on the record,

denying the defendant’s motion to correct [an] illegal sentence.’’

9 At the September 29, 2016 proceeding, the defendant requested counsel

to help him develop this claim. The defendant stated: ‘‘Your Honor, I’m

asking for standby counsel to be able to assist me so I can . . . obtain the

case law and actually refile this as an amended [Practice Book §] 43-22,

setting forth my claims.’’ The defendant had standby counsel at the proceeding; however, he was not canvassed by the judge on his request for counsel.

Although the defendant used the term ‘‘standby counsel,’’ this was not

consistent with his request for assistance developing case law, as legal

research is beyond the scope of the responsibilities of standby counsel. See

State v. Fernandez, 254 Conn. 637, 658, 758 A.2d 842 (2000) (‘‘[T]he role of

standby counsel is essentially to be present with the defendant in court and

to supply the limited assistance provided for in Practice Book § 44-5, the

provision governing the function of standby counsel. We further clarify that

standby counsel does not, however, have any obligation to perform legal

research for the defendant.’’ [Footnote omitted.]), cert. denied, 532 U.S. 913,

121 S. Ct. 1247, 149 L. Ed. 2d 153 (2001).