STATE v. MCGEE—DISSENT

BISHOP, J., dissenting. Finding that the trial court

had jurisdiction to hear the motion to correct an illegal

sentence filed by the defendant, Frank McGee, my colleagues in the majority analyze the defendant’s claim

on the merits and, finding none, reverse the court’s

dismissal and remand the case to the trial court with

direction to deny the motion. Unlike my colleagues, I

do not believe that the trial court had jurisdiction to

hearthis motion, as I view it as no more than a collateral

attack on the defendant’s conviction.1 Therefore, I

would affirm the dismissal of the motion, albeit not for

the reasons stated by the trial court.

This case began with the July 5, 2015 filing of a motion

to correct an illegal sentence by the (then) self-represented defendant. In that motion, the defendant claimed

that his sentences for two counts of robbery in the

second degree were illegal because they constituted

two punishments for the commission of one offense.

Nowhere in his motion did he make any argument that

his sentences, themselves, violated double jeopardy

except for his argument that they flowed from convictions that he claimed violated his right not to be convicted twice for one offense.

Also, it is notable that nowhere in his motion or

any of the supporting documents that he filed, either

personally or through counsel, did the defendant specify the relief he sought except by the caption of his

motion to ‘‘correct an illegal sentence.’’ After being

appointed, pursuant to State v. Casiano, 282 Conn. 614,

627–28, 922 A.2d 1065 (2007), to review the defendant’s

petition, counsel filed a report in which she indicated

her belief that there was a sound basis to the motion.

Counsel’s analysis consisted entirely of a discussion

of whether the offenses of which the defendant was

convicted were, in fact, the same offense for double

jeopardy purposes. From her analysis, counsel concluded that the two counts of robbery constituted only

one offense and, therefore, the defendant’s double jeopardy rights were violated when he was convicted and

sentenced on both counts. In reaching this conclusion,

counsel asserted no claim that the sentences, themselves, violated double jeopardy apart from the fact that

they flowed from flawed convictions. On the basis of

her assessment, counsel concluded: ‘‘As a result, the

court must vacate one of the robbery convictions

and sentences.’’2

With respect to the relief the defendant seeks, his

brief provides no more illumination than his motion

or counsel’s sound basis analysis. While the defendant

repeats his claim that his double jeopardy rights were

violated when he was sentenced for two counts of robbery in the second degree, his entire analysis focuses
on whether his underlying conduct constituted two

offenses, as charged and found by the jury, or simply

two alternative ways of committing the same offense.

In the concluding portion of his brief, the defendant

states: ‘‘For the same reasons articulated by [the Appellate Court] and the Supreme Court, the defendant’s

conviction for two counts of robbery, second, violates

the double jeopardy clause by receiving multiple punishments for the same crime.’’3

I first turn to the general principles that guide my

analysis of the court’s lack of jurisdiction to hear the

defendant’s motion. At common law, once a court renders a judgment of conviction and sentences a defendant, the court loses jurisdiction over the defendant

and the sentence, unless the court expressly has been

authorized to act. State v. Lawrence, 281 Conn. 147,

154, 913 A.2d 428 (2007). We know, as well, that there

is no legislative or constitutional grant of continuing

jurisdiction to give the trial court power to correct a

sentence. Id. Finally, we know that there is, however,

a common-law exception to this rule, which permits a

court, at any time, to correct an illegal sentence. Id.,

154–55. Practice Book § 43-22 is the embodiment of

that common-law exception. It 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.’’4 Practice Book § 43-22.

It is axiomatic in Connecticut jurisprudence that

‘‘Practice Book rules do not ordinarily define subject

matter jurisdiction. General Statutes § 51-14 (a) authorizes the judges of the Superior Court to promulgate

rules regulating pleading, practice and procedure in

judicial proceedings . . . . Such rules shall not

abridge, enlarge or modify any substantive right nor

the jurisdiction of any of the courts.’’(Internal quotation

marks omitted.) State v. Lawrence, supra, 281 Conn.

155. Thus, ‘‘[b]ecause the judiciary cannot confer jurisdiction on itself through its own rule-making power,

[Practice Book] § 43-22 is limited by the common-law

rule that a trial court may not modify a sentence if the

sentence was valid and its execution has begun. . . .

Therefore, for the trial court to have jurisdiction to

consider the defendant’s claim of an illegal sentence,

the claim must fall into one of the categories of claims

that, under the common law, the court has jurisdiction

to review.’’ (Citation omitted.) Id.

Our decisional law teaches that there are four categories of claims cognizable under Practice Book § 43-22.

‘‘[A]n 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. . . . In accordance

with this summary, Connecticut courts have considered

four categories of claims pursuant to § 43-22. The first
category has addressed whether the sentence was

within the permissible range for the crimes charged.

. . . The second category has considered violations of

the prohibition against double jeopardy. . . . The third

category has involved claims pertaining to the computation of the length of the sentence and the question of

consecutive or concurrent prison time. . . . The fourth

category has involved questions as to which sentencing

statute was applicable.’’ (Citations omitted; internal

quotation marks omitted.) Id., 156–57.5

From my review of decisional law on this topic, it is

apparent that confusion abounds on the question of the

jurisdiction of the trial court to hear a motion to correct

an illegal sentence. On one hand, there is a stream of

cases which hold that the focus of a motion to correct

an illegal sentence must be on the sentencing procedure

and not on the trial proceedings. But, there is also a

countercurrent of cases which appear to suggest that

a motion to correct an illegal sentence may properly

be utilized to correct dual convictions for single

offenses. The disarray is palpable from the number of

reversals by this court on the basis of our determination,

on review, that the trial court either incorrectly determined it had no jurisdiction when it did, or it exercised

jurisdiction when it was lacking.6 My colleagues in the

majority have not righted the ship. Thus, our course in

this jurisprudence remains aimless, lending confusion

and uncertainty to litigants and the trial bench as well.

It is high time to find the proper course.

We and our Supreme Court, have opined that a

motion to correct an illegal sentence must focus on

the sentencing proceedings, and may not be used as a

collateral attack on one’s conviction. In State v. Mollo,

63 Conn. App. 487, 776 A.2d 1176, cert. denied, 257

Conn. 904, 777 A.2d 194 (2001), we affirmed the trial

court’s decision holding that Practice Book § 43-22 does

not authorize the trial court to vacate a conviction. In

Mollo, we concluded: ‘‘The defendant does not claim

that the court imposed the sentence in an illegal manner

but, rather, that the concept of illegal sentence under

Practice Book § 43-22 includes any sentence based on

a voidable conviction. We do not agree.’’(Internal quotation marks omitted.) Id., 491. In State v. Koslik, 116

Conn. App. 693, 977 A.2d 275, cert. denied, 293 Conn.

930, 980 A.2d 916 (2009), we expressly followed Mollo

and observed: ‘‘Our Supreme Court has concluded that

to invoke successfully the court’s jurisdiction with

respect to a claim of an illegal sentence, the focus cannot be on what occurred during the underlying conviction. . . . In order for the court to have jurisdiction

over a motion to correct an illegal sentence after the

sentence has been executed,the sentencing proceeding,

and not the trial leading to the conviction, must be

the subject of the attack.’’ (Citations omitted; internal

quotation marks omitted.) Id., 699.
Later, in State v. Smith, 150 Conn. App. 623, 92 A.3d

975, cert. denied, 314 Conn. 904, 99 A.3d 1169 (2014),

we reaffirmed our view of the narrow scope of Practice

Book § 43-22 in our statement that: ‘‘The purpose of

. . . [Practice Book] § 43-22 is not to attack the validity

of a conviction by setting it aside but, rather to correct

an illegal sentence or disposition, or one imposed or

made in an illegal manner.’’ (Internal quotation marks

omitted.) Id., 635; accord State v. Starks, 121 Conn.

App. 581, 591–92, 997 A.2d 546 (2010). The same point

was made, again, in a slightly different manner in State

v. Saunders, 132Conn.App. 268, 270, 50A.3d 321 (2011),

cert. denied, 303 Conn. 924, 34 A.3d 394 (2012); accord

State v. Parker, 295Conn. 825, 835, 992 A.2d 1103 (2010).

In State v. Saunders, supra, 132 Conn. App. 271, we

restated language found in Mollo that ‘‘the relief allowed

by . . . [Practice Book] § 43-22 . . . require[s], as a

precondition, a valid conviction.’’ (Internal quotation

marks omitted.)

We have held, as well, that the fact that the defendant

frames his motion as an attack on his sentence, if, in

reality, his focus is on his underlying conviction, the

court will not have jurisdiction pursuant to Practice

Book § 43-22. State v. Wright, 107 Conn. App. 152, 944

A.2d 991, cert. denied, 289 Conn. 933, 958 A.2d 1247

(2008). In Wright, a case with significant parallels to

the case at hand, a panel of this court found that the trial

court had no jurisdiction even though the defendant

assailed his sentence as a violation of his protection

against double jeopardy. Id., 157–58. There, the defendantfiled a motion to correct an illegal sentence approximately three and one-half years after his sentencing,

in which he claimed that his sentence violated his constitutional protection against double jeopardy. Id., 154–

56. A panel of this court agreed with the trial court’s

dismissal on jurisdictional grounds. In its opinion, the

panel observed: ‘‘The defendant claims that the court

had jurisdiction to correct his sentence because it violated his constitutional protection against double jeopardy. Specifically, he argues that he could not be

convicted as an accessory to murder because the information did not include an accessorial liability charge.

He claims that the polling of the jurors demonstrated

that he was ‘acquitted’ as being the principal in the

crime. For that reason, he argues that the sentence

imposed for his conviction as an accessory to murder

violates the prohibition against double jeopardy.’’

(Footnote omitted.) Id., 155. In concluding that the trial

court had correctly determined it had no jurisdiction,

the panel in Wright observed: ‘‘In the present case, the

defendant’s claim, by its very nature, presupposes an

invalid conviction. The defendant does not claim that

the sentence he received exceeded the maximum statutory limits prescribed for the crime for which he was

convicted. He also does not claim that he was denied

due process at his sentencing hearing or that his sen-
tence is ambiguous or internally contradictory. If the

defendant’s claim were to fall into any of those categories, Practice Book § 43-22 would be the proper vehicle

by which he could invoke the trial court’s jurisdiction.

Because the defendant’s claim falls outside that set

of narrow circumstances in which the court retains

jurisdiction over a defendant once that defendant has

been transferred into the custody of the commissioner

of correction to begin serving his sentence, the court

lacks jurisdiction to consider the claim pursuant to a

motion to correct an illegal sentence under Practice

Book § 43-22. . . .

‘‘We conclude that the defendant’s claim that his sentence is illegal because it violates his constitutional

protection against double jeopardy is actually a claim of

an improper conviction, which is, in reality, a collateral

attack on his conviction and does not fall within the

purview of Practice Book § 43-22.’’ (Citation omitted;

footnote omitted.) Id., 157.

In State v. Starks, supra, 121 Conn. App. 590, this

court expressly followed Wright in holding that, notwithstanding a defendant’s nominal attack on his sentence, where his claim is, in reality, an attack on his

conviction, the court lacks jurisdiction under Practice

Book § 43-22 to hear the motion. There, we stated: ‘‘Our

Supreme Court has concluded that to invoke successfully the court’s jurisdiction with respect to a claim of an

illegal sentence, the focus cannot be on what occurred

during the underlying conviction. . . . In order for the

court to have jurisdiction over a motion to correct an

illegal sentence after the sentence has been executed,

the sentencing proceeding, and not the trial leading

to the conviction, must be the subject of the attack.’’

(Internal quotation marks omitted.) Id. The court in

Starks concluded: ‘‘Insofar as this portion of the defendant’s motion to correct constituted a collateral attack

on his conviction and, thus, was outside of the court’s

jurisdiction, the court should have dismissed, rather

than denied, this portion of the motion. See, e.g., State

v. Wright, [supra, 107 Conn. App. 157–58].’’ State v.

Starks, supra, 590.

Notwithstanding Wright, our subsequent express

adherence to it, and the several cases in which we have

held that a Practice Book § 43-22 motion may not be

utilized as a vehicle to attack one’s conviction, we

appear to have sanctioned just that approach in State

v. Santiago, 145 Conn. App. 374, 74 A.3d 571, cert.

denied, 310 Conn. 942, 79 A.3d 893 (2013), a case which

I am unable to distinguish from Wright. Both Wright

and Santiago involve defendants who filed motions to

correct illegal sentences on the basis of double jeopardy, but resulted in different outcomes on appeal. In

Wright, the trial court dismissed the defendant’s motion

as a collateral attack on his conviction, over which the

court had no continuing jurisdiction. We affirmed the
court’s determination on appeal. State v. Wright, supra,

107 Conn. App. 158. In Santiago, the trial court also

dismissed the defendant’s motion for lack of jurisdiction, but on appeal, we reversed, ordering instead that

the court deny the motion on the basis that the defendant had made a double jeopardy claim even though

it, too, attacked his conviction. State v. Santiago, supra,

384. From my perspective Wright and Santiago cannot

be harmonized.

To be sure, the defendant in Santiago, unlike the

defendant in the case at hand who received concurrent

sentences, alleged that the imposition of consecutive

sentences on the two charges of which he was convicted, which arose out of the same incident, violated

his rights against double jeopardy. Id., 377. In Santiago,

we determined that the trial court did have jurisdiction

over a motion to correct an illegal sentence because

he had founded his claim on an allegation of double

jeopardy, language which we apparently then thought

adequate to confer jurisdiction. Id., 379–80. Having further reviewed the underpinnings to Santiago, I have

concluded that it is inconsistent with our prior jurisprudence that a motion to correct an illegal sentence may

not be used as a vehicle to attack one’s conviction even

if framed as an illegal sentence claim. Thus, I have

concluded, with respect, that our decision in Santiago

was incorrect and should not be followed.7

I believe that the holding in Wright is applicable to

the case at hand. In opining that a motion to correct

an illegal sentence may not be used as a vehicle to

collaterally attack a sentence, the court in Wright stood

on solid ground and within the parameters of its common law antecedents.

That said, Santiago does notrepresent the only crosscurrent to the view that a court, pursuant to a motion to

correct an illegal sentence, may not affect a conviction.

Rather, it finds some support in a few decisions in which

Practice Book § 43-22 appears to have been legitimized

as a vehicle to alter a conviction and not merely a

sentence. In State v. Cator, 256 Conn. 785, 781 A.2d 285

(2001), the defendant had been convicted of murder,

felony murder, conspiracy to commit murder, kidnapping in the second degree and conspiracy to commit

kidnapping in the second degree. Id., 787–88. On direct

appeal to our Supreme Court, the defendant claimed,

inter alia, that his convictions and sentences for both

murder and felony murder violated his right to the protection of double jeopardy as did his convictions for

conspiracy to commit kidnapping and conspiracy to

commit murder, because the murder and felony murder

convictions were for the same act, and his two conspiracy convictions were supported by evidence of a single

agreement to kidnap and murder the victim. Id., 803–

808. In its opinion, our Supreme Court observed, with

apparent approval, that, aftertrial, the trial court, pursu-
ant to the state’s motion to correct an illegal sentence,

had merged the defendant’s convictions for murder and

felony murder and imposed one sentence for the

merged offenses. The court opined: ‘‘In this case, the

trial court had jurisdiction to correct the defendant’s

sentences pursuant to Practice Book § 43-22 . . . .

Both the trial court and this court, on appeal, have the

power, at any time, to correct a sentence that is illegal.’’

(Internal quotation marks omitted.) Id., 803–804.8 The

court in Cator stated, as well: ‘‘It is clear in this case

that the trial court at first imposed an illegal sentence.

That courtretained jurisdiction to correct that sentence

pursuant to Practice Book § 43-22. Accordingly, it was

proper for the trial court to merge the convictions for

murder and felony murder pursuant to [State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert. denied,

501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991)].

Once this was done, the defendant’s claim of double

jeopardy became moot.’’ State v. Cator, supra, 805.9

This court later appears to have applied the reasoning

of Cator to sanction the action of the trial court in

vacating a conviction pursuant to § 43-22. In State v.

Brown, 153 Conn. App. 507, 101 A.3d 375 (2014), cert.

granted, 319 Conn. 901, 122 A.3d 636 (2015) (appeal

withdrawn August 15, 2016), on direct appeal, we

observed: ‘‘The defendant . . . claims that his conviction of certain charges violated his constitutional right

against double jeopardy. In his reply brief and at oral

argument before this court, however, the defendant

subsequently withdrew certain aspects of this claim.

He did so specifically because the state conceded that

the failure to merge the conviction of conspiracy to

commit larceny in the third degree with the conviction

of conspiracy to commit burglary in the third degree

violated principles of double jeopardy, and because the

court later granted his motion to correct an illegal sentence and vacated without prejudice the conviction of

one of the two conspiracy counts.’’ Id., 532.

While recognizing the Cator line of cases, I do not

believe the intent of the court, in these cases, was to

open wide the door to attacks on convictions through

the guise of a Practice Book § 43-22 motion, nominally

assailing a sentence. To do so, as I believe, with respect,

the majority now does, would vitiate the limited purpose of § 43-22, and unreasonably expand the court’s

postconviction jurisdiction beyond its common-law

bounds. Nevertheless, I believe that the holdings of the

cases cited herein, in toto, create currents and crosscurrents in need of calming by a higher power.

The majority holds that the trial court had jurisdiction

over the defendant’s claims in the case at hand because

he claimed, as the basis of his motion, that his convictions and sentences violate the constitutional proscription against double jeopardy. As noted, however, we

know that where a defendant only nominally attacks

his sentence in order to attempt to fit a conviction claim
into the ambit of a Practice Book § 43-22 motion, a

reviewing court will look to the substance and not the

precise language of a defendant’s motion to determine

if it is, in fact, a sentencing issue. In this case at hand,

however, as in Santiago, the majority appears to have

credited the defendant’s claim as a true sentencing

claim even though, like Wright, it is an attack on his conviction.

In order to calm this jurisprudence, it is appropriate

and useful to reflect on our Supreme Court’s characterization of a motion to correct an illegal sentence. In

State v. Francis, 322 Conn. 247, 259–60, 140 A.3d 927

(2016), the court opined: ‘‘A motion to correct an illegal

sentence constitutes a narrow exception to the general

rule that, once a defendant’s sentence has begun, the

authority of the sentencing court to modify that sentence terminates. . . . Indeed, [i]n order for the court

to have jurisdiction over a motion to correct an illegal

sentence after the sentence has been executed, the sentencing proceeding [itself] . . . must be the subject of

the attack. . . . Therefore, the motion is directed to

the sentencing court, which can entertain and resolve

the challenge most expediently.’’ (Internal quotation

marks omitted.) While the court, in Francis, assessed

whether appointed counsel in a motion to correct an

illegal sentence should be required to write an Anders

brief10 in order to be relieved of further representation,

in coming to the conclusion that counsel could be

excused through a less rigorous process, the court characterized a motion for the correction of an illegal sentence in a manner instructive to our present analysis.

There, the court opined: ‘‘In light of the limited and

straightforward nature of the claims that may be raised

in a motion to correct, the potential merits of such a

motion frequently will be apparent to the court and

appointed counsel from a simple review of the sentencing record. . . . Accordingly, we can perceive no reason why appointed counsel, having carefully reviewed

the record for possible sentencing errors in light of the

governing legal principles and determined that none

exist, must then be required to file an Anders brief

identifying anything in the record that might arguably

support a countervailing view, or why the trial court

should then be required to undertake a full and independentreview of the record to determine whetherit agrees

with defense counsel’s assessment of the defendant’s

claimed sentencing error.’’(Citations omitted.) Id., 265–

66. And yet, to decide this defendant’s claim on the

merits, both the trial court and the majority on review,

were required to do just that.

Unfortunately, the observations of the court in Francis regarding the narrow focus and expedited process

of a motion to correct an illegal sentence do not reflect

the course such motions have taken over the past several years. Rather, it appears that the filing of a motion

to correct an illegal sentence has gained in practice as
courts on review have muddied the jurisdictional waters

with a result that more and more defendants appear

willing to give it a try, even though, in the main, the

vast majority of them are ultimately unsuccessful.11

To be true to Francis, I believe, respectfully, we need

to reset the parameters of a motion to correct an illegal

sentence. If it is intended to be an expedited and limited

review of the sentencing procedure, perhaps we should

return to a time period in which such a motion must

be filed. And, to harmonize the State v. Polanco, 308

Conn. 242, 61 A.3d 1084 (2013), and Miranda line of

cases; see footnote 9 of this dissenting opinion; perhaps

it should be made clearthat only when it is obvious from

the criminal information and verdict that convictions

violate the protection against double jeopardy that a

court may vacate a conviction and resentence a defendant pursuant to Practice Book § 43-22 and that such

remedial action can only be taken before a defendant

has commenced serving his or her sentence.12 In the

absence of clarification, it is likely that an increasing

number of defendants, in reliance on Santiago, this

case, and the Polanco-Miranda cases will be filing

motions to correct illegal sentences which are simply

collateral attacks on convictions which could have been

timely appealed.

Because I believe the majority has mistakenly followed Santiago, which veered from its antecedents,

and because, I believe, this court has expanded the

reach of Polanco and Miranda beyond their intended

reach, I would affirm the trial court’s dismissal.13

Accordingly, I respectfully dissent.

1 The majority asserts that ‘‘the defendant did not claim any error associated with his underlying convictions . . . .’’ This assertion is contradicted

by the record. Indeed, in the concluding paragraph of the defendant’s opening

brief, he states: ‘‘For the same reasons articulated by our court and the

Supreme Court, the defendant’s conviction for two counts of robbery, second, violates the double jeopardy clause by receiving multiple punishments

for the same crime. . . . As a result, the defendant respectfully requests

that this court find that the trial court erred, that the robbery, second, statute

simply provides alternate ways in which to commit the same crime and that

his conviction and sentence violate the protections of the double jeopardy clause.’’

Additionally, it is noteworthy that the defendant’s argument focuses

entirely on whether his convictions for two counts of robbery in the second

degree violated the prohibition against double jeopardy. Nowhere does he

make a claim that his concurrent sentences or the sentencing proceedings,

themselves, violated his double jeopardy rights. Rather, he attacks the trial

proceedings. As a consequence, in order to review the defendant’s claim,

on the merits, the trial court and the majority on appeal were required to

examine the trial record and preconviction proceedings, an examination

beyond the scope of the court hearing a motion to correct an illegal sentence.

2

Interestingly, counsel did not suggest, in this sound basis analysis, which

of the convictions should be vacated. Presumably the court could, if it found

jurisdiction and merit to the defendant’s quest, simply pick one of the

convictions at random and its attendant sentence, leaving the other in place,

an outcome beyond the court’s authority and, in my view, a legally

absurd proposition.

3

In characterizing the sentencing as the trigger for a double jeopardy

claim, counsel conflated sentencing with conviction and, doing so, ignored

the basic law that if the defendant was, in fact, twice convicted for one

offense, the convictions themselves constitute punishment in violation of

the protection against double jeopardy. Thus, apart from any sentencing
issue, the defendant could have directly appealed from his convictions on

the basis of double jeopardy. See Rutledge v. United States, 517 U.S. 292,

116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996); State v. Cator, 256 Conn. 785, 781

A.2d 285 (2001). He now apparently seeks, through collateral attack, to do

that which he did not do on direct appeal. In doing so, counsel for the

defendant acknowledged her belief that she now is required to file a motion

to correct an illegal sentence as a precondition to later filing a habeas

petition attacking the conviction on ineffectiveness grounds. See Cobham

v. Commissioner of Correction, 258 Conn. 30, 39, 779 A.2d 80 (2001) (‘‘[w]e

. . . conclude that, in order to challenge an illegal sentence, a defendant

either must appeal the sentence directly or file a motion to correct the

sentence pursuant to [Practice Book] § 43-22 with the trial court before

raising a challenge for the first time in a petition for a writ of habeas

corpus’’). Query whether the rule of Cobham applies to require a defendant

to file a motion nominally attacking a sentence as illegal but which is, in

fact, only a collateral attack on one’s convictions.

4 Practice Book § 43-22 has an interesting pedigree. The rule’s predecessor,

Practice Book (1982) § 935, had provided: ‘‘The judicial authority who sentenced the defendant may, within ninety days, correct an illegal sentence

or other illegal disposition, or he may correct a sentence imposed in an

illegal manner or any other disposition made in an illegal manner.’’ In December, 1982, on the recommendation of then Superior Court Judge Frank

Kinney, the rules committee of the Superior Court amended the rule to its

present form. The transmittal regarding Judge Kinney’s recommendation

stated: ‘‘Judge Kinney suggests that we adopt a rule permitting the correction

of an illegal sentence at any time instead of the 90 day limitation.’’ Memorandum to Carl Testo from Frank Buonocore (December 15, 1982) (copy contained in the file of this case in the Appellate Court clerk’s office).

The transmittal also makes reference to our Supreme Court’s opinion in

State v. Pina, 185 Conn. 473, 477–78, 440 A.2d 962 (1981), in which the

trial court had sentenced the defendant to periods of incarceration for the

commission of two crimes, but did not specify whether the terms were to run

consecutively or concurrently. Discovering this omission, the state moved to

correct the illegal sentence more than ninety days after its imposition. Id.,

482 n.7. After the trial court responded by specifying that the sentences

were to be served consecutively, the defendant appealed on the basis of

double jeopardy. Id., 477–78. Our Supreme Court rejected the defendant’s

double jeopardy argument on the ground that the constitutional protections

against double jeopardy are not as rigorous regarding sentencing as they

are regarding convictions. The court set aside the judgment, nevertheless,

on the ground that because the state’s motion had been filed more than

ninety days after the date of sentencing, the trial court was without power

to act. Id., 482. From this chain of events, all we can conclude is that the

time limit for filing a motion to correct an illegal sentence was removed

from the rule of practice in 1982.

5 As noted, an illegal sentence includes a sentence that violates a defendant’s right to protection from double jeopardy. In my view, the reference

to double jeopardy is tied to the sentence and not to the underlying conviction. If not, then the jurisprudence stating that a Practice Book § 43-22

motion presumes a valid conviction has no meaning. The majority’s view

that one may legitimately utilize this rule of practice as a vehicle to attack

multiple convictions as violating the protection against double jeopardy

represents an unwarranted expansion of the scope of this rule beyond its

common-law basis. As noted by several cases cited herein, the focus of the

court when confronted with a § 43-22 motion must be on the sentencing

and not on the underlying conviction. The majority appears to have the

view that double jeopardy claims are in a separate category and that a

defendant may utilize § 43-22 to attack both convictions and sentencings

which are claimed to violate double jeopardy protections. While I agree that

the State v. Cator, supra, 256 Conn. 785, State v. Chicano, 216 Conn. 699,

584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed.

2d 1062 (1991), overruled in part by State v. Polanco, 308 Conn. 242, 248,

261, 61 A.3d 1084 (2013), and the State v. Polanco, 308 Conn. 242, 61 A.3d

1084 (2013), line of cases appear to suggest that a court, pursuant to § 43-22,

may vacate a conviction, I cannot harmonize those cases with our Supreme

Court’s view of § 43-22, as expressed in State v. Francis, 322 Conn. 247,

140 A.3d 927 (2016), and State v. Lawrence, supra, 281 Conn. 147.

In my view, Practice Book § 43-22, to be true to its origins, is available

only to correct an illegal sentence. And, indeed, our jurisprudence reflects

a range of sentencing-only double jeopardy claims that fall within the ambit
of § 43-22.

For example, in State v. Tabone, 279 Conn. 527, 902 A.2d 1058 (2006), the

defendant argued that his sentence was illegal under two separate grounds:

1. the sentence exceeded the maximum statutory punishment; and 2. the

sentence violated double jeopardy. In his second claim, the defendant argued

in the trial court and on appeal that his sentence violated his protection

against double jeopardy because it ‘‘constitutes cumulative multiple punishments exceeding what the legislature intended . . . .’’ (Internal quotation

marks omitted.) Id., 532. In deciding the defendant’s first claim, our Supreme

Court held that a sentence of ten years of imprisonment and ten years of

special parole exceeds the maximum statutory limit for the offense of sexual

assault in the second degree. Id., 533. Although the court did not reach the

defendant’s double jeopardy claim; id., 544 n.7; the case is an apt demonstration of a colorable double jeopardy claim as it relates only to sentencing.

Similarly, in State v. Baker, 168 Conn. App. 19, 145 A.3d 955, cert. denied,

323 Conn. 932, 150 A.3d 232 (2016), the defendant asserted a colorable,

although unsuccessful, double jeopardy claim focused solely on punishment

when he asserted that the sentence he received upon being convicted for

the possession of a weapon or dangerous instrument in a correctional facility

amounted to a double punishment in light of the administrative punishment

he had received from the Department of Correction for the same behavior.

Additionally, in Steve v. Commissioner of Correction, 39 Conn. App. 455,

665 A.2d 168, cert. denied, 235 Conn. 929, 667 A.2d 555 (1995), this court

followed federal precedent in holding that ‘‘time served on [a] vacated

sentence must be treated and credited as postconviction confinement. To

fail to do so would be a violation of the fifth amendment guarantee against

double jeopardy.’’ Id., 463. In so holding, we followed the United States

Supreme Court’s decision in North Carolina v. Pearce, 395 U.S. 711, 89 S.

Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled in part by Alabama v. Smith,

490 U.S. 794, 798–99, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989), which

addressed a sentencing-only double jeopardy claim. There, the defendant

was convicted of assault with the intent to commit rape, a conviction that

was later reversed, and, upon retrial, the defendant was convicted and

resentenced. At the time of his resentencing, the defendant had already

served six and one-half years of incarceration on his original conviction,

onto which the court added the new sentence. The defendant argued that

this violated his protection against double jeopardy and the Supreme Court

agreed, holding that ‘‘the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already

exacted must be fully credited in imposing sentence upon a new conviction

for the same offense. If, upon a new trial, the defendant is acquitted, there

is no way the years he spent in prison can be returned to him. But if he is

reconvicted, those years can and must be returned—by subtracting them

from whatever new sentence is imposed.’’ (Footnote omitted; internal quotation marks omitted.) Id., 718–19.

A number of state court decisions, in addition to Steve, have followed

the Pearce reasoning in the resentencing context. For example, in State v.

Taparra, 82 Haw. App. 83, 919 P.2d 995 (1996), the Intermediate Court of

Appeals of Hawaii, applying Pearce, held that the defendant, upon resentencing, must be credited for the days he had already served in prison, the

portion of the fine he had already paid, and the community service hours

he had already served. Id., 89.

In Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L. Ed. 872 (1873), the United

States Supreme Court addressed another type of sentencing-only double

jeopardy claim. There, a defendant was convicted of stealing federal mail

bags, a crime which carried a punishment of either imprisonment or a fine.

The defendant, however, was sentenced to both imprisonment and a fine.

The United States Supreme Court held that subjecting the defendant to both

punishments violated double jeopardy. Id., 176. The Ex parte Lange holding

sparked over a century’s worth of cases nationwide, which highlight the

fact that a defendant very well may bring a double jeopardy claim challenging

only his sentence, independent from his conviction. For instance, in United

States v. Versaglio, 85 F.3d 943 (2dCir.), modified afterreh. on other grounds,

96 F.3d 637 (2d Cir. 1996), the defendant was convicted of criminal contempt

and sentenced, like the defendant in Ex parte Lange, to pay a fine and to

a term of imprisonment. He argued that, statutorily, he could only be sentenced to one or the other and, since he had already paid his fine, the prison

sentence should be vacated. Id., 945. The United States Court of Appeals

for the Second Circuit Court, relying on Ex parte Lange and its progeny,

agreed with the defendant and stated ‘‘the rule of Lange . . . [precludes]
imposition of the alternative punishment of imprisonment.’’ Id., 948.

The Nevada Supreme Court reaffirmed its commitment to the Ex parte

Lange line of reasoning in 2007 in Wilson v. State, 123 Nev. 587, 594, 170

P.3d 975 (2007). There, the defendant was convicted of four counts of

production of child pornography and four counts of possession of child

pornography. On direct appeal, the court reversed three of the four production convictions as violative of double jeopardy and remanded the case

for resentencing. Thereafter, the defendant was resentenced and the court

increased his sentences for the possession convictions, and changed the

sentences from running concurrently to running consecutively. The Nevada

Supreme Court held that the court’s ‘‘resentencing on the lawful portions

of [the defendant’s] conviction surviving direct appeal violated [the defendant’s] rights against double jeopardy.’’ Id., 597.

Courts have also addressed claims in which defendants argue that their

double jeopardy rights had been violated by courts adding requirements to

their sentence after they were released from custody or probation. See State

v. Schubert, 212 N.J. 295, 53 A.3d 1210 (2012), wherein the New Jersey

Supreme Court held that the trial court’s action in amending its judgment

to add a requirement of community supervision for life after the defendant

had been discharged from probation violated the defendant’s double jeopardy rights. Id., 316; see also People v. Williams, 14 N.Y.3d 198, 925 N.E.2d

878, 899 N.Y.S.2d 76, cert. denied, 562 U.S. 947, 131 S. Ct. 125, 178 L. Ed.

2d 242 (2010), wherein the New York Court of Appeals held that defendants

who had been released from prison before resentencing proceedings were

commenced had a legitimate expectation of finality of their originally

imposed sentences and, thus, to impose previously omitted terms of postrelease supervision at resentencing violated their double jeopardy rights.

Id., 217.

6

In the following cases, this court, on review, reversed the trial court

either for deciding a matter on the merits when we determined it did not

have the jurisdiction to do so, or we reversed the trial court for having

dismissed a motion for want of jurisdiction where we determined that the

court, in fact, had jurisdiction: State v. McClean, 173 Conn. App. 62,

A.3d (2017) (trial court dismissed motion to correct illegal sentence for

lack of jurisdiction, on appeal, court determined there was jurisdiction; on

remand from our Supreme Court, this court affirmed original dismissal for

lack of jurisdiction); State v. Williams-Bey, 173 Conn. App. 64, A.3d

(trial court dismissed motion to correct illegal sentence for lack of

jurisdiction, on appeal, court determined there was jurisdiction; on remand

from our Supreme Court, this court affirmed original dismissal for lack of

jurisdiction), cert. granted on other grounds, 326 Conn. 920, A.3d

(2017); State v. Abraham, 152 Conn. App. 709, 99 A.3d 1258 (2014) (trial

court incorrectly dismissed motion to correct for lack of jurisdiction); State

v. Meikle, 146 Conn. App. 660, 79 A.3d 129 (2013) (trial court incorrectly

exercised jurisdiction in denying motion to correct); State v. St. Louis, 146

Conn. App. 461, 76 A.3d 753 (trial court incorrectly exercised jurisdiction

in denying motion to correct), cert. denied, 310 Conn. 961, 82 A.3d 628

(2013); State v. Santiago, 145 Conn. App. 374, 74 A.3d 571 (trial court

incorrectly dismissed motion forlack of jurisdiction), cert. denied, 310 Conn.

942, 79 A.3d 893 (2013); State v. Clark, 136 Conn. App. 421, 47 A.3d 391

(trial court incorrectly exercised jurisdiction in denying motion to correct),

cert. denied, 307 Conn. 906, 53 A.3d 221 (2012); State v. Henderson, 130

Conn. App. 435, 24 A.3d 35 (2011) (trial court incorrectly dismissed motion

for lack of jurisdiction), appeals dismissed, 308 Conn. 702, 66 A.3d 847

(2013); State v. Osuch, 124 Conn. App. 572, 5 A.3d 976 (trial court incorrectly

dismissed motion for lack of jurisdiction), cert. denied, 299 Conn. 918, 10

A.3d 1052 (2010); State v. Starks, 121 Conn. App. 581, 997 A.2d 546 (2010)

(trial court incorrectly exercised jurisdiction in denying portion of motion

to correct); State v. Delgado, 116 Conn. App. 434, 975 A.2d 736 (2009) (trial

court incorrectly exercised jurisdiction in denying motion to correct); State

v. Taylor, 91 Conn. App. 788, 882 A.2d 682 (trial court incorrectly exercised

jurisdiction in denying motion to correct), cert. denied, 276 Conn. 928, 889

A.2d 819 (2005); State v. Francis, 69 Conn. App. 378, 793 A.2d 1224 (trial

court incorrectly exercised jurisdiction in denying motion to correct), cert.

denied, 260 Conn. 935, 802 A.2d 88, cert. denied, 537 U.S. 1056, 123 S. Ct.

630, 154 L. Ed. 2d 536 (2002).

7

I am aware, of course, of the stated policy of this court that one panel

will not overturn the decision of a prior panel. See Consiglio v. Transamerica Ins. Group, 55 Conn. App. 134, 138 n.2, 737 A.2d 969 (1999) (‘‘[T]his

court’s policy dictates that one panel should not, on its own, reverse the
ruling of a previous panel. The reversal may be accomplished only if the

appeal is heard en banc.’’). Whatever the source of that policy, it has not

been enshrined in a discrete rule of practice and has become a rule of thumb

only by practice. That said, I do not dispute that following this policy

enhances collegiality on the court as well as confidence in the reliability

and consistency of the Appellate Court generally. In the rare circumstance

in which both panels in the original and subsequent appeals are comprised

of the same judges, however, I believe we could revisit our earlier opinion

if we thought doing so would serve justice, as we would then only be

reviewing our own work. In Chung v. Commissioner of Correction, 245

Conn. 423, 434 n.7, 717 A.2d 111 (1998), the late Justice David M. Borden,

in disavowing a prior opinion he had authored, quoted Justice Robert Jackson who, in a somewhat parallel circumstance, opined: ‘‘Precedent, however,

is not lacking for ways by which a judge may recede from a prior opinion

that has proven untenable and perhaps misled others.’’ (Internal quotation

marks omitted.) Having gained time for reflection, if not wisdom, I now

believe that we erroneously misled the bench and bar in Santiago and, in

this instance, remorse begs correction either by this panel or on the next

rung of Connecticut’s judicial ladder.

8 Since Cator, the availability of an attack on one’s sentence on direct

appeal appears to have narrowed. In State v. Urbanowski, 163 Conn. App.

377, 384–85, 136 A.3d 236, cert. granted, 321 Conn. 905, 138 A.3d 280 (2016),

this court held that, where a defendant had not sought to correct an illegal

sentence by filing a Practice Book § 43-22 motion in the trial court, it is

inappropriate to raise an illegal sentence claim for the first time on direct

appeal. Also, in the context of a habeas corpus petition, our Supreme Court

has held that a petitioner who attacks his sentence or disposition as illegal,

and who did not first file a motion to correct an illegal sentence, may be

procedurally defaulted from later raising such a claim in a habeas petition.

Crawford v. Commissioner of Correction, 294 Conn. 165, 197–99, 982 A.2d

620 (2009). One can only speculate as to whetherthe holdings in Urbanowski

and Crawford have contributed to the surge of Practice Book § 43-22

motions. In the case at hand, counsel conceded her belief that she was

required to file such a motion in the trial court in order to preserve her

client’s later habeas opportunity. To me, such confusion makes it abundantly

clear that the court needs to clearly explicate the difference between a

sentencing claim and a conviction claim in the context of Practice Book

§ 43-22 and, if the two can be intertwined, the limited circumstances in

which that may be permitted.

9 Cator appears to have derived its pedigree from Chicano, in which our

Supreme Court opined that when a defendant is convicted of both a lesser

and greater offense, the proper course for the court is to merge the convictions into one. State v. Chicano, supra, 216 Conn. 725. More recently, our

Supreme Court has reversed that jurisprudence and now holds that the

proper course, in such a situation, is for the court to vacate the lesser

conviction and sentence on the conviction for the greater offense. State v.

Polanco, supra, 308 Conn. 245. Later, the rule of Polanco was expanded to

include situations involving cumulative convictions for the same offense.

See State v. Miranda, 317 Conn. 741, 755–56, 120 A.3d 490 (2015).

In this line of cases, it appears, from Cator, that the trial court has

jurisdiction to take such remedial action pursuant to Practice Book § 43-

22, notwithstanding that adherence to our Supreme Court in this regard

would appear to expand the jurisdiction of the trial court in a Practice Book

§ 43-22 circumstance to permit the court to affect both a conviction and an

attendant sentence.

10 ‘‘In Anders [v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d

493 (1967)], the United States Supreme Court outlined a procedure that is

constitutionally required when, on direct appeal, appointed counsel concludes that an indigent defendant’s case is wholly frivolous and wishes to

withdraw from representation. . . . Under Anders, before appointed counsel may withdraw, he or she must provide the court and the defendant with

a brief outlining anything in the record that may support the appeal, and

the defendant must be given time to raise any additional relevant points.

. . . Thereafter, the court, having conducted its own independent review

of the entire record of the case, may allow counsel to withdraw, if it agrees

with counsel’s conclusion that the appeal is entirely without merit.’’ (Citations omitted.) State v. Francis, supra, 322 Conn. 250 n.3.

11 My research for the time period 2000 through the end of 2016 reveals

that the number of Superior Court decisions on motions to correct illegal

sentences has dramatically increased over the past nearly two decades, with
a substantial acceleration in the past few years. From 2000 through 2006,

the numbers ranged from zero to three. From 2007 through 2012 the number

of filings ranged from five to twelve, and from 2013 through 2016 the numbers

ranged from five to twenty-four. Allowing for filings based upon the United

States Supreme Court’s juvenile justice decisions, the top number of that

range would be reduced by eight such filings in 2016, the highest year.

And, finally, the record puts in doubt the notion advanced by the court

in Francis that a motion to correct an illegal sentence should result in an

expedited hearing before the original sentencing judge. State v. Francis,

supra, 322 Conn. 259–60. Indeed, with respect to fifteen cases randomly

surveyed, the time period between sentencing and the hearing on the motion

to correct averaged 9.3 years, with a low of seven months and a high of

sixteen years and, understandably, the judge who heard the motion to correct

was the original sentencing judge in only one of those cases. Finally, it may

be factually, if not legally, interesting to note in regard to the fifteen surveyed

cases,thatthe defendants in fourteen of those cases were unsuccessful either

on the merits or because the court lacked jurisdiction to hear the motion.

12 This suggestion, if found sensible, could perhaps be accomplished by

the creation of a rule that, after conviction but before imposition of sentence,

either party may move to have a conviction vacated pursuant to either State

v. Polanco, supra, 308 Conn. 242, or State v. Miranda, supra, 317 Conn. 741.

13 At trial, the court initially dismissed the motion, not for want of jurisdiction but on the merits. The majority reverses only the form of the judgment.

I would affirm the judgment not for the reason stated by the trial court but

because the court had no jurisdiction. It is axiomatic that on appeal we

may affirm a trial court on alternative grounds. See Johnson v. Rell, 119 Conn.

App. 730, 736, 990 A.2d 354 (2010)(question of subject matterjurisdiction can

be raised sua sponte by the court).

In the case at hand, after oral argument, we asked counsel to brief the

question of whether the trial court had jurisdiction to hear the defendant’s

motion. The majority summarily concludes that both parties agree that the

court had jurisdiction over the defendant’s motion to correct. I think it is

a fair observation that while both parties stated their belief that the court

had jurisdiction, the state came to that conclusion on the basis of its belief

that we are constrained by Santiago. It is noteworthy that the state, nevertheless, offered its view that this jurisprudence may be incorrect and, accordingly, the state reserved its right to argue the question of jurisdiction should

this opinion be reviewed by the Supreme Court. In brief, and after reviewing

our jurisprudence in this regard, the state commented: ‘‘Notwithstanding

Connecticut jurisprudence suggesting that true double jeopardy claims may

be raised via a motion to correct an illegal sentence, that conclusion may

be misguided given the multifaceted nature of double jeopardy claims, which

come in various forms and can arise at various points in a prosecution. As

such, double jeopardy claims cannot be considered as purely relating to

sentencing.’’ Thus, I believe it would be more accurate to conclude that the

state feels constrained by our somewhat confusing jurisprudence on this

issue and not that the state embraces it as a correct understanding of the

parameters of Practice Book § 43-22.