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STATE OF CONNECTICUT v. JOHN YATES

(AC 35731)

Lavine, Prescott and Mihalakos, Js.

Argued December 11, 2014—officially released November 22, 2016*

(Appeal from Superior Court, judicial district of

Waterbury, Damiani, J. [judgment]; Fasano, J. [motion

to correct illegal sentence].)

John Yates, self-represented, the appellant

(defendant).

Jennifer F. Miller, deputy assistant state’s attorney,

with whom, on the brief, were Maureen Platt, state’s

attorney, and Eva B. Lenczewski, supervisory assistant

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

PRESCOTT, J. The defendant, John Yates, appeals

from the judgment of the trial court dismissing his

motion to correct an illegal sentence. The defendant

claims on appeal thatthe courtimproperly (1) permitted

appointed counsel to withdraw without first requiring

him to articulate the reasoning behind his determination

that there was no sound basis for the motion to correct

an illegal sentence, and (2) concluded that his sentence

had not been imposed in an illegal manner. We conclude

that only the form of the judgment is improper, and,

accordingly, we reverse the judgment dismissing the

defendant’s motion to correct an illegal sentence and

remand the case to the trial court with direction to

render judgment denying the defendant’s motion.

The record reveals the following relevant facts and

procedural history. The defendant was arrested and

charged in connection with an April 10, 2010 armed

robbery of a liquor store. On October 4, 2010, pursuant

to a plea agreement reached in accordance with State

v. Garvin, 242 Conn. 296, 699 A.2d 921 (1997),1

the

defendant entered guilty pleas to one count of robbery

in the first degree in violation of General Statutes § 53a134 (a) (2) and, on a part B information, to being a

persistent dangerous felony offender in violation of

General Statutes § 53a-40.2

In accordance with the Garvin agreement, the court, Damiani, J., agreed to sentence the defendant to eighteen years of incarceration,

suspended after fourteen years, with the right to argue

down to a sentence of eighteen years, suspended after

twelve years. The court, however, also advised the

defendant that he remained exposed to a possible sentence of up to forty-two and one-half years, of which

ten years was mandatory, and/or a fine of $15,000 if he

violated the terms of the Garvin agreement either by

failing to appear at the sentencing hearing, which was

scheduled for December 7, 2010, or by being arrested

with probable cause on any new charges prior to his

sentencing. The defendant acknowledged that he understood the terms of the plea agreement.3

Nevertheless, the defendant did not appear for his

sentencing hearing on December 7, 2010. Furthermore,

three new arrest warrants were issued forthe defendant

regarding three robberies that he allegedly committed

on November 2, 2010, after entering his plea.

The defendant eventually was apprehended, and the

court sentenced him on the original robbery and persistent offender charges at a hearing on February 9, 2011.

At that hearing, the court concluded that the defendant

had violated both conditions of his Garvin agreement.

First, the court found that the defendant had failed to

appear at the originally scheduled December 7, 2010

sentencing hearing. Second, after the defendant waived

his right to a Stevens hearing,4

the court found on the
basis of its review of the three arrest warrants and their

affidavits that there was probable cause to support the

warrants.5 On the basis of the defendant’s failure to

comply with the terms of his plea agreement, the court

opted to impose a flat sentence of twenty-two years of

incarceration, which, as a result,required the defendant

to serve eight years more of unsuspended jail time than

the originally agreed upon sentence under the Garvin agreement.

On March 18, 2011, the defendant was arraigned on

three counts of robbery in the first degree arising from

the three new arrest warrants. At that hearing, the following colloquy occurred between Judge Damiani and

the defendant:

‘‘The Court: [J]ust to make the record clear today,

you were before me some time ago after you failed to

appear for sentencing on a robbery of a liquor store, I

believe, and the indicated sentence was something

after—twenty after fourteen, I believe, and you had a

right to argue down to twenty after twelve and you

failed to show up in court, and then when they did

apprehend you, they had these three new robbery warrants against you, and when I sentenced you, I read the

affidavits.6 There was probable cause found by the judge

who issued the warrants and I gave you twenty-two

years on the old file and your lawyer explained to you,

you could have had what they call a Steven’s hearing

to force the state to bring in people to show there was

probable cause for your new arrest. Remember that?

‘‘The Defendant: Yes.

‘‘The Court: And you don’t want that hearing, right?

‘‘The Defendant: No.

‘‘The Court: Okay. And then I gave you the twentytwo years for the violation of the Garvin canvass, one

for failing to appear in court—I’m going to the same

place I told you, so don’t be—be worried—and forthe—

the new arrests. Do you understand that?

‘‘The Defendant: Yes.

‘‘The Court: Okay. So now I asked the state—there

was no sense in bringing these charges, but they bring

the charges. The warrants were served against you on

the three new robbery cases. The state has—we’ll put

on the record, they made contact with the victims. I’m

going to put you to plea on each of these three robberies

and I’m going to be giving you a year in jail on each

robbery to run concurrent with each other for one year

to serve on these three files—

‘‘The Defendant: Yeah.

‘‘The Court: —to be concurrent with the twenty-two

years that I’ve—I’ve already given you the time for

these three robberies when I upped you from fourteen

to twenty-two. Understood?
‘‘The Defendant: Yes.’’ (Emphasis added; footnote

added.)

The defendant then entered Alford pleas to each of

the three robbery charges,7 and the court rendered sentences in accordance with the preceding canvass. The

defendant expressed his appreciation to the court for

its fairness in sentencing.

Nevertheless, on December 14, 2012, the defendant

filed a self-represented motion to correct what he now

asserts is an illegal sentence. According to the defendant, his February 9, 2011 sentence was illegal because

the court improperly considered as a sentencing factor

the three pending arrest warrants and effectively sentenced him for the robberies alleged in those warrants,

despite the fact that, at that time, he had not yet been

arrested, charged, or arraigned on those alleged robberies.

The court, Fasano, J., appointed a special public

defenderfor the limited purpose ofreviewing the defendant’s motion to correct and determining if a sound

basis for such a motion existed in accordance with

State v. Casiano, 282 Conn. 614, 922 A.2d 1065 (2007).8

On January 30, 2013, the defendant’s appointed attorney, Joseph Yamin, reported back to the court. At that

time, he indicated to the court that he had reviewed

the defendant’s motion and researched all the issues

raised by the defendant therein. He then stated to the

court that he did ‘‘not find a sound basis for going

forward.’’ The court asked if counsel had already spoken with the defendant, and Yamin responded in the

affirmative, indicating that he had spoken with the

defendant the day before. The court granted Yamin

permission to withdraw his appearance at that time.

The court instructed the defendant that he could proceed with the motion to correct by himself, and the

defendant elected to continue to prosecute his motion

as a self-represented party.9

The court held a hearing on the merits of the motion

to correct an illegal sentence on March 13, 2013. One

week later, the court issued a memorandum of decision

in which it rejected the defendant’s arguments that his

sentence was imposed in an illegal manner, and concluded that the sentencing court’s consideration of the

pending arrest warrants fell well within the scope of

information that could be considered by the court at

sentencing, citing State v. Huey, 199 Conn. 121, 127,

505 A.2d 1242 (1986). The court found that the sentencing court properly had increased the defendant’s sentence by eight years more than the original plea

agreement because the defendant had ‘‘fail[ed] to

appear for sentencing, a Garvin violation, and his picking up three new arrest warrants for which the court

found probable cause; arguably, a Stevens violation.’’

The court further explained: ‘‘Though, technically, the
three arrest warrants had not been served at the time

of the sentencing in question, and, therefore, were not

new arrests as per Stevens, all parties were aware of

the existence of the warrants (alleged street robberies

to which the defendant had confessed) at the time of

the sentencing; probable cause clearly existed for the

arrests as was confirmed by the court, and the defense

waived any hearing rights to question the existence of

probable cause. To find, under these circumstances,

that the technical difference between having three warrants pending and actually being arrested on the warrants places this case outside the parameters of Stevens,

would be to exalt form over substance.’’ (Emphasis

in original.) Although Judge Fasano did not squarely

address the defendant’s suggestion that Judge Damiani,

in effect, had sentenced him for the three robberies at

that time, the court implicitly rejected that argument

by noting that the defendant later pleaded guilty to the

three robberies, for which he subsequently received

concurrent sentences. Despite having addressed the

merits of the defendant’s motion to correct an illegal

sentence, the court indicated that it was dismissing,

rather than denying, the motion. This appeal followed.

I

The defendant first claims that the court improperly

granted his appointed counsel’s motion to withdraw

his appearance without requiring him to articulate the

reasoning behind his determination that there was no

sound basis to pursue the defendant’s motion to correct

an illegal sentence. In his initial appellate brief, the

defendant asked us to establish a new procedural right

that would require an appointed counsel seeking to

withdraw from representing a defendant regarding a

motion to correct an illegal sentence to file a written

memorandum with the court that outlines the claims

raised by the defendant, the efforts counsel undertook

to investigate the factual and legal bases for those

claims, and the factual and legal bases for counsel’s

conclusion that the motion is frivolous. In response to

our requests for supplemental briefing in light of our

Supreme Court’s recent decision in State v. Francis, 322

Conn. 247, 140 A.3d 927 (2016), however, the defendant

modified his claim on appeal, stating in his supplemental brief that the court should not have allowed

appointed counsel to withdraw because he failed to

inform the defendant or the court, either in writing or

orally, of the ‘‘reasoning’’ underlying his conclusion that

there was no sound basis for the motion to correct

an illegal sentence. Under the circumstances, we are

not persuaded.

We begin our discussion with Casiano, in which our

Supreme Court first established that an indigent defendant has a limited right to postconviction assistance of

counsel in connection with a motion to correct an illegal

sentence. State v. Casiano, supra, 282 Conn. 627–28.
Specifically, according to Casiano, ‘‘a defendant has a

right to the appointment of counsel for the purpose of

determining whether a defendant who wishes to file [a

motion to correct an illegal sentence under Practice

Book § 43-22] has a sound basis for doing so. If

appointed counsel determines that such a basis exists,

the defendant also has the right to the assistance of

such counsel for the purpose of preparing and filing

such a motion and, thereafter, for the purpose of any

direct appeal from the denial of that motion.’’ Id. There

is no discussion in Casiano, however, about what particular procedure should be followed by counsel, or by

the trial court, if counsel appointed pursuantto Casiano

determines that there is no sound basis for a motion

to correct an illegal sentence, including how such a

determination should be communicated to counsel’s

client and to the court.

Recently, however, in State v. Francis, supra, 322

Conn. 247, our Supreme Court clarified the procedures

that should be followed before a court may allow counsel appointed pursuant to Casiano to withdraw from

representation. Our Supreme Court first rejected the

opinion of this court, as set forth in State v. Francis,

148 Conn. App. 565, 569, 86 A.3d 1059 (2014), rev’d,

322 Conn. 247, 140 A.3d 927 (2016), that courts and

appointed counsel should be required to follow Anderslike procedures before counsel can be permitted to

withdraw.10 State v. Francis, supra, 322 Conn. 251; see

also Anders v. California, 386 U.S. 738, 744, 87 S. Ct.

1396, 18 L. Ed. 2d 493 (1967) (establishing procedures

for withdrawal of indigent defendant’s appointed counsel in direct criminal appeals). Such procedures arguably could have included the requirements that counsel

file a so-called ‘‘Anders brief,’’ in which counsel would

refer to anything in the record that might arguably support the defendant’s position, and that the trial court

make its own evaluation, independent of counsel’s,

regarding the merits of the defendant’s claim that his

sentence either is illegal or was imposed in an illegal

manner.

Our Supreme Court in Francis held, however, that

‘‘the Anders procedure is not strictly required to safeguard the defendant’s statutory right to counsel in the

context of a motion to correct an illegal sentence.’’

State v. Francis, supra, 322 Conn. 251. The court reasoned that Anders procedures were established to protect a criminal defendant’s constitutional right to

counsel on a first appeal, and that a defendant’s right

to appointed counsel in proceedings on a motion to

correct an illegal sentence is not constitutional but statutory in nature, and, thus, does not warrant the same

level of protection. Id., 262–63; see also Pennsylvania

v. Finley, 481 U.S. 551, 559, 107 S. Ct. 1990, 95 L. Ed. 2d

539 (1987) (explaining that ‘‘full panoply of procedural

protections that the [c]onstitution requires . . . at trial

and on first appeal’’ are not needed when state elects
to provide legal assistance to indigent defendants in

postconviction proceedings). The court in Francis reasoned, in part, that unlike the varied and often complex

issues that arise in direct criminal appeals, the issues

that can be raised in a motion to correct an illegal

sentence are far more limited and straightforward in

nature,11 and ‘‘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.’’

State v. Francis, supra, 265.

As to the appropriate procedure to be followed, the

Supreme Court in Francis stated as follows: ‘‘[If] an

indigent defendant requests that counsel be appointed

to represent him in connection with the filing of a

motion to correct an illegal sentence, the trial court

must grant that request for the purpose of determining

whether a sound basis exists for the motion. See State

v. Casiano, supra, 282 Conn. 627. If, after consulting

with the defendant and examining the record and relevant law, counsel determines that no sound basis exists

for the defendant to file such a motion, he or she must

inform the court and the defendant of the reasons for

that conclusion, which can be done either in writing or

orally. If the court is persuaded by counsel’s reasoning,

it should permit counsel to withdraw and advise the

defendant of the option of proceeding as a self-represented party.’’ (Footnote omitted.) State v. Francis,

supra, 322 Conn. 267–68.

In the present case, unlike in Francis, the court properly appointed counsel in accordance with Casiano to

review the motion after the defendant filed it with the

court and prior to any hearing on the merits of the

motion. Counsel subsequently indicated to the court

orally on the record that he had reviewed the motion,

had researched all issues raised by the defendant, and

had spoken with the defendant about the motion prior

to reporting back to the court regarding his Casiano

review.12 There is no indication that counsel failed to

acted within the bounds of professional responsibility

in both evaluating the motion as filed by the defendant

and identifying any meritorious claim not raised in that

motion. See Stephen S. v. Commissioner of Correction,

134 Conn. App. 801, 810, 40 A.3d 796 (counsel strongly

presumed to have exercised reasonable professional

judgment in making all significant decisions), cert.

denied, 304 Conn. 932, 43 A.3d 660 (2012). Counsel

indicated that, on the basis of this review, he had determined that there was no sound basis for pursuing the

defendant’s motion to correct an illegal sentence.

It is true that counsel did not provide to the court a

detailed discussion or legal analysis of the soundness

of the defendant’s claims. Nevertheless, in light of the

generally limited scope of a motion to correct as recognized in Francis, we are not persuaded that this lacuna

constitutes reversible error under the unique circum-
stances of this case. As discussed more fully in part II

of this opinion, a review of the motion and the attached

relevant sentencing transcripts reveals that, on its face,

the defendant’s motion lacks a sound basis to proceed

because, among other things, it fails to recognize or

challenge the fact that the defendant violated his Garvin agreement by failing to appear for his original sentencing hearing, which violation, in and of itself,

exposed him to the sentence imposed by the court. The

court had a copy of the defendant’s motion before it

and had an opportunity to review it, along with its

attachments, which include transcripts of the proceedings before Judge Damiani, and the court file of the

underlying sentencing record. As the court in Francis

predicted, the potential merits of a motion to correct

an illegal sentence often will be readily apparent from

a simple review of the record. See State v. Francis,

supra, 322 Conn. 265. Here, the court was in a position

to evaluate independently the nature of the claims

raised in the motion and, if necessary, to question counsel regarding the reasoning underlying his no sound

basis determination. On the basis of the unique record

presented here, we are persuaded that counsel’s reasoning for his no sound basis determination, although not

fully articulated, was readily apparent to all from the

face of the record, and it would elevate form over substance to conclude that a remand is necessary to vindicate the newly envisioned procedure set forth in

Francis.

13 Accordingly, we conclude that the trial court

properly accepted counsel’s determination that there

was no sound basis for the defendant’s motion and

permitted him to withdraw from further representation

of the defendant.

II

Turning to the merits of the defendant’s motion to

correct an illegal sentence, the defendant also claims

on appeal that the court improperly determined that

his sentence had not been imposed in an illegal manner

and, thus, improperly dismissed his motion. The defendant asserts that the court mistakenly relied upon State

v. Huey, supra, 199 Conn. 121, which the defendant

maintains is irrelevant to his claim that his sentence

was imposed in an illegal manner. Specifically, the

defendant contends that ratherthan merely considering

the three pending arrest warrants as factors in crafting

an appropriate sentence, the court, in essence, sentenced him for the robberies alleged in those warrants.

The state counters that the court properly relied on

Huey in determining that the sentencing court had not

imposed the defendant’s sentence in an illegal manner

in that the court properly considered the defendant’s

subsequent criminal conduct as a factor in increasing

his sentence, along with his failure to appear for sentencing. The state further contends that the defendant’s

argument that he was sentenced on the unexecuted

arrest warrants at that time simply is belied by the
record. We agree with the state.

We begin with general legal principles, including our

standard ofreview. ‘‘[T]he jurisdiction of the sentencing

court terminates once a defendant’s sentence has

begun, and, therefore, that court may no longer take

any action affecting a defendant’s sentence unless it

expressly has been authorized to act. . . . Practice

Book § 43-22, which provides the trial court with such

authority, provides that [t]he judicial authority may at

any time correct an illegal sentence or other illegal

disposition, or it may correct a sentence imposed in an

illegal manner or any other disposition made in an illegal

manner. An illegal sentence is essentially one [that]

either exceeds the relevant statutory maximum limits,

violates a defendant’s right against double jeopardy,

is ambiguous, or is internally contradictory. . . . [A]

defendant may challenge his or her criminal sentence

on the ground that it is illegal by raising the issue on

direct appeal or by filing a motion pursuant to § 43-

22 with the judicial authority, namely, the trial court.’’

(Citations omitted; internal quotation marks omitted.)

State v. Tabone, 279 Conn. 527, 533–34, 902 A.2d 1058

(2006). ‘‘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.’’ Id., 534.

In State v. Huey, supra, 199 Conn. 126–27, our

Supreme Court described the broad discretion that a

sentencing court has in crafting a sentence and discussed the type of information that a sentencing court

properly may consider in imposing a sentence within

statutory limits. The court stated in part: ‘‘[I]f a sentence

is within statutory limits it is not generally subject to

modification by a reviewing court. . . . A sentencing

judge has very broad discretion in imposing any sentence within the statutory limits and in exercising that

discretion he may and should consider matters that

would not be admissible at trial. . . . To arrive at a just

sentence, a sentencing judge may consider information

that would be inadmissible for the purpose of determining guilt . . . evidence of crimes for which the defendant was indicted but neither tried nor convicted . . .

evidence bearing on charges for which the defendant

was acquitted . . . and evidence of counts of an indictment which has been dismissed by the government.’’

(Citations omitted; internal quotation marks omitted.)

Id., 126. A trial court’s discretion is not completely

unfettered; however, ‘‘[a]s long as the sentencing judge

has a reasonable, persuasive basis for relying on the

information which he uses to fashion his ultimate sentence, an appellate court should not interfere with his

discretion.’’ Id., 127.

Turning to the facts of the present case, the defendant

originally entered into a Garvin agreement in which

he agreed to plead guilty in exchange for a relatively
favorable sentence that, assuming he complied with the

terms of the agreement, imposed, at most, fourteen

years of unsuspended prison time. That plea was specifically conditioned upon his promises both to appear

for sentencing and to not be arrested with probable

cause for any additional criminal conduct. The defendant does not claim on appeal that he failed to understand the terms of his Garvin agreement, and he does

not challenge the court’s factual findings at sentencing

that he violated both conditions of that agreement. As

the sentencing court correctly explained at the time it

took the defendant’s plea, his potential exposure if he

violated the terms of the Garvin agreement amounted

to forty-two and one-half years of incarceration, of

which ten were mandatory. Thus, the court’s sentence

of a flat twenty-two years of incarceration fell well

within the legal statutory limits and the defendant’s

Garvin agreement.

The defendant nevertheless argues that the court

unlawfully sentenced him because it considered and

utilized the three unserved arrest warrants in determining his sentence and suggests that, for all intents and

purposes, the court sentenced him for the robberies

alleged in those warrants despite the fact that, at the

time, he had not been arrested on any new charges. The

defendant’s arguments lack merit for several reasons.

First, even if we were to conclude that, because the

three pending warrants had not yet been served, the

defendant technically had not breached the ‘‘no new

arrests’’ provision of the Garvin agreement, it is undisputed that the defendant also had failed to comply with

the Garvin agreement by failing to appear for the originally scheduled sentencing hearing. On the basis of that

independent breach alone, the defendant forfeited his

right to be sentenced under the Garvin agreement to

no more than fourteen years of unsuspended prison

time. Having clearly violated at least one aspect of the

Garvin agreement, the defendant was now exposed to

a possible sentence that included up to forty-two and

one-half years of incarceration. Any sentence imposed

by Judge Damiani up to that amount based on the defendant’s failure to appear for sentencing was expressly

permitted by the Garvin agreement and, thus, the sentence of twenty-two years was not imposed in an illegal manner.

Second, the defendant makes much of the fact that

the three arrest warrants had not yet been served on

him at the time of sentencing. The defendant, however,

does not challenge Judge Fasano’s findings that he was

fully aware of the warrants and the allegations that he

had committed three additional robberies. It is undisputed that the defendant understood that, pursuant to

the Garvin agreement, he was obligated to avoid an

arrest on any additional offense for which there was

probable cause. In essence, the defendant understood
that if he wanted to secure the favorable benefits of

the Garvin agreement, he could not engage in any additional criminal conduct prior to sentencing. The defendant elected not to challenge whether the three

warrants were supported by probable cause; see State

v. Stevens, supra, 278 Conn. 1; and the sentencing court

affirmed that they were. We agree with Judge Fasano’s

assessment that it would elevate form over substance,

for purposes of determining whether the defendant had

violated the terms of his Garvin agreement, to recognize any significance between having three valid warrants pending and actually having been arrested on

those warrants.

Third, as the trial court properly concluded in

rejecting the motion to correct an illegal sentence, it

was entirely appropriate under the broad discretion

afforded to sentencing courts, as set forth in State v.

Huey, supra, 199 Conn. 126–27, forthe sentencing judge

to have considered the pending arrest warrants and

affidavits in deciding what sentence to impose in light

of the defendant’s failure to comply with the terms of

the Garvin agreement. The defendant waived his right

at the sentencing hearing to challenge whether those

warrants were supported by probable cause, and he

did not raise any challenge at sentencing concerning

the authenticity or reliability of the three warrants. The

defendant advanced no argument that the arrest warrants fell outside of the information properly considered

by the sentencing court. Accordingly, there is nothing

in the record before us to suggest that the warrants

lacked the requisite minimal indicium of reliability necessary to be considered at sentencing.

Finally, on the basis of our thorough review of the

record, including the transcripts provided, we are satisfied that the court did not, as asserted by the defendant,

render de facto sentences on the robbery charges associated with the new arrest warrants. It only considered

the three additional robbery warrants in deciding to

increase the defendant’s sentence on the his conviction

of the original robbery and persistent offender charges.

The defendant was sentenced on those additional robbery charges only after he formally was arrested and

had voluntarily entered Alford pleas.

In arguing otherwise, the defendant relies on certain

statements made by the sentencing judge at his arraignment and sentencing on the three robbery charges. In

particular, the defendant references the court’s statement that it had ‘‘already given [him] the time for these

three robberies when [it] upped [him] from fourteen to

twenty-two.’’ Although we are aware that the colloquial

language used by the court, read in isolation, could

be misunderstood, we disagree with the defendant’s

interpretation that the eight year increase in his sentence on the original robbery and persistent offender

charges included additional time directly associated
with the three subsequent robberies. In context, the

court merely was attempting to explain the basis for

its decision to render relatively short and concurrent

sentences for those later robberies following the defendant’s Alford pleas. Because the court already had factored in the defendant’s additional criminal conduct at

the time it imposed the earlier sentence, it exercised its

discretion to limit the additional sentences accordingly.

There is simply no merit to the defendant’s claim that

the court sentenced him forthe robberies priorto taking

his plea on those charges.

We note that the trial court, having properly rejected

the arguments raised in the defendant’s motion on their

merits, technically should have denied rather than dismissed the motion to correct. Only if a defendant fails

to state a claim that brings a motion within the purview

of Practice Book § 43-22 should a court dismiss the

motion for lack of jurisdiction. Here, the court never

made a determination that the motion was jurisdictionally defective. Moreover, the defendant’s motion did

not merely raise a collateral attack on the judgment of

conviction, but, on its face, attacked the legality of the

sentence and/or the manner in which his sentence was

imposed. Accordingly, the motion properly invoked the

court’s jurisdiction, and, thus, the form of the judgment

is incorrect. See State v. McClean, 167 Conn. App. 781,

785, 144 A.3d 490 (2016).

The form of the judgment is improper, the judgment

dismissing the defendant’s motion to correct an illegal

sentence is reversed and the case is remanded with

direction to render judgment denying the defendant’s

motion.

In this opinion the other judges concurred.

* Following oral argument, we stayed this appeal sua sponte, absent objection by the parties, pending our Supreme Court’s decision in State v. Francis,

322 Conn. 247, 140 A.3d 927 (2016). The issue before the court in Francis

was whether this court properly had determined that a trial court must

follow procedures similar to those set forth in Anders v. California, 386

U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), before permitting counsel to

withdraw from postconviction representation of a defendant in proceedings

regarding a motion to correct an illegal sentence. On August 3, 2016, following the official release of the Supreme Court’s decision in Francis, we lifted

our stay and provided the parties with an opportunity to submit simultaneous

supplemental briefs addressing the effect, if any, of the Francis decision

on the claims raised in this appeal.

1

‘‘A Garvin agreement is a conditional plea agreement that has two possible binding outcomes, one that results from the defendant’s compliance

with the conditions of the plea agreement and one that is triggered by

his violation of a condition of the agreement.’’ (Internal quotation marks

omitted.) State v. Stevens, 278 Conn. 1, 7, 895 A.2d 771 (2006).

2 The defendant also admitted to a violation of probation. The defendant

previously was convicted in 2003 of robbery in the first degree for which

he received a sentence of four years suspended after eighteen months,

followed by thirty months of probation.

3 The court explained the terms as follows: ‘‘If you’re not here on that

date or if you pick up a new arrest, I read the police report, there’s probable

cause for the arrest, you’re exposed to forty-two and one half years, of

which ten is mandatory. Understand that?’’ To which, the defendant

responded: ‘‘Yes, Your Honor.’’ The court reiterated: ‘‘Make sure you’re here

and no new arrests.’’

4

In State v. Stevens, 278 Conn. 1, 11–13, 895 A.2d 771 (2006), our Supreme
Court held that an enhanced sentence that is imposed on the basis of a

defendant’s arrest on new charges prior to sentencing in violation of a

Garvin agreement does not violate due process provided that the defendant

is given an opportunity to contest whether any such subsequent arrest

was supported by probable cause. See also Council v. Commissioner of

Correction, 286 Conn. 477, 483–84 n.9, 944 A.2d 340 (2008).

5 At that time, the three arrest warrants had not been served; however,

the state later executed the warrants and charged the defendant with three

counts of first degree robbery in violation of § 53a-134 (a) (4).

6 We note that Judge Damiani incorrectly recalled the precise terms of

the Garvin agreement, which had an upper limit of eighteen years, not

twenty. The court’s failure to recall the precise terms, however, was inconsequential to the proceedings then before the court, and the error has not

been raised by the parties in the present appeal.

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

162 (1970).

8 Pursuant to our Supreme Court’s decision in Casiano, ‘‘[a]lthough the

[federal constitutional] right to appointed counsel extends to the first appeal

[as] of right, and no further . . . in Connecticut, a defendant who wishes

to file a motion to correct an illegal sentence has a [statutory] right [under

§ 51-296 (a)] to the appointment of counsel for the purpose of determining

whether . . . [there exists] a sound basis for doing so. If appointed counsel

determines that such a basis exists, the defendant also has the right to the

assistance of such counsel for the purpose of preparing and filing such a

motion and, thereafter, forthe purpose of any direct appeal from the denial of

that motion.’’ (Citation omitted; footnote omitted; internal quotation marks

omitted.) State v. Francis, 322 Conn. 247, 260, 140 A.3d 927 (2016).

9 The January 30, 2013 colloquy between the court and the parties was

as follows:

‘‘Attorney Yamin: Good morning, Joseph Yamin for Mr. Yates . . . . As

Your Honor, as discussed in chambers, I was appointed pursuant to State

v. Casiano to review Mr. Yates’ motion to correct an illegal sentence. I have

done so. I researched the issues brought up in that motion. At this point in

time, I do not find a sound basis for going forward.

‘‘The Court: So Attorney [Yamin], have you already talked to the

[defendant]?

‘‘Attorney Yamin: I have, Your Honor. I spoke with him yesterday.

‘‘The Court: All right. Mr. Yates, that doesn’t foreclose you from going

forward at some point. If you want to continue for the purposes of a hearing,

but Attorney [Yamin] has found there’s no merit under the guidelines with

respect to the motion [to correct an] illegal sentence.

The first issue is always whether or not this court even has jurisdiction.

At this juncture Attorney [Yamin], after a Casiano review, finds there’s no

merit. So the motion, if this is by way [of] a motion to withdraw, that would

be granted.

‘‘Attorney Yamin: He wants me to make clear, Your Honor, that I’m finding

there’s no sound basis for me to go forward as his attorney.

‘‘The Defendant: There could be merit but there’s not foundation.

‘‘The Court: What’s that?

‘‘The Defendant: There could be merit but not a sound basis.

‘‘The Court: After his review he found that there’s no merit to the claim,

I’m assuming that’s what you’re saying.

‘‘Attorney Yamin: Pursuant to Casiano, Your Honor, I’m finding no reason

for me to go forward, that’s correct.

‘‘The Court: All right. So, Mr. Yates, I’m going to put this down for a

hearing, if you wanted to go forward.

‘‘The Defendant: Yes, Your Honor. I would want to go forward with this.

I will ask for a two month continuance.

‘‘The Court: Well, it’s going to be longer than that.

‘‘The Defendant: Longer than that. I need time to prepare to go for the

case law to find everything on illegal sentence.

‘‘The Court: Not a problem.

‘‘The Defendant: And adequate time.

‘‘The Court: I’m going to put you down for March 13 at 2 p.m.

‘‘The Defendant: All right. Thank you very much.’’

Although the court gave the defendant a six week continuance after

indicating that the continuance was ‘‘going to be longer’’ than the two months

requested, the defendant does not raise this as a claim of error on appeal

or suggest that he needed additional time to prepare.

10 Although our Supreme Court reversed the decision of this court, it

nevertheless also determined that the trial court had failed to comply properly with Casiano in the first instance by not appointing counsel to review
the defendant’s motion to correct an illegal sentence to determine whether

there was a sound basis for bringing the motion. State v. Francis, supra,

322 Conn. 259. Counsel in Francis was ‘‘advised of the defendant’s motion

by the [court clerk] prior to the case being called, and he reviewed the

motion and certain other, unspecified files in his office, never describing

in detail to the court the substance of any discussions with the defendant

about the claims he wished to make in his motion.’’ (Internal quotation

marks omitted.)Id., 268. The Supreme Court determined that the trial court’s

error was not harmless because the defendant may have been entitled to

assistance in preparing the motion, and because such assistance might have

aided the defendant in identifying a meritorious claim. Id., 269. The court

remanded the case to this court with direction to remand the case to the

trial court so that counsel could be appointed to represent the defendant

in connection with his motion to correct an illegal sentence. Id., 270.

11 ‘‘An illegal sentence is essentially one which either exceeds the relevant

statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory. . . . Sentences imposed

in an illegal manner have been defined as being within the relevant statutory

limits but . . . imposed in a way which violates [a] defendant’s right . . .

to be addressed personally at sentencing and to speak in mitigation of

punishment . . . or his right to be sentenced by a judge relying on accurate

information or considerations solely in the record, or his right that the

government keep its plea agreement promises . . . .’’ (Citation omitted;

internal quotation marks omitted.) State v. Parker, 295 Conn. 825, 839, 992

A.2d 1103 (2010).

12 The record indicates that there was also some discussion between the

parties and the court in chambers, but no details of that discussion were

set forth on the record, and, thus, the record is unclear whether the merits

of the motion or the rationale for counsel’s sound basis determination were

discussed at that time.

13 It is important to note that counsel and trial courts should heed the

importance of ensuring that the record contains more than a conclusory

statement that there is no sound basis for a motion to correct an illegal

sentence before permitting counsel to withdraw. As our Supreme Court

stated in Francis, counsel should provide the reasons for such a conclusion

both to the court and to the client.