*********************************************** 

The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was 

released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions 

and petitions for certification is the “officially released” 

date appearing in the opinion. 

All opinions are subject to modification and technical 

correction prior to official publication in the Connecticut 

Reports and Connecticut Appellate Reports. In the event of 

discrepancies between the advance release version of an 

opinion and the latest version appearing in the Connecticut 

Law Journal and subsequently in the Connecticut Reports 

or Connecticut Appellate Reports, the latest version is to 

be considered authoritative. 

The syllabus and procedural history accompanying the 

opinion as it appears in the Connecticut Law Journal and 

bound volumes of official reports are copyrighted by the 

Secretary of the State, State of Connecticut, and may not 

be reproduced and distributed without the express written 

permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. 

*********************************************** 
STATE OF CONNECTICUT v. ROBERT HATHAWAY

(AC 40213)

DiPentima, C. J., and Mullins and Pellegrino, Js.

Syllabus

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

and sentenced to a mandatory minimum term of twenty-five years of

incarceration without the possibility of parole stemming from his role

in a shooting when he was seventeen years old, appealed to this court,

claiming that the trial court improperly dismissed his motion to correct

an illegal sentence for lack of subject matter jurisdiction. The defendant

claimed, inter alia, that the sentence of twenty-five years of incarceration

for murder imposed upon a juvenile violated the prohibition in the eighth

amendment against cruel and unusual punishment, and article first,

§§ 8 and 9, of the state constitution, because there was no meaningful

opportunity for him to obtain release through parole based on demonstrated maturity and rehabilitation prior to the expiration of his term

of incarceration. Held that the defendant’s claims having been fully

addressed and rejected by this court in the companion case of State v.

Rivera (177 Conn. App. ), which involved the same underlying facts

and issues on appeal, that decision was dispositive of the defendant’s

claim, and, accordingly, the trial court’s judgment was affirmed; moreover, although the defendant in Rivera was granted parole and the

defendant in the present case was not, the defendant in the present

case was eligible for parole pursuant to statute (§ 54-125a [f]), and,

thus, he could no longer claim that he was serving a sentence of life

imprisonment, or its functional equivalent, without the possibility for

parole.

Argued May 15—officially released October 17, 2017

Procedural History

Substitute information charging the defendant with

the crimes of murder and felony murder, brought to

the Superior Court in the judicial district of Hartford,

where the defendant was presented to the court, Solomon, J., on a plea of guilty to the charge of murder;

thereafter, the state entered a nolle prosequi as to the

charge of felony murder; subsequently, the court rendered judgment in accordance with the plea; thereafter,

the court, Alexander, J., dismissed the defendant’s

motion to correct an illegal sentence, and the defendant

appealed to this court. Affirmed.

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

Melissa E. Patterson, assistant state’s attorney, with

whom, on the brief, were Gail P. Hardy, state’s attorney, Michele C. Lukban and Richard J. Rubino, senior

assistant state’s attorneys, and Dennis J. O’Connor,

former supervisory assistant state’s attorney, for the

appellee (state).
Opinion

DiPENTIMA, C. J. The defendant, Robert Hathaway,

appeals from the judgment of the trial court dismissing

his motion to correct an illegal sentence. On appeal,

the defendant claims that (1) the court erred in dismissing the motion to correct an illegal sentence on the

ground that it lacked subject matter jurisdiction, (2)

the court erred in dismissing the motion to correct

an illegal sentence because the mandatory minimum

sentence of twenty-five years of incarceration without

the possibility of parole for murder is unconstitutional

under article first, §§ 8 and 9, of the state constitution,

as applied to juvenile offenders in that it bars courts

from sentencing juveniles to less than twenty-five years

upon due considerations of the Miller factors,1 and (3)

the court committed constitutional error when it

accepted the defendant’s waiver, through counsel, of

his right to a presentence investigation report. We

addressed these precise issues in State v. Rivera, 177

Conn. App. , A.3d (2017), also released today,

and our resolution of the defendant’s appeal is controlled by our decision in that case. We affirm the judgment of the trial court dismissing the motion to correct

an illegal sentence.

The following facts and procedural history are relevant to the present appeal. On or about May 23, 2001,

the defendant, who was seventeen years old, shot and

killed the victim, Fletcher Fitzgerald. Shortly thereafter,

the defendant was arrested and charged with murder

in violation of General Statutes § 53a-54a (a) and felony

murder in violation of General Statutes § 53a-54c. On

April 16, 2003, when the defendant was nineteen years

old, he pleaded guilty under the Alford doctrine2

to the

charge of murder. On June 13, 2003, the state and the

defendant waived the presentence investigation report,

and, in accordance with the plea agreement, the trial

court, Solomon, J., sentenced the defendant to twentyfive years of incarceration on the murder charge, which

constituted the statutory mandatory minimum. In addition, as part of the disposition, the state entered a nolle

prosequi as to the felony murder count.

On November 28, 2013, the defendant filed a pro se

motion to correct an illegal sentence. In that motion,

the defendant claimed that the sentence of twenty-five

years of incarceration without the possibility of parole

for murder imposed upon a juvenile violates the prohibition against cruel and unusual punishments in the eighth

amendment of the United States constitution and the

due process clauses of article first, §§ 8 and 9, of the

state constitution. The court stated in its memorandum

of decision: ‘‘Specifically, [the defendant] assert[ed]

that his sentence, as imposed, violates the principles

underpinning Miller v. Alabama, 567 U.S. 460, 132 S.

Ct. 2455, 183 L. Ed. 2d 407 (2012), and Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825
(2010), because there is no meaningful opportunity for

him to obtain release through parole based on demonstrated maturity and rehabilitation prior to the expiration of his term of incarceration.’’ The court further

stated: ‘‘On April 1, 2014, the public defender’s office

filed a motion to correct [an] illegal disposition and a

brief in support thereof on behalf of the defendant.

The court heard oral argument on the matter on April

2, 2014.’’

On July 23, 2014, the trial court, Alexander, J., issued

a memorandum of decision dismissing the defendant’s

motion to correct an illegal sentence because it lacked

subject matter jurisdiction over the motion. This

appeal followed.

On appeal, the defendant makes three claims that

are identical to those made in State v. Rivera, supra,

177 Conn. App. . The only noteworthy difference

between the present case and Rivera is the fact that,

after a parole hearing pursuant to General Statutes § 54-

125a (f), the defendant in Rivera was granted parole and

the defendant here was not.3 Despite that difference,

we emphasize that both defendants were eligible for

parole pursuant to § 54-125a (f).4 Thus, even though the

defendant in the present case was not granted parole,

with the enactment of § 1 of No. 15-84 of the 2015 Public

Acts, now codified at § 54-125a (f), he can no longer

claim that he is serving a sentence of life imprisonment,

or its functional equivalent, without the possibility for

parole. Accordingly, we conclude that the present

action is disposed of by our decision in Rivera.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The Miller factors refer to the sentencing court’s obligation to consider

a juvenile’s age and circumstances related to age at an individualized sentencing hearing as mitigating factors before imposing a sentence of life imprisonment without parole. See Miller v. Alabama, 567 U.S. 460, 479–80, 132 S.

Ct. 2455, 183 L. Ed. 2d 407 (2012).

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

162 (1970).

3

‘‘Furthermore, Montgomery [v. Louisiana, U.S. , 136 S. Ct. 718,

193 L. Ed. 2d 599 (2016)] requires that those whose sentences violated Miller

be given a meaningful opportunity for release; it does not require that all

juvenile offenders be released with no further supervision by the criminal

justice system. Whether juvenile offenders who are granted release pursuant

to § 54-125a (f) return to prison or not is to be determined by their subsequent

behavior.’’ (Emphasis omitted.) State v. Williams-Bey, 167 Conn. App. 744,

780 n.25, 144 A.3d 467 (2016), modified in part on other grounds after

reconsideration, 173 Conn. App. 64, 164 A.3d 31, cert. granted on other

grounds, 326 Conn. 920, A.3d (2017).

4 As the United States Supreme Court explained in Montgomery v. Louisiana, U.S. , 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016): ‘‘Extending parole

eligibility to juvenile offenders does not impose an onerous burden on the

States, nor does it disturb the finality of state convictions. Those prisoners

who have shown an inability to reform will continue to serve life sentences.

The opportunity for release will be afforded to those who demonstrate the

truth of Miller’s central intuition—that children who commit even heinous

crimes are capable of change.’’ (Emphasis omitted; internal quotation marks

omitted.) State v. Williams-Bey, 167 Conn. App. 744, 758–59, 144 A.3d 467

(2016), modified in part on other grounds after reconsideration, 173 Conn.

App. 64, 164 A.3d 31, cert. granted on other grounds, 326 Conn. 920,
A.3d (2017).