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STATE OF CONNECTICUT v. JAMES BAKER

(AC 37441)

Alvord, Mullins and Pellegrino, Js.

Argued April 14—officially released September 6, 2016

(Appeal from Superior Court, judicial district of

Danbury, Carroll, J. [judgment]; Wenzel, J. [motion to

correct illegal sentence]; Roraback, J. [motion to

correct illegal sentence].)

Deborah G. Stevenson, assigned counsel, for the

appellant (defendant).

Jacob L. McChesney, special deputy assistant state’s

attorney, with whom, on the brief, were Stephen J.

Sedensky III, state’s attorney, and Sean P. McGuinness,

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

MULLINS, J. The defendant, James Baker, appeals

from the judgment of the trial court denying his motion

to correct an illegal sentence filed pursuant to Practice

Book § 43-22.1 After pleading guilty under the Alford

doctrine2

to possessing a weapon or dangerous instrument in a correctional institution in violation of General

Statutes § 53a-174a (a),3the defendant was sentenced

to eighteen months of imprisonment. The defendant

claims on appeal that the trial court (1) improperly

denied his motion to correct the eighteen month sentence because the sentence violates the double jeopardy

clause4 of the federal5 constitution, and (2) abused its

discretion by excluding evidence that was relevant to

the disposition of the motion to correct. We affirm the

judgment of the trial court.6

The following facts and procedural history are relevant to this appeal. On February 16, 1999, the defendant,

who was an inmate at the Garner Correctional Institution, was involved in a physical altercation with other

inmates. At the time of the altercation, the defendant

was serving a thirty-two year sentence of imprisonment

for two 1994 murder convictions. Department of Correction (department) officers observed the defendant

attempt to assault another inmate by charging at the

inmate with a sharp object in his hand. Department

officers ordered the defendant to drop the object, but

the defendant ignored their commands and charged at

several other inmates with the object in his hand. After

suppressing the altercation, department officers recovered the sharp object and determined that it was a

shank that had been fabricated from white cloth, masking tape, and two metal prongs.

On the same day of the incident, department investigators interviewed the defendant, who pleaded guilty

in a department administrative proceeding to three violations of prison policy: (1) impeding order; (2) contraband (dangerous instrument); and (3) fighting.

Department officials then imposed the following disciplinary sanctions on the defendant: (1) three disciplinary reports; (2) loss of 120 days of statutory good time

credit;(3) loss of commissary privileges for ninety days;

(4) loss of visits for sixty days; (5) confinement to quarters for thirty days; (6) punitive segregation for seven

days; (7) loss of telephone privileges for forty days; and

(8) loss of mail privileges for sixty days. Furthermore,

sometime in March or April of 1999, after determining

that the defendant was a security risk, the department

transferred him to the maximum security prison at

Northern Correctional Institution (Northern). The

defendant was incarcerated at Northern for approximately one year.

On April 28, 1999, the state charged the defendant

with one count of possessing a weapon or dangerous
instrument in a correctional institution in violation of

§ 53a-174a (a). On October 13, 1999, the defendant

pleaded guilty to that charge. The court sentenced the

defendant to a period of eighteen months of incarceration to run consecutive to the sentence he already was

serving for his previous murder convictions.

On August 9, 2013, the defendant filed a motion to

correct an illegal sentence, which was amended on

August 29, 2013 (amended motion). In the amended

motion, the defendant asserted that the eighteen month

sentence of incarceration violated the double jeopardy

protections of the state and federal constitutions

because the sentence and department sanctions constituted multiple punishments for the same offense. The

defendant listed fourteen items that he alleged the

department had imposed as administrative sanctions

for his conduct in the 1999 prison incident. The first

eight items were set forth previously in this opinion.

The remaining six items related to (1) the defendant’s

transfer to Northern and (2) the effect of the eighteen

month sentence on the defendant’s ability to enter a

halfway house.

Following an evidentiary hearing on the amended

motion, the trial court, Roraback, J., denied the defendant’s motion. The court concluded that the eighteen

month sentence was not imposed in violation of the

defendant’s protections against double jeopardy. In particular, the court ruled that the department sanctions

were not ‘‘grossly disproportionate to the government’s

interest in maintaining prison order and discipline.’’

Thereafter, the defendant filed a motion to reargue the

matter, which the court granted. The court, however,

affirmed its original ruling and denied the relief

requested by the defendant. The court reiterated that

the department sanctions did not violate the double

jeopardy clause because they were not grossly disproportionate to the government’s remedial interest in

maintaining order and discipline. This appeal followed.

Additional facts will be provided as necessary.

I

In his first claim, the defendant asserts that the trial

court erred in denying the amended motion because

the eighteen month sentence of imprisonment violates

his constitutionalright against double jeopardy. Specifically, he argues that imposing this sentence after the

department already had sanctioned him violated the

double jeopardy clause’s prohibition on imposing multiple criminal punishments for the same offense. The

state responds that, because the department sanctions

did not constitute criminal punishment, the double jeopardy clause did not preclude the court from imposing

the eighteen month sentence. We agree with the state

and conclude that trial court properly denied the defendant’s amended motion.
We begin with the standard of review and relevant

legal principles. ‘‘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.’’ State v. Tabone, 279 Conn. 527,

534, 902 A.2d 1058 (2006). A double jeopardy claim,

however, ‘‘presents a question of law, over which our

review is plenary.’’ State v. Burnell, 290 Conn. 634,

642, 966 A.2d 168 (2009). ‘‘[C]laims of double jeopardy

involving multiple punishments present a question of

law to which we afford plenary review.’’ State v. Tabone,

292 Conn. 417, 439, 973 A.2d 74 (2009). ‘‘Because the

issue of whether an administrative sanction constitutes

punishment for purposes of double jeopardy is a question of law, [our] review [is] de novo.’’ (Internal quotation marks omitted.) State v. Duke, 48 Conn. App. 71,

74, 708 A.2d 583, cert. denied, 244 Conn. 911, 713 A.2d

829 (1998).

Practice Book § 43-22 provides that ‘‘[t]he judicial

authority may at any time correct an illegal sentence

or other illegal disposition, or it may correct a sentence

imposed in an illegal manner or any other disposition

made in an illegal manner.’’ Accordingly, ‘‘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.) State v. Constantopolous, 68 Conn.

App. 879, 882, 793 A.2d 278, cert. denied, 260 Conn. 927,

798 A.2d 971 (2002). ‘‘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.’’

(Internal quotation marks omitted.) State v. McNellis,

15 Conn. App. 416, 443–44, 546 A.2d 292, cert. denied,

209 Conn. 809, 548 A.2d 441 (1988).

The double jeopardy clause of the fifth amendment

to the federal constitution provides in relevant part that

no person shall ‘‘be subject for the same offense to be

twice put in jeopardy of life or limb . . . .’’ The double

jeopardy clause guarantees three specific protections:

‘‘It protects against a second prosecution for the same

offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it

protects against multiple punishments for the same

offense.’’ (Footnotes omitted.) North Carolina v.

Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d

656 (1969), overruled on other grounds by Alabama v.

Smith, 490 U.S. 794, 798, 109 S. Ct. 2201, 104 L. Ed. 2d

865 (1989). The defendant has invoked the third of those

protections—the prohibition on imposing multiple punishments for the same offense.

The multiple punishments protection, however, does

not ‘‘prohibit the imposition of all additional sanctions

that could, in common parlance, be described as punishment.’’ (Internal quotation marks omitted.) Hudson v.

United States, 522 U.S. 93, 98–99, 118 S. Ct. 488, 139 L.
Ed. 2d 450 (1997). ‘‘The Clause protects only against

the imposition of multiple criminal punishments for

the same offense . . . .’’ (Emphasis in original.) Id., 99.

‘‘[A legislature] may impose both a criminal and a civil

sanction in respect to the same act or omission; for

the double jeopardy clause prohibits merely punishing

twice, or attempting a second time to punish criminally,

for the same offense.’’ Helvering v. Mitchell, 303 U.S.

391, 399, 58 S. Ct. 630, 82 L. Ed. 917 (1938). Accordingly,

we must determine whether the department sanctions

constitute criminal punishment for double jeopardy

purposes.

The United States Supreme Court has prescribed a

two-pronged test for determining whether a sanction

constitutes criminal punishment. Hudson v. United

States, supra, 522 U.S. 99–100; see State v. JimenezJaramill, 134 Conn. App. 346, 368–73, 38 A.3d 239, cert.

denied, 305 Conn. 913, 45 A.3d 100 (2012) (applying

Hudson’s two-pronged test in determining that infraction for public disturbance was not criminal punishment

for double jeopardy purposes). The first prong is statutory construction. Hudson v. United States, supra, 99.

‘‘Whether a particular punishment is criminal or civil

is, at least initially, a matter of statutory construction.

. . . A court must first ask whether the legislature, in

establishing the penalizing mechanism, indicated either

expressly or impliedly a preference for one label or

the other.’’ (Citation omitted; internal quotation marks

omitted.) Id. The fact that the power to issue sanctions

‘‘was conferred upon administrative agencies is prima

facie evidence that [the legislature] intended to provide

for a civil sanction.’’ Id., 103.

Underthe second prong, the court must ask ‘‘whether

the statutory scheme was so punitive either in purpose

or effect . . . as to transfor[m] what was clearly

intended as a civil remedy into a criminal penalty.’’

(Citation omitted; internal quotation marks omitted.)

Id., 99. The court should make this inquiry even if it

determines under the first prong that the legislature

‘‘indicated an intention to establish a civil penalty

. . . .’’ (Internal quotation marks omitted.) Id. In making the second determination, the United States

Supreme Court has articulated seven ‘‘useful guideposts’’ that a court should consider. Id. These factors

include: ‘‘(1)[w]hetherthe sanction involves an affirmative disability orrestraint; (2) whether it has historically

been regarded as a punishment; (3) whether it comes

into play only on a finding of scienter; (4) whether its

operation will promote the traditional aims of punishment—retribution and deterrence; (5) whether the

behavior to which it applies is already a crime; (6)

whether an alternative purpose to which it may rationally be connected is assignable forit; and (7) whetherit

appears excessive in relation to the alternative purpose

assigned.’’ (Internal quotation marks omitted.) Id., 99–

100 (quoting Kennedy v. Mendoza-Martinez, 372 U.S.
144, 168–69, 83 S. Ct. 554, 9 L. Ed. 2d 644 [1963]). These

factors are ‘‘neither exhaustive nor dispositive.’’ United

States v. Ward, 448 U.S. 242, 249, 100 S. Ct. 2636, 65 L.

Ed. 2d 742 (1980).

‘‘It is particularly appropriate to apply the factors

flexibly in the context of prison discipline cases, which

do not fit neatly into the matrix of double jeopardy

doctrine . . . because in the prison context, virtually

any form of sanction seems criminal and punitive as we

commonly understand those terms.’’(Internal quotation

marks omitted.) Porter v. Coughlin, 421 F.3d 141, 147

(2d Cir. 2005). ‘‘It is important to note . . . that these

factors must be considered in relation to the statute on

its face . . . .’’ (Internal quotation marks omitted.)

Hudson v. United States, supra, 522 U.S. 100. ‘‘[O]nly

the clearest proof will suffice to override legislative

intent and transform what has been denominated a civil

remedy into a criminal penalty . . . .’’ (Emphasis

added; internal quotation marks omitted.) Id.

Turning to the present case, Hudson first requires us

to ask whether our legislature designated the statutory

mechanism by which the department imposes sanctions

as criminal or civil. We conclude that the legislature

intended for the statutory mechanism to be civil in

nature.

General Statutes § 18-81 provides in relevant part:

‘‘The Commissioner of Correction shall administer,

coordinate and control the operations of the department and shall be responsible for the overall supervision and direction of all institutions, facilities and

activities of the department. . . . The commissioner

shall be responsible for establishing disciplinary . . .

programs throughout the department. . . .’’ ‘‘Section

18-81 expressly permits the commissioner to promulgate the prison’s administrative rules.’’ Beasley v. Commissioner of Correction, 50 Conn. App. 421, 434–35,

718 A.2d 487 (1998), aff’d, 249 Conn. 499, 733 A.2d 833

(1999). Although the statute does not expressly label

prison disciplinary sanctions as either criminal or civil,

it implies that such sanctions are civil. The fact that

the legislature has delegated the powerto impose prison

sanctions to an agency such as the department is prima

facie evidence that the sanctions are civil. Hudson v.

United States, supra, 522 U.S. 103; see State v. Duke,

supra, 48 Conn. App. 77 (‘‘because our legislature conferred the power to sanction on an administrative

agency, we consider it prima facie evidence that the

sanctions were intended to be civil rather than criminal

in nature’’); Gelinas v. West Hartford, 65 Conn. App.

265, 284, 782 A.2d 679, cert. denied, 258 Conn. 926, 783

A.2d 1028 (2001)(‘‘that the clearintent of the legislature

in conferring the power to sanction on local zoning

authorities is prima facie evidence that those daily fine

sanctions are civil, and not criminal, in nature’’).

Moreover, the sanction mechanism is not located
within our state’s penal code, as it instead relates to

the ‘‘remedial purpose of allowing . . . prison officials

to maintain order and discipline.’’ State v. Santiago,

240 Conn. 97, 102, 689 A.2d 1108 (1997), overruled on

other grounds by State v. Crawford, 257 Conn. 769,

779–80, 778 A.2d 947 (2001), cert. denied, 534 U.S. 1138,

122 S. Ct. 1086, 151 L. Ed. 2d 985 (2002). Indeed, our

state Supreme Court previously observed that prison

sanctions do not generally give rise to double jeopardy

violations because they are ‘‘administrative sanctions

. . . [that] serve the purpose of maintaining institutional order and security . . . .’’ Id., 101.

Having determined that our legislature intended to

designate prison sanctions as civil penalties, we turn

to Hudson’s second prong. The second prong requires

us to determine whether the statutory scheme is ‘‘so

punitive either in purpose or effect . . . as to transform what was clearly intended as a civil remedy into

a criminal penalty . . . .’’ (Citation omitted; internal

quotation marks omitted.) Hudson v. United States,

supra, 522 U.S. 99. We note at the outset that only the

‘‘clearest proof will suffice to override legislative intent

and transform what has been denominated a civil remedy into a criminal penalty . . . .’’ (Emphasis added;

internal quotation marks omitted.)Id., 100. We conclude

that the defendant has not provided the clearest proof

that the department sanctions are so punitive in effect

or purpose that they override the legislature’s designation of the sanctions as civil.

The seven factors that the United States Supreme

Court has identified as helpful in making this second

inquiry are only ‘‘useful guideposts’’; id., 99; and ‘‘we

need not apply them rigidly.’’ Porter v. Coughlin, supra,

421 F.3d 147. The factors are ‘‘neither exhaustive nor

dispositive’’; United States v. Ward, supra, 448 U.S. 249;

and they ‘‘are to be applied flexibly.’’ Porter v. Coughlin,

supra, 148.

In the present case, the defendant received several

department sanctions after the department found that

he had engaged in fighting, the possession of a dangerous weapon, and the impediment of order. In particular,

the department imposed the following sanctions: (1)

three disciplinary reports; (2) loss of 120 days of statutory good time credit; (3) loss of commissary privileges

for ninety days; (4) loss of visits for sixty days; (5)

confinement to quarters for thirty days; (6) punitive

segregation for seven days; (7) loss of telephone privileges for forty days; (8) loss of mail privileges for sixty

days; and (9) transfer to the maximum security facility

at Northern.

Although the defendant has not provided a substantive analysis of the relevant factors, a few of the factors

appear to support the defendant’s contention that some

of the sanctions are criminal in nature. In particular, the

first, fourth, and fifth factors weigh in the defendant’s
favor.7 Because the defendant already was incarcerated,

most of the sanctions involve an ‘‘affirmative disability

or restraint.’’ (Internal quotation marks omitted.) Hudson v. United States, supra, 522 U.S. 99. All of the

sanctions seem to ‘‘promote the traditional aims of punishment—retribution and deterrence,’’ and the ‘‘behavior to which [they] apply is already a crime . . . .’’ Id.

The defendant relies mainly on the fourth factor,

arguing that the sanctions ‘‘only [serve] to promote the

traditional aims of punishment—retribution and deterrence.’’ We note, however, that the ‘‘mere presence of

[deterrence] is insufficient to render a sanction criminal, as deterrence may serve civil as well as criminal

goals.’’ (Internal quotation marks omitted.) Hudson v.

United States, supra, 522 U.S. 105. ‘‘To hold that the

mere presence of a deterrent purpose renders such

sanctions ‘criminal’ for double jeopardy purposes

would severely undermine the Government’s ability to

engage in effective regulation of institutions . . . .’’ Id.

‘‘[A] civil or administrative sanction that serves a legitimate remedial purpose . . . does not give rise to a

double jeopardy violation even if the sanction has some

deterrent effect.’’ State v. Hickam, 235 Conn. 614, 623,

668 A.2d 1321 (1995), cert. denied, 517 U.S. 1221, 116

S. Ct. 1858, 134 L. Ed. 2d 951 (1996), overruled on other

grounds by State v. Crawford, 257 Conn. 769, 779–80,

778 A.2d 947 (2001), cert. denied, 534 U.S. 1138, 122 S.

Ct. 1086, 151 L. Ed. 2d 985 (2002). We conclude that the

defendant’s reliance on the fourth factor is unavailing

because any deterrence resulting from the sanctions

permissibly furthers the ‘‘remedial purpose of allowing

. . . prison officials to maintain order and discipline.’’

State v. Santiago, supra, 240 Conn. 102.

The sixth and seventh factors weigh heavily against

a finding that the sanctions are criminal. Courts that

have applied the factors to prison sanctions generally

have afforded greater weight to the last two factors

than to the first five factors. See Porter v. Coughlin,

supra, 421 F.3d 148 (‘‘[a]lthough several of the factors

suggest that [the defendant’s] sanction was punitive in

nature, others suggest so strongly the presence of a

legitimate, nonpunitive purpose that we must conclude

the sanction was civil in nature’’); United States v.

Mayes, 158 F.3d 1215, 1223, 1224 (11th Cir. 1998) (‘‘[I]n

the prison context, virtually any form of sanction seems

criminal and punitive as we commonly understand

those terms. With that in mind, we recognize that many

of the . . . factors may weigh in the [prisoner’s] favor

. . . . In this unique setting, we must take into account

the fact that a prison’s remedial and punitive interests

are inextricably related. . . . [W]e factor into our analysis the importance of granting some deference to the

judgments of prison authorities in determining what is

necessary and properto preserve institutional order and

discipline, and to encourage good conduct.’’ [Internal

quotation marks omitted.]), cert. denied, 525 U.S. 1185,
119 S. Ct. 1130, 143 L. Ed. 2d 123 (1999).

Regarding the sixth factor, the department sanctions

clearly have ‘‘an alternative purpose to which [they]

may rationally be connected . . . .’’ Hudson v. United

States, supra, 522 U.S. 99. Indeed, our Supreme Court

expressly has recognized that prison sanctions serve

the ‘‘remedial purpose of allowing the prison officials

to maintain order and discipline.’’ State v. Santiago,

supra, 240 Conn. 102. ‘‘The institutional consideration

of internal security in the correction facilities themselves is essential to all other correction goals.’’ State

v. Walker, 35 Conn. App. 431, 435, 646 A.2d 209, cert.

denied, 231 Conn. 916, 648 A.2d 159 (1994). ‘‘Correction

authorities must be allowed to take appropriate action

to ensure the safety of inmates and correction employees; they must be permitted promptly to sanction misconduct within the institution so as to preserve order

and discipline.’’ Id., 436–37. Therefore, ‘‘[e]nsuring security and order at the institution is a permissible nonpunitive objective . . . .’’ Bell v. Wolfish, 441 U.S. 520, 561,

99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). ‘‘The need to

maintain order . . . is a legitimate nonpunitive interest, even if it sometimes requires that prison officials

take action of a punitive character.’’ Porter v. Coughlin,

supra, 421 F.3d 148. Accordingly, we conclude that the

sixth factor militates against a conclusion that the

department sanctions are criminal because they are

rationally connected to the nonpunitive purpose of

maintaining safety, order, and discipline within the

prison.

Regarding the seventh factor, the department sanctions are not ‘‘excessive in relation to the alternative

purpose assigned.’’ (Internal quotation marks omitted.)

Hudson v. United States, supra, 522 U.S. 100. The types

of sanctions the department may impose are not excessive in light of how inmate misconduct, like the defendant’s violent behavior in this case, seriously

undermines discipline, safety, and order within the

prison. See, e.g., State v. Walker, supra, 35 Conn. App.

436–37 (reasonable to segregate inmate for ‘‘the serious

offense’’ of assaulting correction employee because

‘‘violent behavior could be detrimental to maintaining

control throughout the correction facility . . . [and]

[c]orrection authorities must be allowed to take appropriate action to ensure the safety of inmates and correction employees’’). ‘‘Because the realities of running a

correctional institution are complex and difficult, the

courts give wide-ranging deference to the decisions of

prison administrators in considering what is necessary

and proper to preserve order and discipline.’’ Id., 435.

Our courts regularly have held that sanctions similar

to those imposed on the defendant, for misconduct

similar to the defendant’s actions, are not disproportionate to the department’s remedial interests. See State

v. Santiago, supra, 240 Conn. 99–102 (ten days of puni-
tive segregation, thirty days loss of telephone and mail

privileges, and loss of forty-five days of good time credit

for possessing shank); State v. Walker, supra, 35 Conn.

App. 432, 435–37 (placement in administrative isolation,

fifteen days of punitive segregation, and thirty days

confinement to quarters for punching correction officer

in head and jaw); State v. King, Superior Court, judicial

district of New London, Docket No. CR-01-89268-S (May

15, 2003) (thirty days of punitive segregation, ninety

days loss of phone privileges, ninety days loss of commissary privileges, sixty days loss of visits, and transfer

to administrative segregation at Northern for assaulting

correction officer).8

In sum, under Hudson’s first prong, we conclude that

the legislature intended the department sanctions to be

civil in nature, not criminal. Under Hudson’s second

prong, a careful weighing of the relevant factors demonstrates that the clearest proof that the department sanctions are so punitive in purpose or effect as to override

the legislature’s intent does not exist in this case. We

conclude that the department sanctions were not criminal in nature and that they therefore did not constitute

punishment for double jeopardy purposes.

Accordingly, because we conclude that the department sanctions do not constitute criminal punishment,

the trial court properly found that the eighteen month

prison sentence did not violate the double jeopardy

clause’s prohibition on imposing multiple punishments

for the same offense, and, therefore, properly denied

the motion to correct an illegal sentence.

II

The defendant’s second claim on appeal is that the

trial court improperly excluded evidence regarding the

collateral consequences of the eighteen month prison

sentence. Specifically, he argues that evidence suggesting that the eighteen month sentence had the consequence of delaying his release to a halfway house was

relevant to the double jeopardy analysis. We do not

reach the merits of this claim because the defendant

has not briefed how he was harmed by the allegedly

improper evidentiary ruling. Accordingly, we decline to

review it.

The following additional facts and procedural history

are relevant to this claim. At two points in the evidentiary hearing, defense counsel attempted to admit evidence relating to how the eighteen month sentence

affected the defendant’s ability to enter a halfway

house. First, during direct examination of a department

record specialist, counsel asked the witness ‘‘if the

defendant could go to a halfway house as a result of

this eighteen month sentence,’’ and ‘‘if the defendant

has a detainer because of this eighteen months.’’ The

state objected, arguing that the testimony was irrelevant. The court sustained the state’s objection and
explained: ‘‘The consequences of the sentence, I don’t

think, are relevant. It’s the fact that the sentence was

imposed that is at the heart of this matter. . . . I don’t

think the court is going to be looking to the severity of

the sentence or the duration of the sentence. Rather

. . . I think the inquiry is going to be whether any

sentence was appropriate because, if double jeopardy

is to be implicated, it would necessarily mean that no

sentence could be imposed.’’

Subsequently, with the defendant on the witness

stand, defense counsel attempted the following examination:

‘‘Q. [T]his eighteen months, that’s consecutive to the

current sentence?’’

‘‘A. Yes.

‘‘Q. Okay. Now does that affect your time that you’re

now serving—I mean, in a halfway house—can you get

out to a halfway house?

‘‘A. No.’’

After the state objected, the court sustained the

objection and stated: ‘‘Okay. And again, the court

believes the inquiry goes not to the severity of any

sentence that might be imposed, but as to the question

of whether any sentence could lawfully have been

imposed. So I’m going to sustain the objection.’’

‘‘The trial court has wide discretion to determine the

relevancy of evidence and [e]very reasonable presumption should be made in favor of the correctness of the

court’s ruling in determining whether there has been

an abuse of discretion.’’ (Internal quotation marks omitted.) State v. Davis, 298 Conn. 1, 23, 1 A.3d 76 (2010).

‘‘[I]n order to establish reversible error on an evidentiary impropriety, the defendant must prove both an

abuse of discretion and a harm that resulted from such

abuse. . . . This requires that the defendant demonstrate that it is more probable than not that the erroneous action of the court affected the result.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Kirsch, 263 Conn. 390, 412, 820 A.2d 236 (2003).

‘‘It is well settled that, absent structural error, the

mere fact that a trial court rendered an improper ruling

does not entitle the party challenging that ruling to

obtain a new trial. An improper ruling must also be

harmful to justify such relief. . . . The harmfulness of

an improper ruling is material irrespective of whether

the ruling is subject to review under an abuse of discretion standard or a plenary review standard. . . . When

the ruling at issue is not of constitutional dimensions,

the party challenging the ruling bears the burden of

proving harm.’’ (Internal quotation marks omitted.) In

re James O., 160 Conn. App. 506, 527, 127 A.3d 375

(2015), aff’d, 322 Conn. 636, A.3d (2016).

In the present case, the defendant has briefed a claim
that the court erred in precluding evidence regarding

the potential collateral consequences of his eighteen

month sentence and has failed to address how the evidentiary ruling was harmful. Accordingly, we decline

to review the claim.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Practice Book § 43-22 provides: ‘‘The judicial authority may at any time

correct an illegal sentence or other illegal disposition, or it may correct a

sentence imposed in an illegal manner or any other disposition made in an

illegal manner.’’

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

162 (1970).

3 General Statutes § 53a-174a provides: ‘‘(a) Aperson is guilty of possession

of a weapon or dangerous instrument in a correctional institution when,

being an inmate of such institution, he knowingly makes, conveys from

place to place or has in his possession or under his control any firearm,

weapon, dangerous instrument, explosive, or any other substance or thing

designed to kill, injure or disable.

‘‘(b) Possession of a weapon or dangerous instrument in a correctional

institution is a class B felony.’’

4 The fifth amendment to the United States constitution provides in relevant part: ‘‘[N]or shall any person be subject for the same offense to be

twice put in jeopardy of life or limb . . . .’’

5 The defendant also invokes the protections of our state constitution.

‘‘[When] . . . the defendant has not presented a separate analysis of his

double jeopardy claim under the state constitution, we confine our analysis

to the application of the federal constitution’s double jeopardy bar.’’(Internal

quotation marks omitted.) State v. Butler, 262 Conn. 167, 174 n.6, 810 A.2d

791 (2002). Therefore, we analyze the defendant’s claim only under the fifth

amendment to the federal constitution.

6 On appeal, the defendant argues for the first time that the sentence also

violates the prohibition against cruel and unusual punishment under the

eighth amendment to the federal constitution. Although the defendant

asserts that this claim is adequately preserved for our review, we disagree.

The defendant’s operative motion that is the subject of this appeal did not

contain an eighth amendment claim. Moreover, the parties did not address

an eighth amendment claim at trial, and the trial court neither considered

nor ruled upon any such claim. ‘‘This court previously has recognized that

[i]t is not appropriate to review an unpreserved claim of an illegal sentence

for the first time on appeal.’’ (Internal quotation marks omitted.) State v.

Crump, 145 Conn. App. 749, 766, 75 A.3d 758, cert. denied, 310 Conn. 947,

80 A.3d 906 (2013). Furthermore, we have declined to review in other appeals

such unpreserved claims under State v. Golding, 213 Conn. 233, 567 A.2d

823 (1989), or the plain error doctrine. State v. Starks, 121 Conn. App. 581,

592, 997 A.2d 546 (2010). Accordingly, we decline to review the defendant’s

unpreserved eighth amendment claim.

7 The record does not indicate whether the sanctions implicate the third

factor, which asks whether the sanctions were imposed only after a finding

of scienter. Hudson v. United States, supra, 522 U.S. 99. Similarly, the

defendant did not address the second factor, which asks whether the sanctions have been historically regarded as punishment. Id.

8 Regarding the defendant’s transfer to Northern, which the defendant

emphasized on appeal, courts in other jurisdictions consistently have held

that the disciplinary transfer of an inmate is not a criminal punishment that

implicates the double jeopardy clause. See, e.g., United States v. Colon, 246

Fed. Appx. 153, 155–56 (3d Cir. 2007) (disciplinary transfer of inmate who

attempted to smuggle heroin into prison), cert. denied, 552 U.S. 1128, 128

S. Ct. 948, 169 L. Ed. 2d 780 (2008); United States v. Mayes, supra, 158 F.3d

1217, 1224–25 (disciplinary transfer to high security facility for inmates who

participated in prison riot); United States v. Newby, 11 F.3d 1143, 1144–46

(3d Cir. 1993) (disciplinary transfer of prisoners who assaulted prison

guards), cert. denied, 513 U.S. 834, 115 S. Ct. 111, 130 L. Ed. 2d 58 (1994);

State v. Beck, 545 N.W.2d 811, 812, 816 (S.D. 1996) (transferto higher security

facility for inmate who was in possession of three marijuana cigarettes).