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*********************************************** 
STATE OF CONNECTICUT v. KENNETH LEE MCCOY

(SC 19905)

Palmer, McDonald, Robinson, D’Auria, Mullins,

Kahn and Vertefeuille, Js.*

Syllabus

Convicted of murder in connection with the shooting death of the victim,

the defendant appealed from the trial court’s judgment, claiming that

he had been deprived of a fair trial as a result of certain prosecutorial

improprieties and that the trial court had improperly denied his motion

for a new trial for lack of jurisdiction. An eyewitness to the shooting

and the state’s key witnesses, M, initially told the police that he could

not identify the shooter. Subsequently, M gave a second statement to

the police implicating the defendant in the shooting. Before trial, the

prosecutor asked the trial court whether M’s second statement would

be admissible as a prior consistent statement. The court deferred its

ruling, and, at trial, M testified about these statements without objection.

Following that testimony, the prosecutor asked another question pertaining to M’s second statement. The trial court sustained defense counsel’s objection to that question. After the prosecutor asked another

question regarding M’s second statement during the same direct examination, the trial court excused the jury and directed the prosecutor not

to inquire about the substance of the conversation the defendant had

with the police when he gave his second statement without prior permission of the court. On one other occasion, the prosecutor asked M

whether, after the shooting, he told the victim’s family what had happened. Defense counsel objected, and the trial court sustained that

objection. During closing arguments, the prosecutor referenced testimony indicating that M had spoken to his mother after the shooting

and then asked the jury to speculate about what was said. The trial court

sustained defense counsel’s objection to that remark and instructed the

jury not to speculate. After the jury found the defendant guilty but before

he was sentenced, the defendant filed a motion for a new trial in which

he alleged prosecutorial impropriety. At the defendant’s sentencing, the

parties and the trial court agreed to hear that motion at a later date.

Months after the defendant started serving his sentence, he attempted

to have his motion for a new trial heard. The trial court denied the

motion, without a hearing, on the ground that it had lost jurisdiction

upon execution of the defendant’s sentence. On appeal, the Appellate

Court concluded that, regardless of any improprieties that may have

occurred during trial, the defendant was not deprived of his constitutional right to due process. The Appellate Court also concluded that

the trial court lost jurisdiction once the defendant’s sentence was executed and, therefore, that the trial court did not improperly deny the

defendant’s motion for a new trial. The Appellate Court affirmed the

judgment of conviction, and the defendant, on the granting of certification, appealed to this court. Held:

1. The Appellate Court correctly concluded that the claimed prosecutorial

improprieties did not deprive the defendant of a fair trial; applying the

factors set forth in State v. Williams (204 Conn. 523), this court could

not conclude that the defendant’s right to due process was violated

because, although the alleged improprieties related to the critical issue

of M’s credibility and were not induced by either the argument or conduct

of defense counsel, and although the state’s case was not particularly

strong, the improprieties were not severe, as evidence regarding M’s

second statement already had been admitted into evidence without

objection and M never answered the prosecutor’s allegedly improper

questions, the improprieties were not frequent, as only four claimed

improprieties had occurred over the course of a weeklong trial, and the

trial court adopted curative measures in response to the alleged improprieties.

2. The Appellate Court correctly concluded that the trial court lost jurisdiction over the defendant’s motion for a new trial upon execution of the

defendant’s sentence but improperly upheld the trial court’s denial of
that motion because the motion should have been dismissed rather

than denied: in light of the long and consistent history underlying the

traditional rule that a criminal court loses jurisdiction upon the execution

of a sentence in the absence of a constitutional or legislative grant of

authority to act, this court could not conclude that the trial court in the

present case retained jurisdiction to decide the defendant’s motion for

a new trial when it did not act on that motion before the defendant’s

sentence was executed; moreover, because the trial court lacked jurisdiction to decide the defendant’s motion for a new trial and therefore

should have dismissed rather than denied that motion, this court concluded that the form of the trial court’s judgment was improper, reversed

that part of the Appellate Court’s judgment upholding the denial of

the motion, and remanded the case with direction that the trial court

ultimately dismiss the defendant’s motion for a new trial.

3. The defendant could not prevail on his claim that the trial court committed

reversible error by imposing sentence while his motion for a new trial

was pending; even if this court assumed that the trial court violated the

rule of practice (§ 42-53 [a]), which governs rulings on motions for a

new trial, by imposing sentence before ruling on the defendant’s pending

motion, the defendant had failed to explain how or why such a violation

could have resulted in harm.

4. The defendant was not entitled to have his sentence vacated pursuant to

the plain error doctrine: although it was improper for the trial court not

to decide the defendant’s motion prior to sentencing, in light of certain

anomalies in this court’s case law concerning a criminal court’s jurisdiction over a pending and timely motion for a new trial after sentencing,

the trial court’s error was not so clear as to necessitate reversal under

the plain error doctrine; moreover, even if that error had been clear,

this court could not conclude that the trial court’s failure to rule on

the defendant’s motion resulted in manifest injustice, as the claims of

prosecutorial impropriety raised in that motion were considered and

rejected by both this court and the Appellate Court, and also could be

raised through a petition for a writ of habeas corpus.

(Three justices concurring in part and dissenting

in part in one opinion)

Argued March 28, 2018—officially released May 7, 2019

Procedural History

Substitute information charging the defendant with

the crime of murder, brought to the Superior Court in

the judicial district of New Haven and tried to the jury

before Blue, J.; verdict and judgment of guilty; thereafter, the court denied the defendant’s motion for a

new trial, and the defendant appealed to this court;

subsequently, the appeal was transferred to the Appellate Court, Beach, Sheldon and Flynn, Js., which

affirmed the judgment of the trial court, and the defendant, on the granting of certification, appealed to this

court. Reversed in part; judgment directed.

Daniel J. Foster, assigned counsel, for the appellant (defendant).

Timothy J. Sugrue, assistant state’s attorney, with

whom, on the brief, were Patrick J. Griffin, state’s

attorney, Maxine Wilensky, senior assistant state’s

attorney, and Mary Elizabeth Baran, former senior

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

MULLINS, J. In this appeal, the defendant, Kenneth

Lee McCoy, challenges the judgment of the Appellate

Court affirming the judgment of conviction rendered

after a jury trial of one count of murder in violation of

General Statutes § 53a-54a (a). On appeal, the defendant

contends that the Appellate Court improperly concluded that (1) he was not deprived of a fair trial due

to prosecutorial improprieties, and (2) the trial court

properly denied his motion for a new trial for lack of

jurisdiction. We disagree but conclude that the form of

the trial court’s judgment is improper in that the trial

court should have dismissed rather than denied the

motion for a new trial. Accordingly, we reverse in part

the judgment of the Appellate Court and remand the

case to that court with direction to render judgment

consistent with this opinion.

The following underlying relevant facts and procedural history are set forth in the Appellate Court’s decision. ‘‘During the fall of 2011, the victim, Dallas Boomer,

saw both the defendant and Tramont Murray, his close

friends, on a daily basis. The three men often conducted

drug deals together out of rental cars . . . . During

November, 2011, the defendant became estranged from

both the victim and Murray. . . .

‘‘On December 6, 2011, at approximately 1 o’clock in

the morning, the victim was sitting in the driver’s seat

of a parked rental car on a residential street in New

Haven. Murray was sleeping in the reclined passenger

seat. The victim saw the defendant’s car pull over to

the side of the road and idle nearby, so he shook Murray

awake. Murray instructed the victim to drive away. The

defendant then approached the victim’s parked vehicle

with his hand in his sleeve and began shooting at the

windshield. The victim attempted to drive away, but

could not. Six bullets struck the rental car, and the

victim suffered fatal injuries as a result.

‘‘Immediately after the shooting, Murray, the sole witness, was questioned by the police. When the police

asked Murray to identify the shooter, he stated that he

had not seen the shooter . . . . Three weeks later, on

December 27, Murray made a second statement to the

police in which he identified the defendant as the

shooter. Murray testified consistently with this statement at the defendant’s trial.’’ State v. McCoy, 171 Conn.

App. 311, 312–13, 157 A.3d 97 (2017).

After the jury returned its verdict, but prior to the

sentencing date, the defendant filed a motion for a new

trial. Id., 323. At the sentencing hearing, the defendant

sought to have the motion heard by the trial court;

however, the parties and the trial court subsequently

agreed to go forward with the sentencing and to hear

the motion at a later date. Id., 323–24. As a result, the

sentencing hearing went forward, and the court sen-
tenced the defendant to sixty years incarceration. Id.,

324.

Months after the sentencing, the defendant attempted

to have his motion for a new trial heard. Because the

defendant’s sentence already had been executed, however, the court denied the motion without a hearing on

the ground that it had lost jurisdiction. Id. The defendant

then appealed from the judgment of conviction,1

asserting that the prosecutor had engaged in a series

of improprieties that deprived him of his constitutional

right to a fair trial and that the trial court improperly

denied his motion for a new trial for lack of jurisdiction.

Id., 312.

The Appellate Court concluded that, regardless of

any improprieties that may have been committed by the

state during the trial, the defendant was not deprived

of his due process right to a fair trial. Id., 314–23. The

Appellate Court also concluded that the trial court lost

jurisdiction once the defendant’s sentence was executed and, therefore, that the trial court did not improperly deny the defendant’s motion for a new trial. Id.,

323–27. This certified appeal followed.2 Additional facts

will be set forth as necessary.

I

The defendant first claims that the Appellate Court

improperly determined that he was not deprived of

a fair trial by prosecutorial improprieties committed

during his trial. Specifically, the defendant claims that

the Appellate Court improperly concluded that the prosecutor did not deprive him of a fair trial when she (1)

violated a court order by attempting on three occasions

to elicit inadmissible prior consistent statements made

by Murray, and (2) asked the jury during closing argument to speculate about the contents of a conversation

between Murray and his mother that was not in evidence. In response, the state asserts that the Appellate

Court properly concluded that these claimed improprieties did not deprive the defendant of his right to a fair

trial.3 We agree with the state.

With respect to the defendant’s claim that the prosecutor thrice violated the trial court’s order related to the

inadmissibility of Murray’s prior consistent statements,

the Appellate Court’s decision sets forth the following

relevant facts. ‘‘On the first day of trial, outside the

presence of the jury, the prosecutor asked the court

whether Murray’s second statement to the police, in

which he identified the defendant as the shooter, would

be admissible as a prior consistent statement. The court

responded: ‘Well, again, without finally ruling on that,

the answer is not necessarily because the rule generally

is that when a witness is impeached for a prior inconsistent statement, prior consistent statements are not normally admissible. They can be admissible under the

discretion of the court, particularly—and I emphasize
particularly—where the prior consistent statement precedes the prior inconsistent statement. . . . [W]e may

have to see what develops, but certainly the answer to

what you just said is not necessarily.’ The court further

stated: ‘I haven’t given my final rulings on this because

I have to see what the witness says on direct, obviously,

but I think you must be aware of the general way that

I look at this so that you are not surprised, and I think

that I have said so.’ ’’ (Emphasis omitted.) Id., 315–16.

During the state’s direct examination of Murray, after

establishing that Murray had failed to identify the defendant as the shooter in his initial encounter with the

police, the prosecutor engaged in the following colloquy

with Murray:

‘‘ ‘[The Prosecutor]: Did there come a time about

three weeks later when you went back into the police

department and gave another statement?

‘‘ ‘[Murray]: Yes.

‘‘ ‘[The Prosecutor]: And in that statement, did you

essentially tell the police what you have testified to

today in court?

‘‘ ‘[Murray]: Yes.’ ’’ Id., 322 n.4

Defense counsel did not object to this testimony.

After this testimony, the prosecutor committed the

first of the alleged improprieties when she asked:

‘‘ ‘Now, with regard to giving that statement [to the

police] on December 27, which is essentially what you

spoke about today . . . .’ Defense counsel objected,

and the court sustained the objection, noting that ‘[t]he

contents of the second interview should not be divulged

further than they already have been without [express]

permission of the court. As you know, there are evidentiary rules pertaining thereto.’ ’’ Id., 316.

Later, during that same direct examination, the second alleged impropriety occurred when ‘‘the prosecutor

asked Murray: ‘And let me just ask you this: when you

spoke to the police again, what did you tell them with

regard to who was the shooter?’ The court sua sponte

excused the jury and addressed the prosecutor, stating:

‘I don’t know how many times I have told you on the

record, and, I believe, explicitly, that . . . prior consistent statements are not admissible into evidence unless

they precede prior inconsistent statements. . . . I have

told you, with respect to the second interview, on multiple occasions, multiple occasions do not get into the

contents.’

‘‘After the prosecutor indicated that she did not think

that the court had been explicit in ruling that Murray’s

prior consistent statements were inadmissible, the

court stated that ‘[u]nder no circumstances without

prior permission of the court . . . may you ask this

witness about any prior consistent statement postdating

the original inconsistent statement of December 6. You
may not ask him about the substance of that without

prior permission of the court, that includes, but is not

limited to . . . the substance of his statement to the

police on December 27. I had thought that I was explicit,

but perhaps I was not, and if so, please forgive me.’

The court continued, stating: ‘I have told you repeatedly

not to go there. If you go there again, without prior

permission of the court, you are asking—you are basically going to require me to do things that, believe me,

I do not want to do. So, don’t go there.’ ’’ Id., 316–17.

Finally, the prosecutor engaged in the third alleged

impropriety related to prior consistent statements. This

impropriety occurred when, ‘‘after asking Murray

whether he had visited the victim’s family the day after

the victim’s murder, the prosecutor asked: ‘With regard

to what had occurred with [the victim’s] murder, did

you tell them what happened?’ Defense counsel

objected, and the court sustained the objection,

instructing the prosecutor to ‘[a]sk your next question,

keeping in mind rulings that the court has already

made.’ ’’ Id., 317.

With respect to the claim that the prosecutor improperly referred to facts not in evidence, the factual underlayment is as follows. During the trial, the state

presented evidence that Murray’s mother encountered

Murray crying at his girlfriend’s home. The prosecutor

asked Murray’s mother to describe Murray’s demeanor

as she spoke to him, and she began to tell the jury what

Murray had said to her during that encounter. Defense

counsel objected. The court sustained the objection and

did not permit Murray’s mother to testify about what

Murray had said. Then, in closing argument, when referring to Murray’s encounter with his mother at his girlfriend’s home, the prosecutor argued: ‘‘ ‘They talked,

and he told her things, I can’t say what they were,

but I think you can think about it.’ Defense counsel

objected, and the court instructed the jury that ‘[t]his

is not in evidence. Do not speculate. That is improper

argument.’ ’’ Id., 319.

In analyzing these alleged improprieties, the Appellate Court assumed that the prosecutor had improperly

disregarded the trial court’s evidentiary rulings related

to Murray’s prior consistent statements. Id., 318. As to

the prosecutor’s closing argument inviting the jurors to

speculate about statements not in evidence regarding

Murray’s conversation with his mother, the Appellate

Court determined, consistent with a concession by the

state, that this argument was improper. Id., 319. The

Appellate Court concluded, however, that these improprieties did not deprive the defendant of a fair trial.

Id., 320–21.

In the present appeal, the defendant asserts that the

Appellate Court improperly concluded that the alleged

improprieties did not deprive him of a fair trial.4 We

disagree and conclude that the Appellate Court properly
determined that the claimed improprieties did not

deprive the defendant of a fair trial. Because the Appellate Court either assumed that these actions of the

prosecutor were improper or accepted the state’s concession to that effect, we need only address whether the

Appellate Court properly concluded that these claimed

improprieties constituted a violation of the defendant’s

right to due process.

We begin with the standard of review. ‘‘[T]he touchstone of due process analysis in cases of alleged prosecutorial [impropriety] is the fairness of the trial, and

not the culpability of the prosecutor. . . . The issue is

whether the prosecutor’s conduct so infected the trial

with unfairness as to make the resulting conviction a

denial of due process. . . . In determining whether the

defendant was denied a fair trial [by virtue of prosecutorial impropriety] we must view the prosecutor’s comments in the context of the entire trial.’’ (Internal

quotation marks omitted.) State v. Campbell, 328 Conn.

444, 543, 180 A.3d 882 (2018).

‘‘[O]ur determination of whether any improper conduct by the state’s attorney violated the defendant’s fair

trial rights is predicated on the factors set forth in State

v. Williams, [204 Conn. 523, 540, 529 A.2d 653 (1987)],

with due consideration of whether that [impropriety]

was objected to at trial. . . . Those factors include the

extent to which the [impropriety] was invited by

defense conduct or argument . . . the severity of the

[impropriety] . . . the frequency of the [impropriety]

. . . the centrality of the [impropriety] to the critical

issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s

case.’’ (Citation omitted; internal quotation marks omitted.) State v. Campbell, supra, 328 Conn. 542.

We consider each of these factors in turn. First, there

is no dispute that the comments of the prosecutor were

not invited by either the argument or conduct of

defense counsel.

Second, we conclude that the claimed improprieties were not severe. With respect to the prosecutor’s

allegedly improper comments regarding Murray’s prior

consistent statements, the severity of the alleged improprieties is belied by the fact that Murray’s prior consistent statement identifying the defendant as the shooter

already had been admitted into evidence without objection. Indeed, the jury already had heard that Murray

had given a second statement to the police that was

consistent with his testimony at trial. The fact that evidence regarding Murray’s prior consistent statement

was already admitted into evidence without objection

demonstrates both that it was not severe, in that it did

not elicit an objection when it was first introduced

by the state, and that the impact of the prosecutor’s

allegedly improper questions was lessened by the fact

that the jury had already heard evidence pertaining to
that statement.

Moreover, it is important to note that Murray did not

answer any of the prosecutor’s questions. It is axiomatic

that questions are not evidence, only the answers to

the questions are evidence. In the present case, the

fact that the witness did not answer these allegedly

improper questions supports the Appellate Court’s conclusion that the alleged improprieties were not severe.

Accordingly, we conclude that the severity factor

weighs in favor of the state.

With respect to the third factor, namely, the frequency

of the impropriety, we conclude that this factor also

weighs in favor of the state. The defendant points to

three instances in which the prosecutor may have

improperly referred to Murray’s prior consistent statements, and one instance in which the prosecutor

improperly commented on statements not in evidence.

Therefore, over the course of a weeklong trial, the

defendant claims four instances of prosecutorial impropriety. Thus, we cannot conclude that these improprieties were pervasive.

Fourth, we consider whether the claimed improprieties involved a critical issue in the case. We conclude

that the statements made by the prosecutor in the present case did involve a critical issue—namely, the credibility of Murray, the state’s key witness and the primary

source of evidence used to obtain a conviction of the

defendant. Accordingly, we conclude that this factor

weighs in favor of the defendant.

With respect to the fifth factor, we conclude that the

trial court adopted curative measures in response to the

alleged improprieties. In response to the prosecutor’s

improper comments regarding Murray’s prior consistent statements, the trial court sustained each of the

defendant’s objections and once even interjected, sua

sponte, to prevent Murray from answering an inappropriate question. Moreover, the trial court provided an

instruction prior to jury deliberations as follows: ‘‘[i]t

is the answer, not the question or the assumption made

in the question that is the evidence.’’

In connection with the prosecutor’s improper reference to facts not in evidence during the closing argument, defense counsel immediately objected and the

trial court gave a curative instruction. The court

instructed as follows: ‘‘Do not speculate on this. This

is not in evidence. Do not speculate. That is improper

argument.’’ ‘‘[W]e have previously recognized that a

prompt cautionary instruction to the jury regarding

improper prosecutorial remarks or questions can obviate any possible harm to the defendant. . . . Moreover,

[i]n the absence of an indication to the contrary, the

jury is presumed to have followed [the trial court’s]

curative instructions.’’ (Citations omitted; internal quotation marks omitted.) State v. Ceballos, 266 Conn. 364,
413, 832 A.2d 14 (2003). Therefore, we conclude that

the strength of the prompt curative measures weighs

in favor of the state.

Finally, we consider the sixth factor, namely the

strength of the state’s case. We cannot conclude that the

state’s case was particularly strong. There was limited

physical evidence, and no murder weapon was ever

recovered. Nevertheless, ‘‘we have never stated that the

state’s evidence must have been overwhelming in order

to support a conclusion that prosecutorial [impropriety]

did not deprive the defendant of a fair trial.’’ (Internal

quotation marks omitted.) State v. Stevenson, 269 Conn.

563, 596, 849 A.2d 626 (2004). Under the circumstances

presented in this case, in which the objectionable evidence already was before the jury, the witness was

never permitted to answer the improper questions, and

prompt curative instructions were given, we simply cannot conclude that the defendant’s right to due process

was violated. Accordingly, because the majority of the

Williams factors weigh in favor of the state, we conclude that the claimed improprieties in the present case

did not deprive the defendant of a fair trial.

II

The defendant next argues that the Appellate Court

improperly upheld the trial court’s denial of his motion

for a new trial on the ground that the trial court lost

jurisdiction upon the execution of the defendant’s sentence. In particular, the defendant asserts that a trial

court continues to have jurisdiction over a criminal

matter for four months after judgment pursuant to State

v. Myers, 242 Conn. 125, 136, 698 A.2d 823 (1997), and,

therefore, should have ruled on the merits of his timely

filed motion for a new trial. The state counters that the

Appellate Court properly upheld the trial court’s denial

of that motion because the trial court lost jurisdiction

upon execution of the defendant’s sentence. We agree

with the state’s jurisdictional conclusion. In light of

that jurisdictional defect, however, we further conclude

that, as a matter of form, the trial court should have

dismissed rather than denied the defendant’s motion

for a new trial.

The following additional facts set forth in the Appellate Court’s decision are relevant to the defendant’s

claim. ‘‘On March 18, 2013, one week after the defendant

was convicted of murder, he filed a motion for a new

trial alleging that the prosecutor had ‘continually elicited hearsay statements that the court had precluded

by an earlier ruling and offered inadmissible hearsay

statements during closing [argument].’ . . .

‘‘[Subsequently, at] the defendant’s sentencing hearing . . . defense counsel attempted to argue the defendant’s motion for a new trial, but was stymied by the

unavailability of the trial transcript. Both defense counsel and the court agreed to postpone arguments until
the transcript became available. Defense counsel stated

that, so long as the motion was heard at a later date,

he did not have a problem going forward with the defendant’s sentencing. The court agreed, stating: ‘[T]he

proper way to consider this argument, which . . . let

me just say I view as colorable . . . [i]s to have

[defense counsel] file a memorandum with transcript

references . . . give the state a fair opportunity to file

a memorandum of [its] own with transcript references,

and then perhaps schedule argument, you know, at a

convenient time. Obviously, there are a lot of family

members here that are here to see the sentencing, and

you’re not proposing postponing the sentencing. You’re

just proposing having the—having the motion for [a]

new trial heard at a [later] date.’ The court then sentenced the defendant to sixty years incarceration.

‘‘Approximately three months later on September 3,

2013, the defendant amended his motion for a new trial

to include a claim that the prosecutor had, in violation

of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,

10 L. Ed. 2d 215 (1963), failed to disclose consideration

given to Murray in exchange for his testimony. On September 20, 2013, the court denied the defendant’s

motion for a new trial for lack of jurisdiction, citing

State v. Luzietti, 230 Conn. 427, 646 A.2d 85 (1994), for

the proposition that a trial court loses jurisdiction over

a criminal case once the defendant has been sentenced.

As a result, the court did not reach the merits of the

defendant’s motion.’’ (Footnote omitted.) State v.

McCoy, supra, 171 Conn. App. 323–24.

‘‘The defendant [then] filed a motion for reconsideration, arguing that the court retained jurisdiction under

State v. Myers, [supra, 242 Conn. 125]. The court granted

the motion for reconsideration, but again denied the

motion for a new trial for lack of jurisdiction, stating

that Myers ‘does not address the jurisdictional issue.’ ’’

State v. McCoy, supra, 171 Conn. App. 324–25. The

Appellate Court affirmed the judgment of the trial court,

concluding that the trial court had lost jurisdiction upon

execution of the defendant’s sentence and, thus, properly denied the motion for a new trial. Id., 327.

We begin with the standard of review. ‘‘Because a

determination regarding the trial court’s subject matter

jurisdiction raises a question of law, our review is plenary.’’ (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 326 Conn. 438, 448–49, 165 A.3d 1137 (2017).

‘‘The Superior Court is a constitutional court of general

jurisdiction. . . . In the absence of statutory or constitutional provisions, the limits of its jurisdiction are

delineated by the common law.’’5

(Internal quotation

marks omitted.) State v. Parker, 295 Conn. 825, 834,

992 A.2d 1103 (2010). There is no legislative or constitutional provision governing when a trial court loses jurisdiction following the execution of a criminal sentence;

therefore, the issue is governed by the common law.
The central issue in the present case is whether the

trial court lost jurisdiction upon the execution of the

defendant’s sentence. To resolve this issue, some context on the jurisdiction of criminal courts relating to

sentencing is helpful.

Early case law explains that a court’s jurisdiction

over a case ends when the term of that court ends.6

State v. Pallotti, 119 Conn. 70, 74, 174 A. 74 (1934)

(‘‘[t]he established rule is that a sentence in a criminal

case may be modified at any time during the term of

court at which it was imposed, if no act has been done

in execution of it’’). More specifically, early cases recognized that, even when the term had not yet ended, the

trial court lost jurisdiction when a person had begun

to serve his or her sentence. See State v. Vaughan, 71

Conn. 457, 461, 42 A. 640 (1899) (noting that commonlaw power of King’s Bench to admit bail belongs to

Superior Court and ceases when sentence is executed);

State v. Henkel, 23 Conn. Supp. 135, 138, 177 A.2d 684

(Conn. Cir. 1961) (‘‘[w]hile the established rule is that

sentence in a criminal case may be modified at any

time during the term of court at which it was imposed,

such modification cannot be made after an act has

been done in execution of it’’ [internal quotation marks

omitted]); Commonwealth v. Weymouth, 84 Mass. (2

Allen) 144, 145–46 (1861) (explaining and adopting practice exercised by courts in England that court could

modify sentence during court term but could not modify

sentence once term was over).

One rationale for this rule was that once sentence

was executed, double jeopardy protected a defendant

from having his sentence increased. United States v.

Benz, 282 U.S. 304, 307–308, 51 S. Ct. 113, 75 L. Ed. 354

(1931). Another separate, but related, rationale underlying this rule is the importance of protecting the finality

of judgments. See, e.g., Carpentier v. Hart, 5 Cal. 406,

407 (1855) (reason for rule that court loses jurisdiction

when term of court ends ‘‘is obvious . . . [in that] there

must be some finality in legal proceedings, and a period

beyond which they cannot extend’’).

In 1934, this court expressly recognized this commonlaw rule. In State v. Pallotti, supra, 119 Conn. 74, this

court explained that ‘‘[t]he established rule is that a

sentence in a criminal case may be modified at any

time during the term of court at which it was imposed,

if no act has been done in execution of it.’’ (Emphasis added.)

Then, in 1962, this court decided Kohlfuss v. Warden,

149 Conn. 692, 695–96, 183 A.2d 626, cert. denied, 371

U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962), in which

this court again noted its approval of the rule in Pallotti,

explaining as follows: ‘‘Another generally accepted rule

of the common law is that a sentence cannot be modified by the trial court, even at the same term, if the
sentence was valid and execution of it has commenced.

. . . The reason for this rule has been variously

assigned. According to one view, the rule rests on the

principle of double jeopardy. According to another

view, the rule is based on the proposition that the trial

court has lost jurisdiction of the case.’’ (Citation

omitted.)

Although we recognized the two rationales for this

common-law rule, after Kohlfuss, case law reveals a

movement away from double jeopardy as a primary

basis for the rule. See Wilson v. State, 123 Nev. 587,

591–92, 170 P.3d 975 (2007) (explaining Supreme

Court’s gradual retreat from prohibition against increasing sentence after defendant had begun to serve it and

pointing to North Carolina v. Pearce, 395 U.S. 711, 721,

89 S. Ct. 2072, 23 L. Ed. 2d 656 [1969], which permitted

court to impose a more severe sentence after reconviction without violating double jeopardy). Additionally,

the concerns related to double jeopardy being one of

the animating principles behind this rule have lessened

over the years, as the law regarding the ability of courts

to modify illegal sentences became clearer. See Benton

v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed.

2d 707 (1969) (concluding that concurrent sentences

doctrine did not preclude court from exercising jurisdiction over appeal claiming double jeopardy violation).

Nevertheless, the underlying rationale that the rule

is supported by the interest in protecting the finality of

judgments remains solid. See, e.g., People v. Karaman,

4 Cal. 4th 335, 348, 842 P.2d 100, 14 Cal. Rptr. 2d 801

(1992) (recognizing common-law rule ‘‘that the trial

court may change its judgment only during the term in

which the judgment was rendered, but not thereafter

. . . was established in order to provide litigants with

some finality to legal proceedings’’ [citations omitted;

footnote omitted]). Indeed, this court recognized the

rule again in 1982, when we reiterated that ‘‘[o]rdinarily

a sentence may not be modified if any act [has been]

done in execution of it.’’ State v. Nardini, 187 Conn.

109, 123, 445 A.2d 304 (1982).

Notwithstanding this well established rule, in 1986,

this court decided State v. Wilson, 199 Conn. 417, 513

A.2d 620 (1986). In that case, this court addressed

whether the trial court could amend its written decision

over three years after the defendant was sentenced, in

response to a motion for rectification. Id., 432–34. This

court explained that ‘‘[n]either our General Statutes nor

our [rules of practice] define the period during which

a trial court may modify or correct its judgment in a

criminal case. On the civil side, however, [our rules of

practice provide] that any civil judgment or decree may

be opened or set aside within four months succeeding

the date on which it was rendered or passed. We see

no reason to distinguish between civil and criminal

judgments in this respect, and we therefore hold that,
for purposes of the [common-law] rule, a criminal judgment may not be modified in matters of substance

beyond a period of four months after the judgment has

become final.’’ (Emphasis omitted; internal quotation

marks omitted.) Id., 437; see also Practice Book § 17-

4; Practice Book (1978–97) § 326.

Despite making this pronouncement, this court did

not use the four month rule to find that the trial court

had jurisdiction. Instead, this court concluded that the

trial court in that case was without jurisdiction to

modify the judgment. State v. Wilson, supra, 199 Conn.

438. This court explained that ‘‘the judgment in this

case became final when the defendant was sentenced

. . . . The trial court, when it filed its amended memorandum of decision [over three years later] was clearly

without jurisdiction to alter its previous finding . . . .’’

Id., 437. Therefore, this court struck the amended memorandum of decision. Id., 438.

Thereafter, in 1994, this court decided State v. Luzietti, supra, 230 Conn. 431–32. In Luzietti, we addressed

whether the trial court had jurisdiction to rule on the

defendant’s motion for judgment of acquittal, filed six

weeks after he began serving his sentence. Id., 428.

Despite our decision in Wilson, this court did not deem

the trial court to have had continued jurisdiction for

four months and, thus, the ability to rule on the defendant’s motion postsentencing. Id.

Instead, this court once more reiterated its approval

of the traditional rule, stating as follows: ‘‘It is well

established that under the common law a trial court has

the discretionary power to modify or vacate a criminal

judgment before the sentence has been executed. . . .

This is so because the court loses jurisdiction over the

case when the defendant is committed to the custody

of the [C]ommissioner of [C]orrection and begins serving the sentence.’’7

(Citations omitted; footnote omitted.) Id., 431–32. Consequently, because the defendant

already had begun to serve his sentence, we held that

the court lacked jurisdiction to address his motion.

Three years after Luzietti, in 1997, the court decided

State v. Myers, supra, 242 Conn. 125, upon which the

defendant in the present case principally relies. In

Myers, prior to sentencing, the defendant filed a motion

for a new trial, claiming juror bias. Id., 129. Without

ruling on the motion for a new trial, the trial court

sentenced the defendant. Id., 131. Approximately five

months after sentencing the defendant, the trial court

ruled on the motion for a new trial. The trial court

first granted the defendant’s motion for a new trial but

subsequently vacated that decision, determining that

the defendant’s claim should have been brought by way

of a petition for a new trial. Id., 131–32. This court

reversed the judgment of the trial court, concluding

that a motion for a new trial was an appropriate vehicle

for a claim of juror bias. Id., 132.
The central point of Myers was that a claim of juror

bias had to be addressed in whatever form it was raised.

Id., 139. Thus, the defendant’s motion for a new trial

in that case was appropriate. Id. Although the nature

of the claim does not appear necessary to its holding

that a motion for a new trial is an appropriate vehicle

to alert the court to juror bias, the court made the

following statement upon which the defendant seizes:

‘‘the trial court retained jurisdiction to entertain the

motion for a new trial after sentencing because it could

have opened the judgment.’’ (Footnote omitted.) Id.,

136, citing State v. Wilson, supra, 199 Conn. 436.

In Myers, this court neither acknowledged Luzietti

nor otherwise discussed any of our well established

precedent, including Vaughan, Nardini, Pallotti, or

Kohlfuss, holding that a trial court loses jurisdiction

upon the execution of the sentence. Instead, in support

of its conclusion, this court cited State v. Wilson, supra,

199 Conn. 436, a case that did not even find jurisdiction

under the four month rule it had espoused.

Additionally, a close examination of Myers reveals

serious concerns about both its rationale and the implications of its decision were we to follow it without

question. Specifically, although this court relied on the

four month rule to find that the court had jurisdiction

in Myers, the trial court in that case did not rule on

the motion for a new trial within four months of the

judgment but waited until approximately five months

after the judgment to rule on the motion. State v. Myers,

supra, 242 Conn. 131. Myers did not address the fact

that the ruling on the motion occurred beyond the four

month grant of jurisdiction or, more importantly, under

what authority the trial court could rule on a motion

five months after the sentencing. The concurring and

dissenting opinion in the present case, however, notes

the discrepancy but attempts to salvage the reasoning

of Myers by focusing on the fact that the motion was

filed prior to sentencing. Of course, nothing in Myers

states that it was the fact that the motion was filed

prior to sentencing that permitted the trial court to

exercise jurisdiction beyond the four month period.

Furthermore, even if we were to assume that filing the

motion prior to sentencing extended the jurisdiction of

the court, it certainly would not be extended in perpetuity. Yet that is precisely what Myers and the concurring

and dissenting opinion suggest. Indeed, although the

court paid lip service to the four month rule in Myers,

it actually permitted an extension of five months.

Noting this disparity, the concurring and dissenting

opinion further attempts to salvage the rationale of

Myers by explaining that this court ‘‘not only applied

the four month rule, but determined that the trial court

retains jurisdiction over a motion for a new trial as long

as it was timely filed prior to sentencing, even if the

court did not rule on the motion within the four month
time frame.’’ By doing so, the concurring and dissenting

opinion no longer relies on Myers for its application of

the four month rule but seems to assert that, as long

as a motion is timely filed prior to sentencing, the trial

court retains jurisdiction to modify the sentence at any

time to rule on the motion. We disagree.

First, the concurring and dissenting opinion’s position is not even supported by Wilson. As explained

previously in this opinion, in Wilson, this court suggested that the civil rule that allows trial courts to

reopen or set aside civil judgments within four months

of judgment applies to criminal cases. Nothing in Wilson

or the rule of practice on which that decision relied

addresses retaining the limited extension of jurisdiction

past a four month period even if the motion was filed

before sentencing. Second, if we were to agree with

the concurring and dissenting opinion and adopt its

reading of Myers, we would essentially give courts an

even broader ability to modify criminal judgments than

that allowed in civil judgments under the four month

rule. We decline to take such a dramatic departure from

our well established common law.

Furthermore, over the years following this court’s

decision in Myers, we consistently have reaffirmed the

principle that a trial court loses jurisdiction upon the

execution of the defendant’s sentence, unless it is

expressly authorized to act. See State v. Ramos, 306

Conn. 125, 134–35, 49 A.3d 197 (2012) (‘‘in criminal

cases . . . once a defendant’s sentence has begun [the]

court may no longer take any action affecting a defendant’s sentence unless it expressly has been authorized

to act’’ [emphasis omitted; internal quotation marks

omitted]);8 State v. Parker, supra, 295 Conn. 835–36 (‘‘a

generally accepted rule of the common law is that a

sentence cannot be modified by the trial court . . . if

the sentence was valid and execution of it has commenced’’ [internal quotation marks omitted]); State v.

Das, 291 Conn. 356, 361–62, 968 A.2d 367 (2009) (concluding that trial court lacked jurisdiction over defendant’s motion to vacate judgment of conviction and to

withdraw plea after sentence had been executed and

that no constitutional violation exception existed);

State v. Lawrence, 281 Conn. 147, 155, 913 A.2d 428

(2007) (acknowledging established rule that once defendant’s sentence has begun, a court may not take action

affecting a defendant’s sentence unless it expressly has

been authorized to act); State v. Reid, 277 Conn. 764,

774, 894 A.2d 963 (2006) (‘‘In a criminal case the imposition of sentence is the judgment of the court. . . .

When the sentence is put into effect and the prisoner

is taken in execution, custody is transferred from the

court to the custodian of the penal institution. At this

point jurisdiction of the court over the prisoner terminates.’’ [Internal quotation marks omitted.]); Cobham

v. Commissioner of Correction, 258 Conn. 30, 37, 779

A.2d 80 (2001) (‘‘[t]his court has held that the jurisdic-
tion 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’’). As these cases demonstrate, post-Myers, this

court has not wavered from the rule that a trial court’s

jurisdiction is lost upon the execution of the defendant’s

sentence. By contrast, we cannot find, and the defendant does not point to, any case in which this court

has relied on Myers for the proposition that a trial court

retains jurisdiction after the defendant’s sentence has

been executed.

Accordingly, given the long and consistent history of

our courts applying the traditional rule that jurisdiction

is lost upon the execution of a sentence, we cannot

conclude that Myers reflects a retreat from that common-law rule. Instead, we acknowledge that Myers and

Wilson are anomalies in this court’s case law, and we

take this opportunity to clarify and reiterate, as we have

consistently done since Myers, that a trial court loses

jurisdiction once the defendant’s sentence is executed,

unless there is a constitutional or legislative grant of

authority. State v. Luzietti, supra, 230 Conn. 431–32.

Thus, any reliance on Myers by the defendant to extend

the jurisdiction of the trial court beyond the point at

which his sentence was executed is misplaced.

In the present case, the defendant’s motion for a new

trial, although filed before his sentence was executed,

was not ruled upon before the sentence was executed.

Consequently, the trial court lost jurisdiction. A motion

for a new trial—even a timely filed motion that is not

ruled upon before sentence is executed—is not a special

grant of authority that imbues the trial court with jurisdiction until it is ruled upon. We note that this is an

unusual circumstance, and not one that makes us question or need to revisit the well established rule that the

court loses jurisdiction upon sentencing. Although we

acknowledge that the trial court incorrectly failed to

rule on the motion for a new trial before sentencing

the defendant, we are mindful of the old adage that bad

facts make bad law. Therefore, we refuse to expand

the jurisdiction of criminal courts in an effort to address

the highly unusual circumstances of the present case.

Indeed, the circumstance this case presents is

exceedingly rare and unlikely to recur because a mechanism already exists for trial courts to maintain jurisdiction in this type of situation. Specifically, the court

simply could have stayed the execution of the sentence

until the motion was heard and ruled upon. To be sure,

‘‘[t]he common law has long recognized a court’s ability

to stay the execution of a criminal sentence’’ in order

to ‘‘fulfill its duty to implement the penalties dictated

by the legislature for criminal offenses and to promote

the ends of justice.’’ Copeland v. Warden, 225 Conn.

46, 49–50, 621 A.2d 1311 (1993). When the court stays
the execution of the sentence, it retains jurisdiction.

State v. Walzer, 208 Conn. 420, 425, 545 A.2d 559 (1988).9

In the present case, because the trial court did not

stay the execution of the defendant’s sentence prior to

ruling on his motion for a new trial, however, the court

lost jurisdiction. The fact that it was not the intent of

the court or the parties to do so does not alter the fact

that jurisdiction was lost. Jurisdiction does not turn on

the intent of the parties or the court. See, e.g., State

v. Das, supra, 291 Conn. 358 (denying postsentencing

motion to vacate judgment of conviction and to withdraw plea of nolo contendere on ground that trial court

lost jurisdiction upon sentencing, and concluding that

there is no constitutional violation exception).

Accordingly, the trial court, albeit inadvertently, lost

jurisdiction over the defendant’s case. Although we

observe that this was unintentional, we believe the trial

court correctly ruled that ‘‘the jurisdictional argument

is not a matter of my intent . . . . [T]he trial court just

plain has no jurisdiction. It’s not a matter of intent or

good faith or bad faith, or anything else. The court just

flat out [has] no jurisdiction.’’10 The Appellate Court,

therefore, properly concluded that the trial court correctly determined that it had lost jurisdiction over the

defendant’s case when the defendant began serving his

sentence. As we explained previously in this opinion,

the trial court denied the defendant’s motion for a new

trial. Given that it lacked jurisdiction, however, it should

have dismissed that motion. Therefore, the trial court’s

judgment is improper in form, and the case must be

remanded to the Appellate Court with direction to

remand the case to the trial court with direction to

dismiss the defendant’s motion for a new trial.

III

The defendant next claims that, if the trial court had

lost jurisdiction because it sentenced him, then the trial

court erred when it sentenced him while his motion for

a new trial was pending. Specifically, the defendant

asserts that the trial court violated Practice Book § 42-

53, which required the trial court to adjudicate his

motion for a new trial. The defendant further claims

that, by sentencing him before ruling on the motion,

the trial court improperly rendered itself unable to adjudicate the motion because it lost jurisdiction.

Practice Book § 42-53 (a) provides: ‘‘Upon motion of

the defendant, the judicial authority may grant a new

trial if it is required in the interests of justice. Unless

the defendant’s noncompliance with these rules or with

other requirements of law bars his or her asserting the

error, the judicial authority shall grant the motion: (1)

For an error by reason of which the defendant is constitutionally entitled to a new trial; or (2) For any other

error which the defendant can establish was materially

injurious to him or her.’’ The defendant recognizes that
the language of § 42-53 does not expressly require the

trial court to rule on all motions for a new trial. Rather,

he asserts that the requirement is implicit because it

expressly requires that the trial court ‘‘shall grant the

motion’’ if certain conditions are met. Practice Book

§ 42-53 (a).

‘‘It is well settled that [n]ot every deviation from the

specific requirements of a Practice Book rule necessitates reversal. . . . Ordinarily, our courts apply a

harmless error analysis in determining whether a violation of a rule of practice amounts to reversible error.

. . . To the extent that a failure to comply with a rule

of practice rises to the level of a constitutional violation,

[t]he United States Supreme Court has recognized that

most constitutional errors can be harmless.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Ayala, 324 Conn. 571, 590–91, 153 A.3d 588 (2017).

In the present case, the defendant does not allege that

the trial court’s alleged failure to comply with Practice

Book § 42-53 constitutes a violation of his constitutional

rights to due process. Furthermore, on appeal to this

court, the defendant did not establish harm that resulted

from the trial court’s alleged error in failing to adjudicate his motion for a new trial prior to sentencing him.

Instead, the defendant merely asserts that the appropriate remedy for the error is to vacate his sentence so

that his motion for a new trial can be adjudicated. We

disagree. Even if the trial court violated § 42-53, the

defendant has failed to explain how or why that violation amounts to reversible error. See, e.g., Adams v.

Dept. of Correction, Docket No. M2013-00370-COA-R3-

CV, 2014 WL 4536557, *3 (Tenn. App. September 11,

2014) (‘‘[u]nder circumstances where the pending

motions would not have affected the outcome, the oversight, or failure to rule on pending motions, has been

considered harmless error’’) Thus, because he has not

demonstrated harm, we reject the defendant’s claim.

IV

Following oral argument, this court requested supplemental briefing, limited to the following question: ‘‘If

we conclude that the trial court lost subject matter

jurisdiction upon sentencing the defendant, is the doctrine of plain error applicable to the trial court’s failure

to have decided the defendant’s pending and timely

filed motion for a new trial before it sentenced the

defendant?’’ Thereafter, the defendant argued that the

failure of the trial court to rule on his motion for a new

trial prior to sentencing constituted plain error that

requires vacating his sentence and remanding the case

to the trial court to rule on his motion for a new trial.

The state contends that the trial court did not commit

plain error, because the mistake was neither so obvious

nor so harmful as to constitute manifest injustice. We

agree with the state.
We begin with the standard of review and applicable

law. An appellant cannot prevail under the plain error

doctrine ‘‘unless he demonstrates that the claimed error

is both so clear and so harmful that a failure to reverse

the judgment would result in manifest injustice. . . . It

is clear that an appellate court addressing an appellant’s

plain error claim must engage in a review of the trial

court’s actions and, upon finding a patent error, determine whether the grievousness of that error qualifies

for the invocation of the plain error doctrine and the

automatic reversal that accompanies it.’’ (Citations

omitted; emphasis in original; internal quotation marks

omitted.) State v. Myers, 290 Conn. 278, 288–89, 963

A.2d 11 (2009).

In the present case, although the trial court delayed

hearing the defendant’s motion in order to complete

the sentencing out of respect for the families of the

victim in attendance at the sentencing, we cannot conclude that the trial court had authority to refuse to hear

the defendant’s motion that was timely filed pursuant

to Practice Book § 42-53. See Ahneman v. Ahneman,

243 Conn. 471, 482, 706 A.2d 960 (1998) (‘‘the trial court

lacked authority to refuse to consider the defendant’s

motions’’); Amato v. Erskine, 100 Conn. 497, 499, 123

A. 836 (1924) (‘‘[i]t is a rule essential to the efficient

administration of justice, that where a court is vested

with jurisdiction over the [subject matter] upon which

it assumes to act, and regularly obtains jurisdiction of

the person, it becomes its right and duty to determine

every question which may arise in the cause, without

interference from any other tribunal’’ [internal quotation marks omitted]).

Nevertheless, as we explained in part II of this opinion, a thorough review of our case law demonstrates

that the well established rule is that a trial court loses

jurisdiction upon execution of the defendant’s sentence. We acknowledge, however, that State v. Wilson,

supra, 199 Conn. 436, and State v. Myers, supra, 242

Conn. 136, were anomalies in our case law and may

have resulted in some confusion. Accordingly, although

we conclude that it was improper for the trial court to

neglect ruling on the defendant’s motion for a new trial

prior to the execution of his sentence, we do not agree

that it was so clear an error as to satisfy the first prong

of the plain error doctrine.

In any event, even if that error were deemed to be

clear, the defendant’s claim of plain error fails on the

second prong—namely, whether the error is ‘‘so harmful that a failure to reverse the judgment would result in

manifest injustice.’’ (Internal quotation marks omitted.)

State v. Myers, supra, 290 Conn. 289. The defendant

contends that the trial court’s failure to decide his

motion for a new trial constitutes manifest injustice

because the opportunity to have a trial court review

that motion was a unique opportunity and that any
other avenue for review would be inadequate. The state

argues that the defendant was not harmed by the trial

court’s failure to review his motion for a new trial

because there were other avenues for the defendant to

have his claims resolved and, more generally, that a

trial court’s failure to comply with a rule of procedure

is not enough, by itself, to necessitate reversal for plain

error. We agree with the state.

We certainly acknowledge the benefits of having the

trial judge, as opposed to a reviewing court, decide the

motion for a new trial in the first instance. See State

v. Smith, 313 Conn. 325, 347, 96 A.3d 1238 (2014)

(‘‘[a]ppellate review of a trial court’s decision granting

or denying a motion for a new trial must take into

account the trial judge’s superior opportunity to assess

the proceedings over which he or she has personally

presided’’ [internal quotation marks omitted]). Under

the circumstances of the present case, however, we

simply cannot conclude that the trial court’s failure to

rule on the defendant’s claims was an error so harmful

that it resulted in manifest injustice.

In his motion for a new trial, the defendant raised

the claim that the prosecutor engaged in impropriety

by attempting to elicit previously precluded hearsay

and by referring to statements not in evidence during

closing arguments. These are some of the same issues

that the defendant raised as stand-alone claims of prosecutorial impropriety on direct appeal. Indeed, the Appellate Court and now this court have reviewed the merits

of those claims of impropriety and both courts have

concluded that the defendant was not deprived a fair

trial.11 See State v. McCoy, supra, 171 Conn. App. 314–23;

see also part I of this opinion. In other words, the

prosecutorial impropriety claims raised in the defendant’s motion for a new trial themselves have no merit.

We therefore cannot conclude that the trial court’s failure to review those claims equates to an error so harmful that it was a manifest injustice necessitating reversal

pursuant to plain error review.

The concurring and dissenting opinion concludes that

‘‘the manifest injustice in this case is not necessarily

that the defendant would have prevailed on his claims,

but rather that the parties and this court have lost

the benefit of the trial court’s considered views of his

claims, especially in light of the fact that the trial judge

deemed the defendant’s motion for a new trial ‘colorable.’ ’’12 Anytime a trial judge fails to rule on a motion,

we are deprived of the trial court’s views. That, however, does not by definition result in reversible error.

We might agree that the trial court’s failure to rule on

the defendant’s motion in this case could be an error,

but that error in itself does not satisfy the separate

and distinct prong of the plain error test. ‘‘As we have

explained . . . the defendant also must demonstrate,

under the second prong of the plain error test, that the
omission was so harmful or prejudicial that it resulted

in manifest injustice. . . . This stringent standard will

be met only upon a showing that, as a result of the

obvious impropriety, the defendant has suffered harm

so grievous that fundamental fairness requires a new

trial.’’ (Citation omitted.) State v. Jamison, 320 Conn.

589, 598–99, 134 A.3d 560 (2016).

As with any error that is not structural—and there

is no claim here that the court’s failure to rule on the

motion for a new trial is structural—a defendant must

demonstrate how the error harmed him. As with any

trial court error in which we must engage in an analysis

of harm, we are either deprived of the trial court’s

considered decision or we are reviewing an erroneous

decision. We then must take that nonexistent or erroneous ruling and consider the effect that it had on the

conviction. In the plain error context, the error must

be so harmful as to amount to a manifest injustice

requiring a new trial. State v. Myers, supra, 290

Conn. 289.

To assess the harm, we must look at the substance

of the motion to see if it has any merit. Indeed, it would

be truly bizarre if a court’s failure to rule on a meritless

or frivolous motion for a new trial could amount to an

error so harmful that a manifest injustice has occurred.

That circumstance is what we are presented with here—

lack of a ruling on a meritless motion. As we have

explained previously in this opinion, the defendant’s

motion sought a new trial based on the prosecutor’s

attempts to elicit a prior consistent statement from a

witness. We already have found that that claim lacks

merit. See part I of this opinion. Indeed, the concurring

and dissenting opinion agrees with this conclusion.

Thus, unlike the concurring and dissenting opinion, we

cannot conclude that the failure to get the trial court’s

‘‘considered views’’ of a motion that so obviously lacks

merit was an error so harmful that a manifest injustice

has occurred.

We are also guided by this court’s decision in State v.

Myers, supra, 290 Conn. 278. In that case, the defendant

appealed from a judgment of conviction for possession

of narcotics. Id., 280–81. On appeal, the defendant

alleged that the trial court committed plain error when

it did not comply with Practice Book § 42-2 by not

affording the defendant a hearing regarding his repeat

offender status. Id., 284–85. The Appellate Court agreed,

observing that a failure to comply with ‘‘applicable rules

of practice’’ was, per se, plain error. (Internal quotation

marks omitted.) Id., 285.

On appeal to this court, we observed as follows:

‘‘Although we agree with the Appellate Court that the

trial court’s failure to comply with the procedures of

Practice Book § 42-2 was clearly improper, we conclude

that the Appellate Court abused its discretion in vacating the defendant’s sentence because the [trial court’s]
error . . . did not ‘result in manifest injustice.’ . . .

Indeed, apart from the trial court’s failure to comply

strictly with the applicable rule of practice, which we

do not condone, the defendant has failed to raise any

doubt with respect to the validity of his prior conviction.

A trial court’s failure to comply with a rule of criminal

procedure, without more, is insufficient to require

reversal for plain error.’’ (Citation omitted; emphasis

in original; footnote omitted.) Id., 289–90.

Similarly, although we do not condone the trial

court’s failure to rule on the motion for a new trial

before sentencing the defendant without a stay of execution, its failure to do so, without more, is insufficient

to require reversal for plain error. Indeed, in the present

case, as in State v. Myers, supra, 290 Conn. 278, the

defendant has failed to raise any doubt with respect to

the validity of his conviction, particularly when we have

had the opportunity to review, and reject, the very

claims of prosecutorial impropriety raised in his motion

for a new trial.

Furthermore, we agree with the state that there are

other avenues by which a defendant may address such

claims of prosecutorial impropriety. For instance, a

defendant could (1) pursue a direct appeal from his

or her conviction, as the defendant did in the present

appeal, or (2) file a petition for writ of habeas corpus.

The defendant further contends that his other claim

within the motion for a new trial, namely, the claim

that the state violated Brady v. Maryland, supra, 373

U.S. 83, should be addressed by the trial court because

the trial court is in a unique position to understand the

intricacies of the present case. We are not persuaded.

First and foremost, as the state points out, the defendant’s Brady claim was only added to his motion for

a new trial three months after his sentence was executed. As a result, the trial court already had lost jurisdiction over the motion. Consequently, the trial court

never had jurisdiction over this claim.

Second, although it is true that this court has recognized the importance of the trial judge’s ‘‘superior

opportunity to assess the proceedings over which he or

she has personally presided’’; (internal quotation marks

omitted) State v. Smith, supra, 313 Conn. 347; this does

not mean that the trial court is the only court that can

review a Brady claim. Indeed, this court has regularly

entertained claims of Brady violations that were not

distinctly raised at trial, as long as those claims satisfied

Golding.

13 See, e.g., State v. Jordan, 314 Conn. 354,

369–76, 102 A.3d 1 (2014); State v. Ouellette, 295 Conn.

173, 185–87, 989 A.2d 1048 (2010). Moreover, as the

Appellate Court noted in the present case, newly discovered Brady claims may also be brought by way of a

petition for a new trial up to three years after sentencing. State v. McCoy, supra, 171 Conn. App. 328 n.6; see
also General Statutes § 52-270. Therefore, we cannot

conclude that the trial court’s failure to review the

defendant’s Brady claim constitutes manifest injustice.

Accordingly, we conclude that the defendant is not entitled to have his sentence vacated pursuant to the plain

error doctrine.

The judgment of the Appellate Court is reversed insofar as that court affirmed the trial court’s denial of

the defendant’s motion for a new trial, and the case

is remanded to the Appellate Court with direction to

reverse that ruling and to remand the case to the trial

court with direction to dismiss the defendant’s motion;

the judgment of the Appellate Court is affirmed in all

other respects.

In this opinion ROBINSON, C. J., and KAHN and

VERTEFEUILLE, Js., concurred.

* The listing of justices reflects their seniority status on this court as of

the date of oral argument.

1 The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b) (3), and we subsequently transferred the appeal to the

Appellate Court. See General Statutes § 51-199 (c); Practice Book § 65-1.

2 We granted certification to appeal, limited to the following questions:

(1) ‘‘Did the Appellate Court properly affirm the trial court’s judgment by

concluding that, notwithstanding any improper conduct by the state, the

defendant was not deprived of a fair trial?’’ (2) ‘‘Did the Appellate Court

properly conclude that the trial court lost jurisdiction to hear the defendant’s

motion for a new trial?’’ And (3) ‘‘In the alternative, did the trial court

improperly sentence the defendant while his motion for a new trial was

pending?’’ State v. McCoy, 325 Conn. 911, 158 A.3d 321 (2017).

Following oral arguments, this court requested supplemental briefing from

the parties, limited to the following question: ‘‘If we conclude that the trial

court lost subject matter jurisdiction upon sentencing the defendant, is the

doctrine of plain error applicable to the trial court’s failure to have decided

the defendant’s pending and timely filed motion for a new trial before it

sentenced the defendant?’’

3 The defendant also asserts that the Appellate Court improperly concluded that the prosecutor did not violate State v. Singh, 259 Conn. 693,

793 A.2d 226 (2002), when she made statements during closing arguments

suggesting to the jury that, in order to find that the state’s key witness had

a plea deal with the state, the jury would have to conclude that other

witnesses were lying. The state asserts that the defendant’s claim alleging

a violation of State v. Singh, supra, 693, is not reviewable because he did

not include that issue in his petition for certification to appeal. We agree

with the state.

The Appellate Court concluded that the prosecutor did not violate Singh

and, thus, did not engage in any impropriety regarding this issue. Therefore,

the Appellate Court did not consider that alleged impropriety when it concluded that the defendant was not deprived of a fair trial. In his petition

for certification to appeal, the defendant did not ask this court to certify a

question regarding the alleged violation of State v. Singh, supra, 259 Conn.

693. Instead, the defendant only sought, and we only granted, certification on

the issue of whether the Appellate Court’s conclusion that the improprieties,

either found or assumed, did not deprive the defendant of a fair trial. See

footnote 2 of this opinion. Accordingly, we conclude that the Singh claim

is not properly before this court.

4 The defendant also asserts that the Appellate Court improperly assumed,

without deciding, that the prosecutor improperly attempted to elicit prior

consistent statements in violation of the court’s evidentiary ruling. The

defendant asserts that the Appellate Court should have determined that

these actions by the prosecutor were improper. We reject this claim. Indeed,

the Appellate Court’s decision to assume, without deciding, that these statements were improper afforded it the opportunity to conduct the due process

analysis in the same manner it would have if it had decided that the statements were improper.

5 The concurring and dissenting opinion misapprehends the common law
related to jurisdiction of a trial court in a criminal case. The concurring

and dissenting opinion characterizes the rule ‘‘at issue [as] the product of

common law; it is a common-law exception to the court’s inherent authority

to open, correct, and modify judgments. . . . Accordingly, because the rule

at issue is a common-law rule, this court has the authority to clarify, develop,

and adapt the rule, including limiting its scope and applicability through

exceptions.’’ (Citations omitted.) We disagree. This court has explained

repeatedly that it must rely on a legislative or constitutional grant of jurisdiction to enable it to have jurisdiction over a criminal judgment after the

execution of the sentence. In criminal cases, the well established principle

is that ‘‘under the common law a trial court has the discretionary power to

modify or vacate a criminal judgment before the sentence has been executed.

. . . This is so because the court loses jurisdiction over the case when the

defendant is committed to the custody of the [C]ommissioner of [C]orrection

and begins serving the sentence. . . . Without a legislative or constitutional grant of continuing jurisdiction, however, the trial court lacks jurisdiction to modify its judgment.’’ (Emphasis added; internal quotation marks

omitted.) State v. Evans, 329 Conn. 770, 778, 189 A.3d 1184 (2018), cert.

denied, U.S. , 139 S. Ct. 1304, 203 L. Ed. 2d 425 (2019).

The concurring and dissenting opinion further asserts that the question

presented in the present case ‘‘is a question of judicial policy . . . .’’ We

disagree. This court has repeatedly explained that ‘‘the judiciary cannot

confer jurisdiction on itself through its own rule-making power’’ and that

courts are ‘‘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.’’ State v.

Lawrence, 281 Conn. 147, 155, 913 A.2d 428 (2007). Instead of being allowed

to expand the jurisdiction of a criminal court as a matter of ‘‘policy,’’ this

court must have a legislative or constitutional grant of continuing jurisdiction. The defendant and the concurring and dissenting opinion do not assert

that either of these exists in the present case. Accordingly, we will not

contort our well established case law to reach the result that the concurring

and dissenting opinion urges this court to adopt.

6 We have explained previously that, ‘‘ ‘[a]t common law, the trial court’s

jurisdiction to modify or vacate a criminal judgment was also limited to the

‘‘term’’ in which it had been rendered. . . . Since our trial courts no longer

sit in ‘‘terms,’’ that particular [common-law] limitation no longer has vitality

in this state.’’ (Citation omitted.) State v. Parker, supra, 295 Conn. 834 n.7.

7

In Luzietti, the dissenting justice opined that this court’s decision in

Wilson reflected a movement away from the traditional common-law view

that a trial court loses jurisdiction upon the execution of the defendant’s

sentence and that the majority decision represented a departure from the

rule announced in Wilson. State v. Luzietti, supra, 230 Conn. 436–37 (Katz,

J., dissenting). A majority of this court rejected the dissenting justice’s claim.

Given the dissenting opinion in Luzietti, the concurring and dissenting

opinion’s assertion that Luzietti was decided ‘‘without . . . even discussing

Wilson’’ is somewhat misleading. A complete reading of Luzietti demonstrates that the dissent in that case took the same position as the concurring

and dissenting opinion espouses in the present case—that Wilson stood for

the proposition that the civil rule allowing a trial court to modify its judgment

within four months applies to criminal cases. However, by concluding that

‘‘once judgment has been rendered and the defendant has begun serving

the sentence imposed, the trial court lacks jurisdiction to modify its judgment

in the absence of a legislative or constitutional grant of continuing jurisdiction,’’ the majority in Luzietti rejected the dissent’s position and its interpretation of Wilson. State v. Luzietti, supra, 230 Conn. 431. Because Wilson

was explicitly argued by the dissent in Luzietti, and the majority’s conclusion

is completely contrary to Wilson, we conclude that the court in Luzietti

considered the reading of Wilson asserted by the concurring and dissenting

opinion in the present case and rejected it.

8 The concurring and dissenting opinion repeatedly quotes from State v.

Ramos, supra, 306 Conn. 133–35, for the proposition that there is a ‘‘strong

presumption in favor of jurisdiction.’’ Although the concurring and dissenting

opinion once notes that ‘‘the strong presumption in favor of jurisdiction

must be considered in light of the common-law rule at issue,’’ its repeated

citation to Ramos for the presumption in favor of jurisdiction and consistent

analogy to the civil context for this rule misses the mark. Indeed, Ramos

highlights this critical distinction when it explained that, ‘‘although this

court has recognized the general principle that there is a strong presumption

in favor of jurisdiction . . . in criminal cases, this principle is considered

in light of the common-law rule that, ‘once a defendant’s sentence has
begun [the] court may no longer take any action affecting a defendant’s

sentence unless it expressly has been authorized to act.’ ’’ (Emphasis added.)

State v. Ramos, supra, 134–35. Accordingly, Ramos is entirely consistent

with our position and contrary to the one espoused by the concurring and

dissenting opinion.

9 The concurring and dissenting opinion refers to this mechanism as a

‘‘work-around’’ and asserts that it ‘‘undercuts not only the finality of the

judgment, but also the other policy justification the state offers for the

draconian rule the majority adheres to, i.e., that trial judges will take too

long to rule on such motions.’’ We disagree. As this court repeatedly has

recognized, a judge sitting in the criminal court often finds that it is necessary

to stay the execution of a defendant’s sentence to ensure that criminal

sentences are imposed in the manner intended. See Copeland v. Warden,

225 Conn. 46, 49, 621 A.2d 1311 (1993). For instance, if a defendant has

charges pending in multiple jurisdictions, staying the execution of the sentence in one jurisdiction until the defendant is able to resolve his matters

in another jurisdiction enables the defendant to receive appropriate credit

for the time served on the charges. Therefore, instead of being a ‘‘workaround,’’ as the concurring and dissenting opinion asserts, this is a useful

mechanism, which is expressly rooted in case law and routinely utilized by

Superior Court judges, and could have been utilized by the trial court in

the present case to avoid the result the concurring and dissenting opinion

seeks to avoid. Given the fact that a trial court loses jurisdiction in a criminal

case upon execution of the defendant’s sentence, the well established procedure, which the law has recognized for years, is more properly viewed as

a way to promote the ends of justice and efficiency.

10 The concurring and dissenting opinion asserts that, ‘‘[e]ven if the majority is correct that Luzietti has thrown cold water on Wilson and Myers, the

trial court could have opened the judgment to rule on the new trial motion

under the related concept of mutual mistake.’’ The concurring and dissenting

opinion then proposes that this court should apply the civil mutual mistake

doctrine, which allows a party to file a motion to open or set aside a judgment

within four months from the date of judgment if it was obtained because

of a mutual mistake. It is important to note that neither of the parties asked

this court to adopt this rule, and it was not argued at the trial court or the

Appellate Court. Accordingly, we decline to address it. See, e.g., State v.

Fauci, 282 Conn. 23, 26 n.1, 917 A.2d 978 (2007).

11 The concurring and dissenting opinion asserts that it ‘‘would reverse

the judgment of the Appellate Court and remand the case to that court with

direction to remand the case to the trial court with direction to rule on that

motion—a simple solution that [it] cannot fathom our law does not permit.’’

Presumably, in the concurring and dissenting opinion’s view, the defendant’s

conviction would remain intact, and his perfectly legal sentence would

remain intact, but this court would send the case back to the same trial

judge solely for the purpose of making a ruling on the motion for a new trial.

The concurring and dissenting opinion’s position ignores the complicated

procedural posture of this case.

First, it is not at all clear that the trial court can rule on the motion

for a new trial without vacating the defendant’s sentence. Second, if the

concurring and dissenting opinion is suggesting that we reverse the Appellate

Court’s judgment and also vacate the defendant’s sentence, then it is not

entirely clear whether the same trial judge would hear the case on remand.

See General Statutes § 51-183c.

Moreover, if the remand to the trial court is to serve any more than a

perfunctory purpose, it would seem necessary to not only reverse the judgment of the Appellate Court, but to vacate the decision of the Appellate

Court that considered, and rejected, the merits of the same prosecutorial

impropriety claims alleged in the defendant’s motion for new trial. Otherwise, the trial court would be in the unenviable position of either ignoring

the Appellate Court’s decision in its entirety or grappling with its determinations on issues that the Appellate Court has determined have no merit.

However, it is unclear what authority this court has to vacate the decision

of the Appellate Court in these circumstances.

Rather than tackle these procedural complexities, the concurring and

dissenting opinion’s proposal is to ‘‘reverse the judgment of the Appellate

Court and remand the case to that court with direction to remand the case

to the trial court to rule on the motion for a new trial.’’ Not only does this

suggested remand order ignore the defendant’s sentence—which was not

an illegal sentence—but it disregards the fact that the Appellate Court has

considered the merits of the defendant’s prosecutorial impropriety claims
and found those claims to be meritless.

12 The concurring and dissenting opinion appears to read much into the

trial court’s statement that the motion for new trial was colorable. We do

not believe that this statement tips the scales in any measurable way in

favor of the defendant’s satisfaction of his burden to show egregious harm.

The trial court’s unqualified and unexplained statement that the defendant’s

motion was ‘‘colorable’’ is not enough for us to find that the court’s failure

to rule on the motion is a harm egregious enough to warrant reversal under

the plain error doctrine. This is especially so given that both the Appellate

Court and this court have concluded that the claims raised in that motion

lack merit.

13 See State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989); see

also In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying

Golding’s third prong).