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*********************************************** 
STATE OF CONNECTICUT v. JASON B.*

(AC 39287)

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

Syllabus

The defendant, who had been convicted of the crimes of sexual assault in

the first degree and unlawful restraint in the first degree, appealed to

this court from the judgment of the trial court dismissing his motion to

correct an illegal sentence. The trial court determined that the defendant

had failed to present a colorable claim that the sentence had been

imposed in an illegal manner and, therefore, the trial court lacked jurisdiction over the motion. On appeal, the defendant claimed that the trial

court had jurisdiction because his motion fell within the applicable

rule of practice (§ 43-22) in that it alleged that the sentencing court

improperly ordered his sentences to run consecutively on the basis of

inaccurate information or considerations not contained in the record.

Held that the trial court properly dismissed the motion to correct an

illegal sentence, the defendant having failed to raise even the possibility

that the sentencing court relied on information that was inaccurate or

outside the record and, therefore, the court did not have jurisdiction to

entertain the defendant’s motion; although the sentencing court commented on the seriousness of the defendant’s actions in driving the

victim around his car for what appeared to be a period longer than was

necessary to commit the sexual assault on the victim and that, had the

defendant been charged with and convicted of kidnapping rather than

unlawful restraint, he would have received a greater sentence, those

comments were based on the facts of the case and merely served as a

rhetorical admonition by the sentencing court regarding the seriousness

of the defendant’s actions and his failure to take responsibility for them

and did not constitute facts that reasonably could be viewed as information that was inaccurate or outside the record.

Argued May 31—officially released September 5, 2017

Procedural History

Substitute information charging the defendant with

the crimes of sexual assault in the first degree and

unlawful restraint in the first degree, brought to the

Superior Court in the judicial district of Fairfield and

tried to the jury before Rodriguez, J.; verdict and judgment of guilty, from which the defendant appealed to

this court, which affirmed the judgment of the trial

court; thereafter, the court, Devlin, J., dismissed the

defendant’s motion to correct an illegal sentence, and

the defendant appealed to this court. Affirmed.

Jason B., self-represented, the appellant (defendant).

Nancy L. Chupak, senior assistant state’s attorney,

with whom, on the brief, were John C. Smriga, state’s

attorney, andAdam E. Mattei, assistant state’s attorney,

for the appellee (state).
Opinion

MULLINS, J. The defendant, Jason B., appeals from

the judgment of the trial court dismissing the defendant’s motion to correct an illegal sentence.1 The court

dismissed the motion on the ground that the defendant

failed to present a colorable claim that his sentence

had been imposed in an illegal manner. The defendant

claims this was error. We affirm the judgment of the

trial court.

The following facts, which were set forth by this court

in the defendant’s direct appeal from his judgment of

conviction of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and unlawful

restraint in the first degree in violation of General Statutes § 53a-95 (a), inform our review. ‘‘The victim . . .

and the defendant were married in September, 1999,

and had a daughter . . . . [The victim] filed for divorce

in October, 2005, and their divorce became final in

February, 2006.

‘‘On February 21, 2006, the defendant repeatedly contacted [the victim] and requested to meet with her. They

. . . eventually met at a Borders bookstore at about

8:30 p.m. They later walked to a nearby Boston Market

for dinner, where the defendant asked [the victim] to

have sex with him. She refused, and he asked her to

join him in his car for a cigarette. She got into the

car, where the defendant renewed his requests for sex,

which [the victim] continued to turn down. She tried

to get out of the car at least once, but the defendant

pulled her back in by the arm. The defendant then

informed [the victim] that he had withdrawn all of the

money from their joint bank account, approximately

$6000, which was all of [the victim’s] savings. He also

told her that he was going to make her life very difficult,

that he was going to take [their daughter], that she

would never see [her] again and that he was going to

hurt everyone that she knew. He told [the victim] that

if she slept with him, he would give back the money

and leave her alone. [The victim] again tried to get out

of the car, but the defendant pulled her back in.

‘‘The defendant then drove off with [the victim] in

the car, and [the victim] began screaming out the window; at some point, he had locked all of the doors. He

eventually stopped the car in a dark, wooded area with

no houses nearby. He climbed from the driver’s side to

the passenger’s side of the car, where [the victim] was

sitting, and began touching her between her legs. [The

victim] testified that she tried to fight him off but that

she was unable to because he had her left arm pinned

behind her head and he was stronger than she was. At

one point, he also took her [cell phone] from her and

threw it in the backseat. He also repeatedly put his

hand over her mouth to the point where she could not

breathe, and he stopped only when she told him she
would not fight him anymore.

‘‘The defendant eventually climbed off of [the victim],

started the car and told her he would bring her home.

Instead, while he was driving, he unzipped his pants,

removed his penis and ordered [the victim] to perform

fellatio. She began to do so but began to feel sick and

. . . asked the defendant to stop the car. He stopped

the car, and she opened the car door and vomited on

the side of the road. The defendant started the car again

and continued to drive; [the victim] did not know where

she was or what town she was in. [The victim] asked

to use a bathroom, and the defendant stopped the car

again and she got out to urinate. [The victim] returned

to the car and the defendant instructed her to lie down

as he reclined the seat. The defendant then began touching [the victim’s] vagina, asking her if she liked it. She

told him she wanted him to stop, and he said: ‘No you

don’t. He took off his belt, flexed it and ordered her

into the backseat of the car. They both got into the

backseat, and the defendant penetrated the victim’s

vagina and anus with his penis. After he stopped, the

defendant returned to the driver’s seat of the car and

drove away. He eventually returned to the Boston Market, where [the victim] had left her car, and dropped

her off. [The victim] got into her car and drove home.

[The victim’s] mother, who was at home, called 911,

and, after [the victim] was taken to a hospital, she told

the emergency room physician that her former husband

had forced her to have sex with him.’’ (Footnote omitted.) State v. Jason B., 111 Conn. App. 359, 360–62, 958

A.2d 1266 (2008), cert. denied, 290 Conn. 904, 962 A.2d

794 (2009).

After a jury trial, the court, in accordance with the

jury’s verdict, rendered a judgment of conviction of

sexual assault in the first degree and unlawful restraint

in the first degree. At the sentencing hearing, the state

requested that the court impose lengthy sentences and

that the court order the sentences to run consecutively.

Defense counsel argued in relevant part: ‘‘I disagree

with the consecutive sentences. However, Your Honor,

that would be up to Your Honor . . . . I just think that

consecutive sentences are . . . inappropriate at this

point . . . and I think that there would be no need to

do that in light of the charges.’’ (Emphasis added.)

Addressing the defendant, the sentencing court

stated: ‘‘Mr. [B.], I believe that your [former] wife is

rightfully afraid of you, and it is clear to me that you

are a person who shows no respect for your [former]

wife, nor for your daughter based upon your conduct

during the months [that] preceded the sexual assault

. . . . You also appear to have a significant problem

with self-control and a compulsion for the control of

others.

‘‘The unlawful restraint, in my opinion, given the

facts of this case, was a lesser included offense of kid-
napping in the first or second degree, which would

expose you to a greater sentence. And, when your lawyer . . . makes note of his objection to the state’s

request in light of the charges for that reason, because

kidnapping in the first or second degree would have

exposed you to a greater period of incarceration for

that conduct when you were driving around, lost in the

dark, against her wishes in your truck, and forcing her

to engage in sexual contact with you . . . .

‘‘You refuse to take responsibility for your conduct,

as far as the court is concerned. You attempted to make

this a case of consent. It’s never been about consent.

This . . . incident with your [former] wife was sexual

assault.’’ (Emphasis added.)

As a result, on the sexual assault count, the court

sentenced the defendant to twenty years incarceration,

execution suspended after ten years, with thirty-five

years of probation and lifetime sex offender registration. On the unlawful restraint count, the court sentenced the defendant to five years incarceration. The

court ordered that each count would run consecutive

with each other, for a total effective sentence of twentyfive years incarceration, execution suspended after fifteen years, with thirty-five years of probation and lifetime sex offender registration. The judgment of

conviction was affirmed on direct appeal. State v. Jason

B., supra, 111 Conn. App. 368. The record reveals that,

since his direct appeal, the defendant has filed various

petitions for a writ of habeas corpus, appeals from

judgments denying his petitions, a motion to correct

an illegal sentence, an appeal from the denial of that

motion, and a request for sentence review.

On February 2, 2016, nearly ten years after the court

sentenced the defendant on the underlying charges, the

defendant filed a second motion to correct an illegal

sentence. In that motion, he claimed that his sentence

had been imposed in an illegal manner because the

court sentenced him to consecutive, rather than concurrent, terms of imprisonment and did so for improper

reasons. He argued that the sentencing court mentioned

a charge of kidnapping, which was outside of the record

and not something with which he had been charged,

and that the court ordered his sentence to run consecutively on that basis. The defendant requested that the

trial court grant his motion to correct and order that

his sentences run concurrently. The trial court dismissed the defendant’s motion for lack of subject matter

jurisdiction on the ground that the defendant had not

presented a colorable claim that his sentence had been

imposed in an illegal manner. This appeal followed.

On appeal, the defendant claims that the court

improperly held that it did not have jurisdiction to consider the defendant’s motion. He argues that his motion

sufficiently alleged that the sentencing court relied on

inaccurate information and information that was not
part of the record when it sentenced him to consecutive

prison terms, and, therefore, it imposed his sentence

in an illegal manner. Specifically, the defendant cites

to the sentencing court’s statements that the charge of

‘‘unlawful restraint . . . was a lesser included offense

of kidnapping in the first or second degree, which would

expose you to a greater sentence’’ and that ‘‘kidnapping

in the first or second degree would have exposed you

to a greater period of incarceration . . . .’’

The state argues that, although the defendant is correct in stating that a sentencing court’s reliance on

inaccurate information at sentencing can form a proper

basis for a motion to correct an illegal sentence, ‘‘in

this case, the sentencing court’s comments to which

the defendant points as evidence of the court’s reliance

on inaccurate and outside the record information, on

their face, refute his claim.’’ (Emphasis in original.)

Therefore, the state argues, ‘‘the defendant has failed

to raise a colorable claim that his sentence was imposed

in an illegal manner, and the trial court properly determined that it did not have jurisdiction to entertain his

motion.’’ We agree with the state.

We first set forth our standard of review. Because

‘‘the defendant’s [claim] pertain[s] to the subject matter

jurisdiction of the trial court, [it] . . . present[s] a question of law subject to the plenary standard of review.

. . .

‘‘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. . . . 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 commissioner of correction and begins serving

the sentence. . . . Because it is well established that

the jurisdiction of the trial court terminates once a

defendant has been sentenced, a trial court may no

longer take any action affecting a defendant’s sentence

unless it expressly has been authorized to act. . . .

‘‘[Practice Book] § 43-22 embodies a common-law

exception that permits the trial court to correct an

illegal sentence or other illegal disposition. . . . Thus,

if the defendant cannot demonstrate that his motion

to correct falls within the purview of § 43-22, the court

lacks jurisdiction to entertain it. . . . [I]n order for

the court to have jurisdiction over a motion to correct

an illegal sentence after the sentence has been executed, the sentencing proceeding [itself] . . . must be

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

added; internal quotation marks omitted.) State v.

Robles, 169 Conn. App. 127, 131–32, 150 A.3d 687 (2016),

cert. denied, 324 Conn. 906, 152 A.3d 544 (2017).
‘‘[A]n illegal sentence is essentially one [that] either

exceeds the relevant statutory maximum limits, violates

a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory. By contrast . . .

[s]entences imposed in an illegal manner have been

defined as being within the relevant statutory limits but

. . . imposed in a way [that] violates [a] defendant’s

right . . . to be addressed personally at sentencing and

to speak in mitigation of punishment . . . or his right

to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right

that the government keep its plea agreement promises

. . . . These definitions are not exhaustive, however,

and the parameters of an invalid sentence will evolve

. . . as additional rights and procedures affecting sentencing are subsequently recognized under state and

federal law.’’ (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Cruz, 155 Conn.

App. 644, 649, 110 A.3d 527 (2015); see State v. Parker,

295 Conn. 825, 839–40, 922 A.2d 1103 (2010).

Recently, our Supreme Court explained, in

addressing the trial court’s dismissal on jurisdictional

grounds of a motion to correct an illegal sentence that

‘‘[t]he subject matter jurisdiction requirement may not

be waived by any party, and also may be raised by a

party, or by the court sua sponte, at any stage of the

proceedings, including on appeal. . . . State v. Taylor,

91 Conn. App. 788, 791, 882 A.2d 682, cert. denied, 276

Conn. 928, 889 A.2d 819 (2005). At issue is whether the

defendant has raised a colorable claim within the scope

of Practice Book § 43-22 that would, if the merits of

the claim were reached and decided in the defendant’s

favor, require correction of a sentence. Id., 793. In the

absence of a colorable claim requiring correction, the

trial court has no jurisdiction to modify the sentence.

See id., 793–94.’’ (Emphasis added; internal quotation

marks omitted.) State v. Delgado, 323 Conn. 801, 810,

151 A.3d 345 (2016).

Therefore, as made clear by our Supreme Court in

Delgado, for the trial court to have jurisdiction over

a defendant’s motion to correct a sentence that was

imposed in an illegal manner, the defendant must put

forth a colorable claim that his sentence, in fact, was

imposed in an illegal manner. A colorable claim is ‘‘[a]

claim that is legitimate and that may reasonably be

asserted, given the facts presented and the current law

(or a reasonable and logical extension or modification

of the current law).’’ Black’s Law Dictionary (10th Ed.

2014), p. 302. For jurisdictional purposes, to establish

a colorable claim, a party must demonstrate that there

is a possibility, rather than a certainty, that a factual

basis necessary to establish jurisdiction exists; see State

v. Patel, 174 Conn. App. 298, 310–11, A.3d (2017);

such as, in the present context, that the sentencing court

relied on inaccurate information or considerations that
were outside of the record.

In the present case, the defendant claims that the

court improperly dismissed his motion to correct a sentence that was imposed in an illegal manner. He argues

that the motion clearly fell within Practice Book § 43-

22, in that he properly alleged that the sentencing court

violated his right to be sentenced by a judge relying on

accurate information or considerations solely in the

record. We disagree and conclude that the defendant’s

motion, on its face, does not fall within the limited

circumstances under which the trial court has jurisdiction to correct a sentence imposed in an illegal manner.

See State v. Delgado, supra, 323 Conn. 816 (if defendant

fails to allege claim that, if proven, would require resentencing, sentencing court has no jurisdiction to consider

motion to correct). In other words, because the court’s

statements cannot reasonably be viewed as relying on

inaccurate facts or facts outside the record, the defendant’s claim does not raise even the possibility that the

sentencing court relied on inaccurate or extrarecord

facts. Thus, his claims fell outside the purview of a

sentence imposed in an illegal manner. Accordingly, we

conclude that the trial court properly concluded that

it did not have subject matter jurisdiction to entertain

the motion.

Here, the record establishes that the sentencing court

commented on the seriousness of the defendant’s

actions and the court gave its opinion that the defendant

refused to take responsibility for his actions. As set

forth previously in this opinion, the sentencing court

commented specifically to the defendant that, on the

basis of the facts of this case, the unlawful restraint

conviction was separate and apart from the sexual

assault conviction, that the facts supporting the unlawful restraint conviction demonstrated that it was akin

to a lesser included offense to a kidnapping charge,

and that, had the defendant been charged with and

convicted of kidnapping, he would have received a

greater sentence.

Those comments were based on the facts of the case,

however, not on anything outside the record. Also, given

the facts of this case, where the defendant detained the

victim in the car for what appeared to be a longer period

than necessary to commit the sexual assault, the court’s

comments were not inaccurate. See Farmer v.Commissioner of Correction, 165 Conn. App. 455, 459, 139 A.3d

767 (‘‘[A] defendant may be convicted of both kidnapping and another substantive crime if, at any time prior

to, during or after the commission of that other crime,

the victim is moved or confined in a way that had

independent criminal significance, that is, the victim

was restrained to an extent exceeding that which was

necessary to accomplish or complete the other crime.

Whether the movement or confinement of the victim

is merely incidental to and necessary for another crime
will depend on the particular facts and circumstances

of each case.’’ [Internal quotation marks omitted.]), cert.

denied, 323 Conn. 905, 105 A.3d 685 (2016). Accordingly,

we agree with the trial court’s assessment that the sentencing court merely was using a rhetorical device to

try to convey to the defendant the seriousness of his

actions and the fact that, had additional charges been

brought by the state, based solely on the evidence presented at the defendant’s trial, the defendant could have

been convicted of more serious offenses2 and also subject to greater penalties.

Thus, the defendant’s allegation that the sentencing

court imposed his sentence in an illegal manner by

referencing and relying on information that was not in

the record simply has no basis in fact. Indeed, a review

of the statements to which the defendant specifically

cites reveal nothing more than a rhetorical admonition

by the sentencing court regarding the facts of the case,

the opinion of the judge regarding the seriousness of

the defendant’s criminal actions, and the defendant’s

failure to take responsibility for those actions. The

defendant did not allege anything that reasonably could

be viewed, on its face, as inaccurate or outside of the

record. Thus, we agree with the trial court that it was

without jurisdiction to consider the defendant’s motion

to correct an illegal sentence.

The judgment is affirmed.

In this opinion the other judges concurred.

* In accordance with our policy of protecting the privacy interests of the

victims of sexual assault, we decline to identify the victim or others through

whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

1 The court, in the alternative, also held that the motion failed on the

merits. The defendant claims this, too, was error. We conclude that because

the court dismissed the case for want of jurisdiction, it had no authority to

also rule on the merits of the motion. See Fullerton v. Administrator,

Unemployment Compensation Act, 280 Conn. 745, 754, 911 A.2d 736 (2006)

(‘‘[a] court lacks discretion to consider the merits of a case over which it

is without jurisdiction’’ [internal quotation marks omitted]); State v. Bozelko,

154 Conn. App. 750, 766, 108 A.3d 262 (2015) (‘‘[o]nce the [trial] court

determined that it lacked subject matter jurisdiction, it had no authority to

decide the case’’). ‘‘Once it becomes clear that the trial court lacked subject

matter jurisdiction . . . any further discussion of the merits is pure dicta.

. . . Lacking jurisdiction, the court should not deliver an advisory opinion

on matters entirely beyond [its] power to adjudicate. . . . Such an opinion

is not a judgment and is not binding on anyone.’’ (Citations omitted; internal

quotation marks omitted.) Shockley v. Okeke, 92 Conn. App. 76, 85, 882 A.2d

1244 (2005), appeal dismissed, 280 Conn. 777, 912 A.2d 991 (2007). Here,

because the Superior Court determined that it lacked jurisdiction, it was

improper for the court to address the merits of the motion. Its alternative

conclusions in that regard, therefore, are mere dicta, lacking the force and

effect of a judgment, and are void.

2 Following its attempts to explain to the defendant that the facts of his

case were serious, the sentencing court then proceeded to sentence the

defendant to a permissible term of imprisonment on the specific crimes for

which he had been charged and convicted. Then, in accordance with General

Statutes § 53a-37, the court ordered those sentences to run consecutively.

General Statutes § 53a-37 provides: ‘‘When multiple sentences of imprisonment are imposed on a person at the same time, or when a person who is

subject to any undischarged term of imprisonment imposed at a previous

time by a court of this state is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run either

concurrently or consecutively with respect to each other and to the undis-
charged term or terms in such manner as the court directs at the time of

sentence. The court shall state whether the respective maxima and minima

shall run concurrently or consecutively with respect to each other, and

shall state in conclusion the effective sentence imposed. When a person is

sentenced for two or more counts each constituting a separate offense, the

court may order that the term of imprisonment for the second and subsequent counts be for a fixed number of years each. The court in such cases

shall not set any minimum term of imprisonment except under the first

count, and the fixed number of years imposed for the second and subsequent

counts shall be added to the maximum term imposed by the court on the

first count.’’