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*********************************************** 
STATE OF CONNECTICUT v. ERNEST FRANCIS

(AC 41183)

DiPentima, C. J., and Alvord and Conway, Js.

Syllabus

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

and sentenced to fifty years of incarceration, appealed to this court

from the judgment of the trial court denying his motion to correct an

illegal sentence. Prior to sentencing, the sentencing court was provided

with a presentence investigation report detailing the defendant’s prior

criminal history, including that he previously had been convicted of

conspiracy to sell cocaine and assault in the second degree. During the

sentencing hearing, the prosecutor advised the court that the report

was not accurate and that the defendant in fact previously had been

convicted of conspiracy to possess cocaine and assault in the third

degree. In reciting the facts on which it based its sentence, the sentencing

court stated, inter alia, that the defendant had inflicted a graze wound

on the victim before he fatally stabbed him in the chest. In his motion

to correct, the defendant alleged that his sentence was illegal because

the court substantially relied on materially false information regarding

his prior criminal history and misconstrued the evidence at trial surrounding the underlying crime. In denying the motion, the trial court

concluded that there was no indication that the sentencing court substantially relied on materially inaccurate information. On the defendant’s

appeal to this court, held that the trial court properly denied the defendant’s motion to correct an illegal sentence, as neither the purported

inaccuracies contained in the presentence investigation report nor the

sentencing court’s account of the manner in which the underlying murder

occurred supported the conclusion that the defendant’s sentence was

imposed in an illegal manner: although the sentencing court incorrectly

noted that the defendant had been convicted of conspiracy to sell

cocaine, this error was not a substantial factor in its determination of

the appropriate sentence, as the court expressly considered the fact

that the defendant had incurred three separate felony convictions by

the age of nineteen, that he was involved in drugs and that he was on

probation when he murdered the victim, and those considerations were

not impugned by any discrepancy between the defendant’s actual criminal record and the record that was provided in the report, and, therefore,

the record demonstrated that the court did not substantially rely on

those inaccuracies in imposing its sentence; moreover, the sentencing

court’s recitation of the evidence regarding the manner in which the

defendant committed the underlying offense was not materially inaccurate, nor was the disputed fact that the victim sustained a graze wound

substantially relied on by the court, as the defendant’s sentence clearly

was predicated on his killing the victim by stabbing him in the chest

and not on the graze wound.

Argued March 13—officially released July 2, 2019

Procedural History

Substitute information charging the defendant with

the crime of murder, brought to the Superior Court in

the judicial district of Hartford-New Britain at Hartford,

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

the Supreme Court, which affirmed the judgment; thereafter, the court, Dewey, J., denied the defendant’s

motion to correct an illegal sentence, and the defendant

appealed to this court. Affirmed.

Robert L. O’Brien, assigned counsel, with whom, on

the brief, was Christopher Y. Duby, assigned counsel,
for the appellant (defendant).

Ronald G. Weller, senior assistant state’s attorney,

with whom, on the brief, were Gail P. Hardy, state’s

attorney, Rita M. Shair, senior assistant state’s attorney, and Elizabeth S. Tanaka, former assistant state’s

attorney, for the appellee (state).
Opinion

DiPENTIMA, C. J. The defendant, Ernest Francis,

appeals from the judgment of the trial court denying

his motion to correct an illegal sentence filed pursuant

to Practice Book § 43-22. On appeal, the defendant

claims that his sentence was imposed in an illegal manner because the court substantially relied on materially

inaccurate information concerning his prior criminal

history and the manner in which he had committed the

underlying crime. We disagree and, thus, affirm the

judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The defendant was convicted of

murder in violation of General Statutes § 53a-54a (a),

and, on April 15, 1992, was sentenced to fifty years of

incarceration. See State v. Francis, 228 Conn. 118, 635

A.2d 762 (1993). Prior to sentencing, the court, Miano,

J., was provided with a presentence investigation report

(presentence report) detailing the defendant’s prior

criminal history. The presentence report indicated that

the defendant had been convicted previously of conspiracy to sell cocaine and assault in the second degree.

During sentencing, the prosecutor informed the court

of the details surrounding the apparent conviction of

conspiracy to sell cocaine and noted that there seemed

to be a discrepancy between the offense of which he

was charged initially, conspiracy to sell cocaine, and

the offense of which he was convicted, conspiracy to

possess cocaine. The prosecutor also advised the court

that the defendant had not been convicted of assault

in the second degree, as indicated in the report, but,

rather, assault in the third degree.

In discussing the reasons for its sentence, the court,

Miano, J., reviewed the events that transpired on the

day the defendant murdered the victim. In so doing,

the court indicated that the defendant had stabbed the

victim more than once during the underlying altercation. After recounting the relevant facts based on the

evidence at trial, the court noted that the defendant, at

the age of nineteen, had three felony convictions. After

noting that one of ‘‘[t]he purposes of sentencing’’ is

deterrence, the court sought to send a message to ‘‘the

young men like the defendant that appear macho, that

are involved in drugs, that have cars, attractive new

cars, that have jewelry, that have money, [and] that

have attractive ladies,’’ that ‘‘[they] have to think before

they commit such an act like this.’’ Thereafter, the court

sentenced the defendant to fifty years of incarceration.

On December 30, 2016, the defendant filed the motion

to correct an illegal sentence that is the subject of the

present appeal.1

In the memorandum of law accompanying his motion, the defendant alleged that his sentence was illegal because the trial court substantially

relied on materially false information regarding his prior
criminal history and misconstrued the evidence at trial

surrounding the underlying crime. On August 10, 2017,

the court, Dewey, J., denied the defendant’s motion,

concluding, inter alia, that there was no indication that

the sentencing court substantially relied on materially

inaccurate information. This appeal followed. Additional facts will be set forth as needed.

The defendant claims that the trial court improperly

concluded that the sentencing court did not substantially rely on materially inaccurate information regarding his prior criminal history and the manner in which

the underlying offense was committed. We do not agree

and, therefore, affirm the judgment of the trial court.

We begin our analysis of the defendant’s claim by

setting forth our standard of review and applicable legal

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

judicial authority may at any time correct an illegal

sentence or other illegal disposition, or it may correct

a sentence imposed in an illegal manner or any other

disposition made in an illegal manner.’’ ‘‘[A] claim that

the trial court improperly denied a defendant’s motion

to correct an illegal sentence is reviewed pursuant to

the abuse of discretion standard. . . . In reviewing

claims that the trial court abused its discretion, great

weight is given to the trial court’s decision and every

reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only

if it could not reasonably conclude as it did.’’ (Internal

quotation marks omitted.) State v. Bozelko, 175 Conn.

App. 599, 609, 167 A.3d 1128, cert. denied, 327 Conn.

973, 174 A.3d 194 (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.’’ (Emphasis added; internal quotation

marks omitted.) State v. Jason B., 176 Conn. App. 236,

243–44, 170 A.3d 139 (2017).

‘‘[D]ue process precludes a sentencing court from

relying on materially untrue or unreliable information

in imposing a sentence. . . . To prevail on such a claim

as it relates to a [presentence report], [a] defendant

[cannot] . . . merely alleg[e] that [his presentence
report] contained factual inaccuracies or inappropriate

information. . . . [He] must show that the information

was materially inaccurate and that the [sentencing]

judge relied on that information. . . . A sentencing

court demonstrates actual reliance on misinformation

when the court gives explicit attention to it, [bases] its

sentence at least in part on it, or gives specific consideration to the information before imposing sentence.’’

(Emphasis omitted; footnote omitted; internal quotation marks omitted.) State v. Petitpas, 183 Conn. App.

442, 449–50, 193 A.3d 104, cert. denied, 330 Conn. 929,

194 A. 3d 778 (2018).

In claiming that his sentence was imposed in an illegal

manner, the defendant points to several purported inaccuracies in the presentence report. Specifically, he

asserts that the report incorrectly indicated that he had

been convicted of conspiracy to sell cocaine, when in

fact he was convicted of conspiracy to possess cocaine.

The defendant argues that the record demonstrates substantial reliance on this inaccuracy in light of the sentencing court’s description of him as a drug dealer who

had ‘‘new cars,’’ ‘‘jewelry,’’ ‘‘money’’ and ‘‘attractive

ladies,’’ despite the fact that he never had been convicted of selling drugs. Further, the defendant submits

that, although the prosecutor informed the court of the

inaccuracy in the presentence report concerning his

assault conviction, the state failed to correct the portion

of the report that erroneously indicated that the victim

of that assault was an elderly person and that the defendant’s sentence for this conviction had been illegal.2

The defendant contends that the court substantially

relied on these errors when it intimated that the defendant was a ‘‘violent predator attacking the weak and

infirm,’’ rather than just a child caught up in ‘‘a senseless

and tragic neighborhood fight.’’

Additionally, the defendant claims that the court substantially relied on an inaccurate account of the manner

in which the underlying murder offense occurred. In

particular, the defendant argues that the evidence at

trial indicated that the victim had sustained only a single

stab wound during the altercation that resulted in his

death. During its recitation of the evidence, however,

the sentencing court stated that the victim had suffered

a ‘‘graze’’ wound prior to being fatally stabbed in the

chest. The defendant contends that this material inaccuracy was substantially relied on by the court and served

to portray the defendant as a ‘‘more determined and

violent individual than the evidence actually showed.’’

With respect to the presentence report, we conclude

that the trial court did not abuse its discretion in concluding that the sentencing court did not substantially

rely on the inaccuracies concerning the defendant’s

prior criminal history. Although the sentencing court

incorrectly noted that the defendant had been convicted

of conspiracy to sell cocaine, this error was not a sub-
stantial factor in the court’s determination of the defendant’s appropriate sentence. Rather, as it relates to the

defendant’s prior criminal history, the court expressly

considered the fact that the defendant had incurred

three separate felony convictions by the age of nineteen,3

that he was ‘‘involved in drugs’’ and that he was

on probation when he murdered the victim. None of

those considerations is impugned by any discrepancy

between the defendant’s actual criminal record and the

record that was provided in the presentence report.

Similarly, the court made no mention at all of the defendant’s purported prior assault of an elderly person.

Thus, despite the state’s failure to correct all of the

errors in the presentence report relating to the defendant’s criminal history, the record demonstrates that

the court did not substantially rely on these inaccuracies in imposing its sentence.4 See State v. Petitpas,

supra, 183 Conn. App. 449–50.

Further, we agree with the trial court that the sentencing court’s summarization of the evidence regarding the

manner in which the defendant committed the underlying offense was not materially inaccurate, nor was the

disputed fact—namely, whether the victim sustained a

‘‘graze’’ wound—substantially relied on by the court.

At trial, several witnesses testified that the defendant

made multiple stabbing motions toward the victim prior

to inflicting the lethal blow.5 Although the defendant

is correct that the evidence indicated that the victim

sustained a single fatal injury, the court’s statement that

the victim was ‘‘grazed’’ prior to being stabbed to death

was not without a modicum of support in the record.

See State v. Francis, supra, 228 Conn. 121. Moreover,

the defendant’s sentence clearly was predicated on his

killing the victim by stabbing him in the chest, not on

the disputed graze wound.

Neither the purported inaccuracies contained in the

defendant’s presentence report nor the court’s account

of the manner in which the underlying murder occurred

support the conclusion that the defendant’s fifty year

sentence was imposed in an illegal manner. Consequently, we conclude that the trial court did not abuse

its discretion in denying the defendant’s motion to correct an illegal sentence.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The present motion is predicated on the same grounds as an earlier

motion to correct an illegal sentence that the defendant, then self-represented, filed on July 12, 2010, and amended on October 12, 2010. That motion

was denied by the trial court, Gold, J., and the defendant appealed to this

court, which reversed the trial court’s judgment on the ground that the trial

court was required to follow the procedure set forth in Anders v. California,

386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), before it properly

could deny the defendant’s request for the appointment of counsel. See

State v. Francis, 148 Conn. App. 565, 590–91, 86 A.3d 1059 (2014), rev’d,

322 Conn. 247, 140 A.3d 927 (2016). The state appealed to our Supreme

Court, which reversed the judgment of this court on the ground that the

‘‘Anders procedure is not strictly required to safeguard the defendant’s
statutory right to counsel in the context of a motion to correct an illegal

sentence.’’ State v. Francis, 322 Conn. 247, 250–51, 140 A.3d 927 (2016).

The court concluded, however, that the trial court ‘‘improperly failed to

appoint counsel to assist the defendant in determining whether there was

a sound basis for him to file such a motion,’’ and, thus, remanded the

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

defendant. Id., 251.

2 The defendant argues that because he was convicted of assault in the

third degree, which was a class A misdemeanor punishable by no more than

one year in prison, the four year sentence he received was illegal and, thus,

an inaccuracy that the court substantially relied on.

3 The defendant’s three felony convictions were (1) possession of narcotics

in violation of General Statutes (Rev. to 1989) § 21-279 (a), (2) conspiracy

to possess cocaine in violation of General Statutes § 53a-48 (a) and General

Statutes (Rev. to 1989) § 21-279 (a), and (3) murder in violation of § 53a54a (a). Despite the fact that the court referred to the second conviction

as conspiracy to sell cocaine, the actual conviction the defendant received

nonetheless was a felony conviction.

4 We also disagree with the defendant’s assertion that because his previous

sentence for assault in the third degree allegedly was illegal, the sentencing

court was not permitted to rely on the fact that he was on probation when

he committed the underlying murder. Regardless of the merits of the defendant’s argument that his sentence for his conviction of assault in the third

degree was illegal, the defendant does not dispute that he was on probation

when he committed this murder; accordingly, this fact was not materially

inaccurate when it was relied on by the sentencing court.

5

‘‘On August 12, 1990, the defendant and the victim met again. At approximately 4 p.m. on that day, two witnesses, Jennifer Green and Sandra Brown,

were on the porch of Brown’s residence at 165 Homestead Avenue in Hartford. At that time, they saw a young man, later determined to be the victim,

walking toward them on Homestead Avenue, holding an ‘ice pop’ in his

hand. At the same time, two additional witnesses, Victor Lowe and Fred

Faucette, were standing on the sidewalk of Homestead Avenue. They also

noticed the victim.

‘‘All four witnesses then observed a red Mitsubishi automobile drive up

Homestead Avenue, pass the victim, stop suddenly, back up and halt near

him. The defendant then emerged from the driver’s side of the car and

approached the victim. An argument ensuedbetween the two men. This

confrontation occurred twenty to forty feet from Lowe and Faucette.

‘‘While the defendant and victim exchanged words, the four witnesses

observed, from different vantage points, that the defendant held his right

hand behind his back. From where they were located, both Green and Brown

observed that the defendant’s hand, which was behind his back, was on the

handle of a knife. Upon seeing the knife, Brown commented to Green, ‘He

wouldn’t dare do that.’

‘‘After further words had been exchanged, the victim agreed to fight the

defendant. The victim did not, however, make any physical movement

toward the defendant. The defendant then pulled the knife from behind his

back and began to make stabbing motions at the victim. One of these

stabbing motions cut the victim’s ice pop in half as the victim was retreating.

‘‘The victim ran into a nearby yard where he was pursued by the defendant.

There, the defendant stabbed the victim in the upper left portion of his

chest, causing his death. The defendant then reentered the car and left the

scene. He was arrested in Miami, Florida, on August 17, 1990.’’ State v.

Francis, supra, 228 Conn. 120–21.