Opinion
T19RCR160109563S T19RCR160109627S
07-05-2019
STATE of Connecticut v. John HANSEN
UNPUBLISHED OPINION
OPINION
Seeley, J.
BACKGROUND
On or about September 20, 2016, the defendant was arrested and charged in Docket No. T19R-CR16-109563-S with one count of larceny in the sixth degree in violation of General Statutes § 53a-125b. On the same date, he also was arrested and charged in Docket No. T19R-CR16-109627-S with one count of larceny in the sixth degree in violation of General Statutes § 53a-125b.
On October 4, 2016, the defendant entered not guilty pleas to the charges in both docket numbers and elected to be tried by a jury. On the same date, the state filed Part B informations in both docket numbers, charging the defendant with being a persistent larceny offender. The court (Taylor, Carl, J.) read the part B Information to the defendant and stated that the state had filed a Part B information "in each matter." The court further stated that the Part B information increased the defendant’s exposure on each count from three months in jail to five years in jail, a $5,000 fine or both. The court then informed the defendant that his total exposure as a persistent larceny offender was ten years in jail, a $10,000 fine or both.
General Statutes § 53a-40(e) provides in relevant part: "A persistent larceny offender is a person who (1) stands convicted of ... larceny in the ... sixth degree, and (2) has been, at separate times prior to the commission of the present larceny, twice convicted of the crime of larceny." General Statutes § 53a-40(e).
The court read the two prior convictions that were listed on the part B informations, namely, that the defendant was convicted of larceny in the sixth degree in violation of General Statutes § 53a-125b on June 30, 2015 in the Hartford Superior Court held in Manchester; and that he had been convicted of larceny in the sixth degree in violation of General Statutes § 53a-125b on August 12, 2010 in the Tolland Superior Court held in Rockville.
Larceny in the sixth degree is a class C misdemeanor that is punishable to a term of imprisonment not to exceed three months. See General Statutes § 53a-36(3). General Statutes § 53a-40(m) provides in relevant part: "When any person has been found to be a persistent larceny offender, the court, in lieu of imposing the sentence authorized by section 53a-36 for the crime of which such person presently stands convicted, may impose the sentence of imprisonment for a class D felony ... authorized by section 53a-35a, if the crime of which such person presently stands convicted was committed on or after July 1, 1981.
On April 6, 2017, the defendant pleaded guilty to each count of larceny in the sixth degree and to the Part B Information in each docket number. The state indicated that there was no agreement as to the sentence and that the defendant faced up to ten years in jail.
After a presentence investigation report was prepared, the defendant was sentenced on June 1, 2017. The court (Oliver, J.) sentenced the defendant as follows. In Docket No. T19R-CR16-109563-S, the court imposed a sentence of thirty months of incarceration followed by thirty months of special parole. In Docket No. T19R-CR16-109627-S, the court imposed a sentence of thirty months of incarceration followed by forty-eight months to serve, to run consecutively to the other docket number, for a total effective sentence of seventy-eight months to serve, followed by thirty months of special parole.
On or about January 3, 2018, the defendant filed a motion to correct an illegal sentence in pursuant to Practice Book § 43-22 in Docket Nos. T19R-CR16-109563-S and T19R-CR16-109627-S. In his motion, the defendant claimed that the sentence imposed was illegal because "[i]t exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or internally contradictory." The defendant also requested the appointment of counsel.
On February 20, 2018, pursuant to State v. Casiano, 282 Conn. 614, 627, 922 A.2d 1065 (2007), the Office of the Public Defender was appointed for the limited purpose of determining whether there was a sound basis for pursuing a motion to correct an illegal sentence. On May 7, 2018, the defendant’s appointed counsel submitted an oral report to the court in which he and another member of his firm had spoken with the defendant and reviewed the claims and other potential claims with the defendant. Based upon their review of the matter, including consulting with the defendant and reviewing the transcripts, the defendant’s appointed counsel indicated that they concluded there might be other legal avenues for the defendant to pursue, but that there was not a basis for filing a motion to correct an illegal sentence. Counsel requested that the defendant’s motion for appointment of counsel to pursue a motion to correct an illegal sentence be denied.
Upon appointment, even though counsel’s representation of the defendant may be of limited duration, "counsel must fully satisfy all applicable professional obligations to the defendant." State v. Francis, 322 Conn. 247, 267 n.11, 140 A.3d 927 (2016).
Appointed counsel’s obligations require that he or she consult with the defendant and examine the record and relevant law. Thereafter, counsel must inform the court and the defendant either orally or in writing whether or not there is a sound basis for the defendant to file a motion to correct an illegal sentence and the reasons for that conclusion. State v. Francis, 322 Conn. 247, 267-68, 140 A.3d 927 (2016).
The defendant has a pending habeas corpus action. See Hansen v. Commissioner of Correction, Docket No. TSR-CV17-4008959-S.
Based on the oral representations provided by counsel, the court was satisfied that appointed counsel fulfilled his legal obligations by consulting with the defendant and examining the record and relevant law. The court also accepted counsel’s representation that there was not a basis for pursuing the motion. As a result, the court did not appoint counsel to pursue the defendant’s motion to correct an illegal sentence.
The defendant then indicated that he intended to hire private counsel to pursue the motion. The court continued the matter to June 4, 2018 so that the defendant could hire counsel. On June 4, 2018, the defendant questioned whether his appointed counsel was required to file an Anders brief before being permitted to withdraw, and the court explained that counsel was permitted to make an oral report to the court. The court continued the case to permit the defendant time to either hire private counsel or prepare for oral argument.
See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
On June 21, 2018, the defendant filed a motion for order in which he moved the court to order appointed counsel to file a motion to withdraw his appearance in accordance with Practice Book § 23-41 and to file a memorandum of law under seal. At the next court date held on July 2, 2018, the court again informed the defendant that counsel is not required to file an Anders brief when making a report to the court regarding whether a sound basis exists to pursue a motion to correct an illegal sentence.
The court then heard oral argument. The defendant argued that he had never been formally charged as a persistent larceny offender, that he was not aware that he was pleading without an agreement, and that his sentence constituted double jeopardy because the same two prior larceny convictions were used to establish the two persistent larceny enhancements. The defendant also submitted a typed document entitled "Facts For Oral Argument" which also included claims that he was not aware that he was going to be sentenced as a double persistent larceny offender, that his trial counsel’s performance during the guilty plea proceeding constituted ineffective assistance of counsel and his guilty plea was not made knowingly and intelligently. The state responded that the defendant’s sentence was not illegal in any manner.
On October 26, 2018, the court sua sponte reconsidered its prior denial to appoint counsel and ordered that counsel be appointed in light of the court’s review of an appellate case that was pending before the Connecticut Supreme Court and had bearing on the defendant’s double jeopardy claim. See State v. Henderson, 173 Conn.App. 119, 163 A.3d 74, cert. granted, 326 Conn. 914, 173 A.3d 389 (2017).
The defendant also filed an application for review of sentence before the Sentence Review Division of the Superior Court on June 30, 2017. After a hearing, the review division issued a written decision on September 13, 2018 and determined that "[w]hile the challenged sentences were within the limits of the plea agreement, and while the petitioner’s criminal record and repeated criminal conduct gave the sentencing court good reason to impose a significant period of incarceration, the nonviolent nature of the offenses together with the lack of physical injury to anybody in the reviewed cases cause the review division to find the total effective sentence to be disproportionate with respect to similarly-situated defendants and inappropriate in terms of physical threat to the public raised by the petitioner’s conduct." The review division remanded the matter "to the Superior Court in the Judicial District of Tolland at G.A. 19 (Rockville) for the Superior Court to resentence the petitioner to two concurrent jail sentences of five years to serve, for a total effective sentence of five years to serve."
On November 1, 2018, in accordance with the remand order issued by the Sentence Review Division of the Superior Court, this court sentenced the defendant as follows: In Docket No. T19R-CR16-109563-S, the court imposed a sentence of five years of incarceration. In Docket No. T19R-CR16-109627-S, the court imposed a sentence of five years of incarceration, to run concurrently to the sentence imposed in Docket No. T19R-CR16-109563-S, for a total effective sentence of five years to serve.
On December 12, 2018, the defendant’s second appointed counsel appeared and indicated he would be filing an amended motion to correct an illegal sentence. Both parties agreed to continue the case until the Connecticut Supreme Court issued its decision in State v. Henderson . The defendant filed an amended motion on December 31, 2018, along with a memorandum of law, claiming the sentence imposed by this court on November 1, 2018 was illegal because "two identical prior larceny convictions within the Part B informations were illegally relied upon ... to enhance both Defendant’s sentences on each docket as to the offenses of larceny in the sixth degree and violated the prohibition against double jeopardy ..." The defendant argues that only one of the larceny convictions should have been enhanced pursuant to General Statutes Section 53a-40(e) and (m) to a sentence of five years of incarceration, while the second larceny conviction should not have been enhanced.
On March 11, 2019, following the release of the decision in State v. Henderson, 330 Conn. 793, 201 A.3d 389 (2019), the court, after hearing oral argument from counsel, indicated it would issue a written memorandum of decision.
In a per curiam opinion, the Connecticut Supreme Court adopted "the reasoning of the Appellate Court’s opinion as the proper statement of the issues and the applicable law concerning those issues." State v. Henderson, 330 Conn. 793, 799, 201 A.3d 389 (2019).
DISCUSSION
Practice Book § 43-22 permits the trial court to correct an illegal sentence or other illegal disposition. Our courts have recognized that "[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 ..." State v. Evans, 329 Conn. 770, 779, 189 A.3d 1184 (2018). Our courts have recognized the following four categories of claims pursuant to Practice Book § 43-22: "[t]he first category has addressed whether the sentence was within the permissible range for the crimes charged ... The second category has considered violations of the prohibition against double jeopardy ... The third category has involved claims pertaining to computation of the length of the sentence and the question of consecutive or concurrent prison time ... The fourth category has involved questions as to which sentencing statute was applicable." Id.
In order to successfully invoke the court’s jurisdiction with respect to a claim of an illegal sentence, the focus cannot be on what occurred during the underlying conviction. State v. Lawrence, 281 Conn. 147, 158, 913 A.2d 428 (2007). "In order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding, and not the trial leading to the conviction, must be the subject of the attack." Id. See also State v. Evans, supra, 329 Conn. 779.
As recognized by the Appellate Court, "if the defendant cannot demonstrate that his motion falls within the purview of § 43-22, the court lacks jurisdiction to entertain it." State v. Jason B., 176 Conn.App. 236, 243, 170 A.3d 139 (2017). Furthermore, the court emphasized that "[a]t 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 ... In the absence of a colorable claim requiring correction, the trial court has no jurisdiction to modify the sentence." (Citation omitted.) Id., 244; see also State v. Evans, supra, 329 Conn. 784 ("[a] colorable claim is one that is superficially well founded but that may ultimately be deemed invalid").
The defendant argues that his sentence constituted double jeopardy because the same two prior larceny convictions were used to establish the two persistent larceny enhancements. The court will address the merits of this issue. See State v. Thompson, 190 Conn.App. 660, 667 n.4 (2019) (a violation of a defendant’s right against double jeopardy is one of the permissible grounds on which to challenge the legality of a sentence in a motion to correct an illegal sentence). However, while this court has jurisdiction to consider the defendant’s double jeopardy claim, he must prove it to have merit.
"The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject to the same offense to be twice put in jeopardy of life or limb ... This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial ... Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met ..." State v. Henderson, 173 Conn.App. 129-30, 163 A.3d 74 (2017), aff’d, 330 Conn. 793, 201 A.3d 389 (2019).
In State v. Henderson, the defendant was convicted of robbery in the first degree and attempt to escape custody following a jury trial. He also was charged in two part B informations as a persistent dangerous felony offender pursuant to General Statutes § 53a-40(a) regarding his conviction of robbery in the first degree and as a persistent serious felony offender pursuant to Section 53a-40(b) and (g) regarding his conviction of attempt to escape custody. Id., 126. On appeal, the defendant argued that because the same prior felony convictions served as the basis for both classifications and the resulting enhanced sentence, the two persistent felony offender classifications arose out of the same occurrences in violation of the double jeopardy clause. Id., 128, 131.
The Appellate Court rejected the defendant’s argument, concluding that "the proper inquiry in determining whether the defendant’s charges arose under the same transaction or occurrence is to examine the underlying facts supporting the defendant’s conviction of robbery in the first degree and attempt to escape from custody." Id., 131-32. The Appellate Court reasoned that a person accused of being a persistent offender "is not charged with a crime separate from the substantive crime which forms the first part of the indictment against him ... The only function of the separate judicial proceeding on the defendant’s status as a persistent [offender] is to permit an enhanced sentence for conviction of the underlying substantive crime." (Internal quotation marks omitted). Id., 131.
See also United States v. Rodriguez, 553 U.S. 377, 386, 128 S.Ct. 1783, 170 L.Ed.2d 719 (2008) (when a defendant is given a higher sentence under a recidivism statute, the enhanced punishment is for the offense of conviction, which is considered to be an aggravated offense because it is a repetitive one); Monge v. California, 524 U.S. 721, 728, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998) (enhanced sentence imposed on persistent offender should not be viewed as either a new jeopardy or additional penalty for earlier crimes but as stiffened penalty for latest crime being a repetitive crime); State v. Velasco, 253 Conn. 210, 224, 751 A.2d 800 (2000) (§ 53a-40 constitutes a sentence enhancement provision, and not an independent criminal offense").
The Appellate Court then reviewed the defendant’s conduct underlying the convictions and determined that "his conduct relating to his conviction of robbery in the first degree is temporally and substantively distinct from his conduct of conviction of attempt to escape from custody." Id., 132. The court held the defendant failed to prove that his charges arose from the same act or transaction, and therefore, "the defendant’s felony offender classifications and the resulting enhanced sentences do not violate the double jeopardy clause’s prohibition against multiple punishments for the same offense ..." Id., 132, 134.
In accordance with Henderson, this court must examine the underlying facts supporting the defendant’s two convictions for larceny in the sixth degree to determine whether the defendant’s charges arose under the same transaction or occurrence. Clearly, they did not. In Docket No. T19R-CR16-109563-S, the defendant’s underlying conduct was that "on July 14, 2016, the [defendant] left a grocery store with $196.58 in items for which he did not pay (namely, beer, a case of soda, soup, and a fruit platter)." State v. Hanson, Docket Nos. and T 19R-CR16-109627-S, 2018 WL 4781634, *1 (Judicial District of Tolland, Geographical Area 19 at Rockville September 13, 2018). In Docket No. T19R-CR16-109627-S, the defendant’s underlying conduct was that on September 20, 2016 the defendant "was stopped in the parking lot of another grocery store while loading shoplifted beer valued at $147.35 into his trunk." Id.
This citation is the opinion issued from the Sentence Review Division of the Superior Court. In the caption of the opinion, the defendant’s name is spelled "Hanson," but within the opinion it is spelled "Hansen."
The defendant’s conduct underlying his two larceny convictions did not arise from the same act or transaction since they were temporally and substantively distinct. Thus, as in Henderson, the defendant’s persistent offender classifications and the resulting enhanced sentences do not violate the double jeopardy clause’s prohibition against multiple punishments for the same offense because the offenses of which the defendant was convicted did not arise out of the same act or transaction. The defendant’s two prior larceny convictions permitted the court to sentence him pursuant to the persistent larceny offender statute, which resulted in him receiving a harsher penalty for each of the present convictions. Thus, the defendant was not punished again for his prior offenses; rather, he was punished more harshly for his present ones. Therefore, the defendant’s sentences were properly enhanced in accordance with the persistent larceny offender statutes.
Multiple punishments are forbidden only if both conditions of the double jeopardy analysis are met. See State v. Henderson, supra, 173 Conn.App. 130. Because the defendant’s convictions did not arise out of the same act or transaction, it is not necessary to proceed to the second step of the double jeopardy analysis, namely, whether the charged crimes are the same offense.
CONCLUSION
For the foregoing reasons, the defendant’s claim that his sentences constituted double jeopardy because the same two prior larceny convictions were used to establish the two persistent larceny enhancements is without merit. The defendant’s amended motion to correct illegal sentence is DENIED.
SO ORDERED.