Opinion
No. CR 04-0028093
March 5, 2007
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO CORRECT A SENTENCE IMPOSED IN AN ILLEGAL MANNER
The defendant has moved the court for a correction of his current twelve and one-half year sentence. In his primary claim, the defendant, citing Section 43-22 of the Connecticut Practice Book, alleges that his sentence was imposed in an illegal manner in that the plea agreement which he entered into, and which the court used to determine the length of his sentence, contained a constitutionally deficient burden of proof. Because of this alleged flaw, the defendant argues that the court must correct his sentence — either by reducing it or, alternatively, by allowing the defendant to withdraw his plea. In his second claim, the defendant asserts that the judgment mittimus upon which he is being held in the custody of the Department of Corrections states incorrectly that he was convicted of being an accessory to the crime of robbery in the first degree, when in fact he had pleaded guilty to and had been convicted of being a principal in that offense. The defendant contends that the court should therefore order the clerk of the court to prepare and forward to the Department of Corrections a corrected mittimus which reflects the precise nature of the defendant's conviction.
Practice Book § 43-22 provides: "The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.
For the reasons set forth below, the court dismisses, and, in the alternative, denies on the merits, the relief sought in the defendant's first claim. As to the defendant's second claim, the court grants the relief requested.
I. FACTUAL AND PROCEDURAL HISTORY
On January 19, 2005, the defendant appeared with counsel before the court, Damiani, J., and, having negotiated with the state the terms of a plea agreement, entered a plea of nolo contendere to the charge of robbery in the first degree. The plea agreement was a so-called Garvin plea agreement. The agreement provided that the defendant, who until that time was being held in custody as a pretrial detainee in lieu of bond, would be released on a promise to appear until his sentencing on March 18, 2005. 1/19/05T, at 3-8, 13-16. The agreement further provided, however, that the defendant's presentence release would be subject to certain terms and conditions — each of which was fully explained to the defendant during the course of the court's canvass of his plea. Id. In accepting the defendant's plea, the court indicated that if the defendant complied in all respects with the terms of his release as provided for in the plea agreement, then on the date of sentencing the defendant would receive an agreed sentence of ten years incarceration. On the other hand, the plea agreement also provided that if the defendant did not comply with the terms of his release, then the defendant would no longer be guaranteed a ten-year sentence, but rather would be subject to a sentence in the court's discretion of between ten years and twenty years. Id.
The transcript of the January 19, 2005 plea proceedings was introduced by the defendant as Exhibit B at the hearing on the instant Motion. Citations herein to "1/19/05T" refer to that transcript. The defendant also introduced as Exhibit C the transcript of a portion of his sentencing hearing, which was conducted by this court on July 14, 2005. Citations herein to "7/14/05T" refer to the transcript of these sentencing proceedings.
State v. Garvin, 242 Conn. 296 (1997).
"A Garvin agreement is a conditional plea agreement that has two possible binding outcomes, one that results from the defendant's compliance with the conditions of the plea agreement and one that is triggered by his violation of a condition of the agreement." State v. Stevens, 278 Conn. 1, 6 (2006) (citation omitted).
Among the release conditions set forth in the plea agreement were that the defendant would comply with a curfew and that he would not engage in any new criminal activity.
In the course of canvassing the defendant as to the circumstances that would trigger this potentially harsher outcome, the court explained that the plea agreement provided that the standard of probable cause would be used in determining which of the Garvin outcomes would control the defendant's sentencing. Id. at 5-6. In other words, the court advised the defendant that the terms of the plea agreement were such that he would be exposed to the greater sentence of up to twenty years if the court, after an evidentiary hearing, found probable cause to believe that the defendant had violated the terms of his release. After the defendant indicated that he fully understood the terms of the Garvin agreement, the court accepted his plea, released the defendant on a promise to appear, and continued the matter for sentencing until March 18, 2005.
Shortly before the scheduled sentencing date, the state notified the court that the defendant was alleged to have violated the terms of his release. On the basis of that allegation, the court, Damiani, J., scheduled an immediate hearing and ordered that the defendant be notified to appear. When the defendant did not appear for the hearing, he was ordered rearrested by the court. The defendant subsequently was apprehended on that rearrest warrant and held in lien of bond. In the weeks that followed and in anticipation of his then upcoming sentencing hearing, the defendant raised a number of substantive and procedural claims concerning the terms of his plea agreement. One of these claims caused the court, Damiani, J., to choose to recuse itself from deciding whether the defendant had violated the terms of his release, and if so, from determining the appropriate sentence to be imposed. These matters were instead referred to this court for determination.
Commencing on June 29, 2005 and continuing on dates thereafter, this court presided over the defendant's sentencing hearing. After considering the evidence presented, the court concluded that there was probable cause to believe that the defendant had violated the terms of his release and that, accordingly, the defendant — pursuant to the second Garvin outcome — was thereby subject to a sentence of between ten years and twenty years incarceration. On August 19, 2005, and after hearing additional evidence deemed relevant to the issue of sentencing, the court imposed a sentence of twelve and one-half years incarceration.
On November 7, 2005, the defendant filed a direct appeal of this court's rulings, as well as certain rulings of the court, Damiani, J., to the Appellate Court. That appeal, AC 27088, is currently pending. In the first issue raised in that appeal, the defendant argues that his Garvin plea agreement was void because it called for the use of a probable cause standard, and not a preponderance of the evidence standard, in determining which of its conditional outcomes would apply at the time of the defendant's sentencing. Contending that he is entitled to specific performance of the more favorable outcome of his Garvin agreement, the defendant first asks the Appellate Court to order that he be resentenced to the agreed-upon term of ten years. In the alternative, the defendant requests that he be permitted to withdraw the plea he entered on January 19, 2005.
With his appeal pending, the defendant subsequently filed with this court the instant Motion to Correct a Sentence Imposed in an Illegal Manner (hereinafter "Motion" or "Motion to Correct"). Though necessarily couched in terms consistent with the language of Practice Book § 43-22, this Motion raises what is in essence the identical issue now pending before the Appellate Court. As he has claimed on appeal, the defendant asserts here that his sentence was imposed in an illegal manner because "[p]robable cause is not the proper standard of review in determining a breach of a condition under a Garvin plea agreement." Motion, at 3. On this basis, the defendant asks this court, as he has asked the Appellate Court on direct appeal, to resentence him to a ten-year sentence, or, alternatively, to allow him to withdraw his plea.
Certainly, the interests of judicial economy might be better served if this court could decline to rule on the defendant's claim until such time as the Appellate Court has considered and decided the same question in the context of the defendant's pending appeal. However, the law, at least as this court understands it, is that "[a]lthough it may be `efficient' for a trial court not to expend judicial resources on a question that a pending appeal may subsequently render moot, that kind of efficiency has never been considered a justification for a trial court's refusal to consider a question." Ahneman v. Ahneman, 243 Conn. 471, 483 (1998).
The court recognizes that the opening paragraph of the defendant's Motion solely requests that the defendant's sentence be "correct[ed]" from twelve and one-half years to ten years. However, the Motion later asserts that this court "should have allowed the defendant to withdraw his plea as the [plea] agreement containing [sic] a constitutionally deficient standard of review." Motion, at 3. Although, in the court's view, it is unclear whether a defendant can seek to withdraw a plea through the filing of a Practice Book § 43-22 motion, for purposes of this decision the court has assumed that this type of relief can be sought by means of such a motion. State v. Stevens, 85 Conn.App. 473 (2004), rev'd on other grounds, 278 Conn. 1 (2006).
II. DISCUSSION A. Defendant's request for a reduction of his sentence 1. Jurisdiction
Before considering the merits of the defendant's claim, the court is required first to determine whether it has jurisdiction to entertain the Motion. As a general rule, "the jurisdiction of the sentencing court terminates once a defendant's sentence has begun and . . . [the] court [thereafter] may not take action affecting a defendant's sentence unless it expressly has been authorized to act." State v. Lawrence, 281 Conn. 147, 155 (2007). Recognizing this limitation, the defendant here relies on a common-law exception to this rule, embodied in Practice Book § 43-22 — a provision which allows the trial court to correct an illegal sentence, as well as any sentence imposed in an illegal manner. Id. Accordingly, for this court to have jurisdiction to consider the defendant's Motion, the claim raised by the defendant therein "must fall into one of the categories of claims that, under the common law, the court has jurisdiction to review." Id.
The issue of jurisdiction was not raised by either party. However, a court may raise the issue of jurisdiction sua sponte given that jurisdiction is a matter of law and cannot be waived or conferred by consent of the parties. Serrani v. Board of Ethics, 225 Conn. 305 (1993) [9 Conn. L. Rptr. 380]; State v. Welwood, 258 Conn. 425, 436 (2001).
Although Practice Book § 43-22 pertains to the correction of both illegal sentences and sentences imposed in an illegal manner, the defendant here contends only that his sentence was imposed in an illegal manner. As our Supreme Court recently noted in Lawrence, the phrase "sentence imposed in an illegal manner" has been defined as being "within the relevant statutory limits but . . . imposed in a way which violates the 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 bargain promises." Lawrence, 281 Conn. at 156 n. 5, quoting State v. McNellis, 15 Conn.App. 416, 443-44, cert. denied, 209 Conn. 809 (1988). Thus, only "if the defendant's claim were to fall into any of [these] categories, [can] § 43-22 . . . be the proper vehicle by which he could invoke the trial court's jurisdiction." Lawrence, 281 Conn. at 159. On the other hand, if "the defendant's claim falls outside that set of narrow circumstances in which the court retains jurisdiction over a defendant once that defendant . . . begin[s] serving his sentence, the court lacks jurisdiction to consider the claim pursuant to a motion to correct . . . under § 43-22." Id.
The defendant does not allege, nor could he, that the sentence imposed in this case was illegal. "An `illegal sentence' is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory." Lawrence, 281 Conn. at 156, quoting State v. McNeills, 15 Conn.App. 416, 443-44, cert. denied, 209 Conn. 809 (1988). Because the defendant's sentence (1) was within the permissible range for the crime charged, (2) presents no issue of multiple punishment for the same offense, (3) does not involve the proper computation of concurrent and consecutive sentences, and (4) raises no question as to the applicability of competing sentencing statutes, Lawrence, 281 Conn. at 156-57, he cannot now rely on that portion of Practice Book § 43-22 that applies to an illegal sentence.
While the defendant here may contend that his sentence was imposed in an illegal manner, he makes no specific allegation that falls within the definition set forth in McNellis and adopted in Lawrence. The defendant does not claim that he was deprived of the right to be present for and to allocute at his sentencing. Nor does he assert that this court imposed a sentence based upon information that was inaccurate or not contained in the record. Although he does raise a claim as to the terms of his Garvin plea agreement, he fails even to suggest that the state has reneged upon its plea agreement promises, or otherwise has deprived the defendant of some benefit of that agreement. In point of fact, the defendant advances what could be called the opposite claim, in that he argues not that the plea agreement was breached, but rather that it was enforced — and in a manner precisely in accordance with its terms.
For this reason, this court concludes that it lacks jurisdiction to consider the defendant's Motion. In this court's opinion, the "narrow circumstances" defined by Lawrence and McNellis must be carefully adhered to and strictly construed. Indeed, as the Appellate Court recently noted, unless a defendant's claim "is expressly listed in that definition," the court lacks jurisdiction to consider a Practice Book § 43-22 claim. State v. Henderson, 93 Conn.App. 61, 71 (2006) (emphasis added) (trial court's failure to articulate the reasons for the imposition of a sentence was not within the McNellis definition of a sentence imposed in an illegal manner and thus could not be the subject of a § 43-22 motion, because "such failure [to articulate] was not expressly listed in that definition . . ."). Nowhere in the definition of "a sentence imposed in an illegal manner" is there any language that can be read to permit a defendant to utilize a Practice Book § 43-22 motion as a means to challenge the terms of a plea agreement and, thereby, the validity of an underlying conviction. In fact, Lawrence expressly states to the contrary, holding that "the relief allowed by § 43-22 require[s], as a precondition, a valid conviction," and that "the purpose of § 43-22 is not to attack the validity of a conviction by setting it aside . . ." Lawrence, 281 Conn. at 158 quoting State v. Mollo, 63 Conn.App. 487, 491, cert. denied, 257 Conn. 904 (2001).
In sum, this court concludes that a Practice Book § 43-22 motion to correct is not the proper procedural vehicle to raise the type of claim the defendant seeks to raise here. Because this court therefore lacks jurisdiction to consider the claim, the defendant's Motion is hereby dismissed. State v. Taylor, 91 Conn.App. 788, 791 (2005) ("a lack of jurisdiction requires a dismissal, rather than a denial of the defendant's [§ 43-22] motion.").
Of course, this does not mean that the defendant is without a forum to be heard. The Court in Lawrence explains that a direct appeal from the judgment of conviction generally may be pursued in order to address claims concerning the validity of the conviction. Lawrence, 281 Conn. at 151 n. 3 As noted earlier in this opinion, the defendant has pursued precisely that course of action here by asking the Appellate Court to grant him the same relief on direct appeal that he has asked this court to grant by way of the instant Motion to Correct.
2. Consideration of the merits of Defendant's claim
Even if this court were to conclude that it does have jurisdiction to consider the Motion, the court would deny on the merits the defendant's request for a correction of his sentence. As has been explained, the crux of the defendant's claim is that his Garvin plea agreement — which exposed the defendant to an enhanced sentence in the event he was found to have breached any of his release conditions — was invalid because it directed the sentencing court to employ the standard of probable cause in determining whether such a breach had in fact occurred. According to the defendant, "probable cause is not the proper standard of review in determining a breach of a condition under a Garvin plea agreement; rather the appropriate standard of review for any adversarial proceeding where the deprivation of liberty may be involved is preponderance of the evidence." Motion, at 3. Thus, on the basis of what the defendant describes as the agreement's "constitutional[ly] deficient standard of review," id., he contends that this court should not have enforced the "conditional portion of the plea agreement," id., — a reference, presumably, to that portion which authorized the sentencing court to impose an enhanced sentence upon proof that the defendant had violated the terms of his release. The defendant concludes that the court therefore should "sentence [him] to the ten years agreed to at the time of the plea." Id.
Actually, the Garvin agreement here consisted of not one, but two, "conditional portions" — one of which would be triggered if the defendant complied with the terms of his release, and the other to be triggered if the defendant did not.
More precisely, the defendant contends that the court "should . . . reform the plea agreement to sentence [him] to the ten years agreed to at the time of the plea." Motion, at 3 (emphasis added). Although the court doubts that the "reformation" of a plea agreement is a proper subject of a Practice Book § 43-22 motion, the court has proceeded on the assumption that the defendant, notwithstanding his use of this somewhat inapt phrase, seeks a correction of his sentence.
After due consideration, the court concludes that the Supreme Court's recent decision in State v. Stevens, 278 Conn. 1 (2006) controls this case and compels this court to reject the defendant's claim that probable cause is a constitutionally deficient legal standard in the context of a Garvin plea. The Garvin agreement in Stevens, like that at issue here, provided that probable cause was the standard of proof the court was to employ in determining whether the defendant had breached any of the terms of her release prior to sentencing. Furthermore, there, as here, the sentencing court decided that the defendant had breached her release conditions, and based upon this finding imposed an enhanced sentence within the parameters provided in the plea agreement. The defendant in Stevens then appealed, asserting that "the state should have been required to prove that she had breached the [plea] agreement by a preponderance of the evidence." Id. at 5-6.
Unlike the agreement here, the Stevens agreement did not specifically provide for a formal evidentiary hearing at which this determination would be made by the court.
In Stevens, our Supreme Court rejected the claim that such a higher burden of proof was constitutionally required. Stevens held that, in the Garvin setting, as long as the evidence of the breach of the condition in question bears "sufficient indicia of reliability," Stevens, 278 Conn. at 10, the sentencing court may enforce the agreement and constitutionally impose the contractually agreed-upon enhanced sentence. Importantly, Stevens also determined that such indicia of reliability existed where "the trial court [had] found probable cause" of the breach at issue. Id., at 11. Indeed, Stevens expressly held that "the defendant's [breach of conditions], supported by probable cause, in violation of her Garvin agreement, was a proper basis for the enhanced sentence." Id. at 13 (emphasis added).
In this regard, Stevens cited with approval State v. Small, 78 Conn.App. 14, 22 (2003), wherein the Appellate Court upheld a Garvin agreement which similarly had employed a probable cause standard. CT Page 9216 Stevens, 278 Conn. at 9-10.
In the face of this clear and unambiguous holding, and the equally clear and unambiguous terms of the plea agreement at issue here, the defendant's contention that his Garvin agreement was flawed is unpersuasive. "The record clearly shows that, if the defendant had wanted to take advantage of the [ten] year sentence upon [his] return to court, [he] would have had to have avoided [any breach of his release conditions] for which probable cause could be determined." Stevens, 278 Conn. at 9. The defendant was specifically advised by the court during its canvass of his plea that any breach proven to this standard of proof would deprive him of the agreed-upon ten-year sentence and instead expose him to a sentence of between ten years and twenty years. "Rather than express any confusion about these conditions, the defendant acknowledged the requirements and accepted them." Id.
The court is not unmindful that Justice Norcott, in his concurring opinion in Stevens, "disagreed with the majority's position that a showing of probable cause [of a breach] is constitutionally sufficient . . ." Stevens, 278 Conn. at 19 (Norcott, J. concurring), and concluded instead that "the breach of a . . . condition must be proven by a preponderance of the evidence." Id. at 26. While the defendant relies heavily on this concurring opinion and the authorities cited within it, this court is not only constrained as a matter of law to follow the decision of the Stevens majority, it also considers the majority's opinion to be more persuasive.
At the subsequent sentencing hearing, this court concluded that, based upon the evidence presented, there was probable cause to believe that the defendant had breached the conditions of his release. 7/14/05T, at 27-32. In fact, after expressing its uncertainty as to whether probable cause was an appropriate standard to employ, this court went on to determine that the state had proven the breach not only to the agreement's stated standard of probable cause, but that the state also had proven such a breach beyond a reasonable doubt. Id., at 29. Having determined that the defendant had violated that portion of the agreement which guaranteed him a ten-year sentence, this court thereupon enforced those terms of the defendant's Garvin contract which the defendant agreed were to apply in the event he was found to have breached the conditions of his release. Because the defendant had agreed under those circumstances to be exposed to a sentence of between ten years and twenty years, the court's sentence of twelve and one-half years was well within the range of sentences bargained for by the defendant.
The sentencing hearing in this case was an adversarial hearing at which witnesses were called and cross-examined, and the rules of evidence were applied. The defendant was given an essentially unfettered opportunity to challenge the state's claim that he had breached his Garvin agreement and to attempt to persuade the court that such a breach had not been adequately proven by reliable evidence. By conducting such a hearing, this court afforded the defendant far greater rights than had been afforded the defendant in Stevens, and far greater rights than Stevens suggests may be constitutionally required.
See note 2, supra.
When the sentencing hearing in this case was conducted, Stevens was before the Supreme Court but had not yet been decided. At that time, the Appellate Court's decision in Stevens, reported at 85 Conn.App. 473 (2004), was controlling. In that decision, the Appellate Court had determined that the defendant's Garvin agreement was invalid, but did not specifically address the burden of proof issue in its decision. However, against the backdrop of that Appellate Court precedent, this court, in presiding over the sentencing in the instant case, harbored some doubt as to the burden of proof that the then-forthcoming Supreme Court opinion in Stevens might ultimately determine was applicable to Garvin agreements. As a result, this court, after holding that there was probable cause to believe the defendant had breached the terms of his release, went on to decide (unnecessarily, as it turned out, given the Supreme Court's subsequent determination) that the breach also had been proven to a much more exacting standard of proof.
For these reasons, even if the Motion is properly before the court, the defendant is not entitled to withdraw his plea, or to be sentenced to a reduced term, or for that matter to any other relief. Accordingly, and assuming, without deciding, that this court has appropriate jurisdiction, the first part of the defendant's Motion is hereby denied on the merits.
B. Defendant's request for the correction of his mittimus
The second part of the defendant's Motion to Correct asks the court to order the clerk of the court to prepare and submit to the Department of Corrections a corrected sentencing mittimus. Specifically, the defendant argues that his current mittimus sets forth incorrectly that he was convicted of robbery in the first degree as an accessory, when, in fact, he was convicted of that crime as a principal.
At the outset, it should be noted that the court agrees with the defendant that he was convicted of robbery in the first degree as a principal offender. The transcript of the defendant's January 19, 2005 plea indicates that the defendant entered a plea of nolo contendere when the clerk asked if the defendant was guilty or not guilty of "Robbery in the 1st degree, in violation of Connecticut General Statutes number 53a-134, subpart A, subpart 4." 1/19/05T, at 10. Moreover, in providing the factual basis for the plea, the assistant state's attorney stated that the "defendant and a co-defendant . . . entered the store," that "[a]t that time, this defendant was armed with a handgun and the two of them, jointly, stole money from the cash register," and that the defendant "represented by his words or conduct that [he was in possession of] a handgun." Id. at 14. Thus, not only was there no mention of accessorial liability and no reference to Conn. Gen. Stat. § 53a-8 in the charge to which the defendant was formally put to plea, there was also no suggestion in the state's recitation of the facts that the defendant only had aided in the commission of the crime. Yet, for some reason, the sentencing mittimus subsequently issued by the court clerk apparently reflects that the defendant had been convicted as an accessory.
Since the mittimus in question was not introduced as evidence at the hearing on the Motion, the court is uncertain as to whether the problem lies in the actual words or phrases appearing on the mittimus — words and phrases such as accessory" or "aiding and abetting," or whether the mittimus perhaps contains an erroneous citation to Conn. Gen. Stat. § 53a-8.
Based upon the Appellate Court's decision in State v. Gamble, 27 Conn.App. 1, cert. denied, 222 Conn. 901 (1992), this court concludes that a motion filed pursuant to Practice Book § 43-22 is an appropriate procedural vehicle by which to seek the correction of a mittimus, and that the defendant is therefore entitled to the relief he requests. In Gamble, the defendant had entered his plea of guilty to the crime of manslaughter in the first degree. Although the state had not formally charged the defendant as an accessory, "the defendant did not admit to the factual allegations that he was the principal actor" and instead "admitted and the court accepted only that he was an accessory to manslaughter." Id. at 9-10. Notwithstanding the fact that the defendant "was found to be responsible . . . [by] intentionally aid[ing]," id. at 10, the mittimus upon which he was placed in the custody of the Department of Corrections had failed to indicate this. The defendant thus filed a motion pursuant to then Practice Book § 935, the predecessor of the current § 43-22, alleging that he was sentenced in an illegal manner because his sentencing mittimus was incorrect. The trial court denied the motion and the defendant appealed.
On appeal, the Appellate Court reversed and held that the defendant was entitled to have his mittimus corrected so as to specify the theory of liability upon which he was convicted. Gamble noted that "[a] judgment of conviction must conform to the crime with which the defendant was charged," and that a defendant "is entitled to a judgment, sentence and mittmus that reflects that crime." Gamble, CT Page 9213 27 Conn.App. at 11-12. The Appellate Court "therefore conclude[d] that the [trial] court should have granted the defendant's motion to correct a sentence made in an illegal manner, pursuant to Practice Book § 935," id. at 12, and remanded with direction that "the judgment and mittimus be corrected." Id. at 15 n. 8.
Here, the defendant is entitled to same relief. Although Gamble involved a correction from principal liability to accessorial liability and the instant matter involves a request to correct from accessorial liability to principal liability, this court finds no rational reason to distinguish between the two. In either case, as Gamble makes clear, a defendant is entitled to have his sentencing mittimus accurately recite the theory of liability upon which he was convicted. Because the defendant here was put to plea as a principal and the factual basis of that plea fully supports such principal liability, his sentencing mittimus should specify this theory and. should contain no reference, in words or by statutory citation, to accessorial liability.
III. CONCLUSION
For the reasons above stated, solely to the extent that the Motion to Correct seeks a correction of the defendant's sentencing mittimus, that portion of the Motion is granted, and the clerk of the court is hereby ordered to prepare and submit to the Department of Corrections a revised mittimus which (1) reflects that the defendant was convicted of robbery in the first degree in violation of Conn. Gen. Stat. § 53a-134(a)(4); and (2) contains no reference to accessorial liability nor any citation to Conn. Gen. Stat. § 53a-8. To the extent the Motion asks the court to reduce the term of the defendant's current twelve and one-half year sentence, or to permit the defendant to withdraw his plea, the Motion is hereby dismissed on jurisdictional grounds, and, in the alternative, denied on its merits.
BY THE COURT