Opinion
H12MCR140248936S
11-10-2015
State of Connecticut v. Calderon Ramon
UNPUBLISHED OPINION
Filed Date November 12, 2015
MEMORANDUM OF DECISION ON MOTION FOR ORDER RE JAIL CREDIT
LAURA F. BALDINI, JUDGE
On or about October 15, 2015, the defendant filed a motion entitled " Motion for Jail Credit." The defendant seeks jail credit for " 42 days for the time that I was stipulated by court to be in CVH program."
The facts relevant to this matter are as follows. On or about August 11, 2014, the defendant was arrested for burglary in the third degree and disorderly conduct. A jail re-interview (JRI) referral was made at the time of arraignment and a bond was set that the defendant did not post. On October 24, 2014, the defendant entered a plea of guilty to the burglary in the third degree charge, was canvassed by the court and was released on a promise to appear to attend a pretrial residential treatment program. The state and defense had agreed to a four-year " cap" agreement subject to certain conditions. The defendant was advised at the time of his plea that if he picked up a new arrest that resulted in a finding of probable cause, the court would not be bound by the four-year " cap" and could impose the maximum allowable penalty on the burglary charge--five years to serve.
The defendant, while out on the promise to appear, was arrested on charges for which probable cause was found. The defendant was ultimately sentenced to three years jail, two years special parole.
The jurisdiction of a sentencing court terminates once that sentence has begun and, thus, that court may not take any action affecting the sentence unless it expressly has been authorized to act. State v. Bruno, 132 Conn.App. 172, 177, 30 A.3d 34 (2011); Cobham v. Commissioner of Correction, 258 Conn. 30, 37, 779 A.2d 80 (2001). There are, however, circumstances where a court may have jurisdiction over a matter after a defendant has been sentenced.
For example, our Supreme Court has stated that courts have the power to correct an illegal sentence. State v. Smith, 150 Conn.App. 623, 634, 92 A.3d 975 (2014); State v. Koslik, 116 Conn.App. 693, 697, 977 A.2d 275, cert. denied, 293 Conn. 930, 980 A.2d 916 (2009); Practice Book § 43-22. In State v. McNellis, 15 Conn.App. 416, 443-44, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988), explained that " [a]n '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." By contrast, " [s]entences imposed in an illegal manner have been defined as being within the relevant statutory limits but . . . imposed in a way which violates 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 . . ." State v. Smith, 150 Conn.App. at 636, citing State v. McNellis at 444.
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.
Courts also have the authority, under General Statutes § 53a-39(a), to modify a sentence. General Statutes § 53a-39(a) provides, in relevant part:
At any time during the period of a definite sentence of three years or less, the sentencing court or judge may, after hearing and for good cause shown, reduce the sentence, order the defendant discharged, or order the defendant discharged on probation or conditional discharge for a period not to exceed that to which the defendant could have been originally sentenced.
The court has reviewed the defendant's motion. The court finds that the defendant's motion fails to set forth a jurisdictional basis upon which this court could consider it as a motion to correct an illegal sentence. The court also finds that this court lacks jurisdiction to consider the motion as a motion to modify his sentence. Gen. Stat. § 54-227(a) requires an inmate to notify Office of Victim Services and the Victim Services Unit of a request to modify a sentence. There is nothing to indicate that the defendant complied with that requirement and, as such, this court lacks jurisdiction to consider the defendant's motion.
Even if the court had jurisdiction, it is clear that the defendant's reliance upon Gen. Stat. § 18-98d(a)(1) is misguided. Gen. Stat. § 18-98d(a)(1) provides, in relevant part:
(a)(1) Any person who is confined to a community correctional center or a correctional institution for an offense committed on or after July 1, 1981, under a mittimus or because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of such person's sentence equal to the number of days which such person spent in such facility from the time such person was placed in presentence confinement to the time such person began serving the term of imprisonment imposed; provided (A) each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement; and (B) the provisions of this section shall only apply to a person for whom the existence of a mittimus, an inability to obtain bail or the denial of bail is the sole reason for such person's presentence confinement, except that if a person is serving a term of imprisonment at the same time such person is in presentence confinement on another charge and the conviction for such imprisonment is reversed on appeal, such person shall be entitled, in any sentence subsequently imposed, to a reduction based on such presentence confinement in accordance with the provisions of this section. In the case of a fine, each day spent in such confinement prior to sentencing shall be credited against the sentence at a per diem rate equal to the average daily cost of incarceration as determined by the Commissioner of Correction.
The defendant seeks jail credit for days when he was not confined. Indeed, the defendant had been released on a promise to appear to comply with pretrial conditions of release. Accordingly, the time spent while out on a promise to appear would not constitute " presentence confinement" as is defined in Gen. Stat. § 18-98d(a)(1).
The defendant's motion for jail credit is DISMISSED for lack of jurisdiction.
SO ORDERED.