Opinion
NNHCR94163987S
11-01-2017
State of Connecticut v. Gaylord Salters
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION TO CORRECT AN ILLEGAL SENTENCE
Patrick J. Clifford, J.
In 2001 the defendant was sentenced as a result of conviction after trial of Assault of a Correctional Officer (53a-167c) to ten years execution suspended after five years followed by five years of probation with special conditions. On May 30, 2017 the defendant filed a Motion to Correct and Illegal Sentence claiming that the trial judge relied on inaccurate information in formulating his sentence. The defendant claims that the inaccurate information was in the State's Sentencing Memorandum and an attached affidavit to the memorandum by a Detective Richard Pelletier. The information the state set forth at sentencing was that the defendant was affiliated with the Island Brothers street gang for an extended period of time and had been in the upper echelon of that gang. The affidavit by Detective Pelletier also included information he had acquired from a Detective Donald Eck from North Carolina that the defendant and his gang were involved in narcotic sales and a separate shooting in that state in the late nineties. The state's alleged purpose of the memorandum and affidavit was to rebut the defendant's claim in the Pre-sentence Report of his changed ways.
As a general rule a court loses jurisdiction over a case when a defendant is committed to the custody of the commissioner of correction and commences serving the sentence. State v. Robles, 169 Conn.App. 127, 150 A.3d 687 (2016). A trial court cannot take any action affecting a defendant's sentence unless it expressly has been authorized to act by statute or case law. Practice Book Section 43-22 does authorize the court to correct an illegal sentence or one imposed in an illegal manner. 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. A sentence imposed in an illegal manner is one imposed in a way which violates a defendant's right to be addressed personally at sentencing and to speak in mitigation of punishment, or one which violates a defendant's right to be sentenced by a judge relying on accurate information or considerations solely on the record, or one in which the government does not keep it's plea agreement. See State v. McNellis, 15 Conn.App. 416, 546 A.2d 292 (1988); State v. Robles, supra . In State v. Parker, 295 Conn. 825, 992 A.2d 1103 (2010) our Supreme Court noted that the above examples of when a sentence is an illegal one or one imposed in an illegal manner are not exhaustive.
Although the defendant at his sentencing in 2001 did not object to the state's sentencing memorandum or the affidavit that was attached to it, this court found that it had jurisdiction to address the defendant's claim that his sentence was one imposed by the court relying on inaccurate information. " . . . (D)ue process precludes a sentencing court from relying on materially untrue or unreliable information in imposing a sentence." State v. Parker, supra, 295 Conn. 843. For the defendant to prevail on his claim that the sentence was imposed in an illegal manner on this basis he must prove 1) that the alleged misinformation was materially inaccurate, and 2) that the sentencing court relied on such information to the defendant's detriment at the sentencing. A court relies on misinformation when it gives explicit attention to it, bases its sentence at least in part on it or gives specific consideration to the information. See State v. Parker, supra; State v. Martin, M, 143 Conn.App. 140, 70 A.3d 135 (2013); State v. Charles, F., 133 Conn.App. 698, 36 A.3d 731 (2012); and State v. Bozelko, 175 Conn.App. 599, 167 A.3d 1128 (2017).
DISCUSSION
At the hearing on October 20, 2017 the defendant presented two witnesses in support of his motion and introduced seven exhibits. The state introduced four exhibits and this court had one document marked as a court's exhibit. One witness was Attorney James Clark who prosecuted the defendant and submitted the sentencing memorandum to the trial court in 2001. The other witness was former New Haven Detective Richard Pelletier who had authored the affidavit that was attached to the state's memorandum. (State's exhibit #1.)
In reaching its conclusions, the court has fairly and impartially considered all of the evidence received at the hearing, evaluated the credibility of the witnesses; assessed the weight, if any, to be given specific evidence and measured the probative force of conflicting evidence; reviewed all exhibits, relevant statutes, and case law; and has drawn such inferences from the evidence, or facts established by the evidence, that it deems reasonable and logical. Additionally, any other evidence on the record not specifically mentioned in this decision that would support a contrary conclusion, whether said evidence was contested or uncontested by the parties, was considered and rejected by the court. See State v. Edmonds, 323 Conn. 34, 145 A.3d 861 (2016).
The gist of the defendant's claim is that State's exhibit #1 contained inaccurate information and that the sentencing judge relied upon it. Attorney Clark's memorandum indicated that the defendant was the leader of a violent street gang that sold narcotics in New Haven, CT. In the memorandum he referred to Detective Pelletier's affidavit and to a copy of Pelletier's sworn in court testimony apparently from another trial in 1999 concerning the Island Brothers gang (that transcript was not introduced as an exhibit). Richard Pelletier testified that he did author the affidavit at the request of Attorney Clark. His affidavit states that he had previously qualified in court as an expert in New Haven gangs and specifically the Island Brothers in 1999 and 2000. His affidavit indicated that he was informed by Detective Donald Eck, " a police detective in Greenville, North Carolina" that North Carolina authorities were actively investigating the defendant and others from the Island Brothers for narcotic sales and also that the defendant and an associate were involved in a shoot out in 1997 in Wilmington, N.C. with rival drug dealers.
The defendant failed to establish that there existed any inaccurate information or misrepresentations to the sentencing judge within the state's memorandum and affidavit. The defendant's exhibits C through G were offered to establish there was no record of a Detective Donald Eck from North Carolina that could have supplied information to Detective Pelletier in a phone conversation concerning the defendant's activities. However in response to an FOI request from the defendant's former attorney the Brunswick County Sheriff's Office indicated in Exhibit C that a Donald Eck was employed by the Oak Island Police Department of North Carolina as part of a task force that assisted the Sheriff's department. Defense exhibits' C through G requested of various police agencies in North Carolina any documentation of a Detective Donald Eck's involvement as an employee with their agency concerning the defendant and other associates around May of 2001 . Detective Pelletier testified at the hearing that he may have had the conversation with Detective Eck from North Carolina in the late nineties and not in the year he actually executed the affidavit in 2001. He recalled that these conversations took place when he was with the Connecticut State Police Task Force which ended in 1999. Detective Pelletier testified that he had many conversations with Detective Eck from North Carolina. Detective Eck telephonically initiated the contact with him because of ongoing investigations concerning the defendant. The defendant's arrest record from North Carolina (State's Exhibit #4) corroborated his presence there with arrests in 1997 in Brunswick County for narcotic violations and in Wilmington on a shooting case. (See also Defense Exhibit A.) This court finds from this evidence that the information Detective Pelletier received from North Carolina occurred closer to 1999. The information concerning the defendant's activities in North Carolina was more important than which police agency the caller was employed by in that state. Besides the information from North Carolina, Detective Pelletier's affidavit also indicates his own expertise in the Island Brothers gang and the defendant's involvement with it. He qualified as an expert in that area and testified at other trials.
Even if the information provided to the sentencing court was somehow inaccurate, the defendant has failed to prove that the sentencing court relied upon it in any material way.
The sentencing court made the following relevant remarks at sentencing:
All right. I believe now and I've believed basically for a long time that fundamentally people should be sentenced for their conduct. That--that's fundamentally what the sentencing rule is. It's not to judge the worth of people but to sentence them for their conduct. State's Exhibit #2. (Sentencing Transcript at 15 In 18-23.)
This question about the Island Brothers. It's not Al Capone justice where just because someone thinks you're a member of some organization that--that is--has a negative connotation all of a sudden you max someone out. I don't subscribe [to] that." State's Exhibit #2. (Sentencing Transcript at 17 In 25-27, 18 In 1-2.)
On the other hand, belonging to an organization like that, they've got a reputation. All right. And everybody knows their reputation. So if you choose to affiliate yourself with them, it's not like having a job at some place where you go to work every day from nine to five, come home, and bring your paycheck home. Okay. So, to that extent it's--let's put it this way, it's not--doesn't suggest a lot of positive things, but I don't see that as a major point." State's #2. (Sentencing Transcript at 18 In 3-12.)
The sentencing court did not specifically refer to any information from a Detective Eck or North Carolina in its sentencing remarks. It appears that the sentencing court discounted the value of any relevance of gang activity or the Island Brothers in the sentencing and did not rely on those claims to the detriment of the defendant. The court actually sentenced the defendant to five years of prison when the maximum period could have been ten years.
This court finds that the defendant failed to establish either that there existed any inaccurate information or misrepresentations presented to the sentencing court by the state or that the court actually relied on any of the claimed inaccuracies.
For all of the foregoing reasons, the defendant's Motion to Correct an Illegal Sentence is DENIED.