Justia.com Opinion Summary: Defendant pled guilty to sexual assault in the second degree, sexual assault in the third degree, and risk of injury to a child. The Supreme Court twice remanded the case to the trial court for resentencing. At the hearing for resentencing upon the second remand, Defendant moved to withdraw his prior pleas, and the trial court denied his motion. On appeal, Defendant claimed the trial court should have granted his motion pursuant to Practice Book 39-26 and 39-27(2) as well as due process protections because the Supreme Court previously determined that his plea agreement resulted in an unenforceable illegal sentence. The Supreme Court reversed and remanded with direction to dismiss Defendant's motion to withdraw his pleas, holding that Defendant's motion was beyond the scope of remand for resentencing and therefore should have been dismissed for lack of subject matter jurisdiction.
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STATE OF CONNECTICUT v. JOHN TABONE
(SC 18581)
Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh, Harper and
Vertefeuille, Js.
Argued April 28—officially released July 26, 2011
Andrew S. Liskov, special public defender, for the
appellant (defendant).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, was John A. Connelly, former
state’s attorney, for the appellee (state).
Opinion
EVELEIGH, J. This case comes before the court for
a third time following our second remand for resentencing. See State v. Tabone, 279 Conn. 527, 902 A.2d 1058
(2006) (Tabone I); State v. Tabone, 292 Conn. 417, 973
A.2d 74 (2009) (Tabone II). At the hearing for resentencing upon remand, the defendant moved to withdraw
his prior pleas. The motion was denied by the trial
court. The defendant now appeals1 from the judgment
of the trial court denying his motion to withdraw his
pleas.2 On appeal, the defendant claims that the trial
court should have granted his motion pursuant to Practice Book §§ 39-26 and 39-27 (2), as well as the due
process protections under both the United States and
Connecticut constitutions because this court in Tabone
II determined that his plea agreement resulted in an
unenforceable illegal sentence.3 The state contends that
the motion was beyond the scope of this court’s remand
and, therefore, the trial court lacked subject matter
jurisdiction to consider the defendant’s motion. We
agree with the state and conclude that the defendant’s
motion should have been dismissed.
Some historical perspective is helpful to an understanding of the present matter. In Tabone I, supra, 279
Conn. 529, the defendant appealed from the judgment
of the trial court denying his motion to correct an illegal
sentence. He had previously pled guilty on November
2, 2000, to one count each of the crimes of sexual assault
in the second degree in violation of General Statutes
(Rev. to 1999) § 53a-71 (a) (4), sexual assault in the
third degree in violation of General Statutes (Rev. to
1999) § 53a-72a (a) (1) (A), and risk of injury to a child
in violation of General Statutes (Rev. to 1999) § 53-21
(2). Id., 530. ‘‘The trial court sentenced the defendant
as follows: (1) for the charge of sexual assault in the
second degree, ten years imprisonment followed by ten
years of special parole; (2) for the charge of sexual
assault in the third degree, five years of imprisonment
followed by five years of special parole; and (3) for
the charge of risk of injury to a child, five years of
imprisonment followed by five years of special parole.
The trial court ordered all of the sentences to run concurrently, resulting in a total effective sentence of ten
years imprisonment followed by ten years of special
parole.’’ Id. On appeal, ‘‘[w]e conclude[d] that the defendant’s sentence violate[d] [General Statutes] § 54-128
(c) because the total length of the term of imprisonment
and term of special parole combined exceed[ed] the
maximum term of imprisonment authorized for sexual
assault in the second degree.’’4 Id., 523. We held that
the defendant’s sentence was illegal because his sentence of special parole potentially exposed him to an
additional term of imprisonment after he had finished
serving his ten year maximum term of imprisonment.
Id., 537–38. Therefore, we concluded that the term of
ten years imprisonment and ten years special parole
exceeded the maximum statutory limit for the offense
of sexual assault in the second degree. Id., 544. We also
noted that the defendant’s sentence for sexual assault
in the third degree violated § 54-128 (c). Id., 545. Accordingly, we remanded the case to the trial court for resentencing in accordance with State v. Raucci, 21 Conn.
App. 557, 575 A.2d 234, cert. denied, 215 Conn. 817, 576
A.2d 546 (1990), and State v. Miranda, 260 Conn. 93,
127–30, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S.
Ct. 224, 154 L. Ed. 2d 175 (2002), wherein we had
approved the standard upon remand of an illegal sentence, or successful appeal by a defendant in a multi
count conviction and punishment. Tabone I, supra, 544.
Those cases affirm that ‘‘[t]he guiding principle is that
the court may resentence the defendant to achieve a
rational coherent [sentence] in light of the remaining
convictions’’; (internal quotation marks omitted); as
long as the revised total effective sentence does not
exceed the original. State v. Raucci, supra, 563.
On remand, the trial court sentenced the defendant to
a total effective sentence of twenty years incarceration,
execution suspended after ten years, followed by ten
years probation for his conviction of sexual assault in
the second degree, sexual assault in the third degree
and risk of injury to a child. Tabone II, supra, 292 Conn.
425–26. In Tabone II, the defendant again appealed from
the judgment of the trial court, claiming, inter alia, that
the total effective sentence after remand was illegal
because the substitution of ten years probation for the
ten years special parole unconstitutionally enlarged his
sentence. Id., 426–27. We reversed the judgment of the
trial court and remanded the case for further proceedings. Id., 442. We agreed with the defendant that,
because the terms of incarceration following violations
of probation and special parole are calculated differently, the defendant could be exposed to a significantly
longer period of incarceration for a probation violation
than for a violation of special parole, thereby exceeding
the confines of his original sentence. Id., 428–31.
The following additional facts and procedural history
are relevant to the present appeal. In Tabone II, supra,
292 Conn. 431, we stated: ‘‘[W]e once again remand the
case for resentencing in accordance with the aggregate
package theory under State v. Raucci, supra, 21 Conn.
App. 539, and State v. Miranda, supra, 260 Conn. 93.’’
In our opinion, we suggested that, upon remand, ‘‘the
defendant could be sentenced to a total effective sentence of ten years incarceration followed by nine years
of special parole . . . .’’ Tabone II, supra, 438. We left
the ultimate sentencing decision, however, to the trial
court. Id. Thereafter, on remand in the trial court, the
defendant moved to withdraw his pleas. The trial court
heard argument on the defendant’s motion before denying it on the merits.5 The trial court then resentenced the
defendant in accordance with our suggested sentence.
We begin our analysis with the applicable standard
of review and relevant legal principles. ‘‘Determining
the scope of a remand is a matter of law because it
requires the trial court to undertake a legal interpretation of the higher court’s mandate in light of that court’s
analysis. . . . Because a mandate defines the trial
court’s authority to proceed with the case on remand,
determining the scope of a remand is akin to determining subject matter jurisdiction. . . . We have long held
that because [a] determination regarding a trial court’s
subject matter jurisdiction is a question of law, our
review is plenary.’’ (Citations omitted; internal quotation marks omitted.) Hurley v. Heart Physicians, P.C.,
298 Conn. 371, 383, 3 A.3d 892 (2010); see also Matey
v. Estate of Dember, 85 Conn. App. 198, 206, 856 A.2d
511 (2004) (following remand, trial court’s jurisdiction
and duties are limited to scope of remand order); 5 Am.
Jur. 2d 453, Appellate Review § 784 (1995) (lower court
powerless to undertake any proceedings beyond those
specified by higher court’s opinion and mandate).
‘‘The subject matter jurisdiction requirement may not
be waived by any party, and also may be raised by a
party, or by the court sua sponte, at any stage of the
proceedings, including on appeal.’’ Peters v. Dept. of
Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).
We consider the question of subject matter jurisdiction
in the present case because, once raised, that question
must be answered before we can address the other
issues raised. Rayhall v. Akim Co., 263 Conn. 328, 337,
819 A.2d 803 (2003).
‘‘Well established principles govern further proceedings after a remand by this court. In carrying out a
mandate of this court, the trial court is limited to the
specific direction of the mandate as interpreted in light
of the opinion. . . . This is the guiding principle that
the trial court must observe. . . . The trial court should
examine the mandate and the opinion of the reviewing
court and proceed in conformity with the views
expressed therein. . . . West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 312, 541 A.2d
858 (1988); see Wendland v. Ridgefield Construction
Services, Inc., 190 Conn. 791, 794–95, 462 A.2d 1043
(1983); State v. Avcollie, 188 Conn. 626, 643, 453 A.2d
418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088,
77 L. Ed. 2d 299 (1983); Nowell v. Nowell, 163 Conn.
116, 121, 302 A.2d 260 (1972).’’ (Internal quotation marks
omitted.) Bauer v. Waste Management of Connecticut,
Inc., 239 Conn. 515, 522, 686 A.2d 481 (1996). ‘‘These
principles apply to criminal as well as to civil proceedings.’’ State v. Lafferty, 191 Conn. 73, 76, 463 A.2d 238
(1983). ‘‘The trial court cannot adjudicate rights and
duties not within the scope of the remand.’’ (Internal
quotation marks omitted.) State v. Avcollie, supra, 643.
In Tabone II, supra, 292 Conn. 442, this court
remanded the case to the trial court solely for resentenc-
ing in accordance with the reasoning set forth in that
decision. Therefore, the trial court’s authority was limited to that task. State v. Avcollie, supra, 188 Conn. 643.
Accordingly, the trial court did not have subject matter
jurisdiction over the defendant’s motion to withdraw
his pleas. Because the trial court lacked subject matter
jurisdiction over the defendant’s motion, it should have
dismissed the motion rather than denied it. See In re
Matthew F., 297 Conn. 673, 676, 701, 4 A.3d 248 (2010)
(reversing, for lack of subject matter jurisdiction, grant
of petitioner’s motion that department of children and
families pay for petitioner’s private placement services
and remanding to trial court with direction to dismiss);
see also State v. Taylor, 91 Conn. App. 788, 795, 882 A.2d
682 (reversing, for lack of subject matter jurisdiction,
denial of defendant’s motion for correction of illegal
sentence and remanding to trial court with direction to
dismiss), cert. denied, 276 Conn. 928, 889 A.2d 819
(2005). When a trial court mistakenly denies a motion
instead of dismissing it for lack of subject matter jurisdiction, the proper remedy is to reverse the order denying the motion and remand the case with direction to
dismiss the motion. State v. Francis, 69 Conn. App.
378, 384–85, 793 A.2d 1224, cert. denied, 260 Conn. 935,
802 A.2d 88, cert. denied, 537 U.S. 1056, 123 S. Ct. 630,
154 L. Ed. 2d 536 (2002). Accordingly, we conclude that
the defendant’s motion to withdraw his guilty pleas was
beyond the scope of our remand for resentencing in
Tabone II.
The judgment is reversed and the case is remanded
with direction to dismiss the defendant’s motion to
withdraw his pleas.
In this opinion the other justices concurred.
1
The defendant appealed from the judgment of the trial court to the
Appellate Court, and upon the state’s motion, we transferred the appeal to
this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2.
2
On appeal to this court, the defendant claims that the imposed sentence
of special parole is illegal because it violates both the ex post facto clause
of the United States constitution and his due process right to fair warning.
This claim is without merit. We have previously determined; Tabone II,
supra, 292 Conn. 437–38 n.23; that the defendant’s sentence imposed upon
resentencing is consistent with the aggregate package theory, which authorizes a trial court to resentence a defendant on each of his convictions
provided that the new sentence does not exceed the original illegal sentence.
See State v. Miranda, 260 Conn. 93, 794 A.2d 506, cert. denied, 537 U.S.
902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002) (adopting aggregate package
theory); see also State v. Raucci, 21 Conn. App. 557, 575 A.2d 234, cert.
denied, 215 Conn. 817, 576 A.2d 546 (1990). Accordingly, the defendant’s
imposed sentence of special parole is lawful. Tabone II, supra, 437–38 n.23.
3
On appeal, the defendant additionally contends that the trial court abused
its discretion in denying his motion to withdraw his pleas because he established the mandatory grounds for withdrawal as set forth in Practice Book
§ 39-27 (3).
4
General Statutes (Rev. to 1999) § 53a-71 (b) provides in relevant part:
‘‘Sexual assault in the second degree is a class C felony . . . .’’
General Statutes (Rev. to 1999) § 53a-35a provides in relevant part: ‘‘For
any felony committed on or after July 1, 1981, the sentence of imprisonment
shall be a definite sentence and the term shall be fixed by the court as
follows . . . (6) for a class C felony, a term not less than one year nor
more than ten years . . . .’’
5
In denying the defendant’s motion on its merits, the court implicitly
assumed that it had subject matter jurisdiction over the motion.
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