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STATE OF CONNECTICUT v. VINCENT FAIRCHILD
(AC 35426)
Gruendel, Keller and Flynn, Js.
Argued November 12, 2014—officially released January 27, 2015
(Appeal from Superior Court, judicial district of
Danbury, geographical area number three, Blawie, J.)
Gwendolyn S. Bishop, assigned counsel, for the
appellant (defendant).
Jonathan M. Sousa, special deputy assistant state’s
attorney, with whom, on the brief, were Stephen J.
Sedensky III, state’s attorney, and Sean P. McGuinness,
assistant state’s attorney, for the appellee (state).
Opinion
FLYNN, J. The defendant, Vincent Fairchild, appeals
from the judgment of the trial court denying his motion
to correct an illegal sentence. On appeal, the defendant
claims that the trial court improperly denied his motion
to correct an illegal sentence because the sentencing
court failed to give him adequate notice of the date
of the sentencing hearing, and thereby denied him a
meaningful opportunity for allocution and violated his
due process right to contest the evidence upon which
the court relied for sentencing purposes.1 We affirm the
judgment of the trial court.
We conclude that the court did not deny the defen-
dant a meaningful opportunity for allocution or violate
his due process right to contest the evidence upon
which the court relied for sentencing purposes. Accord-
ingly, the court properly denied the defendant’s motion
to correct an illegal sentence.
The state argues that the court lacked jurisdiction
over the defendant’s motion to correct an illegal sen-
tence. Practice Book § 43-22 permits the court to cor-
rect invalid sentences ‘‘at any time . . . .’’ The ‘‘at any
time’’ language of this section is ‘‘limited by the com-
mon-law rule that a trial court may not modify a sen-
tence if the sentence was valid and its execution has
begun.’’ (Internal quotation marks omitted.) State v.
Casiano, 122 Conn. App. 61, 67, 998 A.2d 792, cert.
denied, 298 Conn. 931, 5 A.3d 491 (2010). However,
even if the sentence imposed has begun, it may still be
modified under the common law if it is invalid and its
invalidity stems from its illegality or the fact that it was
imposed in an illegal manner. Id. Because the defendant
claims that his sentence was imposed in an illegal man-
ner on one of the grounds recognized by the common
law, we conclude that the court properly exercised
jurisdiction over his motion.
The record reveals the following relevant facts and
procedural history. On January 24, 2012, the defendant
entered a guilty plea under the Alford2 doctrine to the
charge of burglary in the third degree in violation of
General Statutes § 53a-103. He also entered guilty pleas,
in which he admitted guilt, to the charges of larceny in
the third degree in violation of General Statutes § 53a-
124, larceny in the sixth degree in violation of General
Statutes § 53a-125b, and operating a motor vehicle while
his license was under suspension in violation of General
Statutes § 14-215. The defendant entered his pleas pur-
suant to a Garvin agreement.3 Under the terms of the
agreement, the defendant would receive a total effective
sentence of five years incarceration, suspended after
fourteen months, followed by a three year period of
probation, so long as he appeared before the court
for the sentencing hearing and was not arrested again
before that time. If the defendant violated the terms of
the agreement, the court, in its discretion, would be
able to sentence him to a period of incarceration of no
more than ten years and three months.
It is undisputed that the sentencing hearing was ini-
tially scheduled for March 6, 2012. On that date, defense
counsel was ill and was not able to attend the hearing.
The court, Blawie, J., continued the sentencing to
March 12, 2012. On March 12, 2012, the defendant
requested a continuance, which the court granted. The
hearing was continued to April 20, 2012, and on that
day the defendant requested a continuance again, which
the court granted. The hearing was continued to May
18, 2012.
On May 18, 2012, the court held the sentencing hear-
ing. Between the time the defendant entered his guilty
pleas on January 24, 2012, and the sentencing hearing
on May 18, 2012, he was arrested twice on new criminal
charges, which he was alleged to have committed on
two separate dates in February, 2012. At sentencing,
the court made the following finding with respect to at
least one of the new arrests: ‘‘[U]nfortunately for [the
defendant] and for society, the court made a finding
of probable cause, signing an arrest warrant for [the
defendant] for burglary and larceny after [the defen-
dant] entered a plea and while he was at liberty awaiting
sentencing . . . .’’ The court further noted that the
defendant had violated the Garvin agreement and was
therefore subject to ‘‘an enhanced possible penalty of
up to ten years . . . .’’ The court stated that it was
‘‘inclined to proceed to sentencing’’ on that day because
the defendant’s criminal cases had ‘‘been down in
excess of twenty-five times—in fact, the burglary/larce-
ny’s been down [thirty-nine] times; the larceny six,
[twenty-eight] times; the 14-140 suspension, [forty-
three] times . . . .’’
The court then afforded defense counsel and the
defendant an opportunity to address the court. Both
defense counsel and the defendant emphasized that
the defendant’s criminal actions resulted from his drug
addiction. The court sentenced the defendant to a total
effective sentence of seven years incarceration on the
charges of burglary in the third degree, larceny in the
third degree, and larceny in the sixth degree. This sen-
tence was three years and three months less than the
maximum sentence he could have received as a result
of his violation of his Garvin agreement. He was given
an unconditional discharge on the charge of operating
a motor vehicle while his license was under suspension.
On September 25, 2012, after he had begun serving
his sentence, the defendant filed a motion to correct
an illegal sentence pursuant to Practice Book § 43-22. In
support of his motion, the defendant relied on Practice
Book § 43-10, which states in relevant part: ‘‘Before
imposing a sentence . . . the judicial authority shall,
upon the date previously determined for sentencing,
conduct a sentencing hearing . . . .’’ The defendant
also relied on § 43-10 (3), which states in relevant part:
‘‘The judicial authority shall allow the defendant a rea-
sonable opportunity to make a personal statement in
his or her own behalf and to present any information
in mitigation of the sentence.’’ The defendant conceded
that he was given the right to make a statement on his
own behalf but claimed that because he was unaware
that he would be sentenced on May 18, 2012, he was
unprepared to present witnesses or materials in mitiga-
tion of punishment and thus denied the opportunity to
meaningfully exercise his right of allocution. He argued
that he was unable to present mitigating evidence
because the matter had not been set down on a ‘‘date
previously determined for sentencing,’’ as required by
§ 43-10.
The court held a hearing on the defendant’s motion
on December 14, 2012. At the hearing, defense counsel
stated: ‘‘I have put on the record previously, Judge, that
I should have done certain things as his attorney and
I did not do them . . . namely, the primary thing I can
think of is that I should have requested a continuance
on the record and I didn’t do it.’’ The court denied the
defendant’s motion, finding that ‘‘the defendant has had
all the process he was due under both the law and the
Practice Book in procedure here.’’ The court also noted
that ‘‘[t]he court believes that defense counsel is falling
on her sword on behalf of a defendant who received a
harsher sentence than perhaps her client anticipated,
but one the court felt was fully justified by the law and
the facts.’’
The court subsequently issued a thorough memoran-
dum of decision explaining its decision to deny the
defendant’s motion. In its memorandum, the court
stated: ‘‘The sentence imposed by the court was entirely
supported by the record and within the parameters of
the plea agreement. It was imposed after notice, and
after hearing from both the defendant himself and
defense counsel. . . . The defendant claims in his
motion that he was unprepared to present mitigation
evidence and was unable to allocute meaningfully when
he was sentenced. Nevertheless, the defendant and his
experienced counsel chose to remain silent on this issue
on May 18, 2012, and did not move for a continuance
or otherwise alert the court to any supposed lack of
preparation.’’ (Citations omitted.) The court reiterated
its finding that the defendant had received all the due
process that he was entitled to and that his sentence
was not illegal. This appeal followed.
On appeal, the defendant claims that the trial court
improperly denied his motion to correct an illegal sen-
tence because the sentencing court failed to give him
adequate notice of the date of the sentencing hearing,
and thereby denied him a meaningful opportunity for
allocution and violated his due process right to contest
the evidence upon which the court relied for sentencing
purposes. He argues that, at the May 18, 2012 sentencing
hearing, he ‘‘did not have the opportunity to present
any witnesses, had no prepared written statement, and
most importantly, was not prepared to contest the evi-
dence upon which his increased sentence was based,
the two new arrests’’ that resulted in the violation of
his Garvin agreement. The state argues that the court
lacked jurisdiction over the defendant’s motion to cor-
rect an illegal sentence and should have dismissed it.
The state argues in the alternative that the court prop-
erly denied the motion.
I
We first consider whether the court had jurisdiction
to act on the defendant’s motion to correct an illegal
sentence. ‘‘It is axiomatic that once the issue of subject
matter jurisdiction is raised, it must be immediately
acted upon by the court.’’ Gurliacci v. Mayer, 218 Conn.
531, 545, 590 A.2d 914 (1991). ‘‘A determination regard-
ing . . . subject matter jurisdiction is a question of law
. . . [and, therefore] our review is plenary.’’ (Internal
quotation marks omitted.) Khan v. Hillyer, 306 Conn.
205, 209, 49 A.3d 996 (2012).
‘‘The Superior Court is a constitutional court of gen-
eral jurisdiction. . . . In the absence of statutory or
constitutional provisions, the limits of its jurisdiction
are delineated by the common law. . . . [A] generally
accepted rule of the common law is that a sentence
cannot be modified by the trial court . . . if the sen-
tence was valid and execution of it has commenced.
. . . This court . . . repeatedly has deemed this limi-
tation jurisdictional.’’ (Citations omitted; footnote omit-
ted; internal quotation marks omitted). State v. Parker,
295 Conn. 825, 834, 992 A.2d 1103 (2010).
Practice Book § 43-22 sets forth the procedural mech-
anism for correcting invalid sentences. Section 43-22
states in relevant part: ‘‘The judicial authority may at
any time correct an illegal sentence . . . or it may cor-
rect a sentence imposed in an illegal manner . . . .’’
‘‘Practice Book rules do not [however] ordinarily define
subject matter jurisdiction. General Statutes § 51-14 (a)
[provides that] . . . [s]uch rules shall not abridge,
enlarge or modify any substantive right nor the jurisdic-
tion of any of the courts. . . . Because the judiciary
cannot confer jurisdiction on itself through its own rule-
making power, [Practice Book] § 43-22 is limited by the
common-law rule that a trial court may not modify a
sentence if the sentence was valid and its execution
has begun.’’ (Internal quotation marks omitted.) State
v. Parker, supra, 295 Conn. 836.
‘‘Connecticut has recognized two types of circum-
stances in which the court has jurisdiction to review a
claimed illegal sentence. The first of those is when the
sentence itself is illegal, namely, when the sentence
either exceeds the relevant statutory maximum limits,
violates a defendant’s right against double jeopardy, is
ambiguous, or is internally contradictory. . . . The
other circumstance in which a claimed illegal sentence
may be reviewed is that in which the sentence is within
relevant statutory limits, but was imposed in a way
which violates [a] defendant’s right . . . to be
addressed personally at sentencing and to speak in miti-
gation of punishment . . . or his right to be sentenced
by a judge relying on accurate information or considera-
tions solely in the record, or his right that the govern-
ment keep its plea agreement promises . . . .’’
(Citations omitted; internal quotation marks omitted.)
State v. Lawrence, 91 Conn. App. 765, 773–74, 882 A.2d
689 (2005), aff’d, 281 Conn. 147, 913 A.2d 428 (2007);
see also State v. Parker, supra, 295 Conn. 839.
‘‘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 [proceedings] leading to the conviction, must be
the subject of the attack.’’ (Internal quotation marks
omitted.) State v. Casiano, supra, 122 Conn. App. 68
(holding that court did not have jurisdiction over motion
to correct illegal sentence where defendant challenged
validity of his guilty pleas).
In the present case, the defendant claims that his
sentence is illegal, not because it exceeded statutory
limits or the maximum limits found in the plea
agreement, but because he was denied his right to due
process in the manner the sentence was imposed by the
sentencing court’s failure to provide him with adequate
notice of and time to prepare for the sentencing hearing.
He argues that the court’s actions denied him a meaning-
ful opportunity to speak on his own behalf, to present
mitigating evidence, and to contest the evidence upon
which the court relied for sentencing purposes.
The state argues that the court lacked jurisdiction
over the defendant’s motion to correct an illegal sen-
tence. The state contends that ‘‘[t]he substance of the
defendant’s claim does not constitute a legally cogniza-
ble ground for correcting an illegal sentence or a sen-
tence imposed in an illegal manner because the issue
was not raised during sentencing, and, therefore, the
claim does not attack any specific action of the sentenc-
ing court that rendered his sentencing proceeding unfair
or improper.’’ We do not agree.
The state appears to argue that the court lacked juris-
diction over the defendant’s motion because the defen-
dant, during his sentencing hearing, failed to preserve
his claim that he was not given adequate notice of the
date of the sentencing hearing. The fact that a party
raises an unpreserved claim does not deprive the court
of jurisdiction over that claim. See State v. Das, 291
Conn. 356, 366, 968 A.2d 367 (2009) (noting that ‘‘[t]he
issues of subject matter jurisdiction and preservation
of claims for appellate review are separate and indepen-
dent considerations’’). ‘‘Subject matter jurisdiction does
not rest on the viability of the claims that a court is
asked to adjudicate.’’ Olympus Healthcare Group, Inc.
v. Muller, 88 Conn. App. 296, 300, 870 A.2d 1091 (2005).
‘‘Subject matter jurisdiction involves the authority of a
court to adjudicate the type of controversy presented
by the action before it. . . . A court does not truly
lack subject matter jurisdiction if it has competence to
entertain the action before it. . . . Once it is deter-
mined that a tribunal has authority or competence to
decide the class of cases to which the action belongs,
the issue of subject matter jurisdiction is resolved in
favor of entertaining the action. . . . It is well estab-
lished that, in determining whether a court has subject
matter jurisdiction, every presumption favoring juris-
diction should be indulged.’’ (Citations omitted; internal
quotation marks omitted.) Amodio v. Amodio, 247
Conn. 724, 727–28, 724 A.2d 1084 (1999).
The state relies on State v. Parker, supra, 295 Conn.
825, to support its argument that the court lacked juris-
diction over the defendant’s motion. In Parker, our
Supreme Court held that the trial court properly had
determined that it lacked jurisdiction over the defen-
dant’s motion to correct an illegal sentence. Id., 827.
The defendant in Parker pleaded guilty to murder and
was convicted and sentenced to thirty years imprison-
ment. Id., 828. He then pursued an appeal on claims
‘‘relating to the trial court’s acceptance of his guilty
plea and its subsequent refusal to allow him to withdraw
that plea at the sentencing proceedings despite his
expressions of dissatisfaction with his counsel.’’ Id.,
830. This court affirmed his conviction and sentence.
State v. Parker, 67 Conn. App. 351, 352, 786 A.2d 1252
(2001), cert. denied, 281 Conn. 912, 916 A.2d 54 (2007).
After his conviction was affirmed by this court and
certification to appeal was denied by our Supreme
Court, the defendant filed a motion in the Superior
Court to correct an illegal sentence, in which he claimed
that his sentence was imposed in an illegal manner.
State v. Parker, supra, 295 Conn. 830. Specifically, he
maintained that his right not to be sentenced on the
basis of inaccurate information was violated by the fact
that (1) he was not given an opportunity to review the
presentence investigation report, thereby denying him
an opportunity to address inaccuracies and mistakes
in the report, and (2) he had been deprived of effective
assistance of counsel because his attorney failed to
review the report with him and neglected to bring inac-
curacies and mistakes in the report to the court’s atten-
tion. Id., 827–28.
On appeal, our Supreme Court rejected both of the
defendant’s arguments. The court concluded that ‘‘[t]he
defendant’s claimed constitutional basis for jurisdic-
tion—the right not to be sentenced on the basis of
inaccurate information—is predicated entirely on his
claim that the rules of practice and the statutes afford
him a personal right to review, and an opportunity to
seek corrections to, the presentence report, a claim
that we have rejected. In his motion to correct, he did
not advance an independent constitutional claim that
the purported inaccuracies were materially false and
that the sentencing court had relied on them in sentenc-
ing him. Moreover, an essential fact that must be
inferred from the defendant’s claims is that no one
alerted the court to any inaccurate information in the
report. Therefore, all we are left with is the defendant’s
claim as it relates to the conduct of his counsel. . . .
[T]his court consistently has adhered to a rule that,
absent either specific authorization to raise such claims
in a forum other than a habeas court or construction
of such a claim to implicate improper conduct by the
trial court, the exclusive forum for adjudicating ineffec-
tive assistance of counsel claims is by way of habeas
proceedings.’’ (Citations omitted; footnotes omitted;
internal quotation marks omitted.) Id., 849–51.
In the present case, the state claims that our Supreme
Court in Parker held that the trial court did not have
jurisdiction over the defendant’s motion to correct an
illegal sentence because the defendant did not raise
the issue of possible inaccuracies and mistakes in the
presentence investigation report before the court. We
do not read Parker to hold that the defendant’s failure
to preserve his claims by raising them before the trial
court resulted in the court’s lack of jurisdiction over
his motion. Rather, our Supreme Court held that the
trial court lacked jurisdiction because the defendant’s
claims that he did not personally have the opportunity
to review the presentence investigation report, which
he alleged contained inaccuracies, and that his counsel
was ineffective did not ‘‘fall within the limited circum-
stances under which the trial court has jurisdiction to
correct a sentence imposed in an illegal manner . . . .’’
Id., 828.
The defendant in the present case claims that his
sentence was imposed in an illegal manner because the
trial court denied him a meaningful opportunity for
allocution and violated his due process right to contest
the evidence upon which the court relied for sentencing
purposes. He does not challenge the validity of his guilty
pleas or his underlying conviction, nor does he raise
an ineffective assistance of counsel claim that should
be addressed in a habeas proceeding. Rather, the defen-
dant’s claim challenges a specific claimed inaction of
the sentencing court during the sentencing proceed-
ings—namely, that the court failed to provide him with
adequate notice of the date on which he would be sen-
tenced and thereby denied him a meaningful opportu-
nity for allocution and violated his right to due process.
Because the defendant seeks to correct his sentence
on one of the common-law grounds permitted under
Practice Book § 43-22, as that section has been interpre-
ted by our appellate courts; State v. Casiano, 282 Conn.
614, 624 n.14, 922 A.2d 1065 (2007); State v. Taylor, 91
Conn. App. 788, 792–93, 882 A.2d 682, cert. denied,
276 Conn. 928, 889 A.2d 819 (2005); State v. Lawrence,
supra, 91 Conn. App. 773–74; State v. McNellis, 15 Conn.
App. 416, 443–44 and 443 n.10, 546 A.2d 292, cert. denied,
209 Conn. 809, 548 A.2d 441 (1988); see also State v.
Baker, 141 Conn. App. 669, 674, 62 A.3d 595 (deciding
on merits defendant’s claim that trial court improperly
denied his motion to correct illegal sentence because
he was denied reasonable opportunity for allocution),
cert. denied, 308 Conn. 950, 67 A.3d 292 (2013); and his
claim challenges the sentencing proceedings; State v.
Casiano, supra, 122 Conn. App. 68; we conclude that
the court properly exercised jurisdiction over the defen-
dant’s motion to correct an illegal sentence.
II
We next turn to the merits of the defendant’s claim
that the trial court improperly denied his motion to
correct an illegal sentence. Simply put, the defendant
claims that he was denied due process of law because
he lacked notice that he would be sentenced on May
18, 2012, and therefore was not given a fair opportunity
to exercise his right of allocution or to contest the
evidence upon which the court relied for sentencing
purposes. We disagree.
This claim was not preserved but is nevertheless
reviewable. ‘‘Both the trial court and this court, on
appeal, have the power, at any time, to correct a sen-
tence that is illegal.’’ (Internal quotation marks omit-
ted.) State v. Cator, 256 Conn. 785, 804, 781 A.2d 285
(2001); see also State v. Ortiz, 83 Conn. App. 142, 166,
848 A.2d 1246 (holding that unpreserved claim that sen-
tence was illegal was reviewable on direct appeal, even
when defendant did not object when it was imposed
or move to correct it), cert. denied, 270 Conn. 915, 853
A.2d 530 (2004); see State v. Kosuda, 85 Conn. App.
192, 195 n.1, 856 A.2d 480 (2004) (same).
We now turn to the applicable standard of review.
‘‘[A] claim that the trial court improperly denied a defen-
dant’s motion to correct an illegal sentence is reviewed
pursuant to the abuse of discretion standard.’’ State v.
Tabone, 279 Conn. 527, 534, 902 A.2d 1058 (2006). ‘‘In
reviewing claims under the abuse of discretion stan-
dard, we have stated that the ultimate issue is whether
the court could reasonably conclude as it did.’’ (Internal
quotation marks omitted.) State v. Cancel, 275 Conn.
1, 15, 878 A.2d 1103 (2005).
The defendant claims that the court improperly
denied his motion to correct an illegal sentence because
he ‘‘notably did not have the opportunity to present any
witnesses, had no prepared written statement, and most
importantly, was not prepared to contest the evidence
upon which his increased sentence was based, the two
new arrests’’ that constituted a violation of his Gar-
vin agreement.
In State v. Stevens, 85 Conn. App. 473, 478, 857 A.2d
972 (2004), rev’d, 278 Conn. 1, 895 A.2d 771 (2006), one
of this court’s prior Garvin cases, Judge West noted
epigrammatically that ‘‘being arrested, similar to being
struck by lightning, can be the result of being in the
wrong place at the wrong time.’’4 Following Judge
West’s trenchant observation, our Supreme Court
granted certification to appeal and was given an oppor-
tunity to further flesh out its Garvin jurisprudence.
State v. Stevens, 278 Conn. 1, 4, 895 A.2d 771 (2006).
Our Supreme Court, in reviewing this court’s decision,
clarified for the first time that when probable cause
supports a postplea, presentence arrest, that arrest can
be a proper basis for an enhanced sentence under a
Garvin agreement if the information upon which the
sentencing court relied was relevant and served as a
reliable indicator for sentencing purposes. Id., 12–13.
In the present case, as to the defendant’s subsequent
arrests, the prosecutor noted on the record at the sen-
tencing hearing that the defendant ‘‘stole approximately
$469.80 worth of merchandise from the Target depart-
ment store in Bethel. So, in addition to the burglary
. . . in which he entered a deceased person’s home
and took . . . a car on a flatbed, he also picked up a
larceny from the Target store.’’ The sentencing court
also found that ‘‘the court made a finding of probable
cause, signing an arrest warrant for [the defendant] for
burglary and larceny after [the defendant] entered a
plea and while he was at liberty awaiting sentencing
. . . .’’ The prosecutor’s statement of the factual basis
for the presentence arrests and the fact that at least
one of the arrests resulted from a warrant adequately
supported the court’s finding of probable cause, as
required by Stevens; State v. Stevens, supra, 278 Conn.
12–13; that the defendant had violated his Garvin
agreement and that an enhanced sentence could there-
fore be imposed.
Practice Book § 43-10 (3) requires the court to ‘‘allow
the defendant a reasonable opportunity to make a per-
sonal statement in his or her own behalf and to present
any information in mitigation of the sentence.’’ Section
43-10 (1) states in relevant part: ‘‘The judicial authority
shall afford the parties an opportunity to be heard and,
in its discretion, to present evidence on any matter
relevant to the disposition . . . .’’ Additionally, ‘‘due
process requires that the defendant be given the oppor-
tunity to contest the evidence upon which the trial
court relies for sentencing purposes . . . .’’ (Citations
omitted.) State v. Stevens, supra, 278 Conn. 12. The
record does not support the defendant’s claim that he
was denied a meaningful opportunity to speak on his
own behalf, present mitigating evidence, and contest
the evidence on which the sentencing court relied.
It is clear from the record that the court, in accor-
dance with Practice Book § 43-10 (3), afforded the
defendant and his counsel an opportunity to address
the court and speak in mitigation of punishment. The
court stated on the record to the defendant that it would
‘‘hear first from [the prosecutor] and then [defense
counsel], and then you, sir, whatever you wish to say
. . . .’’
Defense counsel and the defendant both referenced
the defendant’s addiction to drugs in their statements
to the court. Defense counsel stated: ‘‘I look at [the
defendant] and I think what a tragedy it is because he
is his own worst enemy. He has a very, very serious
disease, and it’s a disease which has guided so many
of the choices that he’s made in his life in recent years.
It’s what put him here today, you know, and some
people who are addicted to substances have more, or
better, management skills with the disease than others.
Clearly, [the defendant] entered a plea and has two
subsequent arrests, and there’s nothing I can say about
that other than, to me, it just shows how desperately
[the defendant] is addicted and how those demons
really drive him to make the choices that he’s made.
. . . We have two new offenses. They’re going to carry
separate penalties and maybe more enhanced penalties,
and all of this behavior and all of his choices are a
result from a serious drug addiction. So, I’m just going
to ask the court to be merciful.’’
The defendant made similar comments to the court,
stating: ‘‘I have a serious drug problem that I’ve been
trying to fight for years. Every time I do good it seems
I go—I go back a step, fall back off . . . I would just—
I’m just asking for lenience and to keep in mind that—
that my addiction played a key role in everything.’’
In its memorandum of decision, the trial court noted
that ‘‘[t]he right of a defendant to be heard by the court
. . . does not carry with it the right to decide for the
court the weight it must attribute to such evidence. The
record bears out that the defendant’s substance abuse
history and related criminal difficulties stemming from
his addiction were repeatedly invoked as mitigating
factors by both the defendant and counsel in this case.
The sentencing court, in its discretion and in light of
the totality of the circumstances, including the crimes
at issue, the defendant’s prior criminal history, his failed
probations, his multiple files and his unwillingness to
take advantage of inpatient treatment, simply chose not
to credit such addiction evidence with the weight the
defendant sought to ascribe to it, either as an excuse
or as a justification for his continued pattern of crimi-
nality.’’
It is also clear from the record that, in accordance
with due process and Practice Book § 43-10 (1), the
defendant was given the opportunity to contest the
evidence on which the court relied for sentencing pur-
poses. The defendant was given notice on the date he
entered his guilty pleas that he was scheduled to be
sentenced on March 6, 2012. The sentencing was contin-
ued three times, once because defense counsel was ill
and twice more at the defendant’s request. There is
nothing in the record to suggest that the defendant was
unaware that he would be sentenced on May 18, 2012.5
On that date, neither the defendant nor his counsel
informed the court that they were not prepared for
sentencing. No continuance of sentencing was sought.
The presentence investigation had been waived on the
date the defendant entered his guilty pleas. No record
was made of any further evidence that would be
required or pertinent. The defendant did not dispute
the validity of his two presentence arrests or the exis-
tence of probable cause justifying them when the court
gave him and his counsel an opportunity to address the
court. On appeal, the defendant does not point to any
evidence with which he could dispute the court’s finding
that he was arrested twice before the sentencing hear-
ing on May 18, 2012, and that at least one of those
arrests was supported by probable cause.
We conclude, on the basis of our review of the defen-
dant’s Garvin agreement and the trial court’s findings,
that the defendant’s two presentence arrests violated
the conditions of the Garvin agreement and justified
the enhanced sentence imposed by the court. Both the
warrant and the prosecutor’s statement of the operative
facts underlying the postplea, presentence arrests were
relevant and served as reliable indicators for sentencing
purposes. The defendant and his counsel did not offer
any evidence to counter either the warrant or the prose-
cutor’s statement when the court afforded them an
opportunity to address the court at the sentencing hear-
ing. The court did not deny the defendant a meaningful
opportunity for allocution or violate his due process
right to contest the evidence on which the court relied
for sentencing purposes. Accordingly, the court did not
abuse its discretion in denying the defendant’s motion
to correct an illegal sentence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Black’s Law Dictionary defines allocution as ‘‘[a]n unsworn statement
from a convicted defendant to the sentencing judge or jury in which the
defendant can ask for mercy, explain his or her conduct, apologize for the
crime, or say anything else in an effort to lessen the impending sentence.’’
Black’s Law Dictionary (7th Ed. 1999).
2
A criminal defendant who enters a guilty plea under the Alford doctrine
does not admit guilt but acknowledges that the state has sufficient evidence
to convict. See State v. Palmer, 196 Conn. 157, 169 n.3, 491 A.2d 1075 (1985);
see also North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970) (holding that ‘‘[a]n individual accused of crime may voluntarily,
knowingly, and understandingly consent to the imposition of a prison sen-
tence even if he is unwilling or unable to admit his participation in the acts
constituting the crime’’).
3
See State v. Garvin, 242 Conn. 296, 314, 699 A.2d 921 (1997).
4
On appeal to the Supreme Court, Justice Norcott, in his concurring
opinion, stated that ‘‘[t]he undeniable reality is that, like the defendant in
the present case, many criminal defendants reside in disadvantaged urban
environments and are not strangers to a heightened police presence. Thus,
to take the Appellate Court’s lightning analogy one step further, many defen-
dants are released pursuant to Garvin agreements into situations that are
akin to walking on an open field with a metal tipped umbrella in a thunder-
storm.’’ State v. Stevens, 278 Conn. 1, 21, 895 A.2d 771 (2006). Justice Norcott
disagreed with the majority opinion in Stevens in that he would have
‘‘require[d] the state to prove by a preponderance of the evidence that the
defendant subject to a ‘no arrest’ condition pursuant to a Garvin agreement
engaged in criminal conduct that resulted in his arrest, rather than merely
that the arrest was supported by probable cause.’’ Id., 17–18. Our appellate
courts have not yet been asked to consider a Garvin agreement where the
later arrests triggering an enhanced sentence never result in a conviction
because the defendant is found not guilty after a trial.
5
Practice Book § 43-10 states in relevant part: ‘‘Before imposing a sen-
tence . . . after the acceptance of a guilty plea . . . the judicial authority
shall, upon the date previously determined for sentencing, conduct a sentenc-
ing hearing . . . .’’ In his motion before the trial court, the defendant argued
that, in violation of § 43-10, his sentencing hearing took place without having
been set down on a ‘‘date previously determined for sentencing.’’ This argu-
ment is without merit. The sentencing hearing was originally scheduled for
March 6, 2012, and then continued three times. On April 20, 2012, the court
continued the sentencing for the third time and scheduled it for May 18,
2012. At that time, May 18, 2012, became the ‘‘date previously determined
for sentencing.’’ The court did not violate § 43-10 when it sentenced the
defendant on May 18, 2012.