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STATE OF CONNECTICUT v. JAMES BAKER
(AC 37441)
Alvord, Mullins and Pellegrino, Js.
Argued April 14—officially released September 6, 2016
(Appeal from Superior Court, judicial district of
Danbury, Carroll, J. [judgment]; Wenzel, J. [motion to
correct illegal sentence]; Roraback, J. [motion to
correct illegal sentence].)
Deborah G. Stevenson, assigned counsel, for the
appellant (defendant).
Jacob L. McChesney, 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
MULLINS, J. The defendant, James Baker, appeals
from the judgment of the trial court denying his motion
to correct an illegal sentence filed pursuant to Practice
Book § 43-22.1 After pleading guilty under the Alford
doctrine2 to possessing a weapon or dangerous instru-
ment in a correctional institution in violation of General
Statutes § 53a-174a (a),3 the defendant was sentenced
to eighteen months of imprisonment. The defendant
claims on appeal that the trial court (1) improperly
denied his motion to correct the eighteen month sen-
tence because the sentence violates the double jeopardy
clause4 of the federal5 constitution, and (2) abused its
discretion by excluding evidence that was relevant to
the disposition of the motion to correct. We affirm the
judgment of the trial court.6
The following facts and procedural history are rele-
vant to this appeal. On February 16, 1999, the defendant,
who was an inmate at the Garner Correctional Institu-
tion, was involved in a physical altercation with other
inmates. At the time of the altercation, the defendant
was serving a thirty-two year sentence of imprisonment
for two 1994 murder convictions. Department of Cor-
rection (department) officers observed the defendant
attempt to assault another inmate by charging at the
inmate with a sharp object in his hand. Department
officers ordered the defendant to drop the object, but
the defendant ignored their commands and charged at
several other inmates with the object in his hand. After
suppressing the altercation, department officers recov-
ered the sharp object and determined that it was a
shank that had been fabricated from white cloth, mask-
ing tape, and two metal prongs.
On the same day of the incident, department investi-
gators interviewed the defendant, who pleaded guilty
in a department administrative proceeding to three vio-
lations of prison policy: (1) impeding order; (2) contra-
band (dangerous instrument); and (3) fighting.
Department officials then imposed the following disci-
plinary sanctions on the defendant: (1) three disciplin-
ary reports; (2) loss of 120 days of statutory good time
credit; (3) loss of commissary privileges for ninety days;
(4) loss of visits for sixty days; (5) confinement to quar-
ters for thirty days; (6) punitive segregation for seven
days; (7) loss of telephone privileges for forty days; and
(8) loss of mail privileges for sixty days. Furthermore,
sometime in March or April of 1999, after determining
that the defendant was a security risk, the department
transferred him to the maximum security prison at
Northern Correctional Institution (Northern). The
defendant was incarcerated at Northern for approxi-
mately one year.
On April 28, 1999, the state charged the defendant
with one count of possessing a weapon or dangerous
instrument in a correctional institution in violation of
§ 53a-174a (a). On October 13, 1999, the defendant
pleaded guilty to that charge. The court sentenced the
defendant to a period of eighteen months of incarcera-
tion to run consecutive to the sentence he already was
serving for his previous murder convictions.
On August 9, 2013, the defendant filed a motion to
correct an illegal sentence, which was amended on
August 29, 2013 (amended motion). In the amended
motion, the defendant asserted that the eighteen month
sentence of incarceration violated the double jeopardy
protections of the state and federal constitutions
because the sentence and department sanctions consti-
tuted multiple punishments for the same offense. The
defendant listed fourteen items that he alleged the
department had imposed as administrative sanctions
for his conduct in the 1999 prison incident. The first
eight items were set forth previously in this opinion.
The remaining six items related to (1) the defendant’s
transfer to Northern and (2) the effect of the eighteen
month sentence on the defendant’s ability to enter a
halfway house.
Following an evidentiary hearing on the amended
motion, the trial court, Roraback, J., denied the defen-
dant’s motion. The court concluded that the eighteen
month sentence was not imposed in violation of the
defendant’s protections against double jeopardy. In par-
ticular, the court ruled that the department sanctions
were not ‘‘grossly disproportionate to the government’s
interest in maintaining prison order and discipline.’’
Thereafter, the defendant filed a motion to reargue the
matter, which the court granted. The court, however,
affirmed its original ruling and denied the relief
requested by the defendant. The court reiterated that
the department sanctions did not violate the double
jeopardy clause because they were not grossly dispro-
portionate to the government’s remedial interest in
maintaining order and discipline. This appeal followed.
Additional facts will be provided as necessary.
I
In his first claim, the defendant asserts that the trial
court erred in denying the amended motion because
the eighteen month sentence of imprisonment violates
his constitutional right against double jeopardy. Specifi-
cally, he argues that imposing this sentence after the
department already had sanctioned him violated the
double jeopardy clause’s prohibition on imposing multi-
ple criminal punishments for the same offense. The
state responds that, because the department sanctions
did not constitute criminal punishment, the double jeop-
ardy clause did not preclude the court from imposing
the eighteen month sentence. We agree with the state
and conclude that trial court properly denied the defen-
dant’s amended motion.
We begin with the standard of review and relevant
legal principles. ‘‘Ordinarily, a claim that the trial court
improperly denied a defendant’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). A double jeopardy claim,
however, ‘‘presents a question of law, over which our
review is plenary.’’ State v. Burnell, 290 Conn. 634,
642, 966 A.2d 168 (2009). ‘‘[C]laims of double jeopardy
involving multiple punishments present a question of
law to which we afford plenary review.’’ State v. Tabone,
292 Conn. 417, 439, 973 A.2d 74 (2009). ‘‘Because the
issue of whether an administrative sanction constitutes
punishment for purposes of double jeopardy is a ques-
tion of law, [our] review [is] de novo.’’ (Internal quota-
tion marks omitted.) State v. Duke, 48 Conn. App. 71,
74, 708 A.2d 583, cert. denied, 244 Conn. 911, 713 A.2d
829 (1998).
Practice Book § 43-22 provides that ‘‘[t]he 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.’’ Accordingly, ‘‘the trial court
and this court, on appeal, have the power, at any time,
to correct a sentence that is illegal.’’ (Internal quotation
marks omitted.) State v. Constantopolous, 68 Conn.
App. 879, 882, 793 A.2d 278, cert. denied, 260 Conn. 927,
798 A.2d 971 (2002). ‘‘An illegal sentence is essentially
one which either exceeds the relevant statutory maxi-
mum limits, violates a defendant’s right against double
jeopardy, is ambiguous, or is internally contradictory.’’
(Internal quotation marks omitted.) State v. McNellis,
15 Conn. App. 416, 443–44, 546 A.2d 292, cert. denied,
209 Conn. 809, 548 A.2d 441 (1988).
The double jeopardy clause of the fifth amendment
to the federal constitution provides in relevant part that
no person shall ‘‘be subject for the same offense to be
twice put in jeopardy of life or limb . . . .’’ The double
jeopardy clause guarantees three specific protections:
‘‘It protects against a second prosecution for the same
offense after acquittal. It protects against a second pros-
ecution for the same offense after conviction. And it
protects against multiple punishments for the same
offense.’’ (Footnotes omitted.) North Carolina v.
Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d
656 (1969), overruled on other grounds by Alabama v.
Smith, 490 U.S. 794, 798, 109 S. Ct. 2201, 104 L. Ed. 2d
865 (1989). The defendant has invoked the third of those
protections—the prohibition on imposing multiple pun-
ishments for the same offense.
The multiple punishments protection, however, does
not ‘‘prohibit the imposition of all additional sanctions
that could, in common parlance, be described as punish-
ment.’’ (Internal quotation marks omitted.) Hudson v.
United States, 522 U.S. 93, 98–99, 118 S. Ct. 488, 139 L.
Ed. 2d 450 (1997). ‘‘The Clause protects only against
the imposition of multiple criminal punishments for
the same offense . . . .’’ (Emphasis in original.) Id., 99.
‘‘[A legislature] may impose both a criminal and a civil
sanction in respect to the same act or omission; for
the double jeopardy clause prohibits merely punishing
twice, or attempting a second time to punish criminally,
for the same offense.’’ Helvering v. Mitchell, 303 U.S.
391, 399, 58 S. Ct. 630, 82 L. Ed. 917 (1938). Accordingly,
we must determine whether the department sanctions
constitute criminal punishment for double jeopardy
purposes.
The United States Supreme Court has prescribed a
two-pronged test for determining whether a sanction
constitutes criminal punishment. Hudson v. United
States, supra, 522 U.S. 99–100; see State v. Jimenez-
Jaramill, 134 Conn. App. 346, 368–73, 38 A.3d 239, cert.
denied, 305 Conn. 913, 45 A.3d 100 (2012) (applying
Hudson’s two-pronged test in determining that infrac-
tion for public disturbance was not criminal punishment
for double jeopardy purposes). The first prong is statu-
tory construction. Hudson v. United States, supra, 99.
‘‘Whether a particular punishment is criminal or civil
is, at least initially, a matter of statutory construction.
. . . A court must first ask whether the legislature, in
establishing the penalizing mechanism, indicated either
expressly or impliedly a preference for one label or
the other.’’ (Citation omitted; internal quotation marks
omitted.) Id. The fact that the power to issue sanctions
‘‘was conferred upon administrative agencies is prima
facie evidence that [the legislature] intended to provide
for a civil sanction.’’ Id., 103.
Under the second prong, the court must ask ‘‘whether
the statutory scheme was so punitive either in purpose
or effect . . . as to transfor[m] what was clearly
intended as a civil remedy into a criminal penalty.’’
(Citation omitted; internal quotation marks omitted.)
Id., 99. The court should make this inquiry even if it
determines under the first prong that the legislature
‘‘indicated an intention to establish a civil penalty
. . . .’’ (Internal quotation marks omitted.) Id. In mak-
ing the second determination, the United States
Supreme Court has articulated seven ‘‘useful guide-
posts’’ that a court should consider. Id. These factors
include: ‘‘(1) [w]hether the sanction involves an affirma-
tive disability or restraint; (2) whether it has historically
been regarded as a punishment; (3) whether it comes
into play only on a finding of scienter; (4) whether its
operation will promote the traditional aims of punish-
ment—retribution and deterrence; (5) whether the
behavior to which it applies is already a crime; (6)
whether an alternative purpose to which it may ratio-
nally be connected is assignable for it; and (7) whether it
appears excessive in relation to the alternative purpose
assigned.’’ (Internal quotation marks omitted.) Id., 99–
100 (quoting Kennedy v. Mendoza-Martinez, 372 U.S.
144, 168–69, 83 S. Ct. 554, 9 L. Ed. 2d 644 [1963]). These
factors are ‘‘neither exhaustive nor dispositive.’’ United
States v. Ward, 448 U.S. 242, 249, 100 S. Ct. 2636, 65 L.
Ed. 2d 742 (1980).
‘‘It is particularly appropriate to apply the factors
flexibly in the context of prison discipline cases, which
do not fit neatly into the matrix of double jeopardy
doctrine . . . because in the prison context, virtually
any form of sanction seems criminal and punitive as we
commonly understand those terms.’’ (Internal quotation
marks omitted.) Porter v. Coughlin, 421 F.3d 141, 147
(2d Cir. 2005). ‘‘It is important to note . . . that these
factors must be considered in relation to the statute on
its face . . . .’’ (Internal quotation marks omitted.)
Hudson v. United States, supra, 522 U.S. 100. ‘‘[O]nly
the clearest proof will suffice to override legislative
intent and transform what has been denominated a civil
remedy into a criminal penalty . . . .’’ (Emphasis
added; internal quotation marks omitted.) Id.
Turning to the present case, Hudson first requires us
to ask whether our legislature designated the statutory
mechanism by which the department imposes sanctions
as criminal or civil. We conclude that the legislature
intended for the statutory mechanism to be civil in
nature.
General Statutes § 18-81 provides in relevant part:
‘‘The Commissioner of Correction shall administer,
coordinate and control the operations of the depart-
ment and shall be responsible for the overall supervi-
sion and direction of all institutions, facilities and
activities of the department. . . . The commissioner
shall be responsible for establishing disciplinary . . .
programs throughout the department. . . .’’ ‘‘Section
18-81 expressly permits the commissioner to promul-
gate the prison’s administrative rules.’’ Beasley v. Com-
missioner of Correction, 50 Conn. App. 421, 434–35,
718 A.2d 487 (1998), aff’d, 249 Conn. 499, 733 A.2d 833
(1999). Although the statute does not expressly label
prison disciplinary sanctions as either criminal or civil,
it implies that such sanctions are civil. The fact that
the legislature has delegated the power to impose prison
sanctions to an agency such as the department is prima
facie evidence that the sanctions are civil. Hudson v.
United States, supra, 522 U.S. 103; see State v. Duke,
supra, 48 Conn. App. 77 (‘‘because our legislature con-
ferred the power to sanction on an administrative
agency, we consider it prima facie evidence that the
sanctions were intended to be civil rather than criminal
in nature’’); Gelinas v. West Hartford, 65 Conn. App.
265, 284, 782 A.2d 679, cert. denied, 258 Conn. 926, 783
A.2d 1028 (2001) (‘‘that the clear intent of the legislature
in conferring the power to sanction on local zoning
authorities is prima facie evidence that those daily fine
sanctions are civil, and not criminal, in nature’’).
Moreover, the sanction mechanism is not located
within our state’s penal code, as it instead relates to
the ‘‘remedial purpose of allowing . . . prison officials
to maintain order and discipline.’’ State v. Santiago,
240 Conn. 97, 102, 689 A.2d 1108 (1997), overruled on
other grounds by State v. Crawford, 257 Conn. 769,
779–80, 778 A.2d 947 (2001), cert. denied, 534 U.S. 1138,
122 S. Ct. 1086, 151 L. Ed. 2d 985 (2002). Indeed, our
state Supreme Court previously observed that prison
sanctions do not generally give rise to double jeopardy
violations because they are ‘‘administrative sanctions
. . . [that] serve the purpose of maintaining institu-
tional order and security . . . .’’ Id., 101.
Having determined that our legislature intended to
designate prison sanctions as civil penalties, we turn
to Hudson’s second prong. The second prong requires
us to determine whether the statutory scheme is ‘‘so
punitive either in purpose or effect . . . as to trans-
form what was clearly intended as a civil remedy into
a criminal penalty . . . .’’ (Citation omitted; internal
quotation marks omitted.) Hudson v. United States,
supra, 522 U.S. 99. We note at the outset that only the
‘‘clearest proof will suffice to override legislative intent
and transform what has been denominated a civil rem-
edy into a criminal penalty . . . .’’ (Emphasis added;
internal quotation marks omitted.) Id., 100. We conclude
that the defendant has not provided the clearest proof
that the department sanctions are so punitive in effect
or purpose that they override the legislature’s designa-
tion of the sanctions as civil.
The seven factors that the United States Supreme
Court has identified as helpful in making this second
inquiry are only ‘‘useful guideposts’’; id., 99; and ‘‘we
need not apply them rigidly.’’ Porter v. Coughlin, supra,
421 F.3d 147. The factors are ‘‘neither exhaustive nor
dispositive’’; United States v. Ward, supra, 448 U.S. 249;
and they ‘‘are to be applied flexibly.’’ Porter v. Coughlin,
supra, 148.
In the present case, the defendant received several
department sanctions after the department found that
he had engaged in fighting, the possession of a danger-
ous weapon, and the impediment of order. In particular,
the department imposed the following sanctions: (1)
three disciplinary reports; (2) loss of 120 days of statu-
tory good time credit; (3) loss of commissary privileges
for ninety days; (4) loss of visits for sixty days; (5)
confinement to quarters for thirty days; (6) punitive
segregation for seven days; (7) loss of telephone privi-
leges for forty days; (8) loss of mail privileges for sixty
days; and (9) transfer to the maximum security facility
at Northern.
Although the defendant has not provided a substan-
tive analysis of the relevant factors, a few of the factors
appear to support the defendant’s contention that some
of the sanctions are criminal in nature. In particular, the
first, fourth, and fifth factors weigh in the defendant’s
favor.7 Because the defendant already was incarcerated,
most of the sanctions involve an ‘‘affirmative disability
or restraint.’’ (Internal quotation marks omitted.) Hud-
son v. United States, supra, 522 U.S. 99. All of the
sanctions seem to ‘‘promote the traditional aims of pun-
ishment—retribution and deterrence,’’ and the ‘‘behav-
ior to which [they] apply is already a crime . . . .’’ Id.
The defendant relies mainly on the fourth factor,
arguing that the sanctions ‘‘only [serve] to promote the
traditional aims of punishment—retribution and deter-
rence.’’ We note, however, that the ‘‘mere presence of
[deterrence] is insufficient to render a sanction crimi-
nal, as deterrence may serve civil as well as criminal
goals.’’ (Internal quotation marks omitted.) Hudson v.
United States, supra, 522 U.S. 105. ‘‘To hold that the
mere presence of a deterrent purpose renders such
sanctions ‘criminal’ for double jeopardy purposes
would severely undermine the Government’s ability to
engage in effective regulation of institutions . . . .’’ Id.
‘‘[A] civil or administrative sanction that serves a legiti-
mate remedial purpose . . . does not give rise to a
double jeopardy violation even if the sanction has some
deterrent effect.’’ State v. Hickam, 235 Conn. 614, 623,
668 A.2d 1321 (1995), cert. denied, 517 U.S. 1221, 116
S. Ct. 1858, 134 L. Ed. 2d 951 (1996), overruled on other
grounds by State v. Crawford, 257 Conn. 769, 779–80,
778 A.2d 947 (2001), cert. denied, 534 U.S. 1138, 122 S.
Ct. 1086, 151 L. Ed. 2d 985 (2002). We conclude that the
defendant’s reliance on the fourth factor is unavailing
because any deterrence resulting from the sanctions
permissibly furthers the ‘‘remedial purpose of allowing
. . . prison officials to maintain order and discipline.’’
State v. Santiago, supra, 240 Conn. 102.
The sixth and seventh factors weigh heavily against
a finding that the sanctions are criminal. Courts that
have applied the factors to prison sanctions generally
have afforded greater weight to the last two factors
than to the first five factors. See Porter v. Coughlin,
supra, 421 F.3d 148 (‘‘[a]lthough several of the factors
suggest that [the defendant’s] sanction was punitive in
nature, others suggest so strongly the presence of a
legitimate, nonpunitive purpose that we must conclude
the sanction was civil in nature’’); United States v.
Mayes, 158 F.3d 1215, 1223, 1224 (11th Cir. 1998) (‘‘[I]n
the prison context, virtually any form of sanction seems
criminal and punitive as we commonly understand
those terms. With that in mind, we recognize that many
of the . . . factors may weigh in the [prisoner’s] favor
. . . . In this unique setting, we must take into account
the fact that a prison’s remedial and punitive interests
are inextricably related. . . . [W]e factor into our anal-
ysis the importance of granting some deference to the
judgments of prison authorities in determining what is
necessary and proper to preserve institutional order and
discipline, and to encourage good conduct.’’ [Internal
quotation marks omitted.]), cert. denied, 525 U.S. 1185,
119 S. Ct. 1130, 143 L. Ed. 2d 123 (1999).
Regarding the sixth factor, the department sanctions
clearly have ‘‘an alternative purpose to which [they]
may rationally be connected . . . .’’ Hudson v. United
States, supra, 522 U.S. 99. Indeed, our Supreme Court
expressly has recognized that prison sanctions serve
the ‘‘remedial purpose of allowing the prison officials
to maintain order and discipline.’’ State v. Santiago,
supra, 240 Conn. 102. ‘‘The institutional consideration
of internal security in the correction facilities them-
selves is essential to all other correction goals.’’ State
v. Walker, 35 Conn. App. 431, 435, 646 A.2d 209, cert.
denied, 231 Conn. 916, 648 A.2d 159 (1994). ‘‘Correction
authorities must be allowed to take appropriate action
to ensure the safety of inmates and correction employ-
ees; they must be permitted promptly to sanction mis-
conduct within the institution so as to preserve order
and discipline.’’ Id., 436–37. Therefore, ‘‘[e]nsuring secu-
rity and order at the institution is a permissible nonpuni-
tive objective . . . .’’ Bell v. Wolfish, 441 U.S. 520, 561,
99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). ‘‘The need to
maintain order . . . is a legitimate nonpunitive inter-
est, even if it sometimes requires that prison officials
take action of a punitive character.’’ Porter v. Coughlin,
supra, 421 F.3d 148. Accordingly, we conclude that the
sixth factor militates against a conclusion that the
department sanctions are criminal because they are
rationally connected to the nonpunitive purpose of
maintaining safety, order, and discipline within the
prison.
Regarding the seventh factor, the department sanc-
tions are not ‘‘excessive in relation to the alternative
purpose assigned.’’ (Internal quotation marks omitted.)
Hudson v. United States, supra, 522 U.S. 100. The types
of sanctions the department may impose are not exces-
sive in light of how inmate misconduct, like the defen-
dant’s violent behavior in this case, seriously
undermines discipline, safety, and order within the
prison. See, e.g., State v. Walker, supra, 35 Conn. App.
436–37 (reasonable to segregate inmate for ‘‘the serious
offense’’ of assaulting correction employee because
‘‘violent behavior could be detrimental to maintaining
control throughout the correction facility . . . [and]
[c]orrection authorities must be allowed to take appro-
priate action to ensure the safety of inmates and correc-
tion employees’’). ‘‘Because the realities of running a
correctional institution are complex and difficult, the
courts give wide-ranging deference to the decisions of
prison administrators in considering what is necessary
and proper to preserve order and discipline.’’ Id., 435.
Our courts regularly have held that sanctions similar
to those imposed on the defendant, for misconduct
similar to the defendant’s actions, are not dispropor-
tionate to the department’s remedial interests. See State
v. Santiago, supra, 240 Conn. 99–102 (ten days of puni-
tive segregation, thirty days loss of telephone and mail
privileges, and loss of forty-five days of good time credit
for possessing shank); State v. Walker, supra, 35 Conn.
App. 432, 435–37 (placement in administrative isolation,
fifteen days of punitive segregation, and thirty days
confinement to quarters for punching correction officer
in head and jaw); State v. King, Superior Court, judicial
district of New London, Docket No. CR-01-89268-S (May
15, 2003) (thirty days of punitive segregation, ninety
days loss of phone privileges, ninety days loss of com-
missary privileges, sixty days loss of visits, and transfer
to administrative segregation at Northern for assaulting
correction officer).8
In sum, under Hudson’s first prong, we conclude that
the legislature intended the department sanctions to be
civil in nature, not criminal. Under Hudson’s second
prong, a careful weighing of the relevant factors demon-
strates that the clearest proof that the department sanc-
tions are so punitive in purpose or effect as to override
the legislature’s intent does not exist in this case. We
conclude that the department sanctions were not crimi-
nal in nature and that they therefore did not constitute
punishment for double jeopardy purposes.
Accordingly, because we conclude that the depart-
ment sanctions do not constitute criminal punishment,
the trial court properly found that the eighteen month
prison sentence did not violate the double jeopardy
clause’s prohibition on imposing multiple punishments
for the same offense, and, therefore, properly denied
the motion to correct an illegal sentence.
II
The defendant’s second claim on appeal is that the
trial court improperly excluded evidence regarding the
collateral consequences of the eighteen month prison
sentence. Specifically, he argues that evidence sug-
gesting that the eighteen month sentence had the conse-
quence of delaying his release to a halfway house was
relevant to the double jeopardy analysis. We do not
reach the merits of this claim because the defendant
has not briefed how he was harmed by the allegedly
improper evidentiary ruling. Accordingly, we decline to
review it.
The following additional facts and procedural history
are relevant to this claim. At two points in the eviden-
tiary hearing, defense counsel attempted to admit evi-
dence relating to how the eighteen month sentence
affected the defendant’s ability to enter a halfway
house. First, during direct examination of a department
record specialist, counsel asked the witness ‘‘if the
defendant could go to a halfway house as a result of
this eighteen month sentence,’’ and ‘‘if the defendant
has a detainer because of this eighteen months.’’ The
state objected, arguing that the testimony was irrele-
vant. The court sustained the state’s objection and
explained: ‘‘The consequences of the sentence, I don’t
think, are relevant. It’s the fact that the sentence was
imposed that is at the heart of this matter. . . . I don’t
think the court is going to be looking to the severity of
the sentence or the duration of the sentence. Rather
. . . I think the inquiry is going to be whether any
sentence was appropriate because, if double jeopardy
is to be implicated, it would necessarily mean that no
sentence could be imposed.’’
Subsequently, with the defendant on the witness
stand, defense counsel attempted the following exami-
nation:
‘‘Q. [T]his eighteen months, that’s consecutive to the
current sentence?’’
‘‘A. Yes.
‘‘Q. Okay. Now does that affect your time that you’re
now serving—I mean, in a halfway house—can you get
out to a halfway house?
‘‘A. No.’’
After the state objected, the court sustained the
objection and stated: ‘‘Okay. And again, the court
believes the inquiry goes not to the severity of any
sentence that might be imposed, but as to the question
of whether any sentence could lawfully have been
imposed. So I’m going to sustain the objection.’’
‘‘The trial court has wide discretion to determine the
relevancy of evidence and [e]very reasonable presump-
tion should be made in favor of the correctness of the
court’s ruling in determining whether there has been
an abuse of discretion.’’ (Internal quotation marks omit-
ted.) State v. Davis, 298 Conn. 1, 23, 1 A.3d 76 (2010).
‘‘[I]n order to establish reversible error on an eviden-
tiary impropriety, the defendant must prove both an
abuse of discretion and a harm that resulted from such
abuse. . . . This requires that the defendant demon-
strate that it is more probable than not that the errone-
ous action of the court affected the result.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Kirsch, 263 Conn. 390, 412, 820 A.2d 236 (2003).
‘‘It is well settled that, absent structural error, the
mere fact that a trial court rendered an improper ruling
does not entitle the party challenging that ruling to
obtain a new trial. An improper ruling must also be
harmful to justify such relief. . . . The harmfulness of
an improper ruling is material irrespective of whether
the ruling is subject to review under an abuse of discre-
tion standard or a plenary review standard. . . . When
the ruling at issue is not of constitutional dimensions,
the party challenging the ruling bears the burden of
proving harm.’’ (Internal quotation marks omitted.) In
re James O., 160 Conn. App. 506, 527, 127 A.3d 375
(2015), aff’d, 322 Conn. 636, A.3d (2016).
In the present case, the defendant has briefed a claim
that the court erred in precluding evidence regarding
the potential collateral consequences of his eighteen
month sentence and has failed to address how the evi-
dentiary ruling was harmful. Accordingly, we decline
to review the claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
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.’’
2
See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
3
General Statutes § 53a-174a provides: ‘‘(a) A person is guilty of possession
of a weapon or dangerous instrument in a correctional institution when,
being an inmate of such institution, he knowingly makes, conveys from
place to place or has in his possession or under his control any firearm,
weapon, dangerous instrument, explosive, or any other substance or thing
designed to kill, injure or disable.
‘‘(b) Possession of a weapon or dangerous instrument in a correctional
institution is a class B felony.’’
4
The fifth amendment to the United States constitution provides in rele-
vant part: ‘‘[N]or shall any person be subject for the same offense to be
twice put in jeopardy of life or limb . . . .’’
5
The defendant also invokes the protections of our state constitution.
‘‘[When] . . . the defendant has not presented a separate analysis of his
double jeopardy claim under the state constitution, we confine our analysis
to the application of the federal constitution’s double jeopardy bar.’’ (Internal
quotation marks omitted.) State v. Butler, 262 Conn. 167, 174 n.6, 810 A.2d
791 (2002). Therefore, we analyze the defendant’s claim only under the fifth
amendment to the federal constitution.
6
On appeal, the defendant argues for the first time that the sentence also
violates the prohibition against cruel and unusual punishment under the
eighth amendment to the federal constitution. Although the defendant
asserts that this claim is adequately preserved for our review, we disagree.
The defendant’s operative motion that is the subject of this appeal did not
contain an eighth amendment claim. Moreover, the parties did not address
an eighth amendment claim at trial, and the trial court neither considered
nor ruled upon any such claim. ‘‘This court previously has recognized that
[i]t is not appropriate to review an unpreserved claim of an illegal sentence
for the first time on appeal.’’ (Internal quotation marks omitted.) State v.
Crump, 145 Conn. App. 749, 766, 75 A.3d 758, cert. denied, 310 Conn. 947,
80 A.3d 906 (2013). Furthermore, we have declined to review in other appeals
such unpreserved claims under State v. Golding, 213 Conn. 233, 567 A.2d
823 (1989), or the plain error doctrine. State v. Starks, 121 Conn. App. 581,
592, 997 A.2d 546 (2010). Accordingly, we decline to review the defendant’s
unpreserved eighth amendment claim.
7
The record does not indicate whether the sanctions implicate the third
factor, which asks whether the sanctions were imposed only after a finding
of scienter. Hudson v. United States, supra, 522 U.S. 99. Similarly, the
defendant did not address the second factor, which asks whether the sanc-
tions have been historically regarded as punishment. Id.
8
Regarding the defendant’s transfer to Northern, which the defendant
emphasized on appeal, courts in other jurisdictions consistently have held
that the disciplinary transfer of an inmate is not a criminal punishment that
implicates the double jeopardy clause. See, e.g., United States v. Colon, 246
Fed. Appx. 153, 155–56 (3d Cir. 2007) (disciplinary transfer of inmate who
attempted to smuggle heroin into prison), cert. denied, 552 U.S. 1128, 128
S. Ct. 948, 169 L. Ed. 2d 780 (2008); United States v. Mayes, supra, 158 F.3d
1217, 1224–25 (disciplinary transfer to high security facility for inmates who
participated in prison riot); United States v. Newby, 11 F.3d 1143, 1144–46
(3d Cir. 1993) (disciplinary transfer of prisoners who assaulted prison
guards), cert. denied, 513 U.S. 834, 115 S. Ct. 111, 130 L. Ed. 2d 58 (1994);
State v. Beck, 545 N.W.2d 811, 812, 816 (S.D. 1996) (transfer to higher security
facility for inmate who was in possession of three marijuana cigarettes).