***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. SIDNEY WADE
(AC 38719)
Alvord, Keller and Pellegrino, Js.
Syllabus
The defendant, who previously had been convicted of the crimes of sale of
narcotics by a person who is not drug-dependent, possession of narcotics
with intent to sell by a person who is not drug-dependent and manslaugh-
ter in the first degree, appealed to this court from the judgment of the
trial court denying his motion to correct an illegal sentence. In a prior
direct appeal from his conviction, this court reversed the defendant’s
conviction of manslaughter in the first degree and remanded the case
with direction to reflect a conviction of manslaughter in the second
degree, and to resentence the defendant in accordance with that convic-
tion. On remand, the trial court vacated the sentences imposed on all
counts, modified the judgment to reflect a conviction of manslaughter
in the second degree, and resentenced the defendant on all counts. In
his motion to correct an illegal sentence, the defendant claimed that
the trial court, in resentencing him on all counts, violated the prohibition
against double jeopardy by altering the sentences on the narcotics
related offenses, which had not been reversed. Held that the trial court
properly denied the defendant’s motion to correct an illegal sentence
and rejected his double jeopardy claim, as this court previously has
rejected a similar double jeopardy claim in State v. LaFleur (156 Conn.
App. 289), and that case was controlling precedent with respect to the
defendant’s double jeopardy claim: even if the defendant had raised
claims in his direct appeal that challenged only some of the counts
under which he had been convicted, the fact that he exercised his right
to an appeal undermined his argument that he had an expectation of
finality in the sentence originally imposed for the narcotics offenses that
were not reversed on appeal, as the legal consequence of his successful
challenge to his manslaughter conviction resulted in a resentencing
proceeding in which the trial court properly resentenced him pursuant
to the remand order, and it is well established that resentencing a
defendant does not trigger double jeopardy concerns when the original
sentence was illegal or erroneous; moreover, when a defendant success-
fully challenges one portion of a sentencing package, a trial court may
resentence a defendant on his conviction of the other crimes under the
aggregate package theory without offending the double jeopardy clause,
and the resentencing court is free to restructure the defendant’s entire
sentencing package, even for those components assigned to convictions
that have been fully served, as long as the overall term has not expired,
without offending double jeopardy.
Argued October 10—officially released December 5, 2017
Procedural History
Substitute information charging the defendant with
two counts each of the crimes of sale of narcotics by
a person who is not drug-dependent and possession of
narcotics with intent to sell by a person who is not
drug-dependent, and with the crimes of manslaughter in
the first degree and manslaughter in the second degree,
brought to the Superior Court in the judicial district of
New Britain and tried to the jury before D’Addabbo, J.;
verdict of guilty of two counts each of sale of narcotics
by a person who is not drug-dependent and possession
of narcotics with intent to sell by a person who is not
drug-dependent, and manslaughter in the first degree;
thereafter, the state entered a nolle prosequi as to the
charge of manslaughter in the second degree, and the
court rendered judgment in accordance with the ver-
dict, from which the defendant appealed to this court,
which reversed the conviction as to manslaughter in
the first degree and remanded the case with direction
to modify the judgment to reflect a conviction of man-
slaughter in the second degree and for resentencing in
accordance with that conviction; subsequently, follow-
ing a hearing, the court, D’Addabbo, J., vacated the
sentences and resentenced the defendant as to all
counts, from which the defendant appealed to this
court; thereafter, the matter was transferred to our
Supreme Court, which affirmed the judgment of the
trial court; subsequently, the court, Alander, J., denied
the defendant’s motion to correct an illegal sentence,
and the defendant appealed to this court. Affirmed.
John C. Drapp III, assigned counsel, for the appel-
lant (defendant).
Jennifer F. Miller, deputy assistant state’s attorney,
with whom, on the brief, were Brian Preleski, state’s
attorney, and Paul N. Rotiroti, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Sidney Wade, appeals
from the judgment of the trial court denying his motion
to correct an illegal sentence. The defendant claims
that the court improperly concluded that his resentenc-
ing did not give rise to a double jeopardy violation. We
affirm the judgment of the trial court.
The following procedural history is relevant to the
present claim. Following a jury trial, the defendant was
convicted of two counts of sale of narcotics by a person
who is not drug-dependent in violation of General Stat-
utes § 21a-278 (b), two counts of possession of narcotics
with intent to sell by a person who is not drug-depen-
dent in violation of General Statutes § 21a-278 (b), and
one count of manslaughter in the first degree in viola-
tion of General Statutes § 53a-55 (a) (3). For each of
the sale of narcotics counts, the court, D’Addabbo, J.,
imposed a sentence of seven years of imprisonment.
For each of the possession of narcotics counts, the
court imposed a sentence of seven years of imprison-
ment. For these four counts, the court ordered the sen-
tences to be served concurrently. For the manslaughter
in the first degree count, the court imposed a sentence
of eighteen years of imprisonment. The court ordered
the sentence for the manslaughter count to be served
consecutive to the sentences imposed with respect to
the other counts. This resulted in a total effective sen-
tence of twenty-five years of imprisonment.
In a direct appeal to this court, the defendant claimed
that the evidence did not support the conviction for
manslaughter in the first degree and that the trial court
improperly had instructed the jury with respect to the
state’s burden of proof and the presumption of inno-
cence. See State v. Wade, 106 Conn. App. 467, 469,
490–91, 942 A.2d 1085, cert. granted, 287 Conn. 908, 950
A.2d 1286 (2008) (appeal withdrawn June 12, 2008). The
latter claim pertained to all of the offenses of which
he was convicted. A detailed recitation of the facts
underlying the judgment is set forth in that opinion.1
Id., 469–75. This court rejected the claim of instructional
error, but agreed with the claim of evidentiary insuffi-
ciency. Id., 492–93. Accordingly, this court affirmed in
part and reversed in part the judgment of the trial court.
Id. Specifically, this court concluded that the conviction
of manslaughter in the first degree in violation of § 53a-
55 (a) (3) should be reversed and that the case should
be remanded to the trial court with direction to reflect
a conviction of manslaughter in the second degree in
violation of General Statutes § 53a-56 (a) (1) and to
resentence the defendant in accordance with that con-
viction. Id.
In compliance with this court’s remand, the trial
court, D’Addabbo, J., held a resentencing hearing. The
trial court vacated the sentences it had imposed on all
counts in the judgment and modified the judgment to
reflect a conviction of the four narcotics related counts
that were affirmed by this court as well as manslaughter
in the second degree. The trial court resentenced the
defendant by imposing a total effective sentence of
twenty-three years. It restructured the original sentence
by increasing the concurrent terms of imprisonment on
the four narcotics related counts from seven years each
to thirteen years each. The court ordered that these
four sentences be served consecutively to a ten year
term of imprisonment for the manslaughter in the sec-
ond degree conviction.
Following his resentencing, the defendant appealed
to this court. Our Supreme Court transferred the appeal
to itself pursuant to General Statutes § 51-199 (c) and
Practice Book § 65-1. Before our Supreme Court, the
defendant claimed that ‘‘(1) the trial court improperly
resentenced him on all of his convictions because [this
court’s] order directed resentencing only on the
reversed count; (2) the aggregate package theory,
adopted by [our Supreme Court] in 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), does not apply
when the reversal of a conviction is based on insuffi-
cient evidence;2 (3) under North Carolina v. Pearce,
395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969),
the trial court’s decision to increase the sentences on
the affirmed counts violated the defendant’s due pro-
cess rights under the fourteenth amendment to the
United States constitution and, alternatively, article
first, § 8, of the Connecticut constitution; and (4) [our
Supreme Court] should vacate his sentences under [the
court’s] supervisory powers over the administration of
justice.’’ (Footnotes added and omitted.) State v. Wade,
297 Conn. 262, 265–66, 998 A.2d 1114 (2010). Our
Supreme Court rejected these claims and affirmed the
judgment of the trial court. Id., 266.
In February, 2015, the defendant filed a motion to
correct an illegal sentence. Although he raised addi-
tional arguments that he later abandoned before the
trial court, he argued that the newly imposed sentence
was illegal because (1) the court violated his right to
due process as guaranteed by the federal and state
constitutions by altering the sentences on the narcotics
related counts without the statutory authority to do so;
(2) the court violated the prohibition against double
jeopardy enshrined in the federal and state constitu-
tions by altering the sentences on the narcotics related
offenses without the statutory authority to do so; and
(3) the court altered the sentences on the narcotics
related offenses in the absence of factual findings as
required by Apprendi v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Alleyne v.
United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed.
2d 314 (2013). The court, Alander, J., rejected these
three claims on their merits and denied the motion to
correct. This appeal followed.
In the present appeal, the defendant challenges only
that part of the court’s decision in which it rejected his
double jeopardy claim. In its memorandum of decision,
the court addressed the double jeopardy claim as fol-
lows: ‘‘The defendant’s second claim is that the
reopening of his drug convictions for purposes of resen-
tencing violated the double jeopardy clauses of the
United States constitution and the Connecticut consti-
tution. This claim lacks merit for the simple reason that
the Appellate Court in State v. LaFleur, 156 Conn. App.
289, 308–11, [113 A.3d 472, cert. denied, 317 Conn. 906,
114 A.3d 1221 (2015),] previously rejected such a claim.
In LaFleur, the defendant appealed his convictions in
two cases consolidated for trial. The convictions in one
of the cases were reversed by our Supreme Court which
vacated the entire sentence in both cases and remanded
the cases for resentencing. Just as the defendant does
here, the defendant in LaFleur claimed that his subse-
quent sentence violated the double jeopardy prohibition
against multiple punishments for the same offense
because he had an expectation of finality in the original
sentence [with respect to the convictions that were not
reversed on appeal]. The Appellate Court disagreed.
‘Even if the defendant had raised claims that challenged
only some of the counts under which he had been con-
victed, the fact that he exercised his right to an appeal
undermines his argument to an expectation of finality
in the sentence originally imposed. The defendant was
successful in undermining a portion of a sentencing
package, and the legal consequence of doing so resulted
in a resentencing proceeding in which the trial court
properly resentenced him pursuant to the remand
order.’ Id., 309–10. ‘It is well established that resentenc-
ing a defendant does not trigger double jeopardy con-
cerns when the original sentence was illegal or
erroneous.’ Id., 310. ‘In the specific context of a remand
for resentencing when a defendant successfully chal-
lenges one portion of a sentencing ‘‘package,’’ the
United States Supreme Court has held that a trial court
may resentence a defendant on his conviction of the
other crimes without offending the double jeopardy
clause of the United States constitution. Pennsylvania
v. Goldhammer, 474 U.S. 28, 29–30, 106 S. Ct. 353, 88
L. Ed. 2d 183 (1985). Indeed, the resentencing court is
free to restructure the defendant’s entire sentencing
package, even for those components assigned to convic-
tions that have been fully served, as long as the overall
term has not expired, without offending double jeop-
ardy.’ State v. Tabone, 292 Conn. 417, 441, [973 A.2d 74
(2009)]. As in LaFleur and Tabone, the trial court’s
resentencing of the defendant upon remand after his
successful appeal does not conflict with principles of
double jeopardy.’’
Before the trial court, the defendant argued that the
resentencing court violated his double jeopardy rights
because he had an expectation of finality in the senten-
ces imposed by the first sentencing court with respect
to the narcotics related charges. A defendant properly
may raise a double jeopardy claim in the context of a
motion to correct an illegal sentence. See, e.g., State v.
Starks, 121 Conn. App. 581, 591–92, 997 A.2d 546 (2010);
State v. Olson, 115 Conn. App. 806, 810–11, 973 A.2d
1284 (2009). ‘‘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. . . . A double jeopardy claim,
however, presents a question of law, over which our
review is plenary.’’ (Citation omitted; internal quotation
marks omitted.) State v. Baker, 168 Conn. App. 19, 24,
145 A.3d 955, cert. denied, 323 Conn. 932, 150 A.3d
232 (2016).
In his brief before this court, the defendant reiterates
his belief that it was improper for the court to have
reopened and resentenced him with respect to the nar-
cotics related charges. He argues that he had an ‘‘expec-
tation of finality in the sentences imposed on the
narcotics convictions when those convictions were
affirmed and the state had no authority to seek further
review of those convictions or sentences.’’ The defen-
dant does not attempt to distinguish LaFleur or Tabone
in any meaningful way,3 and acknowledges that ‘‘the
courts of this state have otherwise been fairly consistent
in finding that no double jeopardy problem exists with
respect to the aggregate package theory of sentencing.’’
Rather than attempting to demonstrate that the court
either misinterpreted or misapplied the law, the defen-
dant devotes much of his analysis to reviewing what
he believes are relevant decisions of the United States
Supreme Court, yet he acknowledges that there is sup-
port in that body of law ‘‘for the proposition that an
aggregate package theory of sentencing does not violate
double jeopardy.’’4
In exercising our plenary review, we, like the trial
court, view LaFleur to be controlling precedent with
respect to the defendant’s double jeopardy claim. Our
Supreme Court has already rejected the defendant’s
claim that the resentencing court improperly sentenced
him under the aggregate package theory. See State v.
Wade, supra, 297 Conn. 268–78. We will neither reevalu-
ate nor reconsider that settled issue. As the trial court
recognized correctly, this court’s analysis in LaFleur is
dispositive of the double jeopardy claim raised in the
present case. See State v. LaFleur, supra, 156 Conn.
App. 308–11. Accordingly, we conclude that the court
properly denied the motion to correct.
The judgment is affirmed.
In this opinion the other judges concurred.
1
At trial, the state presented evidence demonstrating that the defendant
illegally provided the victim with prescription drugs, specifically, Methadose
pills (a drug commonly used to treat heroin addiction) and lollipops con-
taining fentanyl (a narcotic drug commonly used by cancer patients to relieve
pain). State v. Wade, supra, 106 Conn. App. 470 nn.2 and 3. The victim’s
ingestion of these drugs caused her death. Id., 474.
2
Under the aggregate package theory of sentencing, when a multicount
conviction is remanded for resentencing after one or more convictions has
been vacated on appeal, the trial court may, in its discretion, increase the
sentences imposed on the remaining counts provided that the original total
effective sentence is not exceeded. See State v. Raucci, 21 Conn. App. 557,
563, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990). In Raucci,
this court reasoned that, when a defendant appeals from a multicount convic-
tion, he ‘‘has voluntarily called into play the validity of the entire sentencing
package, and, thus, the proper remedy is to vacate it in its entirety. More
significantly, the original sentencing court is viewed as having imposed
individual sentences merely as component parts or building blocks of a
larger total punishment for the aggregate convictions, and, thus, to invalidate
any part of that package without allowing the court thereafter to review and
revise the remaining valid convictions would frustrate the court’s sentencing
intent.’’ Id., 562. This court went on to observe that a trial court’s power to
restructure the aggregate package ‘‘is limited by its original sentencing intent
as expressed by the original total effective sentence . . . .’’ Id., 563. In State
v. Miranda, supra, 260 Conn. 128–30, our Supreme Court endorsed Raucci
and adopted the aggregate package theory.
3
In his brief, the defendant observes that, in Tabone, our Supreme Court
stated in relevant part: ‘‘The defendant has challenged only the legality of
his sentences, not the validity of his conviction. Consequently, the trial court
was free to refashion the entire sentence for each of the crimes within the
confines of the original package without violating double jeopardy, as long
as the entire sentence had not been fully served.’’ State v. Tabone, supra,
292 Conn. 442. According to the defendant, this language ‘‘suggests that a
successful challenge to the validity of a conviction, as opposed to a sentence,
prevents the trial court from refashion[ing] the entire sentence for each of
the crimes within the confines of the original package on double jeopardy
grounds.’’ (Emphasis in original; internal quotation marks omitted.) The
defendant in the present case, having challenged the legality of his convic-
tions, reasons: ‘‘Tabone leaves doubt as to whether the prohibition against
double jeopardy is implicated when the aggregate package theory of sentenc-
ing is applied upon remand following a successful challenge to a conviction
rather than a sentence . . . .’’
We disagree with the defendant’s narrow interpretation of Tabone. As the
defendant acknowledges, immediately following the language on which he
relies, the court in Tabone quoted State v. Miranda, supra, 260 Conn. 129,
for the following proposition: ‘‘[T]he defendant, in appealing his conviction
and punishment, has voluntarily called into play the validity of the entire
sentencing package, and, thus, the proper remedy is to vacate it in its
entirety.’’ (Internal quotation marks omitted.) This language dispels the
alleged ambiguity in the defendant’s interpretation of Tabone.
4
As part of his arguments before this court, the defendant relies to a
great extent on United States v. DiFrancesco, 449 U.S. 117, 101 S. Ct. 426,
66 L. Ed. 2d 328 (1980), apparently as support for the proposition that,
because the state could not obtain appellate review of the sentences imposed
with respect to the narcotics related counts in the present case, he had an
expectation of finality with respect to those sentences. Thus, the defendant
argues, the court violated his double jeopardy rights by resentencing him
in the manner that it did.
The defendant’s argument is not persuasive. Where, as here, a defendant
has challenged the validity of his multicount conviction on direct appeal,
he is unable thereafter to claim an expectation of finality in the sentences
imposed. Consistent with overwhelming federal authority, our courts have
recognized that, in such circumstances, ‘‘the defendant, in appealing his
conviction and punishment, has voluntarily called into play the validity of
the entire sentencing package . . . .’’ State v. Raucci, 21 Conn. App. 557,
562, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990); see also
State v. Wade, supra, 297 Conn. 269–70 (same); State v. Tabone, supra, 292
Conn. 427–28 (same); State v. Miranda, supra, 260 Conn. 129 (same).