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STATE OF CONNECTICUT v. GANG JIN
(AC 39893)
DiPentima, C. J., and Elgo and Flynn, Js.
Syllabus
The defendant, who had been convicted, pursuant to a guilty plea, of the
crime of conspiracy to commit burglary in the third degree, appealed
to this court from the judgment of the trial court denying his motion
to open the judgment of conviction. The defendant, who claimed to be
a legal permanent resident of the United States, sought to open the
judgment of conviction to allow him to continue with his application
for accelerated rehabilitation, and claimed that he had been denied the
effective assistance of counsel because he had not been properly advised
of the immigration benefits of accelerated rehabilitation. The trial court
denied the motion to open, concluding that the defendant had withdrawn
his application for accelerated rehabilitation as part of a plea agreement
prior to the judgment of conviction and sentencing. Held:
1. The defendant’s claims that the trial court improperly denied his applica-
tion for the accelerated rehabilitation program and determined that he
received the effective assistance of counsel were unavailing: it having
been clear from the record that the court never ruled on the defendant’s
application for accelerated rehabilitation because it had been withdrawn
at the proceeding during which he entered his guilty plea, the defendant
could not now complain about a ruling that the court never made, and
the court, which sentenced the defendant on the same date it accepted
his guilty plea, was divested of jurisdiction at that time and, thus, lacked
jurisdiction over the defendant’s motion to open and to consider his
claim of ineffective assistance of counsel; accordingly because the trial
court lacked jurisdiction to consider the motion to open, it should have
dismissed rather than denied that motion.
2. The defendant’s claim, raised for the first time on appeal, that the trial
court had jurisdiction to correct an illegal sentence pursuant to the
applicable rule of practice (§ 43-22) was not reviewable; the defendant
did not file a motion to correct an illegal sentence, which may be filed
at any time to raise a claim of an illegal sentence, our rules of practice
confer the authority to correct an illegal sentence on the trial court,
which is in a superior position to fashion an appropriate remedy for an
illegal sentence, and it was not appropriate to review the defendant’s
unpreserved claim of an illegal sentence for the first time on appeal.
Argued November 13, 2017—officially released January 9, 2018
Procedural History
Substitute information charging the defendant with
the crime of burglary in the third degree, brought to
the Superior Court in the judicial district of Hartford,
geographical area number twelve, where the defendant
was presented to the court, Baldini, J., on a plea of
guilty; judgment of guilty; thereafter, the court Kwak,
J., denied the defendant’s motion to open the judgment,
from which the defendant appealed to this court.
Improper form of judgment; judgment directed.
Nitor V. Egbarin, for the appellant (defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Courtney M. Chaplin, assistant state’s attor-
ney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Gang Jin, appeals
from the denial of his motion to open the judgment of
conviction,1 after his guilty plea made pursuant to the
Alford doctrine,2 of conspiracy to commit burglary in
the third degree in violation of General Statutes §§ 53a-
103 and 53a-48. On appeal, the defendant claims that
the court (1) improperly denied his application for the
accelerated rehabilitation program pursuant to General
Statutes § 54-56e3 and (2) erred in determining that he
had received the effective assistance of counsel. The
state counters that, following the imposition of the
defendant’s sentence, the court lacked jurisdiction to
consider the defendant’s motion to open. Additionally,
the state argues that the defendant’s claim that the court
retained jurisdiction because he had been sentenced in
an illegal manner,4 which was raised for the first time
on appeal, fails because he challenges the ‘‘events prior
to his conviction and guilty plea, rather than events at
sentencing.’’ The state further contends that the defen-
dant’s guilty plea, made pursuant to the Alford doctrine,
waives all prior nonjurisdictional defects. We agree with
the state that, following the imposition of the defen-
dant’s sentence, the court’s jurisdiction terminated.
Additionally, we decline to consider the defendant’s
claim of an illegal sentence because he failed to present
this issue to the trial court via a motion to correct an
illegal sentence. Finally, the form of the judgment is
improper, and therefore we reverse the judgment and
remand the case with direction to dismiss the defen-
dant’s motion to open.
The following facts and procedural history are rele-
vant to our discussion. In an information dated April
3, 2014, the state charged the defendant with burglary
in the second degree in violation of General Statutes
§ 53a-102, conspiracy to commit burglary in the second
degree in violation of General Statutes §§ 53a-102 and
53a-48, possession of burglar’s tools in violation of Gen-
eral Statutes § 53a-106 and attempt to commit larceny
in the sixth degree in violation of General Statutes § 53a-
125. On November 10, 2014, the defendant filed an appli-
cation for accelerated rehabilitation.
The defendant, represented by Attorney Theodore A.
Kowar, Jr., appeared before the court, Baldini, J., on
January 12, 2016. At the outset of this proceeding, the
clerk confirmed the defendant’s eligibility for acceler-
ated rehabilitation. Kowar stated the defendant was
withdrawing the application for accelerated rehabilita-
tion. The prosecutor and Kowar informed the court that
they had reached a plea agreement. Specifically, the
defendant agreed to plead guilty to the substituted
charge of conspiracy to commit burglary in the third
degree in exchange for a five year sentence, execution
suspended, and five years of probation.5
After canvassing the defendant,6 the court found that
plea was made knowingly and voluntarily with the assis-
tance of competent counsel. It accepted the defendant’s
Alford plea and rendered a judgment of conviction. The
court imposed the agreed-upon sentence of five years
incarceration, execution suspended, and five years of
probation.7
On November 7, 2016, the defendant, now repre-
sented by Attorney Nitor Egbarin, filed a motion to
open the judgment. The defendant, who claimed to be
a legal permanent resident of the United States,
requested to have his case opened ‘‘to allow him to
continue with his application for [accelerated rehabili-
tation] to which he is eligible.’’ He further alleged that
he had not been advised of the immigration benefits
of the accelerated rehabilitation application, and that
Kowar’s withdrawal of that application ‘‘was neither a
correct action nor correct legal advice,’’ constituting a
denial of his ‘‘right to effective assistance of counsel.’’
On November 22, 2016, the court, Kwak, J., held a
hearing on the defendant’s motion. Egbarin requested
that the court open the case to afford the defendant the
opportunity to pursue his application for accelerated
rehabilitation. The prosecutor, in an attempt to clarify
any issues regarding the application for accelerated
rehabilitation, noted that Judge Baldini had indicated
in certain pretrial conversations that she would not find
good cause to grant accelerated rehabilitation in this
case.8 Nevertheless, the defendant’s application for
accelerated rehabilitation, which was filed on Novem-
ber 10, 2014, remained pending until the January 12,
2016 hearing. At that hearing the defendant withdrew
the application, pleaded guilty and was sentenced.
Accordingly, the prosecutor reasoned the court’s juris-
diction over the case terminated at that time. Thus, the
prosecutor requested that the court deny the defen-
dant’s motion to open.
In response, Egbarin referred to his claim of ineffec-
tive assistance of counsel, and requested that Judge
Kwak consider whether good cause existed with
respect to the application for accelerated rehabilitation.
Following a recess, the court issued its decision. It
determined that the defendant withdrew his application
for accelerated rehabilitation on January 12, 2016. It
then denied the defendant’s motion to open. Finally, it
observed that ‘‘once a person has been sentenced, the
court no longer has jurisdiction to vacate a plea. This
is not the proper procedure. And a habeas is more—a
habeas petition is more a proper procedure than to
have the trial court [open] judgment.’’
On appeal, the defendant first claims that the court
improperly denied his application for accelerated reha-
bilitation. Specifically, he argues that he was denied
the opportunity to present evidence of good cause in
support of his application, that a person charged with
a class C felony is eligible for accelerated rehabilitation
upon a showing of good cause and that Judge Baldini
improperly denied the application in chambers and not
in open court.
These arguments suffer from two substantial flaws.
First, the record is clear the Judge Baldini did not deny
the defendant’s application for accelerated rehabilita-
tion. She never ruled on this application because the
application was withdrawn at the January 12, 2016 pro-
ceeding where the defendant pleaded guilty pursuant
to the Alford doctrine. Thus, the foundation for the
defendant’s arguments collapses because it is based on
an action of the trial court that simply did not occur.
Although we agree that the record suggests that Judge
Baldini was inclined to deny the application for acceler-
ated rehabilitation, that inclination is immaterial
because the court never acted on the application for
accelerated rehabilitation following the withdrawal of
said application. Put another way, the defendant cannot
now complain about a ruling that the court never made.
See, e.g., Durso v. Aquilino, 64 Conn. App. 469, 475,
780 A.2d 937 (2001) (claim of error is not reviewable
where objection to admission of evidence was with-
drawn at trial); State v. Rodriguez, 10 Conn. App. 357,
358, 522 A.2d 1250 (‘‘[i]t is axiomatic that, absent excep-
tional circumstances, appellate review of all issues
. . . [is limited] to those on which the trial court has
had an opportunity to rule’’ [emphasis added; internal
quotation marks omitted]), cert. denied, 204 Conn. 804,
528 A.2d 1151 (1987).
Second, we agree with the state that the court lacked
jurisdiction over the motion to open. The court sen-
tenced the defendant on January 12, 2016, the same
day it accepted his guilty plea. Under our well estab-
lished law, the court was divested of jurisdiction at
that time. Accordingly, it lacked the power to hear and
determine the defendant’s November 7, 2016 motion
to open.
‘‘The Superior Court is a constitutional court of gen-
eral jurisdiction. In the absence of statutory or constitu-
tional provisions, the limits of its jurisdiction are
delineated by the common law. . . . It is well estab-
lished that under the common law a trial court has
the discretionary power to modify or vacate a criminal
judgment before the sentence has been executed. . . .
This is so because the court loses jurisdiction over the
case when the defendant is committed to the custody
of the commissioner of correction and begins serving
the sentence. . . . Because it is well established that
the jurisdiction of the trial court terminates once a
defendant has been sentenced, a trial court may no
longer take any action affecting a defendant’s sentence
unless it expressly has been authorized to act.’’
(Emphasis added; internal quotation marks omitted.)
State v. Robles, 169 Conn. App. 127, 132, 150 A.3d 687
(2016), cert. denied, 324 Conn. 906, 152 A.3d 544 (2017);
see also State v. Banks, 321 Conn. 821, 830, 146 A.3d
1 (2016); State v. Monge, 165 Conn. App. 36, 41–42, 138
A.3d 450, cert. denied, 321 Conn. 924, 138 A.3d 284
(2016). We conclude, therefore, that the trial court
lacked jurisdiction to consider the defendant’s motion
to open.
Next, we address the defendant’s claim of ineffective
assistance of counsel. He contends that Kowar was
constitutionally ineffective by advising the defendant to
withdraw his application for accelerated rehabilitation
and to plead guilty pursuant to the Alford doctrine.
Specifically, the defendant argues that Kowar failed to
advise him that his guilty plea would subject him to
removal from the United States and this failure violated
his sixth amendment right to effective assistance of
counsel pursuant to Padilla v. Kentucky, 559 U.S. 356,
130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).9
We again conclude that the court lacked jurisdiction
to consider the defendant’s claim of ineffective assis-
tance of counsel.10 We iterate that following the imposi-
tion of the defendant’s sentence on January 12, 2016,
the court was divested of jurisdiction. Accordingly, it
was without the power to consider the defendant’s
claim of ineffective assistance of counsel that was
raised in the November 7, 2016 motion to open.
Finally, the defendant argues, for the first time on
appeal, that the trial court had jurisdiction, pursuant
to Practice Book § 43-22, to correct that illegal sentence.
Specifically, he contends that his sentence was imposed
in an illegal manner, and therefore the court had juris-
diction to correct it at any time. As a general matter,
§ 43-22 ‘‘embodies a common-law exception that per-
mits the trial court to correct an illegal sentence or
other illegal disposition. . . . [I]n order for the court
to have jurisdiction over a motion to correct an illegal
sentence after the sentence has been executed, the sen-
tencing proceeding [itself] . . . must be the subject of
the attack. . . . [T]o invoke successfully the court’s
jurisdiction with respect to a claim of an illegal sen-
tence, the focus cannot be on what occurred during
the underlying conviction. . . .
‘‘Connecticut courts have considered four categories
of claims pursuant to [Practice Book] § 43-22. The first
category has addressed whether the sentence was
within the permissible range for the crimes charged.
. . . The second category has considered violations of
the prohibition against double jeopardy. . . . The third
category has involved claims pertaining to the computa-
tion of the length of the sentence and the question of
consecutive or concurrent prison time. . . . The fourth
category has involved questions as to which sentencing
statute was applicable. . . . [I]f a defendant’s claim
falls within one of these four categories, the trial court
has jurisdiction to modify a sentence after it has com-
menced. . . . If the claim is not within one of these
categories, then the court must dismiss the claim for a
lack of jurisdiction and not consider its merits.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Robles, supra, 169 Conn. App. 132–33.
In the present case, however, the defendant did not
file a motion to correct an illegal sentence and instead
raised his Practice Book § 43-22 claim for the first time
on appeal. We recently have concluded that ‘‘it is inap-
propriate to review an illegal sentence claim that is
raised for the first time on appeal. Our rules of practice
confer the authority to correct an illegal sentence on
the trial court, and that court is in a superior position
to fashion an appropriate remedy for an illegal sentence.
. . . Furthermore, the defendant has the right, at any
time, to file a motion to correct an illegal sentence and
raise [an illegal sentence] claim before the trial court.
. . . State v. Starks, 121 Conn. App. 581, 592, 997 A.2d
546 (2010) (declining to review unpreserved claim of
illegal sentence under State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 [1989], or plain error doctrine
embodied in Practice Book § 60-5); see also Cobham
v. Commissioner of Correction, 258 Conn. 30, 38 n.13,
779 A.2d 80 (2001) (clarifying that judicial authority in
context of Practice Book § 43-22 refers exclusively to
trial court); State v. Crump, 145 Conn. App. 749, 766,
75 A.3d 758 ([i]t is not appropriate to review an unpre-
served claim of an illegal sentence for the first time on
appeal . . .), cert. denied, 310 Conn. 947, 80 A.3d 906
(2013); State v. Brown, 133 Conn. App. 140, 145–46 n.6,
34 A.3d 1007 (2012) (same), rev’d on other grounds,
310 Conn. 693, 80 A.3d 878 (2013).’’ (Internal quotation
marks omitted.) State v. Urbanowski, 163 Conn. App.
377, 385, 136 A.3d 236 (2016), aff’d, 327 Conn. 169,
A.3d (2017); see also State v. Rivera, 177 Conn.
App. 242, 248–51, A.3d , (judicial authority to
consider motion to correct illegal sentence is with trial
court, not appellate courts of this state), petition for
cert. filed (Conn. December 21, 2017) (No. 170342). We
therefore decline to review the defendant’s claim of an
illegal sentence.11
Having determined that the court lacked subject mat-
ter jurisdiction to consider the motion to open, we con-
clude that the court should have dismissed rather than
denied that motion.
The form of the judgment is improper, the judgment
denying the motion to open is reversed, and the case is
remanded with direction to render judgment dismissing
the motion to open.
In this opinion the other judges concurred.
1
The defendant captioned his motion as a ‘‘Motion to Reopen.’’ ‘‘Although
the motion was entitled a motion to reopen, we note that because the motion
had not been opened previously, the use of that term is both improper and
misleading. . . . The appropriate phrase is motion to open, and we refer-
ence it in this opinion accordingly. . . . Rino Gnesi Co. v. Sbriglio, 83
Conn. App. 707, 709 n.2, 850 A.2d 1118 (2004).’’ (Internal quotation marks
omitted.) State v. Wahab, 122 Conn. App. 537, 539 n.2, 2 A.3d 7, cert. denied,
298 Conn. 918, 4 A.3d 1230 (2010).
2
‘‘Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970), a criminal defendant is not required to admit his guilt . . .
but consents to being punished as if he were guilty to avoid the risk of
proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial
oxymoron in that the defendant does not admit guilt but acknowledges that
the state’s evidence against him is so strong that he is prepared to accept
the entry of a guilty plea nevertheless. . . . Rodriguez v. Commissioner
of Correction, 167 Conn. App. 233, 234 n.1, 143 A.3d 630 (2016); Misenti v.
Commissioner of Correction, 165 Conn. App. 548, 551–52 n.2, 140 A.3d 222,
cert. denied, 322 Conn. 902, 138 A.3d 932 (2016).’’ (Internal quotation marks
omitted.) State v. Robles, 169 Conn. App. 127, 128 n.1, 150 A.3d 687 (2016),
cert. denied, 324 Conn. 906, 152 A.3d 544 (2017).
3
‘‘General Statutes § 54-56e provides in relevant part: (a) There shall be
a pretrial program for accelerated rehabilitation of persons accused of a
crime or crimes or a motor vehicle violation or violations for which a
sentence to a term of imprisonment may be imposed, which crimes or
violations are not of a serious nature. Upon application by any such person
for participation in the program, the court shall, but only as to the public,
order the court file sealed. . . .’’ (Internal quotation marks omitted.) State
v. Apt, 319 Conn. 494, 500 n.5, 126 A.3d 511 (2015).
4
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.’’
5
The prosecutor set forth the following factual basis for the defendant’s
plea: ‘‘Your Honor, it appears that on or about April 2, 2014, in the town of
Glastonbury, police responded to a report of a home—a residential burglary.
Upon arriving they found a complainant indicating that there was a male
who was attempting to enter into the home and the male was seen to be
an Asian male, approximately twenty to thirty years of age; attempted to
enter the home; entered the home, however, left the home after being scared
away by, I believe, a resident of the home—homeowner.
‘‘Another witness saw the Asian male going through the backyards of
various homes and entering into a black vehicle which was later followed
and stopped by police officers. Upon stopping that vehicle, police found
the defendant to be a passenger of that vehicle and another individual . . .
to be the driver of that vehicle. Inside the vehicle they found several burglary
tools including a crowbar as well as a screwdriver and a black coat that
had been described by a witness watching—who had observed the Asian
male running through backyards and then subsequently entering that vehicle.
‘‘It was found this defendant was a passenger in that vehicle . . . and
that the two [individuals] had engaged in an agreement to go to that area
to commit burglaries or a burglary to that home to retrieve funds that had
a substantial or had a value knowing that this defendant [and the second
individual] had previously known each other and [the second individual]
owed the defendant money and therefore they engaged in this agreement
to commit this burglary . . . .’’
In light of these facts, the prosecutor subsequently persuaded the court
that good cause existed to justify a five year period of probation.
6
During the canvass, the court informed the defendant that if he was not
a citizen of the United States, this conviction could result in deportation,
exclusion from readmission or a denial of naturalization.
7
The court also ordered the defendant to pay restitution and to not have
any contact with the victims in this matter.
8
General Statutes § 54-56e (c) provides in relevant part’’ ‘‘This section
shall not be applicable . . . (5) unless good cause is shown, to (A) any
person charged with a class C felony . . . .’’ We note that burglary in the
second degree is a class C felony. See General Statutes § 53a-102 (b).
9
In Padilla v. Kentucky, supra, 559 U.S. 356, the United States Supreme
Court held that the ‘‘United States constitution requires an attorney for a
criminal defendant to provide advice about the risk of deportation arising
from a guilty plea.’’ Saksena v. Commissioner of Correction, 145 Conn.
App. 152, 157, 76 A.3d 192, cert. denied, 310 Conn. 940, 79 A.3d 892 (2013).
10
As a general matter, our courts have recognized that the proper forum
for a claim of ineffective assistance of counsel is an action seeking a writ
of habeas corpus. State v. Charles, 56 Conn. App. 722, 729, 745 A.2d 842,
cert. denied, 252 Conn. 954, 749 A.2d 1203 (2000); see also State v. Bellamy,
323 Conn. 400, 431, 147 A.3d 655 (2016) (habeas proceeding provides superior
forum for claim of ineffective assistance of counsel because it provides
opportunity for evidentiary hearing). ‘‘Absent the evidentiary hearing avail-
able in the collateral action, review in this court of the ineffective assistance
claim is at best difficult and sometimes impossible. The evidentiary hearing
provides the trial court with the evidence that is often necessary to evaluate
the competency of the defense and the harmfulness of any incompetency.’’
(Internal quotation marks omitted.) State v. Charles, supra, 729–30.
We note that, in the present case, a factual dispute arose at the hearing
before Judge Kwak regarding whether Kowar had discussed the immigration
consequences of the plea to the defendant. This disagreement exemplifies
the reason why the strong preference for a habeas proceeding to resolve
claims of ineffective assistance of counsel exists in our law.
11
The defendant also argues that the trial court had jurisdiction because
the sentence was void. This argument is based on his assumption that had
the trial court properly applied § 54-56e (c) (5) and had it granted the
application for accelerated rehabilitation, the defendant would not have
received the sentence of five years incarceration, execution suspended, and
five years of probation. Thus, the defendant contends that both the plea
and the sentence were void. This reasoning is based upon speculation and
ignores the realities of the case, that is, that the defendant withdrew his
application for accelerated rehabilitation. Accordingly, we conclude that
this argument is wholly without merit.