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STATE OF CONNECTICUT v. ROBERT L. WALKER
(AC 41114)
Alvord, Bright and Beach, Js.
Syllabus
The defendant, who had been convicted in 2001 of the crimes of aggravated
sexual assault in the first degree, sexual assault in the first degree,
kidnapping in the first degree with a firearm, kidnapping in the first
degree, threatening, criminal possession of a weapon, credit card theft,
illegal use of a credit card, fraudulent use of an automatic teller machine
and larceny in the sixth degree, appealed to this court from the trial
court’s dismissal in part and denial in part of his motion to correct an
illegal sentence. The defendant was sentenced for his 2001 convictions
on the basis of a presentence investigation report that contained, inter
alia, detailed information concerning his past criminal history, including
facts underlying certain previous convictions in 1991. In his motion to
correct an illegal sentence, the defendant claimed, inter alia, that the
facts referenced in the 2001 presentence investigation report and in the
supplemental material concerning his 1991 convictions were inaccurate
and prejudicial. Held:
1. The trial court properly concluded that it lacked subject matter jurisdiction
to consider the defendant’s claim that his sentence was imposed in an
illegal manner due to the failure of the sentencing court to canvass him
or his counsel as to their review and the accuracy of the 2001 presentence
investigation report; our Supreme Court has determined previously that
our statutes and rules of practice do not require a court to make an
affirmative inquiry as to the accuracy of the information contained in
a presentence investigation report and that, consequently, such a claim
does not invoke the jurisdiction of the trial court.
2. The trial court lacked subject matter jurisdiction to consider the merits
of the defendant’s claim that his sentence was imposed in an illegal
manner due to the sentencing court’s reliance on inaccurate facts regard-
ing his 1991 convictions contained in the presentence investigation
report, as it was not plausible that the defendant sought to challenge
the manner in which his sentence was imposed, as opposed to the
underlying convictions: because the defendant’s challenge to his 2001
sentence was predicated on his claim that the presentence investigation
report contained inaccurate facts regarding his 1991 convictions, which
he alleged were unconstitutional due to the ineffective assistance of his
then defense counsel in failing to point out to the court contradictions
in the assertions of the complaining witness, failing to do an adequate
investigation and advising the defendant to plead guilty, his claim clearly
challenged his 1991 convictions and not the sentencing proceeding for
his 2001 convictions, and although the defendant’s 2001 sentencing pro-
ceeding may have been different had his 1991 convictions been set aside,
he could not use that theoretical possibility as the basis to launch a
wholesale attack on the performance of his then defense counsel through
a motion to correct an illegal sentence filed twenty-four years after he
pleaded guilty and long after his sentence for the 1991 convictions had
been served; accordingly, the trial court should have dismissed, rather
than denied, the defendant’s motion to correct an illegal sentence as to
this claim.
Argued October 24, 2018—officially released February 12, 2019
Procedural History
Substitute information, in the first case, charging the
defendant with three counts of the crime of fraudulent
use of an automated teller machine, two counts of the
crime of credit card theft, two counts of the crime of
illegal use of a credit card and one count of the crime
of larceny in the sixth degree, and substitute informa-
tion, in the second case, charging the defendant with
four counts each of the crimes of sexual assault in the
first degree and kidnapping in the first degree, two
counts each of the crimes of aggravated sexual assault
in the first degree and kidnapping in the first degree
with a firearm, and with the crimes of threatening and
possession of a weapon, brought to the Superior Court
in the judicial district of Middlesex and tried to the
jury before Clifford, J.; thereafter, the court denied the
defendant’s motion for a mistrial; verdicts and judg-
ments of guilty, from which the defendant appealed to
this court, which affirmed the judgments; subsequently,
the court, Vitale, J., dismissed in part and denied in
part the defendant’s motion to correct an illegal sen-
tence, and the defendant appealed to this court.
Improper form of judgment; affirmed in part; judg-
ment directed in part.
Temmy Ann Miller, assigned counsel, with whom
was Aimee Lynn Mahon, assigned counsel, for the
appellant (defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom were Russell C. Zentner, senior assistant state’s
attorney, and, on the brief, Peter A. McShane, former
state’s attorney, and Caitlyn S. Malcynsky, certified
legal intern, for the appellee (state).
Opinion
BRIGHT, J. The defendant, Robert L. Walker, appeals1
from the judgment of the trial court dismissing in part
and denying in part his motion to correct an illegal
sentence. On appeal, the defendant claims that the court
improperly (1) dismissed for lack of subject matter
jurisdiction his claim that the sentencing court failed
to canvass him or his counsel regarding their review
and the accuracy of the presentence investigation
report, and (2) denied on the merits, without first pro-
viding him with an adequate hearing before the sentenc-
ing court, his claim that the sentencing court relied on
inaccurate facts contained in the presentence investiga-
tion report. We conclude that the court lacked subject
matter jurisdiction to consider both of the defendant’s
claims raised by the motion to correct an illegal sen-
tence. Accordingly, we affirm in part and reverse in
part the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of the defendant’s claims. On
February 14, 1991, the defendant entered a guilty plea
pursuant to North Carolina v. Alford, 400 U.S. 25, 37,
91 S. Ct. 160, 27 L. Ed. 2d 162 (1970),2 to one count of
robbery in the first degree in violation of General Stat-
utes (Rev. to 1989) § 53a-134 (a) (4) and one count of
sexual assault in the third degree in violation of General
Statutes § 53a-72a (1991 convictions). The Office of
Adult Probation then prepared a presentence investiga-
tion report. On March 22, 1991, pursuant to the parties’
plea agreement, the court sentenced the defendant to
a total effective term of fourteen years incarceration,
execution suspended after nine years, with three years
probation. On January 12, 1996, the defendant was dis-
charged from the custody of the Department of Cor-
rection.
Between late 1999 and early 2000, the defendant
engaged in further criminal misconduct. On January 23,
2001, the defendant was convicted in absentia,3 follow-
ing a jury trial, of two counts of aggravated sexual
assault in the first degree in violation of General Stat-
utes § 53a-70a (a) (1), four counts of sexual assault in
the first degree in violation of General Statutes § 53a-
70 (a) (1), two counts of kidnapping in the first degree
with a firearm in violation of General Statutes § 53a-
92a, four counts of kidnapping in the first degree in
violation of General Statutes § 53a-92 (a) (2) (A), threat-
ening in violation of General Statutes (Rev. to 1999)
§ 53a-62 (a) (2), criminal possession of a weapon in
violation of General Statutes (Rev. to 1999) § 53a-217,
two counts of credit card theft in violation of General
Statutes § 53a-128c (a), three counts of fraudulent use
of an automatic teller machine in violation of General
Statutes § 53a-127b, two counts of illegal use of a credit
card in violation of General Statutes § 53a-128d, and
one count of larceny in the sixth degree in violation of
General Statutes (Rev. to 1999) § 53a-125b (2001 con-
victions).
Thereafter, the Office of Adult Probation prepared a
presentence investigation report (2001 PSI report) in
advance of the defendant’s sentencing for the 2001 con-
victions. The 2001 PSI report contained detailed infor-
mation concerning the defendant’s past criminal
history, including the facts underlying his 1991 convic-
tions. Also attached to the 2001 PSI report was a ‘‘Synop-
sis of Facts’’ provided by the Office of the State’s
Attorney that detailed the facts underlying the 2001 con-
victions.
On April 27, 2001, the sentencing court conducted
the defendant’s sentencing hearing at which it heard
statements from the state, the victim, the victim’s
mother, defense counsel, and the defendant.4 At the
conclusion of the hearing, the court sentenced the
defendant to a total effective term of fifty years incarcer-
ation, execution suspended after thirty-two years, fol-
lowed by twenty years probation. The defendant’s 2001
convictions were affirmed on direct appeal by this
court. See State v. Walker, 80 Conn. App. 542, 835 A.2d
1058 (2003), cert. denied, 268 Conn. 902, 845 A.2d
406 (2004).
On August 25, 2015, the defendant, pursuant to Prac-
tice Book § 43-22,5 filed an amended motion to correct
an illegal sentence.6 Therein, the defendant alleged that
the facts ‘‘referenced in [the 2001 PSI] report and in
the supplemental materials concerning his 1991 convic-
tion[s] . . . [were] inaccurate and prejudicial’’ because
the 1991 convictions were unconstitutional in three
ways: (1) ‘‘they were based on contradictory assertions
of the complaining witness as to whether a sexual
assault had ever taken place,’’ (2) ‘‘counsel in the 1991
case failed to investigate possible connections between
organized crime figures and the complaining witness
that may have tainted the complainant’s credibility,’’
and (3) ‘‘counsel was ineffective for advising [the defen-
dant] that he should plead guilty because his case would
be a ‘tough case to win.’ ’’ The defendant claimed that,
as a result, his sentence ‘‘was imposed in an illegal
manner’’ because the sentencing court: (1) ‘‘fail[ed] to
specifically canvass the [defendant] or his counsel as
to their review and the accuracy of the [2001 PSI] report
. . . in violation of [Practice Book §] 43-10’’ and (2)
‘‘specifically rel[ied] upon unconstitutional and inaccu-
rate information contained in the [2001 PSI report]
. . . .’’7
On October 23, 2015, the state filed a motion to dis-
miss the defendant’s motion to correct an illegal sen-
tence on the ground that the court lacked subject matter
jurisdiction to entertain it. In its memorandum of law
in support of the motion, the state argued that the court
lacked subject matter jurisdiction over the defendant’s
claim that the sentencing court failed to canvass him
or his attorney because such a claim had been fore-
closed by our Supreme Court in State v. Parker, 295
Conn. 825, 840–41, 992 A.2d 1103 (2010) (claims that
defendant ‘‘had been deprived of an opportunity to
review his presentence report and to address inaccura-
cies therein; and . . . [defense counsel] had failed to
review the presentence report with him or to bring any
inaccuracies in the report to the court’s attention’’ did
not provide jurisdictional basis for correcting sentence
imposed in illegal manner). The state also argued that
the court lacked subject matter jurisdiction over the
defendant’s claim that the sentencing court relied on
inaccurate information in the 2001 PSI report because
‘‘[s]uch a claim falls outside the purview of Practice
Book § 43-22’’ for the reason that it attacked an underly-
ing conviction, not the sentence imposed. The defen-
dant did not file a written opposition to the state’s
motion. On May 4, 2016, the court conducted a hearing
on the motion to dismiss at which it heard arguments
from both the state and defense counsel.
On May 23, 2016, the court issued a memorandum of
decision in which it dismissed in part and denied in part
the defendant’s motion to correct an illegal sentence.
In particular, the court dismissed for lack of subject
matter jurisdiction the defendant’s first claim that the
sentencing court failed to canvass the defendant or his
counsel because ‘‘such a claim is untenable’’ pursuant
to State v. Parker, supra, 295 Conn. 825. The court
denied on the merits the defendant’s second claim that
the sentencing court relied on inaccurate information
because it concluded that ‘‘the sentencing court did not
rely on materially false or prejudicial information. The
defendant was in fact convicted in 1991 of the crimes
referenced in the [2001 PSI report]. . . . The record
before this court does not support the defendant’s claim
that the information regarding the 1991 convictions was
materially false.’’ (Citations omitted; footnote omitted.)
This appeal followed. Additional facts will be set forth
as necessary.
We begin with our standard of review and relevant
legal principles. ‘‘[I]t is axiomatic 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 . . . . Practice Book
§ 43-22. A motion to correct an illegal sentence consti-
tutes a narrow exception to the [common-law] rule that,
once a defendant’s sentence has begun, the authority
of the sentencing court to modify that sentence termi-
nates. . . . Indeed, [i]n order for the court to have juris-
diction over a motion to correct an illegal sentence
after the sentence has been executed, the sentencing
proceeding [itself] . . . must be the subject of the
attack.’’ (Internal quotation marks omitted.) State v.
Francis, 322 Conn. 247, 259, 140 A.3d 927 (2016).
‘‘In Connecticut, [Practice Book] § 43-22 sets forth
the procedural mechanism for correcting invalid sen-
tences. . . . Because the judiciary cannot confer juris-
diction on itself through its own rule-making power,
§ 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.
‘‘Although [our Supreme Court] had not defined the
parameters of an invalid sentence prior to the adoption
of § 43-22, the rules of practice are consistent with the
broader common-law meaning of illegality, permitting
correction of both illegal sentences and sentences
imposed in an illegal manner. . . . An illegal sentence
is essentially one which either exceeds the relevant
statutory maximum limits, violates a defendant’s right
against double jeopardy, is ambiguous, or is internally
contradictory. . . . Sentences imposed in an illegal
manner have been defined as being within the relevant
statutory limits but . . . imposed in a way which vio-
lates [a] defendant’s right . . . to be addressed person-
ally at sentencing and to speak in mitigation of
punishment . . . or his right to be sentenced by a judge
relying on accurate information or considerations solely
in the record, or his right that the government keep its
plea agreement promises . . . . This latter category
reflects the fundamental proposition that [t]he defen-
dant has a legitimate interest in the character of the
procedure which leads to the imposition of sentence
even if he may have no right to object to a particular
result of the sentencing process.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
Id., 837–39.
‘‘[T]he claims that may be raised in a motion to cor-
rect an illegal sentence are strictly limited to improprie-
ties that may have occurred at the sentencing stage of
the proceeding. . . . Thus . . . for the trial court to
have jurisdiction to consider the defendant’s claim of an
illegal sentence, the claim must fall into one of [several
specific] categories of claims that, under the common
law, the court has jurisdiction to review.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Francis, supra, 322 Conn. 264. A determination of
whether a trial court has subject matter jurisdiction to
consider a motion to correct an illegal sentence pre-
sents a question of law, and, therefore, our review is
plenary. State v. Evans, 329 Conn. 770, 776–77, 189 A.3d
1184 (2018).
I
The defendant first claims that the court improperly
dismissed for lack of subject matter jurisdiction his
claim that his sentence was imposed in an illegal man-
ner because the sentencing court failed to canvass him
or his counsel ‘‘as to their review and the accuracy of
the [2001 PSI] report . . . .’’ The state argues that the
court properly determined that State v. Parker, supra,
295 Conn. 825, is dispositive of this claim.8 We agree
with the state.
In Parker, the defendant entered a plea under the
Alford doctrine to the charge of murder. Id., 828. After
the defendant unsuccessfully pursued an appeal chal-
lenging his conviction and plea, he filed a motion to
correct an illegal sentence claiming that his sentence
was imposed in an illegal manner. Id., 830–31. In his
motion, the defendant asserted that his right not to be
sentenced on the basis of inaccurate information was
violated because ‘‘(1) he had been deprived of an oppor-
tunity to review his presentence report and to address
inaccuracies therein; and (2) [defense counsel] had
failed to review the presentence report with him or
to bring any inaccuracies in the report to the court’s
attention.’’ Id., 840. After a hearing, the trial court dis-
missed the defendant’s motion to correct an illegal sen-
tence for lack of subject matter jurisdiction. Id., 833.
On appeal, our Supreme Court concluded that ‘‘the
defendant’s claims [did] not fall within the limited cir-
cumstances under which the trial court has jurisdiction
to correct a sentence imposed in an illegal manner
. . . .’’ Id., 828. It first outlined that our statutes and
rules of practice, particularly General Statutes § 54-91b
and Practice Book §§ 43-7 and 43-10 (1), protect a defen-
dant’s due process right not to be sentenced on the
basis of untrue or unreliable information. Id., 843–46.
It held, nonetheless, that these authorities did not pro-
vide a basis for jurisdiction because the defendant had
not claimed that the sentencing court’s actions violated
any of the mandates therein contained. Id., 847–48.
Rather, it rejected the premise of ‘‘[t]he defendant’s
claimed constitutional basis for jurisdiction . . . that
the rules of practice and the statutes afford him a per-
sonal right to review, and an opportunity to seek correc-
tions to, the presentence report’’ as unsupported by our
statutes and rules of practice. (Footnote omitted.) Id.,
849–50. Specifically, it held that ‘‘[a]lthough it may be
the better practice, neither our rules of practice nor
our statutes require a sentencing court to make an
affirmative inquiry about the accuracy of the informa-
tion in the presentence report.’’ (Emphasis added.)
Id., 849.
In the present case, the defendant’s first claim is that
his sentence was imposed in an illegal manner because
the sentencing court, allegedly in violation of Practice
Book § 43-10,9 failed to canvass the defendant or his
counsel as to their review and the accuracy of the 2001
PSI report. Our Supreme Court, in Parker, explicitly
held that our statutes and rules of practice, including
Practice Book § 43-10, do not require a court to make
an affirmative inquiry as to the accuracy of facts con-
tained in a presentence investigation report, and that,
consequently, such a claim does not invoke the jurisdic-
tion of the trial court. Id. Therefore, because our
Supreme Court’s decision in Parker is definitively bind-
ing on this court; see footnote 8 of this opinion; we
conclude that the trial court properly concluded that
it lacked subject matter jurisdiction to consider this
claim.10
II
The defendant also claims that the court improperly
denied on the merits his claim that his sentence was
imposed in an illegal manner because the sentencing
court relied on inaccurate facts regarding his 1991 con-
victions that were contained in the 2001 PSI report. In
particular, the defendant argues on appeal that the court
improperly ruled on the merits of his amended motion
to correct without first conducting an ‘‘adequate hear-
ing,’’ and that his motion to correct should have been
heard and decided by the 2001 sentencing court. The
state argues that the court lacked subject matter juris-
diction to consider this claim because ‘‘the defendant’s
attempt to use a motion to correct to challenge the
legal validity of . . . his [1991] convictions did not con-
stitute a challenge to the sentencing proceeding itself,
but instead, constituted a challenge to a long final prior
conviction.’’11 The defendant argues that the trial court
had subject matter jurisdiction because his claim did
‘‘not attempt to attack the underlying conviction. By its
very nature it is attacking the manner in which the
sentence was imposed because of the court’s actions,
or lack thereof, during the sentencing proceeding.’’ We
agree with the state.
Our Supreme Court repeatedly has held that ‘‘a chal-
lenge to the legality of a sentence focuses not on what
transpired during the trial or on the underlying convic-
tion. 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 trial leading to the conviction, must be the subject
of the attack.’’ (Emphasis in original; internal quotation
marks omitted.) State v. Evans, supra, 329 Conn. 779;
see State v. Lawrence, 281 Conn. 147, 158, 913 A.2d 428
(2007) (same); see also State v. Francis, supra, 322
Conn. 264 (‘‘the claims that may be raised in a motion
to correct an illegal sentence are strictly limited to
improprieties that may have occurred at the sentencing
stage of the proceeding’’). ‘‘In determining whether it
is plausible that the defendant’s motion challenged the
sentence, rather than the underlying trial or conviction,
we consider the nature of the specific legal claim raised
therein.’’ State v. Evans, supra, 784–85; see State v.
Delgado, 323 Conn. 801, 810, 816, 151 A.3d 345 (2016)
(if defendant fails to allege claim that, if proven, would
require resentencing, sentencing court has no jurisdic-
tion to consider motion to correct).
In the present case, the defendant alleged in his
motion to correct an illegal sentence that the facts ‘‘ref-
erenced in [the 2001 PSI] report and in the supplemental
materials concerning his 1991 conviction[s] . . .
[were] inaccurate and prejudicial’’ because the 1991
convictions were unconstitutional in three ways: (1)
‘‘they were based on contradictory assertions of the
complaining witness as to whether a sexual assault had
ever taken place,’’ (2) ‘‘counsel in the 1991 case failed
to investigate possible connections between organized
crime figures and the complaining witness that may
have tainted the complainant’s credibility,’’ and (3)
‘‘counsel was ineffective for advising [the defendant]
that he should plead guilty because his case would be
a ‘tough case to win.’ ’’ The defendant claims that, as
a result, his sentence was imposed in an illegal manner
because the sentencing court ‘‘specifically rel[ied] upon
unconstitutional and inaccurate information contained
in the [2001 PSI report] . . . .’’
In determining whether it is plausible that the defen-
dant’s second claim challenges the sentencing proceed-
ing, as opposed to an underlying conviction, we first
examine our decisions that have confronted the same
issue. For example, in the relevant instances in which
this court has concluded that the trial court had subject
matter jurisdiction over a motion to correct an illegal
sentence, the defendant claimed either that the sentenc-
ing proceeding violated our rules of practice, or that the
presentence investigation report contained purported
inaccuracies that did not stem from the underlying con-
viction. See State v. Fairchild, 155 Conn. App. 196,
202–203, 208–209, 108 A.3d 1162 (trial court had subject
matter jurisdiction over defendant’s motion to correct
illegal sentence that claimed sentencing court, in viola-
tion of Practice Book § 43-10, ‘‘failed to give him ade-
quate notice of the date of the sentencing hearing, and
thereby denied him a meaningful opportunity for allocu-
tion and violated his due process right to contest the
evidence upon which the court relied for sentencing
purposes’’), cert. denied, 316 Conn. 902, 111 A.3d 470
(2015); State v. Bozelko, 154 Conn. App. 750, 752, 757–58,
108 A.3d 262 (2015) (trial court had subject matter juris-
diction over defendant’s motion to correct illegal sen-
tence that claimed that ‘‘the [presentence investigation
report] utilized by the sentencing court had been pre-
pared without her input, contrary to the relevant rules
of practice, depriving her of the benefit of mitigating
evidence she would otherwise have presented as a basis
for imposing a lesser sentence . . . [and] that the
incomplete [presentence investigation report] that was
prepared by [the probation officer] and furnished to
the court contained material and harmful misrepresen-
tations about her, particularly concerning her purported
refusal to participate in the presentence investigation
interview’’); State v. Charles F., 133 Conn. App. 698,
701, 703–704, 36 A.3d 731 (trial court had subject matter
jurisdiction over defendant’s motion to correct illegal
sentence that claimed that ‘‘he did not receive the [pre-
sentence investigation report] forty-eight hours before
sentencing as required by Practice Book § 43-7 and that,
as a result of this untimely receipt, he was unable to
correct several inaccuracies, including (1) the state-
ment in the report that the defendant did not want to
include an ‘offender’s version,’ (2) the statement in the
report that the defendant’s son was ‘one of the victims
in [the defendant’s] pending case’ and (3) the prosecu-
tion’s statement that the defendant had committed
thirty felonies’’ [footnote omitted]), cert. denied, 304
Conn. 929, 42 A.3d 390 (2012); State v. Osuch, 124 Conn.
App. 572, 574, 576–77, 5 A.3d 976 (trial court had subject
matter jurisdiction over motion to correct that claimed
that sentencing court relied on presentence investiga-
tion report that contained incorrect information, includ-
ing, that defendant received drug treatment and
admitted to police five burglaries instead of one), cert.
denied, 299 Conn. 918, 10 A.3d 1052 (2010).
Consistent with the foregoing, in the relevant
instances in which this court has concluded that the
trial court lacked subject matter jurisdiction over a
motion to correct an illegal sentence, the defendant
challenged either the facts or the viability of the underly-
ing conviction. See State v. Meikle, 146 Conn. App. 660,
662, 663, 79 A.3d 129 (2013) (trial court lacked subject
matter jurisdiction over motion to correct illegal sen-
tence that claimed that ‘‘the shotgun introduced at [his]
trial was not in fact the murder weapon and . . . the
state fraudulently concealed this fact from his trial
counsel’’ because defendant ‘‘improperly [sought] to
address a trial-related claim through a motion to correct
an illegal sentence’’); State v. Mollo, 63 Conn. App. 487,
489, 491, 776 A.2d 1176 (trial court lacked subject matter
jurisdiction over motion to correct illegal sentence in
that ‘‘a latent defect existed as to the factual basis for
[the defendant’s] guilty plea’’ because ‘‘[t]he purpose
of Practice Book § 43-22 is not to attack the validity of
a conviction by setting it aside but, rather to correct
an illegal sentence or disposition, or one imposed or
made in an illegal manner’’), cert. denied, 257 Conn.
904, 777 A.2d 194 (2001).
Applying the foregoing principles to the present case,
we conclude that the trial court lacked subject matter
jurisdiction to consider the merits of the defendant’s
second claim because it is not plausible that he sought
to challenge the manner in which his sentence was
imposed, as opposed to an underlying conviction. The
defendant’s second claim, unlike that in State v. Fair-
child, supra,155 Conn. App. 202–203, 208–209, does not
challenge the sentencing proceeding for his 2001 con-
victions as violating our rules of practice.12 Rather, the
defendant claims that his sentence for the 2001 convic-
tions was imposed illegally because the sentencing
court relied on inaccurate facts contained in the 2001
PSI report regarding his 1991 convictions, which he
alleged were unconstitutional because they were based
on contradictory assertions of the complaining witness
and because defense counsel rendered ineffective assis-
tance. Thus, in essence, the defendant’s challenge to
his 2001 sentence is predicated on his claim that his
1991 convictions were unconstitutional. The trial court
lacked jurisdiction to consider this claim on the merits
because it blatantly challenges his 1991 convictions,
not the sentencing proceeding for his 2001 convictions.
The basis for the defendant’s claim that his 1991
convictions were unconstitutional—contradictory
assertions of the complaining witness and defense
counsel rendering ineffective assistance—further dem-
onstrates that his challenge is to an underlying convic-
tion. A challenge to whether his 1991 convictions were
based on contradictory statements by the complaining
witness does not provide a basis for jurisdiction
because, as in State v. Meikle, supra, 146 Conn. App.
662–63, and State v. Mollo, supra, 63 Conn. App. 488–90,
it seeks to dispute the factual basis of his prior convic-
tions. Indeed, the defendant’s claim in the present case
transcends the claims asserted in Meikle and Mollo in
that it calls into question the factual basis for his 1991
convictions to which he pleaded guilty under the Alford
doctrine, as opposed to the 2001 convictions for which
he was being sentenced. Unlike the claims of factual
inaccuracies stemming from the presentence investiga-
tion reports at issue in State v. Bozelko, supra, 154 Conn.
App. 750, 752, 757–58, State v. Charles F., supra, 133
Conn. App. 700–701, and State v. Osuch, supra, 124
Conn. App. 576–77, the defendant’s claim in the present
case directly challenges his 1991 convictions.
Likewise, his ineffective assistance of counsel claim
also is directed at the viability of his 1991 convictions.
In Parker, our Supreme Court concluded that the trial
court lacked jurisdiction over the claim that defense
counsel rendered ineffective assistance at the sentenc-
ing hearing because ‘‘[t]here is no specific rule authoriz-
ing a defendant to bring his ineffective assistance of
counsel claim by way of a motion to correct . . . [and]
the conduct by [defense counsel] of which the defen-
dant complains cannot be construed as a violation by
the court of the defendant’s rights at sentencing.’’
(Emphasis in original.) State v. Parker, supra, 295 Conn.
852; see State v. Evans, supra, 329 Conn. 781 (‘‘the
motion to correct is not another bite at the apple in
place of challenges that are more properly brought on
direct appeal or in a petition for a writ of habeas cor-
pus’’).13 In addition, as compared to the claim in Parker,
the defendant’s ineffective assistance claim in the pre-
sent case is further attenuated from the sentencing pro-
ceeding because it is directed at the defense counsel
who represented him in connection with his Alford plea
leading to his 1991 convictions, not the defense counsel
who represented him at the sentencing hearing stem-
ming from his 2001 convictions.
We are unpersuaded by the defendant’s attempt to
repackage his attack on his 1991 convictions as a claim
that the 2001 sentencing court relied on inaccurate
information regarding those convictions. The defen-
dant, in his motion or otherwise, has not identified a
single fact that he alleges to be inaccurate.14 Instead, a
plain reading of the defendant’s amended motion to
correct makes clear that the defendant claimed that
the 1991 convictions were unconstitutional due to the
ineffective assistance of his then defense counsel in
failing to point out to the court contradictions in the
complaining witness’ assertions,15 failing to do an ade-
quate investigation, and advising the defendant to plead
guilty. Although the defendant’s 2001 sentencing pro-
ceeding may have been different had his 1991 convic-
tions been set aside, he may not use that theoretical
possibility as the basis to launch a wholesale attack,
through a motion to correct an illegal sentence filed
twenty-four years after he pleaded guilty and long after
his sentence for the 1991 convictions had been served,
on his then defense counsel’s performance. Our
Supreme Court could not have been more clear when
it held in State v. Parker, supra, 295 Conn. 852, that the
trial court lacked jurisdiction to consider the defen-
dant’s substantially similar claim. Therefore, we con-
clude that the court lacked subject matter jurisdiction
over the defendant’s second claim because it is not
plausible that he sought to challenge the manner in
which his sentence for his 2001 convictions was
imposed, as opposed to an underlying conviction.
The form of the judgment is improper, the judgment
is reversed only with respect to the denial of the defen-
dant’s motion to correct an illegal sentence as to the
claim that the sentencing court relied on inaccurate
facts, and the case is remanded with direction to render
judgment of dismissal; the judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
1
The defendant originally appealed to this court. The appeal subsequently
was transferred to our Supreme Court, which then transferred the appeal
back to this court pursuant to Practice Book § 65-4.
2
‘‘Under North Carolina v. Alford, [supra, 400 U.S. 25], a criminal defen-
dant 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.’’
(Internal quotation marks omitted.) State v. Pentland, 296 Conn. 305, 308
n.3, 994 A.2d 147 (2010).
3
The defendant fled the country after he testified but prior to the comple-
tion of trial, and, upon his return, he pleaded guilty in a separate proceeding
to two counts of failure to appear in the first degree, and one count of
failure to appear in the second degree.
4
On April 27, 2001, prior to the sentencing hearing, defense counsel filed
a ‘‘Motion for Order to Remove the State’s Synopsis of the Facts from the
Presentence Investigation.’’ (Internal quotation marks omitted.) At the outset
of the sentencing hearing, defense counsel argued in support of the motion
that the state’s synopsis detailing the facts underlying the 2001 convictions
should be stricken because it contained numerous inaccuracies, including
that the defendant never registered as a sex offender in connection with
his 1991 convictions. The court afforded defense counsel the opportunity
to go through all of the purported inaccuracies, but counsel declined to do
so. The court then denied the defendant’s motion and, in accordance with
defense counsel’s request, ordered that the motion, the transcript, and the
court’s order denying the motion be attached to the 2001 PSI report.
The state, during its remarks at the sentencing hearing, recited some of
the facts that were the basis for the 1991 convictions. Defense counsel
objected to those statements as being unnecessary and redundant because
the events leading to those convictions were set forth in the 2001 PSI report.
Defense counsel did not object on the ground that any of that information
was inaccurate, and neither defense counsel nor the defendant during their
sentencing remarks claimed that the information regarding the 1991 convic-
tions contained in the 2001 PSI report was inaccurate.
5
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.’’
6
On August 26, 2014, the defendant, as a self-represented party, filed a
motion to correct an illegal sentence that claimed that his sentence had
been imposed in an illegal manner because the sentencing court ‘‘relied on
false information and perjured statements—which influenced [its] sentenc-
ing decisions.’’ The defendant then filed the amended motion to correct an
illegal sentence after he had been appointed counsel.
7
The defendant argues on appeal that the trial court misinterpreted his
amended motion to correct as alleging two distinct claims. Rather, the
defendant asserts that his sole claim was that ‘‘his sentence was imposed
in an illegal manner due to the fact that the court failed to canvass either
him or his counsel as to the accuracy of the information contained within
the [2001 PSI report] (and supplemental materials provided by the state),
which in turn caused the court to rely on inaccurate information about his
prior conviction when imposing his sentence on the underlying conviction.’’
We disagree with the defendant’s interpretation and, thus, separately con-
sider his two claims, as they were raised and decided before the trial court.
See State v. Evans, 329 Conn. 770, 784–85, 189 A.3d 1184 (2018) (interpreting
motion to correct illegal sentence to determine ‘‘specific legal claim raised
therein’’); State v. Bozelko, 154 Conn. App. 750, 763 n.16, 108 A.3d 262 (2015)
(interpretation of claims raised in motion to correct illegal sentence is
question of law).
8
The defendant additionally argues on appeal to this court that if State
v. Parker, supra, 295 Conn. 825, is determined to be controlling, that decision
should be overruled. Notwithstanding the fact that this argument also was
contained in his brief that originally was submitted to our Supreme Court;
see footnote 1 of this opinion; we reject this argument because it is axiomatic
that we cannot overrule Supreme Court precedent. See Hadden v. Capitol
Region Education Council, 164 Conn. App. 41, 48–49, 137 A.3d 775 (2016)
(Appellate Court is bound by and cannot overrule decisions of our
Supreme Court).
9
The defendant expressly relied on the provision of Practice Book § 43-
10 (1) that provides in relevant part: ‘‘The judicial authority shall afford the
parties an opportunity to be heard and . . . to explain or controvert the
presentence investigation report . . . .’’
10
It is worth noting that the 2001 sentencing court invited defense counsel
to discuss any and all claimed inaccuracies in the 2001 PSI report in as
much detail as he wanted. See footnote 4 of this opinion. Counsel declined
to do so, even though he expressed his view that the synopsis attached to
the report contained so many inaccuracies that going through them could
take ‘‘all afternoon.’’ Thus, the suggestion that the defendant and defense
counsel were unaware of any alleged inaccuracies in the 2001 PSI report,
or that they were unable to bring those inaccuracies to the attention of the
court, is wholly inaccurate.
11
The state alternatively argues that we should decline to review this
claim because it is raised for the first time on appeal, and, therefore, was
not properly preserved. In light of our conclusion that the court lacked
subject matter jurisdiction to consider the defendant’s claim that the court
relied on inaccurate information regarding his 1991 convictions, we need
not reach the preservation issue.
12
The defendant’s first claim alleges that the sentencing court’s failure to
canvass him or his attorney as to their review and accuracy of the 2001 PSI
report violated Practice Book § 43-10. We concluded in part I of this opinion
that the court lacked subject matter jurisdiction over this claim pursuant
to State v. Parker, supra, 295 Conn. 844–47.
13
It appears that the defendant decided to attack his 1991 convictions
through his motion to correct an illegal sentence because he cannot seek
relief through a writ of habeas corpus. The defendant recognizes that he
‘‘was barred from seeking to overturn [the 1991 convictions] in the habeas
court because he was not in custody on that sentence, and so the habeas
court would be without jurisdiction to consider an ineffective assistance of
counsel claim as it relates to that prior conviction.’’ See Richardson v.
Commissioner of Correction, 298 Conn. 690, 698, 6 A.3d 52 (2010) (‘‘peti-
tioner [must] be in custody on the conviction under attack at the time the
habeas petition is filed’’ [emphasis omitted; internal quotation marks
omitted]).
14
Most recently, at oral argument before this court, defense counsel was
asked to identify any such inaccuracies and could not.
15
The precise language used in the amended motion is that ‘‘the 1991
convictions were unconstitutional because they were based on contradictory
assertions of the complaining witness as to whether a sexual assault had
ever taken place.’’ There is, of course, no rule, constitutional or otherwise,
that requires that convictions can be based only on uncontroverted, com-
pletely consistent evidence. The only conceivable basis for the defendant’s
claim, therefore, is that his then counsel’s performance was constitutionally
deficient for failing to bring the purported contradictions to the court’s
attention.