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STATE OF CONNECTICUT v. JEFFREY SMITH
(SC 20187)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Kahn, Ecker and Vertefeuille, Js.*
Argued May 1, 2020—officially released February 11, 2021**
Procedural History
Substitute information charging the defendant with
two counts of the crime of kidnapping in the first
degree, and with one count each of the crimes of capital
felony, murder, felony murder and robbery in the first
degree, brought to the Superior Court in the judicial
district of New London and tried to the jury before
Schimelman, J.; verdict and judgment of guilty of two
counts of kidnapping in the first degree, and of one
count each of felony murder, robbery in the first degree
and the lesser included offense of manslaughter in the
first degree; thereafter, the court, Strackbein, J., denied
the defendant’s motion to correct an illegal sentence,
and the defendant appealed to this court; subsequently,
the case was transferred to the Appellate Court, DiPen-
tima, C. J., and Lavine and Bishop, Js., which affirmed
the trial court’s denial of the motion to correct, and the
defendant, on the granting of certification, appealed to
this court. Reversed; judgment directed.
Adele V. Patterson, senior assistant public defender,
for the appellant (defendant).
Melissa Patterson, senior assistant state’s attorney,
with whom, on the brief, was Michael L. Regan, former
state’s attorney, for the appellee (state).
Opinion
VERTEFEUILLE, J. The dispositive issue in this
appeal is whether the trial court had subject matter
jurisdiction to entertain a motion to correct an illegal
sentence when the defendant, Jeffrey Smith, claimed
that the sentencing court improperly failed to follow
State v. Polanco, 308 Conn. 242, 255, 61 A.3d 1084 (2013),
in which this court exercised its supervisory power to
hold that the proper remedy for cumulative convictions
that violate the double jeopardy clause is to vacate one
of the convictions. In 2005, the defendant was con-
victed, after a jury trial, of felony murder and man-
slaughter in the first degree, among other crimes. The
trial court, Schimelman, J., merged the conviction for
manslaughter with the felony murder conviction and
sentenced the defendant to sixty years in prison on the
felony murder charge. In 2015, the defendant filed a
motion to correct an illegal sentence in which he con-
tended that the sentence was illegal under the Polanco
supervisory rule because the court merged the convic-
tions instead of vacating the conviction on the man-
slaughter charge. The trial court, Strackbein, J., con-
cluded that, because Polanco was decided pursuant
to this court’s supervisory authority, it did not apply
retroactively. Accordingly, the trial court denied the
defendant’s motion. The defendant appealed, and the
Appellate Court affirmed the judgment of the trial court.
See State v. Smith, 180 Conn. App. 371, 384, 184 A.3d
831 (2018). We then granted the defendant’s petition
for certification to appeal to this court, limited to the
following issue: ‘‘Does this court’s holding in State v.
Polanco, [supra, 255], readopting vacatur as a remedy
for a cumulative conviction that violates double jeop-
ardy protections, apply retroactively?’’ State v. Smith,
330 Conn. 908, 193 A.3d 559 (2018).1 In its brief to this
court, the state claims for the first time that the trial
court lacked subject matter jurisdiction to entertain
the defendant’s motion to correct an illegal sentence
because the motion sought only to modify the defen-
dant’s conviction, not his sentence. We agree with the
state’s jurisdictional claim, and, accordingly, we con-
clude that the form of the Appellate Court’s judgment
affirming the judgment of the trial court was improper.
We reverse the judgment of the Appellate Court and
remand the case to that court with direction to remand
the case to the trial court with direction to dismiss the
defendant’s motion to correct an illegal sentence.
The record reveals the following facts, which were
found by the trial court, and procedural history. In 2001,
the defendant was charged with capital felony in viola-
tion of General Statutes (Rev. to 1997) § 53a-54b (5),
murder in violation of General Statutes (Rev. to 1997)
§ 53a-54a, felony murder in violation of General Statutes
(Rev. to 1997) § 53a-54c, two counts of kidnapping in
the first degree in violation of General Statutes § 53a-
92 (a) (2) (A) and (B), and robbery in the first degree
in violation of General Statutes § 53a-134 (a) (1), in
connection with the August, 1998 death of James Con-
nor. The jury returned a verdict of guilty on the felony
murder charge, the lesser included offense of man-
slaughter in the first degree in violation of General
Statutes § 53a-55, both kidnapping counts and the rob-
bery count. The defendant was found not guilty of the
charges of capital felony and murder.
Thereafter, the trial court, Schimelman, J., merged
the manslaughter conviction with the felony murder
conviction and sentenced the defendant to sixty years
in prison on the felony murder conviction. The court
also sentenced the defendant to twenty-five years on
each kidnapping count and twenty years on the robbery
count, all concurrent with each other but consecutive to
the felony murder sentence. The total effective sentence
was eighty-five years imprisonment.
On August 6, 2015, the defendant, representing him-
self,2 filed a motion to correct an illegal sentence pursu-
ant to Practice Book § 43-22. Thereafter, he filed an
amended motion. The defendant claimed, among other
things, that the sentencing court had incorrectly merged
the convictions of manslaughter and felony murder
because, under State v. Polanco, supra, 308 Conn. 242,
and State v. Miranda, 317 Conn. 741, 120 A.3d 490
(2015), the court should have vacated the manslaughter
conviction. Although the precise nature of the defen-
dant’s claim was somewhat unclear, he also contended
that this sentencing procedure violated his double jeop-
ardy rights. The state contended that, because the hold-
ing of this court in State v. Polanco, supra, 255, that
vacatur is the proper remedy for a cumulative convic-
tion that violates double jeopardy protections was
based on the court’s supervisory authority, the holding
was not retroactive. The trial court, Strackbein, J.,
agreed with the state and, after rejecting the defendant’s
other claims, denied his motion to correct.3 The defen-
dant, still representing himself, appealed, and the Appel-
late Court affirmed the judgment of the trial court. State
v. Smith, supra, 180 Conn. App. 373, 384.
This certified appeal followed. The defendant, now
represented by counsel, claims that, although the hold-
ing of State v. Polanco, supra, 308 Conn. 255, was
decided pursuant to this court’s exercise of its supervi-
sory authority, public policy militates in favor of
applying the Polanco supervisory rule retroactively to
cases that were final before the case was decided. The
state contends that, to the contrary, there is no reason
to create an exception for this court’s holding in Polanco
to the general rule that a supervisory rule does not
apply to cases in which the judgment was final before
the rule was adopted. The state also contends that the
trial court lacked jurisdiction over the defendant’s
motion to correct because the defendant sought only
to modify his conviction, not his sentence. Although
the state raises this claim for the first time in its brief
to this court, it is well established that a jurisdictional
claim may be raised at any time. See, e.g., Waterbury
v. Washington, 260 Conn. 506, 527, 800 A.2d 1102 (2002).
We agree with the state’s unpreserved jurisdictional
claim and, therefore, conclude that the trial court
should have dismissed the defendant’s motion to cor-
rect an illegal sentence.
We begin with a review of the legal principles govern-
ing motions to correct an illegal sentence. Practice
Book § 43-22 provides in relevant part that ‘‘[t]he judi-
cial authority may at any time correct an illegal sentence
or other illegal disposition, or it may correct a sentence
imposed in an illegal manner . . . .’’ ‘‘It is well estab-
lished that under the common law a trial court has
the discretionary power to modify or vacate a criminal
judgment [only] before the sentence has been executed.
. . . This is so because the court loses jurisdiction over
the case when the defendant is committed to the cus-
tody of the [C]ommissioner of [C]orrection and begins
serving the sentence. . . . Without a legislative or con-
stitutional grant of continuing jurisdiction . . . the
trial court lacks jurisdiction to modify its judgment.’’
(Internal quotation marks omitted.) State v. Evans, 329
Conn. 770, 778, 189 A.3d 1184 (2018), cert. denied,
U.S. , 139 S. Ct. 1304, 203 L. Ed. 2d 425 (2019).
‘‘Because the judiciary cannot confer jurisdiction on
itself through its own rule-making power, [Practice
Book] § 43-22 is limited by the common-law rule that
a trial court may not modify a sentence if the sentence
was valid and its execution has begun. . . . Therefore,
for the trial court to have jurisdiction to consider the
defendant’s claim of an illegal sentence, the claim must
fall into one of the categories of claims that, under
the common law, the court has jurisdiction to review.’’
(Internal quotation marks omitted.) Id., 778–79.
‘‘[A]n illegal sentence is essentially one [that] . . .
exceeds the relevant statutory maximum limits, violates
a defendant’s right against double jeopardy, is ambigu-
ous, or is internally contradictory. . . . In accordance
with this summary, 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 consid-
ered violations of the prohibition against double jeop-
ardy. . . . The third category has involved claims per-
taining to the computation 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.’’ (Inter-
nal quotation marks omitted.) Id., 779.
This court has recognized that ‘‘a claim is cognizable
in a motion to correct an illegal sentence if it is a challenge
specifically directed to the punishment imposed, even
if relief for that illegal punishment requires the court
to in some way modify the underlying convictions, such
as for double jeopardy challenges.’’ Id., 781. In support
of this proposition, we cited State v. Cator, 256 Conn.
785, 804–805, 781 A.2d 285 (2001). In Cator, ‘‘[t]he trial
court found the defendant guilty of murder and felony
murder and initially sentenced him to a total effective
sentence of fifty-five years, suspended after fifty years,
with a five year period of probation at the conclusion
of that sentence. Later, pursuant to the state’s motion
to correct the sentence, the trial court merged the defen-
dant’s [cumulative] convictions for murder . . . and
felony murder and imposed a total effective sentence
of fifty years without a period of probation.’’ Id., 803.
This court rejected the defendant’s claim that the trial
court lacked jurisdiction to entertain the state’s motion
to correct an illegal sentence ‘‘because otherwise the
constitutional prohibition against double jeopardy would
have been violated.’’ Id., 804–805.
Similarly, in State v. McGee, 175 Conn. App. 566, 570–
71, 573–74 n.6, 168 A.3d 495, cert. denied, 327 Conn.
970, 173 A.3d 953 (2017), the Appellate Court concluded
that the trial court had jurisdiction to entertain a motion
to correct an illegal sentence when the defendant
alleged that the sentencing court had imposed concur-
rent sentences for convictions that were cumulative,
in violation of double jeopardy principles. The court
observed that ‘‘the defendant [had] not challenged, in
any way, the validity of his convictions . . . or of the
guilty verdicts upon which they rest. He [had] not
claimed any infirmity with the state’s information; he
[had] not advanced any claims of insufficiency with
respect to the state’s evidence against him, or of eviden-
tiary error, instructional error, prosecutorial impropri-
ety, or any other type of error upon which the legality
of trial proceedings or of the verdicts and judgments
they result in are routinely challenged. Rather, he
claimed that, at sentencing, the court should have
vacated one of his two [cumulative] convictions and
sentenced him only on one of those convictions.’’ Id.,
574 n.6
We note that Judge Bishop authored a dissenting
opinion in McGee in which he argued that allowing an
attack on a conviction ‘‘through the guise of a Practice
Book § 43-22 motion, nominally assailing a sentence
. . . vitiate[s] the limited purpose of § 43-22, and unrea-
sonably expand[s] the court’s postconviction jurisdic-
tion beyond its common-law bounds.’’ Id., 595 (Bishop,
J., dissenting). Judge Bishop observed that there is con-
flicting case law on the question of whether a claimed
double jeopardy violation involving cumulative convic-
tions can provide a proper basis for a motion to correct
an illegal sentence. Id., 588–94 (Bishop, J., dissenting).4
In State v. Evans, supra, 329 Conn. 781 n.13, we
acknowledged Judge Bishop’s concerns regarding the
confusion in our case law on the question of the trial
court’s jurisdiction to entertain a motion to correct an
illegal sentence when the motion only nominally attacks
the sentence. We further acknowledged that this confu-
sion ‘‘is particularly acute with respect to the second
category of illegal sentences, namely, double jeopardy
violations for multiple punishments, which by definition
challenge convictions rather than the sentences for
those convictions.’’ Id. We concluded, however, that
the trial courts may rely on ‘‘the presumption in favor
of jurisdiction in cases in which the defendant has made
a colorable—however doubtful—claim of illegality
affecting the sentence, rather than the underlying con-
viction.’’ (Emphasis in original.) Id. We also cited the
Appellate Court’s majority opinion in McGee with
approval in Evans. See id., 781–82. It is therefore clear
that, under Evans, when cumulative convictions affect
a sentence in any manner, the trial court has jurisdiction
to entertain a motion to correct an illegal sentence.
In the present case, the state relies on a number of
federal cases holding that a claim that a sentence vio-
lated the United States Supreme Court’s holding in Rut-
ledge v. United States, 517 U.S. 292, 301–303, 306–307,
116 S. Ct 1241, 134 L. Ed. 2d 419 (1996), that the imposi-
tion of concurrent sentences for cumulative convictions
violates double jeopardy principles because the exis-
tence of the cumulative conviction itself may give rise
to collateral consequences, cannot be raised by way of
a motion to correct an illegal sentence under federal law
because such a claim attacks the underlying conviction.
See United States v. Little, 392 F.3d 671, 678–79 (4th
Cir. 2004); United States v. Canino, 212 F.3d 383, 384
(7th Cir. 2000). These cases take the approach advo-
cated by Judge Bishop in his dissenting opinion in
McGee but are inconsistent with this court’s holding in
Evans that the trial courts may presume jurisdiction
over a motion to correct an illegal sentence when the
challenged action has affected the sentence in any man-
ner, even if the remedy will require modifying the judg-
ment of conviction. We need not consider here whether
Evans and McGee were incorrectly decided under state
law, however, because, even if, contrary to the state’s
suggestion, they were correctly decided, the defendant
has not claimed that his sentence was affected in any
manner by the alleged cumulative convictions. No sen-
tence was imposed on the defendant’s merged man-
slaughter conviction, and it is undisputed that the only
remedy sought by the defendant, namely, vacatur of
that conviction, will have no effect on the length, com-
putation or structure of his sentence. The defendant
has not cited, and our research has not revealed, any
case in which this court or the Appellate Court has held
that trial courts have jurisdiction to correct an illegal
sentence under Practice Book § 43-22 when the alleged
double jeopardy violation had no impact whatsoever
on the sentence imposed.5 We conclude, therefore, that
the trial court lacked jurisdiction to entertain the defen-
dant’s motion to correct an illegal sentence.
The defendant contends that the state’s position that
he must raise his Polanco claim in a habeas proceeding
is inconsistent with this court’s holding in Cobham v.
Commissioner of Correction, 258 Conn. 30, 779 A.2d
80 (2001), that, ‘‘before seeking to correct an illegal
sentence in the habeas court, a defendant either must
raise the issue on direct appeal or file a motion pursuant
to [Practice Book] § 43-22 with the trial court.’’ Id., 38.
We disagree. Cobham sheds no light whatsoever on
the scope of the trial courts’ jurisdiction to entertain a
motion to correct an illegal sentence, which is the issue
before us. Having concluded that the trial court lacked
jurisdiction over the defendant’s § 43-22 motion because
there was no illegal sentence for the court to correct, we
conclude that Cobham simply does not apply. We note,
however, that the cause and prejudice standard that
we applied to the petitioner’s claim in Cobham; see id.,
39–40 (petitioner who failed to seek to correct illegal
sentence pursuant to § 43-22 before filing petition for
writ of habeas corpus was required to demonstrate good
cause for his failure to do so and actual prejudice from
claimed impropriety); is the same standard that applies
to habeas claims challenging a conviction on grounds
that the petitioner did not raise at trial or on direct
appeal. See id., 40. To the extent that the defendant
contends that he should not have to satisfy this standard
before he can seek a modification of his convictions
pursuant to the Polanco supervisory rule in a habeas
proceeding, we reject any such claim as being com-
pletely unsupported.6
As we have indicated, the Appellate Court affirmed
the judgment of the trial court denying the defendant’s
motion to correct an illegal sentence on the merits.
Accordingly, we reverse the judgment of the Appellate
Court, as that court should have concluded that the
form of the trial court’s judgment was improper and
remanded the case to the trial court with direction to
dismiss the motion.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
remand the case to the trial court with direction to
dismiss the defendant’s motion to correct an illegal
sentence.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** February 11, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
After oral argument before this court, we ordered the parties to submit
supplemental briefs on the following question: ‘‘Is this court’s holding pursu-
ant to its supervisory authority in State v. Polanco, [supra, 308 Conn. 255],
that vacatur is the proper remedy for a cumulative conviction that violates
double jeopardy protections, as that holding was expanded and clarified by
this court’s decision in State v. Miranda, 317 Conn. 741, 120 A.3d 490 (2015),
constitutionally mandated under the double jeopardy clause of the United
States constitution or is merger of the cumulative convictions a constitution-
ally permissible remedy?’’ Because we conclude that the trial court lacked
jurisdiction over the defendant’s motion to correct an illegal sentence, we
need not address this question.
2
The Office of the Public Defender filed a report determining that the
petitioner’s claims were without merit and requested permission to withdraw
from representing the defendant in connection with his motion to correct an
illegal sentence. The court granted the request, and, thereafter, the defendant
represented himself. See State v. Casiano, 282 Conn. 614, 627–28, 922 A.2d
1065 (2007); see also State v. Francis, 322 Conn. 247, 267–68, 140 A.3d
927 (2016).
3
All subsequent references to the trial court in this opinion are to
Judge Strackbein.
4
Specifically, Judge Bishop compared State v. Wright, 107 Conn. App.
152, 156–57, 944 A.2d 991 (trial court did not have jurisdiction to entertain
motion to correct illegal sentence alleging that defendant’s conviction as
accessory to murder after being ‘‘ ‘acquitted’ ’’ as principal to murder violated
double jeopardy clause because ‘‘the defendant’s claim, by its very nature,
presuppose[d] an invalid conviction,’’ not any illegality in sentence), cert.
denied, 289 Conn. 933, 958 A.2d 1247 (2008), with State v. Cator, supra, 256
Conn. 803–804 (trial court had jurisdiction to entertain defendant’s motion
to correct illegal sentence claiming that his convictions and sentences for
both murder and felony murder violated double jeopardy clause), and State
v. Santiago, 145 Conn. App. 374, 379–80, 74 A.3d 571 (trial court had jurisdic-
tion to entertain defendant’s motion to correct illegal sentence alleging that
convictions of both assault in first degree and risk of injury to child, and
imposition of consecutive sentences for those convictions, violated double
jeopardy clause), cert. denied, 310 Conn. 942, 79 A.3d 893 (2013). See State
v. McGee, supra, 175 Conn. App. 588–94 (Bishop, J., dissenting).
The majority in McGee concluded that Wright was distinguishable because
the defendant in that case ‘‘claimed that the sentence imposed [on] him as
an accessory to murder was illegal because he was never charged as an
accessory. That claim, [although] styled [as] a double jeopardy claim, was
actually based [on] the defendant’s contention that he could not be found
guilty of a crime with which he had not properly been charged.’’ Id., 573
n.6; see also State v. Wright, supra, 107 Conn. App. 157 (concluding that
defendant had no colorable double jeopardy claim). Thus, Wright ‘‘involved
[a challenge] to the proceedings that underlay [the] guilty [verdict],’’ not a
challenge to the legality of the sentence. State v. McGee, supra, 175 Conn.
App. 574 n.6.
5
We note that, at oral argument before this court, the state effectively
abandoned its jurisdictional claim when it conceded that, if this court were
to conclude that the trial court’s failure to apply Polanco’s supervisory rule
to the defendant’s convictions constituted a double jeopardy violation, the
trial court would have jurisdiction to entertain the defendant’s motion to
correct an illegal sentence. We have concluded, however, that the state is
not correct on this point, and it is well settled that ‘‘[t]he parties cannot
confer subject matter jurisdiction on the court, either by waiver or by
consent.’’ (Internal quotation marks omitted.) Webster Bank v. Zak, 259
Conn. 766, 774, 792 A.2d 66 (2002).
6
We, of course, express no opinion on the question of whether the defen-
dant could meet this standard or prevail on his claim that the trial court
improperly had failed to apply the Polanco supervisory rule retroactively
in a habeas proceeding.