***********************************************
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. ROBERT KENNIBREW
(AC 40970)
Alvord, Cradle and Palmer, Js.
Syllabus
Convicted of the crimes of murder, felony murder and robbery in the first
degree in connection with the death of the victim, the defendant appealed
to this court from the judgment of the trial court denying his motion
to correct an illegal sentence. The sentencing court had imposed concur-
rent terms of forty-five years of imprisonment each on the murder and
felony murder convictions but did not merge the convictions or vacate
the felony murder conviction. In his motion to correct, the defendant
claimed that the convictions of murder and felony murder violated the
constitutional prohibition against double jeopardy and that the court
should vacate the felony murder conviction under a retroactive applica-
tion of State v. Polanco (308 Conn. 242), in which the Supreme Court
held that, when a defendant has been convicted of a greater and a lesser
included offense in violation of the prohibition of double jeopardy, the
proper remedy is for the trial court to vacate the conviction of the lesser
offense. The trial court incorrectly stated that the sentencing court had
merged the defendant’s convictions of murder and felony murder and
determined that, because the rule adopted in Polanco was procedural,
it did not apply retroactively to the defendant’s convictions. Held that
the trial court improperly denied the defendant’s motion to correct an
illegal sentence, as his conviction of murder and felony murder, which
are a single crime for double jeopardy purposes, violated the prohibition
against double jeopardy; contrary to the trial court’s incorrect statement
that the defendant’s convictions of murder and felony murder had been
merged, the defendant remained subject to two concurrent sentences
for convictions that were cumulative, and, thus, at the time of the filing
of his motion to correct an illegal sentence, he remained burdened by
multiple punishments for the same offense; accordingly, the proper
remedy, consistent with Polanco’s directive, was vacatur, and the judg-
ment was reversed and the case was remanded with direction to vacate
the felony murder conviction and to resentence the defendant.
Submitted on briefs October 5—officially released November 2, 2021
Procedural History
Substitute information charging the defendant with
the crimes of murder, felony murder and robbery in
the first degree, brought to the Superior Court in the
judicial district of Middlesex, where the defendant was
presented to the court, Higgins, J., on pleas of guilty;
judgment of guilty; thereafter, the court, Gold, J., denied
the defendant’s motion to correct an illegal sentence,
and the defendant appealed to this court. Reversed;
further proceedings.
Bradford Buchta, senior assistant public defender,
filed a brief for the appellant (defendant).
Michael A. Gailor, state’s attorney, and Linda F.
Rubertone and Russell C. Zentner, senior assistant
state’s attorneys, filed a brief for the appellee (state).
Opinion
ALVORD, J. The defendant, Robert Kennibrew,
appeals from the judgment of the trial court denying
his motion to correct an illegal sentence. On appeal,
the defendant claims that his convictions and sentences
for murder and felony murder, arising from the killing
of a single victim, violate the double jeopardy clause
of the fifth amendment to the United States constitution
and the Connecticut constitution.1 The state, in its
appellate brief, concedes that the defendant ‘‘remains
burdened by multiple punishments for the same
offense’’ and agrees with the defendant that this court
should remand the case to the trial court with direction
to vacate the defendant’s felony murder conviction and
to resentence the defendant. We agree with the parties.
The record reflects the following procedural history
that is relevant to this appeal. On April 7, 1998, the
defendant pleaded guilty to murder in violation of Gen-
eral Statutes § 53a-54a,2 felony murder in violation of
General Statutes § 53a-54c, and robbery in the first
degree in violation of General Statutes § 53a-134 (a)
(2), in connection with the shooting death and robbery
of the victim. The trial court, Higgins, J., sentenced
the defendant to forty-five years of incarceration with
respect to the murder conviction, forty-five years of
incarceration with respect to the felony murder convic-
tion, and twenty years of incarceration with respect to
the robbery conviction. The court ordered the senten-
ces to run concurrently, resulting in a total effective
sentence of forty-five years of incarceration. The defen-
dant’s convictions of murder and felony murder were
not merged, nor was the conviction of felony murder
vacated, during the sentencing proceeding or at any
time thereafter.
The defendant filed a motion to correct his sentence
on May 27, 2016, and, following the appointment of
counsel, a revised motion, dated February 28, 2017. The
defendant argued that his convictions of murder and
felony murder with respect to the death of one victim
violated the constitutional prohibition against double
jeopardy and that cumulative convictions lead to
adverse collateral consequences. Relying on State v.
Miranda, 317 Conn. 741, 755–56, 120 A.3d 490 (2015),
the defendant argued that ‘‘[m]erger is no longer the
appropriate remedy’’ and requested that the court
vacate the felony murder conviction.
The court, Gold, J., heard argument on the motion
on July 18, 2017. The state and the defendant agreed
that ‘‘there should no longer be a sentence on the felony
murder [conviction].’’ The question presented to the
court was whether the convictions should be merged or
the felony murder conviction vacated. The state argued
that State v. Chicano, 216 Conn. 699, 725, 584 A.2d 425
(1990) (overruled in part by State v. Polanco, 308 Conn.
242, 61 A.3d 1084 (2013)), cert. denied, 501 U.S. 1254,
111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991), was the
controlling authority at the time of the defendant’s sen-
tencing and, therefore, the court should merge the
defendant’s convictions. The state asserted that State
v. Polanco, 308 Conn. 242, 245, 61 A.3d 1084 (2013), in
which our Supreme Court terminated the use of the
merger of convictions approach and readopted vacatur
as a remedy for cumulative convictions that violate
double jeopardy protections, was not given retroactive
effect. The defendant reiterated his argument that
merger is no longer the appropriate remedy and that
the conviction of felony murder should be vacated. In
support of that argument, the defendant maintained
that ‘‘cumulative convictions for the single victim lead
to an adverse collateral consequence’’ and directed the
court to our Supreme Court’s statement in State v.
Miranda, supra, 317 Conn. 753, that it was ‘‘not con-
vinced that the opaque remedy of merger can be imple-
mented in a manner that consistently protects defen-
dants from the potential collateral consequences
. . . .’’
The parties appeared before the court on August 21,
2017, on which date the court issued its oral ruling
denying the defendant’s motion to correct an illegal
sentence. The court incorrectly stated that, with respect
to the convictions of murder and felony murder, that
Judge Higgins had ‘‘merged those convictions, leaving
the convictions intact, but merging them pursuant to the
then existing law.’’ Neither the state nor the defendant’s
counsel informed the court that the convictions never
had been merged.
The court then stated that the defendant’s motion
‘‘asks the court to apply, retroactively, to [his] 1998
conviction the new law in Connecticut first discussed
in . . . Polanco that rejected the merger rule that had
long been in place and had, instead, adopted a rule
whereby defendants convicted of murder and felony
murder would have the felony murder conviction actu-
ally vacated, and it was that relief that [the defendant]
asked the court to award here.’’ The court first deter-
mined that the motion to correct was an appropriate
procedural vehicle for the defendant to seek his
requested relief. The court then identified the question
before it as ‘‘whether or not the rule adopted in Polanco
is appropriately applied retroactively to [the defen-
dant’s] 1998 conviction.’’ The court found the rule
adopted in Polanco to be procedural, determined that
it did not rise to the level of ‘‘a watershed procedural
rule,’’3 and concluded that it did not apply retroactively
to the defendant’s 1998 conviction. Accordingly, the
court denied the defendant’s motion. This appeal fol-
lowed.
On appeal, the defendant claims that the court erred
in denying his motion to correct an illegal sentence.
Specifically, he argues: ‘‘First, the trial court incorrectly
found that Judge Higgins merged the defendant’s con-
victions and sentences in 1998. That was incorrect, as
the defendant’s multiple convictions and sentences
have never been remedied. Second, the trial court incor-
rectly concluded that remedying the double jeopardy
violation by applying the rule of vacatur adopted by
our Supreme Court in State v. Polanco, [supra] 308
Conn. 242 . . . would amount to an impermissible ret-
roactive application of that decision. That was also
incorrect because, as stated earlier, the defendant’s
multiple convictions and sentences were not merged
in 1998. As such, upon the defendant’s motion, the trial
court was asked for the first time to remedy this clear
double jeopardy violation.’’ The state, abandoning the
argument it made before the trial court that merger is
the proper remedy in this case, responds that, ‘‘in light
of the existing double jeopardy violation arising from
the defendant’s cumulative homicide convictions, the
state agrees with the defendant that this court should
reverse the judgment of the trial court and remand
the matter for resentencing with direction to apply the
Polanco-Miranda vacatur procedure, which presently
is the applicable law in Connecticut.’’ We agree with
the parties.
We first set forth our standard of review and legal
principles governing motions to correct an illegal sen-
tence. ‘‘Practice Book § 43-22 provides in relevant part
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 . . . .
It is well established 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 juris-
diction over the case when the defendant is committed
to the custody of the [C]ommissioner of [C]orrection
and begins serving the sentence. . . . Without a legisla-
tive or constitutional grant of continuing jurisdiction
. . . the trial court lacks jurisdiction to modify its judg-
ment. . . .
‘‘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. . . .
‘‘[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. . . .
‘‘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.’’
(Citations omitted; internal quotation marks omitted.)
State v. Smith, 338 Conn. 54, 59–60, 256 A.3d 615 (2021).
‘‘[C]aims of double jeopardy involving multiple punish-
ments present a question of law to which we afford
plenary review.’’ (Internal quotation marks omitted.)
State v. Coleman, 204 Conn. App. 860, 868–69, 254 A.3d
938, cert. denied, 337 Conn. 907, 253 A.3d 45 (2021).
We next set forth our Supreme Court’s jurisprudence
with respect to the doctrines of merger and vacatur. In
State v. Chicano, supra, 216 Conn. 725, our Supreme
Court opined that when a defendant is convicted of and
sentenced on both a greater and lesser included offense
in violation of the double jeopardy clause, the proper
remedy is for the court to merge the convictions, ‘‘vacat-
ing the sentence for the lesser included offense, but
leaving the conviction for that offense intact and merg-
ing it with the conviction for the greater offense.’’ State
v. Johnson, 316 Conn. 34, 39, 111 A.3d 447 (2015), citing
State v. Chicano, supra, 725. In State v. Polanco, supra,
308 Conn. 245, our Supreme Court ‘‘revisited the appro-
priate remedy to which a defendant should be entitled
upon establishing that he had been convicted of and
sentenced on both a greater and lesser included offense
in violation of the double jeopardy clause.’’ State v.
Johnson, supra, 39. The defendant in Polanco argued
that Rutledge v. United States, 517 U.S. 292, 307, 116 S.
Ct. 1241, 134 L. Ed. 2d 419 (1996), required our Supreme
Court to ‘‘eschew the merger of convictions approach,
and, instead . . . to vacate the conviction for the lesser
offense.’’ State v. Polanco, supra, 248. Our Supreme
Court declined to resolve the issue on constitutional
grounds. Id. Instead, the court deemed it appropriate
to exercise its inherent supervisory authority over the
administration of justice to terminate the use of the
merger of convictions approach and hold that, ‘‘when
a defendant has been convicted of greater and lesser
included offenses, the trial court must vacate the con-
viction for the lesser offense rather than merging the
convictions . . . .’’ Id., 245; see also id., 255. Subse-
quently, in State v. Miranda, supra, 317 Conn. 751–53,
our Supreme Court extended the vacatur remedy pre-
scribed in Polanco to double jeopardy violations arising
out of cumulative convictions for the same offense.
On October 11, 2018, this court, sua sponte, ordered
the briefing in this matter stayed pending the release
of our Supreme Court’s decision in State v. Smith,
supra, 338 Conn. 54. In Smith, the defendant was con-
victed in 2005, following a jury trial, of felony murder
and manslaughter in the first degree, among other
crimes. Id., 55–56. The trial court merged the conviction
of manslaughter with the felony murder conviction and
sentenced the defendant to sixty years of imprisonment
on the felony murder conviction. Id., 56. In 2015, the
defendant, representing himself, ‘‘filed a motion to cor-
rect an illegal sentence in which he contended that the
sentence was illegal under the Polanco supervisory rule
because the court merged the convictions instead of
vacating the conviction on the manslaughter charge.’’
Id. The court denied the motion, accepting the state’s
argument that, because Polanco was decided pursuant
to our Supreme Court’s supervisory authority, it did not
apply retroactively. Id. This court affirmed the judgment
of the trial court. Id. Our Supreme Court granted the
defendant’s petition for certification to appeal, limited
to the following issue: ‘‘Does this court’s holding in
. . . Polanco . . . readopting vacatur as a remedy for
a cumulative conviction that violates double jeopardy
protections, apply retroactively?’’ (Internal quotation
marks omitted.) Id. In its brief to our Supreme Court,
the state claimed, 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.’’4 Id., 56. The
Supreme Court agreed with the state. Id., 56–57. It
explained that, ‘‘when cumulative convictions affect a
sentence in any manner, the trial court has jurisdiction
to entertain a motion to correct an illegal sentence.’’
(Emphasis in original.) Id., 63. In Smith, however, ‘‘the
defendant ha[d] not claimed that his sentence was
affected in any manner by the allegedly cumulative
convictions. No sentence was imposed on the defen-
dant’s merged manslaughter conviction, and it is undis-
puted that the only remedy sought by the defendant,
namely, vacatur of that conviction, will have no effect
on the length, computation or structure of his sen-
tence.’’ (Emphasis in original.) Id., 63–64. The court
noted that it was not aware of any appellate authority
holding 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.’’ Id., 64. Accord-
ingly, our Supreme Court concluded that the trial court
lacked jurisdiction to entertain the defendant’s motion
to correct an illegal sentence. Id.
We now turn to the present case, in which the defen-
dant pleaded guilty to and was convicted of both murder
and felony murder, and received two concurrent senten-
ces for those convictions. ‘‘Our Supreme Court has ana-
lyzed the legislative history of the felony murder statute
and concluded that the legislature intended that inten-
tional murder and felony murder are alternative means
of committing the same offense and should be treated
as a single crime for double jeopardy purposes.’’ State
v. Benefield, 153 Conn. App. 691, 709–10, 103 A.3d 990
(2014), cert. denied, 315 Conn. 913, 106 A.3d 305, cert.
denied, 575 U.S. 1041, 135 S. Ct. 2386, 192 L. Ed. 2d 172
(2015); see also State v. John, 210 Conn. 652, 695, 557
A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L.
Ed. 2d 50 (1989), and cert. denied sub nom. Seebeck v.
Connecticut, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d
50 (1989). Because the defendant was convicted of both
murder and felony murder, which are a single crime for
double jeopardy purposes, the defendant’s cumulative
convictions violate the prohibition against double jeop-
ardy.
State v. Smith, supra, 338 Conn. 63, in which the
trial court at the time of sentencing had merged the
defendant’s manslaughter conviction with his felony
murder conviction and ‘‘[n]o sentence was imposed on
the defendant’s merged manslaughter conviction,’’ does
not guide our consideration of the present case. Here,
contrary to the court’s statement at the time of the
denial of the defendant’s motion to correct his illegal
sentence, the defendant’s convictions of murder and
felony murder had not been merged. Instead, the defen-
dant remained subject to two concurrent sentences for
convictions that were cumulative, in violation of double
jeopardy principles. Thus, at the time of the filing of
his motion to correct an illegal sentence, the defendant
in the present case remained burdened by multiple pun-
ishments for the same offense. The court, therefore,
improperly denied the defendant’s motion to correct
an illegal sentence.
As noted previously, the parties are in agreement that
the proper remedy in the present case is to remand the
matter to the trial court with direction to vacate the
defendant’s conviction of felony murder. In its appellate
brief, the state expressly agrees with the defendant
‘‘that this court should reverse the judgment of the
trial court and remand the matter for resentencing with
direction to apply the Polanco-Miranda vacatur proce-
dure, which presently is the applicable law in Connecti-
cut.’’ Under the circumstances of the present case, in
which the defendant’s cumulative convictions, imposed
prior to our Supreme Court’s decision in Polanco, were
never merged and the defendant remains burdened by
multiple punishments for the same offense in violation
of double jeopardy principles, we agree with the parties
that the proper remedy is vacatur, rather than merger.
We note that our conclusion as to the appropriate
remedy in this case does not rest on a retroactive appli-
cation of the Polanco supervisory rule. Rather, because
the double jeopardy violation presently exists, the
proper remedy, consistent with Polanco’s directive, is
vacatur. Moreover, the policy concerns that led the
court in Polanco to conclude that vacatur was the
proper remedy apply with equal force in this case. As
the court explained in Polanco, its decision to reject
the merger of convictions approach was supported by
the fact that the United States Court of Appeals for
the Second Circuit no longer provided a jurisprudential
foundation for continued use of the merger approach,
and the court found no compelling reason to adhere
to an approach that was not in conformity with the
approach applied by other circuit courts of appeals.
Additionally, the court in Polanco noted that ‘‘it is diffi-
cult to know whether collateral consequences would
necessarily result from use of the merger approach.
Still, although we do not rest our decision on constitu-
tional grounds, we think it wise to adhere to an
approach that the federal courts seem to conclude is
less likely to give rise to collateral consequences, which
are oftentimes ‘legion’ . . . and may produce devasta-
ting results for a defendant.’’ (Citation omitted; empha-
sis in original.) State v. Polanco, supra, 308 Conn. 255–56
n.5. Accordingly, we agree with the parties that the
proper remedy in the present case is vacatur.
The judgment is reversed and the case is remanded
with direction to vacate the conviction of felony murder
and to resentence the defendant.
In this opinion the other judges concurred.
1
‘‘The fifth amendment to the United States constitution provides in rele-
vant part: ‘[N]or shall any person be subject for the same offense to be
twice put in jeopardy of life or limb . . . .’ Although our state constitution
does not contain an explicit prohibition on double jeopardy, it is well settled
that ‘the due process and personal liberty guarantees provided by article
first, §§ 8 and 9, of the Connecticut constitution have been held to encompass
the protection against double jeopardy.’ . . . The protection that the state
constitution provides against double jeopardy is ‘coextensive with that pro-
vided by the constitution of the United States.’ ’’ (Citation omitted.) State
v. Drakes, 321 Conn. 857, 865, 146 A.3d 21, cert. denied, U.S. , 137
S. Ct. 321, 196 L. Ed. 2d 234 (2016).
2
The defendant pleaded guilty to murder under the Alford doctrine.
‘‘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.’’ (Internal quotation marks omitted.) State v.
Tabone, 292 Conn. 417, 421 n.7, 973 A.2d 74 (2009).
3
‘‘With two exceptions, a new rule will not apply retroactively to cases
on collateral review. . . . First, if the new rule is substantive, that is, if the
rule places certain kinds of primary, private conduct beyond the power of
the criminal lawmaking authority to proscribe . . . it must apply retroac-
tively. Such rules apply retroactively because they necessarily carry a signifi-
cant risk that a defendant stands convicted of an act that the law does not
make criminal or faces a punishment that the law cannot impose upon
him. . . .
‘‘Second, if the new rule is procedural, it applies retroactively if it is a
watershed [rule] of criminal procedure . . . implicit in the concept of
ordered liberty . . . meaning that it implicat[es] the fundamental fairness
and accuracy of [a] criminal proceeding. . . . Watershed rules of criminal
procedure include those that raise the possibility that someone convicted
with use of the invalidated procedure might have been acquitted otherwise.’’
(Citations omitted; internal quotation marks omitted.) Casiano v. Commis-
sioner of Correction, 317 Conn. 52, 62–63, 115 A.3d 1031 (2015), cert. denied
sub nom. Semple v. Casiano, 577 U.S. 1202, 136 S. Ct. 1364, 194 L. Ed. 2d
376 (2016).
4
After oral argument before our Supreme Court, that court ordered the
parties to submit supplemental briefs on the following issue: ‘‘Is this court’s
holding pursuant 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, [supra, 317 Conn.
741], constitutionally mandated under the double jeopardy clause of the
United States constitution or is merger of the cumulative convictions a
constitutionally permissible remedy?’’ (Internal quotation marks omitted.)
State v. Smith, supra, 338 Conn. 56 n.1. Because the court concluded that
the trial court lacked jurisdiction over the defendant’s motion to correct an
illegal sentence, the court did not address the issue raised in its request for
additional briefing. Id.