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STATE OF CONNECTICUT v. JEFFREY SMITH
(AC 44525)
Bright, C. J., and Alexander and Lavine, Js.
Syllabus
The defendant, who had been previously convicted, following a jury trial,
of various crimes, including felony murder and manslaughter in the first
degree, appealed to this court from the judgment of the trial court
denying his motion to correct an illegal sentence. The trial court had
merged the defendant’s convictions of felony murder and manslaughter
and sentenced him on the felony murder conviction. The defendant
claimed that his acquittal on charges of capital felony and murder barred,
on double jeopardy grounds, his prosecution during the same trial pro-
ceeding for felony murder and manslaughter and that the court had
improperly sentenced him on his felony murder conviction rather than
his manslaughter conviction. Held:
1. The defendant could not prevail on his claim that, because he had been
acquitted of both capital felony and murder, his prosecution for felony
murder and manslaughter was barred on double jeopardy grounds, as
the motion to correct an illegal sentence failed to advance a colorable
claim that invoked the jurisdiction of the trial court: rather than challeng-
ing the sentence or the sentence proceeding, the claim challenged the
proceeding leading up to the defendant’s underlying convictions, over
which the court did not have subject matter jurisdiction; accordingly,
this court concluded that the claim was properly rejected by the trial
court but that the form of the judgment was improper with respect to
this portion of the defendant’s motion, and the case was remanded with
direction to render judgment dismissing that portion of the defen-
dant’s motion.
2. The trial court did not abuse its discretion in sentencing the defendant
on his felony murder conviction rather than his manslaughter conviction;
pursuant to our Supreme Court’s decision in State v. Polanco (308 Conn.
242), and this court’s decision in State v. Holmes (209 Conn. App. 197),
the trial court had authority to impose a sentence on the greater felony
murder charge rather than the less serious manslaughter charge.
Argued March 10—officially released July 19, 2022
Procedural History
Substitute information charging the defendant with
two counts of the crime of kidnapping in the first
degree, and with 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 kidnap-
ping in the first degree, and 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. Improper form of judgment; reversed in part;
judgment directed.
Jeffrey Smith, self-represented, the appellant (defen-
dant).
Melissa Patterson, senior assistant state’s attorney,
with whom, on the brief, were Paul J. Narducci, state’s
attorney, and Michael Reagan, former state’s attorney,
for the appellee (state).
Opinion
LAVINE, J. The self-represented defendant, Jeffrey
Smith, appeals from the judgment of the trial court
denying his motion to correct an illegal sentence. On
appeal, the defendant claims that the court erred in
denying his motion to correct an illegal sentence
because (1) his acquittal on the charges of capital felony
and murder barred, on double jeopardy grounds,1 his
prosecution during the same trial on the charges of
felony murder and manslaughter and (2) the court
improperly sentenced him on his felony murder convic-
tion rather than on his manslaughter conviction.2 We
reject the second claim. As to the first claim, we con-
clude that the trial court lacked subject matter jurisdic-
tion to consider it and it should be dismissed. Accord-
ingly, we affirm in part and reverse in part the judgment
of the trial court.
The following procedural history is relevant. Follow-
ing trial, the jury found the defendant not guilty of the
charges of capital felony in violation of General Statutes
(Rev. to 1997) § 53a-54b (5) and murder in violation of
General Statutes (Rev. to 1997) § 53a-54a. The jury
found him guilty of felony murder in violation of General
Statutes (Rev. to 1997) § 53a-54c, manslaughter in the
first degree in violation of General Statutes § 53a-55,
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 Stat-
utes § 53a-134 (a) (1). The trial court, Schimelman, J.,
merged the defendant’s convictions of felony murder
and manslaughter and sentenced him to sixty years in
prison on the felony murder conviction, which sentence
was to run consecutively to both his concurrent twenty-
five year sentences on each kidnapping count, as well as
his concurrent sentence of twenty years on the robbery
count, for a total effective sentence of eighty-five years
of imprisonment. This court affirmed the defendant’s
conviction on direct appeal. State v. Smith, 107 Conn.
App. 746, 946 A.2d 926, cert. denied, 288 Conn. 905, 953
A.2d 650 (2008).
In 2015, the defendant, representing himself, filed an
amended motion to correct an illegal sentence (2015
motion) pursuant to Practice Book § 43-22,3 in which he
alleged multiple double jeopardy violations. See State
v. Smith, 180 Conn. App. 371, 374–75, 184 A.3d 831
(2018) (detailing claims made in 2015 motion), rev’d on
other grounds, 338 Conn. 54, 256 A.3d 615 (2021). In
a June 27, 2016 memorandum of decision, the court,
Strackbein, J., denied the 2015 motion. On appeal, this
court affirmed the judgment of the trial court. Id., 373.
This court rejected the defendant’s claims, including
his claim that the sentencing court had violated the
principles established by our Supreme Court in State
v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013), and
State v. Miranda, 317 Conn. 741, 120 A.3d 490 (2015),
by merging his cumulative homicide convictions for
felony murder and manslaughter rather than vacating
his conviction for manslaughter, reasoning that Polanco
and Miranda do not apply retroactively. State v. Smith,
supra, 180 Conn. App. 379–84. Our Supreme Court
reversed the judgment of the Appellate Court, holding
that, because the sentencing court did not impose any
sentence on the defendant for his merged manslaughter
conviction, vacatur of that conviction would have no
effect on the length, computation or structure of the
sentence and, accordingly, the trial court lacked subject
matter jurisdiction over the defendant’s Polanco/
Miranda claim. State v. Smith, 338 Conn. 54, 63–64,
256 A.3d 615 (2021).
The self-represented defendant filed the present
motion to correct an illegal sentence, dated December
13, 2019, in which he claimed multiple double jeopardy
violations and sought the vacatur of all his sentences
and convictions.4 Following several hearings on the
motion, during which the defendant was asked to clarify
his claims, the court, Strackbein, J., in a December 22,
2020 memorandum of decision, denied the motion. The
court incorporated into its decision the June 27, 2016
memorandum of decision denying the 2015 motion and
determined that most of the defendant’s arguments
already had been addressed by this court in State v.
Smith, supra, 107 Conn. App. 746. The court rejected
the defendant’s claim ‘‘where again he stated he was ‘re-
prosecuted’ when the jury found him guilty on several
charges but not the capital felony and murder’’ and
reasoned that ‘‘the trial judge did not impose multiple
punishments for the same crime.’’ The court also
rejected the defendant’s claim that the court should
have sentenced him on the manslaughter charge instead
of the felony murder charge, and reasoned that ‘‘[t]he
trial of this defendant predated Polanco, which is not
retroactive—but the merger of the manslaughter con-
viction under the felony murder conviction serves the
same purpose of explaining that the lesser included
offense is subsumed under the greater offense.’’ This
appeal followed.
I
The defendant first claims that ‘‘[t]he state must not
continue to overlook and give short shrift to the fact
that the [defendant] was initially acquitted twice before
being illegally convicted twice for a single alleged homi-
cide . . . .’’ As we interpret this claim, the defendant
argues that, in denying his motion to correct, the court
improperly rejected his claim that his convictions for
felony murder and manslaughter, after he had been
acquitted of both capital felony and murder in the same
trial proceeding, constituted a second prosecution for
the same offense in violation of his constitutional right
against double jeopardy. The state counters that the
trial court did not have subject matter jurisdiction to
entertain this claim. We agree with the state.
‘‘The determination of whether a claim may be
brought via a motion to correct an illegal sentence pre-
sents a question of law over which our review is ple-
nary.’’ State v. Thompson, 190 Conn. App. 660, 665, 212
A.3d 263, cert. denied, 333 Conn. 906, 214 A.3d 382
(2019). ‘‘A motion to correct an illegal sentence under
Practice Book § 43-22 constitutes a narrow exception
to the general rule that, once a defendant’s sentence
has begun, the authority of the sentencing court to
modify that sentence terminates. . . . 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. . . .
[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 . . . § 43-22. The
first category has addressed whether the sentence was
within the permissible range for the crimes charged.
. . . The second category has considered violations of
the prohibition against double jeopardy. . . . The third
category has involved claims pertaining to the computa-
tion of the length of the sentence and the question of
consecutive or concurrent prison time. . . . The fourth
category has involved questions as to which sentencing
statute was applicable.’’ (Citations omitted; internal
quotation marks omitted.) State v. Holmes, 209 Conn.
App. 197, 202–203, 267 A.3d 348 (2021), cert. denied,
342 Conn. 909, 271 A.3d 663 (2022).
The jurisdictional issue raised by the state requires
us to ‘‘consider whether the defendant has raised a
colorable claim within the scope of Practice Book § 43-
22 that would, if the merits of the claim were reached
and decided in the defendant’s favor, require correction
of a sentence. . . . In the absence of a colorable claim
requiring correction, the trial court has no jurisdiction
to modify the sentence. . . . For a claim to be color-
able, the defendant need not convince the trial court
that he necessarily will prevail; he must demonstrate
simply that he might prevail. . . . The jurisdictional
and merits inquiries are separate; whether the defen-
dant ultimately succeeds on the merits of his claim does
not affect the trial court’s jurisdiction to hear it. . . . In
determining whether it is plausible that the defendant’s
motion challenged the sentence, rather than the under-
lying trial or conviction, we consider the nature of the
specific legal claim raised therein.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
State v. Evans, 329 Conn. 770, 783–85, 189 A.3d 1184
(2018), cert. denied, U.S. , 139 S. Ct. 1304, 203
L. Ed. 2d 425 (2019).
The defendant’s claim attacks his convictions for fel-
ony murder and manslaughter. Because the claim chal-
lenges the proceeding leading up to the underlying con-
viction rather than the sentence or the sentencing
proceeding, it does not fall within the purview of Prac-
tice Book § 43-22. See, e.g., State v. Holmes, supra, 209
Conn. App. 204 (‘‘[s]imply put, our law is clear that
motions to correct an illegal sentence that attack the
conviction or the proceedings leading up to the convic-
tion are not within the trial court’s jurisdiction on a
motion to correct an illegal sentence’’). Accordingly,
the trial court does not have subject matter jurisdiction
over such a claim. See State v. Wright, 107 Conn. App.
152, 157, 944 A.2d 991 (claim that sentence was illegal
because conviction violated double jeopardy does not
fall within purview of Practice Book § 43-22), cert.
denied, 289 Conn. 933, 958 A.2d 1247 (2008). Because
this claim is not colorable, the trial court should have
dismissed, rather than denied, the defendant’s motion
as to this claim. See State v. Boyd, 204 Conn. App. 446,
457, 253 A.3d 988, cert. denied, 336 Conn. 951, 251 A.3d
617 (2021).
II
The defendant next claims that he ‘‘was initially found
guilt[y] of manslaughter followed by felony murder. As
a result the sentencing court had the option of sentenc-
ing the [defendant] to either conviction opting for the
second conviction which—unfortunately for the [defen-
dant]—carries a penalty three . . . times higher than
that of the first conviction.’’5 In other words, the defen-
dant challenges the action of the trial court in sentenc-
ing him on the felony murder conviction rather than
the manslaughter conviction. We are not persuaded.
‘‘Ordinarily, a claim that the trial court improperly
denied a defendant’s motion to correct an illegal sen-
tence is reviewed pursuant to the abuse of discretion
standard.’’ State v. Tabone, 279 Conn. 527, 534, 902 A.2d
1058 (2006).
Our Supreme Court in State v. Polanco, supra, 308
Conn. 245, held that, ‘‘when a defendant has been con-
victed of greater and lesser included offenses, the trial
court must vacate the conviction for the lesser offense
rather than merging the convictions . . . .’’ On appeal,
the defendant’s claim does not challenge whether his
conviction for manslaughter should have been vacated
instead of merged with his conviction for felony murder.
Under the circumstances of the present case, the trial
court would lack jurisdiction to entertain such a claim.
See State v. Smith, supra, 338 Conn. 64. The defendant’s
claim focuses on whether the sentencing court properly
sentenced the defendant on the felony murder convic-
tion instead of the manslaughter conviction. We note
that there is authority for the imposition of a sentence
on the greater felony murder charge instead of a sen-
tence on the less serious manslaughter charge and that
the analysis in Polanco supports the court imposing a
sentence for the felony murder conviction instead of
the manslaughter conviction.6 See State v. Polanco,
supra, 308 Conn. 260–61. Furthermore, this court
recently rejected the very argument advanced by the
defendant in this case. See State v. Holmes, supra, 209
Conn. App. 213 (concluding that ‘‘[t]he court properly
vacated the manslaughter conviction because vacatur
of the less serious homicide offense is proper’’). We
conclude that the defendant has not established that
the court abused its discretion in determining that the
felony murder conviction controls and sentencing him
on felony murder instead of manslaughter. See id.
The form of the judgment is improper, the judgment
is reversed only with respect to the trial court’s denial
of that portion of the defendant’s motion to correct an
illegal sentence claiming that his convictions for felony
murder and manslaughter violated his federal constitu-
tional right against double jeopardy, and the case is
remanded with direction to render judgment dismissing
that portion of the defendant’s motion to correct an
illegal sentence; the judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
The double jeopardy clause of the United States constitution guarantees
that no person shall ‘‘be subject for the same offense to be twice put in
jeopardy of life or limb . . . .’’ U.S. Const., amend. V. ‘‘The double jeopardy
prohibition of the fifth amendment extends to state prosecutions through
the fourteenth amendment to the United States constitution.’’ State v.
Thomas, 296 Conn. 375, 383 n.7, 995 A.2d 65 (2010).
2
At oral argument before this court, the defendant raised an additional
claim, which was not presented in his appellate brief, that he was charged
with multiple homicide offenses for a single act in violation of his constitu-
tional right against double jeopardy. We decline to review this claim. ‘‘[I]t is
well settled that a claim cannot be raised for the first time at oral argument.’’
(Internal quotation marks omitted.) Burton v. Dept. of Environmental Pro-
tection, 337 Conn. 781, 797 n.12, 256 A.3d 655 (2021).
3
Practice Book § 43-22 provides in relevant part that ‘‘[t]he judicial author-
ity may at any time correct an illegal sentence or other illegal disposition,
or it may correct a sentence imposed in an illegal manner . . . .’’
4
At a November 2, 2020 hearing on the present motion to correct an
illegal sentence, the defendant requested a lawyer to assist him with certain
procedural issues. The court continued the case for the appointment of an
assigned counsel. At a December 10, 2020 hearing, the defendant’s appointed
counsel explained that she previously had filed a motion to withdraw as
the defendant’s counsel. When asked by the court whether he wanted another
counsel appointed or wanted to represent himself, the defendant responded
that he would represent himself.
5
The defendant additionally argues, citing the docket number for State
v. Smith, supra, 180 Conn. App. 371, ‘‘[h]ere would be where the [defendant’s]
prior argument regarding the kidnapping and robbery convictions and sen-
tences would be inserted . . . .’’ The court stated in its 2020 memorandum
of decision that ‘‘most of [the defendant’s] arguments have been addressed
in prior motions and a decision by the Appellate Court encapsulates many
of the defendant’s issues.’’ The defendant cannot prevail in raising for a
second time the precise argument that we previously have rejected in our
decision in State v. Smith, supra, 180 Conn. App. 376–79, as it is barred by
the doctrine of res judicata. See State v. Osuch, 124 Conn. App. 572, 581, 5
A.3d 976, cert. denied, 299 Conn. 918, 10 A.3d 1052 (2010).
6
We note that manslaughter is not a lesser included offense of felony
murder but that subjecting a defendant to punishment for both the more
serious class A felony of felony murder and the less serious class B felony
of manslaughter in the first degree violates double jeopardy because the
legislature intended that they be treated as the same offense. See State v.
Holmes, supra, 209 Conn. App. 208–10.