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STATE OF CONNECTICUT v. JOHN YATES
(AC 35731)
Lavine, Prescott and Mihalakos, Js.
Argued December 11, 2014—officially released November 22, 2016*
(Appeal from Superior Court, judicial district of
Waterbury, Damiani, J. [judgment]; Fasano, J. [motion
to correct illegal sentence].)
John Yates, self-represented, the appellant
(defendant).
Jennifer F. Miller, deputy assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Eva B. Lenczewski, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, John Yates, appeals
from the judgment of the trial court dismissing his
motion to correct an illegal sentence. The defendant
claims on appeal that the court improperly (1) permitted
appointed counsel to withdraw without first requiring
him to articulate the reasoning behind his determination
that there was no sound basis for the motion to correct
an illegal sentence, and (2) concluded that his sentence
had not been imposed in an illegal manner. We conclude
that only the form of the judgment is improper, and,
accordingly, we reverse the judgment dismissing the
defendant’s motion to correct an illegal sentence and
remand the case to the trial court with direction to
render judgment denying the defendant’s motion.
The record reveals the following relevant facts and
procedural history. The defendant was arrested and
charged in connection with an April 10, 2010 armed
robbery of a liquor store. On October 4, 2010, pursuant
to a plea agreement reached in accordance with State
v. Garvin, 242 Conn. 296, 699 A.2d 921 (1997),1 the
defendant entered guilty pleas to one count of robbery
in the first degree in violation of General Statutes § 53a-
134 (a) (2) and, on a part B information, to being a
persistent dangerous felony offender in violation of
General Statutes § 53a-40.2 In accordance with the Gar-
vin agreement, the court, Damiani, J., agreed to sen-
tence the defendant to eighteen years of incarceration,
suspended after fourteen years, with the right to argue
down to a sentence of eighteen years, suspended after
twelve years. The court, however, also advised the
defendant that he remained exposed to a possible sen-
tence of up to forty-two and one-half years, of which
ten years was mandatory, and/or a fine of $15,000 if he
violated the terms of the Garvin agreement either by
failing to appear at the sentencing hearing, which was
scheduled for December 7, 2010, or by being arrested
with probable cause on any new charges prior to his
sentencing. The defendant acknowledged that he under-
stood the terms of the plea agreement.3
Nevertheless, the defendant did not appear for his
sentencing hearing on December 7, 2010. Furthermore,
three new arrest warrants were issued for the defendant
regarding three robberies that he allegedly committed
on November 2, 2010, after entering his plea.
The defendant eventually was apprehended, and the
court sentenced him on the original robbery and persis-
tent offender charges at a hearing on February 9, 2011.
At that hearing, the court concluded that the defendant
had violated both conditions of his Garvin agreement.
First, the court found that the defendant had failed to
appear at the originally scheduled December 7, 2010
sentencing hearing. Second, after the defendant waived
his right to a Stevens hearing,4 the court found on the
basis of its review of the three arrest warrants and their
affidavits that there was probable cause to support the
warrants.5 On the basis of the defendant’s failure to
comply with the terms of his plea agreement, the court
opted to impose a flat sentence of twenty-two years of
incarceration, which, as a result, required the defendant
to serve eight years more of unsuspended jail time than
the originally agreed upon sentence under the Gar-
vin agreement.
On March 18, 2011, the defendant was arraigned on
three counts of robbery in the first degree arising from
the three new arrest warrants. At that hearing, the fol-
lowing colloquy occurred between Judge Damiani and
the defendant:
‘‘The Court: [J]ust to make the record clear today,
you were before me some time ago after you failed to
appear for sentencing on a robbery of a liquor store, I
believe, and the indicated sentence was something
after—twenty after fourteen, I believe, and you had a
right to argue down to twenty after twelve and you
failed to show up in court, and then when they did
apprehend you, they had these three new robbery war-
rants against you, and when I sentenced you, I read the
affidavits.6 There was probable cause found by the judge
who issued the warrants and I gave you twenty-two
years on the old file and your lawyer explained to you,
you could have had what they call a Steven’s hearing
to force the state to bring in people to show there was
probable cause for your new arrest. Remember that?
‘‘The Defendant: Yes.
‘‘The Court: And you don’t want that hearing, right?
‘‘The Defendant: No.
‘‘The Court: Okay. And then I gave you the twenty-
two years for the violation of the Garvin canvass, one
for failing to appear in court—I’m going to the same
place I told you, so don’t be—be worried—and for the—
the new arrests. Do you understand that?
‘‘The Defendant: Yes.
‘‘The Court: Okay. So now I asked the state—there
was no sense in bringing these charges, but they bring
the charges. The warrants were served against you on
the three new robbery cases. The state has—we’ll put
on the record, they made contact with the victims. I’m
going to put you to plea on each of these three robberies
and I’m going to be giving you a year in jail on each
robbery to run concurrent with each other for one year
to serve on these three files—
‘‘The Defendant: Yeah.
‘‘The Court: —to be concurrent with the twenty-two
years that I’ve—I’ve already given you the time for
these three robberies when I upped you from fourteen
to twenty-two. Understood?
‘‘The Defendant: Yes.’’ (Emphasis added; footnote
added.)
The defendant then entered Alford pleas to each of
the three robbery charges,7 and the court rendered sen-
tences in accordance with the preceding canvass. The
defendant expressed his appreciation to the court for
its fairness in sentencing.
Nevertheless, on December 14, 2012, the defendant
filed a self-represented motion to correct what he now
asserts is an illegal sentence. According to the defen-
dant, his February 9, 2011 sentence was illegal because
the court improperly considered as a sentencing factor
the three pending arrest warrants and effectively sen-
tenced him for the robberies alleged in those warrants,
despite the fact that, at that time, he had not yet been
arrested, charged, or arraigned on those alleged rob-
beries.
The court, Fasano, J., appointed a special public
defender for the limited purpose of reviewing the defen-
dant’s motion to correct and determining if a sound
basis for such a motion existed in accordance with
State v. Casiano, 282 Conn. 614, 922 A.2d 1065 (2007).8
On January 30, 2013, the defendant’s appointed attor-
ney, Joseph Yamin, reported back to the court. At that
time, he indicated to the court that he had reviewed
the defendant’s motion and researched all the issues
raised by the defendant therein. He then stated to the
court that he did ‘‘not find a sound basis for going
forward.’’ The court asked if counsel had already spo-
ken with the defendant, and Yamin responded in the
affirmative, indicating that he had spoken with the
defendant the day before. The court granted Yamin
permission to withdraw his appearance at that time.
The court instructed the defendant that he could pro-
ceed with the motion to correct by himself, and the
defendant elected to continue to prosecute his motion
as a self-represented party.9
The court held a hearing on the merits of the motion
to correct an illegal sentence on March 13, 2013. One
week later, the court issued a memorandum of decision
in which it rejected the defendant’s arguments that his
sentence was imposed in an illegal manner, and con-
cluded that the sentencing court’s consideration of the
pending arrest warrants fell well within the scope of
information that could be considered by the court at
sentencing, citing State v. Huey, 199 Conn. 121, 127,
505 A.2d 1242 (1986). The court found that the sentenc-
ing court properly had increased the defendant’s sen-
tence by eight years more than the original plea
agreement because the defendant had ‘‘fail[ed] to
appear for sentencing, a Garvin violation, and his pick-
ing up three new arrest warrants for which the court
found probable cause; arguably, a Stevens violation.’’
The court further explained: ‘‘Though, technically, the
three arrest warrants had not been served at the time
of the sentencing in question, and, therefore, were not
new arrests as per Stevens, all parties were aware of
the existence of the warrants (alleged street robberies
to which the defendant had confessed) at the time of
the sentencing; probable cause clearly existed for the
arrests as was confirmed by the court, and the defense
waived any hearing rights to question the existence of
probable cause. To find, under these circumstances,
that the technical difference between having three war-
rants pending and actually being arrested on the war-
rants places this case outside the parameters of Stevens,
would be to exalt form over substance.’’ (Emphasis
in original.) Although Judge Fasano did not squarely
address the defendant’s suggestion that Judge Damiani,
in effect, had sentenced him for the three robberies at
that time, the court implicitly rejected that argument
by noting that the defendant later pleaded guilty to the
three robberies, for which he subsequently received
concurrent sentences. Despite having addressed the
merits of the defendant’s motion to correct an illegal
sentence, the court indicated that it was dismissing,
rather than denying, the motion. This appeal followed.
I
The defendant first claims that the court improperly
granted his appointed counsel’s motion to withdraw
his appearance without requiring him to articulate the
reasoning behind his determination that there was no
sound basis to pursue the defendant’s motion to correct
an illegal sentence. In his initial appellate brief, the
defendant asked us to establish a new procedural right
that would require an appointed counsel seeking to
withdraw from representing a defendant regarding a
motion to correct an illegal sentence to file a written
memorandum with the court that outlines the claims
raised by the defendant, the efforts counsel undertook
to investigate the factual and legal bases for those
claims, and the factual and legal bases for counsel’s
conclusion that the motion is frivolous. In response to
our requests for supplemental briefing in light of our
Supreme Court’s recent decision in State v. Francis, 322
Conn. 247, 140 A.3d 927 (2016), however, the defendant
modified his claim on appeal, stating in his supplemen-
tal brief that the court should not have allowed
appointed counsel to withdraw because he failed to
inform the defendant or the court, either in writing or
orally, of the ‘‘reasoning’’ underlying his conclusion that
there was no sound basis for the motion to correct
an illegal sentence. Under the circumstances, we are
not persuaded.
We begin our discussion with Casiano, in which our
Supreme Court first established that an indigent defen-
dant has a limited right to postconviction assistance of
counsel in connection with a motion to correct an illegal
sentence. State v. Casiano, supra, 282 Conn. 627–28.
Specifically, according to Casiano, ‘‘a defendant has a
right to the appointment of counsel for the purpose of
determining whether a defendant who wishes to file [a
motion to correct an illegal sentence under Practice
Book § 43-22] has a sound basis for doing so. If
appointed counsel determines that such a basis exists,
the defendant also has the right to the assistance of
such counsel for the purpose of preparing and filing
such a motion and, thereafter, for the purpose of any
direct appeal from the denial of that motion.’’ Id. There
is no discussion in Casiano, however, about what par-
ticular procedure should be followed by counsel, or by
the trial court, if counsel appointed pursuant to Casiano
determines that there is no sound basis for a motion
to correct an illegal sentence, including how such a
determination should be communicated to counsel’s
client and to the court.
Recently, however, in State v. Francis, supra, 322
Conn. 247, our Supreme Court clarified the procedures
that should be followed before a court may allow coun-
sel appointed pursuant to Casiano to withdraw from
representation. Our Supreme Court first rejected the
opinion of this court, as set forth in State v. Francis,
148 Conn. App. 565, 569, 86 A.3d 1059 (2014), rev’d,
322 Conn. 247, 140 A.3d 927 (2016), that courts and
appointed counsel should be required to follow Anders-
like procedures before counsel can be permitted to
withdraw.10 State v. Francis, supra, 322 Conn. 251; see
also Anders v. California, 386 U.S. 738, 744, 87 S. Ct.
1396, 18 L. Ed. 2d 493 (1967) (establishing procedures
for withdrawal of indigent defendant’s appointed coun-
sel in direct criminal appeals). Such procedures argua-
bly could have included the requirements that counsel
file a so-called ‘‘Anders brief,’’ in which counsel would
refer to anything in the record that might arguably sup-
port the defendant’s position, and that the trial court
make its own evaluation, independent of counsel’s,
regarding the merits of the defendant’s claim that his
sentence either is illegal or was imposed in an illegal
manner.
Our Supreme Court in Francis held, however, that
‘‘the Anders procedure is not strictly required to safe-
guard the defendant’s statutory right to counsel in the
context of a motion to correct an illegal sentence.’’
State v. Francis, supra, 322 Conn. 251. The court rea-
soned that Anders procedures were established to pro-
tect a criminal defendant’s constitutional right to
counsel on a first appeal, and that a defendant’s right
to appointed counsel in proceedings on a motion to
correct an illegal sentence is not constitutional but stat-
utory in nature, and, thus, does not warrant the same
level of protection. Id., 262–63; see also Pennsylvania
v. Finley, 481 U.S. 551, 559, 107 S. Ct. 1990, 95 L. Ed. 2d
539 (1987) (explaining that ‘‘full panoply of procedural
protections that the [c]onstitution requires . . . at trial
and on first appeal’’ are not needed when state elects
to provide legal assistance to indigent defendants in
postconviction proceedings). The court in Francis rea-
soned, in part, that unlike the varied and often complex
issues that arise in direct criminal appeals, the issues
that can be raised in a motion to correct an illegal
sentence are far more limited and straightforward in
nature,11 and ‘‘the potential merits of such a motion
frequently will be apparent to the court and appointed
counsel from a simple review of the sentencing record.’’
State v. Francis, supra, 265.
As to the appropriate procedure to be followed, the
Supreme Court in Francis stated as follows: ‘‘[If] an
indigent defendant requests that counsel be appointed
to represent him in connection with the filing of a
motion to correct an illegal sentence, the trial court
must grant that request for the purpose of determining
whether a sound basis exists for the motion. See State
v. Casiano, supra, 282 Conn. 627. If, after consulting
with the defendant and examining the record and rele-
vant law, counsel determines that no sound basis exists
for the defendant to file such a motion, he or she must
inform the court and the defendant of the reasons for
that conclusion, which can be done either in writing or
orally. If the court is persuaded by counsel’s reasoning,
it should permit counsel to withdraw and advise the
defendant of the option of proceeding as a self-repre-
sented party.’’ (Footnote omitted.) State v. Francis,
supra, 322 Conn. 267–68.
In the present case, unlike in Francis, the court prop-
erly appointed counsel in accordance with Casiano to
review the motion after the defendant filed it with the
court and prior to any hearing on the merits of the
motion. Counsel subsequently indicated to the court
orally on the record that he had reviewed the motion,
had researched all issues raised by the defendant, and
had spoken with the defendant about the motion prior
to reporting back to the court regarding his Casiano
review.12 There is no indication that counsel failed to
acted within the bounds of professional responsibility
in both evaluating the motion as filed by the defendant
and identifying any meritorious claim not raised in that
motion. See Stephen S. v. Commissioner of Correction,
134 Conn. App. 801, 810, 40 A.3d 796 (counsel strongly
presumed to have exercised reasonable professional
judgment in making all significant decisions), cert.
denied, 304 Conn. 932, 43 A.3d 660 (2012). Counsel
indicated that, on the basis of this review, he had deter-
mined that there was no sound basis for pursuing the
defendant’s motion to correct an illegal sentence.
It is true that counsel did not provide to the court a
detailed discussion or legal analysis of the soundness
of the defendant’s claims. Nevertheless, in light of the
generally limited scope of a motion to correct as recog-
nized in Francis, we are not persuaded that this lacuna
constitutes reversible error under the unique circum-
stances of this case. As discussed more fully in part II
of this opinion, a review of the motion and the attached
relevant sentencing transcripts reveals that, on its face,
the defendant’s motion lacks a sound basis to proceed
because, among other things, it fails to recognize or
challenge the fact that the defendant violated his Gar-
vin agreement by failing to appear for his original sen-
tencing hearing, which violation, in and of itself,
exposed him to the sentence imposed by the court. The
court had a copy of the defendant’s motion before it
and had an opportunity to review it, along with its
attachments, which include transcripts of the proceed-
ings before Judge Damiani, and the court file of the
underlying sentencing record. As the court in Francis
predicted, the potential merits of a motion to correct
an illegal sentence often will be readily apparent from
a simple review of the record. See State v. Francis,
supra, 322 Conn. 265. Here, the court was in a position
to evaluate independently the nature of the claims
raised in the motion and, if necessary, to question coun-
sel regarding the reasoning underlying his no sound
basis determination. On the basis of the unique record
presented here, we are persuaded that counsel’s reason-
ing for his no sound basis determination, although not
fully articulated, was readily apparent to all from the
face of the record, and it would elevate form over sub-
stance to conclude that a remand is necessary to vindi-
cate the newly envisioned procedure set forth in
Francis.13 Accordingly, we conclude that the trial court
properly accepted counsel’s determination that there
was no sound basis for the defendant’s motion and
permitted him to withdraw from further representation
of the defendant.
II
Turning to the merits of the defendant’s motion to
correct an illegal sentence, the defendant also claims
on appeal that the court improperly determined that
his sentence had not been imposed in an illegal manner
and, thus, improperly dismissed his motion. The defen-
dant asserts that the court mistakenly relied upon State
v. Huey, supra, 199 Conn. 121, which the defendant
maintains is irrelevant to his claim that his sentence
was imposed in an illegal manner. Specifically, the
defendant contends that rather than merely considering
the three pending arrest warrants as factors in crafting
an appropriate sentence, the court, in essence, sen-
tenced him for the robberies alleged in those warrants.
The state counters that the court properly relied on
Huey in determining that the sentencing court had not
imposed the defendant’s sentence in an illegal manner
in that the court properly considered the defendant’s
subsequent criminal conduct as a factor in increasing
his sentence, along with his failure to appear for sen-
tencing. The state further contends that the defendant’s
argument that he was sentenced on the unexecuted
arrest warrants at that time simply is belied by the
record. We agree with the state.
We begin with general legal principles, including our
standard of review. ‘‘[T]he jurisdiction of the sentencing
court terminates once a defendant’s sentence has
begun, and, therefore, that court may no longer take
any action affecting a defendant’s sentence unless it
expressly has been authorized to act. . . . Practice
Book § 43-22, which provides the trial court with such
authority, provides 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 or any other disposition made in an illegal
manner. An illegal sentence is essentially one [that]
either exceeds the relevant statutory maximum limits,
violates a defendant’s right against double jeopardy,
is ambiguous, or is internally contradictory. . . . [A]
defendant may challenge his or her criminal sentence
on the ground that it is illegal by raising the issue on
direct appeal or by filing a motion pursuant to § 43-
22 with the judicial authority, namely, the trial court.’’
(Citations omitted; internal quotation marks omitted.)
State v. Tabone, 279 Conn. 527, 533–34, 902 A.2d 1058
(2006). ‘‘Ordinarily, a claim that the trial court improp-
erly denied a defendant’s motion to correct an illegal
sentence is reviewed pursuant to the abuse of discretion
standard.’’ Id., 534.
In State v. Huey, supra, 199 Conn. 126–27, our
Supreme Court described the broad discretion that a
sentencing court has in crafting a sentence and dis-
cussed the type of information that a sentencing court
properly may consider in imposing a sentence within
statutory limits. The court stated in part: ‘‘[I]f a sentence
is within statutory limits it is not generally subject to
modification by a reviewing court. . . . A sentencing
judge has very broad discretion in imposing any sen-
tence within the statutory limits and in exercising that
discretion he may and should consider matters that
would not be admissible at trial. . . . To arrive at a just
sentence, a sentencing judge may consider information
that would be inadmissible for the purpose of determin-
ing guilt . . . evidence of crimes for which the defen-
dant was indicted but neither tried nor convicted . . .
evidence bearing on charges for which the defendant
was acquitted . . . and evidence of counts of an indict-
ment which has been dismissed by the government.’’
(Citations omitted; internal quotation marks omitted.)
Id., 126. A trial court’s discretion is not completely
unfettered; however, ‘‘[a]s long as the sentencing judge
has a reasonable, persuasive basis for relying on the
information which he uses to fashion his ultimate sen-
tence, an appellate court should not interfere with his
discretion.’’ Id., 127.
Turning to the facts of the present case, the defendant
originally entered into a Garvin agreement in which
he agreed to plead guilty in exchange for a relatively
favorable sentence that, assuming he complied with the
terms of the agreement, imposed, at most, fourteen
years of unsuspended prison time. That plea was specif-
ically conditioned upon his promises both to appear
for sentencing and to not be arrested with probable
cause for any additional criminal conduct. The defen-
dant does not claim on appeal that he failed to under-
stand the terms of his Garvin agreement, and he does
not challenge the court’s factual findings at sentencing
that he violated both conditions of that agreement. As
the sentencing court correctly explained at the time it
took the defendant’s plea, his potential exposure if he
violated the terms of the Garvin agreement amounted
to forty-two and one-half years of incarceration, of
which ten were mandatory. Thus, the court’s sentence
of a flat twenty-two years of incarceration fell well
within the legal statutory limits and the defendant’s
Garvin agreement.
The defendant nevertheless argues that the court
unlawfully sentenced him because it considered and
utilized the three unserved arrest warrants in determin-
ing his sentence and suggests that, for all intents and
purposes, the court sentenced him for the robberies
alleged in those warrants despite the fact that, at the
time, he had not been arrested on any new charges. The
defendant’s arguments lack merit for several reasons.
First, even if we were to conclude that, because the
three pending warrants had not yet been served, the
defendant technically had not breached the ‘‘no new
arrests’’ provision of the Garvin agreement, it is undis-
puted that the defendant also had failed to comply with
the Garvin agreement by failing to appear for the origi-
nally scheduled sentencing hearing. On the basis of that
independent breach alone, the defendant forfeited his
right to be sentenced under the Garvin agreement to
no more than fourteen years of unsuspended prison
time. Having clearly violated at least one aspect of the
Garvin agreement, the defendant was now exposed to
a possible sentence that included up to forty-two and
one-half years of incarceration. Any sentence imposed
by Judge Damiani up to that amount based on the defen-
dant’s failure to appear for sentencing was expressly
permitted by the Garvin agreement and, thus, the sen-
tence of twenty-two years was not imposed in an ille-
gal manner.
Second, the defendant makes much of the fact that
the three arrest warrants had not yet been served on
him at the time of sentencing. The defendant, however,
does not challenge Judge Fasano’s findings that he was
fully aware of the warrants and the allegations that he
had committed three additional robberies. It is undis-
puted that the defendant understood that, pursuant to
the Garvin agreement, he was obligated to avoid an
arrest on any additional offense for which there was
probable cause. In essence, the defendant understood
that if he wanted to secure the favorable benefits of
the Garvin agreement, he could not engage in any addi-
tional criminal conduct prior to sentencing. The defen-
dant elected not to challenge whether the three
warrants were supported by probable cause; see State
v. Stevens, supra, 278 Conn. 1; and the sentencing court
affirmed that they were. We agree with Judge Fasano’s
assessment that it would elevate form over substance,
for purposes of determining whether the defendant had
violated the terms of his Garvin agreement, to recog-
nize any significance between having three valid war-
rants pending and actually having been arrested on
those warrants.
Third, as the trial court properly concluded in
rejecting the motion to correct an illegal sentence, it
was entirely appropriate under the broad discretion
afforded to sentencing courts, as set forth in State v.
Huey, supra, 199 Conn. 126–27, for the sentencing judge
to have considered the pending arrest warrants and
affidavits in deciding what sentence to impose in light
of the defendant’s failure to comply with the terms of
the Garvin agreement. The defendant waived his right
at the sentencing hearing to challenge whether those
warrants were supported by probable cause, and he
did not raise any challenge at sentencing concerning
the authenticity or reliability of the three warrants. The
defendant advanced no argument that the arrest war-
rants fell outside of the information properly considered
by the sentencing court. Accordingly, there is nothing
in the record before us to suggest that the warrants
lacked the requisite minimal indicium of reliability nec-
essary to be considered at sentencing.
Finally, on the basis of our thorough review of the
record, including the transcripts provided, we are satis-
fied that the court did not, as asserted by the defendant,
render de facto sentences on the robbery charges asso-
ciated with the new arrest warrants. It only considered
the three additional robbery warrants in deciding to
increase the defendant’s sentence on the his conviction
of the original robbery and persistent offender charges.
The defendant was sentenced on those additional rob-
bery charges only after he formally was arrested and
had voluntarily entered Alford pleas.
In arguing otherwise, the defendant relies on certain
statements made by the sentencing judge at his arraign-
ment and sentencing on the three robbery charges. In
particular, the defendant references the court’s state-
ment that it had ‘‘already given [him] the time for these
three robberies when [it] upped [him] from fourteen to
twenty-two.’’ Although we are aware that the colloquial
language used by the court, read in isolation, could
be misunderstood, we disagree with the defendant’s
interpretation that the eight year increase in his sen-
tence on the original robbery and persistent offender
charges included additional time directly associated
with the three subsequent robberies. In context, the
court merely was attempting to explain the basis for
its decision to render relatively short and concurrent
sentences for those later robberies following the defen-
dant’s Alford pleas. Because the court already had fac-
tored in the defendant’s additional criminal conduct at
the time it imposed the earlier sentence, it exercised its
discretion to limit the additional sentences accordingly.
There is simply no merit to the defendant’s claim that
the court sentenced him for the robberies prior to taking
his plea on those charges.
We note that the trial court, having properly rejected
the arguments raised in the defendant’s motion on their
merits, technically should have denied rather than dis-
missed the motion to correct. Only if a defendant fails
to state a claim that brings a motion within the purview
of Practice Book § 43-22 should a court dismiss the
motion for lack of jurisdiction. Here, the court never
made a determination that the motion was jurisdiction-
ally defective. Moreover, the defendant’s motion did
not merely raise a collateral attack on the judgment of
conviction, but, on its face, attacked the legality of the
sentence and/or the manner in which his sentence was
imposed. Accordingly, the motion properly invoked the
court’s jurisdiction, and, thus, the form of the judgment
is incorrect. See State v. McClean, 167 Conn. App. 781,
785, 144 A.3d 490 (2016).
The form of the judgment is improper, the judgment
dismissing the defendant’s motion to correct an illegal
sentence is reversed and the case is remanded with
direction to render judgment denying the defendant’s
motion.
In this opinion the other judges concurred.
* Following oral argument, we stayed this appeal sua sponte, absent objec-
tion by the parties, pending our Supreme Court’s decision in State v. Francis,
322 Conn. 247, 140 A.3d 927 (2016). The issue before the court in Francis
was whether this court properly had determined that a trial court must
follow procedures similar to those set forth in Anders v. California, 386
U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), before permitting counsel to
withdraw from postconviction representation of a defendant in proceedings
regarding a motion to correct an illegal sentence. On August 3, 2016, follow-
ing the official release of the Supreme Court’s decision in Francis, we lifted
our stay and provided the parties with an opportunity to submit simultaneous
supplemental briefs addressing the effect, if any, of the Francis decision
on the claims raised in this appeal.
1
‘‘A Garvin agreement is a conditional plea agreement that has two possi-
ble binding outcomes, one that results from the defendant’s compliance
with the conditions of the plea agreement and one that is triggered by
his violation of a condition of the agreement.’’ (Internal quotation marks
omitted.) State v. Stevens, 278 Conn. 1, 7, 895 A.2d 771 (2006).
2
The defendant also admitted to a violation of probation. The defendant
previously was convicted in 2003 of robbery in the first degree for which
he received a sentence of four years suspended after eighteen months,
followed by thirty months of probation.
3
The court explained the terms as follows: ‘‘If you’re not here on that
date or if you pick up a new arrest, I read the police report, there’s probable
cause for the arrest, you’re exposed to forty-two and one half years, of
which ten is mandatory. Understand that?’’ To which, the defendant
responded: ‘‘Yes, Your Honor.’’ The court reiterated: ‘‘Make sure you’re here
and no new arrests.’’
4
In State v. Stevens, 278 Conn. 1, 11–13, 895 A.2d 771 (2006), our Supreme
Court held that an enhanced sentence that is imposed on the basis of a
defendant’s arrest on new charges prior to sentencing in violation of a
Garvin agreement does not violate due process provided that the defendant
is given an opportunity to contest whether any such subsequent arrest
was supported by probable cause. See also Council v. Commissioner of
Correction, 286 Conn. 477, 483–84 n.9, 944 A.2d 340 (2008).
5
At that time, the three arrest warrants had not been served; however,
the state later executed the warrants and charged the defendant with three
counts of first degree robbery in violation of § 53a-134 (a) (4).
6
We note that Judge Damiani incorrectly recalled the precise terms of
the Garvin agreement, which had an upper limit of eighteen years, not
twenty. The court’s failure to recall the precise terms, however, was inconse-
quential to the proceedings then before the court, and the error has not
been raised by the parties in the present appeal.
7
See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
8
Pursuant to our Supreme Court’s decision in Casiano, ‘‘[a]lthough the
[federal constitutional] right to appointed counsel extends to the first appeal
[as] of right, and no further . . . in Connecticut, a defendant who wishes
to file a motion to correct an illegal sentence has a [statutory] right [under
§ 51-296 (a)] to the appointment of counsel for the purpose of determining
whether . . . [there exists] a sound basis for doing so. If appointed counsel
determines that such a basis exists, the defendant also has the right to the
assistance of such counsel for the purpose of preparing and filing such a
motion and, thereafter, for the purpose of any direct appeal from the denial of
that motion.’’ (Citation omitted; footnote omitted; internal quotation marks
omitted.) State v. Francis, 322 Conn. 247, 260, 140 A.3d 927 (2016).
9
The January 30, 2013 colloquy between the court and the parties was
as follows:
‘‘Attorney Yamin: Good morning, Joseph Yamin for Mr. Yates . . . . As
Your Honor, as discussed in chambers, I was appointed pursuant to State
v. Casiano to review Mr. Yates’ motion to correct an illegal sentence. I have
done so. I researched the issues brought up in that motion. At this point in
time, I do not find a sound basis for going forward.
‘‘The Court: So Attorney [Yamin], have you already talked to the
[defendant]?
‘‘Attorney Yamin: I have, Your Honor. I spoke with him yesterday.
‘‘The Court: All right. Mr. Yates, that doesn’t foreclose you from going
forward at some point. If you want to continue for the purposes of a hearing,
but Attorney [Yamin] has found there’s no merit under the guidelines with
respect to the motion [to correct an] illegal sentence.
The first issue is always whether or not this court even has jurisdiction.
At this juncture Attorney [Yamin], after a Casiano review, finds there’s no
merit. So the motion, if this is by way [of] a motion to withdraw, that would
be granted.
‘‘Attorney Yamin: He wants me to make clear, Your Honor, that I’m finding
there’s no sound basis for me to go forward as his attorney.
‘‘The Defendant: There could be merit but there’s not foundation.
‘‘The Court: What’s that?
‘‘The Defendant: There could be merit but not a sound basis.
‘‘The Court: After his review he found that there’s no merit to the claim,
I’m assuming that’s what you’re saying.
‘‘Attorney Yamin: Pursuant to Casiano, Your Honor, I’m finding no reason
for me to go forward, that’s correct.
‘‘The Court: All right. So, Mr. Yates, I’m going to put this down for a
hearing, if you wanted to go forward.
‘‘The Defendant: Yes, Your Honor. I would want to go forward with this.
I will ask for a two month continuance.
‘‘The Court: Well, it’s going to be longer than that.
‘‘The Defendant: Longer than that. I need time to prepare to go for the
case law to find everything on illegal sentence.
‘‘The Court: Not a problem.
‘‘The Defendant: And adequate time.
‘‘The Court: I’m going to put you down for March 13 at 2 p.m.
‘‘The Defendant: All right. Thank you very much.’’
Although the court gave the defendant a six week continuance after
indicating that the continuance was ‘‘going to be longer’’ than the two months
requested, the defendant does not raise this as a claim of error on appeal
or suggest that he needed additional time to prepare.
10
Although our Supreme Court reversed the decision of this court, it
nevertheless also determined that the trial court had failed to comply prop-
erly with Casiano in the first instance by not appointing counsel to review
the defendant’s motion to correct an illegal sentence to determine whether
there was a sound basis for bringing the motion. State v. Francis, supra,
322 Conn. 259. Counsel in Francis was ‘‘advised of the defendant’s motion
by the [court clerk] prior to the case being called, and he reviewed the
motion and certain other, unspecified files in his office, never describing
in detail to the court the substance of any discussions with the defendant
about the claims he wished to make in his motion.’’ (Internal quotation
marks omitted.) Id., 268. The Supreme Court determined that the trial court’s
error was not harmless because the defendant may have been entitled to
assistance in preparing the motion, and because such assistance might have
aided the defendant in identifying a meritorious claim. Id., 269. The court
remanded the case to this court with direction to remand the case to the
trial court so that counsel could be appointed to represent the defendant
in connection with his motion to correct an illegal sentence. Id., 270.
11
‘‘An illegal sentence is essentially one which either exceeds the relevant
statutory maximum limits, violates a defendant’s right against double jeop-
ardy, 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 violates [a] defendant’s right . . .
to be addressed personally 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 . . . .’’ (Citation omitted;
internal quotation marks omitted.) State v. Parker, 295 Conn. 825, 839, 992
A.2d 1103 (2010).
12
The record indicates that there was also some discussion between the
parties and the court in chambers, but no details of that discussion were
set forth on the record, and, thus, the record is unclear whether the merits
of the motion or the rationale for counsel’s sound basis determination were
discussed at that time.
13
It is important to note that counsel and trial courts should heed the
importance of ensuring that the record contains more than a conclusory
statement that there is no sound basis for a motion to correct an illegal
sentence before permitting counsel to withdraw. As our Supreme Court
stated in Francis, counsel should provide the reasons for such a conclusion
both to the court and to the client.