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2 ,0 0 Conn. App. 364
State v. Bryan
STATE OF CONNECTICUT v. RYAN BRYAN
(AC 46657)
Alvord, Elgo and Clark, Js.
Syllabus
The defendant appealed from the trial court’s denial of his motion to correct
an illegal sentence. The defendant claimed, inter alia, that his guilty plea in
the underlying criminal trial to being a persistent dangerous felony offender
in violation of statute (§ 53a-40) was defective. Held:
The trial court improperly denied the defendant’s motion to correct an illegal
sentence because the motion challenged the validity of the defendant’s guilty
plea and the propriety of the plea proceedings, rather than the sentence or
sentencing proceedings, and, accordingly, the court lacked subject matter
jurisdiction over the motion and should have dismissed the motion.
This court declined to review the defendant’s unpreserved claim that the
sentencing court improperly failed to specify which portion of his sentence
was attributable to the enhancement imposed pursuant to § 53a-40.
Argued October 22—officially released November 26, 2024
Procedural History
Substitute information charging the defendant with
two counts of the crime of assault in the first degree
and with one count each of the crimes of criminal possession of a pistol or revolver, criminal possession of
a firearm, and carrying a pistol without a permit, and, in
a part B information, with being a persistent dangerous
felony offender, brought to the Superior Court in the
judicial district of New Haven, geographical area number seven, where the defendant was presented to the
court, Clifford, J., on a plea of guilty to one count of
assault in the first degree, criminal possession of a
firearm, and being a persistent dangerous felony offender;
judgment of guilty in accordance with the plea; thereafter, the state entered a nolle prosequi as to the
remaining charges; subsequently, the court, Harmon,
J., denied the defendant’s motion to correct an illegal
sentence, from which the defendant appealed to this
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State v. Bryan
court. Improper form of judgment; reversed; judgment
directed.
Ryan Bryan, self-represented, the appellant (defendant).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Alexander O. Kosakowski, Scott A. Warden, and Bharbara V. Rocha, certified
legal interns, for the appellee (state).
Opinion
PER CURIAM. The self-represented defendant, Ryan
Bryan, appeals from the judgment of the trial court
denying his motion to correct an illegal sentence filed
pursuant to Practice Book § 43-22.1 The defendant first
claims that the court erred in denying his motion
because his guilty plea to being a persistent dangerous
felony offender pursuant to General Statutes § 53a-402
1
Practice Book § 43-22 provides: ‘‘The judicial authority may at any time
correct an illegal sentence or other illegal disposition, or it may correct a
sentence imposed in an illegal manner or any other disposition made in an
illegal manner.’’
2
General Statutes § 53a-40 provides in relevant part: ‘‘(a) A persistent
dangerous felony offender is a person who . . . (1) (A) Stands convicted
of . . . assault in the first degree . . . and (B) has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence
to a term of imprisonment of more than one year or of death, in this state
or in any other state or in a federal correctional institution, for any of the . . .
crimes enumerated in subparagraph (A) of this subdivision or an attempt
to commit any of said crimes . . . .
‘‘(i) When any person has been found to be a persistent dangerous felony
offender, the court, in lieu of imposing the sentence of imprisonment authorized by the general statutes for the crime of which such person presently
stands convicted, shall (1) sentence such person to a term of imprisonment
that is not (A) less than twice the minimum term of imprisonment authorized
for such crime, or (B) more than twice the maximum term of imprisonment
authorized for such crime or forty years, whichever is greater, provided, if
a mandatory minimum term of imprisonment is authorized for such crime,
such sentence shall include a mandatory minimum term of imprisonment
that is twice such authorized mandatory minimum term of imprisonment
. . . .’’
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State v. Bryan
was defective or, in the alternative, that the court should
have dismissed his motion for lack of subject matter
jurisdiction, rather than denying it on the merits.3 Second, the defendant claims, for the first time on appeal,
that the sentencing court improperly failed to specify
which portion of his sentence was attributable to the
enhancement imposed pursuant to § 53a-40. With respect
to the first claim, we conclude that the trial court lacked
subject matter jurisdiction over the defendant’s claim
and, accordingly, that the court should have dismissed
the motion to correct. We further conclude that the
defendant is not entitled to review of his unpreserved
second claim. Accordingly, we reverse the judgment of
the trial court and remand with direction to dismiss the
defendant’s motion to correct.
The following procedural history is relevant to the
defendant’s claims.OnApril25,2018,thedefendantpleaded
guilty to assault in the first degree in violation of General
Statutes § 53a-59 (a) (1), and criminal possession of a
firearm in violation of General Statutes § 53a-217 (a)
(1). During the same plea hearing, the defendant also
pleaded guilty to a part B information charging him with
being a persistent dangerous felony offender in violation of § 53a-40 (a) (1).4 As the basis for the persistent
dangerous felony offender charge, the state alleged that
the defendant previously had been convicted of attempt
to commit assault in the first degree and that he had
The state argues both that the trial court lacked jurisdiction over the
3
motion to correct and that this court lacks jurisdiction to review the defendant’s claim on appeal. It is well established, however, that ‘‘[t]he trial
court’s lack of subject matter jurisdiction does not . . . deprive this court of
appellate jurisdiction’’ to determine whether the trial court had jurisdiction.
Finley v. Inland Wetlands Commission, 289 Conn. 12, 31 n.14,
959 A.2d
569 (2008).
4
We note that, although both parties cite to the transcripts of the plea
and sentencing proceedings in their briefs, it appears from the record that
such transcripts were not ordered or filed in accordance with Practice Book
§ 63-8. In light of our resolution of the defendant’s claims, we need not
address any issues regarding the adequacy of the record on appeal.
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State v. Bryan
been imprisoned for more than one year for such conviction. On July 18, 2018, the court, Clifford, J., sentenced the defendant to a term of seventeen years of
incarceration, ten years of which was a mandatory minimum.
On July 18, 2022, the defendant filed the instant motion
to correct an illegal sentence. The court, Harmon, J.,
held a hearing on the defendant’s motion on May 2,
2023, during which the defendant argued that he was
improperly found to be a persistent dangerous felony
offender because his guilty plea to the part B information was procedurally defective.5 Specifically, the defendant argued that, because § 53a-40 (a) (1) provides for
a sentence enhancement for a person who ‘‘stands convicted’’ of an eligible offense after having been convicted of and imprisoned for a prior eligible offense;
see footnote 2 of this opinion; the court was required
to hold a separate plea proceeding on the part B information after it had accepted his guilty plea to the eligible
offense with which he was charged in this case, namely,
assault in the first degree. The defendant further argued
that, because the court did not follow that procedure,
‘‘[it was] impossible for [him] to be considered to be a
persistent [dangerous felony] offender at [the] time [he
pleaded guilty to the part B information]’’ because he
was ‘‘not yet convicted of assault [in the first degree].’’
The defendant further claimed that the alleged impropriety in the plea proceedings violated his right to due
process. The court denied the defendant’s motion on
the record. This appeal followed.
5
Prior to the hearing, Attorney Justine Whalen was appointed as counsel
for the defendant for the limited purpose of determining whether there was
a sound basis for the motion to correct. See State v. Casiano, 282 Conn.
614, 627,
922 A.2d 1065 (2007). On April 24, 2023, Whalen filed a motion to
withdraw her appearance on the ground that she had determined there was
no sound basis for the motion to correct. At the outset of the hearing, the
court granted the motion to withdraw; thereafter, the defendant elected to
proceed in a self-represented capacity.
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State v. Bryan
The following legal principles and standard of review
are applicable to the defendant’s claims. ‘‘The determination of whether a claim may be brought via a motion
to correct an illegal sentence presents a question of law
over which our review is plenary.’’ (Internal quotation
marks omitted.) State v. Smith, 213 Conn. App. 848,
853,
279 A.3d 303, cert. denied,
345 Conn. 963,
285 A.3d
387 (2022). ‘‘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.’’ (Internal
quotation marks omitted.) Id., 853–54. ‘‘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 [proceedings]
leading to the conviction, must be the subject of the
attack.’’ (Internal quotation marks omitted.) State v.
Casiano, 122 Conn. App. 61, 68,
998 A.2d 792, cert.
denied, 298 Conn. 931,
5 A.3d 491 (2010).
‘‘Our appellate courts have held that a trial court lacks
subject matter jurisdiction over a motion to correct
challenging alleged flaws in the plea process.’’ State v.
King, 220 Conn. App. 549, 563,
300 A.3d 626, cert.
denied, 348 Conn. 918,
303 A.3d 1194 (2023); see
id.
(court lacked jurisdiction over motion to correct claiming that court failed to conduct proper canvass and
make statutorily required findings prior to accepting
plea); see also State v. Das, 291 Conn. 356, 363 n.3,
968
A.2d 367 (2009) (‘‘[t]o the extent that the defendant’s
claims are based on alleged flaws in the court’s acceptance of his plea, Practice Book § 43-22 is clearly inapplicable’’); State v. Boyd, 204 Conn. App. 446, 456–57,
253 A.3d 988 (court lacked jurisdiction over motion to
correct that was ‘‘nothing more than a collateral attack
on the plea underlying the defendant’s conviction rather
than a true challenge to the legality of the sentence
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0 Conn. App. 364 ,0 7
State v. Bryan
imposed or to the sentencing proceedings’’), cert. denied,
336 Conn. 951,
251 A.3d 617 (2021).
With respect to the defendant’s claim that his guilty
plea to being a persistent dangerous felony offender
was defective, we conclude that the court lacked jurisdiction over that claim because it challenges the validity
of the defendant’s guilty plea and the propriety of the
plea proceedings, rather than the sentence or sentencing proceedings. The defendant argues in his brief that
his ‘‘[s]entence is illegal because [his] plea on the underlying assault was not separated from the persistent [dangerous felony] offender enhancement.’’ He further argues
that ‘‘[t]o be charged with the part B information, there
has to be a separate proceeding, then the defendant
has to be canvassed for persistent [dangerous felony]
offender enhancement’’ and that ‘‘the lack of a second
canvass deprived the defendant [of] procedural due
process . . . .’’ Because the defendant’s claim ‘‘is a
collateral attack on the plea process rather than a true
challenge to the legality of his sentence or the manner
in which his sentence was imposed’’; State v. King,
supra, 220 Conn. App. 565; we conclude that the court
lacked subject matter jurisdiction over the defendant’s
motion.
With respect to the defendant’s unpreserved claim
that his sentence lacked specificity with respect to the
portion attributable to § 53a-40, the defendant seeks
review under State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989). This court, however, has declined
to grant Golding review of an unpreserved claim on
appeal from the denial of a motion to correct illegal
sentence because ‘‘[o]ur rules of practice confer the
authority to correct an illegal sentence on the trial court,
and that court is in a superior position to fashion an
appropriate remedy for an illegal sentence. . . . Furthermore, the defendant has the right, at any time, to
file a motion to correct an illegal sentence and raise
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State v. Bryan
[a] . . . claim [challenging the legality of his sentence]
before the trial court. Typically, our appellate courts
afford review under Golding . . . in circumstances in
which the failure to undertake such an extraordinary
level of review, effectively, would preclude an appellant
from obtaining any judicial review of the claim raised.
That is not the case here.’’ (Citation omitted; emphasis
in original.) State v. Starks, 121 Conn. App. 581, 592,
997 A.2d 546 (2010); see also State v. Heriberto B.,
207
Conn. App. 192, 209–10,
261 A.3d 838, cert. denied,
340
Conn. 903,
263 A.3d 100 (2021); State v. Syms,
200 Conn.
App. 55, 59–60,
238 A.3d 135 (2020); State v. Brescia,
122 Conn. App. 601, 604 n.3,
999 A.2d 848 (2010).
In the present case, the defendant may obtain review
of his claim by filing a motion to correct in the trial
court, which ‘‘is in a superior position to fashion an
appropriate remedy for an illegal sentence.’’ State v.
Starks, supra,
121 Conn. App. 592. Accordingly, we
decline to review the defendant’s unpreserved claim.6
The form of the judgment is improper; the judgment
denying the defendant’s motion to correct an illegal
sentence is reversed and the case is remanded with
direction to render a judgment of dismissal.
6
As we recognized in State v. Heriberto B., supra, 207 Conn. App. 192,
although our Supreme Court has, in other circumstances, reviewed unpreserved claims on appeal from the denial of a motion to correct; see State
v. McCleese, 333 Conn. 378, 425 n.24,
215 A.3d 1154 (2019); State v. Evans,
329 Conn. 770, 809 n.27,
189 A.3d 1184 (2018), cert. denied, U.S. ,
139 S. Ct. 1304,
203 L. Ed. 2d 425 (2019); see also State v. Arnold,
205 Conn.
App. 863, 868–69,
259 A.3d 716 (applying Golding but concluding that record
was inadequate to review unpreserved claim), cert. denied, 339 Conn. 904,
260 A.3d 1225 (2021); those cases did not overrule Starks and, therefore,
do not compel us to review the defendant’s claim. See State v. Heriberto
B., supra, 210 n.15.
