State v. Sinchak

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State v. Sinchak

STATE OF CONNECTICUT v. ANTHONY SINCHAK
(AC 47303)
Bright, C. J., and Elgo and Moll, Js.

Syllabus

The defendant filed a motion with this court to dismiss the state’s appeal
from the decision of the trial court granting the defendant’s motion to correct
an illegal sentence. The defendant claimed that the appeal, which was taken
before he was resentenced, was not from a final judgment. This court granted
the defendant’s motion and subsequently issued its opinion. Held:

This court dismissed the appeal for lack of subject matter jurisdiction, as
the trial court’s decision granting the defendant’s motion to correct an illegal
sentence was an interlocutory order and not an immediately appealable
final judgment.
Considered September 4—officially released November 5, 2024

Procedural History

Substitute information charging the defendant with
one count of the crime of murder and with two counts
of the crime of kidnapping in the first degree, brought
to the Superior Court in the judicial district of Water-
bury and tried to the jury before Murray, J.; verdict
and judgment of guilty; thereafter, the court, Preleski,
J., granted the defendant’s motion to correct an illegal
sentence; subsequently, the court, Preleski, J., denied
the state’s motion for permission to appeal, and the
state appealed to this court; thereafter, the defendant
filed a motion to dismiss the appeal. Appeal dismissed.
John Cizik, Jr., and Laila M. G. Haswell, senior assis-
tant public defenders, in support of the motion.
Timothy F. Costello, supervisory assistant state’s
attorney, in opposition to the motion.
Opinion

BRIGHT, C. J. The state appeals from the orders of
the trial court granting a motion to correct an illegal
sentence filed by the defendant, Anthony Sinchak, and
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State v. Sinchak

denying the state’s motion for permission to appeal
from that decision because the defendant has not yet
been resentenced. The defendant moved to dismiss the
appeal because it is not from a final judgment. The state
claims that the orders are immediately appealable. We
disagree with the state and, therefore, we have granted
the defendant’s motion to dismiss.1
The record reveals the following relevant facts and
procedural history. On April 21, 1995, following a jury
trial, the court accepted a verdict of guilty of one count
of murder in violation of General Statutes § 53a-54a,
and two counts of kidnapping in the first degree in
violation of General Statutes § 53a-92 (a) (2) (B).
On July 20, 1995, the court, Murray, J., conducted a
sentencing hearing. Of relevance to the present matter,
the transcript reflects that, during the hearing, defense
counsel did not make any advocacy statement whatso-
ever on behalf of the defendant. Instead, defense coun-
sel stated, ‘‘I’m handing the court a handwritten state-
ment of the defendant regarding the—for the jury
verdict case, and we have no other comments as far as
sentencing is concerned.’’ The state and the victim’s
family advocated for their sentencing recommenda-
tions, spanning ten pages of the transcript. Defense
counsel responded, ‘‘I have no comment.’’ The court
sentenced the defendant to sixty years of incarceration
for the murder and eighteen years of incarceration on
each of the two counts of kidnapping, to run consecu-
tively, for a total effective sentence of ninety-six years
of incarceration. This court affirmed the judgment of
conviction in 1997, and our Supreme Court granted
certification to appeal, but subsequently dismissed the
appeal as improvidently granted. State v. Sinchak, 47
1
On September 4, 2024, this court granted the defendant’s motion to
dismiss the appeal and indicated that an opinion would follow. This opinion
explains the reasons for our determination.
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State v. Sinchak

Conn. App. 134, 703 A.2d 790 (1997), appeal dismissed,
247 Conn. 440, 721 A.2d 1193 (1999).
Thereafter, the defendant filed a series of motions
and petitions challenging his sentencing and confine-
ment.2 Among them, the defendant filed a habeas corpus
petition in 2000 claiming that defense counsel was inef-
fective for his failure to speak on the defendant’s behalf
at sentencing. The habeas court denied that claim, con-
cluding that the defendant failed to prove prejudice
because he did not identify any specific fact or argument
that competent counsel would have submitted. See Sin-
chak v. Commissioner of Correction, 126 Conn. App.
670, 681, 14 A.3d 348, cert. denied, 301 Conn. 901, 17
A.3d 1045 (2011). This court dismissed the defendant’s
appeal from the habeas court’s judgment; id., 683; and
the Supreme Court denied certification to appeal. Sin-
chak v. Commissioner of Correction, 301 Conn. 901,
17 A.3d 1045 (2011).
On June 20, 2023, the defendant filed the underlying
motion to correct an illegal sentence and request for
new sentencing, pursuant to Practice Book § 43-22. The
defendant argued, among other things, that defense
counsel provided no advocacy regarding mitigation at
his sentencing hearing. On July 5, 2023, the state filed
its objection.
Following a hearing on the matter, the trial court,
Preleski, J., granted the motion to correct and ordered a
2
See, e.g., Sinchak v. Warden, Superior Court, judicial district of Tolland,
Docket No. CV-XX-XXXXXXX-S (June 29, 2007) (habeas petition denied); Sin-
chak v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-
XX-XXXXXXX-S (August 28, 2014) (habeas petition denied); Sinchak v. Strange,
United States District Court, Docket No. 3:00-cv-00034 (SRU) (D. Conn.
August 29, 2017) (habeas petition dismissed); Sinchak v. Commissioner of
Correction, 173 Conn. App. 352, 355, 163 A.3d 1208 (affirming denial of
habeas petition), cert. denied, 327 Conn. 901, 169 A.3d 796 (2017); State v.
Sinchak, 205 Conn. App. 346, 367, 256 A.3d 671 (affirming denial of motion
to correct illegal sentence alleging vindictive or retaliatory motive by sen-
tencing judge), cert. denied, 338 Conn. 914, 259 A.3d 1179 (2021).
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new sentencing hearing. In its memorandum of decision
issued on December 27, 2023, the court concluded that
the defendant was effectively abandoned by defense
counsel at his sentencing, in deprivation of his sixth
amendment right to counsel at a critical stage of the
proceedings.
On January 4, 2024, the state, pursuant to General
Statutes § 54-963 and Practice Book § 61-6 (b),4 filed a
motion for permission to appeal. On January 10, 2024,
the defendant filed an objection arguing a lack of appel-
late jurisdiction arising from a lack of finality because
the trial court had not yet resentenced him. In denying
the state’s motion on January 11, 2024, the court rea-
soned that the ‘‘granting [of] a motion to correct an
illegal sentence is not a final judgment from which an
appeal may be taken. It becomes a final judgment upon
resentencing. It is the imposition of sentence that con-
stitutes a final judgment in a criminal matter.’’ This
appeal followed.
As of the date that the state filed its appeal, January
23, 2024, the trial court had not resentenced the defen-
dant. On May 29, 2024, the defendant filed this motion to
dismiss the appeal for lack of subject matter jurisdiction
due to the lack of a final judgment. See Practice Book
§ 66-8 (motion to dismiss challenging this court’s juris-
diction may be filed at any time). On June 7, 2024,
the state timely filed its opposition. For the following
reasons, we conclude that the appeal must be dismissed
for lack of subject matter jurisdiction because the trial
3
General Statutes § 54-96 provides: ‘‘Appeals from the rulings and deci-
sions of the Superior Court, upon all questions of law arising on the trial
of criminal cases, may be taken by the state, with the permission of the
presiding judge, to the Supreme Court or to the Appellate Court, in the same
manner and to the same effect as if made by the accused.’’
4
Practice Book § 61-6 (b) provides in relevant part: ‘‘The state, with the
permission of the presiding judge of the trial court and as provided by law,
may appeal from a final judgment. . . .’’
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State v. Sinchak

court had not resentenced the defendant before the
appeal was filed.5
We begin our analysis by recognizing that ‘‘[t]he lack
of a final judgment implicates the subject matter juris-
diction of an appellate court to hear an appeal. A deter-
mination regarding . . . subject matter jurisdiction is
a question of law . . . . We commence the discussion
of our appellate jurisdiction by recognizing that there
is no constitutional right to an appeal . . . . Article
fifth, § 1, of the Connecticut constitution provides for
a Supreme Court, a Superior Court and such lower
courts as the [G]eneral [A]ssembly shall . . . ordain
and establish, and that [t]he powers and jurisdiction of
these courts shall be defined by law. . . . To consider
the . . . claims [raised in the motion to dismiss], we
must apply the law governing our appellate jurisdiction,
which is statutory. . . . The legislature has enacted
. . . [General Statutes] § 52-263, which limits the right
of appeal to those appeals filed by aggrieved parties on
issues of law from final judgments.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.)
Smith v. Supple, 346 Conn. 928, 936–37, 293 A.3d 851
(2023).
‘‘Adherence to the final judgment rule is not dictated
by legislative fiat alone. It has long been this court’s
policy to discourage piecemeal appeals, particularly in
criminal proceedings. . . . The appealable final judg-
ment in a criminal case is ordinarily the imposition of
sentence.’’ (Citations omitted; internal quotation marks
omitted.) State v. Curcio, 191 Conn. 27, 30–31, 463 A.2d
566 (1983). An otherwise interlocutory order is consid-
ered a final judgment pursuant to § 52-263 and for pur-
5
At the time this court issued its order granting the motion to dismiss,
the defendant had not been resentenced, and the state had not filed an
amended appeal from any such judgment. Had the defendant been resen-
tenced during the pendency of this appeal, however, the state could have
filed an amended appeal from that final judgment, pursuant to Practice Book
§ 61-9, and that amended appeal would have been jurisdictionally proper.
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State v. Sinchak

poses of appeal ‘‘(1) where the order or action termi-
nates a separate and distinct proceeding, or (2) where
the order or action so concludes the rights of the parties
that further proceedings cannot affect them.’’ Id., 31. By
contrast, an interlocutory order is not a final judgment
if it is ‘‘merely a step along the road to final judgment.’’
(Internal quotation marks omitted.) Hartford Acci-
dent & Indemnity Co. v. Ace American Reinsurance
Co., 279 Conn. 220, 226, 901 A.2d 1164 (2006).
On granting a motion to correct an illegal sentence,
the ‘‘court possesses the sole authority . . . [to] resen-
tence a defendant if it is determined that the original
sentence was illegal.’’ (Internal quotation marks omit-
ted.) State v. Casiano, 282 Conn. 614, 625, 922 A.2d
1065 (2007). Our appellate courts have jurisdiction to
consider an appeal from the granting of a motion to
correct an illegal sentence after resentencing. See, e.g.,
State v. Jason B., 320 Conn. 259, 261, 128 A.3d 937
(2016) (considering defendant’s appeal and state’s cross
appeal from order partially granting defendant’s motion
to correct illegal sentence and subsequent resentenc-
ing). Neither our Supreme Court nor this court has
addressed, however, whether the state can appeal from
the granting of a motion to correct an illegal sentence
before the defendant has been resentenced.
That is the situation that confronts us in the present
case, where the trial court only identified a sentencing
error but did not resentence the defendant. The court
therefore had not yet determined whether that error
would have any impact on the defendant’s sentence
before the state filed this appeal.6
The state, although recognizing the general rule that
the final judgment in a criminal case occurs upon the
6
It follows that the state—and, for that matter, the defendant—cannot
know whether it will be aggrieved by the new sentence and, if so, the
grounds on which the new sentence may be challenged on appeal.
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imposition of sentence, argues ‘‘that the granting of a
motion to correct a sentence imposed in an illegal man-
ner, which upsets a prior final judgment, is a final judg-
ment for purposes of appeal and that the state, victims,
and/or their survivors should not be required [to] litigate
a new sentencing proceeding many years after the fact
before the state may appeal the granting of the motion.’’
In support of this argument, the state relies on our
Supreme Court’s decision in Solomon v. Keiser, 212
Conn. 741, 562 A.2d 524 (1989), in which the court
recognized a limited exception to the ‘‘well established
[rule] that an order opening a judgment ordinarily is
not a final judgment within § 52-263.’’ Id., 746. That
exception is ‘‘where the appeal challenges the power
of the court to act to set aside the judgment.’’ (Internal
quotation marks omitted.) Id., 747. Our Supreme Court
has further explained that this narrow exception applies
only when there is a colorable claim that the trial court
lacked jurisdiction to act altogether, as opposed to a
claim that the court abused its discretion in acting
within its established jurisdiction. See Wolfork v. Yale
Medical Group, 335 Conn. 448, 463–65, 239 A.3d 272
(2020) (distinguishing immediately appealable color-
able claim that trial court lacked jurisdiction from claim
of incorrect decision made in course of exercising its
jurisdiction).
In the present case, the state does not argue that the
trial court lacked jurisdiction to grant the defendant’s
motion to correct an illegal sentence. In fact, as the
state acknowledges, Practice Book § 43-22 expressly
authorizes the trial court to entertain such motions ‘‘at
any time.’’ The state simply disagrees with the court’s
conclusion that the defendant’s sentence was illegal
and does not make any colorable claim that the court
did not have jurisdiction to grant the defendant’s
motion. For this reason, the state’s reliance on Solomon
and its progeny is misplaced.
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Alternatively, the state argues that the court’s order
satisfies both prongs of Curcio. To satisfy the first prong
of Curcio, the order or action must terminate a separate
and distinct proceeding. State v. Curcio, supra, 191
Conn. 31. The state argues that this prong is satisfied
because the correction of an illegal sentence is separate
and distinct from the matters determined in the defen-
dant’s long final criminal judgment. The state’s argu-
ment misses the mark. The question is not whether the
defendant’s motion to correct is a separate and distinct
proceeding from the underlying criminal judgment. The
issue is whether the court’s granting of the motion ‘‘ter-
minates’’ the proceeding. Clearly it does not. The pro-
ceeding will not be terminated until the defendant is
resentenced. Accordingly, the court’s decision does not
satisfy the first prong of Curcio.
To satisfy the second prong of Curcio, the rights of
the appellant must be so concluded by the order that
further proceedings cannot affect it. Id. ‘‘The second
prong of the Curcio test focuses on the nature of the
right involved. It requires the parties seeking to appeal
to establish that the trial court’s order threatens the
preservation of a right already secured to them and that
that right will be irretrievably lost and the [parties]
irreparably harmed unless they may immediately
appeal. . . . Thus, a bald assertion that [the appellant]
will be irreparably harmed if appellate review is delayed
until final adjudication . . . is insufficient to make an
otherwise interlocutory order a final judgment. One
must make at least a colorable claim that some recog-
nized statutory or constitutional right is at risk.’’ (Inter-
nal quotation marks omitted.) Hartford Accident &
Indemnity Co. v. Ace American Reinsurance Co., supra,
279 Conn. 226. The state argues that the correction of
an illegal sentence through resentencing deprives the
state, victims, and survivors of their interests in the
finality of the long final original judgment. We are not
persuaded.
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If a party’s interest in finality were a relevant factor,
the ‘‘well established’’ rule that an order granting a
motion to open is not a final judgment would not exist.
Curcio requires much more, in particular, that the
appellant show that a recognized right will be ‘‘ ‘irre-
trievably lost’ ’’ and that it will be ‘‘ ‘irreparably harmed’ ’’
if it cannot take an immediate appeal. Id. The state’s
interest in finality is not the type of recognized right
that the second prong of Curcio is intended to protect.
To the contrary, the state’s interest in seeking reversal
of the court’s order before a new sentencing hearing
is no different from that of any party that would prefer
to appeal from an interlocutory order rather than be
subject to additional proceedings necessitated by that
order. Furthermore, no interest of the state will be
irretrievably lost or irreparably harmed because it will
have a full opportunity to challenge on appeal the
court’s decision granting the motion to correct if it is
aggrieved by the defendant’s resentencing.7

We conclude that the trial court’s decision granting
the defendant’s motion to correct an illegal sentence
is not an immediately appealable final judgment, as it
does not fit within either prong of Curcio or the Solo-
mon exception to the final judgment rule. Accordingly,
this court lacks subject matter jurisdiction over this
appeal from that decision.

The appeal is dismissed.

In this opinion the other judges concurred.
7
The state also argues that Curcio’s second prong is satisfied because
‘‘the new sentencing proceeding almost certainly will not be before the
original judge who observed the criminal trial. One cannot contend that
review of the cold transcript record of the original trial and sentencing is
an adequate proxy to preserve the state’s interest in finality.’’ This argument
merits little discussion. The state will have an opportunity to make a full
presentation at the new sentencing hearing and will not be limited to present-
ing the transcripts of the original trial and sentencing.