State v. Gemmell

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STATE OF CONNECTICUT v. WILLIAM GEMMELL
(AC 36059)
Lavine, Prescott and Schaller, Js.
Argued February 3—officially released March 10, 2015

(Appeal from Superior Court, judicial district of
Stamford-Norwalk, geographical area number twenty,
Dennis, J. [judgment; motion to correct].)
Deborah G. Stevenson, assigned counsel, for the
appellant (defendant).
Lisa Herskowitz, senior assistant state’s attorney,
with whom, on the brief, were David I. Cohen, state’s
attorney, and Justina Moore, assistant state’s attorney,
for the appellee (state).
Opinion

PER CURIAM. The sole issue raised in this appeal is
whether the court properly denied the motion to correct
an illegal sentence filed by the defendant, William Gem-
mell. We conclude that only the form of the judgment
is improper, and reverse the judgment and remand the
case with direction to render judgment dismissing the
defendant’s motion to correct an illegal sentence.
Following a jury trial, the defendant was convicted
of burglary in the first degree in violation of General
Statutes § 53a-101 (a) (2), home invasion in violation
of General Statutes § 53a-100aa (a) (1), brandishing a
facsimile firearm in a threatening manner in violation
of General Statutes § 53-206c (c), criminal violation of
a protective order in violation of General Statutes § 53a-
223, unlawful restraint in the second degree in violation
of General Statutes § 53a-96, and interfering with an
emergency call in violation of General Statutes § 53a-
183b. The defendant received a total effective sentence
of fifteen years of incarceration followed by ten years
of special parole. The defendant’s conviction was
affirmed on direct appeal. See State v. Gemmell, 151
Conn. App. 590, 592–93, 94 A.3d 1253, cert. denied, 314
Conn. 915, 100 A.3d 405 (2014). While that appeal was
pending, the defendant filed a motion to correct an
illegal sentence. Following a hearing on July 11, 2013,
the court, Dennis, J., denied the motion. This appeal
followed.
On the basis of our review of the record and careful
consideration of the briefs and oral argument of the
parties, we conclude that the trial court lacked jurisdic-
tion over the defendant’s motion to correct an illegal
sentence because the motion seeks to attack the validity
of the underlying conviction and, properly construed,
does not claim that an illegal sentence was imposed or
that the sentence was imposed in an illegal manner.
See State v. Saunders, 132 Conn. App. 268, 271, 50 A.3d
321 (2011), cert. denied, 303 Conn. 924, 34 A.3d 394
(2012). Because the court lacked jurisdiction, it should
have dismissed the motion rather than denied it. See
State v. Tabone, 301 Conn. 708, 715, 23 A.3d 689 (2011).
The form of the judgment is improper, the judgment
is reversed and the case is remanded with direction to
render judgment dismissing the defendant’s motion to
correct an illegal sentence.