State v. Ward

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STATE V. WARD—DISSENT

SHELDON, J., concurring in part and dissenting in
part. I agree with my colleagues’ determination, in part
I of their majority opinion, that the defendant’s first
claim of error—an unpreserved claim that the trial court
improperly failed to refer his motion to correct an illegal
sentence to the judge who imposed the challenged sen-
tence upon him—is not reviewable and reversible under
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
(1989), as modified by In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1188 (2015), for the reasons stated in this
court’s recent decision in State v. Battle, 192 Conn. App.
128, 146-47, A.3d (2019).1 As for the defendant’s
second, and principal, claim, however—that the trial
court erred in dismissing his motion to correct for lack
of subject matter jurisdiction because the motion pur-
portedly challenged only the legality of his underlying
conviction rather than the legality of the manner in
which his sentence was imposed—I disagree with that
portion of the majority’s decision, in part II thereof,
which concludes that, despite legal error in the trial
court’s jurisdictional analysis, its judgment of dismissal
should be affirmed on the alternative ground that the
claims pleaded in the motion to correct are not color-
able claims. Concluding, as I do, that the defendant’s
motion to correct does state a colorable claim that he
was incompetent at the time he was sentenced, which
this court has recognized as a valid legal basis for mov-
ing to correct a sentence on the ground that it was
imposed in an illegal manner; see State v. Mukhtaar,
189 Conn. App. 144, 150 n.6., 207 A.3d 29 (2019); I would
reverse the judgment of the trial court and remand this
case for further proceedings on that potentially viable
aspect of the defendant’s motion to correct. I respect-
fully dissent from the majority’s conclusion to the
contrary.
‘‘[F]or the trial court to have jurisdiction over a defen-
dant’s motion to correct a sentence that was imposed
in an illegal manner, the defendant must put forth a
colorable claim that his sentence, in fact, was imposed
in an illegal manner. A colorable claim is [a] claim that
is legitimate and that may reasonably be asserted, given
the facts presented and the current law (or a reasonable
and logical extension or modification of the current
law). . . . For jurisdictional purposes, to establish a
colorable claim, a party must demonstrate that there
is a possibility, rather than a certainty, that a factual
basis necessary to establish jurisdiction exists.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Jason B., 176 Conn. App. 236, 245, 170 A.3d 139
(2017). ‘‘A colorable claim is one that is superficially
well founded but that may ultimately be deemed invalid
. . . . For a claim to be colorable, the defendant need
not convince the trial court that he necessarily will
prevail; he must demonstrate simply that he might pre-
vail.’’ (Emphasis omitted; internal quotation marks
omitted.) State v. Evans, 329 Conn. 770, 784, 189 A.3d
1184 (2018), cert. denied, U.S. , 139 S. Ct. 1304,
203 L. Ed. 2d 425 (2019).
To assess the colorability of a claim presented in a
motion to correct, the court must examine the facts
pleaded in the motion and in the documents and materi-
als attached to the motion and/or relied on therein.
Upon viewing such pleaded facts in the light most favor-
able to sustaining its exercise of jurisdiction over the
claims based on them; see Keller v. Beckenstein, 305
Conn. 523, 531, 46 A.3d 102 (2012) (‘‘[i]t is well estab-
lished that, in determining whether a court has subject
matter jurisdiction, every presumption favoring juris-
diction should be indulged’’); the court must exercise
jurisdiction over any claim it finds to be colorable,
because such pleaded facts, if proved, establish a possi-
bility that jurisdiction over the claim exists.
In his motion to correct, the defendant expressly
claimed that he was sentenced in an illegal manner
because he was incompetent at the time of sentencing.
He filed the motion along with a detailed memorandum
of law in which he argued both his incompetency at
sentencing claim and an alternative claim that the sen-
tencing court sentenced him in an illegal manner by
failing to order, sua sponte, that his mental competency
be evaluated by mental health professionals before it
sentenced him. The defendant argued both claims in
his memorandum on the basis of an extensive set of
records and materials, all attached to his memorandum,
which documented his lengthy history of suffering from
and receiving treatment for paranoid schizophrenia, a
serious mental illness that had sometimes caused him
to experience hallucinations.
The defendant recounted in his memorandum that
at his sentencing hearing, there was discussion of his
psychiatric background, including his diagnosis of para-
noid schizophrenia, by both the prosecutor and his
defense attorney. The court, he noted, was presented
with a report from his forensic psychiatrist, Dr. Peter
Morgan, who stated that he had ‘‘suffered from the
psychotic symptoms for many years without treatment,
and this may contribute to an increased likelihood of
worse symptoms, more chronic symptoms and/or more
frequent exacerbations of symptoms.’’ The defendant
further noted that his attorney had told the court that
he had been receiving mental health treatment while
incarcerated, which included the administration of anti-
psychotic medication. He also reported that his attorney
had told the court at sentencing that his symptoms had
improved to the point that he was then ‘‘calm, rational,
and understood and appreciated the seriousness of
the situation.’’
Notwithstanding his attorney’s foregoing representa-
tions to the court as to the course of his treatment
while incarcerated and improving mental health at the
time of sentencing, the defendant argued in his memo-
randum that substantial additional evidence had
become available since the date of sentencing that shed
new and important light on the course of his mental
illness and psychiatric treatment prior to sentencing.
The defendant argued that this new information, which
was set forth in the documents and materials attached
to his memorandum, demonstrated that he may not
have been competent when he was sentenced despite
his counsel’s reassuring observations to the contrary.
He claimed, more particularly, that the following events,
all documented in attached records from the Depart-
ment of Correction (department), demonstrated that he
may have lacked a rational and factual understanding
of the proceedings against him on the date he was
sentenced. First, before he entered his guilty plea on
June 25, 2012, the clinical records of the department
reported that he had missed several doses of his pre-
scribed anti-psychotic medication. Second, although he
had agreed with the state to plead guilty to manslaugh-
ter in the first degree and assault in the first degree in
exchange for a total effective sentence of twenty-five
years of incarceration, he told department staff that he
had agreed to a sentence of twenty years in exchange
for a guilty plea to murder. Third, in the period following
his guilty plea but before his sentencing on July 23,
2012, department records reported that the defendant
was continuing to miss doses of his prescribed anti-
psychotic medication intermittently, and at times
reported experiencing auditory hallucinations. Fourth,
in that same time frame, he again misstated the terms
of his plea agreement, reporting incorrectly that he
would be sentenced to twenty years of incarceration
on the charge of manslaughter. Fifth, approximately
one month after he was sentenced to a term of twenty-
five years of incarceration, he told his mental health
treaters a third time that he was confused about his
sentence, informing a department social worker that
he was then serving a thirty year sentence for man-
slaughter.
On the basis of the foregoing facts, I agree with the
majority’s conclusion that the defendant failed to put
forth a colorable claim that the trial court was required
to inquire into his competence on the date he was sen-
tenced based on the facts before it at that time.2 I
believe, however, that the defendant did put forth a
colorable claim that he was incompetent in fact at the
time of sentencing based primarily upon the new facts,
which were documented in department records that
had first come to light after the date of his sentencing.
The distinction between the two claims for this purpose
lies in the difference between the more limited informa-
tion that was known to the sentencing court on the
date of sentencing and the fuller factual record that was
presented to the trial court in support of the defendant’s
motion to correct.
On the basis of the record before the sentencing
court, which included defense counsel’s contemporane-
ous report as to the defendant’s ongoing treatment regi-
men and improving lucidity, I would agree with the
state and the majority that the sentencing court had
no obligation to order a competency evaluation, sua
sponte, because there was insufficient evidence before
the court to raise a reasonable doubt that he then lacked
a rational and factual understanding of the proceedings
against him, and thus was incompetent. See State v.
Yeaw, 162 Conn. App. 382, 389–90, 131 A.3d 1172 (2016).
By contrast, the additional, well documented facts pre-
sented to the trial court in the motion to correct con-
cerning the defendant’s failure to take his prescribed
anti-psychotic medication in the weeks before he was
sentenced, his contemporaneous experiencing of audi-
tory hallucinations and his confusion, before and after
he was sentenced, about the terms of his plea bargain
and the length of his sentence, both as agreed to and
as imposed, raise at least a genuine possibility that
when he was sentenced he was incompetent because
he lacked a rational and factual understanding of the
proceedings against him due to his ongoing mental
illness.
In announcing its decision that the defendant’s claim
that he was incompetent when he was sentenced was
not colorable, the majority wrote that ‘‘the statements
reportedly made by the defendant before and after his
sentencing suggesting that he misunderstood the length
of his sentence cannot be viewed rationally as establish-
ing that he was not competent at the time of sentenc-
ing.’’ Insofar as the majority’s conclusion suggests that
the defendant had the burden of proving that he was
not competent at the time of sentencing in order for
his claim to be considered colorable, it is simply incor-
rect. The defendant need not convince the court that he
will prevail on his claim, nor even that he will probably
prevail on it, for the claim to be considered colorable;
rather, he need only demonstrate that if the facts he
had pleaded in support of the claim are proved, there
is a possibility that he will prevail on that claim.3 Insofar
as the majority’s conclusion can be read as a determina-
tion that the facts pleaded by the defendant, if proved,
would be insufficient to raise even the possibility that
he was incompetent at the time of sentencing, I respect-
fully disagree. Considered in light of the defendant’s
lengthy mental health history, his documented state-
ments expressing confusion about the nature of his plea
agreement and the length of his sentence, his docu-
mented failure to follow his treatment regimen in the
weeks before he was sentenced and his contemporane-
ous experiencing of auditory hallucinations, combine
to raise at least the possibility that he was incompetent
when he was sentenced, and are thus sufficient to put
forth a colorable claim that his sentence was imposed
in an illegal manner.
For the foregoing reasons, I would conclude that the
court erred in dismissing the defendant’s motion to
correct, and would reverse the judgment of the trial
court and remand this case for further proceedings on
the defendant’s colorable claim that he was sentenced
in an illegal manner because he was incompetent when
he was sentenced. Therefore, I respectfully dissent from
part II of the majority opinion.
1
Although I do not believe that the majority has reason to reach and decide
the claim discussed in part I of their opinion, in light of their conclusion in
part II of the opinion that the trial court lacked subject matter jurisdiction
over the defendant’s principal claim, I would reach that issue and dispose
of it as the majority has done due to its likelihood of arising on remand if
the court ordered remand as I have proposed.
2
I note that the state argues that the defendant’s claim that he was incom-
petent when he was sentenced, as evidenced by information that was never
before the sentencing court, does not fall within the purview of Practice
Book § 43-22 because the claim does not relate to any alleged error on the
part of the sentencing court. In support of its argument, the state cites State
v. Parker, 295 Conn. 825, 992 A.2d 1103 (2010), for the proposition that a
trial court lacks subject matter jurisdiction to consider a defendant’s motion
to correct when the motion does not relate to any improper action by the
trial court. Thus, the state argues that without evidence that the sentencing
court knew of the information in the department’s records at the time of
sentencing, the defendant could not have been sentenced in an illegal man-
ner. The state’s reliance on Parker is misplaced. It is axiomatic that there
are claims that fall within the purview of Practice Book § 43-22 that do not
require the court to have had knowledge of the alleged error. For example, a
judge who relies on materially untrue or unreliable information at sentencing
imposes sentence in an illegal manner even though he or she does not then
know that the information so relied on is inaccurate. See e.g., Townsend v.
Burke, 334 U.S. 736, 741, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948). Therefore, I
reject the state’s assertion that the court must have had knowledge of the
additional evidence raised in the motion to correct at the time of sentencing
for his claim to be colorable.
3
Similarly, the state has argued that the defendant failed to set forth a
colorable claim that he was incompetent at sentencing because existing law
presumes a defendant’s competence; see General Statutes § 54-56d. This
argument is also unavailing. The state asserts that the facts cited by the
defendant in support of his claim may establish that he suffered from mental
health issues, but are insufficient to overcome the presumption of compe-
tence to establish a colorable claim. The state’s argument suggests that in
order to establish jurisdiction for his motion to correct, the defendant is
required to prove the merits of his claim, which in the present case would
have required him to overcome the presumption of competence. As this
court recently explained in State v. Jason B., supra, 176 Conn. App. 244:
‘‘At issue is 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 sen-
tence.’’ (Emphasis altered). The state misconstrues this language to suggest
that a defendant must prove that he would succeed on the merits of his
motion to correct before it may be heard. This is not so. In order to establish
subject matter jurisdiction over the motion to correct, the defendant needed
only to present sufficient facts to establish that his claim of incompetence
is a ‘‘possibility, rather than a certainty’’; State v. Jason B., supra, 245; and
is ‘‘superficially well founded but may ultimately be deemed invalid.’’ State
v. Evans, supra, 329 Conn. 784.