State v. Thompson

************************************************ The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative. The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************  State v. Thompson STATE OF CONNECTICUT v. EARL THOMPSON (AC 47972) Moll, Suarez and Westbrook, Js. Syllabus The defendant, who had previously been convicted following a jury trial of the crimes of conspiracy to commit robbery in the first degree, robbery in the first degree, and kidnapping in the first degree as an accessory, appealed from the trial court’s denial of his motion to correct an illegal sentence. The defendant claimed, inter alia, that the court improperly determined that the sentencing court did not rely on materially false or unreliable information in sentencing him. Held: This court declined to review the defendant’s unpreserved claim that the trial court, in denying the motion to correct an illegal sentence, improperly determined that the sentencing court did not rely on materially false or unreliable information in sentencing him, as the defendant was pursuing a claim on appeal that the trial court was not presented with and did not address in denying the motion to correct. The trial court properly determined that the defendant’s sentence did not violate the constitutional prohibition against double jeopardy, as the defen- dant did not claim error as to the court’s determination that robbery in the first degree and conspiracy to commit robbery in the first degree are separate and distinct crimes because they each contain a statutory element that the other does not. Argued March 10—officially released August 18, 2026 Procedural History Substitute information charging the defendant with the crimes of conspiracy to commit robbery in the first degree, robbery in the first degree, and kidnapping in the first degree as an accessory, brought to the Superior Court in the judicial district of Hartford and tried to the jury before Dewey, J.; verdict and judgment of guilty; thereafter, the court, K. Doyle, J., denied the defendant’s motion to correct an illegal sentence, and the defendant appealed to this court. Affirmed. Adam B. Yagaloff, assigned counsel, for the appellant (defendant). Raynald A. Carre, deputy assistant state’s attorney, with whom, on the brief, were Sharmese L. Walcott,  State v. Thompson state’s attorney, and Danielle O’Connell, deputy assis- tant state’s attorney, for the appellee (state). Opinion MOLL, J. The defendant, Earl Thompson, appeals from the judgment of the trial court denying his amended motion to correct an illegal sentence. On appeal, the defendant claims that the trial court improperly deter- mined that (1) the sentencing court did not rely on mate- rially false or unreliable information in sentencing him and (2) his sentence did not violate the constitutional prohibition against double jeopardy.1 We affirm the judgment of the trial court. The following procedural history is relevant to our resolution of this appeal. In 2009, following a jury trial, the defendant was found guilty of conspiracy to commit robbery in the first degree in violation of General Stat- utes §§ 53a-48 and 53a-134 (a) (4), robbery in the first degree in violation of § 53a-134 (a) (4), and kidnapping in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-92 (a) (2) (B).2 In 2010, the trial court, Dewey, J., sentenced the defendant to a total effective sentence of forty-five years of incarceration, comprising (1) terms of twenty years of incarceration on each of the robbery count and the conspiracy count, to run concurrently, and (2) a term of twenty-five years 1 “The fifth amendment to the United States constitution provides in relevant part: ‘[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .’ Although our state con- stitution does not contain an explicit prohibition on double jeopardy, it is well settled that ‘the due process and personal liberty guarantees provided by article first, §§ 8 and 9, of the Connecticut constitution have been held to encompass the protection against double jeopardy.’ . . . The protection that the state constitution provides against double jeopardy is ‘coextensive with that provided by the constitution of the United States.’ ” (Citation omitted.) State v. Drakes, 321 Conn. 857, 865, 146 A.3d 21, cert. denied, 580 U.S. 927, 137 S. Ct. 321, 196 L. Ed. 2d 234 (2016). 2 A recitation of the factual background, which we need not repeat in this opinion, is set forth in State v. Thompson, 128 Conn. App. 296, 298–99, 17 A.3d 488 (2011), cert. denied, 303 Conn. 928, 36 A.3d 241 (2012).  State v. Thompson of incarceration on the kidnapping count, to run con- secutively to the other terms. This court affirmed the judgment of conviction. See State v. Thompson, 128 Conn. App. 296, 298, 17 A.3d 488 (2011), cert. denied, 303 Conn. 928, 36 A.3d 241 (2012). On January 31, 2020, the defendant, representing himself, filed a motion to correct an illegal sentence.3 Thereafter, the defendant filed several amended motions to correct an illegal sentence, culminating in an amended motion filed on November 30, 2023 (amended motion to correct). On April 4, 2024, the defendant filed a “supple- mental” memorandum in support of the amended motion to correct. On April 11, 2024, the trial court, K. Doyle, J., heard argument on the amended motion to correct.4 On May 9, 2024, the court denied the amended motion to correct. On May 19, 2024, the defendant filed a motion for reconsideration, which the court denied on July 26, 2024. This appeal followed.5 Additional facts and pro- cedural history will be set forth as necessary. I The defendant first claims that the trial court, in deny- ing the amended motion to correct, improperly deter- mined that the sentencing court did not rely on materially false or unreliable information in sentencing him. For the reasons that follow, we decline to review this claim. The following additional procedural history is rel- evant to our discussion of the defendant’s claim. Prior to 3 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.” 4 On March 11, 2024, the court held a hearing in accordance with State v. Casiano, 282 Conn. 614, 922 A.2d 1065 (2007). During the hearing, defense counsel appeared and informed the court that he had not performed a substantive review of the amended motion to correct because the defendant told him that the defendant “wanted to do it on [the defendant’s] own.” After canvassing the defendant, the court determined that he knowingly and intelligently waived his right to have counsel perform a full review of the amended motion to correct. 5 Although the defendant represented himself in litigating the amended motion to correct, he is represented by counsel on appeal.  State v. Thompson sentencing the defendant, the sentencing court stated in relevant part as follows: “Now, looking at the defendant’s record, focusing on that record, what I focused on were the violations of probation and the violations of [a] pro- tective order. Now, four violations of a protective order are an indication of an individual who doesn’t want to obey court orders for whatever reason. [Defense counsel] indicate[d] the [defendant] is a family man. Well, this family man does not obey court orders if there are four violations of protective orders and violations of proba- tion; a person who’s given a chance and chooses to violate probation. Obviously, court orders and the chances that were given are meaningless.” In the amended motion to correct, the defendant con- tended that the sentencing court imposed his sentence in an illegal manner because it relied on inaccurate infor- mation. The defendant maintained, inter alia, that the sentencing court’s statement that he was “ ‘an individual who doesn’t want to obey court orders’ ” and “the court’s focus on the limited information in the [presentence investigation] report [(PSI)] regarding [his] domestic arrests resulted in a gross mischaracterization of [his] behavior and past ‘criminal’ record.” The defendant appended to the amended motion to correct a sworn state- ment in which he stated in relevant part that, although he had been arrested in the past for violating protec- tive orders, the charges were dismissed and he “never violate[d] any protective order . . . .” During the hear- ing on the amended motion to correct, the defendant iterated that he “never violated” what he referred to as “restraining orders,” such that the information that the sentencing court relied on to determine otherwise was “inaccurate.” In denying the amended motion to correct, the trial court rejected the defendant’s claim that the sentencing court relied on inaccurate information. As the trial court stated in relevant part: “The PSI listed two convictions for violation of a protective order. The first occurred for an incident on July 10, 2000, and the other for an  State v. Thompson incident that occurred on April 30, 2001. On January 2, 2002, the defendant received suspended sentences with probation on both charges. . . . During his sentencing remarks, [defense] counsel never sought to correct the defendant’s reported criminal history as set forth in the PSI. When referring to the defendant’s criminal history, his attorney acknowledged that the defendant had some ‘domestic matters’ on his record. . . . The defendant also addressed the court and maintained his innocence. The defendant never disputed his two past convictions for violation of protective orders as set forth in the PSI. “If, as the defendant now claims, he had no convictions for violating a protective order as set forth in his PSI, either he or his attorney should have brought this to the [sentencing] court’s attention when they addressed the court. The defendant has failed to offer any evidence showing that the PSI incorrectly reported his criminal history besides his personal view that he had never been convicted for violation of [a] protective order. “There has been no evidence presented by the defen- dant that the sentencing court relied on any materially inaccurate [information] about his criminal history. The sentencing [court] properly considered the defendant’s past convictions and his failure to successfully complete his terms of probation when imposing his sentence. There is nothing in the sentencing [court’s] detailed remarks supporting the defendant’s claim that the court relied on any inaccurate information.” (Citations omitted; footnote omitted.) On appeal, the defendant no longer maintains that he was never convicted of violating a protective order; instead, for the first time on appeal, he contends that (1) the sentencing court incorrectly stated that he had four convictions for violating a protective order when the PSI reflected that he had two such convictions, and (2) the sentencing court substantially relied on that incorrect statement in sentencing him.6 In other words, 6 In his appellate brief, the defendant notes that, in the amended motion to correct, he “raised additional information he believed to  State v. Thompson the defendant is not pursuing his initial claim that the sentencing court relied on inaccurate information in the PSI; rather, he now asserts that the sentencing court made a statement that contradicted information in the PSI, which claim the trial court was not presented with and did not address in denying the amended motion to correct. We decline to review this unpreserved claim. “ ‘It is axiomatic that issues not properly raised before the trial court ordinarily will not be considered on appeal.’ State v. Benedict, 313 Conn. 494, 505, 98 A.3d 42 (2014); see also Practice Book § 60-5.” State v. Coltherst, 205 Conn. App. 1, 10 n.4, 254 A.3d 975, cert. denied, 338 Conn. 907, 258 A.3d 1281 (2021). Moreover, assuming that the defendant seeks review of his unpreserved claim pursuant to 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),7 we need not afford Golding review under the circumstances of the present action and decline to grant it. See State v. Starks, 121 Conn. App. 581, 592, 997 A.2d 546 (2010) (declining to grant Golding review of unpreserved claim be inaccurate at the time of sentencing.” On the basis of his appellate brief, however, we construe the defendant’s claim of error to be limited to the sentencing court’s statement that he had four, rather than two, convictions for violating a protective order. 7 “In Golding, our Supreme Court held that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged consti- tutional violation . . . exists and . . . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original; internal quotation marks omitted.) State v. Roberts, 224 Conn. App. 471, 486 n.27, 312 A.3d 1086, cert. denied, 349 Conn. 912, 314 A.3d 602 (2024). We note that the defendant has not expressly requested Golding review; however, “[i]t is well settled that a party seeking such extraordinary review need not specifically request it, but must nevertheless present a record that is [adequate] for review and affirmatively [demonstrate] that his claim is indeed a violation of a fundamental constitutional right.” (Internal quotation marks omitted.) State v. Abramovich, 229 Conn. App. 213, 217–18, 326 A.3d 593 (2024).  State v. Thompson in appeal from denial of motion to correct illegal sentence because (1) “[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,” and (2) motion to correct illegal sentence may be filed at any time); see also State v. Bryan, 229 Conn. App. 364, 370, 327 A.3d 467 (2024) (same). Accordingly, we decline to review the defendant’s unpreserved claim. II The defendant next claims that the trial court, in deny- ing the amended motion to correct, improperly deter- mined that his sentence did not violate the constitutional prohibition against double jeopardy. We disagree. “[A]n illegal sentence is essentially one [that] . . . exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambigu- ous, or is internally contradictory. . . . In accordance with this summary, Connecticut courts have considered four categories of claims pursuant to [Practice Book] § 43-22 [including] . . . violations of the prohibition against double jeopardy.” (Internal quotation marks omitted.) State v. King, 220 Conn. App. 549, 560, 300 A.3d 626, cert. denied, 348 Conn. 918, 303 A.3d 1194 (2023). “A defendant’s double jeopardy claim presents a ques- tion of law, over which our review is plenary. . . . Double jeopardy analysis in the context of a single trial is a [two step] process, and, to succeed, the defendant must satisfy both steps. . . . First, the charges must arise out of the same act or transaction [step one]. Second, it must be determined whether the charged crimes are the same offense [step two]. Multiple punishments are forbidden only if both conditions are met. . . . At step two, we [t]raditionally . . . have applied the Blockburger test8 to determine whether two statutes criminalize the same offense, thus placing a defendant prosecuted under 8 See Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).  State v. Thompson both statutes in double jeopardy: [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” (Citation omitted; footnote added; internal quotation marks omitted.) State v. Tinsley, 340 Conn. 425, 431–32, 264 A.3d 560 (2021). The following additional procedural history is relevant to our resolution of this claim. In the state’s amended information dated October 21, 2009 (operative infor- mation), the conspiracy to commit robbery in the first degree charge (conspiracy charge) alleged “that on or about August 10, 2004, at approximately 11:50 p.m., in the area of 4 April Way in Bloomfield, Connecticut, while acting with the intent that conduct constituting the crime of robbery in the first degree be performed, the defendant agreed with one or more persons to engage in and cause the performance of such conduct, and any one of them committed an overt act in furtherance of such conspiracy.” The robbery in the first degree charge (rob- bery charge) alleged “that on or about August 10, 2004, at approximately 11:50 p.m., in the area of 4 April Way in Bloomfield, Connecticut, in the course of the com- mission of the crime of robbery and of immediate flight therefrom, the defendant and another participant in the crime displayed and threatened the use of what they represented by words and conduct to be a pistol, revolver, or other firearm.” In the amended motion to correct, the defendant asserted that his sentence violated the constitutional prohibition against double jeopardy. First, the defendant maintained that the conspiracy charge and the robbery charge arose from the same act or transaction. Second, although conceding that conspiracy to commit robbery in the first degree and robbery in the first degree are separate and distinct crimes as delineated in the respec- tive statutes, the defendant contended that, as charged by the state, the conspiracy charge was a lesser included  State v. Thompson offense of the robbery charge.9 Specifically, noting that the allegations in the robbery charge referenced “the defendant and another participant in the crime,” the defendant posited that (1) the robbery charge alleged “the act of at least two persons” and (2) because “[r]obbery in the first degree by two or more persons cannot be committed without conspiracy, conspiracy to commit robbery in the first degree was, in the [present] case, a lesser included offense [of] robbery [in the first degree].” In denying the amended motion to dismiss, the court rejected the defendant’s double jeopardy claim, deter- mining that (1) the conspiracy charge and the robbery charge arose from a single transaction but (2) conspiracy to commit robbery in the first degree and robbery in the first degree are separate and distinct crimes because each contains a statutory element that the other does not. The court also rejected the defendant’s contention that, as charged by the state, the conspiracy charge was a lesser included offense of the robbery charge. On appeal, the defendant (1) iterates his argument in the amended motion to correct that “the specific language contained in the charging information must guide the court’s analysis of whether double jeopardy has been violated” and (2) maintains that, “[a]lthough Connecti- cut courts have generally recognized robbery in the first degree and conspiracy to commit robbery [in the first degree] as distinct offenses, [his] argument emphasizes that the manner in which these charges were presented to the jury shows that he faced multiple punishments for essentially one criminal episode.”10 As our Supreme Court 9 In support of his claim, the defendant relied on the language of a prior information filed by the state that was read to the jury; however, the prior information and the operative information set forth identical allegations vis-à-vis the conspiracy charge and the robbery charge. In the interest of simplicity, we refer to the operative information when discussing the defendant’s reliance on the facts alleged by the state. 10 The defendant also appears to claim error on the basis that the robbery charge and the conspiracy charge both alleged that the respec- tive crimes occurred at the same location, day, and time. In denying the amended motion to correct, the court determined that the robbery charge and the conspiracy charge arose from a single transaction. The defendant’s burden did not end there, however, as “[d]ouble jeopardy  State v. Thompson has explained, however, “[i]n conducting a Blockburger analysis, we consider only the statutory elements of the two offenses, as opposed to the evidence adduced at trial or the facts alleged in the state’s charging document.” (Emphasis added.) State v. Abraham, 343 Conn. 470, 489, 274 A.3d 849 (2022); see also id., 494 n.17 (“we must confine our analysis to the statutory elements of the offenses under Blockburger and cannot consider the facts alleged in the state’s information to determine whether the two offenses are greater and lesser included offenses for double jeopardy purposes”); State v. Tins- ley, supra, 340 Conn. 445 (“[b]ecause the United States Supreme Court has declined to consider facts alleged in the information when conducting a Blockburger analysis, we decline to import that consideration into the double jeopardy analysis”). The defendant does not claim error as to the court’s determination that robbery in the first degree and conspiracy to commit robbery in the first degree are separate and distinct crimes because they each contain a statutory element that the other does not; indeed, in the amended motion to correct, he conceded that point, and he states in his appellate brief that “[t]he courts have said that robbery in the first degree and con- spiracy to commit robbery in the first degree are separate and distinct offenses for purposes of double jeopardy.” Accordingly, the defendant’s claim fails.11 The judgment is affirmed. In this opinion the other judges concurred. analysis in the context of a single trial is a [two step] process, and, to succeed, the defendant must satisfy both steps. . . . First, the charges must arise out of the same act or transaction [step one]. Second, it must be determined whether the charged crimes are the same offense [step two]. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.) State v. Tinsley, supra, 340 Conn. 432. As we conclude in part II of this opinion, the defendant failed to satisfy step two. 11 We note that “[t]he Blockburger test creates only a rebuttable pre- sumption of legislative intent, [and] the test is not controlling when a contrary intent is manifest. . . . When the conclusion reached under Blockburger is that the two crimes do not constitute the same offense, the burden [is] on the defendant to demonstrate a clear legislative intent to the contrary.” (Internal quotation marks omitted.) State v. Abraham, supra, 343 Conn. 494 n.18. The defendant has not attempted to satisfy this burden.