State v. McGee
State v. McGee
Opinion of the Court
*568The defendant, Frank McGee, appeals following the trial court's dismissal of his motion to correct an illegal sentence. On appeal, the defendant claims that the court improperly rejected his claim that the imposition of separate sentences upon him on two counts of robbery in the second degree, each prosecuted in connection with the robbery of a single victim, but under a different subdivision of the second degree robbery statute, General Statutes (Rev. to 2007) § 53a-135 (a), violated his constitutional right against double jeopardy. We are not persuaded.
The following factual background and procedural history are relevant to our consideration of the defendant's claim on appeal. The defendant was charged in a seven count substitute information as follows: in count one, with larceny in the second degree in violation of General Statutes § 53a-123(a)(3) ; in count two, with robbery in the second degree in violation of § 53a-135 (a) (1); in count three, with robbery in the second degree in violation of § 53a-135 (a) (2); in count four, with conspiracy to commit robbery in the second degree in violation of General Statutes §§ 53a-48(a) and 53a-135(a)(2) ; in count five, with sexual assault in the third degree in violation of General Statutes § 53a-72a(a)(1)(A) ; in count six, with sexual assault in the fourth degree in violation of General Statutes § 53a-73a(a)(2) ; and in count seven, with breach of the peace in *497the second degree in violation of General Statutes § 53a-181(a)(3).
In its opinion on direct appeal, this court summarized the facts underlying the defendant's convictions as follows: "At approximately 1 a.m. on March 23, 2007, the victims, D and T, were on Pine Street in Waterbury, where they purchased a small amount of cocaine from an unidentified individual. Soon thereafter, a silver Lexus, driven by the defendant, pulled up to the victims. When the victims started to drive away in D's car, the defendant continued to follow them closely until D
*570pulled over and the victims got out of the car. The defendant began asking D and T if they wanted to 'get shot.' The defendant reached into his car, took out a case and told D and T that he had something for them. D and T both testified that they assumed that there was a gun in the black case. The defendant started going through D's pockets and found $6, which he took from him. The defendant then searched T for cocaine by placing his hands on different parts of her body. He lifted up her shirt and began touching T's breasts roughly under her bra, which later caused bruising to that area. D went to his home, two houses away, and called 911. Police officers arrived and found a car matching the description given by D on Congress Avenue. D and T went to Congress Avenue and positively identified the defendant and the other occupants of his car, who were arrested." (Footnote omitted.) Id., at 263-64,
On July 5, 2015, seven years after his sentencing, the defendant, acting on his own behalf, filed a motion to correct an illegal sentence. In his motion, the defendant alleged that "the imposition of sentences for both robbery convictions violates the multiple punishment prohibition of the double jeopardy clause of the fifth amendment to the United States constitution because both convictions [on the two separate (subdivisions) of § 53a-135(a) ] relate *498to one robbery."
Subsequently, under the procedure prescribed by State v. Casiano ,
After counsel was appointed, the court conducted a hearing on the merits of the *499defendant's motion to correct. Thereafter, by memorandum of decision filed October 7, 2015, the trial court dismissed the defendant's motion on the ground that the defendant's convictions on two counts of robbery in the second degree did not violate his right against double jeopardy because the defendant's conduct in committing the robbery in question constituted two separate criminal offenses. In reaching this determination, the court expressly relied on Blockburger v. United States , supra,
Practice Book § 43-22 provides that "[t]he 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 *573made in an illegal manner." Our Supreme Court has stated that an "illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory." (Internal quotation marks omitted.) State v. Lawrence ,
"Our analysis of [the defendant's] double jeopardy [claim] does not end, however, with a comparison of the offenses. The Blockburger test is a rule of statutory construction, and because it serves as a means of discerning [legislative] purpose the rule should not be controlling where, for example, there is a clear indication of *501contrary legislative intent. ... Thus, the Blockburger test creates only a rebuttable presumption 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 remains on the defendant to demonstrate a clear legislative intent to the contrary." (Citations omitted; internal quotation marks omitted.) Id., at 12-13,
In considering the defendant's double jeopardy challenge, we are guided by State v. Underwood , supra,
Similarly, it is clear from the plain language of the relevant portions of § 53a-135(a)(1) and (2), as charged in this case, that each offense requires proof of a fact which the other does not. To satisfy the elements of § 53a-135(a)(1), the state was required to prove that, while committing a robbery in violation of General Statutes § 53a-133, the defendant was aided by another person actually present at the time. To convict the defendant under § 53a-135(a)(2), by contrast, the state was required to prove that, in the course of commission of a robbery in violation of § 53a-133, he or another participant in the crime displayed or threatened the use of what he represented by his words or conduct to *578be a deadly weapon. Because each of these statutory subdivisions requires proof of different facts-subsection (a) (1) requiring proof that the defendant was aided by another person actually present, but not that he or another participant displayed or threatened the use of what he represented by his words or conduct to be a deadly weapon, and subsection (a) (2) requiring proof that the defendant or another participant in the robbery displayed or threatened the use of what he represented by his words or conduct to be a deadly weapon, but not that he was aided by another person actually present-they are two separate offenses. Moreover, § 53a-135 contains no language indicating the legislature's intent to bar multiple punishments for the perpetrators of single second degree robberies who, in committing such offenses, violate multiple subdivisions of the second degree robbery statute, and the defendant has failed to direct this court to any evidence of such a legislative intent.
On the basis of the foregoing, we conclude that the defendant was properly sentenced on two separate counts of robbery in the second degree in connection with the robbery he committed on March 23, 2007, without violating his constitutional right against double jeopardy. Because, however, the defendant's claim that the two sentences were imposed upon him for one second degree robbery was a procedurally proper double jeopardy claim over which the court had jurisdiction on a motion to correct, the court should have denied, rather than dismissed, his motion to correct. See State v. Santiago , supra,
The form of judgment is improper, the judgment of dismissal is reversed and the case is remanded with direction to deny the defendant's motion to correct an illegal sentence.
In this opinion DiPENTIMA, C.J., concurred.
The information in this case makes it clear that the two robbery offenses with which the defendant was charged were based upon different conduct allegedly undertaken by the defendant. The state charged that the defendant committed robbery while aided by another person actually present, in violation of § 53a-135(a)(1), and that, during the robbery, he displayed or threatened the use of what he represented by his conduct to be a deadly weapon, in violation of § 53a-135(a)(2). Thus, each robbery conviction related to a specific and separate subdivision of § 53a-135, the statute defining robbery in the second degree.
General Statutes (Rev. to 2007) § 53a-135(a) provides: "A person is guilty of robbery in the second degree when he commits robbery as defined in section 53a-133 and (1) he is aided by another person actually present; or (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument."
We note that the defendant did not claim any error associated with his underlying convictions-either in the state's multiplicitous information charging him with violating two separate subdivisions of the second degree robbery statute or the jury's guilty verdicts on both subdivisions. He asserts no claim of error as to any of the proceedings at trial that resulted in the jury's guilty verdicts. Rather, he claimed that, at sentencing, the court should have vacated one of those convictions and sentenced him only on the one remaining conviction. See State v. Polanco,
In Casiano, our Supreme Court concluded "that a defendant has a right to the appointment of counsel for the purpose of determining whether a defendant who wishes to file [a motion to correct an illegal sentence] has a sound basis for doing so. If appointed counsel determines that such a basis exists, the defendant also has the right to the assistance of such counsel for the purpose of preparing and filing such a motion and, thereafter, for the purpose of any direct appeal from the denial of that motion." State v. Casiano, supra,
The Supreme Court in Blockburger stated that "where 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." Blockburger v. United States,
Our dissenting colleague suggests, in an analysis he first proposed at oral argument on this appeal, that the trial court lacked subject matter jurisdiction over the defendant's motion to correct because the claim therein presented constituted an unlawful collateral attack on his second robbery conviction rather than a lawful double jeopardy challenge to the sentence imposed on that conviction. When the state and the defense were given the opportunity to brief this jurisdictional issue after oral argument, they disagreed with our colleague's analysis, concluding in simultaneous supplemental briefs that the defendant's motion to correct, regardless of its substantive merits, raised a procedurally proper double jeopardy challenge to his multiple sentences for robbery in the second degree rather than an improper collateral attack on one of his second degree robbery convictions. For the following reasons, we agree with the parties that the trial court had jurisdiction over the defendant's motion to correct.
In support of his analysis, our colleague relies heavily on two decisions from this court, neither of which involved a double jeopardy claim that was based upon the imposition of two sentences for one criminal act. Both cases, instead, involve claims mislabeled as double jeopardy claims, which actually challenged the legality of the guilty verdicts upon which sentences were imposed and judgments of conviction were rendered rather than multiple sentences imposed upon lawful verdicts that were based upon conduct claimed to constitute a single criminal offense. In State v. Wright,
Similarly, in State v. Starks,
Both Wright and Starks are thus readily distinguishable from the instant case because they both involved challenges to the proceedings that underlay their guilty verdicts. The defendant in Wright challenged the adequacy of the state's information upon which his judgment of conviction was based, and the defendant in Starks challenged the sufficiency of the evidence upon which his conviction was based.
Here, by contrast, the defendant has not challenged, in any way, the validity of his convictions for robbery in the second degree or of the guilty verdicts upon which they rest. He has not claimed any infirmity with the state's information; he has not advanced any claims of insufficiency with respect to the state's evidence against him, or of evidentiary error, instructional error, prosecutorial impropriety, or any other type of error upon which the legality of trial proceedings or of the verdicts and judgments they result in are routinely challenged. Rather, he claimed that, at sentencing, the court should have vacated one of his two second degree robbery convictions and sentenced him only on one of those convictions. See State v. Polanco,
We agree with the dissent that a motion to correct an illegal sentence on grounds of double jeopardy must claim error in the imposition of multiple sentences for a single criminal offense, not error in the trial proceedings leading up to the guilty verdicts upon which those sentences were imposed. There are times, however, when a challenged sentence is so intertwined with a conviction resulting from imposition of that sentence that the vacation of the sentence requires the vacation of the judgment of conviction as well. That occurs, for example, where a defendant is found guilty on more than one count of a multicount information, each of which charges him with the same criminal offense, based upon the same act or course of conduct, but under a discrete and different theory of liability. There is, of course, nothing wrong with charging a defendant with a single criminal offense in multiple counts, each based upon a discrete and different theory of liability, nor is there anything wrong with taking a separate guilty verdict on each such count. An error arises, however, when separate sentences are imposed on the defendant on two or more of those separate verdicts, for such multiple sentences constitute multiple punishments for a single criminal offense. That is precisely the circumstance that gave rise to the defendant's procedurally proper motion to correct in this case.
Dissenting Opinion
*579Finding that the trial court had jurisdiction to hear the motion to correct an illegal sentence filed by the defendant, Frank McGee, my colleagues in the majority analyze the defendant's claim on the merits and, finding none, reverse the court's dismissal and remand the case to the trial court with direction to deny the motion. Unlike my colleagues, I do not believe that the trial court had jurisdiction to hear this motion, as I view it as no more than a collateral attack on the defendant's conviction.
This case began with the July 5, 2015 filing of a motion to correct an illegal sentence by the (then) self-represented defendant. In that motion, the defendant claimed that his sentences for two counts of robbery in the second degree were illegal because they constituted two punishments for the commission of one offense. Nowhere in his motion did he make any argument that his sentences, themselves, violated double jeopardy *580except for his argument that they flowed from convictions that he claimed violated his right not to be convicted twice for one offense.
Also, it is notable that nowhere in his motion or any of the supporting documents that he filed, either personally or through counsel, did the defendant specify the relief he sought except by the caption of his motion to "correct an illegal sentence." After being appointed, pursuant to State v. Casiano ,
With respect to the relief the defendant seeks, his brief provides no more illumination than his motion or counsel's sound basis analysis. While the defendant repeats his claim that his double jeopardy rights were *581violated when he was sentenced for two counts of robbery in the second degree, his entire analysis focuses on whether his underlying conduct constituted two offenses, as charged and found by the jury, or simply two alternative ways of committing the same offense. In the concluding portion of his brief, the defendant states: "For the same reasons articulated by [the Appellate Court] and the Supreme Court, the defendant's conviction for two counts of robbery, second, violates the double jeopardy clause by receiving multiple punishments for the same crime."
Our decisional law teaches that there are four categories of claims cognizable under Practice Book § 43-22. "[A]n illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory. ... In accordance with this summary, Connecticut courts have considered four categories of claims pursuant to § 43-22. The first category has addressed whether the sentence was within the permissible range for the crimes charged. ... The second category has considered violations of the prohibition against double jeopardy. ... The third category has involved claims pertaining to the computation of the length of the sentence and the question of consecutive or concurrent prison time. ... The fourth category has involved questions as to which sentencing statute was applicable." (Citations omitted; internal quotation marks omitted.) Id., at 156-57,
*584*507From my review of decisional law on this topic, it is apparent that confusion abounds on the question of the jurisdiction of the trial court to hear a motion to correct an illegal sentence. On one hand, there is a stream of cases which hold that the focus of a motion to correct an illegal sentence must be on the sentencing procedure and not on the trial proceedings. But, there is also a countercurrent of cases which appear to suggest that a motion to correct an illegal sentence may properly be utilized to correct dual convictions for single offenses. The disarray is palpable from the number of reversals by this court on the basis of our determination, on review, that the trial court either incorrectly determined it had no jurisdiction when it did, or it exercised jurisdiction when it was lacking.
We and our Supreme Court, have opined that a motion to correct an illegal sentence must focus on the sentencing proceedings, and may not be used as a collateral attack on one's conviction. In State v. Mollo ,
Later, in State v. Smith ,
We have held, as well, that the fact that the defendant frames his motion as an attack on his sentence, if, in reality, his focus is on his underlying conviction, the court will not have jurisdiction pursuant to Practice Book § 43-22. State v. Wright ,
"We conclude that the defendant's claim that his sentence is illegal because it violates his constitutional protection against double jeopardy is actually a claim of an improper conviction, which is, in reality, a collateral attack on his conviction and does not fall within the purview of Practice Book § 43-22." (Citation omitted; footnote omitted.) Id., at 157,
In State v. Starks , supra,
Notwithstanding Wright , our subsequent express adherence to it, and the several cases in which we have held that a Practice Book § 43-22 motion may not be utilized as a vehicle to attack one's conviction, we appear to have sanctioned just that approach in *589State v. Santiago ,
To be sure, the defendant in Santiago , unlike the defendant in the case at hand who received concurrent sentences, alleged that the imposition of consecutive sentences on the two charges of which he was convicted, which arose out of the same incident, violated his rights against double jeopardy. Id., at 377,
*590I believe that the holding in Wright is applicable to the case at hand. In opining that a motion to correct an illegal sentence may not be used as a vehicle to collaterally attack a sentence, the court in Wright stood on solid ground and within the parameters of its common law antecedents.
That said, Santiago does not represent the only cross-current to the view that a court, pursuant to a motion to correct an illegal sentence, may not affect a conviction. Rather, it finds some support in a few decisions in which Practice Book § 43-22 appears to have been legitimized as a vehicle to alter a conviction and not merely a sentence. In *511State v. Cator ,
The majority holds that the trial court had jurisdiction over the defendant's claims in the case at hand because he claimed, as the basis of his motion, that his convictions and sentences violate the constitutional proscription against double jeopardy. As noted, however, we know that where a defendant only nominally attacks his sentence in order to attempt to fit a conviction claim into the ambit of a Practice Book § 43-22 motion, a reviewing court will look to the substance and not the precise language of a defendant's motion to determine if it is, in fact, a sentencing issue. In this case at hand, however, as in Santiago , the majority appears to have credited the defendant's claim as a true sentencing claim even though, like Wright , it is an attack on his conviction.
In order to calm this jurisprudence, it is appropriate and useful to reflect on our Supreme Court's characterization of a motion to correct an illegal sentence. In State v. Francis ,
Unfortunately, the observations of the court in Francis regarding the narrow focus and expedited process of a motion to correct an illegal sentence do not reflect the course such motions have taken over the past several years. Rather, it appears that the filing of a motion to correct an illegal sentence has gained in practice as courts on review have muddied the jurisdictional waters with a result that more and more defendants appear willing to give it a try, even though, in the main, the vast majority of them are ultimately unsuccessful.
To be true to Francis , I believe, respectfully, we need to reset the parameters of a motion to correct an illegal sentence. If it is intended to be an expedited and limited *514review of the sentencing procedure, perhaps we should return to a time period in which such a motion must *596be filed. And, to harmonize the State v. Polanco ,
Because I believe the majority has mistakenly followed Santiago , which veered from its antecedents, and because, I believe, this court has expanded the reach of Polanco and Miranda beyond their intended reach, I would affirm the trial court's dismissal.
The majority asserts that "the defendant did not claim any error associated with his underlying convictions ...." This assertion is contradicted by the record. Indeed, in the concluding paragraph of the defendant's opening brief, he states: "For the same reasons articulated by our court and the Supreme Court, the defendant's conviction for two counts of robbery, second, violates the double jeopardy clause by receiving multiple punishments for the same crime. ... As a result, the defendant respectfully requests that this court find that the trial court erred, that the robbery, second, statute simply provides alternate ways in which to commit the same crime and that his conviction and sentence violate the protections of the double jeopardy clause."
Additionally, it is noteworthy that the defendant's argument focuses entirely on whether his convictions for two counts of robbery in the second degree violated the prohibition against double jeopardy. Nowhere does he make a claim that his concurrent sentences or the sentencing proceedings, themselves, violated his double jeopardy rights. Rather, he attacks the trial proceedings. As a consequence, in order to review the defendant's claim, on the merits, the trial court and the majority on appeal were required to examine the trial record and preconviction proceedings, an examination beyond the scope of the court hearing a motion to correct an illegal sentence.
Interestingly, counsel did not suggest, in this sound basis analysis, which of the convictions should be vacated. Presumably the court could, if it found jurisdiction and merit to the defendant's quest, simply pick one of the convictions at random and its attendant sentence, leaving the other in place, an outcome beyond the court's authority and, in my view, a legally absurd proposition.
In characterizing the sentencing as the trigger for a double jeopardy claim, counsel conflated sentencing with conviction and, doing so, ignored the basic law that if the defendant was, in fact, twice convicted for one offense, the convictions themselves constitute punishment in violation of the protection against double jeopardy. Thus, apart from any sentencing issue, the defendant could have directly appealed from his convictions on the basis of double jeopardy. See Rutledge v. United States,
Practice Book § 43-22 has an interesting pedigree. The rule's predecessor, Practice Book (1982) § 935, had provided: "The judicial authority who sentenced the defendant may, within ninety days, correct an illegal sentence or other illegal disposition, or he may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner." In December, 1982, on the recommendation of then Superior Court Judge Frank Kinney, the rules committee of the Superior Court amended the rule to its present form. The transmittal regarding Judge Kinney's recommendation stated: "Judge Kinney suggests that we adopt a rule permitting the correction of an illegal sentence at any time instead of the 90 day limitation." Memorandum to Carl Testo from Frank Buonocore (December 15, 1982) (copy contained in the file of this case in the Appellate Court clerk's office).
The transmittal also makes reference to our Supreme Court's opinion in State v. Pina,
As noted, an illegal sentence includes a sentence that violates a defendant's right to protection from double jeopardy. In my view, the reference to double jeopardy is tied to the sentence and not to the underlying conviction. If not, then the jurisprudence stating that a Practice Book § 43-22 motion presumes a valid conviction has no meaning. The majority's view that one may legitimately utilize this rule of practice as a vehicle to attack multiple convictions as violating the protection against double jeopardy represents an unwarranted expansion of the scope of this rule beyond its common-law basis. As noted by several cases cited herein, the focus of the court when confronted with a § 43-22 motion must be on the sentencing and not on the underlying conviction. The majority appears to have the view that double jeopardy claims are in a separate category and that a defendant may utilize § 43-22 to attack both convictions and sentencings which are claimed to violate double jeopardy protections. While I agree that the State v. Cator, supra,
In my view, Practice Book § 43-22, to be true to its origins, is available only to correct an illegal sentence. And, indeed, our jurisprudence reflects a range of sentencing-only double jeopardy claims that fall within the ambit of § 43-22.
For example, in State v. Tabone,
Similarly, in State v. Baker,
Additionally, in Steve v. Commissioner of Correction,
A number of state court decisions, in addition to Steve, have followed the Pearce reasoning in the resentencing context. For example, in State v. Taparra,
In Ex parte Lange, 85 U.S. (18 Wall.) 163,
The Nevada Supreme Court reaffirmed its commitment to the Ex parte Lange line of reasoning in 2007 in Wilson v. State,
Courts have also addressed claims in which defendants argue that their double jeopardy rights had been violated by courts adding requirements to their sentence after they were released from custody or probation. See State v. Schubert,
In the following cases, this court, on review, reversed the trial court either for deciding a matter on the merits when we determined it did not have the jurisdiction to do so, or we reversed the trial court for having dismissed a motion for want of jurisdiction where we determined that the court, in fact, had jurisdiction: State v. McClean,
I am aware, of course, of the stated policy of this court that one panel will not overturn the decision of a prior panel. See Consiglio v. Transamerica Ins. Group,
Since Cator, the availability of an attack on one's sentence on direct appeal appears to have narrowed. In State v. Urbanowski,
Cator appears to have derived its pedigree from Chicano, in which our Supreme Court opined that when a defendant is convicted of both a lesser and greater offense, the proper course for the court is to merge the convictions into one. State v. Chicano, supra,
In this line of cases, it appears, from Cator, that the trial court has jurisdiction to take such remedial action pursuant to Practice Book § 43-22, notwithstanding that adherence to our Supreme Court in this regard would appear to expand the jurisdiction of the trial court in a Practice Book § 43-22 circumstance to permit the court to affect both a conviction and an attendant sentence.
"In Anders [v. California,
My research for the time period 2000 through the end of 2016 reveals that the number of Superior Court decisions on motions to correct illegal sentences has dramatically increased over the past nearly two decades, with a substantial acceleration in the past few years. From 2000 through 2006, the numbers ranged from zero to three. From 2007 through 2012 the number of filings ranged from five to twelve, and from 2013 through 2016 the numbers ranged from five to twenty-four. Allowing for filings based upon the United States Supreme Court's juvenile justice decisions, the top number of that range would be reduced by eight such filings in 2016, the highest year.
And, finally, the record puts in doubt the notion advanced by the court in Francis that a motion to correct an illegal sentence should result in an expedited hearing before the original sentencing judge. State v. Francis, supra,
This suggestion, if found sensible, could perhaps be accomplished by the creation of a rule that, after conviction but before imposition of sentence, either party may move to have a conviction vacated pursuant to either State v. Polanco, supra, 308 Conn. at 242,
At trial, the court initially dismissed the motion, not for want of jurisdiction but on the merits. The majority reverses only the form of the judgment. I would affirm the judgment not for the reason stated by the trial court but because the court had no jurisdiction. It is axiomatic that on appeal we may affirm a trial court on alternative grounds. See Johnson v. Rell,
In the case at hand, after oral argument, we asked counsel to brief the question of whether the trial court had jurisdiction to hear the defendant's motion. The majority summarily concludes that both parties agree that the court had jurisdiction over the defendant's motion to correct. I think it is a fair observation that while both parties stated their belief that the court had jurisdiction, the state came to that conclusion on the basis of its belief that we are constrained by Santiago. It is noteworthy that the state, nevertheless, offered its view that this jurisprudence may be incorrect and, accordingly, the state reserved its right to argue the question of jurisdiction should this opinion be reviewed by the Supreme Court. In brief, and after reviewing our jurisprudence in this regard, the state commented: "Notwithstanding Connecticut jurisprudence suggesting that true double jeopardy claims may be raised via a motion to correct an illegal sentence, that conclusion may be misguided given the multifaceted nature of double jeopardy claims, which come in various forms and can arise at various points in a prosecution. As such, double jeopardy claims cannot be considered as purely relating to sentencing." Thus, I believe it would be more accurate to conclude that the state feels constrained by our somewhat confusing jurisprudence on this issue and not that the state embraces it as a correct understanding of the parameters of Practice Book § 43-22.
Reference
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- STATE of Connecticut v. Frank MCGEE
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