State v. Kennibrew

Syllabus

Convicted of the crimes of murder, felony murder and robbery in the first degree in connection with the death of the victim, the defendant appealed to this court from the judgment of the trial court denying his motion to correct an illegal sentence. The sentencing court had imposed concur- rent terms of forty-five years of imprisonment each on the murder and felony murder convictions but did not merge the convictions or vacate the felony murder conviction. In his motion to correct, the defendant claimed that the convictions of murder and felony murder violated the constitutional prohibition against double jeopardy and that the court should vacate the felony murder conviction under a retroactive applica- tion of State v. Polanco (308 Conn. 242), in which the Supreme Court held that, when a defendant has been convicted of a greater and a lesser included offense in violation of the prohibition of double jeopardy, the proper remedy is for the trial court to vacate the conviction of the lesser offense. The trial court incorrectly stated that the sentencing court had merged the defendant's convictions of murder and felony murder and determined that, because the rule adopted in Polanco was procedural, it did not apply retroactively to the defendant's convictions. Held that the trial court improperly denied the defendant's motion to correct an illegal sentence, as his conviction of murder and felony murder, which are a single crime for double jeopardy purposes, violated the prohibition against double jeopardy; contrary to the trial court's incorrect statement that the defendant's convictions of murder and felony murder had been merged, the defendant remained subject to two concurrent sentences for convictions that were cumulative, and, thus, at the time of the filing of his motion to correct an illegal sentence, he remained burdened by multiple punishments for the same offense; accordingly, the proper remedy, consistent with Polanco's directive, was vacatur, and the judg- m