State v. Bozelko , 175 Conn. App. 599 ( 2017 )

STATE OF CONNECTICUT v. CHANDRA BOZELKO
(AC 39466)
Lavine, Sheldon and Flynn, Js.
Syllabus
The defendant, who had been convicted of ten felonies and four misdemean-
ors in connection with four separate incidents involving larceny, attempt
to commit larceny, identity theft, forgery, illegal use of a credit card
and attempt to commit illegal use of a credit card, appealed to this court
from the trial court’s denial of her motion to correct an illegal sentence.
In her motion, the defendant alleged that the presentence investigation
report utilized by the sentencing court had been prepared without her
input, and that because the incomplete report contained material and
harmful misrepresentations about her, including her purported lack of
cooperation in the preparation of the report by refusing to participate
in a presentence investigation interview, she was sentenced in an illegal
manner because her sentence was based on inaccurate and misleading
information in violation of her due process rights. Held that the trial
court did not abuse its discretion in denying the defendant’s motion to
correct an illegal sentence: even if the defendant’s probation officer had
misrepresented the defendant’s unwillingness to assist in the preparation
of the presentence investigation report, the defendant failed to establish
either that such misrepresentation was material to her sentencing or
that it was actually relied on by the sentencing court, and, therefore,
the trial court did not err in concluding that the defendant had failed
to prove that the sentencing court gave specific weight or consideration
to inaccurate or misleading information when it imposed its sentence,
and although the defendant claimed that it was impossible for her to
prove what portions of the report the sentencing court actually relied
on because she was not permitted to subpoena the judge to testify at
the evidentiary hearing, the defendant failed to file a motion for articula-
tion with respect to those portions of the report considered and relied
on by the sentencing court; moreover, the defendant was not precluded
from presenting mitigating evidence to the court, as the defendant and
her counsel were afforded nearly twenty-six hours to review the sub-
stance of the report and discussed a number of mitigating factors with the
sentencing court, including the defendant’s background, her advanced
education, her full restitution to each of the victims and her role as a
caregiver for her sick father, and she was afforded an opportunity to
address the court and to present additional mitigating evidence, but
declined to do so.
Argued May 16—officially released August 15, 2017
Procedural History
Substitute information, in the first case, charging the
defendant with the crimes of attempt to commit larceny
in the first degree, identity theft in the first degree,
attempt to commit illegal use of a credit card and forg-
ery in the third degree, and substitute information, in
the second case, charging the defendant with the crimes
of larceny in the third degree, identity theft in the third
degree, illegal use of a credit card and forgery in the
third degree, and substitute information, in the third
case, charging the defendant with the crimes of attempt
to commit larceny in the fifth degree, attempt to commit
illegal use of a credit card and identity theft in the third
degree, and substitute information, in the fourth case,
charging the defendant with the crimes of larceny in
the fifth degree, illegal use of a credit card and identity
theft in the third degree, brought to the Superior Court
in the judicial district of Ansonia-Milford, geographical
area number five, where the cases were consolidated;
thereafter, the matter was tried to the jury before Cro-
nan, J.; verdicts and judgments of guilty, from which
the defendant appealed to this court, which affirmed the
judgment of the trial court; subsequently, the Supreme
Court denied the defendant’s petition for certification
to appeal; thereafter, the court, Arnold, J., dismissed
the defendant’s motion to correct an illegal sentence,
and the defendant appealed to this court, which
reversed the judgment of the trial court and remanded
the case for a hearing on the defendant’s motion to
correct an illegal sentence; subsequently, the court,
Arnold, J., denied the defendant’s motion to correct an
illegal sentence, and the defendant appealed to this
court. Affirmed.
Chandra Bozelko, self-represented, the appellant
(defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Kevin D. Lawlor, state’s attor-
ney, Paul O. Gaetano, supervisory assistant state’s
attorney, and Angela R. Macchiarulo, senior assistant
state’s attorney, for the appellee (state).
Opinion
SHELDON, J. This case returns to this court following
our reversal of the trial court’s ruling1 that it lacked
subject matter jurisdiction over the defendant’s motion
to correct an illegal sentence, and the resulting remand
to the trial court, Arnold, J., for further proceedings
on the merits of the defendant’s motion. State v.
Bozelko, 154 Conn. App. 750, 766, 108 A.3d 262 (2015).
The defendant claimed that the sentencing court, Cro-
nan, J., sentenced her in an illegal manner by relying
on misleading or inaccurate information set forth in her
presentence investigation report (PSI). Id., 763–64. On
remand, Judge Arnold denied the defendant’s claim,
finding that the defendant had failed to present any
evidence showing that the sentencing court had relied
on misleading or inaccurate information in imposing
her sentence. On appeal, the defendant challenges that
determination. We affirm the judgment of the trial
court.
The lengthy procedural history of this case was pre-
viously set forth by this court, inter alia, on the defen-
dant’s direct appeal from her underlying convictions;
see State v. Bozelko, 119 Conn. App. 483, 485–87, 987
A.2d 1102, cert. denied, 295 Conn. 916, 990 A.2d 867
(2010), cert. denied, U.S. , 134 S. Ct. 1314, 188
L. Ed. 2d 331 (2014); and in our decision remanding
this matter back to the trial court. State v. Bozelko,
supra, 154 Conn. App. 752–58. Following our decision
remanding the matter back to the trial court, an eviden-
tiary hearing on the defendant’s motion to correct was
held on July 13, 2015, and February 1, March 7, and
March 28, 2016. In that hearing, Judge Arnold received
testimony and documentary evidence as to the circum-
stances in which the defendant’s December 7, 2007 sen-
tencing took place.2 Thereafter, on June 23, 2016, the
court issued its written memorandum of decision deny-
ing the defendant’s motion to correct an illegal
sentence.
The following facts are set forth in the court’s written
memorandum of decision. ‘‘The defendant . . . was
convicted following a jury trial involving [ten felonies
and four misdemeanors based upon her involvement in
four separate incidents involving larceny or attempt to
commit larceny, identity theft, illegal use of a credit
card or attempt to commit illegal use of a credit card,
and forgery]. On December 7, 2007, following the prepa-
ration of a [PSI] by the Department of Adult Probation,
the defendant was sentenced by Judge Cronan . . .
[to] a total effective sentence of ten years, [execution]
suspended after . . . five years, with four years of pro-
bation following her release. . . . The defendant, who
is self-represented, filed a motion to correct an illegal
sentence on February 14, 2012. She concedes that the
actual sentence . . . was not illegal, but rather, the
sentence was imposed in an illegal manner. . . . Spe-
cifically, she claims that the [PSI] utilized by the court at
her sentencing, was compiled without her participation,
and . . . contained a material misrepresentation . . .
because she was ‘tricked out’ of participation in the
report’s preparation by the probation officer, who
reported to the court that the defendant refused to
participate in preparing the report.3 The defendant
argues that this ‘material misrepresentation’ by the pro-
bation officer was prejudicial to the defendant.’’ (Foot-
notes altered.)
‘‘A review of the December 7, 2007 sentencing tran-
script revealed that . . . [the defendant’s counsel]
Attorney [Tina] D’Amato . . . requested a continuance
of the defendant’s sentencing hearing, stating that the
defendant had not had the opportunity to meet with
the probation officer and complaining that probation
officer [Lisa] Gerald was biased toward the defendant.
. . . The [sentencing] court noted that it was in posses-
sion of a [PSI] . . . [but] indicated it was not going to
hear argument as to why the defendant’s interview was
or was not done on time, providing an indication that
this was not a primary concern or consideration of the
court in imposing a sentence. . . .
‘‘In the course of the state’s sentencing presentation,
the state summarized the charges that the defendant
had been convicted of and . . . [noted that, while] the
defendant faced a maximum incarceration in excess of
one hundred years, the state requested a total effective
sentence of ten years [of] incarceration, execution sus-
pended after . . . five years, followed by five years [of]
probation supervision. Defense counsel then informed
the court [that] she was not ready for sentencing, as she
didn’t know enough about the defendant to advocate for
her.4 Counsel did [however] admit that she had read
the transcripts of the defendant’s court proceedings
. . . [and counsel] then related facts regarding the
defendant’s family background; her troubled relation-
ship with her parents and involuntary hospitalization
of the defendant by her parents. Counsel informed the
court that the defendant had been diagnosed with
schizophrenia, bipolar disorder and personality disor-
der; [and] had been forced to take antipsychotic medica-
tions. . . . Counsel informed the court that full
restitution for her crimes had been accomplished; and
that the defendant provided care for her [sick] father.’’
(Footnote added.) ‘‘Counsel then reiterated that the
defendant had been a student at Fordham University
and was a graduate of Princeton University. The court
then inquired if the defendant wished to make a state-
ment. The defendant declined. In doing so, the defen-
dant did not address the contents of the [PSI]; did not
[raise] any claimed inaccuracies or misrepresentations;
and did not present the court with further information
in mitigation.
‘‘The [sentencing] court commenced its sentencing
comments by noting the defendant had been found com-
petent to stand trial . . . . The court noted that the
defendant was an intelligent person of privilege com-
pared to many defendants who [had] been sentenced
by the court. . . . The court noted that it was aware
of the defendant’s lack of a previous criminal record,
and that the offenses for which the defendant was con-
victed were not crimes of violence. Nonetheless, the
court stated that the crimes regarding identity theft and
credit card fraud were crimes [that] the court could
not take lightly. . . . The trial court . . . then
imposed the sentences which were noted earlier,
herein.’’ (Citation omitted; footnote omitted.)
‘‘[I]n its original [memorandum of decision on the
motion to correct, the trial court] found that other than
arguing that the [sentencing] court did not follow the
proper procedural rules,5 the defendant had not demon-
strated how the court’s error caused her prejudice with
regard to the sentence imposed. . . . [T]he defendant
never claimed that the [sentencing] court refused to
consider her claims of any disputed facts in the [PSI].
It appears from the review of the record that the defen-
dant’s claims of inaccuracies are related solely to
whether . . . she refused to cooperate in the prepara-
tion of the [PSI]. While her counsel addressed this issue,
the defendant, despite being given the opportunity to
do so at her sentencing, declined to comment or make
a statement to the [sentencing] court. Additionally,
there is no evidence that the court considered this issue
when structuring or imposing the defendant’s sen-
tence.’’ (Citations omitted; footnote added.) ‘‘Neither
defense counsel, the defendant, [nor] anyone else
alerted the [sentencing] court to any allegedly inaccu-
rate information in the [PSI] other than the alleged
‘misrepresentation’ that the defendant refused to coop-
erate [in completing the PSI] . . . .’’
‘‘Having made these foregoing findings . . . the
court review[ed] the evidence presented by the defen-
dant at the evidentiary hearing conducted at the direc-
tion of the Appellate Court . . . to determine if the
trial court . . . relied on inaccurate or misleading
information when sentencing the defendant. The court
heard testimony from Chief Probation Officer Lisa Ger-
ald on July 13, 2015. . . . Gerald confirmed that the
defendant was not refusing to cooperate in completing
the PSI process, but was seeking a delay until the defen-
dant could secure the services of a new attorney. . . .
Gerald . . . did not believe the defendant was engag-
ing in delaying tactics, but [she] stated [that] as a proba-
tion officer she had no authority to unilaterally order
a continuance of the defendant’s sentencing date.
Therefore, she continued to write a partial PSI, using
only information that was available to her from sources
other than the defendant. . . . [A]n examination of the
PSI . . . indicates that the report copy was faxed to
. . . D’Amato on December 6, 2007, at 12:07 p.m.’’ (Cita-
tion omitted.)
‘‘D’Amato testified . . . that the defendant retained
her services for the purposes of the sentencing hearing.
She stated that she filed a motion for continuance of
the sentencing hearing as she was not prepared to go
forward. . . . Nonetheless, D’Amato stated that she
was, in fact, prepared for the defendant’s sentencing
on December 7, 2007, although she had not planned on
going forward. She also stated [that] she had no plan
to present mitigation witnesses or mitigating circum-
stances. She knew [however] of the defendant’s intent
to hire Clinton Roberts, a mitigation specialist, because
she . . . had spoken to Roberts.’’ (Footnote omitted.)
‘‘On March 7, 2016, the court heard testimony from
. . . Roberts who was called as a witness by the state.
. . . Roberts stated that . . . [he was given payment
by the defendant’s] family on November 24, 2007 . . . .
However, his acceptance of the payment was contin-
gent on the defendant being able to obtain a continu-
ance of her [December 7, 2007] sentencing date . . .
[because] it would take six to eight weeks to complete
a sentence mitigation report for the defendant . . . .
When the defendant was denied a continuance of her
sentencing . . . Roberts offered to remit the payment
back to the family . . . [but was] advised that the fam-
ily wished to retain his services for postsentencing pro-
ceedings . . . . Roberts further testified that once he
completes a mitigation report, he testifies at the sen-
tencing hearing only if defense counsel requests that
he do so and if the court agrees to it. The information
contained in a sentencing mitigation report prepared
by Roberts is similar to that of a [PSI] . . . . His sen-
tencing mitigation report would contain information
regarding family and personal data, educational back-
ground, employment history, and a summary of physical
and mental health issues, substance abuse issues, and
family relation issues. . . . When asked by the court
how his report differs from a [PSI], Roberts replied that
he tries ‘to get a bit deeper’ into a person’s background
. . . but as he had little information about the defen-
dant, he could not testify regarding any issues about
this defendant.’’ (Footnotes omitted.) ‘‘At no time did
Roberts offer any testimony regarding specific informa-
tion about the defendant, favorable or otherwise, that
would have been presented at the sentencing . . . had
a continuance of the sentencing been granted.’’
‘‘In remanding this matter . . . the Appellate Court
noted that in order for the defendant to ultimately pre-
vail on her claims, she will need to prove the [sentenc-
ing] court’s actual reliance on misinformation, which
will require a showing that the court gave ‘specific con-
sideration’ or weight to the unreliable or inaccurate
information she complains of in imposing her sentence.
. . . The defendant has failed to sustain that burden.
None of the evidence presented and received at the
hearing held by this court supports the defendant’s posi-
tion that the sentencing court relied on unreliable or
inaccurate information when imposing the defendant’s
sentence on December 7, 2007. . . . The defendant
provided no evidence that Judge Cronan relied on any
misinformation or misrepresentation regarding the
defendant’s delay in meeting with . . . Gerald in the
preparation of the [PSI]. There is also no indication that
Judge Cronan imposed a more severe sentence on the
defendant due to the defendant’s desire to postpone
her meeting with Gerald until the defendant obtained
the services of new counsel. . . .
‘‘D’Amato confirmed that she had reviewed the trial
transcripts and spent thirty to forty hours interviewing
the defendant and reviewing the defendant’s trial. At
the sentencing, [D’Amato] presented evidence that the
defendant: (1) assisted in caring for her ill father; (2)
had no prior criminal record or arrests; (3) had pre-
viously been institutionalized and medicated for mental
health issues; (4) made full restitution to the victims; (5)
graduated from Princeton University; and (6) attended
Fordham Law School. . . . The defendant has not
raised any issue that this information [presented] to the
court was a misrepresentation or inaccurate in any
way.’’
After making the foregoing findings of fact, the court
ruled that the defendant had failed to carry her burden
of proof, and thus it denied her motion to correct an
illegal sentence. This appeal followed.
On appeal, the defendant claims that the trial court
abused its discretion in denying her motion to correct
an illegal sentence. More particularly, the defendant
argues that, in deciding upon her sentence, Judge Cro-
nan relied on what she claims to have been material
misrepresentations in the PSI, including the statements
that she had ‘‘[refused] to cooperate with [Gerald]’’ in
preparing the PSI, and that the absence of certain por-
tions of the report were ‘‘a consequence of her decision
[not to cooperate].’’ The defendant dedicates a substan-
tial portion of her brief to explaining why Gerald’s com-
ment about her noncooperation with the preparation
of the PSI was misleading and to denying the suggestion
in the report that, by not cooperating, she was engaging
in delay tactics. The defendant further argues that ‘‘[t]he
only way that the sentencing court did not consider
Gerald’s material misrepresentations in the [PSI] was
to disregard the [PSI] altogether, effectively denying
[the defendant an] opportunity to speak in mitigation
of her sentence.’’ On that basis, the defendant argues
that Judge Arnold erred in finding that the sentencing
court had not relied on misleading or inaccurate infor-
mation when imposing its sentence upon her. We are
not persuaded.
‘‘We begin by setting forth our standard of review.
[A] claim that the trial court improperly denied a defen-
dant’s motion to correct an illegal sentence is reviewed
pursuant to the abuse of discretion standard. . . . In
reviewing claims that the trial court abused its discre-
tion, great weight is given to the trial court’s decision
and every reasonable presumption is given in favor of
its correctness. . . . We will reverse the trial court’s
ruling only if it could not reasonably conclude as it did.’’
(Citation omitted; internal quotation marks omitted.)
State v. Charles F., 133 Conn. App. 698, 704–705, 36
A.3d 731, cert. denied, 304 Conn. 929, 42 A.3d 390 (2012).
‘‘[D]ue process precludes a sentencing court from
relying on materially untrue or unreliable information
in imposing a sentence.’’ State v. Parker, 295 Conn. 825,
843, 992 A.2d 1103 (2010). ‘‘To prevail on such a claim
as it relates to a [PSI], [a] defendant [cannot] . . .
merely alleg[e] that [her PSI] contained factual inaccu-
racies or inappropriate information. . . . [She] must
show that the information was materially inaccurate
and that the [sentencing] judge relied on that informa-
tion. . . . A sentencing court demonstrates actual reli-
ance on misinformation when the court gives explicit
attention to it, [bases] its sentence at least in part on
it, or gives specific consideration to the information
before imposing sentence.’’ (Citation omitted; emphasis
in original; internal quotation marks omitted.) State v.
Charles F., supra, 133 Conn. App. 705; see also State
v. Parker, supra, 844 (‘‘[t]he mere presence of . . .
inaccurate information in a [PSI] does not constitute a
denial of due process’’ [internal quotation marks
omitted]).
After thoroughly reviewing the record in this case,
we conclude that Judge Arnold did not err in determin-
ing that the defendant failed to prove that the sentencing
court gave specific weight or consideration to inaccu-
rate or misleading information when it imposed its sen-
tence upon her. Although the defendant spent
substantial portions of both the evidentiary hearing and
her brief attempting to prove that she had not engaged
in delay tactics or refused to take part in a PSI interview,
such efforts were in vain. Even assuming that Gerald
misrepresented the defendant’s unwillingness to assist
in the preparation of the PSI, the defendant failed to
establish either that such misrepresentation was mate-
rial to her sentencing or the sentencing court actually
relied on that misrepresentation.
A review of the sentencing transcript clearly demon-
strates that the sentencing court ‘‘did not reference or
otherwise indicate that it was relying on the [PSI’s]
assertion that the defendant did not wish to include an
offender’s version [in the PSI].’’ State v. Charles F.,
supra, 133 Conn. App. 705. Instead, Judge Cronan
merely stated: ‘‘In trying to structure a penalty I consid-
ered the lack of a previous record and that these
offenses are not crimes of violence that we often see
here, but they are, in fact, offenses that the Connecticut
General Assembly said deserve, in ten cases, to be
treated as a felony . . . . I cannot take this type of
conduct lightly . . . . So as I said, I just shook my head
and attempted in structuring a sentence to [be] fair,
fair to the victims, fair to society, and fair to [the defen-
dant].’’ The defendant concedes that those portions of
the PSI that concerned her lack of a prior criminal
history and the nonviolent nature of her offenses of
conviction were accurate and did not contain any mis-
representations. The defendant did not and could not
argue that the court expressly stated that it considered
or gave specific weight to the fact that the defendant
had not submitted to a PSI interview with Gerald.
Nonetheless, the defendant contends that the trial
court must have relied upon the fact that she did not
participate in the PSI interview when it sentenced her.
She argues, without any legal citation, that the sentenc-
ing court either did not rely on any portion of the PSI
or it relied on those portions of the PSI that contained
misrepresentations. We attach no weight to such an
argument, as the defendant overlooks a third, and
frankly more obvious, possibility, to wit: that while the
court relied on those uncontested portions of the PSI
which it discussed on the record, including her lack of
a prior criminal history and the nature of the offenses
here at issue, it did not rely on other portions of the
PSI of which it made no mention. It was the defendant’s
burden to prove that the court actually relied on or
gave specific weight to inaccurate information, but she
failed to carry that burden.
Although the defendant asserts that it was impossible
for her to prove what portions of the PSI Judge Cronan
actually relied on because she was not permitted to
subpoena the judge to testify at the evidentiary hearing,
we are cognizant of the fact that the defendant failed
to file a motion for articulation with respect to those
portions of the PSI considered and relied on by the
sentencing court. See State v. Koslik, 116 Conn. App.
693, 705, 977 A.2d 275 (noting that defendant failed to
file motion for articulation regarding decision of sen-
tencing court or decision denying motion to correct
illegal sentence), cert. denied, 293 Conn. 930, 980 A.2d
916 (2009). We further reject the defendant’s argument
that, by virtue of the sentencing court’s remark that it
was not going to entertain arguments as to why the
defendant did not participate in the PSI interview, the
court effectively precluded her from presenting any
mitigating evidence at sentencing. Not only were the
defendant and her counsel afforded nearly twenty-six
hours to review the substance of her eleven page PSI,
but also her counsel discussed a number of mitigating
factors with the sentencing court, including, inter alia:
the defendant’s background; her advanced education;
her full restitution to each of the victims; and her sup-
portive role in her family, caring for her sick father.
Moreover, she was afforded an opportunity to address
the court and present additional mitigating evidence,
but declined to do so. These factors amply demonstrate
that the defendant was not precluded from presenting
mitigating evidence to the court. See State v. Charles
F., supra, 133 Conn. App. 705 n.6.
Because the trial court was not presented with any
evidence demonstrating that the sentencing court con-
sidered, much less actually relied on, the portion of
the defendant’s PSI indicating that she had refused to
submit to a PSI interview, Judge Arnold, as in State v.
Charles F., supra, 133 Conn. App. 706, reasonably could
have found ‘‘that the sentencing court did not rely on
inaccurate information and that the defendant’s sen-
tence was therefore not imposed in an illegal manner.’’
We, therefore, conclude that the trial court did not
abuse its discretion by denying the defendant’s motion
to correct an illegal sentence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The trial court ruled in four consolidated cases. State v. Bozelko, Superior
Court, judicial district of Ansonia-Milford, geographical area number five
at Derby, Docket Nos. CR-050128445-S, CR-050129108-S, CR-050128811-S,
CR-050129107-S (January 17, 2013).
2
Judge Cronan recused himself from the postsentencing hearings after
the defendant filed a judicial grievance against him.
3
The circumstances surrounding the defendant’s participation in the PSI
have been discussed previously by this court. See State v. Bozelko, supra,
154 Conn. App. 753–54. The defendant takes issue with the following portion
of the PSI: ‘‘On November 21, 2007, this officer received two voicemail
messages from the offender in which she alleged that the [court] informed
her that she ‘was refusing to cooperate with the PSI.’ This officer clarified
the issue and informed the offender that due to her decision regarding her
[PSI] interview this office was left with insufficient time to complete an
investigation, a consequence of her decision. This officer, once again,
directed the offender to appear in [c]ourt as directed.’’
4
D’Amato was retained by the defendant shortly before sentencing.
5
On appeal, the defendant claims that the manner in which she was
sentenced violated several sections of the Practice Book. During oral argu-
ment before this court, however, the defendant conceded that the scope of
our remand order was narrow: whether there was evidence demonstrating
that the sentencing court relied on materially misleading or inaccurate infor-
mation when it structured her sentence. She similarly conceded to the trial
court that the purpose of the evidentiary hearing was to afford her an
opportunity to prove that the sentencing court relied on inaccurate informa-
tion when structuring her sentence. In accordance with the limited scope
of our remand order, we decline to address the defendant’s claims that the
sentencing procedure violated various provisions of our rules of practice.