State v. Angel M.

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STATE OF CONNECTICUT v. ANGEL M.*
(SC 20106)
Robinson, C. J., and Palmer, McDonald,
D’Auria, Kahn and Ecker, Js.**
Argued September 19, 2019—officially released December 31, 2020***
Procedural History
Substitute information charging the defendant with
the crimes of sexual assault in the first degree, attempt
to commit sexual assault in the first degree, and risk
of injury to a child, brought to the Superior Court in
the judicial district of Hartford, where the court, Mullar-
key, J., denied the defendant’s motion to preclude cer-
tain evidence; thereafter, the case was tried to the jury
before Mullarkey, J.; verdict and judgment of guilty,
from which the defendant appealed to the Appellate
Court, Keller, Mullins and Elgo, Js., which affirmed
the trial court’s judgment, and the defendant, on the
granting of certification, appealed to this court.
Affirmed.
Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, former state’s
attorney, and Anne F. Mahoney, state’s attorney, for
the appellee (state).
Opinion
PALMER, J. Following a jury trial, the defendant,
Angel M., was convicted of sexually assaulting the
twelve year old daughter of his romantic partner and
sentenced to a total effective prison term of thirty-three
years. The defendant appealed to the Appellate Court,
claiming, among other things, that the trial court had
violated his right to due process at sentencing by penal-
izing him for refusing to apologize for his criminal mis-
conduct. See State v. Angel M., 180 Conn. App. 250,
253, 286, 183 A.3d 636 (2018). According to the defen-
dant, who maintained his innocence both at trial and
at the time of sentencing, the trial court’s enhancement
of his sentence for that reason was fundamentally unfair
because it contravened his constitutional right against
self-incrimination insofar as any such apology necessar-
ily would have required him to admit guilt. See id.,
286–88. The Appellate Court rejected the defendant’s
claim, concluding that the record did not support his
contention that the trial court had increased his sen-
tence because of his unwillingness to issue an apology
to the victims; see id., 290–91; and we granted the defen-
dant’s petition for certification to appeal. See State v.
Angel M., 328 Conn. 931, 182 A.3d 1192 (2018). We
agree with the Appellate Court and, accordingly, affirm
its judgment.
The Appellate Court opinion sets forth the following
relevant facts and procedural history. ‘‘M is the mother
of the victim. M became romantically involved with the
defendant when the victim was approximately three or
four years old. M had two children, G and the victim,
from a previous relationship. The defendant was a
father figure to the victim, and she was considered
his stepdaughter.
‘‘Approximately one year after the defendant and M
began dating, they had a child together named A. At
some point in 2000, the defendant moved in with M.
They lived together with the three children, the victim,
G, and A, in an apartment in [the city of] Hartford until
they purchased a house in 2008.
‘‘In 2006 or 2007, when the victim was approximately
twelve years old,1 she arrived home after school and
went into her mother’s bedroom to play a game on
the family’s computer. While she was playing on the
computer, the defendant came up behind her and began
kissing her neck. The victim froze. Then the defendant
picked her up and threw her on the bed. He locked the
bedroom door and ‘did something near the side of the
bed’ before lifting up the victim’s shirt and licking her
breasts. The defendant proceeded to lick the victim’s
vagina before taking off his pants and attempting to
put his penis in her vagina. The victim closed her legs,
and the defendant got off of her.2
‘‘Several years after that incident, on the evening of
December 18, 2011, the defendant and M were involved
in an incident outside of a restaurant in Newington.
That evening, M had gone to the restaurant without the
defendant. She was socializing with a female friend and
another man. The defendant, who had been waiting
impatiently for her to come home, decided to go to
the restaurant to find her. When he arrived, he saw M
socializing with a man he did not recognize. He became
angry. He confronted M in the parking lot, and an argu-
ment ensued. The defendant struck M multiple times.
The police arrived shortly thereafter and arrested the
defendant. In January, 2012, a protective order was
issued as a result of the incident. Thereafter, the defen-
dant stopped providing financial assistance to M, and
he moved out of the house and into his own apartment.
‘‘Shortly after the defendant moved out of the house,
A ceased all communication with him. The lack of com-
munication between A and the defendant concerned M.
As a result, M asked the victim to talk to A in order
to figure out why A was ignoring the defendant. On
February 7, 2012, the victim started a conversation with
A via text messages concerning the change in [A’s]
relationship with the defendant. In those communica-
tions, A told the victim that the defendant had molested
her. The victim also revealed that the defendant had
molested her, and the victim encouraged A to tell
their mother.
‘‘Shortly after this conversation, the victim told M
that A had been abused by the defendant. Upon learning
about the abuse, M contacted A’s therapist, Mary Mer-
cado, who reported the abuse to the Department of
Children and Families (department). The department
referred the case to the Hartford Police Department,
and Detective Frank Verrengia investigated the case.
The victim and A both participated in forensic inter-
views in March, 2012. The victim disclosed her abuse
during [a] forensic interview on March 8, 2012. Follow-
ing an investigation, the police arrested the defendant
on April 18, 2013. The case involving A, however, was
administratively closed in May, 2013.’’3 (Footnotes in
original.) State v. Angel M., supra, 180 Conn. App.
253–55.
‘‘The state charged the defendant with one count of
sexual assault in the first degree [in violation of General
Statutes § 53a-70 (a) (2)], one count of attempt to com-
mit sexual assault in the first degree [in violation of
§ 53a-70 (a) (2) and General Statutes § 53a-49], and one
count of risk of injury to a child [in violation of General
Statutes § 53-21 (a) (2)].’’ Id., 256. At trial, the defendant
testified in his own defense that he had never touched
the victim or A in a sexually inappropriate manner. His
‘‘theory of defense was that the victim and [A] both
fabricated the allegations of sexual abuse. Specifically,
he claimed that they made these false allegations in
retaliation for his having hit [M] during the restaurant
incident, and for withdrawing all financial support from
the family after moving out of the house. The jury found
the defendant guilty on all counts.’’ Id.
‘‘At the sentencing hearing, the state did not provide
a specific recommendation for a sentence. The state
simply requested a ‘significant sentence’ for the defen-
dant, while making clear that there was a mandatory
minimum for the charged offenses. The state also noted
that the defendant’s ‘unwillingness to participate in any
sex offender treatment programs or to acknowledge
any criminal behavior . . . puts him at a much higher
risk’ to reoffend.
‘‘The defendant was afforded an opportunity to
address the court and [to] present additional mitigating
evidence. The court heard from several individuals in
support of the defendant’s good character. One such
individual was the defendant’s current romantic part-
ner, who has a teenage daughter, with whom the defen-
dant had been residing during the proceedings.
‘‘Before being sentenced, the defendant engaged in
the following colloquy with the court:
‘‘ ‘[The Defendant]: The jurors found me guilty. I am
innocent of these charges presented against me, and I
want to appeal this case.
‘‘ ‘The Court: Well, I appreciate your position, but, in
a case like this, the lifetime effects on the victims can
be lessened if the person who committed these acts,
particularly in a familial relationship, whether father or
stepfather, takes responsibility. I know you wish to
appeal, and that does create a dilemma.
‘‘ ‘[The Court Interpreter]: Your Honor, may that be
repeated for the interpreter?
‘‘ ‘The Court: Well, apologizing, admitting what he
did, taking responsibility will help the victims enor-
mously; at least that has been my experience over four
decades in this business. However, it puts a crimp in
your ability to appeal. Do you understand that?
‘‘ ‘[The Defendant]: I did understand. But how would
I say sorry for something that I did not do. These are
just allegations? I love my daughter; I worked really
hard for them. This was hard for me. And I work hard
to support this family, two, three jobs to have our home
and to lose everything because of these allegations. It’s
not fair.
‘‘ ‘The Court: Well, that’s your decision, sir. If you
wish to continue to deny it, that’s your absolute right.
The court will not punish you for that; however, you
do not get any extra credit. Do you have anything else
you wish to say?
‘‘ ‘[The Defendant]: No. That’s it for now.’ ’’ (Empha-
sis in original.) Id., 286–88.
‘‘Thereafter, the court addressed the defendant and
explained that ‘sentencings have to do with [the] four
following considerations: rehabilitation, deterrence,
protection of society, and punishment.’ The court
acknowledged that the defendant had a positive presen-
tence investigation report [(PSI) and outstanding work-
ing history] and that several people spoke on his behalf.
The court considered the defendant’s demeanor during
the trial and his successful completion of a family vio-
lence education program.’’ Id., 288. The court also rec-
ognized ‘‘the dilemma of the appeal[s] process’’ as it
related to the defendant’s willingness to accept respon-
sibility for his crimes but noted that, ‘‘in this type of
case, it is most helpful to the victims to have an admis-
sion or an apology.’’ The court also stated that it is
‘‘particularly important for them to be restored to [a]
calm, collected, healthy mental state.’’
Notably, the court expressed concern that the defen-
dant was then living with another woman and her teen-
aged daughter. The court then observed that ‘‘the defen-
dant has violated the trust in a household’’ and was ‘‘a
predator,’’ and that, ‘‘although [the defendant] was not
charged with . . . crimes against his [biological]
daughter [A], she did testify [as to his sexual abuse of
her] under oath . . . and was quite credible.’’ The court
then concluded: ‘‘These two young ladies have been
devastated by your actions, sir. . . . [T]his type of
offense, this type of deviancy occurs in men in all strata
of society . . . . I have had many . . . of these cases.
The fact that one violates the trust of a young girl, who’s
put her trust in you, is just about the worst crime we
have short of murder.’’
‘‘After noting that it had ‘taken all these things into
account and . . . tried to balance the seriousness of
this offense,’ the court sentenced the defendant to a
total effective sentence of forty-five years [of] imprison-
ment, execution suspended after thirty-three years, to
be followed by twenty-five years of probation.’’4 State
v. Angel M., supra, 180 Conn. App. 288.
On appeal to the Appellate Court, the defendant
claimed that the trial court improperly augmented his
sentence because he refused to apologize to the victims5
following his conviction.6 See id., 286. The Appellate
Court rejected this contention, noting, first, that the
claim was unpreserved but nonetheless reviewable
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), because the record was
adequate for review and the claim was one of constitu-
tional magnitude. State v. Angel M., supra, 180 Conn.
App. 288. With respect to the legal principles governing
the defendant’s claim, the Appellate Court recognized
that, ‘‘[a]lthough a court may deny leniency to an
accused who . . . elects to exercise a statutory or con-
stitutional right, a court may not penalize an accused
for exercising such a right by increasing his or her
sentence solely because of that election.’’ (Internal quo-
tation marks omitted.) Id., 289, quoting State v. Elson,
311 Conn. 726, 762, 91 A.3d 862 (2014); see also Mitchell
v. United States, 526 U.S. 314, 316–17, 119 S. Ct. 1307,
143 L. Ed. 2d 424 (1999) (sentencing court, in determin-
ing facts that bear on severity of sentence, may not,
consistent with fifth amendment privilege against self-
incrimination, draw adverse inference from defendant’s
silence at sentencing). The Appellate Court further
stated, however, that a sentencing court properly may
consider a defendant’s lack of remorse in fashioning
an appropriate sentence and that, under State v. Huey,
199 Conn. 121, 128, 505 A.2d 1242 (1986), a court at
sentencing also may consider a defendant’s denial of
culpability in evaluating his or her prospects for rehabil-
itation. State v. Angel M., supra, 289–90.
Applying these principles to the present case, the
Appellate Court then opined that, although the trial
court placed particular emphasis on ‘‘the defendant’s
failure to accept responsibility and his failure to apolo-
gize to the victims’’; id., 290; all of the sentencing factors
considered by the court were proper. See id. As the
Appellate Court also noted, the trial court ‘‘expressly
stated that it would not punish the defendant for exer-
cising his ‘absolute right’ to not admit guilt and [to]
appeal his judgment of conviction, but it would not give
him any ‘extra credit.’ The [trial] court’s statements
comport with the principle that a court may deny
leniency to a defendant for exercising a constitutional
right, but it may not punish him or her for exercising
such a right. . . . The defendant . . . provided no rea-
son . . . to doubt the trial court’s representation that
it was not going to punish [him] for exercising his ‘abso-
lute right.’ ’’ (Citation omitted.) Id., 290–91. Although
the Appellate Court’s determination that the trial court
did not penalize the defendant for invoking his privilege
against self-incrimination would have sufficed to
resolve the defendant’s claim in the state’s favor, the
court went on to say that, ‘‘[b]ecause [it] conclude[d]
that [its] decision [was] controlled by [this court’s] deci-
sion in State v. Huey, supra, 199 Conn. 121, [it was] not
persuaded by the defendant’s citation to cases from
other jurisdictions for the proposition that a court may
not consider a defendant’s silence at sentencing as an
indication of a lack of remorse.’’7 State v. Angel M.,
supra, 180 Conn. App. 290 n.13.
We thereafter granted the defendant’s petition for
certification to appeal, limited to the following two
issues: (1) ‘‘Did the Appellate Court properly conclude
that the trial court did not penalize the defendant for
maintaining his innocence at sentencing?’’ And (2)
‘‘[s]hould this court overrule State v. Huey, [supra, 199
Conn. 121], because consideration of a defendant’s
refusal to admit guilt for any purpose at sentencing
is a violation of the defendant’s [constitutional] right
against self-incrimination?’’ State v. Angel M., supra,
328 Conn. 931.
On appeal to this court, the defendant maintains that
the Appellate Court incorrectly concluded that the trial
court had not punished him for invoking his right
against self-incrimination and refusing to apologize to
the victims. In support of this claim, the defendant
contends that the Appellate Court failed to consider
that the trial court imposed the maximum sentence for
each offense, even though the PSI report recommended
a ‘‘moderate sentence’’8 and estimated the defendant’s
risk of reoffending as very small, and the defendant had
no prior criminal record. Moreover, before imposing
sentence, the court repeatedly referred to the defen-
dant’s refusal to apologize to the victims. In the defen-
dant’s view, these factors demonstrate that the trial
court did, in fact, punish the defendant for invoking his
constitutional right against self-incrimination, notwith-
standing the court’s express representation to the con-
trary. The defendant further contends that, insofar as
State v. Huey, supra, 199 Conn. 121, concludes that a
court may consider an accused’s silence at sentencing
as reflecting a lack of remorse or diminished prospects
for rehabilitation, we should disavow that holding as
incompatible with the accused’s privilege against self-
incrimination.
We reject the defendant’s claim because it is belied
by the trial court’s sentencing remarks—in particular,
the court’s explicit, on-the-record assurance that it
would not increase the defendant’s sentence for exer-
cising his constitutional right against self-incrimina-
tion.9 In light of this conclusion, we leave for another
day the question of whether the federal constitution
bars a sentencing court from considering, for any puni-
tive purpose, a defendant’s denial of guilt or refusal to
accept responsibility for the crimes of which he has
been found guilty.10 Consequently, we need not address
the second certified question.11
It is well settled that ‘‘a trial court possesses, within
statutorily prescribed limits, broad discretion in sen-
tencing matters. On appeal, we will disturb a trial court’s
sentencing decision only if that discretion clearly has
been abused.’’ State v. Kelly, 256 Conn. 23, 80–81, 770
A.2d 908 (2001). In exercising its discretion, the trial
court ‘‘may appropriately conduct an inquiry broad in
scope, largely unlimited either as to the kind of informa-
tion [it] may consider, or the source from which it may
come.’’ United States v. Tucker, 404 U.S. 443, 446, 92
S. Ct. 589, 30 L. Ed. 2d 592 (1972). A ‘‘defendant’s
demeanor, criminal history, [PSI], prospect for rehabili-
tation and general lack of remorse for the crimes of
which he has been convicted’’ are all factors that the
court may consider in fashioning an appropriate sen-
tence. (Internal quotation marks omitted.) State v.
Elson, supra, 311 Conn. 782.
Notwithstanding this highly deferential standard of
review, the trial court’s discretion in regard to sentenc-
ing is not unfettered. E.g., State v. Huey, supra, 199
Conn. 127. As the Appellate Court explained, a court
generally is not prohibited from denying leniency to a
defendant who elects to exercise a statutory or constitu-
tional right. State v. Angel M., supra, 180 Conn. App.
289; see also State v. Elson, supra, 311 Conn. 762; State
v. Revelo, 256 Conn. 494, 513, 775 A.2d 260, cert. denied,
534 U.S. 1052, 122 S. Ct. 639, 151 L. Ed. 2d 558 (2001).
Principles of due process, however, forbid a court from
retaliating against a defendant by increasing his sen-
tence merely because of the exercise of such a right.
E.g., State v. Elson, supra, 762; State v. Revelo, supra,
513; see also Bordenkircher v. Hayes, 434 U.S. 357, 363,
98 S. Ct. 663, 54 L. Ed. 2d 604 (1978) (‘‘[t]o punish a
person because he has done what the law plainly allows
him to do is a due process violation of the most basic
sort’’); Mallette v. Scully, 752 F.2d 26, 30 (2d Cir. 1984)
(‘‘[T]he sentencing judge, in his discretion, may take
into account as a mitigating factor the defendant’s vol-
untary cooperation with the authorities. Nowhere have
we suggested that the defendant’s refusal to cooperate
may be considered in increasing the sentence he would
otherwise receive. It is one thing to extend leniency
to a defendant who is willing to cooperate with the
government; it is quite another thing to administer addi-
tional punishment to a defendant who by his silence has
committed no additional offense.’’ [Emphasis omitted;
internal quotation marks omitted.]).
When a defendant claims that a trial court augmented
his sentence because of his decision to exercise a con-
stitutional right, the burden is on the defendant to dem-
onstrate the existence of that constitutional violation
based on the totality of the circumstances.12 See State
v. Elson, supra, 311 Conn. 758–59. This is no easy task.
As we have explained, ‘‘courts in other jurisdictions
generally have required remarks by a trial judge to
threaten explicitly a defendant with a lengthier sentence
should the defendant opt [to exercise a statutory or
constitutional right], or indicate that a defendant’s sen-
tence was based on that choice. See, e.g., United States
v. Cruz, 977 F.2d 732, 733 (2d Cir. 1992) (I’m the kind
of a judge where you get a fair trial . . . [but] [i]f I
find that after the trial . . . you didn’t have a defense
at all, you’re going to get the maximum, because you’re
playing games with me); United States v. Hutchings,
[757 F.2d 11, 13 (2d Cir.)] ([The] judge stated at sentenc-
ing that [the] trial was a total waste of public funds and
resources . . . [and that] there was no defense in [the]
case. [The defendant] was clearly and unquestionably
guilty, and there should have been no trial.) [cert.
denied, 472 U.S. 1031, 105 S. Ct. 3511, 87 L. Ed. 2d 640
(1985)]; People v. Mosko, 190 Mich. App. 204, 210, 475
N.W.2d 866 (1991) (I am very concerned about this case
. . . because it was a case that went to trial . . . [a]nd
to get up on the stand and [be] sanctimonious and
you’re self-righteous and you’re guilty, that seems to
me to be something that is—that is beyond [decent])
[aff’d, 441 Mich. 496, 495 N.W.2d 534 (1992)].
‘‘[When] a trial court [has] employed more ambiguous
language, however, courts generally have rejected
claims that the trial court infringed on the defendant’s
rights. See, e.g., United States v. Tracy, [12 F.3d 1186,
1202 (2d Cir. 1993)] ([The defendant] not only minimizes
his role in this operation, but negates it. In other words,
he claims there was really nothing going on here and
that he has been unjustly and unfairly and illegally pros-
ecuted by the government . . . .); State v. Brown, [131
Idaho 61, 73, 951 P.2d 1288 (App. 1998)] (You want
to maintain your innocence, that’s fine. The evidence
shows otherwise. And you have to suffer the conse-
quence. . . . I find that you have abused the justice
system and you are paying a consequence because of
that.); State v. Tiernan, [645 A.2d 482, 487 (R.I. 1994)]
(defendant required [the victim] to testify by exercising
his right to stand trial).’’ (Internal quotation marks omit-
ted.) State v. Kelly, supra, 256 Conn. 82–83.
Consistent with the foregoing authority, in State v.
Elson, supra, 311 Conn. 726, this court concluded that
the defendant, Zachary Jay Elson, failed to demonstrate
that he was penalized for exercising his right to a jury
trial. Id., 740, 760–61. Following Elson’s convictions of
offenses stemming from his physical assault of a female
college student; id., 730–31; the trial court conducted
a sentencing hearing at which Elson addressed the court
and apologized to the victim. Id., 732–33. Before impos-
ing sentence, the court stated: ‘‘We’ve all heard [Elson’s]
apology. I don’t know how sincere it is, but it is certainly
unfortunate that it comes so late in the process. If
[Elson] had been truly apologetic, he wouldn’t have put
the victim through the trial. To a large extent, it seems
to me that [Elson’s] apology represents thinking of him-
self rather than the victim.’’ (Emphasis altered; internal
quotation marks omitted.) Id., 733. On appeal, Elson
pointed to the court’s sentencing remarks as convincing
evidence that he had been punished for electing to stand
trial rather than accepting a plea bargain offered by the
state; see id., 736, 756; a contention we rejected for
three reasons. See id., 760–62. First, we observed that
the length of Elson’s sentence belied his claim of vindic-
tiveness because the sentence was significantly less
than the maximum exposure he faced and appreciably
less than what the state had recommended. See id., 761;
see also id. (in determining whether record supported
Elson’s claim that trial court penalized him for exercis-
ing constitutional right, ‘‘the length of the sentence that
[Elson] received must be evaluated relative to the maxi-
mum sentence faced by [Elson] and the sentence recom-
mended by the state’’). Second, we reasoned that ‘‘the
vast majority of the trial court’s sentencing remarks
reflected a detailed focus on legitimate sentencing con-
siderations’’; (internal quotation marks omitted) id.;
including the information contained in the PSI, Elson’s
demeanor, his false trial testimony, his criminal history,
his prospects for rehabilitation, the seriousness of the
offense, and the fact that he had committed his crime
while free on bail awaiting trial on other felony offenses.
See id., 735, 761–62. Finally, we deemed it ‘‘significant
that, when the trial court made the specific comments
at issue, it did so in the context of discounting the
mitigating factors, including [Elson’s] allocution, state-
ments from a family friend and his father, and a letter
from his mother, rather than in its separate recitation
of factors that would justify lengthening [Elson’s] sen-
tence . . . .’’13 Id., 762.
Conversely, in State v. Revelo, supra, 256 Conn. 494,
we concluded that the trial court had increased the
sentence of the defendant, Hector Revelo, solely
because he elected to exercise his right to challenge
the constitutionality of a police search of his home that
had resulted in the seizure of a substantial quantity of
cocaine. Id., 496–97, 514. After Revelo was charged with
certain drug and related offenses stemming from that
search, he filed a motion to suppress the cocaine on
the ground that the facts alleged in the search warrant
on which the seizure of the cocaine was predicated did
not support a finding of probable cause. Id., 497. At a
pretrial hearing, the trial court announced that,
although Revelo had been offered a plea bargain pursu-
ant to which he would be permitted to plead guilty and
to receive a sentence of eight years of imprisonment,
he elected to have a hearing and a ruling on his motion
to suppress. See id. The court further stated that, if
Revelo pressed his motion and, after the hearing, it was
denied, he could then enter a guilty plea and receive a
sentence of nine years instead of eight years. Id., 497–98.
Revelo chose the second option, and, in accordance
with that election, a hearing was conducted on his
motion to suppress, following which the motion was
denied.14 Id., 498. Shortly thereafter, Revelo entered a
plea of nolo contendere to the charge of selling illegal
drugs, and, as the court previously had promised him,
he received a sentence of nine years. Id., 498–99. On
appeal, Revelo maintained that the nine year sentence
violated his right to due process because he received
that sentence, instead of the eight year sentence that
he had been offered originally, solely for exercising his
right to a judicial resolution of his motion to suppress.
Id., 499.
We agreed with Revelo, explaining in relevant part:
‘‘It has been noted that, in certain circumstances, it may
be difficult to draw a meaningful distinction between
‘enhancing’ the punishment imposed on an accused who
exercises a constitutional right and denying him the
‘leniency’ that he claims he would deserve if he waived
that right. . . . Although the distinction between refus-
ing to show leniency to an accused who insists on
asserting a constitutional right and punishing an
accused for asserting that right may, at times, be a fine
one, there is no difficulty in discerning what occurred
in [Revelo’s] case: the trial court imposed a more severe
sentence on [Revelo] solely because he asserted his
right to a judicial ruling on his motion to suppress.’’
(Citation omitted.) Id., 513–14.
This case presents a stark contrast to what occurred
in Revelo. In the present case, after hearing from several
character witnesses who spoke in support of the defen-
dant, the trial court asked the defendant if he had any-
thing to say, and he stated that, although the jurors had
found him guilty, he was innocent of the charges and
intended to appeal. The court responded that it
‘‘appreciate[d] [the defendant’s] position’’ and acknowl-
edged that admitting guilt ‘‘does create a dilemma’’ with
respect to his desire to appeal. The court further
explained, however, that accepting responsibility and
apologizing to the victims would likely ‘‘help the victims
enormously,’’ to which the defendant replied that he
could not express remorse for ‘‘something that [he] did
not do.’’ At that point, the court informed the defendant
that he had an ‘‘absolute right’’ to maintain his inno-
cence and assured him that it would ‘‘not punish’’ him
for doing so. Although the court also informed the
defendant that he would not receive any ‘‘extra credit’’
for refusing to take responsibility for the offenses—in
other words, he would not be granted whatever mea-
sure of leniency he otherwise would have been afforded
if he had been willing to admit culpability—the court
had every right to so advise the defendant. In fact,
the court’s candor on the issue is commendable, first,
because transparency in sentencing is to be encour-
aged, and, second, because it gave the defendant a final
chance to mitigate his sentence, if he chose to do so, by
acknowledging his guilt and apologizing to the victims.
Following this colloquy, the court articulated its rea-
sons for the sentence it was about to impose. After
noting a number of mitigating factors, the court again
observed that, although admitting guilt and apologizing
for the offenses would pose a dilemma for the defendant
because of his desire to appeal, doing so would be
‘‘most helpful’’ to the victims. Nothing the court stated
before announcing its sentence, however, called into
question its explicit assurance, made in the plainest of
terms, that the defendant would not be penalized for
invoking his constitutionally protected right to maintain
his innocence.
In this regard, it bears mention that the record in the
present case is considerably clearer than the record in
State v. Kelly, supra, 256 Conn. 23, in which we rejected
a claim that the trial court violated the right of the
defendant, Alex Kelly, to proceed to trial rather than
to plead guilty. Id., 79–80. Kelly’s contention was predi-
cated on the fact that, at the conclusion of his sentenc-
ing hearing, and prior to imposing sentence, the court
stated that one of many factors it had considered in
reaching a sentencing decision was ‘‘whether or not
there was a plea or a complete trial,’’ which, the court
further stated, ‘‘is one of the legal factors to consider
in sentencing.’’ (Internal quotation marks omitted.) Id.,
80. In disagreeing with the claim, we explained that
‘‘the totality of the circumstances surrounding [Kelly’s]
sentencing gives no indication that the trial court
improperly augmented [his] sentence based on his deci-
sion to stand trial.’’ Id., 83. ‘‘No fair reading of the record
would permit the conclusion that the trial court’s com-
ment should be understood to mean that it was length-
ening [Kelly’s] sentence . . . on [the basis of] his
choice to stand trial. Rather, we interpret the trial
court’s remark as a reminder to [Kelly] of the oft
acknowledged truth that many factors favor relative
leniency for those who acknowledge their guilt . . .
and thus help conserve scarce judicial and prosecutorial
resources for those cases that merit the scrutiny
afforded by a trial. . . . There is a world of difference
between that reminder and a clear showing that [Kelly]
received a lengthier sentence because he chose to exer-
cise his right to a jury trial.’’ (Citation omitted; internal
quotation marks omitted.) Id., 84. Unlike the comment
at issue in Kelly—which, unless viewed in the broader
context of the court’s sentencing remarks, arguably
could be construed as suggesting that the court had
increased Kelly’s sentence because he opted to stand
trial—the remarks of the trial court in the present case
contained not even the slightest ambiguity: the court
in the present case stated clearly and categorically that
the defendant would not be punished for invoking his
right against self-incrimination. Although, in some
cases, a sentencing court’s comments may ‘‘[cross] that
fine line between showing leniency . . . and punishing
a defendant for his silence’’; (citations omitted) United
States v. Stratton, 820 F.2d 562, 564 (2d Cir. 1987); a
distinction that ‘‘may be difficult to apply’’ in a particular
case; id.; this is not such a case.15
The defendant relies on a few sister state cases—
most notably, State v. Burgess, 156 N.H. 746, 943 A.2d
727 (2008)—to support his claim of a constitutional
violation based merely on the trial court’s advisement
that he could expect a more lenient sentence than he
otherwise would receive if he was willing to accept
responsibility for the offenses. In Burgess, the New
Hampshire Supreme Court construed its state constitu-
tion as eschewing the distinction between granting
leniency to a defendant for accepting responsibility and
penalizing a defendant for invoking his right against
self-incrimination. See id., 760 (concluding that, under
New Hampshire constitution, ‘‘denying a defendant
leniency simply because he fails to speak and express
remorse is equivalent to penalizing him for exercising
his right to remain silent’’); see also People v. Wesley,
428 Mich. 708, 713, 411 N.W.2d 159 (if defendant main-
tains his innocence following guilty verdict, sentence
will be deemed improper if reviewing court concludes
that sentencing court ‘‘attempt[ed] to get the defendant
to admit guilt’’ and it appears ‘‘that had the defendant
affirmatively admitted guilt, his sentence would not
have been so severe’’), cert. denied, 484 U.S. 967, 108
S. Ct. 459, 98 L. Ed 2d 399 (1987). We are not persuaded
by that proposition—which is contrary to the over-
whelming weight of authority—because, as we pre-
viously explained, there is a meaningful difference
between increasing a sentence solely on the basis of
the exercise of a constitutional right and denying
leniency for invoking that right and declining to accept
responsibility. See, e.g., State v. Elson, supra, 311 Conn.
760–62 (no constitutional violation when trial court
stated at sentencing that guilty plea or admission of
guilt would have been mitigating factor); State v. Kelly,
supra, 256 Conn. 84 (recognizing critical distinction
between granting leniency to defendant who acknowl-
edges guilt, which is perfectly proper, and penalizing
defendant for maintaining innocence, which is constitu-
tionally prohibited).
Indeed, we agree with the Second Circuit Court of
Appeals that the distinction is a significant one because
‘‘it is the only rule that recognizes the reality of the
criminal justice system while protecting the integrity
of that system.’’ Mallette v. Scully, supra, 752 F.2d 30.
This is so because the rule advocated by the defendant
is unworkable: it effectively would prohibit a sentencing
court from granting leniency to a defendant who waives
his right to remain silent and accepts responsibility
because, in granting such leniency, the court necessarily
would be acknowledging the very distinction that the
defendant would have us reject. Under that rule, then,
it would appear that a court would be barred from
granting leniency to a defendant who accepts responsi-
bility merely because that same leniency would be
unavailable to a defendant who does not accept respon-
sibility. It is that result—one that penalizes a defendant
who accepts responsibility by denying the credit that
he otherwise would have received for doing so—that
is fundamentally unfair.
As the United States Supreme Court has repeatedly
recognized, however, ‘‘not every burden on the exercise
of a constitutional right, and not every pressure or
encouragement to waive such a right, is invalid.’’ Corbitt
v. New Jersey, 439 U.S. 212, 218, 99 S. Ct. 492, 58 L.
Ed. 2d 466 (1978). Indeed, ‘‘[t]he criminal process, like
the rest of the legal system, is replete with situations
requiring the making of difficult judgments as to which
course to follow. Although a defendant may have a right,
even of constitutional dimensions, to follow whichever
course he chooses, the [c]onstitution does not by that
token always forbid requiring him to choose.’’ (Internal
quotation marks omitted.) McKune v. Lile, 536 U.S. 24,
41, 122 S. Ct. 2017, 153 L. Ed. 2d 47 (2002); see also
United States v. Maria, 186 F.3d 65, 68 n.2 (2d Cir.
1999) (‘‘Criminal defendants are regularly forced to con-
front the choice between forgoing the exercise of legal
rights and risking stiffer penalties. . . . That they face
such choices does not, alone, offend due process.’’
(Citation omitted.)). Granting leniency to defendants
who accept responsibility for their crimes ‘‘may well
affect how criminal defendants choose to exercise their
constitutional rights. . . . [But] [p]ersons involved in
the criminal law process are faced with a variety of
choices. Some of the alternatives may lead to unpleas-
ant consequences. For example, to choose to go to trial
may result in greater punishment. To take the stand as a
witness in one’s case opens the door to possible perjury
charges as well as possibly strengthening the prosecu-
tion’s case. [The opportunity to receive credit for
accepting responsibility] may add to the dilemmas fac-
ing criminal defendants, but no good reason exists to
believe that [the reason for affording a defendant that
opportunity is] intended to punish anyone for exercising
rights. We are unprepared to equate the possibility of
leniency with impermissible punishment.’’ (Citation
omitted; footnotes omitted.) United States v. Henry,
883 F.2d 1010, 1011 (11th Cir. 1989). We, therefore, like
the vast majority of courts, ‘‘reject [the] contention that
the availability of a sentence reduction to one who
clearly admits personal responsibility for the offense is
the equivalent of an increase in sentence for one who
does not.’’ United States v. Parker, 903 F.2d 91, 105 (2d
Cir.), cert. denied, 498 U.S. 872, 111 S. Ct. 196, 112 L.
Ed. 2d 158 (1990), and cert. denied sub nom. Moon v.
United States, 498 U.S. 874, 111 S. Ct. 201, 112 L. Ed.
2d 162 (1990).
The defendant nonetheless argues that the trial court
must have penalized him for maintaining his innocence
because the court made repeated references to the
defendant’s refusal to apologize to the victims, he
received the maximum allowable sentence even though
he had no prior criminal record, and the PSI placed his
risk of reoffending at only 2.1 percent and included a
recommendation of a ‘‘moderate sentence.’’ We dis-
agree with the defendant’s claim. First, it is true, of
course, that the court was clear that it would be very
beneficial to the victims—and advantageous to the
defendant—if he accepted responsibility for the
offenses and issued an apology. As we previously dis-
cussed, however, the court was equally clear in
acknowledging the ‘‘dilemma’’ that such an admission
created for the defendant in light of his desire to appeal,
and, most important, the court assured the defendant
that he would not be penalized for maintaining his inno-
cence. In view of this assurance, we are not persuaded
that what the court said about apologizing to the victims
advances the defendant’s claim.
With respect to the defendant’s contention concern-
ing the severity of his sentence, his maximum exposure
for the three offenses was a term of imprisonment of
sixty-five years, and he received a total effective prison
term of thirty-three years. See footnotes 4 and 8 of this
opinion. Although the lengthy period of incarceration
imposed on the defendant is no doubt on the high end of
the sentencing range, it does not approach the statutory
maximum sentence that he potentially could have
received. Considering the very broad sentencing discre-
tion vested in the trial court; see, e.g., State v. Baldwin,
224 Conn. 347, 370–71, 618 A.2d 513 (1993) (claim that
sentence is too severe is virtually unreviewable if sen-
tence falls within statutory limits); the prison term
imposed on the defendant does not give rise to an infer-
ence that the court punished him for refusing to apolo-
gize to the victims.
Although the defendant did not have any prior convic-
tions, the court heard sworn testimony from the defen-
dant’s daughter, A, that, on several occasions, the defen-
dant also molested her, approximately four or five years
after his sexual assault of the victim, when A was eleven
years old. At the sentencing hearing, the court observed
that A testified ‘‘quite credibl[y]’’ about that uncharged
misconduct and that she, like the victim, was ‘‘devas-
tated’’ by the abuse she had suffered at the hands of
the defendant. In light of A’s convincing testimony that
the defendant had molested her as well as the victim,
the court was free to discount the fact that the defen-
dant had no prior record.
Nor do we agree with the defendant that the recom-
mendation of a ‘‘moderate sentence’’ in the PSI and its
estimate placing the defendant’s likelihood of reof-
fending at 2.1 percent support the conclusion that the
trial court increased his sentence for maintaining his
innocence, despite the court’s assurance that it would
do no such thing. Although ‘‘our law makes clear that
[PSIs] are to play a significant role in reaching a fair
sentence’’; State v. Thomas, 296 Conn. 375, 389, 995
A.2d 65 (2010); the trial court’s discretion in sentencing
is not constrained by any recommendation that may be
contained in the report. See State v. Patterson, 236
Conn. 561, 575, 674 A.2d 416 (1996) (‘‘[c]ourts . . . are
afforded equally broad discretion in imposing a sen-
tence when a PSI has been provided’’).
Finally, it is apparent that the trial court was unper-
suaded by the PSI’s assessment of the defendant as
not posing a serious recidivism risk. As we previously
noted, the state sought a ‘‘ ‘significant’ ’’ sentence
because of the defendant’s refusal to acknowledge any
wrongdoing or to participate in sex offender treatment,
a matter of considerable concern that, the state main-
tained, put the defendant ‘‘ ‘at a much higher risk’ ’’ of
reoffending. State v. Angel M., supra, 180 Conn. App.
286. The trial court, which referred to the defendant as
a ‘‘predator,’’ evidently sided with the state. The court
also described the defendant’s offense as ‘‘just about
the worst crime we have short of murder,’’ one that
‘‘devastate[s]’’ its victims and ‘‘violate[s] the laws of all
civilized societies in nature.’’ In light of these remarks,
insofar as there is any question as to the trial court’s
reason for imposing such a substantial sentence, we
believe the answer lies in the court’s assessment of
the gravity of the offenses and their extraordinarily
deleterious effect on the child victim,16 and not in any
desire to punish the defendant for maintaining his
innocence.17
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)
(2018); we decline to identify any person protected or sought to be protected
under a protective order or a restraining order that was issued or applied
for, or others through whom that person’s identity may be ascertained.
** The listing of justices reflects their seniority status on this court as of
the date of oral argument.
*** December 31, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
‘‘The victim did not remember exactly how old she was when the sexual
abuse occurred, but she testified that she would have been twelve or thirteen
because she was in middle school when it happened. She also testified that
the abuse took place while the family was living in the apartment in Hartford,
during the spring or summer, rather than the house that the defendant and
M purchased in 2008.’’ State v. Angel M., supra, 180 Conn. App. 254 n.1.
2
‘‘In addition to the victim’s testimony regarding the sexual abuse, the
jury heard testimony from three constancy of accusation witnesses. The
first was K, the victim’s childhood friend. She testified that when they were
in fifth or sixth grade, the victim told her that the defendant had molested her.
She also testified that the victim provided more details about the molestation
when they were freshmen in high school. K’s father was the second constancy
witness. Although he could not remember an exact date, he recalled the
victim telling him that the defendant had molested her. The third witness,
G, the victim’s brother, testified that the victim had told him via a text
message that she had been ‘touched.’ He testified that he received the text
message at some point in 2010 while he was in Europe.
‘‘The victim also testified that the defendant would kiss her neck ‘and
stuff’ every time that she would go on the computer and that on one occasion
she woke up and saw the defendant in her bedroom pulling his hands out
of his pants. In this case, however, the state only charged the defendant on
the basis of the single incident in her mother’s bedroom that involved
cunnilingus and attempted vaginal penetration.’’ State v. Angel M., supra,
180 Conn. App. 254 n.2.
3
At trial, the state was permitted to introduce A’s testimony as prior
misconduct evidence. She ‘‘testified that the defendant began abusing her
[in or around 2011] when she was eleven years old, approximately four or
five years after the sexual abuse of the victim. The first incident occurred
while the defendant still was living in the family’s house in Hartford. A was
talking to the defendant in his bedroom when he started to tongue kiss her.
The defendant removed her shirt and continued kissing her, but she was
able to push him off of her. She put her shirt back on and left the bedroom.
The second incident occurred approximately one week later. This time, the
defendant attempted to remove A’s shirt and touch her breasts at the family
home. A was able to get away from him because her sister-in-law arrived
at the house and interrupted him. The third incident occurred after the
defendant had moved out of the family home to his own apartment. Again,
the defendant started by tongue kissing her, and, then, he removed her shirt.
The defendant was trying to touch her vagina and breasts, despite A’s
attempts to push him off of her. During this incident, the defendant attempted
to get undressed while he continued touching A, until she suggested that
they go to the movies in order to get out of the house.’’ (Footnote omitted.)
State v. Angel M., supra, 180 Conn. App. 256–57; see id., 257 n.3.
4
More specifically, the trial court sentenced the defendant to twenty-five
years on count one for sexual assault in the first degree, twenty years on
count two for attempt to commit sexual assault in the first degree, to run
concurrently with count one, and twenty years on count three for risk of
injury to a child, execution suspended after eight years, followed by twenty-
five years of probation, to run consecutively to count one.
5
Although the charges against the defendant pertained only to the sexual
assault perpetrated on the victim, M’s daughter, we refer to the victim and
A collectively as the victims.
6
In the Appellate Court, the defendant also claimed that (1) the trial court
abused its discretion in permitting the state to present uncharged misconduct
evidence concerning the defendant’s sexual abuse of A, and (2) the senior
assistant state’s attorney engaged in several improprieties during cross-
examination and closing argument that deprived the defendant of his consti-
tutional right to a fair trial. See State v. Angel M., supra, 180 Conn. App.
256, 264. These claims, which the Appellate Court rejected; see id., 264, 286;
are not the subject of this appeal.
7
In Huey, the defendant, Kent K. Huey, was charged with sexual assault
in the first degree and burglary in the first degree after he surreptitiously
entered a neighbor’s apartment and sexual assaulted her at knifepoint. State
v. Huey, supra, 199 Conn. 123. Following plea negotiations, Huey entered
a guilty plea to sexual assault in the third degree. Id. Even though that
offense does not require proof of penetration, the state informed the trial
court at the time of sentencing that, if there had been a trial, the victim
would have testified that Huey had penetrated her sexually. Id., 124. Huey
admitted to sexually assaulting the victim but denied that penetration had
occurred. Id., 125. Before imposing sentence, the court, crediting the victim’s
version of the assault, expressed the view that Huey’s denial of penetration
reflected adversely on his prospects for rehabilitation. Id. Thereafter, Huey
appealed to the Appellate Court, claiming, inter alia, that ‘‘the sentencing
judge forced him to admit guilt to a crime with which he was not charged
and then punished him for the assertion of his . . . right against self-incrimi-
nation when he persisted in his denial of penetration.’’ Id., 128. The Appellate
Court rejected Huey’s claim; id.; and we granted his petition for certification
to appeal, limited to that issue. Id., 122. We agreed with the Appellate Court
that Huey could not prevail on his claim, explaining that Huey ‘‘did not
assert his . . . privilege [against self-incrimination] but rather, while repre-
sented by counsel, voluntarily responded to the court’s inquiries. . . . [T]he
sentencing judge did not attempt to force an admission; he merely gave
[Huey] an opportunity to present his version of the incident. Having heard
it, he did not have to believe it.’’ (Citations omitted.) Id, 128–29. Thus,
Huey was not ‘‘punished for persisting in his denial [that] penetration [had
occurred]. Rather, the sentencing judge, after observing him, simply factored
[Huey’s] denial, as an indication of his lack of readiness for rehabilitation,
into that complex formula from which he labored to derive a just sentence.’’
Id., 129.
8
As the defendant asserts, the sentence imposed by the trial court for
each of the defendant’s three offenses; see footnote 4 of this opinion; was
the maximum term of imprisonment allowable for the offense: sexual assault
in the first degree, a class A felony, carries a maximum sentence of twenty-
five years imprisonment; see General Statutes §§ 53a-35a (4) and 53a-70 (a)
(2) and (b) (2); attempt to commit sexual assault in the first degree, a class
B felony, carries a maximum sentence of twenty years imprisonment; see
General Statutes §§ 53a-35a (6), 53a-51 and 53a-70 (a) (2) and (b) (2); and
risk of injury to a child, also a class B felony, likewise carries a maximum
sentence of twenty years imprisonment. See General Statutes §§ 53a-35a (6)
and 53-21 (a). The trial court, however, suspended execution of twelve years
of the twenty year sentence imposed for the defendant’s conviction of risk
of injury to a child. See footnote 4 of this opinion. In addition, the court
ordered that the sentence for the conviction of attempt to commit sexual
assault in the first degree run concurrently with the sentence for the convic-
tion of sexual assault in the first degree. Thus, the maximum sentence
that that defendant could have received was sixty-five years; the defendant
received a total effective sentence of thirty-three years.
9
For the reasons set forth by the Appellate Court, we agree that the
defendant’s claim, although unpreserved, is reviewable under State v. Gold-
ing, supra, 213 Conn. 239–40, as modified by In re Yasiel R., supra, 317
Conn. 781. See State v. Angel M., supra, 180 Conn. App. 288.
10
Notably, the United States Supreme Court has expressly reserved the
question of whether a court may consider a defendant’s invocation of the
fifth amendment right to remain silent at sentencing as reflecting adversely
on the defendant’s remorse and acceptance of responsibility. See Mitchell
v. United States, supra, 526 U.S. 330.
11
Although we do not reach that second question, we again note that the
Appellate Court, in rejecting the defendant’s contention that the trial court
improperly had penalized him for not apologizing to the victims, indicated
that that claim was foreclosed by State v. Huey, supra, 199 Conn. 121; see
State v. Angel M., supra, 180 Conn. App. 289–90 and n.13; see also footnote
7 of this opinion; which the Appellate Court characterized as holding that
a defendant’s invocation of the right to remain silent at sentencing may be
considered by the court as indicative of a lack of remorse. See State v.
Angel M., supra, 289. We granted certification on the second question to
determine whether that purported holding in Huey should be overruled.
See State v. Angel M., supra, 328 Conn. 931. As we also previously explained,
however; see footnote 7 of this opinion; in Huey, we reasoned that the
defendant in that case had not invoked his privilege against self-incrimination
and, therefore, that the sentencing judge in that case did not penalize him
for doing so. See State v. Huey, supra, 128–29. We need not express any
view as to the soundness of our reasoning in Huey, however, in view of
our conclusion that the trial court in the present case simply did not penalize
the defendant for invoking his right against self-incrimination. Accordingly,
we do not rely on our analysis or holding in Huey for purposes of resolving
the present case; our decision in the present case, rather, is based solely
on the fact that the trial court imposed no penalty on the defendant—for
lack of remorse or any other reason—for his refusal to issue an apology.
12
In State v. Kelly, supra, 256 Conn. 23, this court adopted the majority
approach for determining whether a trial court improperly penalizes a defen-
dant for exercising a constitutional right. Id., 82. Under this approach, the
defendant must establish, in light of all of the circumstances, ‘‘that [he]
received a lengthier sentence because he chose to exercise’’ such a right.
Id., 84; see id., 82–83. As we explained in Kelly, a minority of jurisdictions
have adopted a considerably more lenient standard pursuant to which a
reviewing court is obliged to remand for resentencing merely upon a color-
able showing by the defendant that the trial court exacted a penalty for the
exercise of a constitutional right. Id., 82. We have not been asked in the
present case to reconsider the standard we adopted in Kelly.
13
Although we concluded that Elson failed to demonstrate that the trial
court had enhanced his sentence to punish him for exercising his right to
a trial; State v. Elson, supra, 311 Conn. 760–61; we nevertheless invoked
our supervisory authority to grant him a new sentencing hearing because
‘‘[a]n observer hearing the comments at issue . . . could have perceived
that the trial court equated [Elson’s] exercise of the right to trial with the
absence of remorse . . . thereby tainting the public’s perception of the
sentencing decision . . . .’’ (Citation omitted; internal quotation marks
omitted.) Id., 784. There is no similar risk of public misperception in the
present case due to the trial court’s express assurance that the defendant
would not be punished for invoking his constitutional right against self-
incrimination and maintaining his innocence.
14
Revelo’s motion to suppress was heard and decided by a different judge
from the one who participated in the plea discussions with counsel for
Revelo. See State v. Revelo, supra, 256 Conn. 498 n.6.
15
We recognize that a number of courts, including the United States
Supreme Court, have questioned the utility of this distinction, at least with
respect to its applicability to the granting of leniency for cooperation with
the government, while at the same time not repudiating it. See, e.g., Roberts
v. United States, 445 U.S. 552, 557 n.4, 100 S. Ct. 1358, 63 L. Ed. 2d 622
(1980) (‘‘[w]e doubt that a principled distinction may be drawn between
‘enhancing’ the punishment imposed [on] the petitioner and denying him
the ‘leniency’ he claims would be appropriate if he had cooperated’’); Mallette
v. Scully, supra, 752 F.2d 30 (characterizing distinction as ‘‘somewhat illu-
sory’’ but acknowledging that it alone provides workable framework for
sentencing purposes). In his dissenting and concurring opinion in Mallette,
Judge Jon O. Newman explained why, in his view, the distinction between
penalizing a defendant for refusing to cooperate and denying leniency for that
refusal is conceptually sound. He reasoned: ‘‘This [c]ircuit has recognized the
distinction between taking into account as a mitigating factor at sentencing
a defendant’s cooperation with the authorities and administering additional
punishment because of a refusal to cooperate. United States v. Bradford,
645 F.2d 115 (2d Cir. 1981). I do not share the majority’s view that this
distinction is ‘somewhat illusory,’ though I acknowledge that doubts about
the matter have been significantly expressed. Roberts v. United States,
[supra, 557 n.4]. I acknowledge the basis for such doubts, since it is obvious
that [a] defendant who refuses to cooperate often receives a greater sentence
than [a] defendant, under otherwise similar circumstances, who cooperates.
Of course, that is true of every defendant whose sentence is greater than
that of a defendant with mitigating circumstances. But the issue in such
cases is not whether one defendant’s sentence is higher than another’s; it
is whether he has been impermissibly punished. That would occur if the
sentencing judge started out with a tentative sentence in mind as appropriate
for the offense and the offender and then decided to adjust the tentative
sentence upward because of some impermissible factor. But the defendant
who does not cooperate has no cause for complaint if he receives the judge’s
tentative sentence, even though the tentative sentence would have been
adjusted downward if he had cooperated. Viewing the issue in this way
manifestly puts a premium on what was in the judge’s mind in formulating
the sentence. However, unlike the state of mind of a defendant in a criminal
case, it is not necessary that the state of mind of a sentencing judge be
ascertained beyond a reasonable doubt. It is sufficient if a reviewing court
can have reasonable confidence, giving considerable deference to the articu-
lated explanation of the sentence by the sentencing judge, that the sentence
was not adjusted upward because of an impermissible factor.’’ Mallette v.
Scully, supra, 34 (Newman, J., dissenting in part and concurring in part).
In the present case, the trial court left no doubt that the sentence it
ultimately imposed was the ‘‘tentative’’ or presumptive sentence that the
court had determined to be ‘‘appropriate for the offense and the offender’’;
id.; that is, the sentence that the court was prepared to impose without an
acknowledgment of guilt by the defendant. Because the defendant elected
to maintain his innocence, the court had no basis to adjust that ‘‘tentative’’
sentence downward as a reward for acceptance of responsibility. Id. This
case, therefore, presents a paradigmatic example of the distinction between
increasing a defendant’s sentence for refusing to admit culpability and grant-
ing leniency to a defendant who does so.
16
We note that, because ‘‘a criminal defendant’s right to testify does not
include the right to commit perjury’’; LaChance v. Erickson, 522 U.S. 262,
266, 118 S. Ct. 753, 139 L. Ed. 2d 695 (1998); the trial court could have
enhanced the defendant’s sentence on the basis of a finding that his trial
testimony was perjurious. See, e.g., United States v. Dunnigan, 507 U.S.
87, 97, 113 S. Ct. 1111, 122 L. Ed. 2d 445 (1993). Although it is readily
apparent from the court’s sentencing remarks that it credited the testimony
of the victims and disbelieved the testimony of the defendant, there is
nothing in those remarks to indicate that the court increased the defendant’s
sentence on the basis of a finding of perjury.
17
Of course, if the defendant believes that his sentence is disproportionate
to the penalties imposed in similar cases—a matter on which we express
no opinion—his recourse is to file an application for review of the sentence
with the Sentence Review Division of the Superior Court, which the legisla-
ture created ‘‘to [provide] a forum in which to equalize the penalties imposed
on similar offenders for similar offenses.’’ (Internal quotation marks omit-
ted.) State v. Casiano, 282 Conn. 614, 626–27 n.16, 922 A.2d 1065 (2007); see
also Practice Book § 43-28 (‘‘[t]he review division shall review the sentence
imposed and determine whether the sentence should be modified because
it is inappropriate or disproportionate in the light of the nature of the offense,
the character of the offender, the protection of the public interest, and the
deterrent, rehabilitative, isolative, and denunciatory purposes for which the
sentence was intended’’). To the extent the defendant believes that his
sentence is disproportionate to the offenses of which he was convicted,
that is an issue to be taken up with the legislature. See, e.g. State v. Darden,
171 Conn. 677, 679–80, 372 A.2d 99 (1976) (‘‘the [state] constitution assigns
to the legislature the power to enact laws defining crimes and fixing the
degree and method of punishment and to the judiciary the power to try
offenses under these laws and [to] impose punishment within the limits and
according to the methods therein provided’’).