State v. Petitpas

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STATE OF CONNECTICUT v. CHAD PETITPAS
(AC 40254)
Elgo, Bright and Mihalakos, Js.
Syllabus
The defendant, who had been convicted of, among other crimes, sexual
assault in the first degree, sexual assault in the second degree, sexual
assault in the fourth degree, unlawful restraint in the second degree,
and risk of injury to a child, and who was sentenced to a total effective
term of nineteen years imprisonment followed by twenty years of special
parole, appealed to this court from the trial court’s denial of his motion
to correct an illegal sentence. Shortly before imposing the defendant’s
sentence, the sentencing court incorrectly stated the defendant’s age
and information related to his criminal history on the record. On appeal
to this court, the defendant claimed that the trial court had abused its
discretion in denying his motion to correct because the sentencing
court materially relied on inaccurate information related to his age and
criminal history in imposing his sentence. Held that the defendant’s
sentence was not imposed in an illegal manner, as the defendant failed
to meet his burden of proving that the inaccurate statements made
by the sentencing court were material to the sentence imposed, and,
accordingly, the trial court did not abuse its discretion in denying the
defendant’s motion to correct an illegal sentence: a material factor in
sentencing the defendant was not the defendant’s exact age but, rather,
that he was older than the child victim and a fully mentally and physically
developed adult male involved in the sexual assault of a child; moreover,
although the sentencing court’s reference to the specific term of proba-
tion for the defendant’s prior conviction was incorrect, that court prop-
erly relied on the state’s accurate recitation of the defendant’s prior
convictions and the presentence investigation report, both of which
correctly provided the defendant’s prior convictions and sentences he
received, and the material factor for sentencing was the serious nature
of the sentences for the defendant’s prior convictions and his extensive
criminal history rather than the specific term of probation imposed for
one of those prior convictions.
Argued May 21—officially released July 17, 2018
Procedural History
Informations, in three cases, charging the defendant
with two counts each of sexual assault in the first
degree, sexual assault in the second degree and risk of
injury to a child, and with one count each of unlawful
restraint in the second degree, sexual assault in the
fourth degree, mutilation or removal of a motor vehicle
identification number, and larceny in the third degree,
brought to the Superior Court in the judicial district of
Waterbury, where the cases were consolidated and tried
to the jury before Levin, J.; verdict and judgment of
guilty in each case; thereafter, the defendant appealed
to the Supreme Court, which affirmed the judgments;
subsequently, the court, Fasano, J., denied the defen-
dant’s motion to correct an illegal sentence, and the
defendant appealed to this court. Affirmed.
W. Theodore Koch III, assigned counsel, for the appel-
lant (defendant).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Catherine Brannelly Austin, supervisory
assistant state’s attorney, for the appellee (state).
Opinion
MIHALAKOS, J. The defendant, Chad Petitpas,
appeals from the judgment of the trial court denying
his motion to correct an illegal sentence under Practice
Book § 43-22. On appeal, the defendant claims that the
sentencing court materially relied on inaccurate infor-
mation pertaining to his age and criminal record. We
disagree and, accordingly, affirm the judgment of the
trial court.
The defendant’s conviction was the subject of a direct
appeal before our Supreme Court. See State v. Petitpas,
299 Conn. 99, 6 A.3d 1159 (2010). In affirming the defen-
dant’s conviction, our Supreme Court concluded that
the jury reasonably could have found the following
facts: ‘‘In August, 2006, the fifteen year old victim1 lived
with her mother, her mother’s boyfriend, her brother
and the defendant. One day in October, 2006, after the
defendant had moved out of the victim’s residence, he
visited the victim at her residence and forced her to
engage in oral and vaginal intercourse. Approximately
one month later, the victim reported the incident to her
school psychologist, which led to a police investigation.
During the investigation, the police discovered at the
defendant’s residence a stolen motorcycle that had its
vehicle identification number removed. The defendant
was arrested and charged with ten counts in three sepa-
rate informations that were later consolidated for trial
. . . .’’ (Footnote in original.) Id., 101–102.
Following a jury trial in July, 2007, the defendant was
convicted of two counts of sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (1),
two counts of sexual assault in the second degree in
violation of General Statutes (Rev. to 2005) § 53a-71 (a)
(1), and one count each of sexual assault in the fourth
degree in violation of General Statutes § 53a-73a (a)
(2), unlawful restraint in the second degree in violation
of General Statutes § 53a-96 (a), risk of injury to a child
in violation of General Statutes § 53-21 (a) (1), and
risk of injury to a child in violation of § 53-21 (a) (2).2
Id., 100–101.
Prior to sentencing, the court ordered the preparation
of a presentence investigation report (PSI) by the Office
of Adult Probation. The report contained the defen-
dant’s correct birth date, July 9, 1979, but incorrectly
listed his age as thirty-eight rather than twenty-eight.
Additionally, the PSI correctly set forth the defendant’s
criminal record, listing his sentence for a prior assault
conviction as ‘‘[seventeen] years jail, [suspended] after
102 months, [five] years probation.’’
The court sentenced the defendant on September 28,
2007. In the course of the state’s sentencing presenta-
tion, the state summarized the charges of which the
defendant had been convicted and requested a total
effective sentence of twenty-five years imprisonment
followed by twenty years of special parole. In support
of its recommendation, the state asked the court to
consider, inter alia, the defendant’s age and criminal
record. The state correctly stated that ‘‘[t]he defendant
was twenty-eight years old; the victim was fifteen years
old,’’ and, with regard to the defendant’s prior assault
conviction, ‘‘he received a sentence of seventeen years
suspended after he served 102 months, five years proba-
tion.’’ Defense counsel admitted that the defendant had
‘‘a prior criminal record’’ and that he was ‘‘still a roughly
young man,’’ but requested that the court impose ‘‘the
least amount of reasonable time possible, looking at all
circumstances in this case’’ for the defendant.
Shortly before imposing the sentence, the court,
Levin, J., incorrectly stated that the defendant was
‘‘now about age thirty-eight.’’ With regard to the defen-
dant’s criminal record, the court stated: ‘‘[T]he defen-
dant was convicted of assault in the first degree and
received seventeen years suspended after 120 months.
I believe 502 months of probation.’’ The court indicated
that it had considered the trial transcripts, the PSI, the
victim’s position as indicated in the PSI, the defendant’s
age, record, employment history and the acts underlying
his conviction. The court then sentenced the defendant
to a total effective term of nineteen years in prison
followed by thirty years of special parole. Following a
brief recess and discussion between the prosecutor and
defense counsel off the record, the following collo-
quy ensued:
‘‘The Court: Okay. I’ll vacate the orders of special
parole and . . . refashion it as follows: The sentences
imposed remain the same, however . . . . It will be
twenty years special parole. Excuse me . . . fifteen
years special parole. . . . That was my intent. So fif-
teen on count four and fifteen on count five. Any-
thing else?
‘‘[The Prosecutor]: Your Honor . . . my understand-
ing then it would be a sentence of nineteen years, fifteen
years special parole.
‘‘[Defense Counsel]: That’s what he just said, correct?
‘‘The Court: I’m sorry. . . . No. He’s thirty-eight. No.
Let me correct that again. Count four, ten years in
prison, twenty years special parole and the same on
count five.’’
Accordingly, the court sentenced the defendant on
all ten convictions to a total effective term of nineteen
years in prison followed by twenty years of special
parole.3
On July 18, 2016, the defendant filed a renewed
motion to correct an illegal sentence pursuant to Prac-
tice Book § 43-22.4 In this motion, the defendant argued
that his sentence was based on a materially inaccurate
understanding of his prior criminal history and age. The
On that date, the defendant argued that ‘‘although the
presentence investigation itself was accurate or at least
materially accurate, the court’s statement on the record
of the underlying basis of [the defendant’s] sentence—
both his age and his prior criminal history [were] materi-
ally inaccurate in a significant way that violates his due
process rights.’’ In response, the state noted that it
correctly had stated the defendant’s age as twenty-eight
during the sentencing hearing and that the defendant
had not objected to the court’s inaccurate statements
at that time.
In a memorandum of decision filed on November 22,
2016, the court denied the defendant’s motion. The
court held that although the defendant had met his
burden of showing that the sentencing court did give
‘‘actual consideration and weight to the serious nature
of the [defendant’s] criminal history and to [the defen-
dant’s] maturity as an adult relative to the child com-
plainant,’’ he had not ‘‘satisfied [his] burden of
demonstrating that, in the context of the above stated
considerations, the sentencing court gave material con-
sideration and actual weight to the inaccuracies
reflected by the transcript.’’ (Emphasis added.) This
appeal followed.
On appeal, the defendant claims that the trial court
abused its discretion in denying his motion to correct an
illegal sentence because the sentencing court materially
relied on inaccurate information pertaining to his age
and criminal history prior to imposing the sentence.
The state responds that the trial court did not abuse
its discretion by denying the defendant’s motion
because the inaccurate statements made by the sentenc-
ing court were not material to the sentence imposed.
We agree with the state.
We begin by setting forth our standard of review and
applicable legal principles. ‘‘[A] claim that the trial court
improperly denied a defendant’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 discretion, great weight is given
to the trial court’s decision and every reasonable pre-
sumption 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; inter-
nal 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).
‘‘[A]n illegal sentence is essentially one [that] either
exceeds the relevant statutory maximum limits, violates
a defendant’s right against double jeopardy, is ambigu-
ous, or is internally contradictory. By contrast . . .
[s]entences imposed in an illegal manner have been
defined as being within the relevant statutory limits but
. . . imposed in a way [that] violates [a] defendant’s
right . . . to be addressed personally at sentencing and
to speak in mitigation of punishment . . . or his right
to be sentenced by a judge relying on accurate informa-
tion or considerations solely in the record . . . . These
definitions are not exhaustive, however, and the param-
eters of an invalid sentence will evolve . . . as addi-
tional rights and procedures affecting sentencing are
subsequently recognized under state and federal law.’’
(Emphasis in original; internal quotation marks omit-
ted.) State v. Antwon W., 179 Conn. App. 668, 672–73,
181 A.3d 144, cert. denied, 328 Conn. 924, 180 A.3d
965 (2018).
‘‘[D]ue process precludes a sentencing court from
relying on materially untrue or unreliable information
in imposing a sentence. . . . To prevail on such a claim
as it relates to a [PSI], [a] defendant [cannot] . . .
merely alleg[e] that [his PSI] contained factual inaccura-
cies or inappropriate information. . . . [He] must show
that the information was materially5 inaccurate and
that the [sentencing] judge relied on that information.
. . . A sentencing court demonstrates actual reliance
on misinformation when the court gives explicit atten-
tion to it, [bases] its sentence at least in part on it, or
gives specific consideration to the information before
imposing sentence.’’ (Footnote added; citation omitted;
emphasis in original; internal quotation marks omitted.)
State v. Bozelko, 175 Conn. App. 599, 609–10, 167 A.3d
1128, cert. denied, 327 Conn. 973, 174 A.3d 194 (2017).
After thoroughly reviewing the record in the present
case, we conclude that the trial court did not err in
determining that the defendant had not met his burden
of proving that the inaccuracies mentioned by the court
were material to the sentence imposed. With regard to
the inaccurate age stated by the sentencing court, we
are persuaded by the trial court’s assessment that the
material factor in sentencing was not the defendant’s
exact age, but rather, the fact that he was older than
the victim. The court reasonably concluded that ‘‘the
significant and material factor relative to sentencing
[was] not the specific numerical age of the [defendant],
but the fact that [the defendant] was an adult male,
fully developed mentally and physically; and, whether
[twenty-eight] years of age, [thirty-eight] years, or [forty-
eight] years, involved in a sexual assault of a child.’’6
With regard to the defendant’s criminal history, the
sentencing court referenced the state’s recitation of the
defendant’s prior convictions and the PSI report, both
of which correctly provided the defendant’s prior con-
victions and the sentences he received therein. The
sentencing transcript indicates that the court’s inaccu-
rate statement, ‘‘seventeen years suspended after 120
months. I believe 502 months of probation,’’ was a men-
tion of the prior conviction only in rote recitation. Addi-
tionally, the sentencing court’s use of the term
‘‘believe,’’ rather than a more definitive assertion, indi-
cates that it properly relied on the accurate representa-
tion of the defendant’s criminal history contained within
the PSI and the state’s accurate recitation, rather than
its own memory of the specific sentences imposed. The
court did not discuss any of the particulars of that
conviction or its probationary period, and thus there is
no evidence in the record to indicate that the sentencing
court believed that the defendant previously had been
sentenced to a period of more than forty-one years of
probation, rather than his actual sentence of five years.
We agree with the trial court, therefore, that the material
factor for sentencing was ‘‘the serious nature of the
sentences’’ and the fact that the defendant had an exten-
sive criminal history, rather than the specific term of
probation imposed. Finally, we note that neither the
defendant nor his counsel objected to the misstate-
ments made by the sentencing court, thereby indicating
that he also did not see them as material.7
Indulging every reasonable presumption in favor of
the court’s ruling as our standard of review requires;
State v. Carter, 122 Conn. App. 527, 533, 998 A.2d 1217(2010), cert. denied, 300 Conn. 915, 13 A.3d 1104 (2011);
we conclude that the trial court reasonably determined
that the sentencing court did not materially rely on
inaccurate information in sentencing the defendant on
his charges, and thus that the defendant’s sentence was
not imposed in an illegal manner. Accordingly, we con-
clude that the trial court did not abuse its discretion
by denying the defendant’s motion to correct an ille-
gal sentence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-
86e.’’ State v. Petitpas, supra, 299 Conn. 101 n.3.
2
The defendant also was convicted of larceny in the third degree in
violation of General Statutes (Rev. to 2005) § 53a-124 (a) (1) and mutilation
or removal of a vehicle identification, factory or engine number in violation
of General Statutes § 14-149 (a). Those convictions, however, are not the
subject of the defendant’s motion to correct an illegal sentence.
3
We note that, on February 13, 2015, for reasons unrelated to this appeal,
the defendant’s term of special parole was reduced to ten years in response
to a separate motion to correct an illegal sentence.
4
Practice Book § 43-22 provides: ‘‘The judicial authority may at any time
correct an illegal sentence or other illegal disposition, or it may correct a
sentence imposed in an illegal manner or any other disposition made in an
illegal manner.’’
The self-represented defendant filed a second motion to correct an illegal
sentence on February 24, 2015. That motion was subsequently stayed in
light of his pending appeal that was eventually rendered moot by our
Supreme Court’s decision in State v. Victor O., 320 Conn. 239, 128 A.3d
940 (2016). Thereafter, the defendant, represented by appointed counsel,
renewed his motion to correct an illegal sentence on July 18, 2016.
5
‘‘[E]vidence is material when it has an influence, effect, or bearing on
a fact in dispute . . . .’’ (Internal quotation marks omitted.) State v. Erick
L., 168 Conn. App. 386, 397, 147 A.3d 1053, cert. denied, 324 Conn. 901, 151
A.3d 1287 (2016); see also Black’s Law Dictionary (10th Ed. 2014) (defining
‘‘material’’ as ‘‘[o]f such a nature that knowledge of the item would affect
a person’s decision-making; significant; essential’’).
6
Additionally, the sentencing court was provided with the defendant’s
correct age by the state and did not reference the PSI when discussing the
defendant’s age.
7
We are cognizant of the fact that the defendant failed to file a motion
for articulation to explain the inaccuracies, and this further signifies that
the defendant did not view the errors as material. See, e.g., State v. Bozelko,
supra, 175 Conn. App. 611–12 (defendant failed to demonstrate actual reli-
ance on inaccuracies in PSI where defendant did not file motion for articula-
tion with sentencing court).