DocketNumber: Nos. CR93-61897; 62283; 62454; 63003; 101431; 62285
Judges: MINTZ, J.
Filed Date: 11/13/1997
Status: Non-Precedential
Modified Date: 4/18/2021
On January 3, 1995, the defendant pleaded guilty to the following crimes: one count of burglary in the second degree (General Statutes §
As a result of the crimes to which he pleaded guilty, the defendant was exposed to a sentence of approximately two hundred years of jail time. The state's attorney and the defendant, however, agreed to a plea cap of twelve years. The defendant reserved the right to argue for less jail time.
On April 4, 1995, during argument at the sentencing hearing, the prosecutor made the following remarks: "I think this was premeditated, I think this individual knew specifically where he was going, it was clearly premeditated, all of these people were former customers of Brett's, he knew exactly how to get into their house; he had time to think about it and knew exactly what he was doing. These were all premeditated." (Tr., 4/4/95, p. 11). It has since been revealed, however, that the factual statement that "all of these people were former customers of Brett's," is not entirely correct.
Before sentence was imposed on April 4, 1995, the defendant was granted a continuance so that he might obtain some needed dental care before serving his sentence. The court had indicated that it was contemplating imposing only a six year sentence. The CT Page 11981 court warned the defendant, however, that if he did not reappear for sentencing the court would impose the maximum penalty allowed under the plea agreement. The defendant subsequently fled to New York and was considered a fugitive for fifty-one days.
When the defendant finally reappeared in court on June 5, 1997, and after a lengthy hearing, the defendant was sentenced by this court to a prison term of twelve years.
The sentence has been upheld by the sentence review division.State v. Saltus, Superior Court, judicial district of Hartford, Sentence Review Division (March 26, 1996, Stanley, J., Klaczak, J., and Norko, J.).
Practice Book § 934 states: "At any time during the period of a definite sentence of three years or less, the judicial authority may, after a hearing and for good cause shown, reduce the sentence or order the defendant discharged or released on probation or on a conditional discharge for a period not to exceed that to which he could have been sentenced originally."
Here, the defendant's sentence is greater than three years. Practice Book § 934, therefore, is inapplicable to the present case.
The prosecution's assertion that habeas corpus review is available to the defendant might very well be correct. Practice Book § 935, rather than habeas corpus review, however, is the more expedient vehicle for achieving closure on issues regarding the legality of a particular sentence. Copeland v. Warden, supra,
Practice Book § 935 provides, in pertinent part, that 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 matter." "[R]egardless of any possible procedural obligations to raise the claim on direct appeal or under § 935, ordinarily it is to a defendant's advantage to move in the trial court, pursuant to § 935, to correct a purportedly illegal sentence after the sentence is imposed. This method would ordinarily yield a more prompt consideration of the defendant's challenge to the sentence than would the filing of a petition for habeas corpus, which usually entails considerably more delay than does a motion pursuant to § 935." Copeland v. Warden,
Questions regarding the legality of sentencing must be dealt with in a timely manner. Practice Book § 935 provides a procedural vehicle for timely review of an illegal sentence. Since the defendant is seeking review of an allegedly illegal sentence, the defendant's motion is properly before this court.
"Generally, due process does not require that information considered by the trial judge prior to sentencing meet the same high procedural standard as evidence introduced at trial. Rather, judges may consider a wide variety of information . . . ." (Internal quotation marks omitted.) State v. Patterson,
CT Page 11983
The mere reference to extraneous or improper information at the sentencing hearing does not require a sentence to be set aside unless the defendant shows: (1) that the information was materially false or unreliable; and (2) that the trial court substantially relied on the information in determining the sentence. See e.g., State v. Collette,
In the present case, the prosecution's statements at the sentencing hearing were not entirely accurate regarding the defendant's relationship to the victims. If the court, when imposing its sentence, had relied substantially on the misstatement, the court would be hard pressed not to resentence the defendant. The defendant, however, has not met his burden of demonstrating that the court substantially relied on that information in determining the sentence imposed upon the defendant.
Further, the defendant's argument fails to consider the remarks made by the court at the sentencing hearing on June 5, 1995. On June 5, 1995, the court stated: "The Court is basing its decision on the fact that it now does not believe the arguments that were put forth by [former counsel for the defendant] . . . on April 4, 1995. The Court imposed a lesser sentence based on the arguments from [former counsel] . . . which were well thought out, which were probative, which were convincing. But the actions of the defendant have shown me that those arguments were not correct . . . and the Court at that date should have imposed the full [twelve] years . . . ." (Tr., 6/5/95 pp. 25-37.) CT Page 11984
An analysis of the court's remarks, in the context of the entire history of the defendant's case, indicates that the court based its decision on the crimes committed by the defendant, compounded by the actions of the defendant between the April 4, 1995 hearing and the final sentencing. The court notes that following the prosecution's misstatement, the court still was persuaded to be lenient on the defendant. And, at that point, no final sentence had been imposed.
The court granted a continuance so that the defendant could obtain dental care. The court specifically stated, however, that it would impose the full twelve year sentence if the defendant did not return for the sentencing. Ignoring the court's warning, the defendant fled the jurisdiction to avoid sentencing. When the defendant was brought before the court on June 5, 1995, the court stated on the record that the actions of the defendant had changed the court's opinion regarding leniency. The court then sentenced the defendant to exactly for what the defendant had bargained. Thus, while the court may have, at one time, considered the prosecution's inaccurate remarks, the court's comments on June 5, 1995 indicate that it did not base its final sentencing disposition on the prosecution's remarks.
The defendant's motion to correct sentence on the ground that the court improperly considered the prosecution's misstatements is denied.
"The double jeopardy clause of the
The defendant's memorandum fails to discuss this topic. CT Page 11985 Usually, "[c]laims mentioned but not adequately briefed are deemed abandoned." Corsino v. Telesca,
In State v. Garvin,
Garvin argued "that his convictions on two counts of failure to appear in the first degree violated his federal and state constitutional rights not to be put twice in jeopardy because the trial court had already punished him for his failure to appear by revoking the plea agreement and sentencing the defendant to a prison term of greater duration for the underlying felony charges." State v. Garvin, supra,
The court rejected Garvin's claim and stated: "[T]he prohibition against double jeopardy is not implicated when a defendant is indicted for an incident of conduct previously used to increase the length of his sentence for a separate offense. . . . The Double Jeopardy Clause is no more implicated here than when a sentencing judge considered prior criminal activity (or convictions) in imposing a sentence. Consideration of criminal conduct as an aggravating circumstance does not convert the sentencing proceeding into a trial, conviction, or punishment for the criminal activity so considered. . . . [C]onsideration of other crimes at sentencing does not implicate the Double Jeopardy Clause because the defendant is not actually being punished for the crimes so considered. Rather, the other crimes aggravate his guilt of, and justify heavier punishment for, the specific crime for which the defendant has just been convicted." (Citation omitted; internal quotation marks omitted.)State v. Garvin, supra,
The present case is directly on point with State v. Garvin. CT Page 11986 Here, the defendant is arguing that he was twice placed in jeopardy when the court failed to impose the six year sentence it originally had indicated it was contemplating after he violated the court's trust by not appearing for sentencing. This court determined that his failure to appear aggravated his guilt for the underlying crimes and therefore refused to impose the more lenient sentence. Garvin provides this court with the authority to consider the defendant's failure to appear at sentencing, and other aggravating actions, when imposing a sentence on a guilty defendant. Further, in Garvin, the court imposed a sentence that exceeded the plea cap. Here, this court imposed a sentence equal to the original plea cap agreement. The defendant's double jeopardy arguments, therefore, are without merit.
CONCLUSION
Based on the reasons enumerated above, the court finds that the defendant's sentence was properly reached and is therefore legal. The defendant's amended motion to correct sentence is denied.
MINTZ, J.