Summary
reviewing sentence of petitioner who pleaded guilty to a violation of § 29-38 after a shotgun was found in his car
Summary of this case from United States v. ThorpeOpinion
No. CR04-578928
September 27, 2005
MEMORANDUM OF DECISION
The petitioner entered pleas of guilty to one count of Possession of a Weapon in a Motor Vehicle, in violation of General Statutes § 29-38 and possession of a sawed-off shotgun in violation of General Statutes § 53a-211. Pursuant to this plea, the state agreed to recommend incarceration but leave the length of confinement to be determined by the trial court. The defense counsel could argue for any appropriate sentence. The court, in accordance with the plea agreement, sentenced the petitioner to consecutive terms of 2.5 years to serve and 2.5 years of special parole for a total effective sentence of 5 years incarceration followed by 5 years special parole. It is this sentence petitioner seeks to have reviewed.
The record reveals the following facts. On March 20, 2004, officers of the Hartford Police Department were sent to the area of Jefferson Street on a report of a group fighting. Upon arrival, police approached a group of individuals. They provided information that the two parties involved in the fight were parked down the street with their headlights on. Police approached the first vehicle occupied by the petitioner and his cousin. Petitioner was driving the vehicle. While police were talking to the accused they observed a shotgun between the two front seats.
Counsel for the petitioner contends that the sentence imposed by the trial court was excessive in light of the nature of the offense and in light of the prior criminal history of the petitioner. Counsel contends that the imposition of a five-year period of incarceration to the 21-year-old petitioner with no prior criminal history for possessing an unloaded unbrandished sawed-off shot gun in a parked motor vehicle is excessive and disproportionate.
Counsel for the state urges the panel to affirm the trial court who certainly considered petitioner's argument at the sentencing hearing, which included his age and prior criminal history or lack thereof. CT Page 12005-ge
Scope of Review
Pursuant to Connecticut Practice Book § 43-23 et seq., the Sentence Review Division is limited in its scope of review. The Division is to determine whether the sentence imposed "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."
The Division is without authority to modify sentence except in accordance with the provisions of Connecticut Practice Book § 43-23 et seq., and the Connecticut General Statutes § 51-195 et seq.
Pursuant to the Connecticut Sentence Review Act, General Statutes §§ 51-194 through 51-197, the petitioner has requested a review of his sentence in General Statutes 51-196 provides, in relevant part, that the review division "may order such different sentence or sentences to be imposed as could have been imposed at the time of the imposition of the sentence under review, or may . . . decide that the sentence or commitment under review should stand." Because "[t]he review division, after hearing, may substitute a discretionary decision of its own for a discretionary decision of the trial court . . . the process in a sense is an optional de novo hearing as to the punishment to be imposed." Consiglio v. Warden, 153 Conn. 673 (1966). "De novo" is defined as "anew; afresh; a second time" and a "hearing de novo" is defined as "a new hearing or a hearing for the second time, contemplating an entire trial in same manner in which matter was originally heard and a review of previous hearing." Black's Law Dictionary (5th Ed. 1979). For this de novo review, the petitioner is permitted to submit documents presented previously at the time of the imposition of his or her sentence. Practice Book §§ 43-25 and 43-26.
While this review board provides a de novo hearing, it "does not have unfettered discretion. Its review must be within the bounds prescribed by law. Thus . . . the sentence review division [must make] a determination of whether the sentences ordered initially by the trial court . . . should be modified because [they are] 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[s] [were] intended." (Internal quotation marks omitted.) State v. Johnson, 192 Conn. 471, 472 A.2d 1267 (1984) (citing Practice Book § 942, now designated as § 43-28). CT Page 12005-gf
Discussion
For any one offense there is often a wide range of sentences available and sentencing courts have demonstrated a significant variety of attitudes when it comes to deciding what constitutes an appropriate sentence.
The record reveals the emphasis the trial court placed on isolating the petitioner from society for a substantial period based upon his plea to the offenses. The court stated:
THE COURT: This is clearly a situation which cannot be tolerated in the streets of Hartford or any place else. There is indeed only one purpose for a weapon like this and that is to kill people. It is probably only through pure blind luck that Mr. Lugo was stopped when he was stopped, otherwise we might be dealing with something even more severe than we're dealing with now. This is not a case in which a suspended sentence is appropriate. This is not a case in which a brief sentence of incarceration is appropriate. This is a case which requires a significant period of incarceration . . . If you had a more significant record, I could assure you that this sentence would have been significantly longer. So that was taken into account [in] coming up with the sentence which the court has imposed.
The sentence imposed stems from one single incident and the accomplished criminal conduct was the possession of an unloaded sawed-off shotgun within a motor vehicle. We have with care reviewed the entire record before us, considered the argument of both counsel and with deference to the trial court we are persuaded that the sentence imposed is disproportionate in light of the nature of the offense and in light of the character of the offender who has no prior criminal record, and in light of the isolative and denunciatory purpose for which the sentence was intended.
The matter is hereby remanded to imposed concurrent 2.5-year sentences and concurrent 2.5 years special parole. CT Page 12005-gg