Summary
holding defendant violated his probation conditions by, among other things, possessing pornography while a sex offender
Summary of this case from Kasischke v. StateOpinion
No. CR96-88132
January 23, 2007
MEMORANDUM OF DECISION
The petitioner, Thomas Murphy, III, seeks review of a sentence imposed by the trial court after revoking the petitioner's probation and imposing sentences of CR96-88132; seven years suspended after five years nine months of incarceration thereafter—10 years of probation (less probation time prior to revocation); Docket Number CR08-91523 90 days to be served consecutively to the sentence imposed in CR96-88132. Total effective sentence 7 years and three months incarceration suspended after 6 years and ten years probation (less anytime already spent of probation).
The petitioner seeks review of this sentence imposed pursuant to docket number CR96-88132.
FACTS
The State alleged by way of warrant, numerous violations of the petitioner's probation: failure to engage in successful drug and sex offender treatment, continued drug use while on probation, his possession of pornography while a convicted sex offender, failure to maintain full-time employment.
The petitioner admitted he violated the conditions of his probation.
The trial court then, following a four-day dispositional hearing, imposed the sentence now under review.
Counsel for the petitioner contends the sentence imposed is excessive in light of the nature of the violations, character of the petitioner, and his social and criminal history. Counsel further contends that after the petitioner was released from incarceration in the original sentence, calamities occurred in his life which severely impacted upon his ability to succeed on probation. Counsel contends that any threats attributed to him were unsubstantiated and based upon unreliable information.
The court determined that although there is no evidence that Mr. Murphy took any steps while on probation to carry out the various veiled and not so veiled threats against the victim and prosecutor and perhaps even the judge, there is no credible evidence that he (petitioner) abandoned the hostility, bitterness or blaming that produced those threatening remarks.
The petitioner addressed the panel and re-emphasized the counsel's position, and urged the panel to modify the sentence imposed.
Counsel for the State contends that the petitioner's conduct has declined progressively, culminated in alleged plots to harm (murder) those involved in his prosecution; the judge, the prosecutor and the victim. Counsel contends that the four-day dispositional hearing was exhaustive in its scope and breadth and trial court considered all relevant factors prior to imposing sentence.
We state the authority and scope of our review.
SCOPE OF REVIEW
Pursuant to Connecticut Practice Book § 43-23 et seq., the Sentence Review Division is limited in the scope of its review. The Division must 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 has intended."
The Division is without authority to modify sentences except in accordance with the provision of Connecticut Practice Book § 43-23 et seq., and Connecticut General Statute § 51-194 et seq.
Under § 53a-32, once the court determines that a violation of a condition of probation has been established, it proceeds to determine whether the defendant's probationary status should be revoked. State v. Jones, 67 Conn.App. 25, 28, 787 A.2d 43 (2001). The court is vested with broad discretion in determining, on the basis of the entire record, whether the sentence of probation should continue or be revoked, and the court may require the defendant to serve the sentence imposed or impose a lesser sentence. When determining whether to revoke probation, a court must consider the beneficial purposes of probation. State v. Bordeleau, 72 Conn.App. 33, 41, 804 A.2d 231 (2002). However, the probationer's interest in liberty and rehabilitation must be balanced against the need to protect the public. Id.
DISCUSSION
The trial court clearly, and thoughtfully, delineated the court's reasons for the sentence imposed.
The petitioner contends the imposition of the seven year suspended after 5 years, nine months incarceration and thereafter 10 years probation (less any time already spent on probation); is excessive.
The trial court stated:
"So returning to the factors I must consider, the ultimate question is whether the probationer is good risk and in deciding that I have to balance your interests in liberty and rehabilitation against the need to protect the public, determining whether the goals of rehabilitation thought to be served by probation have faltered, requiring an end to conditional freedom, considering the goals of probation, whether your behavior is inimical to your rehabilitation and the safety of the public.
From all the evidence, the court finds that Mr. Murphy is no longer a good risk for probation. His own behavior has been inimical to his rehabilitation. The balance of his interest in and desire for liberty and rehabilitation against protection of the public strongly weighs in favor of the latter. He's not shown himself at present willing or able to abide by the rules of probation or participate effectively in treatment." Transcript, Page 9, State of CT v. Thomas J. Murphy, III, Superior Court, Judicial District of Litchfield at Litchfield, February 19, 2003.
This panel has, with care, reviewed the entire record before us, considered the oral plea of the petitioner and concludes that the record before us does not support the petitioner's contention that the sentence imposed is inappropriate or disproportionate.
The record indicates that the trial court balanced the defendant's liberty interest and the rehabilitative purposes of probation.
The sentence is affirmed.