Opinion
No. CR93-221685
June 29, 2005
MEMORANDUM OF DECISION
Quran Allen, petitioner, was convicted on August 15, 1994, of Sale of Narcotics, a violation of CGS Sec. 21a-278(a). The petitioner was sentenced to 15 years execution suspended after 5 years incarceration and 5 years of probation. On February 3, 1998, the petitioner was discharged from corrections and commenced his 5-year period of probation. On June 13, 2000, while on probation, petitioner was arrested for Interfering with an Officer and Sale of Narcotics and on June 22, 2000, petitioner was again arrested for Sale of Narcotics, Possession of Narcotics, Interfering with an Officer and Possession of a Weapon in a Motor Vehicle. A Violation of Probation warrant was issued claiming as grounds for the violation the facts of both arrests and the underlying basis pursuant to Payne v. Robinson, 10 Conn.App. 395, 523 A.2d 917 (1987), 207 Conn. 565 (1988).
After a hearing on the alleged violation of probation the trial court made findings by a preponderance of the evidence that while on probation the petitioner on two occasions was in possession of narcotics and a firearm. After finding, in the adjudication phase of the hearing, that petitioner was in violation of his probation, the court then entertained argument, the dispositional phase, relevant to the determination of an appropriate sentence. The court imposed the remainder of the unexecuted portion of the suspended sentence: the maximum period of 10 years incarceration. It is this sentence petitioner seeks to have reviewed.
At the hearing before the Division counsel for petitioner argued that the sentencing court "dilutes the presumption of innocence" by its reliance on Payne v. Robinson ( supra) and that an individual "can only violate a law by a conviction" and there has been no conviction of the petitioner. Counsel referred the Division's attention to State v. Stevens, 85 Conn.App. 473. CT Page 9453-au
The petitioner addressed the Division and claimed that his transgressions were "non-violent" and that the 10-year sentence imposed is excessive.
Counsel for the state countered that the trial court did not merely have evidence of the fact of the arrests but the underlying factual basis of each arrest was provided to the trial court. Counsel commented upon the quantum of narcotics seized.
It is the opinion of the Division that petitioner's reliance on Stevens ( supra) is misplaced.
In Stevens the defendant pleaded guilty to the crime of Possession of Narcotics. The trial court advised the defendant that once she pleaded guilty, if she was arrested with probable cause prior to her sentencing date, the trial court could increase her sentence from the three (3) years agreed upon to a maximum of seven years. The trial court indicated that the defendant would not be allowed to withdraw her plea. The defendant was arrested two days after pleading guilty and before her sentencing date. At the time of sentencing the trial court made a finding that probable cause existed for the arrest and sentenced the defendant to 7 years incarceration. Cert. was granted (SC 17320).
The purpose of probation has been clearly established. "We previously have recognized that `[t]o a greater or lesser degree, it is always true of probationers . . . that they do not enjoy the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions . . . these restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer's being at large.' (Internal quotation marks omitted). State v. Misiorski, 250 Conn. 280, 288 (1999)." State v. Hill, 256 Conn. 412, 426-27 (2001).
"[T]he inherent authority to convict and sentence a defendant flows from the authority to adjudicate a criminal cause of action, the subject matter jurisdiction over a probation revocation proceeding derives from the original presentment of the information. (Citation omitted; internal quotations omitted.) State v. Carey, 222 Conn. 299, 306 (1992)." State v. Scott, 31 Conn.App. 660, 663-64 (1993).
At the hearing before the Division counsel for the petitioner argued that an individual "can only violate a law by a conviction" and in the present context of a probation revocation hearing there has been no conviction and therefore there can be no finding of the violation of any law. The claims of counsel demonstrate a misunderstanding of the nature of the dispositional phase of probation revocation hearing.
A probation revocation hearing is, in essence, a continuation of the original sentencing proceeding in which the defendant was originally given a sentence which resulted in his eventually serving a probationary period. As such the inquiry of the trial CT Page 9453-av court in the dispositional phase of a probation revocation hearing is akin to a sentencing proceeding upon the conviction of a crime.
A sentencing judge has a very broad discretion in imposing any sentence within the statutory limits and in exercising that discretion he may and should consider matters that would not be admissible at trial. (Internal quotations omitted.) State v. Huey, 199 Conn. 121, 126. To arrive at a just sentence, a sentencing judge may consider information that would be inadmissible for the purpose of determining guilt; evidence of crimes for which the defendant was indicted but neither tried nor convicted; evidence bearing on charges for which the defendant was acquitted; and evidence of counts of an indictment which has been dismissed by the government. (Internal quotations omitted; emphasis added). Id., 126.
The petitioner was not found guilty or "convicted" of any crime. The trial court found, by a preponderance of the evidence, that while on probation the petitioner possessed narcotics on two occasions and a firearm, inter alia, each a violation of the law and thereby violated the conditions of petitioner's probation.
Pursuant to Connecticut Practice Book § 43-23 et seq., the Sentence Review Division is limited in the scope of its 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 sentences except in accordance with the provisions of Connecticut Practice Book § 43-23 et seq., and Connecticut General Statute § 51-194, et seq.
Taking into consideration the fact that petitioner was on probation, that he violated that probation, and the prior criminal history of the petitioner, the sentence imposed is neither inappropriate nor disproportionate.
In reviewing the record as a whole, the Division finds that the sentencing court's actions were in accordance with the parameters of Connecticut Practice Book § 43-23 et seq. CT Page 9453-aw
THE SENTENCE IS AFFIRMED.
Miano, J.
Holden, J.
O'Keefe, J.
Miano, J., Holden, J., and O'Keefe, participated in this decision.