Opinion
No. CR01-82609.
December 5, 2006.
MEMORANDUM OF DECISION
We are asked to review the petitioner, Michael Mussington's sentence of 8 years to serve consecutively to the sentence he is presently serving. The sentence was imposed after judgment of conviction rendered after a jury trial of assault of an employee of the Department of Correction in violation of General Statutes § 53a-167(c) and assault in the second degree in violation of General Statutes § 53a-60(a)(1).
The offense, assault of an employee of the Department of Correction is a Class C felony which carries a maximum penalty of 10 years incarceration. The trial court imposed a sentence of (8) eight years incarceration.
The offense, Assault in the second degree is a Class D felony with a maximum sentence of five (5) years incarceration. The trial court imposed a sentence of five years incarceration to one served concurrently with the Class C offense but consecutively to any sentence the petitioner was presently serving.
(b) Assault of public safety or emergency medical personnel is a class C felony. If any person who is confined in an institution or facility of the Department of Correction is sentenced to a term of imprisonment for assault of an employee of the Department of Correction under this section, such term shall run consecutively to the term for which the person was serving at the time of the assault. The petitioner was at the time serving a 20-year sentence.
The facts are reported by our Appellate Court in 87 Conn.App. 86 (2005): The jury reasonably could have found from the evidence that on January 10, 2001, the defendant was incarcerated at the Corrigan-Radgowski correctional institution. During an altercation involving another inmate and personnel of the Department of Correction, and while intending to prevent a correctional officer from performing his duties, the defendant assaulted and injured the correctional officer, who was then in the performance of his duties. The jury also reasonably could have found that the defendant assaulted the same correctional officer, intending to cause him serious physical injury and that the defendant did cause him serious physical injury."
The record further reveals the state police met with a correction officer who received injuries to his jaw which was broken in three separate locations and required surgery. On 1/24/01 state police met with an additional correction officer who received injuries to his jaw area which was broken in three separate locations and required surgery. He informed police that while working at Corrigan Correctional Institute on 1/10/01 he observed Correction Officer 1 being kicked in the face by a black inmate. He further observed a white inmate grab the black inmate and pull him away from Correction Officer 1. That he was able to recognize the black inmate who assaulted Correction Officer 1 as being Demetrius Geyer's cellmate. Department of Corrections personnel made a positive identification of Demetrius Geyer and Michael Mussington as their assailants. Correction Officer 1 identified Michael Mussington as the inmate who assaulted him and who assaulted a second Correction Officer who received a broken jaw as a result.
On 1/10/01, at 12:46 p.m., detectives met with Michael Mussington at the Corrigan Correctional Institute in Montville regarding the incident. When interviewed, Michael Mussington informed detectives he was cutting hair in the back of the Pod when the disturbance occurred. While talking with inmate Mussington the detectives asked what he was wearing, at the time of the incident to which he responded; a white T-shirt, white socks and a pair of white boxer shorts. Mussington further indicated he was just getting into the shower when the officers grabbed him. The detectives looked at inmate Mussington's white sneakers and noticed the right sneaker had a blood-like stain on it. The correction officers at the scene told the detectives that inmate Mussington was placed in holding room #1 at the time of the incident and that he was wearing khaki pants and a khaki shirt. A check of the holding room revealed that a wet pair of khaki pants and a khaki shirt were balled up next to the toilet.
Counsel for the petitioner contends the sentence is excessive and disproportionate in light of the sentence imposed on the co-defendant and in the light of the family background of the petitioner.
Counsel for the state contends the sentence is appropriate in the light of the petitioner's extensive criminal history; and his conduct which resulted in serious injury to a correctional officer. Counsel urged the Panel to affirm.
We state our scope of review and authority. 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 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.
Counsel for the petitioner contends his sentence is excessive in that it is disparate to the sentence of his co-defendant.
Fundamental fairness and respect of the law require that defendant's similarly situated not receive grossly disparate sentences. Thus, defendants so situated ought to receive similar treatment in sentencing. The defendants here are not similarly situated. The mere fact that one defendant receives a longer sentence than another does not by itself establish a lack of fundamental fairness. A disparate sentence may be supported, as here, by a more serious criminal record and a greater participation in the offense.
The trial court in fashioning a sentence for each defendant imposed sentences proportionate to the seriousness of the circumstances surrounding the offense and the offender. The trial court clearly stated at the sentencing hearing:
As I see this case, Mr. Geyer started it. You had no business getting involved the way you did with that counselor. And in particular after the first flurry of punches or shoves, or whatever happened, pursuing him across the other side of the pod was completely inappropriate, and it was obvious that the jury was not going to accept a self-defense claim on those facts.
But, the injuries that the counselor sustained were not serious, and this was basically a fist fight although it was Mr. Geyer's initial contact which started this whole thing in motion.
I know you say you didn't do it, Mr. Mussington. Okay? But somebody, and the jury said it was you, sucker shotted the other guard, pure out sucker shot. He wasn't looking. He gets the side of his face crashed in, broken jaw, loose teeth, permanent injuries, headaches, can't sleep, and a degree of permanent disability that results from that.
That's — that's a serious incident. And in my view the — both defendants, while convicted of similar offenses, are entitled to a little bit different treatment.
State of Connecticut v. Demetrius Geyer and Michael Mussington, March 11, 2003 pp. 29-31.
This panel has reviewed with care the sentencing material(s) made part of this record, as well as arguments of both counsel. Based upon this record, this panel concludes there is no evidence to support the petitioner's request for a sentence modification.
The sentence imposed is neither inappropriate nor disproportionate.
This sentence is affirmed.