Opinion
No. CR98-243018
February 22, 2005
MEMORANDUM OF DECISION
BY THE DIVISION
The petitioner was found guilty after a jury trial of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2) and received twenty-five years; assault in the second degree in violation of General Statutes § 53a-60 and received five years consecutive; sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1) and risk of injury to a minor female child in violation of General Statutes § 53-21(2) and received ten years consecutive. The total effective sentence imposed by the court was sixty years.
During the late evening of February 23, 1998, petitioner accused the victim of having a sexual affair and forced her from the residence into her vehicle. Petitioner produced a tape recorder and ordered her to listen. The victim stated that she could not hear any audio recording on the tape. Petitioner then drove her to a wooded area. During the next several hours, petitioner struck her about her head and face with his fists numerous times and strangled her intermittently with a belt several times. Petitioner then locked her in the trunk of the vehicle and drove around for several hours. Petitioner continued to question her about the identity of a man with whom he thought she was having an affair. Once she provided him with a name, petitioner returned her to the apartment and ordered her to go to bed and pull the bed sheets over her face to hide her injuries from her fourteen-year-old daughter.
Shortly after petitioner's arrival back at the apartment, the victim's fourteen-year-old daughter arose from bed and took a shower in order to get ready for school. Petitioner came into her bedroom and told her that he "loved her and wanted her" and that she would not be going to school that day. She then went into her mother's bedroom and upon seeing her mother's condition became alarmed and started to cry. Petitioner then walked into the bedroom and told the victim that the only way he would let her and her daughter live was if he had sex with her fourteen-year-old daughter. He then brandished a pocket knife and ordered the fourteen-year-old into her bedroom. The victim told her daughter to comply with petitioner's request. Petitioner ordered the victim's daughter to take off her clothes. Petitioner then took off his clothes and sexually assaulted the victim's fourteen-year-old daughter in the anus. He then told her to go to the car and get some tapes. While she was outside, the victim's daughter stated that she wanted to run away, but felt that if she did, petitioner would kill her mother. He then made the victim's daughter listen to the tapes but she stated that she could not hear anything on the tapes. The victim's daughter asked petitioner to take her mother to the hospital. He agreed, but on the way to the hospital he instructed the victim and her daughter to state that they had been beaten and robbed by someone else and that he drove them to the hospital. Once at the hospital, the victim immediately told medical personnel that he was the one who had assaulted her and her daughter. Police located him just near the main entrance of the hospital and placed him under arrest.
Police observed the victim's injuries which included multiple bruises on her face and neck, contusions and petechia around and above both eyes, and a severe contusion across and around her neck which went a full 360 degrees around her entire neck and was approximately three inches in width. A medical exam performed on the victim's fourteen-year-old daughter confirmed that she had sustained lacerations to the anus, which were consistent with anal sexual intercourse. See State v. Relliford, 63 Conn.App. 442 (2001).
Counsel for the petitioner contends that his client was severely mentally impaired at the time of his horrific crimes. Counsel contends based on the nature of the circumstances of the offense, which included blank audio tapes which the petitioner made the victims listen supports this contention. While counsel acknowledged that the jury rejected the defense of mental disease or defect that was put forward in this case, counsel urges this panel to emphasize the petitioner's mental state in the review of this sentence.
The petitioner spoke in his behalf at the sentencing hearing. He apologized to the victims and that he forgives them. He denied that he ever kidnapped or assaulted anyone. He stated that he had wanted to speak during his trial, that the jury disapproved of interracial relationships, and that the jury did not consist of his peers. He also denied that there was DNA evidence.
The state argued that the petitioner has demonstrated by the offenses for which he has been sentenced to serve sixty years and by his past behavior that he should receive the maximum sentence. The state noted that the PSI indicates that the petitioner has no remorse, that he blames others rather than himself, and that it predicts that the conduct of the petitioner has caused injury and extreme psychological distress to the victims.
Brief Historical Background and 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." Consigilo 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).
The petitioner was convicted of the sexual assault of a 14-year-old, who is the daughter of his girlfriend whom he also kidnapped and seriously injured. The panel agrees with the Supreme Court, which has regarded this crime as violent in nature, irrespective of whether it is accompanied by physical violence. "Short of homicide, [sexual assault] is the ultimate violation of self. It is also a violent crime because it normally involves force, or the threat of force or intimidation, to overcome the will and the capacity of the victim to resist. [Although sexual assault] is very often accompanied by physical injury to the [victim] . . . [it] can also inflict mental and psychological damage" Coker v. Georgia, 433 U.S. 584, 597-8.
The record reveals the trial court noted that one of the purposes of sentencing is rehabilitation but stated that it is evident and clear that there is absolutely no possibility that the petitioner can be rehabilitated. The court cited the petitioner's prior criminal record which evidences a complete lack of concern for his fellow human beings and particularly for women. The court further noted that the other purpose of sentencing is deterrence and stated that this is a case of a person who is anti-social, who was a predator, who was an extreme danger to society and for purposes of punishment and deterrence must be taken off the street of civilized society for as long as possible. Accordingly the sentencing court committed the petitioner to the Commissioner of Corrections for a period of sixty years to serve.
In light of the gravity of the offenses and the character of the offender, the sentence is neither inappropriate nor disproportionate.
The sentence is AFFIRMED
Holden, J.
Miano, J.
Iannotti, J.
Holden, J., Miano, J. and Iannotti, J. participated in this decision.