Opinion
No. CR 99-0184296
January 12, 2010
MEMORANDUM OF DECISION RE RESENTENCING
On May 3, 2004, the defendant in the above-captioned case, Paolino Sanseverino, was convicted in the Judicial District of New Britain after a jury trial of two counts of sexual assault in the first degree, in violation of General Statutes § 53a-70(a)(1), one count of attempt to commit sexual assault in the first degree, in violation of General Statutes §§ 53a-49(a)(2) and 53a-70(a)(1) and one count of kidnapping in the first degree, in violation of General Statutes § 53a-92(a)(2)(A). The charges involved two victims and two separate incidents. On August 24, 2004, the defendant was sentenced to a period of twenty years of incarceration on each of the sexual assault counts, to run concurrent to each other, and twenty years incarceration on the kidnapping count to run consecutively to the sexual assault counts, for a total effective sentence of forty years of incarceration.
The charges of sexual assault in the first degree (count one) and attempted sexual assault in the first degree (count 2) involved victim "Christina M." Another count of sexual assault in the first degree (count 3) and one count of kidnapping in the first degree (count 4) involved victim "Grace A."
On September 10, 2004, the defendant filed an appeal of the judgment with the Connecticut Appellate Court. On October 24, 2006, the Appellate Court reversed the judgment and ordered new trials in each case for improper denial of the defendant's motion to sever. The Appellate Court further found that the kidnapping statute was not unconstitutionally vague as applied to the defendant's conduct. State v. Sanseverino, 98 Conn.App. 198, 213, 907 A.2d 1248 (2006). The Connecticut Supreme Court granted both parties' petitions for certification for appeal from the Appellate Court. On July 1, 2008, the Supreme Court reversed the judgment of the Appellate Court on both issues, affirming the denial of the motion to sever, and ordering a judgment of acquittal on the kidnapping charge. State v. Sanseverino, 287 Conn. 608, 949 A.2d 1156 (2008).
The State filed a motion for reconsideration and/or for reconsideration en banc with the Supreme Court, which was granted on May 8, 2009. The State asked the Supreme Court to treat its findings on the kidnapping statute as instructional error or in the alternative, order the trial court to enter a judgment of conviction of unlawful restraint in the second degree as a lesser included offense of kidnapping in the first degree. The Supreme Court granted the State's motion and modified its earlier ruling. In a decision officially released on May 19, 2009, the Supreme Court ordered that the case be remanded to the Appellate Court with direction that "[t]he judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the trial court's judgment with respect to the defendant's conviction of kidnapping in the first degree, to affirm the trial court's judgment in all other respects, and to remand the case to the trial court with direction either to order a new trial on the kidnapping charge or to render a judgment of conviction of unlawful restraint in the second degree, at the option of the state." State v. Sanseverino, 291 Conn. 574, 596-98, 969 A.2d 710 (2009).
On July 1, 2009, the matter was scheduled before this Court for resentencing. At that time, the State announced its intention to seek resentencing of the defendant on all counts under the "aggregate package" theory of sentencing. The defendant requested an opportunity to research the issue and subsequently filed a written memorandum in opposition on August 3, 2009. The State filed its Response to Defendant's Memorandum Re: Resentencing on August 21, 2009. On September 11, 2009, the defendant filed a Motion to Disqualify Judicial Authority and on September 29, 2009, he filed a Reply to the State's Response to Defendant's Memorandum Re: Resentencing. Argument was heard before this Court on September 29, 2009. On that day, the Court denied the defendant's Motion to Disqualify Judicial Authority. Additionally, the State elected a conviction of unlawful restraint in the second degree in lieu of a new trial on the kidnapping charge. The Court reserved decision on the resentencing issue. The Court now issues its ruling and legal basis for the decision.
DISCUSSION
The defendant contends that the trial court lacks jurisdiction to resentence him on the sexual assault convictions. The defendant asserts that when the Supreme Court remanded the case, it did not give the trial court discretion to resentence him on the sexual assault counts because a final judgment had entered on those counts and the Supreme Court affirmed that portion of the judgment. According to the defendant, when the particular remand order from the Supreme Court affirmed the judgment in all other respects, the trial court was thereby precluded from resentencing on the counts unaffected by the decision. The defendant's claim is without merit.
The defendant's claim to the contrary notwithstanding, it is clear that "the defendant, in appealing his conviction and punishment, has voluntarily called into play the validity of the entire sentencing package, and, thus, the proper remedy is to vacate it in its entirety. More significantly, the original sentencing court is viewed as having imposed individual sentences merely as component parts or building blocks of a larger total punishment for the aggregate convictions, and, thus, to invalidate any part of that package without allowing the court thereafter to review and revise the remaining valid convictions would frustrate the court's sentencing intent." (Internal quotation marks omitted.) State v. Miranda, 260 Conn. 93, 129, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S.Ct. 224, 154 L.Ed.2d 175 (2002), quoting State v. Raucci, 21 Conn.App. 557, 562, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990).
"[T]he [resentencing] court's power under these circumstances is limited by its original sentencing intent as expressed by the original total effective sentence, and, furthermore, that this power is permissive, not mandatory. Although the court may reconstruct the sentencing package to conform to its original intent, it is not required to do so. It may, therefore, simply eliminate the sentence previously imposed for the vacated conviction, and leave the other sentences intact; or it may reconstruct the sentencing package so as to reach a total effective sentence that is less than the original sentence but more than that effected by the simple elimination of the sentence for the vacated conviction. The guiding principle is that the court may resentence the defendant to achieve a rational, coherent [sentence] in light of the remaining convictions, as long as the revised total effective sentence does not exceed the original." (Internal quotation marks omitted.) State v. Miranda, supra, 260 Conn. 129-30, quoting State v. Raucci, supra, 21 Conn.App. 563.
"It is axiomatic that a trial court has wide discretion to tailor a just sentence in order to fit a particular defendant and his crimes, as long as the final sentence falls within the statutory limits . . . This same wide sentencing discretion equally applies to a trial court's restructuring of a sentencing plan for a defendant who has been convicted in a multiple count case and who faces a permissible range of punishment based on the individual counts. [W]hen a defendant is found guilty on a multicount indictment, there is a strong likelihood that the . . . court will craft a disposition in which the sentences on the various counts form part of an overall plan. When the conviction on one or more of the component counts is vacated, common sense dictates that the judge should be free to review the efficacy of what remains in light of the original plan; and to reconstruct the sentencing architecture . . . within applicable constitutional and statutory limits, if that appears necessary in order to ensure that the punishment still fits both crime and criminal." (Internal quotation marks omitted.) State v. Miranda, supra, 260 Conn. 130, quoting State v. Raucci, supra, 21 Conn.App. 563-64.
Generally, the trial court is bound by the limitations of the remand order and must strictly comply with such order. Indeed, in this case, the remand order did not explicitly address resentencing at all. The remand order of the Connecticut Supreme Court was as follows:
[t]he judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the trial court's judgment with respect to the defendant's conviction of kidnapping in the first degree, to affirm the trial court's judgment in all other respects, and to remand the case to the trial court with direction either to order a new trial on the kidnapping charge or to render a judgment of conviction of unlawful restraint in the second degree, at the option of the state.
State v. Sanseverino, supra, 291 Conn. 596-98. The Supreme Court's remand order notwithstanding, however, this Court must necessarily deviate from its express terms because the State has opted for a conviction of unlawful restraint in the second degree and the Court is required by law to sentence the defendant on the conviction of the class A misdemeanor. See Connecticut General Statutes §§ 53a-96, 53a-28, 53a-36. Since there must be a sentencing and since a conviction has been overturned thereby disrupting the Court's sentencing package and its original intent, the principles of Miranda and Raucci apply.
The defendant's reliance on the specific language of the Supreme Court "to affirm the trial court's judgment in all other respects" to support his contention that this Court lacks jurisdiction to resentence him on the sexual assault charges is misplaced. The Supreme Court case of State v. Iban C., 275 Conn. 624, 881 A.2d 1005 (2005), does not support his assertion. The remand order in that case was: "[t]he judgment is reversed with respect to the defendant's conviction of risk of injury to a child under count three of the information, and the case is remanded to the trial court for a new trial on that count; the judgment is affirmed in all other respects." Id., 671. In a footnote, the Supreme Court added: "[b]ecause we are reversing the defendant's conviction on count three of the information and ordering a new trial on that count, and affirming his conviction [of the other count of risk of injury to a child] on count four of the information, if, following our remand, he is acquitted on count three, he will be entitled to be resentenced on count four." Id., 631 n. 9. State v. Miranda is cited for the Supreme Court's authority. Although the resentencing in that case could only have benefitted the defendant, the principle remains that the trial court does not lose jurisdiction to resentence a defendant on surviving counts when a conviction is overturned and a resulting acquittal disrupts the trial court's sentencing package and original intent, despite the Supreme Court's language affirming the judgment in all other respects. The original intent in the present case was to impose a total effective sentence of forty years to serve which reflected the fact that there were two separate victims who were harmed by this defendant. Indeed, at sentencing this Court clearly articulated its intent with respect to sentencing the defendant:
The defendant was sentenced to concurrent terms of ten years with two years of special parole on each count. Therefore, upon acquittal of one count of risk of injury, any resentencing on the remaining conviction could not have exceeded the original term on that count of ten years with two years of special parole.
This sentence the court has imposed, reflects the harm done to both of the victims. It is important that the sentence do that because there were two victims that were violated in this case.
See Transcript of Sentencing Hearing dated August 24, 2004, pp. 23-24.
Additionally, the defendant's argument that the State engaged in prosecutorial misconduct and vindictiveness in violation of the due process clause of the state and federal constitutions by failing to inform the Supreme Court that it intended to seek resentencing on the sexual assault convictions when it argued for a remedy other than an acquittal or a new trial on the kidnapping charge is also without merit. As previously noted in Iban C., this Court has the authority to resentence the defendant on the sexual assault counts whether the case was remanded in its present form or whether a new trial was ordered and thereafter an acquittal resulted. The only difference is the timing of when the resentencing would occur. Moreover, the State is not seeking an increase in the defendant's sentence as "the total effective sentence as originally imposed is the backdrop that must be kept in mind, not the individual sentences comprising the total term." (Internal quotation marks omitted.) State v. Arceniega, 84 Conn.App. 326, 329, 853 A.2d 586, cert. denied, 271 Conn. 926, 859 A.2d 581 (2004). Accordingly, the defendant's claim of judicial vindictiveness must fail for the same reason. See Id. ("[t]he court may impose a sentence that conforms to its `original intent' concerning an appropriate sentence, provided that a revised sentence may not exceed the original sentence").
Moreover, the state and federal double jeopardy clauses do not prohibit the Court from resentencing the defendant on the sexual assault convictions because the Supreme Court affirmed the judgment "in all other respects." Again, State v. Iban C. indicates that the principles of Miranda apply even with the inclusion of this language. "[T]he defendant, in appealing his conviction and punishment, has voluntarily called into play the validity of the entire sentencing package and, thus, the proper remedy is to vacate it in its entirety." (Internal quotation marks omitted.) State v. Tabone, 292 Conn. 417, 442, 973 A.2d 74 (2009), citing State v. Miranda, supra, 260 Conn. 129. Therefore, in resentencing the defendant on the sexual assault convictions, the Court would not be reopening a final judgment in violation of the double jeopardy clause.
Finally a resentencing of the defendant on the sexual assault charges would not constitute an illegal sentence under Practice Book § 43-22. "In cases such as the present case . . . in which the sentence on one or more counts in a multicount conviction is vacated, the resentencing court is limited in imposing a new sentence, one that falls within constitutional and statutory limits, by its original sentencing intent as expressed by the original total effective sentence . . . The court may impose a sentence that conforms to its original intent concerning an appropriate sentence, provided that a revised sentence may not exceed the original sentence . . . In applying those principles, the total effective sentence as originally imposed is the backdrop that must be kept in mind, not the individual sentences comprising the total term." (Emphasis in original; citations omitted; internal quotation marks omitted.) State v. Arceniega, supra, 84 Conn.App. 329. In the present case, therefore, provided the Court does not sentence the defendant to more than the original total effective sentence, his sentence will not, in fact, be increased. Additionally, as previously stated, the Court would not be illegally reopening a final judgment. Therefore, this claim must also fail.
CONCLUSION
In light of the foregoing discussion, the defendant's request to preclude the Court from sentencing the defendant pursuant to the principles of Miranda and Raucci is denied. The original sentence was intended to reflect the harm done to two separate and distinct victims and the Court will resentence the defendant accordingly.
Dated at New Britain, Connecticut this 12th day of January 2010.