SENTENCING;

SENTENCING;

You asked for information about the sentence review division. You also asked for information about a specific case involving an unsuccessful appeal to the sentence review division that is referred to in an attached correspondence.

SUMMARY

The attached letter from an attorney discusses the case of his client who was sentenced to eight years in prison for the crime of evading responsibility for leaving the scene of an accident that caused someone’s death. The attorney asserts that his client left the scene for around 20 minutes and then returned and cooperated with the police. He complains that the Sentence Review Division refused to reduce his client’s sentence even though his client had no prior record and was cooperated with the police, and others who were convicted of similar or more serious crimes received far lesser sentences.

The division decided the petition for a sentence reduction on August 19, 2002. A copy of its decision is enclosed. It concluded that the sentence was neither inappropriate nor disproportionate. The written decision is about two pages. While it discuses issues related to appropriateness, such as –the nature of the accident, deterrence, the

feeling of the victim’s family, the defendant’s lack of prior criminal record, and his cooperation with the police- it does not indicate that the division considered the length of the client’s sentence in relationship to other sentences for similar or more serious crimes.

The Sentence Review Division, consisting of three judges appointed by the state’s Chief Justice, allows an offender to appeal the length of his sentence if he feels that it is too long. The division reviews the sentence to see if it should be modified because it is inappropriate due to the nature of the offense; the offender’s character; protection of the public interest; and the deterrent, rehabilitative, isolative, and denunciatory purposes for which the sentence was imposed.

Judicial Department statistics reveal that since 1995, the division has reduced a challenged sentence 10 times and upheld it 413 times.

EVADING RESPONSIBILITY

By law, a person operating a motor vehicle who is knowingly involved in an accident causing serious physical injury or death must stop and render assistance. He must also give his name, address, and driver's license and registration numbers to the injured person or a witness. If the driver is unable to give this information to the injured person or a witness, he must immediately report the death or injury to the police and report the location and circumstances of the accident along with his name, address, and operator's license and registration numbers (CGS § 14-224).

PA 97-291 increased the maximum prison sentence for violating the motor vehicle evading responsibility law in cases involving serious physical injuries or deaths from five to 10 years, and the maximum fine from $ 5,000 to $ 10,000.

The law defines a “serious physical injury” as one that creates a substantial risk of death, or causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ. The penalty for evading responsibility that causes a physical injury or property damage is a jail term of up to one year, a fine of between $ 75 and $ 600, or both.

CORRESPONDENCE

The correspondence was submitted by an attorney who represented someone who was sentenced to eight years in prison for evading responsibility, which involved leaving the scene of a fatal motor vehicle accident. According to his attorney, his client went to the nearest police station and surrendered to the police around 20 minutes later and fully cooperated with them. He was not convicted of causing the accident.

The attorney asserts that his client had (1) a wife and two children, (2) no prior criminal record, (3) the support of his employer and co-workers, and (4) nearly 50 letters of recommendation submitted to the trial court from people whom he had helped over the years and was well-respected in the community.

His attorney maintains that his eight- year sentence was much greater than sentences of others convicted of evading responsibility after a fatal accident. He claims this was true whether they cooperated with the police or not. And he asserts that it was much greater than sentences of most people convicted of causing fatal accidents, even when driving under the influence. The attorney advised us that he included this information in the brief he filed with the division and raised it again at oral agreement.

He maintains that despite these facts, the Sentence Review Division denied his application for a sentence modification. He claims that the Sentence Review Division almost never reduces a sentence.

SENTENCE REVIEW DIVISION’S DECISION

The Sentence Review Division issued two-page decision on the defendant’s petition for a reduced sentence on August 20, 2003. The petition was filed on October 8, 2001.

The decision indicates (1) the accident victim was a 36 year old female pedestrian who was struck and killed by a motor vehicle that left the scene; (2) around 20 minutes later, the defendant came to the police department and admitted that he was the driver; (3) the police arrested him for manslaughter in the second degree; (4) the defendant was found guilty after a jury trial of evading responsibility, and (5) the trial court sentenced the defendant to 10 years, suspended after eight years, followed by five years of probation.

According to the decision, the defendant’s attorney argued that his client had not been treated fairly because his client (1) had no prior criminal history; (2) was extremely remorseful; (3) surrended himself to the police 20 minutes after the accident and fully cooperated with them; and (4) is basically a good person. According to the decision, the defendant’s attorney also argued that because his client turned himself

in so quickly and cooperated with the police it was not really evading responsibility. He also argued that the penalty for evading responsibility had been increased to a 10 year felony on 1997 and this should also be considered. (The previous maximum penalty had been five years. )

The state argued that the facts of the accident mitigated against modification. It noted that the victim was struck on the knee and thrown a long distance by the car the defendant was driving. The state also argued that the lengthy sentence the defendant received would deter others from committing this offense.

The division indicated that the sentencing judge took into account both the defendant’s and state’s arguments and the feelings and position of the victim’s family.

The division concluded that it would not reduce the sentence because it was neither inappropriate nor disproportionate.

There is nothing in the decision to indicate whether the division considered the sentences given for similar or more serious offenses in reaching its decision.

SENTENCE REVIEW DIVISION

The Sentence Review Division was established to allow an offender to appeal the length of his sentence if he feels that it is too long with relation to the crime committed, sentences received by others committing similar crimes, and his character.

An offender can apply for sentence review 30 days after being sentenced if the sentence is longer than three years except when the sentence was arrived at due to a plea bargain or if the sentence was less than agreed to in a plea bargain (CGS § 51-195).

The three-judge panel, appointed by the Chief Justice (CGS § 51-194), reviews the sentencing portion of the judgment. They may order the sentence to be either increased or decreased or allow the sentence to stand based on this review. After reaching their decision, they make their reasoning public (CGS § 51-196).

The division reviews the sentence to see if it should be modified because it is inappropriate because of the nature of the offense; the offender’s character; protection of the public interest; and the deterrent, rehabilitative, isolative, and denunciatory purposes for which the sentence was imposed (Superior Court Procedure in Criminal Matters § 43-28).

SENTENCES REDUCED SINCE 1995

The Sentence Review Division has upheld 413 sentences in petitions brought before it and modified 10 sentences since 1995. In all 10 cases, the sentence was lessened. Table 1 shows the year-by-year breakdown.

Table 1: Sentence Review Decisions since 1995

* Through April 2003

In the 10 cases where the sentence was reduced, three cases involved sentences being reduced because the division believed the sentences to be out of line with the punishment co-defendants received. Of the remaining seven cases, the division cited multiple reasons for reducing the sentence in each case. These included the following factors:

1. small amount of narcotics involved in the crime (cited twice),

2. lack of a criminal history (cited twice),

3. character (cited twice),

4. criminal record (cited twice),

5. young age,

6. nature of the probation violation,

7. punishment for failing to appear in court too great,

8. lack of any permanent injury to the victim,

9. initiated rehabilitation on his own, and

10. nonviolent nature of the crime

CASES OF SENTENCE REDUCTION

Following is a brief summary of the cases in which the division reduced a sentence.

Case 1—1998

The petitioner was arrested, along with 21 other people, in a sweep of drug trafficking in the area. He pled guilty to three counts of selling drugs and one count of violating the Corrupt Organizations and Racketeering Activity Act. The plea agreement called for him to receive a sentence of between 8 and 16 years. The court sentenced him first among the 22 people arrested and gave him four concurrent sentences of 12 years. The bulk of the other defendants received sentences of seven or eight years. The Sentence Review Division reduced his sentence to 10 years, saying that his sentence would have been lighter had he not been the first to be sentenced. They also factored in the background of the defendant, which included a prior conviction for possessing cocaine. (Anthony Carter, Docket No. CR 94-461352. )

Case 2—1999

The petitioner was convicted of four counts of selling drugs and one count of conspiracy to sell drugs and received five consecutive seven-year sentences, for a total sentence of 35 years. After a comparison with the sentences of his co-defendants’ sentences, the division made the seven-year sentence for conspiracy run concurrently with the other sentences, reducing the sentence to 28 years. (Ronald K. Benton, Docket No. CR 93-85020. )

Case 3—1999

The petitioner was convicted of and sentenced to:

1. attempted murder, 20 years;

2. attempted larceny in the 2^nd degree, 10 years consecutive;

3. attempted larceny in the 3^rd degree, five years;

4. carrying a pistol without a permit, five years;

5. commission of a felony with a firearm, five years consecutive;

6. assault in the first degree, 20 years; and

7. conspiracy to commit larceny in the 2^nd degree, five years consecutive.

This is a net sentence of 40 years. The division ruled that because of (1) the petitioner’s age (he was 18 years old), (2) the fact that he was diagnosed as learning disabled in school, (3) the lack of a prior criminal history, (4) the lack of any permanent injury to the victim, (5) sentences imposed on counts one and five (25 years incarceration), and (6) the “inchoate nature of the attempted larcenies,” the sentences for counts two and seven were disproportionate with what other defendants in similar situations had received. His sentence was reduced to a net of 25 years. (James Daniel Daeira, Docket No. CR 95-114459. )

Case 4—2000

The petitioner had been sentenced to 12 years, eight of which was suspended. Soon after serving the four years, he was arrested for violating probation and had to serve the suspended portion of his sentence. He contested that portion of his sentence before the division. His probation violation consisted of arriving late for two sessions of evaluation for sex offender treatment, which his probation officer had added as a condition of probation. The division reduced his sentence to time served (14 months by the time of the decision), citing “the nature of the violation; the efforts expended by the petitioner to comply; the protection of the public interest; and the deterrent, rehabilitative, isolative, and denunciatory purposes for which the sentence was intended. ” (Emmanuel Smith, Docket Nos. CR94-66397, CR93-100155. )

Case 5—2000

The petitioner was sentenced to a net sentence of 16 years for carrying a pistol without a permit, carrying a weapon, altering or removing pistol identification, and interfering with a police officer. The division cited positive factors that the petitioner’s counsel highlighted in arguing for a reduced sentence including that the gun was not used, it being a nonviolent offense, and that the petitioner was willing to improve his future. His sentence was reduced to nine years. (Joshua E. Turner, Docket No. CR 97-130092. )

Case 6—2001

The petitioner was convicted of being an accessory to murder and conspiracy to commit murder and received a sentence of 60 years. The division reduced the sentence to 45 years, stating that the known facts at the time of sentencing did not support the petitioner, who drove the car, receiving the maximum sentence, while the shooter received the minimum sentence of 35 years after pleading guilty. (Carlos A. Ortiz, Docket No. CR 93-448783. )

Case 7—2002

The petitioner pled guilty to the charges of selling narcotics and carrying a pistol without a permit. He was sentenced to six years, three of which were suspended. However, the petitioner failed to appear in court for his sentencing and the court changed his sentence to 20 years. The division felt that it was disproportionate to sentence the petitioner to 17 extra years for failing to appear at sentencing and reduced it to eight years. (Mark Anderson, Docket No. CR 00-175818. )

Case 8—2002

The petitioner was sentenced to 30 years for selling drugs near a school and for failing to appear in court. The division reduced the sentence to 14 years in light of the petitioner’s criminal history—which included no jail time, the small amount of narcotics seized, and “other relevant factors. ” (Leo Charles, Docket No. 97-126744. )

Case 9—2003

The petitioner was sentenced to 10 years for risk of injury to a minor, which was suspended after six years. This was to be followed by five years of probation. The victim, the petitioner’s 10-year old adopted daughter, had accused him of French-kissing her. The state never alleged anything than more than a French-kiss while both parties were fully clothed. The division reduced this to 10 years suspended after three years, followed by 10 years of probation. In doing so, the division cited the nature of the offense, the petitioner’s lack of criminal history, and the fact that he initiated the rehabilitation process. (Douglas Hamilton, Docket No. CR 98-110921. )

Case 10—2003

The petitioner was sentenced to 18 years after being convicted of selling drugs and three counts of selling drugs within a school zone. While the division noted the seriousness of the crimes, it considered the nature of the offense in that the three counts of selling drugs within a school zone amounted to transactions totaling $ 20. It also considered the lack of violent activity and reduced the sentence to a net effective sentence of 12 years. (Samuel Lee Spivey, CR 96-137390. )

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