Topic:
COURT PROCEDURE; CRIME; CRIMINALS; JUDGES; SENTENCING; STATISTICAL INFORMATION;
Location:
SENTENCING;

OLR Research Report


June 27, 2008

 

2008-R-0372

SENTENCE REVIEW AND MODIFICATION

By: Sandra Norman-Eady, Chief Attorney

You asked for (1) a summary of the state law on sentence review and modification, including the criteria for reducing sentences; (2) statistics on applications or petitions for review or modification; and (3) a comparison of Connecticut's law to the law in the other New England states.

SUMMARY

There are currently two processes in Connecticut for seeking reconsideration of criminal sentences without filing appeals. By law, criminal defendants may apply to the Sentence Review Division of the Superior Court to have sentences of at least three years in prison reviewed. The clerk of the court that imposes the sentence or revokes a suspended sentence notifies defendants of their right to seek the review. The defendants must file an application for review with three judges that make up the division. The review may result in no changes to the sentence or the sentence being increased or decreased.

Defendants sentenced to up to three years may also ask the sentencing court or judge to reduce the sentence. Defendants with a sentence of three years or more may ask the sentencing judge or court for a reduction only if the state's attorney agrees to the reconsideration. However, a mandatory minimum sentence may be neither suspended nor reduced.

Neither the sentence review nor the reduction statute specifies the criteria for reducing a sentence after a defendant's request for a review or reduction. The Rules of Superior Court provide that the Sentence Review Division may modify a sentence that is inappropriate or disproportionate considering the nature of the offense; the character of the offender; need for public protection; and deterrent, rehabilitative, isolative, and denunciatory purposes for which the sentence was intended (PB 43-28). Court rules also provide that a judicial authority may correct an illegal sentence or other disposition of three years or less or correct a sentence (or other disposition) imposed in an illegal manner (PB 43-31).

During the past six fiscal years, the Sentencing Review Division has received a total of 997 applications; approximately 160 applications each year. It has affirmed the vast majority of the applications reviewed; ordering a sentence reduction or modification in only 13 cases. The Judicial Department does not maintain statistics on sentence reductions by sentencing courts or judges, according to Larry D'Orsi, deputy director for criminal matters.

All of the New England states have a sentence review system. Connecticut's system is similar to that in Massachusetts and New Hampshire. In all three states, a three-judge review division reviews sentences when requests are made within specified times and the sentences meet specified minimum lengths. Maine, Rhode Island, and Vermont allow sentencing courts or judges to correct illegal sentences of any length.

CONNECTICUT SENTENCE REVIEW

Law

The Sentence Review Division of the Superior Court consists of three Superior Court judges appointed by the chief justice of the Supreme Court. The division meets at such times and places as its business requires. No judge may review a sentence that he or she imposed; in such case, the chief justice designates another judge to act in his or her place. It takes at least two judges to determine any matter before the division.

Anyone sentenced to a prison term of three years or more may, within 30 days from the date a judge or court imposed the sentence or revoked a suspended sentence, apply to the court clerk for the judicial district where the case was heard to have the sentence reviewed by the Sentence Review Division. But, a person cannot apply if: (1) the court could not have imposed a different sentence, as in the case of an offense that carries a mandatory minimum sentence; (2) the sentence imposed resulted from the court's acceptance of a plea agreement; or (3) the sentence imposed was for less than the plea agreement.

The court clerk must give written notice to the person at the time of sentencing or sentence revocation of his or her right to request a review. The notice must indicate that the review hearing may result in an increase or decrease of the sentence within the limits established in the sentencing laws. For example, if a person was sentenced for an offense that carried a penalty of from one to 20 years in prison and the sentencing court ordered him or her to serve 10 years, the review division could reduce it to as few as one year or increase it to as many as 20 years. The clerk must transmit the application to the review division and notify the sentencing judge, who can send the division his or her reasons for imposing the sentence. If requested to do so by the division, the judge must indicate his or her reasons within seven days. We have attached a copy of the review notification and application form (JD-CR-104).

The review division may allow the sentence to stand, or increase or decrease it. The division may, for good cause, waive its authority to increase the penalty and have a hearing on the application without the applicant being present. However, applicants or their attorney may appear if they choose. Crime victims may also appear at the hearing or submit a written statement for the record expressing their opinion on whether the sentence should be modified.

When reviewing any judgment, the division may consider any pre-sentence or pre-commitment reports and any other records, documents, or exhibits connected with it. If the division orders a different sentence or disposition of the case, the Superior Court must impose it. The division's decision, which must include its reasons, is final (CGS 51-194 to 51-196).

Statistics

The number of applications for sentence review varies by year. On average the Sentence Review Division receives approximately 160. Over the past six fiscal years, the division received 997 applications. On June 16, 2008, the division had disposed of 581 of these cases; 416 were pending. Currently, the median age of pending cases is about two years, according to Ina Forman, division counsel and secretary. Table 1 shows the number of applications the division received for each of the past six fiscal years. Table 2 shows the number of sentences modified by year.

TABLE 1: APPLICATIONS FOR SENTENCE REVIEW

Fiscal Years

Number of Applications Received

Sentences Modified

2007-2008

172 (as of 6/16/08)

1

2006-2007

166

0

2005-2006

179

2

2004-2005

157

2

2003-2004

161

4

2002-2003

162

4

TOTAL

997

13

TABLE 2: MODIFIED SENTENCES BY YEAR

Fiscal Years

Sentences Modified

2007-2008

1

2006-2007

0

2005-2006

2

2004-2005

2

2003-2004

4

2002-2003

4

TOTAL

13

Cases

Following is a brief summary of the 13 cases in which the division ordered sentence reductions in chronological order by the year the reduction was ordered. The Judicial Department provided all of the summaries.

Case 1—2008

The defendant sold .02 ounces of cocaine to an undercover officer. “Taking into consideration the age of the petitioner at the time of the offense, the nature of his criminal history, and the fact this was a single transaction,” the division found that the defendant's sentence was excessive and disproportionate to that of other similarly situated defendants.

Case 2—2006

The defendant was sentenced to 11 years in prison on weapons and drug charges. The division reduced the sentence to six years, noting that the three gun charges related to a single gun in a motor vehicle, the defendant was young (age 24), and his criminal history consisted of misdemeanor offenses only.

Case 3—2006

The defendant was sentenced to 33 years for hijacking a car, robbing pedestrians, engaging police in a high speed pursuit, and stealing a second car. Given the defendant's age (18), his lack of a substantial criminal history, and that all of the crimes were committed within hours, the division found the net sentence excessive and disproportionate.

Case 4—2005

The defendant was sentenced to five years in prison after pleading guilty to possession of a weapon in a vehicle under an “open plea” agreement. The division reduced the sentence citing the fact that the crime stemmed from a single incident, the defendant was 21 with no prior history, and the gun was unloaded and not brandished.

Case 5—2005

The defendant was convicted of various robberies for attempting to rob two credit unions and sentenced to 40 years. His co-defendant pled guilty and was sentenced to four years. The division concluded the defendant's sentence to the maximum possible penalty was excessive and disproportionate to others similarly situated. It also noted that the 40-year sentence is often reserved for those whose acts result in serious physical injury.

Case 6—2004

The defendant, who has a history of burglaries, was given a 75-year consecutive prison sentence after a conviction for burglary, robbery, and larceny. Within days of his release from prison, the defendant broke into homes and stole bicycles. The division reduced the sentence to 50 years to be served concurrently with an existing sentence after considering the defendant's social history of borderline intelligence and his cooperation with the police.

Case 7—2004

The defendant was convicted of drug charges and sentenced to 40 years in prison. The division reduced the sentence to 15 years, noting the small amount of drugs involved—heroin residue was found on the defendant when he was arrested for attempting to sell heroin to an undercover officer. “While the conduct is egregious, the sentence is disproportionate,” the division ruled.

Case 8—2003

The defendant was sentenced to 45 years in prison on a robbery conviction. The sentence was consecutive to a sentence he was already serving. The defendant behaved violently during the trial and spat on the prosecutor. His co-defendant was sentenced to 20 years in prison and 10 years of special parole. The division modified the defendant's sentence by requiring the 45 years to be served concurrently, instead of consecutively.

Case 9—2003

The defendant was convicted of possession with intent to sell drugs and sentenced to 20 years in prison, suspended after 11 years, and 5 years probation. His co-defendant was sentenced to five years, suspended after three. The division reduced the defendant's sentence to 12 years, suspended after seven, citing disparity. According to the panel, there was “no evidence of sales and both occupants of the car had equal access to drugs.”

Case 10—2003

The defendant was sentenced to 16 years, suspended after eight, and 10 years probation for risk of injury and sexual assault. The division reduced the sentence to 12 years, suspended after four, and 10 years probation citing the non-serious nature of the offense.

Case 11—2003

Convicted by a jury of drug charges, the defendant was sentenced to 13 years in prison and 10 years special parole. The division found the sentence to be disproportionate and reduced the period of special parole from 10 to five years.

Case 12—2003

The defendant was sentenced to 18 years after being convicted of 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.

Case 13—2003

The defendant 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 more than a French-kiss while both parties were fully clothed. The division reduced the sentence to 10 years suspended after three years, followed by 10 years of probation. In doing so, the panel cited the nature of the offense, the petitioner's lack of criminal history, and the fact that he started rehabilitation.

CONNECTICUT SENTENCE REDUCTION LAW

At any time during the period of a sentence of three years or less, the sentencing court or judge may reduce a defendant's sentence, order him discharged, or order him discharged on probation or conditional discharge. This may be done only after hearing and for good cause. The period of probation or conditional discharge cannot exceed that to which the defendant could have been originally sentenced.

A similar procedure applies to sentences of more than three years with one major difference. The state's attorney has to agree to allow the defendant to apply for it.

Neither procedure applies to any sentence imposed for a crime that carries a mandatory minimum sentence which may not be suspended or reduced by the court (CGS 53a-39).

COMPARISONS

All of the New England states have established a sentence review system to address disparate sentences outside of the normal appellate process. Connecticut, Massachusetts, and New Hampshire have established a special division or unit within the Judicial Department to handle reviews. Maine, Rhode Island, and Vermont allow the sentencing judge or court to correct, within specified periods, illegal sentences or sentences that were allowable but illegally imposed. As stated above, Connecticut also allows sentencing judges or courts to reduce sentences within a specified period. Table 3 compares aspects of review systems by state and includes citations.

TABLE 3: SENTENCE REVIEW SYSTEMS IN NEW ENGLAND STATES

States

Eligibility

Review Period

Jurisdiction

Decision maker

Connecticut

(CGS 51-194-197; PB Rule 43-28)

Sentences of three or more years in prison

30 days after the sentence is imposed or a suspended sentence is revoked

The division can determine whether a sentence should be modified because it is inappropriate or disproportionate in the light of the (1) nature of the offense; (2) character of the offender; (3) protection of the public interest; and (4) deterrent, rehabilitative, isolative, and denunciatory purposes for which the sentence was intended.

Sentence Review Division consisting of a three judge panel appointed by the chief justice

Maine

(Maine Sup. Ct. Rules of Crim. Proc. 35)

Any sentence

Within one year after the sentence is imposed

The court may correct an illegal sentence or a sentence imposed in an illegal manner.

Sentencing court or judge

Massachusetts

(MGLA 278 28A-C)

Sentences of more than five years in prison

10 days after the sentence is imposed

The division must review sentences in light of other sentences imposed at the same time.

Appellate Division of Superior Court for the review of sentences consisting of three Superior Court justices designated by the chief justice of that court

Table 3: -Continued-

States

Eligibility

Review Period

Jurisdiction

Decision maker

New Hampshire

(NH RSA 651:57- 651:61; Sup. Ct. Sentence Review Division Rules 22)

Sentences of one or more years in state prison, except in cases where a different sentence could not have been imposed

30 days after the sentence is imposed or longer for good cause

The division may review the (1) excessiveness or lightness of the sentence given the nature of the offense, public interest and safety, and the offender's character; and (2) manner in which the sentence was imposed, including the sufficiency and accuracy of the information before the sentencing court.

Sentence Review Division consisting of a three judge panel appointed by the chief justice of Superior Court

Rhode Island

(Rule 35, Sup. Ct. Rules of Criminal Procedure; Frazier v. de Langlois, 103 RI 607 (1968))

Any sentence

Any time after final judgment; however, 120 days after imposition for sentences imposed in an illegal manner

The court may correct an illegal sentence. An illegal sentence is one imposed after a valid conviction, but not authorized by law (e.g., a sentence in excess of that imposed by statute, imposition of an unauthorized form of punishment, or a judgment that does not conform to the oral sentence).

Sentencing court

Table 3: -Continued-

States

Eligibility

Review Period

Jurisdiction

Decision maker

Vermont

(VSA 7042; Vt. Rules of Criminal Procedure 35)

Any sentence

Any time after final judgment; however, 90 days after imposition for sentences imposed in an illegal manner

The court may correct an illegal sentence. An illegal sentence is one that is not authorized by statute (Woodmansee v. Stoneman, 133 Vt. 449 (1975). A sentence imposed in an illegal manner is one that is lawful under applicable statute but imposed pursuant to a legally deficient or unlawful purpose (State v. Williams, 137 Vt. 360 (1991)).

Sentencing Court

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