State v. Candito, 2622

• Decision Date: 28 May 1985
• Docket Number: No. 2622,2622
• Citation: 4 Conn.App. 154,493 A.2d 250
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Joseph F. CANDITO.

Page 250

493 A.2d 250

4 Conn.App. 154

STATE of Connecticut v. Joseph F. CANDITO.

No. 2622.

Appellate Court of Connecticut.

Argued March 5, 1985.

Decided May 28, 1985.

Richard S. Cramer, Hartford, for appellant (defendant).

Judith Rossi, Sp. Asst. State's Atty., with whom, on the brief, were Carl Schuman and Peter Markle, Asst. State's Attys., for appellee (state).

Before DUPONT, C.P.J., and BORDEN and SPALLONE, JJ.

DUPONT, Chief Presiding Judge.

The defendant appeals from a judgment of the trial court, rendered after a jury found him guilty of the crime of failure to appear in violation of General Statutes § 53a-172. ¹ On May 25, 1982, the defendant pleaded guilty to five felony charges for which the court scheduled sentencing for June 28, 1982. ² The defendant posted bonds which totaled $75,000, and gave his written promise to appear on all scheduled court appearance dates. The probation officer conducting the presentence investigations was not able to contact and interview the defendant until June 28, 1982, the day of the scheduled sentencing. Consequently, sentencing was postponed until the following day, June 29, 1982, and the defendant was so informed by the probation officer.

The defendant failed to appear in court on June 29, 1982. On July 12, 1982, he was taken into custody by Connecticut authorities in New Jersey, after he had been arrested on a fugitive warrant for his failure to appear for sentencing. After being returned to Connecticut, the defendant was sentenced on the five felony charges. ³ On July 29, 1983, the court rendered judgment on the jury verdict of guilty of the crime of failure to appear.

On appeal from that judgment, the defendant claims that the trial court erred: (1) in finding that the evidence of wilfulness was sufficient to support the jury verdict; (2) in imposing a sentence which violated the defendant's constitutional rights to due process and to equal protection, and his right to a jury trial; (3) in failing to instruct the jury that its consideration of judicially noticed facts did not constitute a conclusive finding; and (4) in improperly admitting into evidence the specific charges pending against the defendant at the time he failed to appear.

The defendant contends that the jury's verdict that he was guilty of wilful failure to appear, in violation of General Statutes § 53a-172, was not reasonably supported by the evidence. The defendant claims, therefore, that the trial court should have granted his motion for a judgment of acquittal. The standard of appellate review of a denial of a motion for a judgment of acquittal has been settled by judicial decision. State v. Heinz, 193 Conn. 612, 625, 480 A.2d 452 (1984). The issue to be determined is whether the jury could have reasonably concluded, from the facts established and the reasonable inferences which could be drawn from those facts, that the cumulative effect was to establish guilt beyond a reasonable doubt. State v. Duhan, 194 Conn. 347, 355, 481 A.2d 48 (1984); State v. Heinz, supra, 193 Conn. at 625, 480 A.2d 452. The facts and the reasonable inferences stemming from the facts must be given a construction most favorable to sustaining the jury's verdict. Id.

The trial court instructed the jury as follows: "In the state of Connecticut the word 'willfully' as used in this statute implies the doing of a forbidden act, purposefully in violation of the law." That statement of the law is legally correct. State v. Hoskins, 35 Conn.Sup. 587, 596, 401 A.2d 619 (1978). In order to prove the "wilful" element of General Statutes § 53a-172, the state must prove beyond a reasonable doubt either that the defendant received and deliberately ignored a notice to appear or that he intentionally embarked on a course of conduct designed to prevent him from receiving such notice. United States v. Cohen, 450 F.2d 1019, 1021 (5th Cir.1971); State v. Hoskins, supra, 35 Conn.Sup. at 596-97, 401 A.2d 619.

Here, the proof of wilfulness depended on inferences reasonably drawn from the direct evidence presented by the state, particularly the testimony elicited from the interviewing probation officer, which indicated that the defendant received unambiguous notice of the June 29 court date. Furthermore, the defendant was aware of his conviction of five felonies and of the maximum punishment for each felony. In addition, the defendant was found, less than two weeks later, not in Connecticut, but in another state. From this evidence, the jury could reasonably infer that the defendant knew of his responsibility to appear in court on June 29, 1982, that he expected to receive a substantial sentence, and that he fled the state rather than face almost certain incarceration. See State v. Nemeth, 182 Conn. 403, 407-408, 438 A.2d 120 (1980). From the evidence, the jury could reasonably conclude that the defendant had received notice of the date of his court appearance, and that he had deliberately ignored that notice.

The court sentenced the defendant on the conviction for wilful failure to appear to a period of imprisonment not to exceed three years. Prior to the sentencing of the defendant, a co-defendant had received a two-and-one-half year sentence after pleading guilty to the same charge. The defendant claims that the fact he received a harsher sentence than his co-defendant for an identical offense, suggests that the sentencing court penalized him for having exercised his constitutional right to a jury trial. He does not, however, make any claim that his sentence exceeded the statutory limits or that the court relied on improper criteria in determining the sentence.

Sentencing is an individualized procedure in which the court has the grave responsibility to determine and impose, within applicable statutory limits, the appropriate punishment for a particular defendant. Williams v. New York, 337 U.S. 241, 246-49, 69 S.Ct. 1079, 1082-84, 93 L.Ed. 1337 (1949). The sentencing of a defendant to a term of punishment within the statutory limits for the offense charged, and with the use of proper criteria, represents a proper exercise of a court's discretion and is not reviewable on appeal. State v. Nardini, 187 Conn. 109, 119, 445 A.2d 304 (1982).

One co-defendant is not a criminal clone of the other. The receipt by one of a harsher sentence, after a trial and conviction, than the other, after a guilty plea, does not inexorably lead to a conclusion that there has been an unconstitutional punishment for the exercise of sixth amendment rights. State v. Sober, 166 Conn. 81, 93-95, 347 A.2d 61 (1974). It is usually impossible to compare one sentence with another for the same crime because, although the elements of an appropriate sentence remain constant, the difference between or among defendants is variable. Punishment must fit the criminal as well as the crime. The defendant has not carried his burden of persuasion that the difference between his sentence and the sentence of his co-defendant was the result of penalizing him for having exercised his right to a jury trial.

The defendant also claims that his right to equal protection of the laws was denied as a result of the sentence imposed. Equal protection of the laws is a constitutional shield provided by the fourteenth amendment of the United States constitution which prohibits unequal treatment by the law of those who are similarly situated. Henry v. White, 359 F.Supp. 969, 971 (D.Conn.1973); New Haven Metal & Heating Supply Co. v. Danaher, 128 Conn. 213, 218-19, 21 A.2d 383 (1941). Co-defendants are not without variance, and need not, in terms of punishment, be treated similarly because they are rarely, if ever, exactly similar. There is no support in this...