State v. Elson, No. 31511.

• Decision Date: 07 December 2010
• Docket Number: No. 31511.
• Citation: 125 Conn.App. 328,9 A.3d 731
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Zachary Jay ELSON.

9 A.3d 731

125 Conn.App. 328

STATE of Connecticut

v.Zachary Jay ELSON.

No. 31511.

Appellate Court of Connecticut.

Argued May 26, 2010.

Decided Dec. 7, 2010.^*

Hubert J. Santos, with whom were Benjamin B. Adams, and, on the brief, Hope C. Seeley, Hartford, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Warren C. Murray, supervisory assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and BISHOP, GRUENDEL, HARPER, LAVINE, BEACH, ROBINSON, ALVORD and DUPONT, Js.

HARPER, J.

The defendant, Zachary Jay Elson, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a)(1) and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a).¹ Also, as alleged ina part B information, the trial court found the defendant guilty of committing an offense while on pretrial release in violation of General Statutes § 53a-40b (1). On December 10, 2008, the defendant's direct appeal was argued before a panel of three members of this court, which, with one judge concurring in part and another judge concurring in part and dissenting in part, affirmed the judgment of conviction. State v. Elson, 116 Conn.App. 196, 975 A.2d 678 (2009). Thereafter, this court granted the defendant's motion for reargument and reconsideration en banc.² In that motion, the defendant challenged this court's rejection of one of the several claims raised in the appeal, specifically, that this court should vacate the sentence imposed by the trial court and remand the case for resentencing because the trial court had considered improper factors at the time of sentencing. Following reargument and reconsideration of that claim, we affirm the judgment of the trial court.

The facts underlying the judgment of conviction, as they reasonably could have been found by the jury, were set forth in State v. Elson, supra, 116 Conn.App. at 196, 975 A.2d 678. "On September 3, 2004, the female victim was astudent enrolled at Western Connecticut State University. During the late afternoon, the victim was working on a project in an empty classroom at the university's Danbury campus. The defendant, who was not a student enrolled at the university, entered the classroom, pretending to search for a lost cellular telephone. The defendant spoke with the victim about the telephone; the victim told him that she had not seen it and suggested that he speak with campus police or the maintenance staff. The defendant lingered in the classroom, inquired about the victim's project and asked if he could stay and watch her work. Also, the defendant asked the victim if she was dating anyone. The victim replied that she preferred to work alone and that she was happily married. The defendant stated that he was embarrassed and left the classroom.

"Several minutes after this encounter, the defendant returned to the classroom. The defendant stated that he had forgotten to look on the floor for his telephone. The victim remained seated while she worked but soon sensed the defendant approach her. The victim turned her attention to the defendant and observed him holding a knife near her neck. The victim grabbed the knife and tried to pull it away from the defendant. In the struggle that ensued, the victim fell to the floor and attempted to crawl away. The defendant pursued the victim. He positioned her so that she was lying on her back and then positioned himself on top of her. He straddled her such that each of his knees was on either side of her body and, as the victim continued to resist, punched the victim in her face with his fist. For a brief period of time, the defendant prevented the victim from fleeing. Ultimately, the victim freed herself from the defendant and obtained assistance from others on campus.

"Several days into their investigation, police detectives located and questioned the defendant. The defendant initially told the detectives that he had never beento the campus and had a spotty recollection of his activities on September 3, 2004. After being informed that a female had sustained injuries that were not life threatening on that date at the university, the defendant stated: 'I don't remember why Idid it. I got angry.' He characterized what had occurred as 'all a big mistake.'

"In a written statement that the defendant voluntarily provided to the detectives, he admitted that he had driven to the campus on September 3, 2004, emptied garbage from his automobile and began walking to 'see what was going on around campus.' The defendant stated that earlier that day he had consumed vodka and that after walking about the campus he returned to his automobile, where it is possible that he passed out for several minutes. The defendant stated that he then entered a classroom building to use a restroom and that at that time he was 'very, very drunk.'

"The defendant recalled entering a classroom in which he observed a young female who was working on a sketch. He intended to initiate a conversation with her and recalled speaking with her. The defendant stated that when he began to walk away from her, the tip of a knife that he carried in the pocket of his pants poked his leg. According to the defendant, he removed the knife from his pocket, and, at that moment, the female turned to him, observed the knife and began yelling. The defendant stated that 'everything went from a thick haze to a fearful blur' and that he 'must have reached out to try to stop her but accidentally hurt her.' The defendant stated: 'I remember an overpowering feeling of fear; things speeding by, and [I] punched her in her head-she had fallen, and in doing so, maybe knocked the knife out of my hand-I had to pick it up. I punched her again, and my hands were bloody, I never said a word. I think she whimpered when I had rushed to pick up the knife and ran.' The defendant stated that he returned to his automobile and quickly drove awayfrom the scene. Following the incident, the defendant traveled to a fast-food restaurant where he washed the victim's blood off his hands. He also traveled to a highway rest stop where he changed his clothing and discarded the clothing and sneakers that he had worn during the attack in a nearby wooded area.

"The victim sustained numerous physical injuries. Those injuries included lacerations on the fingers of her right hand; one of her fingers required surgery to repair a severed tendon. The victim also sustained lacerations on her chin, near her left eye and on her left arm. At the time of trial in 2006, the physical effects of those injuries were still evident in that the victim experienced a limited degree of flexibility in her surgically repaired finger and exhibited scars on her fingers, right hand, arm and face." Id., at 199-202, 975 A.2d 678.

With regard to the claim under reconsideration, the defendant argues that the court deprived him of his right to due process when it considered improper factors at the time of sentencing.³ Specifically, the defendant asserts that the court, in imposing sentence, improperly was affected by (1) the fact that he proceeded to trial rather than accept a plea bargain extended by the state and (2) a full exhibit, namely,a knife that the state offered in evidence during the trial.⁴

The defendant's claim is based upon specific statements that the court made during the sentencing proceeding on June 8, 2006; the statements, and their context, are set forth in the discussion that follows. At the commencement of the proceeding, the prosecutor addressed the court, ultimately recommending a total effective sentence of thirty-five years incarceration, suspended after twenty-five years, followed by five years probation with special conditions. Thereafter, the victim read an impact statement she had written. The defendant's attorney addressed the court, suggesting that the court consider factors that supported a lenient sentence. The court listened to statements made by a family friend of the defendant as well as the defendant's father. The defendant exercised his right of allocution, expressing remorse for the criminal conduct underlying his convictions. He stated in relevant part: "I'd like to apologize to [the victim] and her family.... I've hurt you, I've terrified you, and I've destructed your sense of security, viciously. What I did was horrible, and from the bottom of my heart I'm so sorry for what I did to you and your family. I know I probably can't make it okay right now, but I'm going to do my best. And, again, I'm just so sorry. I'd also like to apologize to the court and also the [Western Connecticut State University] community because in violating one of their student's safety and security-and I violated all of this. I'd also like to apologize to my family. I wish I hadn't done this to any of them."

Thereafter, the court stated that it would "make some introductory remarks before [proceeding] to formal sentencing." At that time, the court indicated that it had considered a letter submitted to the court from the defendant's mother and the statement of the defendant's father. The court then stated: "We've all heard the defendant's apology. I don't know how sincere it is, but it is certainly unfortunate that it comes so latein the process. If the defendant had been truly apologetic, he wouldn't have put the victim through the trial. To a large extent, it seems to me that the defendant's apology represents thinking of himself rather than the victim."

The court discussed the victim's "credible" trial testimony, noting that "[t]here is no reason in my mind to doubt her testimony that the defendant came at her from behind with a knife to her throat." The court stated: "A person intends the natural consequences of his acts. And the natural consequences of that act is to cause serious physical injury. [The] [d]efendant came about six...