State v. Martin M.

• Decision Date: 04 June 2013
• Docket Number: No. 34246.,34246.
• Citation: 70 A.3d 135,143 Conn.App. 140
• Parties: STATE of Connecticut v. MARTIN M.
• Court: Connecticut Court of Appeals

143 Conn.App. 140

70 A.3d 135

STATE of Connecticut

v.MARTIN M.^*

No. 34246.

Appellate Court of Connecticut.

Argued Feb. 6, 2013.

Decided June 4, 2013.

James B. Streeto, assistant public defender, for the appellant (defendant).

Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, was Maureen Platt, state's attorney, for the appellee (state).

LAVINE, BEACH and SCHALLER, Js.

LAVINE, J.

The defendant, Martin M., appeals from the judgment of the trial court denying his motion to correct an illegal sentence, which he filed pursuant to Practice Book § 43–22. On appeal, the defendant claims that his sentence was imposed in an illegal manner because the court imposed sentence on the basis of (1) his kidnapping conviction in this action, which was reversed, (2) inaccurate information that sexual offenders collectively have relatively higher rates of recidivism and (3) an alleged postjudgment factual finding that he was a “sexual predator.” The defendant asks this court to reverse the judgment and remand the case with direction to order a new sentencing hearing as provided in Practice Book § 43–10. We affirm the judgment of the trial court.

The facts giving rise to this case are set forth in State v. Martin M., 115 Conn.App. 166, 168–69, 971 A.2d 828, cert. denied, 293 Conn. 908, 978 A.2d 1112 (2009). Over the course of about six years, the defendant repeatedly sexually assaulted the victim, who was approximately five years old when the assaults began. Id., at 168, 971 A.2d 828. “After a trial to the jury, the jury found the defendant guilty of two counts of risk of injury to a child [in violation of General Statutes § 53–21], one count of sexual assault in the first degree [in violation of General Statutes § 53a–70 (a)(2) ] and one count of kidnapping in the first degree [in violation of General Statutes § 53a–92 (a)(2)(B) ]. The defendant was sentenced [by the court, Prescott, J.,] to twenty years incarceration for sexual assault in the first degree, twenty years incarceration for kidnapping in the first degree and ten years incarceration for each count of risk of injury to a child. The terms of incarceration for the sexual assault and kidnapping were to be served concurrently and the terms of incarceration for each count of risk of injury were to be served concurrently to each other but consecutively to the sexual assault and kidnapping. The total effective sentence was thirty years incarceration.” Id., at 169, 971 A.2d 828.

The defendant appealed to this court. Shortly after his conviction, our Supreme Court changed its interpretation of § 53a–92. See generally State v. DeJesus, 288 Conn. 418, 953 A.2d 45 (2008). On the basis of that change in precedent, this court reversed the defendant's conviction of kidnapping and remanded the case for a new trial on the kidnapping count. State v. Martin M., supra, 115 Conn.App. at 180, 971 A.2d 828. On remand, the state elected not to retry the defendant on the kidnapping charge, and terminated the prosecution by entering a nolle prosequi as to that count. See Practice Book § 39–29 et seq.

Subsequently, the defendant filed an application with the sentence review division for review of his sentence, arguing for a sentence reduction in light of the nolle prosequi. See Practice Book § 43–23 et seq. The defendant raised essentially the same arguments as those he raises in the present appeal. The division, Alexander, B. Fischer and White, Js., affirmed the sentence, finding that the sentence was appropriate and not disproportionate. The defendant then filed a motion to correct an illegal sentence, raising the same arguments again. The court, Damiani, J., denied the motion. This appeal followed. Additional facts and procedural history are set forth as necessary.

I

The defendant's first claim is that his sentence was imposed in an illegal manner because Judge Prescott relied on inaccurate information in imposing the sentence. In response, the state contends ¹ that the trial court properly deniedthe motion because Judge Prescott in fact did not rely on inaccurate information. We conclude that the trial court properly concluded that Judge Prescott did not rely on inaccurate information in imposing sentence.

We review the relevant legal standards. We review the court's denial of the defendant's motion to correct the sentence under the abuse of discretion standard of review. State v. Olson, 115 Conn.App. 806, 811, 973 A.2d 1284 (2009). “In reviewing claims that the trial court abused its discretion, great weight is given to the trial court's decision and every reasonable presumption is given in favor of its correctness.... We will reverse the trial court's ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) State v. Charles F., 133 Conn.App. 698, 705, 36 A.3d 731, cert. denied, 304 Conn. 929, 42 A.3d 390 (2012).

Practice Book § 43–22² sets forth the procedural mechanism for correcting invalid sentences, and its scope is governed by the common law. State v. Parker, 295 Conn. 825, 836, 992 A.2d 1103 (2010). A sentence is invalid if it is imposed in an illegal manner. See id., at 837, 992 A.2d 1103; see also Practice Book § 43–22. Within the definition of sentences imposed in an illegal manner, our jurisprudence includes sentences “which violate [a] defendant's right ... to be sentenced by a judge relying on accurate information....” (Internal quotation marks omitted.) State v. Parker, supra, at 839, 992 A.2d 1103.

To prevail on a claim that a sentence is invalid because a sentencing court relied on inaccurate information, a defendant “must show ... that the judge relied on that information.” (Emphasis in original; internal quotation marks omitted.) Id., at 843, 992 A.2d 1103; see also State v. Collette, 199 Conn. 308, 321, 507 A.2d 99 (1986). “A sentencing court demonstrates actual reliance on misinformation when the court gives explicit attention to it, [bases] its sentence at least in part on it, or gives specific consideration to the information before imposing sentence.” (Internal quotationmarks omitted.) State v. Parker, supra, 295 Conn. at 843 n. 12, 992 A.2d 1103.

The evidence at trial supporting the kidnapping charge indicated as follows. At least once a week, the victim would wake up to find the defendant on top of him performing anal intercourse. State v. Martin M., supra, 115 Conn.App. at 168, 971 A.2d 828. When the victim tried to get away, the defendant grabbed him by the arms, held him face down on the mattress and laid on top of him. Id. When the victim told the defendant to stop because it hurt, the defendant replied, “ ‘Shut up.’ ” Id. In denying the defendant's motion for a judgment of acquittal, Judge Prescott concluded that the evidence of these facts supported the charge of kidnapping in the first degree pursuant to our Supreme Court's construction of § 53a–92 (a)(2)(B) at that time.³

At the sentencing hearing, Judge Prescott reviewed the presentence investigation report and heard from the state, the victim, the victim's guardian ad litem, the defendant's counsel and the defendant. Before imposing sentence, Judge Prescott explained his reasoning.⁴Judge Prescottmentioned the kidnapping conviction twice, in rote recitation of the guilty verdict. See footnote 4 of this opinion.

The defendant claims that his sentence falls within the definition of a sentence imposed in an illegal manner because Judge Prescott relied on incorrect information: the defendant's conviction of kidnapping in the first degree, which this court reversed. See State v. Martin M., supra, 115 Conn.App. at 180, 971 A.2d 828. We assume but do not decide that reliance on the subsequently reversed kidnapping conviction constitutes reliance on incorrect information. To prevail on the merits, the defendant must show that Judge Prescott gave explicit attention to the kidnapping count, or based the sentence at least in part on it, or gave specific consideration to it before imposing sentence. See State v. Parker, supra, 295 Conn. at 843 n. 12, 992 A.2d 1103.

Given the facts of this case, we reject the claim that the sentence was imposed in an illegal manner because the record does not reflect that Judge Prescott relied on the reversed conviction of kidnapping when sentencing the defendant. The sentence imposed for kidnapping was to be served concurrently with the sentence imposed for sexual assault, giving the sentence imposed for kidnapping essentially no punitive effect. After conducting a careful review of the sentencing hearing, it is clear that Judge Prescott focused on the sex offenses and considered the danger the defendant posed as a recidivist sex offender—the kidnapping conviction was incidental. See footnote 4 of this opinion. Judge Prescott mentioned the kidnapping count only in rote recitation and never discussed any of its particulars. See id. Aside from a brief colloquy discussing the relevant penalties in the presentence investigation report and a brief mention in the state's summation, the arguments presented at the hearing did not involve the kidnapping conviction. Rather, the arguments concerned the sexual offenses; prior misconduct, including other sex offenses, domestic violence, burglary and violation of a protective order; and the effect of the assaults on the victim and the interests of the victim. The defendant has not shown that Judge Prescott relied on the kidnapping conviction in imposing sentence. See State v. Parker, supra, 295 Conn. at 843, 992 A.2d 1103.

The defendant argues that State v. Raucci, 21 Conn.App. 557, 563, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990), controls the present appeal and requires a resentencing hearing. In Raucci, the defendant, Michael Raucci, originally was convicted on four counts, two of which were conspiracy charges. The sentences on two of those counts were to be served consecutively to the sentences on the other two counts. Id., at 558, 575...