State v. Rupar

• Decision Date: 22 September 2009
• Docket Number: No. 18269.,18269.
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Albert RUPAR.

978 A.2d 502

293 Conn. 489

STATE of Connecticut v. Albert RUPAR.

No. 18269.

Supreme Court of Connecticut.

Argued April 23, 2009.

Decided September 22, 2009.

Richard W. Callahan, special public defender, for the plaintiff in error.

Harry Weller, senior assistant state's attorney, with whom, on the brief, were Margaret Gaffney Radionovas, senior assistant state's attorney, Matthew C. Gedansky, state's attorney, and Elizabeth C. Leaming, assistant state's attorney, for the defendant in error.

ROGERS, C.J., and NORCOTT, PALMER, VERTEFEUILLE and ZARELLA, Js.

ZARELLA, J.

The dispositive issue raised by this writ of error is whether convicted persons have a liberty interest under the fourteenth amendment to the United States constitution¹ in receiving prison sentences that are proportional to the prison sentences of similarly situated offenders. We conclude that there is no such liberty interest under the fourteenth amendment and, accordingly, dismiss the writ of error.

The record reveals the following facts and procedural history. On November 19, 2002, the plaintiff in error, Albert Rupar (plaintiff), was charged in a substitute information with sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2), sexual assault in the fourth degree in violation of General Statutes (Rev. to 2001) § 53a-73a (a)(1)(A), and risk of injury to a child in violation of General Statutes (Rev. to 2001) § 53-21(a)(2). Following a jury trial, the plaintiff was acquitted of sexual assault in the first degree and convicted of sexual assault in the fourth degree and risk of injury to a child. On February 21, 2003, the trial court sentenced the plaintiff to a total effective term of eleven years imprisonment, execution suspended after seven years, and twenty years probation with special conditions.² The plaintiff also was ordered to register as a sex offender for ten years.

On appeal, the Appellate Court affirmed the plaintiff's conviction.³ State v. Rupar, 86 Conn.App. 641, 657, 862 A.2d 352 (2004), cert. denied, 273 Conn. 919, 871 A.2d 1030 (2005). In doing so, the Appellate Court summarized the facts underlying the charges that the state had filed against the plaintiff as follows: "On July 14, 2001, the [plaintiff] attended a party at the seven year old victim's home.⁴ The [plaintiff], along with several other adults in attendance at the party, gave rides to children on his all-terrain vehicle around the seven acre property. The victim rode with the [plaintiff] a number of times throughout the evening, sometimes sitting on the back of the vehicle, behind the [plaintiff], and sometimes sitting toward the front of the vehicle, between the [plaintiff's] legs. Every time the victim rode with the [plaintiff], except for the first time, the [plaintiff], using his left hand, touched her vagina both over and under her clothes. On the final ride, the [plaintiff] inserted his finger into her vagina. The [plaintiff] warned [the victim] not to tell anyone what had happened.

"Despite the [plaintiff's] warning, the victim immediately told her mother that [the plaintiff] had `hugged her privates.' After her mother questioned her, the victim then revealed that the [plaintiff] had touched her both over and under her clothes, and that the [plaintiff] had inserted his finger into her vagina. The victim's mother consulted with the victim's father, and the two called the police. Shortly thereafter, the police arrived at the victim's home. The victim was brought to the police station and interviewed. . . . [O]n July 15, 2001, the state police arrested the [plaintiff] at his home." Id., at 642-43, 862 A.2d 352.

On March 14, 2003, following the plaintiff's conviction and sentencing, the plaintiff filed an application for sentence review with the sentence review division of the Superior Court (review division). The review division held a hearing on November 22, 2005. At the hearing, the plaintiff's counsel argued that the plaintiff had been sentenced as if he had been convicted of sexual assault in the first degree, a crime of which he had been acquitted. The plaintiff's counsel further argued that the plaintiff's sentence should be adjusted downward because it was disproportionately excessive in comparison to the sentences of other, similarly situated offenders.⁵ In support of his argument, the plaintiff's counsel presented more than 110 pages of data that he had collected from the judicial branch regarding the sentences of similarly situated offenders. The defendant in error (state) responded that each offender's sentence must be addressed individually, on the basis of its unique facts, and that the facts in the plaintiff's case demonstrated that his sentence was appropriate. Specifically, the state argued that the plaintiff's failure to take responsibility for his actions,⁶ coupled with evidence of prior, uncharged sexual misconduct, demonstrated that the plaintiff's sentence was appropriate.

On November 22, 2005, following the hearing, the review division upheld the plaintiff's sentence. In its memorandum of decision, the review division stated that it had "reviewed and considered" the "handout of comparative cases" that the plaintiff's counsel had provided and his argument that "the trial court sentenced the [plaintiff] as if he had been convicted [of] . . . sexual assault in the first degree." The review division stated further: "Pursuant to [Practice Book] § 43-23 et seq., the [review division] is limited in the scope of its review. The [review] division is to determine whether the sentence imposed `should be modified because it is inappropriate or disproportionate in the light of the nature of the offense, the character of the offender, the protection of the public interest, and the deterrent, rehabilitative, isolative, and denunciatory purposes for which the sentence was intended.' [Practice Book § 43-28.]

"The [review] division is without authority to modify a sentence except in accordance with the provisions of [Practice Book] § 43-23 et seq. and [General Statutes] § 51-194 et seq.

"The trial court heard the testimony of the entire trial. The court can consider all the facts when deciding the fair and appropriate sentence. Regardless of the fact [that] the [plaintiff] was found not guilty of sexual assault in the first degree, the court evaluated the facts and testimony before handing down the sentence. The trial court heard the testimony of the victim and found her to be credible.

"In reviewing the record as a whole, the [review] division finds that the sentencing court's actions were in accordance with the parameters of [Practice Book] § 43-23 et seq.

"The sentence imposed was neither inappropriate [nor] disproportionate."

On February 15, 2006, following the filing of the review division's decision, the plaintiff filed a motion with the review division seeking reconsideration of its decision and a new evidentiary hearing at which "[he] may put on evidence of underlying facts in other cases to support [his] claim that the sentence he received was disproportionate." The plaintiff claims that this motion was denied.⁷ Thereafter, the plaintiff filed a writ of error, which is now before this court.⁸

In support of his writ of error, the plaintiff claims that (1) convicted persons have a liberty interest under the fourteenth amendment to the United States constitution in receiving a sentence that is proportional to the sentences of similarly situated offenders, (2) the review division improperly concluded that his sentence was not disproportionate and improperly declined to reduce his sentence, and (3) he was denied procedural due process as guaranteed under the fourteenth amendment to the United States constitution upon asserting his claimed liberty interest. The state responds that the writ of error should be dismissed because convicted persons do not have a liberty interest under the due process clause in sentences that are proportionate to those of similarly situated offenders. The state argues, therefore, that the plaintiff has not been deprived of due process as a matter of law. We agree with the state and dismiss the writ of error.

I

As a threshold matter, we must address this court's authority to consider a writ of error challenging a decision of the review division. The state asserts that the writ of error should be dismissed because General Statutes § 51-196(d) directs that "[t]he decision of the review division in each case shall be final. . . ." The state's position is that no form of appellate review is available from any determination by the review division. Although we agree that the review division's decision on the merits with respect to the propriety of a sentence is unreviewable, either by way of an appeal or through a writ of error; see State v. Nardini, 187 Conn. 109, 117, 445 A.2d 304 (1982) ("neither the state nor the defendant may appeal from the decision of the sentence review division"); we do not agree that this court is thereby deprived of authority to review certain challenges to the procedures employed by the review division in reaching such a decision.

We begin by noting that, upon the filing of an application for review with the review division, there are three potential outcomes. First, the review division may dismiss an application on jurisdictional or procedural grounds if it is deemed improper under General Statutes § 51-195. Second, the review division may consider the application and uphold the sentence imposed by the sentencing court. Third, the review division may decide to modify the applicant's sentence "and may order such different sentence or sentences to be imposed as could have been imposed at the time of the imposition of the sentence under review. . . ." General Statutes § 51-196(a). We will consider the jurisdictional ramifications of each of these outcomes in turn.

In the event that the review division determines that a sentence modification is...