Opinion
No. CR94-402410
June 7, 2004
MEMORANDUM OF DECISION
Maurice Billie, petitioner, was convicted after a jury trial of two counts of Manslaughter in the First Degree, as an accessory, a violation of General Statutes Sections 53a-8 and 53a-55(a)(1), which are Class B felonies and each count provides for a maximum penalty of 20 years incarceration and petitioner was also convicted of one count of Carrying a Firearm Without a Permit in violation of General Statutes Sec. 29-35 which provides a maximum period of 5 years incarceration.
An additional conviction of Commission of a Class A, B or C felony with a firearm in violation of General Statutes Sec. 53-202k was vacated. See State v. Billie, 47 Conn. App. 678 (1998).
The petitioner was sentenced to a maximum period of incarceration on each count consecutive one to the other, for a net effective sentence of 45 years to serve. It is this sentence petitioner seeks to have reviewed.
The Division relies upon the following facts as reported by the Supreme Court in State v. Billie, 250 Conn. 172 at 176.
On September 3, 1994, the (petitioner) spent the evening drinking alcohol and smoking marijuana and illy. The next day, the (petitioner) went to a cookout hosted by friends, where he and two friends smoked blunts. Later in the day, the (petitioner) met his friend Andre Cinicola, who had a .40 caliber semiautomatic pistol in a shoulder holster. The (petitioner) put on the holster and weapon and covered them with a leather jacket . . . The (petitioner) decided to go to Congress Avenue in New Haven to purchase marijuana. The (petitioner) drove a Mazda Miata and Cinicola rode in the passenger seat. While on Congress Avenue, the (petitioner) and Cinicola were told "that members of a gang known as the Stickup Boys were nearby driving a blue Mustang. The Stickup Boys were a gang that had recently engaged in a shooting and robbing spree in the inner city neighborhoods and housing projects in the New Haven area.". . . The (petitioner) and Cinicola drove off in search of the blue Mustang.
Illy is the street name for a drug consisting of a nonuniform mixture of Phecyclidine (PCP), wood alcohol, methanol and formaldahyde. Id., page 175 footnote 6.
A blunt typically is a small cigar that is hollowed out and filled with illy and smoked in the manner of a marijuana cigarette. Id., p. 177 footnote 10.
Minutes later, the (petitioner) came upon a blue Mustang with tinted windows, and a high speed chase ensued. "The (petitioner) positions the Miata alongside the driver's side window of the Mustang. Cinicola took the pistol from the (petitioner) and fired [a total of] four shots at the Mustang . . . One of the bullets struck the driver in the head, either killing or incapacitating him instantly and causing him to lose control of the car. The Mustang crashed into a nearby office building. The (petitioner) also lost control of the Miata, which [then crashed into] a utility pole located seventy feet from the Mustang. The last portion of the chase and shootout were observed by three New Haven police officers who were [stationed] near the location of the car crashes."
The police officers found Cinicola on the sidewalk next to the Miata and the (petitioner) trapped in the driver's seat . . . The driver of the Mustang . . . had been killed by a single gunshot wound to the head. The front seat passenger . . . was killed by a single gunshot wound to the chest. Ballistic testing confirmed that the bullet that killed the front seat passenger was fired from Cinicola's gun . . . No weapon was found in the Mustang and evidence later revealed that the (petitioner) knew all four occupants and was a close friend of the two who were killed and that none of them was connected to the Stickup Boys.
At the hearing before the Division counsel for the petitioner stressed that petitioner was found not guilty by the jury of Capital Felony, Conspiracy to Commit Murder and two counts of Murder. Counsel claimed that at trial the petitioner put forward a defense of intoxication and the trial court "precluded it."
Counsel for petitioner also related that the sentence of the codefendant, Cinicola, demonstrates a disparity of treatment. Cinicola fled after the incident, was later apprehended and pled guilty to two counts of Murder for which he received a sentence of 50 years on each, concurrent, for a net effective sentence of 50 years incarceration. Counsel claims this is disparate whereby petitioner did not fire any shots and received a sentence of 45 years incarceration. Counsel characterizes his client's participation as "one act of aiding and abetting . . ." It is the petitioner's claim that petitioner was not the shooter and petitioner's penalty is disproportionate and inappropriate when compared to the sentence of the shooter. In commenting on petitioner's criminal history counsel indicated the petitioner was on probation at the time of the incident but that his record reflected no violent crimes and reflected that petitioner never served any jail time.
Petitioner seeks concurrent time for each manslaughter conviction. The petitioner addressed the Division and expressed remorse and indicated his acts were due to the effects of drugs upon him.
The Counsel for the state countered by emphasizing that there was a high-speed chase and, as the driver, the petitioner "put Cinicola in the position to fire the fatal shots." Counsel indicated petitioner was found with the gun holster on him although he is not accused of firing the shots and that petitioner was on two separate probations at the time of the tragedy.
Counsel for the state further indicated in justification for the sentence of the co-defendant, that Cinicola waived his right to a trial and did plead guilty to two counts of Murder in return for the 50-year sentence.
At sentencing the trial court remarked:
The act for which he has been convicted, his conduct for which he has been convicted has resulted in the deaths of two young people who are absolutely unintentional victims of violent conduct.
The conduct for which he has been convicted is senseless acts of violence. There is no reason why this should have happened, none whatsoever. I see no basis to have any period of probation, and no basis to impose any reduced sentence. CT Page 8762
(Transcript, August 18, 1995, page 14.)
The Division has also reviewed Petitioner's Sentence Review Memorandum dated March 23, 2004.
There is no claim that petitioner fired the fatal shots. Under our law of accessorial liability in the event a person knowingly and wilfully assists the perpetrator of the offense in the acts which prepare for, facilitate or consummates it, he is equally liable.
Although Mr. Cinicola fired the fatal shots, he waived his right to a trial and pled guilty to two counts of murder and received a net sentence of 50 years. He was given consideration by the state, appropriately, for waiving his right to have a trial and all that entails.
In the case of the petitioner, he elected to have his trial. A petitioner shall not be penalized for electing to take the matter to trial. But a petitioner should be mindful that, "In the course of the proof at trial the judge may gather a fuller appreciation of the nature and extent of the crimes charged. The (petitioner's) conduct during trial may give the judge insights into his moral character and suitability for rehabilitation . . ." (Citations omitted.) See State v. Coleman, 242 Conn. 523, 538.
State v. Coleman not on point because it concerns the difference in sentencing the same individual after plea and after trial.
It is noteworthy that the relevant sentencing information available to the judge after the plea will usually be considerably less than available after trial. Id. For the state to give consideration to Cinicola in return for his plea of guilty under these circumstances does not make the respective sentences disparate.
The Division sees no inappropriate disparity between the sentences imposed on each perpetrator. Each was equally liable. Their combined actions resulted in the death of two persons.
Pursuant to Connecticut Practice Book § 43-23 et seq., the Sentence Review Division is limited in the scope of its review. The 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."
The Division is without authority to modify sentences except in accordance with the provisions of Connecticut Practice Book § 43-23 et seq., and Connecticut General Statute § 51-194 et seq.
Taking into consideration the petitioner's criminal history and the violent and horrendous nature of the crime, resulting in the deaths of two persons, the sentence imposed is neither inappropriate nor disproportionate.
In reviewing the record as a whole, the Division finds that the sentencing court's actions were in accordance with the parameters of Connecticut Practice Book Sec. 43-23 et seq.
THE SENTENCE IS AFFIRMED
Miano, J.
O'Keefe, J.
Espinosa, J.
Miano, J., O'Keefe, J., and Espinosa, J, participated in this decision.