Opinion
CR050128445S
06-23-2016
State of Connecticut v. Chandra Bozelko
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO CORRECT ILLEGAL SENTENCE
Richard E. Arnold, Judge.
This matter returns to the court on a remand from our Appellate Court as set forth in State v. Bozelko, 154 Conn.App. 750, 108 A.3d 262 (2015). In State v Bozelko, supra, the Appellate Court determined that this court erred in dismissing the defendant's motion to correct an illegal sentence for lack of subject matter jurisdiction and ordered that the defendant was entitled to a hearing on the merits of her motion. In compliance with the remand order this court commenced an evidentiary hearing on July 13, 2015. The matter was heard over several dates and concluded on March 28, 2016 when the court heard the final arguments of the parties. During the course of the hearing the court heard testimony form Chief Probation Officer Lisa Gerald, Attorney Tina D'Amato, Katherine Bozelko, the defendant's mother, Attorney Ira Grudberg and Clinton Roberts, a criminal defense mitigation specialist. The court has also received various exhibits, which include: (1) a copy of a transcript of testimony of Clinton Roberts given at a previous habeas corpus proceeding; (2) a banking records log sheet from Roberts, confirming a retainer fee payment for the defendant; (3) a copy of a cancelled check payable to Roberts for the sum of $5, 000.00; (4) Probation Department letter to the defendant, dated November 15, 2007; (5) a copy of the defendant's pre-sentence investigation report; and (6) a copy of a motion for continuance for sentencing dated November 27, 2007.
This court is not prevented by General Statutes § 51-183c or the related provisions of P.B. § 1-22(a) from considering the issues on remand. See State v. Miranda, 260 Conn. 93, 132, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S.Ct. 224, 154 L.Ed.2d 175 (2002).
I
History of Proceedings
The history of the proceedings, as discussed in this court's original memorandum of decision are again set forth. See State v. Bozelko, Superior Court, judicial district of Ansonia-Milford, Geographical Area 5 at Derby, Nos. CR050128445, CR050129108, CR050128811, CR050129107, (Jan. 17, 2013, Arnold, J.).
The defendant, Chandra Bozelko, was convicted following a jury trial involving criminal charges contained in four separate files. In Docket No. CR-05-128445, she was convicted of attempt to commit larceny in the first degree in violation of General Statutes § § 53a-49 and 53a-122; identity theft in the first degree in violation of General Statutes § 53a-129b; attempt to commit illegal use of a credit card in violation of General Statutes § § 53a-49 and 53a-129d; and forgery in the third degree in violation of General Statutes § 53a-140. In Docket No. CR-05-128811, the defendant was convicted of larceny in the third degree in violation of General Statutes § 53a-124; identity theft in the third degree in violation of General Statutes § 53a-129d; illegal use of a credit card in violation of General Statutes § 53a-128d; and forgery in the third degree in violation of General Statutes § 53a-140. In docket No. CR-05-129108, she was convicted of attempt to commit larceny in the fifth degree in violation of General Statutes § § 53a-49 and 53a-125a; attempt to commit illegal use of a credit card in violation of General Statutes § 53a-49 and 53a-128d; and identity theft in the third degree in violation of § 53a-129d. In Docket No. CR-05-129107, the defendant was convicted of larceny in the fifth degree in violation of General Statutes § 53a-125a; illegal use of a credit card in violation of General Statutes § 53a-128d; and identity theft in the third degree in violation of General Statutes § 53a-129d.
In docket number CR-01-129104, the defendant was found not guilty of attempt to commit larceny in the fourth degree in violation of General Statutes § § 53a-125 and 53a-49; attempt to commit illegal use of a credit card in violation of § § 53a-128d and 53a-49; larceny in the sixth degree in violation of General Statutes § 53a-125b; illegal use of a credit card in violation of § 53a-128d; and identity theft in the third degree in violation of § 53a-129d. In docket number CR-05-129102, the jury found the defendant not guilty of attempt to commit larceny in the fourth degree in violation of § § 53a-125 and 53a-49; attempt to commit illegal use of a credit card in violation of § § 53a-128d and 53a-49; and identity theft in the third degree in violation of § 53a-129d. See State v. Bozelko, 119 Conn.App. 483, 486 n.1, 987 A.2d 1102, cert. denied, 295 Conn. 916, 990 A.2d 867 (2010).
On December 7, 2007, following the preparation of a pre-sentence investigation report by the Department of Adult Probation, the defendant was sentenced by Judge Cronan, the judge who presided at her trial. In Docket No. CR-05-012844 Judge Cronan imposed the sentence of ten years, execution suspended after the defendant served five years, followed by four years of probation on the charge of larceny in the first degree. The court imposed the same sentence for the charge of identity theft in the first degree. For the charge of illegal use of a credit card the court sentenced the defendant to two years incarceration. For the conviction for forgery in the third degree, he imposed a sentence of an unconditional discharge.
For docket number CR-05-128811, the court imposed a sentence of five years, suspended after the defendant serves two years with four years probation for the charge of larceny in the third degree. The court gave the same sentence for the charge of identity theft in the third degree. He imposed a sentence of two years to serve for illegal use of a credit card. For the conviction on the charge of forgery in the third degree, the defendant received a sentence of an unconditional discharge.
In Docket No. CR-05-0129107, the defendant received an unconditional discharge for her larceny in the fifth degree conviction. She received a sentence of two years to serve for her conviction on the charge of illegal use of a credit card. For the charge of identity theft in the third degree, Judge Cronan sentenced the defendant to the Commissioner of Corrections for a period of five years, suspended after she serves two years, followed by four years of probation.
In Docket No. CR-05-129108, the defendant received an unconditional discharge for her conviction for larceny in the fifth degree. For identity theft in the third degree, she received a sentence of five years, execution suspended after she serves two years, followed by four years of probation. She also was sentenced to a term of two years to serve on the charge of illegal use of a credit card.
The court then ordered that all the sentences the defendant received in each of the files would run concurrent to each other, yielding a total effective sentence of ten years, suspended after the defendant served five years, with four years of probation following her release. The court then imposed a condition of probation of mental health evaluation and treatment, as deemed necessary by the Department of Adult Probation. Judge Cronan waived any fees and costs associated with the defendant's matters. He also ordered appeal bonds in each of the four files with the total amount of appeal bonds being $1, 200, 000.00.
On May 24, 2010, the defendant entered guilty pleas to three counts of attempt to commit jury tampering, General Statutes § § 53a-49 and 53a-154. On each count she was sentenced to 27 months to serve. The counts ran concurrent to each other, but consecutive to the sentences she received on December 7, 2007. According to Department of Correction records submitted by the defendant she has received maximum sentences of 5 years and 27 months. Her maximum release date is July 8, 2014. Upon her release from incarceration, she will be on probation for four years.
The defendant, who is self-represented, filed a motion to correct an illegal sentence on February 14, 2012. She concedes that the actual sentence imposed by Judge Cronan on December 7, 2007, was not illegal, but rather, the sentence was imposed in an illegal manner. In other words, the sentence imposed was within the relevant statutory limits, but was imposed in a manner that violated her rights. Specifically, she claims that the pre-sentence investigation (" PSI") utilized by the court at her sentencing, was compiled without her participation, and the report contained a material misrepresentation, which was prejudicial to the defendant. The defendant claims that the presentence investigation was ordered and subsequently written without any input by the defendant because she was " tricked out" of participation in the report's preparation by the probation officer, who reported to the court that the defendant refused to participate in preparing the report. The defendant argues that this " material misrepresentation" by the probation officer was prejudicial to the defendant.
The defendant also argues that neither she, nor her legal counsel had read the sentencing report prior to her sentencing hearing on December 7, 2007, and neither the defendant or her new counsel had an opportunity to learn what information was contained in the report prior to her sentencing. Therefore, the defendant states, she had no opportunity to present evidence in mitigation that may have resulted in a lesser sentence being imposed.
The court notes that the defendant, through her " newly retained" counsel, Attorney Tina Sypek D'Amato, filed a motion for a continuance of sentencing on November 28, 2007, requesting that the scheduled sentencing date of December 7, 2007, be delayed. The motion cited as reasons that there were " circumstances" surrounding the pre-sentence investigation report and the defendant's wish to engage the services of Clinton Roberts, a sentencing mitigation specialist, to " do her PSI." The defendant represented in the motion that she was scheduled to meet with Roberts for the first time on November 30, 2007. The motion was thereafter denied by Judge Cronan on December 7, 2007, the same date the defendant was sentenced.
The defendant claims that the December 7, 2007, sentencing violated various sections of the Connecticut Practice Book. First, she claims the court violated Practice Book § 43-3 " by controverting the rule that PSI reports are mandatory, " by claiming the " defendant had no right to the PSI and, by extension, no right to participate in the PSI." Second, she claims the court violated Practice Book § 43-4 " by not inquiring about defendant's attitude towards alternate incarceration." Third, she claims the court violated Practice Book § 43-5, by denying the defendant the right to have her counsel participate in an interview with the probation officer. Fourth, the court violated Practice Book § § 43-10 and 43-11 by not allowing the defendant to present evidence of the probation officer's misrepresentation or of mitigation. Fifth, the court violated Practice Book § 43-13, which allows the defendant's counsel to be familiar with the PSI, as said counsel had the report copy for less than forty-eight hours, as required by the Practice Book. Lastly, she claims the court violated Practice Book § 43-14, which allows for corrections of any inaccuracies in the PSI.
Sec. 43-3. Pre-sentence Investigation and Report; Waiver; Alternative Incarceration and Plan
Sec. 43-4.--Scope of Investigation or Assessment
Sec. 43-5.--Participation of Defense Counsel in Report Preparation Defense counsel, on a prompt request, shall be notified of the time when the defendant shall be interviewed by probation officers regarding a pre-sentence or alternate incarceration assessment report or both for the judicial authority and may be present:
Sec. 43-10. Sentencing Hearing; Procedures to Be Followed Before imposing a sentence or making any other disposition after the acceptance of a plea of guilty or nolo contendere or upon a verdict or finding of guilty, the judicial authority shall, upon the date previously determined for sentencing, conduct a sentencing hearing as follows:
Sec. 43-13.--Familiarization with Report by Defense Counsel
Sec. 43-14.--Correction of Report Indicated by Defense Counsel
After a hearing, which consisted of oral arguments by the state and the defendant, this court rendered its written decision on January 17, 2013, dismissing the matter for a lack of subject matter jurisdiction. See. State v. Bozelko, supra, Superior Court, judicial district of Ansonia-Milford, Geographical Area 5 at Derby (Jan. 17, 2013, Arnold, J.). Thereafter, the defendant appealed. In State v. Bozelko, 154 Conn.App. 750, 108 A.3d 262 (2015), the Appellate Court ordered that the defendant was entitled to an evidentiary hearing on the merits of her motion as noted earlier herein.
The trial court and sentencing court was Judge Cronan. This matter was assigned to this court (Arnold, as Presiding Criminal Judge in the Judicial District of Ansonia-Milford, when Judge Cronan recused himself from all proceedings involving the defendant, after the defendant filed a judicial grievance against the court. The parties were notified and agreed to proceed with this court (Arnold, J.) presiding.
II
Legal Standard
Our Supreme Court noted in State v. Lawrence, 281 Conn.147, 158, 913 A.2d 428 (2007) " [i]n order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding, and not the trial leading to the conviction, must be the subject of the attack." Id., at 158. " A sentence imposed in an illegal manner is one that (while within the relevant statutory limits) is imposed in a way that violates a defendant's right to be addressed personally at sentencing and to speak in mitigation of punishment, or the right to be sentenced by a judge relying on accurate information or considerations solely on the record or the right that the government keep its plea agreement promises." (Internal quotation marks omitted.) Id. " The above examples are not exhaustive but rather illustrate the fundamental proposition that the defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence." State v. Grant, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CR05208900T, (Dec. 28, 2011, Devlin, J.)
III
Discussion
The state, in continuing to object to the defendant's motion, claims the sentence imposed by the court was not illegal. The state argues that the defendant had the opportunity to participate in the preparation of the pre-sentence investigation, but chose not to. The state notes that at the sentencing hearing on December 7, 2007, the defendant informed the court of her reasons for not participating, as well as, other mitigating factors, including, but not limited to her: mental health issues; restitution to the victims; education background; and family matters involving her parents. The state argues that the court took these factors into account when imposing a sentence which was less than the maximum potential prison sentences the defendant faced for the charges for which she was convicted. The state claims the court had a presentence investigation report containing certain relevant information, and copies of that report were given to the state and the defense, which the court could rely on, along with the information presented by the defendant at sentencing. The defendant has failed to show that the court, in imposing the sentence, relied upon any materially inaccurate, unreliable or untrue information. State v. Parker, 295 Conn. 825, 843, 992 A.2d 1103 (2010).
In ordering the court to hold an evidentiary hearing on the defendant's motion to correct an illegal sentence the Appellate Court stated that " consistent with this court's decision in Charles F. (State v. Charles F., 133 Conn.App. 698, 705, 36 A.3d 731, cert. denied 304 Conn. 929, 42 A.3d 390 (2012)) that in order for the defendant to ultimately prevail on her claims, she will need to prove the (trial) court's actual reliance on misinformation, which will require a showing that the court gave 'specific consideration' or weight to the unreliable or inaccurate information she complains of in imposing her sentence." State v. Bozelko, supra, 154 Conn.App. 766, citing State v. Charles F., supra, 133 Conn.App. 705.
The court will initially proceed by once again summarizing the factual proceedings which occurred prior to the sentencing of the defendant, as well as, the proceedings at the defendant's sentencing held before Judge Cronan on December 7, 2007. These findings are set forth in the court's original memorandum of decision in State v. Bozelko, Superior Court, judicial district of Ansonia-Milford, Geographical Area 5 at Derby, Nos. CR050128445, CR050129108, CR050128811, CR050129107, (Jan. 17, 2013, Arnold, J.). The court will then summarize the proceedings at the evidentiary hearing held before the court on several days which commenced on July 13, 2015, and concluded on March 7, 2016. By proceeding in this manner, the court can then evaluate the evidence presented by the defendant to determine if she has established that the trial court (Cronan, J.) actually relied on misinformation and gave 'specific consideration' or weight to the unreliable or inaccurate information the defendant complains of when the court imposed the defendant's sentence on December 7, 2007. See State v. Bozelko, supra, 154 Conn.App. 766.
Documents originally submitted by the defendant during this court's initial hearings in hearing in this matter in 2012, reveal that the court (Cronan, J.), on October 9, 2007, ordered that a presentence investigation report be prepared by the Department of Adult Probation in anticipation of the defendant's sentencing which was scheduled for December 7, 2007. See State v. Bozelko, supra, Superior Court, judicial district of Ansonia-Milford, Geographical Area 5 at Derby, Nos. CR050128445, CR050129108, CR050128811, CR050129107. On November 14, 2007, the probation officer sent the defendant a letter directing the defendant to report to Probation Officer Lisa Gerald for an interview on November 19, 2007, in conjunction with the investigation. The letter requested that the defendant bring numerous documents to the interview. By letter dated November 15, 2007, the defendant responded and notified the probation officer that she was seeking new defense counsel and did not wish to be interviewed without counsel being present. She requested further instructions from the probation officer and informed the officer that she would notify the officer of her new counsel's name, once she hired new counsel. On November 15, 2007, Probation Officer Gerald replied by sending a letter to the defendant agreeing that the defendant should not be interviewed without legal counsel, given the serious nature of the matter. The probation officer acknowledged that the defendant was not refusing to be interviewed, and agreed to await the defendant's hiring of legal counsel. The probation officer instructed the defendant to report to court on her sentencing date, as directed by Judge Cronan.
During pre-trial proceedings the defendant had at various times been represented by two different counsel. For trial, the defendant then retained a new third legal counsel.
On November 21, 2007, the probation officer wrote to the defendant replying to the defendant's voice mail message of November 20, 2007, whereby the defendant informed the probation officer that the court (Cronan, J.) informed the defendant that he was aware that the defendant was refusing to cooperate with the preparation of the PSI. The probation officer informed the defendant that the court was aware that she did not want to be interviewed for the PSI until she had new legal counsel; that the probation officer respected the defendant's decision; and that the defendant was told to report to court on December 7, 2007.
The defendant had been in court on November 19, 2007, for a hearing on her trial attorney's motion to withdraw as counsel. On that date the court granted the motion to withdraw and warned the defendant that if she wished to hire new counsel, she had to be ready for sentencing on December 7, 2007, as the court would not entertain any requests for a continuance of the sentencing hearing.
The probation officer's letter of November 21, 2007, however, further advised the defendant that her decision not to be interviewed on November 19, 2007, left the probation department with insufficient time to complete the personal history section of the PSI before the court's sentencing date of December 7, 2007. The probation officer informed the defendant that the probation department was advised that the defendant's sentencing would go forward on December 7, 2007 with " whatever portions of the investigation that are complete." The defendant was invited to prepare a written " offender's version, " which would be included in the report, if it were received by November 28, 2007. The defendant was again advised to report to the court for her sentencing on December 7, 2007.
On November 21, 2007, the defendant responded to the probation officer by letter, again stating she was not refusing to participate in the preparation of the PSI and protesting the new deadlines for submitting materials for the report. The defendant stated that had she known these deadline dates, she would have appeared at the probation officer's scheduled interview on November 19, 2007, without counsel. The defendant then informed the probation officer that she planned on submitting a defendant's sentencing report, but had been unable, to date, to obtain her file from her trial attorney. She reiterated that she could not comply with the officer's request that the defendant submit written materials by November 28, 2007, as she did not have her file documents. She requested the probation officer schedule another appointment for the defendant, once the defendant had obtained new counsel and once the defendant had obtained possession of her legal file from her trial attorney.
A review of the December 7, 2007, sentencing transcript revealed that the court initially addressed the defendant's motions for a new trial and for acquittal, which were filed by the defendant's new counsel, Attorney D'Amato. These motions addressed the defendant's claims regarding self-representation at trial, ineffective assistance of trial counsel and other issues. The trial court denied the motion for a new trial. Attorney D'Amato then requested a continuance of the defendant's sentencing hearing, stating that the defendant had not had the opportunity to meet with the probation officer and complaining that Probation Officer Gerald was biased toward the defendant. Counsel requested that a new PSI be conducted by a probation office in another jurisdiction. Counsel also informed the court that the defendant had hired an individual to work at mitigating the defendant's sentence, and it would be detrimental to the defendant not to allow that individual to prepare a report.
At the defendant's sentencing hearing, Attorney D'Amato renewed the defendant's claims regarding the ineffective performance of her trial counsel, and the defendant's prior arguments that the defendant had wanted to discharge her trial counsel and wanted to represent herself at trial. During that argument defense counsel informed the trial court that the defendant had graduated from Princeton University and completed two years of law school, thus informing the court of the defendant's educational background. Defense counsel then requested the court to grant a continuance for the sentencing. The trial court noted that it was in possession of a presentence investigation report, and the defendant and the state both had copies of the report. The court indicated it was not going to hear argument as to why the defendant's interview was or was not done on time, providing an indication that this was not a primary concern or consideration of the court in imposing a sentence. The court then proceeded to hear arguments regarding the proper sentence from the state and the defendant.
The defendant's arguments regarding the trial court's denial of her motion for self-representation were addressed in her appeal. See State v. Bozelko, 119 Conn.App. 483, 495-503, 987 A.2d 1102 (2010).
In the course of the state's sentencing presentation, the state summarized the charges that the defendant had been convicted of and the maximum allowable penalties for those charges. While the defendant faced a maximum incarceration in excess of one hundred years, the state requested a total effective sentence of ten years incarceration, execution suspended after the defendant served five years, followed by five years probation supervision. Defense counsel then informed the court she was not ready for sentencing, as she didn't know enough about the defendant to advocate for her. Counsel did admit that she had read the transcripts of the defendant's court proceedings. She then related facts regarding the defendant's family background; her troubled relationship with her parents and involuntary hospitalization of the defendant by her parents. Counsel informed the court that the defendant had been diagnosed with schizophrenia, bipolar disorder and personality disorder; had been forced to take anti-psychotic medications; and had been subjected to electroshock therapy " many times." Counsel informed the court that full restitution for her crimes had been accomplished, and that the defendant provided care for her father. Counsel also informed the court that she advised the defendant that counsel " never imagined that we [defendant] would be sentenced today . . . have a sentencing today." Counsel then argued that the defendant did not deserve a sentence that would involve incarceration, and that the defendant may have had a defense at trial, relating to the defendant's alleged mental disorders. Counsel then reiterated that the defendant had been a law student at Fordham University and was a graduate of Princeton University. The court than inquired if the defendant wished to make a statement. The defendant declined. In doing so, the defendant did not address the contents of the pre-sentence report; did not any claimed inaccuracies or misrepresentations; and did not present the court with further information in mitigation. See State v. Parker, supra, 295 Conn. 832.
The trial court commenced its sentencing comments by noting the defendant had been found competent to stand trial after being examined pursuant to General Statutes § 54-56d, prior to the start of her trial. The court noted that the defendant was an intelligent person of privilege compared to many defendants who have been sentenced by the court. The court noted that the defendant had been found guilty beyond a reasonable doubt by six jurors after trial. The court noted that it was aware of the defendant's lack of a previous criminal record, and that the offenses for which the defendant was convicted, were not crimes of violence. Nonetheless, the court stated that the crimes regarding identity theft and credit card fraud were crimes the court could not take lightly. The court stated that in determining what penalties to impose on the defendant, he worked to structure a sentence that was fair to the victims, the defendant and to society. The trial court (Cronan, J.) then imposed the sentences which were noted earlier, herein. A discussion then ensued regarding the appeal bonds and time credits the defendant may be entitled to for incarceration in a correctional center and at the Connecticut Valley Hospital, Whiting Forensic Division, where the competency exam was conducted. Subsequently, the defendant unsuccessfully pursued an appeal from her judgment of conviction and other post-conviction relief.
Sec. 54-56d(a), (b) and (c) read as follows:
See State v. Bozelko, 119 Conn.App. 483, 987 A.2d 1102 (appeal); cert. denied, 295 Conn. 916, 990 A.2d 867 (2010) (Appeal); see also multiple pending habeas corpus actions filed under the caption of Bozelko v. Warden, State Prison at the Superior Court, judicial district of Tolland at Rockville, bearing docket numbers, TSR-CV10-4003747-S, TSR-CV10-4003782-S, TSR-CV10-4003804-S, TSR-CV09-4003196-S, TSR-CV10-4003564-S, TSR-CV14-4005748-S and TSR-CV14-4005899-S, .
" [W]here a judge explicitly relies on certain information in assessing a sentence, the defendant must be given some opportunity to rebut that information." (Citations omitted.) State v. Parker, supra, 295 Conn. at 842-43. " [D]ue process precludes a sentencing court from relying on materially untrue or unreliable information in imposing a sentence." Id. To prevail on a claim that the pre-sentence investigation report contained inaccuracies or misleading and false information, the defendant cannot merely allege that the report contained inaccuracies or inappropriate information. She must show that the information was materially inaccurate and that the judge relied on that information. (Citations omitted.) Id., at 843-44.
In Connecticut, these rights are protected by General Statutes § 54-91b by Practice Book § 43-10(1). Id. at 844-45; State v. Arthur H., 288 Conn. 582, 607, 953 A.2d 630 (2008). " The rules of practice also set forth the obligations of defense attorneys relating to the development and use of the pre-sentence report to protect the defendant's interests." Id.; see also, Practice Book § § 43-5, 43-13 and 43-14. " Our case law establishes, however, that a failure to comply with procedures set forth under the rules of practice or the statutes relating to pre-sentence reports does not necessarily, in and of itself, establish a violation of due process." Id., at 846. " [All but two of these provisions impose obligations on the defendant's attorney. Id., at 846-47. The two other authorities are General Statutes § 54-91b and Practice Book § 43-10(1). General Statutes § 54-91b provides in relevant part that " the court shall provide the defendant or his attorney with a copy of the pre-sentence investigation report at least twenty-four hours prior to the date set for sentencing and . . . shall hear motions addressed to the accuracy of any part of such . . . report." Practice Book § 43-10(1) provides in relevant part that " [the judicial authority shall afford the parties an opportunity to be heard . . . and to explain or controvert the presentence investigation report . . ." See. Id.
Sec. 54-91b. (Formerly Sec. 54-109a.) Defendant may request copy of prior record and pre-sentence investigation report.
The defendant does not claim that the court failed to provide Attorney D'Amato with a copy of the pre-sentence investigation report, and neither the General Statutes nor the rules of practice requires the sentencing court to inquire as to whether the defendant's attorney has reviewed the pre-sentence report with her. See Id. While the defendant's attorney or the defendant may not have received a copy of the report twenty-four hours or forty-eight hours prior to the date of the sentencing the defendant has not shown that this procedural delay caused her prejudice. Our case law establishes, that the failure to comply with procedures set forth under the rules of practice or the statutes relating to pre-sentence reports does not necessarily, in and of itself, establish a violation of due process. See State v. Patterson, 236 Conn. 561, 568, 674 A.2d 416 (1996).
This court in its original found that other than arguing that the court did not follow the proper procedural rules, the defendant had not demonstrated how the court's error caused her prejudice with regard to the sentence imposed. State v. Olson, 115 Conn.App. 806, 815, 973 A.2d 1284 (2009); see also, State v. Williams, 205 Conn. 456, 476-78, 534 A.2d 230 (1987) (applying harmless error analysis to claim that court improperly failed to delay sentencing in accordance with Practice Book § 43-7 after discovery that defense counsel failed to receive report in timely manner). The only purpose of a report " is to enable the court, within the limits fixed by statute, to impose an appropriate penalty, fitting the offender as well as the crime." Steadwell v. Warden, 186 Conn. 153, 159, 439 A.2d 1078 (1982).
This court originally found that the defendant never claimed that the trial court refused to consider her claims of any disputed facts in the pre-sentence report. It appears from the review of the record that the defendant's claims of inaccuracies are related solely to whether or not she refused to co-operate in the preparation of the pre-sentence investigation report. While her counsel addressed this issue, the defendant, despite being given the opportunity to do so at her sentencing, declined to comment or make a statement to the court. Additionally, there is no evidence that the court considered this issue when structuring or imposing the defendant's sentence.
This court previously found that the defendant also never has claimed that the sentencing court failed to afford her or her counsel an opportunity to address the court. The record reflects that, after referencing the pre-sentence report during the hearing, the sentencing court permitted the defendant's counsel to speak and offered the defendant, herself, the opportunity to speak. Id., at 847. Neither defense counsel, the defendant or anyone else alerted the trial court to any alleged inaccurate information in the report other than the alleged " misrepresentation" that the defendant refused to cooperate, which has already been discussed herein.
Our statutes and rules of practice in Connecticut do not require disclosure of a copy of the pre-sentence investigation report to both the defendant and her counsel in order to bring any purported inaccuracies to the court's attention. Id., at 848; see also, State v. Gibbs, 254 Conn. 578, 610, 758 A.2d 327 (2000) (" a defendant either may exercise his right to be represented by counsel or his right to represent himself . . . but he has no constitutional right to do both at the same time."
Additionally, " neither our rules of practice nor our statutes require a sentencing court to make an affirmative inquiry about the accuracy of the information in the pre-sentence report. Indeed, the rules of practice do not obligate the sentencing court to correct all inaccurate information of which it is made aware. Rather, consistent with the constitutional concerns previously discussed, those rules direct the trial court to make corrections to the pre-sentence report only when an inaccuracy affecting 'significant information' is brought to its attention." Id., at 849; Practice Book § 43-10(1).
Additionally, the trial court's refusal to grant a continuance of the sentencing does not afford relief to the defendant. " The determination of whether to grant a request for a continuance is within the discretion of the trial court . . ." State v. Gauthier, 140 Conn.App. 69, 74, 57 A.3d 849 (2013). Given the age and complexity of the case; the defendant's multiple changes of counsel; and the probation officer's and court's notices to the defendant that sentencing would proceed on December 7, 2007, the defendant could not have been surprised and was not prejudiced by the denial of a continuance. The defendant did not demonstrate an abuse of discretion. State v. Berube, 256 Conn. 742, 775 A.2d 966 (2001).
Having made these foregoing findings in this court's initial memorandum of decision, the court reviews the evidence presented by the defendant at the evidentiary hearing conducted at the direction of the Appellate Court in State v. Bozelko, supra, 154 Conn.App. 765 to determine if the trial court (Cronan, J.) relied on inaccurate or misleading information when sentencing the defendant.
The court heard testimony form Chief Probation Office Lisa Gerald on July 13, 2015. In 2007, Gerald was a probation officer and was assigned to conduct the defendant's pre-sentence investigation. Gerald confirmed that the defendant was not refusing to cooperate in completing the PSI process, but was seeking a delay until the defendant could secure the services of a new attorney. Gerald confirmed the existence of written correspondence in November 2007 exchanged between she and the defendant. This testimony was consistent with the court's discussion of these documents mentioned earlier herein. Gerald testified she did not believe the defendant was engaging in delaying tactics, but Gerald stated as a probation officer she had no authority to unilaterally order a continuance of the defendant's sentencing date. Therefore, she continued to write a partial PSI, using only information that was available to her from sources other than the defendant. Gerald stated that she " may have" spoken directly to Judge Cronan about the matter, but could not affirmatively recall whether she had or had not. Once the partial PSI was completed on December 6, 2007, Gerald could not recall if she faxed a copy to Attorney D'Amato the day before the December 7, 2007 scheduled sentencing. However, an examination of the PSI (Exhibit B) indicates that the report copy was faxed to Atty. D'Amato on December 6, 2007 at 12:07 p.m. Gerald stated that she submitted all the information she had to the court, as contained in the PSI report. The court never requested further information; nor did she receive any further instructions from the court.
Attorney D'Amato testified pursuant to a subpoena issued by the defendant. She testified that the defendant retained her services for the purposes of the sentencing hearing. She stated that she filed a motion for continuance of the sentencing hearing as she was not prepared to go forward. D'Amato testified she did not get a copy of the PSI before the sentencing, despite the proof that it was faxed to her office the day before. See Ex. B. Nonetheless, D'Amato stated that she was, in fact, prepared for the defendant's sentencing on December 7, 2007, although she had not planned on going forward. She also stated she had no plan to present mitigation witnesses or mitigating circumstances. She knew of the defendant's intent to hire Clinton Roberts a mitigation specialist because she, herself, had spoken to Roberts. However, D'Amato stated at the hearing before this court, that she didn't think the defendant had actually hired Roberts.
The testimony appears to be that she filed the motion on or about November 7, 2007. However, the motion (Ex. C) is dated November 27, 2007. The court assigns little weight to any inconsistency as to this date as it is not dispositive of the issues in this matter. The exhibit speaks for itself.
Under cross examination, D'Amato again stated she was adequately prepared to represent the defendant at the sentencing hearing before Judge Cronan. She also stated that she believed Roberts had not been hired because the defendant's family lacked the financial resources. Despite testifying on direct examination that she did not receive a copy of the defendant's PSI report prior to sentencing, on cross examination Attorney D'Amato admitted that she could not recall if she had received a copy prior to the sentencing date.
After Attorney D'Amato's testimony was concluded, Katherine Bozelko, the defendant's mother testified that the family had met with Clinton Roberts in the " Fall of 2007" and paid him a retainer fee of $5, 000.00 to start preparing a mitigation sentencing report in behalf of the defendant. The court has Exhibit D, consisting of an affidavit from the Custodian of the Records of TD Bank, N.A. with a copy of a canceled check attached. The check is drawn on the account of Katherine Bozelko, payable to Clinton Roberts, in the amount of $5, 000.00. The check is dated November 24, 2007 and was processed by the Sovereign Bank on November 26, 2007.
On March 7, 2016, the court heard testimony from Clinton Roberts who was called as a witness by the state. Roberts stated that he testified in behalf of the defendant at a habeas corpus hearing subsequent to the defendant's sentencing by Judge Cronan on December 7, 2007. He clarified his testimony at the habeas corpus hearing regarding his initial retention by the defendant and her family in November 2007. He first met with the family on November 10, 2007, but his services were not retained. He again met with the family on November 24, 2007 and was given a payment check in the amount of $5, 000.00. However, his acceptance of the payment was contingent on the defendant being able to obtain a continuance of her sentencing date from the court, as Roberts testified that it would take six to eight weeks to complete a sentence mitigation report for the defendant and he advised the defendant of this. Roberts had no intention of appearing at court for the defendant's sentencing on December 7, 2007, and would do only minimal work on any report unless a continuance was granted. He did meet with the defendant her attorney at Attorney D'Amato's office on November 30, 2007 to obtain some brief background information regarding the defendant's case. When the defendant was denied a continuance of her sentencing and was sentenced on December 7, 2007, Roberts offered to remit the payment back to the family. He was then advised that the family wished to retain his services for post-sentencing proceedings commencing in 2008. Roberts confirmed that he did not advise the defendant to refuse to cooperate with the Adult Probation Department in the preparation of the defendant's PSI report.
On February 1, 2016, the state had submitted Exhibit 1, which was a transcript of the sworn testimony of Clinton Roberts, who testified in a prior habeas corpus hearing on behalf of petitioner Chandra Bozelko. Roberts stated on March 7, 2016 that he did recall testifying in the habeas corpus proceeding in behalf of the defendant. The court has reviewed the testimony of Roberts contained in this transcript and compared it to his testimony on March 7, 2016.
Roberts was unsure if the defendant's parents were present at this meeting.
Roberts further testified that once he completes a mitigation report, he testifies at the sentencing hearing only if defense counsel requests that he do so and if the court agrees to it. The information contained in a sentencing mitigation report prepared by Roberts is similar to that of a PSI report. His sentencing mitigation report would contain information regarding family and personal data, educational background, employment history and a summary of physical and mental health issues, substance abuse issues and family relation issues. It would also include a summary of good deeds, if any, of the defendant. When asked by the court how his report differs from a PSI report, Roberts replied that he tries " to get a bit deeper" into a person's background. Roberts presented several examples by what he defined as " a bit deeper into a person's background, " but as he had little information about the defendant, he could not testify regarding any issues about the this defendant.
Roberts formerly served as an adult probation officer for the State of Connecticut for 11 years.
On re-direct examination by the state, Roberts conceded that there was a comparison to be made regarding a PSI report and the type of sentencing mitigation report he would have submitted had a continuance of the defendant's sentencing been granted. Cross examination of Roberts by the defendant focused almost entirely on the subject of the date that Roberts was retained and received the $5, 000.00 payment. The only new information received through cross examination was that Roberts had no formal written fee agreement with the defendant or her family until January 8, 2008, and that agreement was related to his services for post-conviction and post-sentencing matters on behalf of the defendant. At no time did Roberts offer any testimony regarding specific information about the defendant, favorable or otherwise, that would have been presented at the sentencing before Judge Cronan, had a continuance of the sentencing been granted.
The court also reviewed the transcript copy of Roberts' testimony at a subsequent habeas corpus hearing to determine if Roberts testified as to any mitigating information he had discovered when representing the defendant. However, his testimony at that hearing was limited to the circumstances surrounding his receipt of payment from the defendant and her family prior to the defendant's sentencing and his inability to prepare a sentencing mitigation report for December 7, 2007. Roberts again confirmed that due to the length of time the preparation of a report would take, he would not commence preparing a report unless a continuance of the December 7, 2007 date was granted. See Exhibit 1.
The hearing was then continued to March 28, 2016, solely for the purposes of entering records from TD Bank into evidence as a full exhibit. (See. Ex. D) and to allow the parties to make any final statements or submissions. The evidentiary hearing mandated by the Appellate Court concluded on March 28, 2016.
In remanding this matter back to the trial court for a hearing on the merits of the defendant's motion to correct an illegal sentence, the Appellate Court noted that " in order for the defendant to ultimately prevail on her claims, she will need to prove the (trial) court's actual reliance on misinformation, which will require a showing that the court gave 'specific consideration' or weight to the unreliable or inaccurate information she complains of in imposing her sentence." State v. Bozelko, supra, 154 Conn.App. 766, citing, State v. Charles F., supra, 133 Conn.App. 705. The defendant has failed to sustain that burden. None of the evidence presented and received at the hearing held by this court supports the defendant's position that the sentencing court relied on unreliable or inaccurate information when imposing the defendant's sentence on December 7, 2007.
The defendant continues to claim that she did not refuse to meet with the probation office, Ms. Gerald, to participate in the completion of the defendant's PSI report. Ms. Gerald testified and confirmed that she did not consider the defendant's desire to delay meeting with Ms. Gerald until the defendant got new counsel, as a refusal to cooperate. In the PSI report itself, Gerald stated that she " clarified" with the court that the defendant was not refusing to cooperate. Gerald informed the defendant that with or without the defendant's cooperation, Gerald was under an obligation to the court to move forward to complete the report, using the information available, as Gerald had no authority to grant any continuance to delay the sentencing. At the sentencing hearing Judge Cronan specifically remarked that he was " not going to get into or entertain any arguments of why the [defendant's] interview was or was not done at the appropriate time." The defendant has provided no evidence that Judge Cronan relied on any misinformation or misrepresentations regarding the defendant's delay in meeting with probation officer Gerald in the preparation of the PSI report. There is also no indication that Judge Cronan imposed a more severe sentence on the defendant due to the defendant's desire to postpone her meeting with Gerald until the defendant obtained the services of new counsel.
See Page 9 of the PSI report.
A review of the sentencing transcript reveals that Attorney D'Amato informed the court she was not ready for the defendant's sentencing. Yet, D'Amato testified at the hearing before this court she was, in fact, prepared for the sentencing. At the sentencing hearing D'Amato represented that neither she or the defendant had received a copy of the PSI prior to the sentencing. However, the defendant's own exhibit B, a copy of the PSI report, reveals it was faxed to the defendant's counsel on December 6, 2007, a day prior to the sentencing, which occurred on December 7, 2007. Once the sentencing hearing commenced, Attorney D'Amato confirmed that she had reviewed the trial transcripts and spent thirty to forty hours interviewing the defendant and reviewing the defendant's trial. At the sentencing, the defendant's attorney presented evidence that the defendant: (1) assisted in caring for her ill father; (2) had no prior criminal record or arrests; (3) had previously been institutionalized and medicated for mental health issues; (4) made full restitution to the victims; (5) graduated from Princeton University; and (6) attended Fordham Law School. Defendant's counsel characterized her client as an " intelligent" individual. The defendant has not raised any issue that this information presented to the court was a misrepresentation or inaccurate in any way. Neither the defendant or her counsel brought to the court's attention any claim of any inaccuracies or false and misleading information in the PSI. In his remarks at sentencing Judge Cronan noted that the defendant had a competency exam and had been found competent to stand trial and assist her trial counsel. He acknowledged that the defendant was a bright young woman. He also took into consideration the defendant's lack of a criminal history and that the crimes for which the defendant was convicted were not crimes of violence. He had heard evidence of the defendant's good deeds regarding her role in caring for the defendant's ill father. However, he also noted that crimes involving identity theft and credit card fraud are serious offenses to society when he considered the appropriate sentences.
Regarding the court's denial of a continuance to allow Roberts to conduct a sentencing mitigation report, this court considers what such a report might contain. It has already been noted herein, that such a report if presented would contain subject matter similar to what would normally be contained in a PSI report prepared by the probation officer. While the information that might have supplied by Roberts may have been in more depth than that presented by the defendant's counsel at the sentencing hearing, the court nonetheless received evidence of the defendant's family and educational backgound. It also received information regarding physical, mental and medication issues relating to the defendant and the fact that the defendant had no prior criminal record. The court received information the defendant helped as a caretaker for her ill father. When asked at sentencing if the defendant wished to speak or provide additional information or even to correct any inaccurate or misleading information, the defendant declined the opportunity. The defendant did not present any evidence or materials to amend the PSI report.
The court has carefully reviewed the scope of remand order from the Appellate Court and has conducted the ordered hearing. The defendant has failed to sustain her burden of proof that the trial court, in imposing the sentences on December 7, 2007, actually relied on misinformation or gave specific consideration or weight to any unreliable or inaccurate information. See State v. Bozelko, supra, 154 Conn.App. 766, citing State v. Charles F., supra, 133 Conn.App. 705. Accordingly, the motion to correct an illegal sentence is denied.
(a) If the defendant is convicted of a crime other than a capital felony, the punishment for which may include imprisonment for more than one year, the judicial authority shall order a pre-sentence investigation, or the supplementation of any existing pre-sentence investigation report. The judicial authority may, in its discretion, order a pre-sentence investigation for a defendant convicted of any crime or offense. (b) A defendant who is convicted of a crime and is not eligible for sentence review pursuant to General Statutes § 51-195 may, with the consent of the sentencing judge and the prosecuting authority, waive the pre-sentence investigation. (c) Pursuant to General Statutes § 53a-39a, the judicial authority may, in its discretion, order an assessment for placement in an alternate incarceration program to be conducted by the office of adult probation.
(a) Whenever an investigation is required or an assessment is ordered or both, the probation officer shall promptly inquire into the attitude of the complainant or the victim, or of the immediate family where possible in cases of homicide, and the criminal record, social history and present condition of the defendant. Such investigation shall include an inquiry into the circumstances of the offense and any damages suffered by the victim, including medical expenses, loss of earnings and property loss. Such assessment shall include an inquiry into the defendant's prior participation in any release programs and the defendant's attitude about participation in an alternate incarceration program. When it is desirable in the opinion of the judicial authority or the investigating authority, such investigation or assessment shall include a physical and mental examination of the defendant. (b) If an assessment includes a recommendation for placement in an alternate incarceration program, it shall include, as an attachment, a proposed alternate incarceration plan. A current or updated presentence investigation report may be used in lieu of an alternate incarceration assessment report provided attached thereto is a statement by the investigating authority recommending whether or not the defendant should participate in an alternate incarceration program and any recommendation that the defendant participate includes a proposed alternate incarceration plan.
(1) To assist in answering inquiries of the probation officer; (2) To assist in resolving factual issues and questions; (3) To protect the defendant against incrimination regarding other pending indictments or investigations; and (4) To protect the defendant's rights with respect to an appeal of conviction.
(1) The judicial authority shall afford the parties an opportunity to be heard and, in its discretion, to present evidence on any matter relevant to the disposition, and to explain or controvert the presentence investigation report, the alternate incarceration assessment report or any other document relied upon by the judicial authority in imposing sentence. When the judicial authority finds that any significant information contained in the pre-sentence report or alternate incarceration assessment report is inaccurate, it shall order the office of adult probation to amend all copies of any such report in its possession and in the clerk's file, and to provide both parties with an amendment containing the corrected information. (2) The judicial authority shall allow the victim and any other person directly harmed by the commission of the crime a reasonable opportunity to make, orally or in writing, a statement with regard to the sentence to be imposed. (3) The judicial authority shall allow the defendant a reasonable opportunity to make a personal statement in his or her own behalf and to present any information in mitigation of the sentence. (4) In cases where guilt was determined by a plea, the judicial authority shall, pursuant to Section 39-7, be informed by the parties whether there is a plea agreement, and if so, the substance thereof. (5) The judicial authority shall impose the sentence in the presence and hearing of the defendant, unless the defendant shall have waived his or her right to be present. (6) In cases where sentence review is available, the judicial authority shall state on the record, in the presence of the defendant, the reasons for the sentence imposed. (7) In cases where sentence review is available and where the defendant files an application for such review, the clerk shall promptly notify the court reporter of such application pursuant to Section 43-24 and the court reporter shall file a copy of the transcript of the sentencing hearing with the review division within sixty days from the date the application for review is filed with the clerk. Sec. 43-11.--Role at Sentencing of Prosecuting Authority The prosecuting authority shall inform the judicial authority of the offenses for which the defendant is to be sentenced, shall give a brief summation of the facts relevant to each offense, shall disclose to the judicial authority any information in the files of the prosecuting authority that is favorable to the defendant and relevant to sentencing and shall state the basis for any recommendation which it chooses to make as to the appropriate sentence.
Defense counsel shall familiarize himself or herself with the contents of the pre-sentence or alternate incarceration assessment report or both, including any evaluative summary, and any special medical or psychiatric reports pertaining to the client.
Defense counsel shall bring to the attention of the judicial authority any inaccuracy in the pre-sentence or alternate incarceration assessment report of which he or she is aware or which the defendant claims to exist.
(a) Competency requirement. Definition. A defendant shall not be tried, convicted or sentenced while the defendant is not competent. For the purposes of this section, a defendant is not competent if the defendant is unable to understand the proceedings against him or her or to assist in his or her own defense. (b) Presumption of competency. A defendant is presumed to be competent. The burden of proving that the defendant is not competent by a preponderance of the evidence and the burden of going forward with the evidence are on the party raising the issue. The burden of going forward with the evidence shall be on the state if the court raises the issue. The court may call its own witnesses and conduct its own inquiry. (c) Request for examination. If, at any time during a criminal proceeding, it appears that the defendant is not competent, counsel for the defendant or for the state, or the court, on its own motion, may request an examination to determine the defendant's competency.
In any case, without a showing of good cause, upon the request of the defendant or his attorney, prior to sentencing, the court shall provide the defendant or his attorney with a copy of his record of prior convictions and in any case wherein a pre-sentence investigation is ordered, without a showing of good cause, the court shall provide the defendant or his attorney with a copy of the pre-sentence investigation report at least twenty-four hours prior to the date set for sentencing and in both such cases shall hear motions addressed to the accuracy of any part of such record or report.