Opinion
No. CR98-178336
October 28, 2008
MEMORANDUM OF DECISION
The petitioner in this matter, Randy Kirsch, was convicted by a jury of reckless manslaughter, manslaughter in the second degree with a motor vehicle and operating under the influence of liquor or drugs and was sentenced to a total effective sentence of 15 years execution suspended after 10 years, followed by five years of probation. The petitioner was also ordered to pay a $21,000 fine.
See General Statutes Section 53a-55(a)(3). This offense is punishable by a maximum of twenty years in prison and a $15,000 fine.
See General Statutes Section 53a-56b(a). This offense is punishable by a maximum of ten years in prison and a $10,000 fine.
See General Statutes Section (Rev. to 1997) 14-227a(a). This offense is punishable by a maximum of six months in jail (including 48 hours not to be suspended or reduced) and a fine of not less than $500 or more than $1,000.
The petitioner appealed his conviction. The trial court's decision, however, was affirmed. See State v. Kirsch, 263 Conn. 390 (2003). A detailed rendition of the facts underlying the petitioner's criminal conduct can be found in the aforementioned appellate decision. For purposes of the petitioner's sentence review application, however, it is sufficient to state the facts as follows. Sometime in 1997, the petitioner, who is an attorney, was diagnosed with Neurofibromatosis Type 2 (NF2), a rare genetic disorder which results in cranial tumors. In June of 1998, his law firm was disbanded and on the evening of July 28, 1998, he attended a farewell party in West Hartford at the home of one of his law partners. Early that morning, the petitioner drove to Boston to receive radiation treatment for his illness and then drove to Bridgeport for a real estate closing. After the real estate closing the petitioner returned to his home in Glastonbury and then before attending the party, took various prescription medications and over the counter drugs because he had a headache.
This illness can result in deafness, blindness and is potentially fatal.
While at the party, the petitioner consumed between nine and twelve ounces of scotch and appeared visibly intoxicated to other people in attendance. At about 9:15 p.m., the petitioner left the party and drove through the local streets, making a number of turns until he eventually found his way to Interstate 84 (I-84). He then erroneously began driving east at a high rate of speed on the westbound side of the highway. After driving the wrong way for close to four miles, he exited I-84 and began traveling south on the northbound side of Route 9. While traveling the wrong way, the petitioner narrowly avoided colliding with several other vehicles and managed to maneuver his car onto the northbound entrance ramp for Route 71. He was driving south on that entrance ramp and thus, traveling the wrong way.
At that point, Lawrence Pisani (Pisani) was driving his automobile onto the northbound entrance ramp for Route 71. His then minor daughter, Ashley Pisani, and his wife, Lisa Pisani (the victim), were passengers in the car. While merging onto the entrance ramp, Pisani turned his head to the left to check on other traffic when he heard the victim scream. He then looked back to the right and saw the petitioner's headlights coming directly at his vehicle. Pisani braked and steered left, but the petitioner's vehicle failed to brake and collided with the right front end of Pisani's car. Neither Pisani nor his daughter was injured as a result of the collision. The victim, however, was seriously injured and later died after being taken to the hospital for treatment. The petitioner was also injured and after being extricated from his vehicle, was transported to the hospital.
When the petitioner was treated at the hospital, the medical personnel took a sample of his blood which was tested for the presence of alcohol. The result was that the petitioner's blood alcohol content was 0.210, over twice the legal limit under the statute prohibiting driving under the influence.
See General Statutes Section (Rev. to 1997) 14-227a(a)(2) which prohibits operating a motor vehicle on a public highway "while the ratio of alcohol in the blood [of the operator] is ten-hundredths of one per cent or more of alcohol by weight."
At his trial, the petitioner denied that he was under the influence of alcohol at the time of the crash. He offered expert testimony to support his claim that he had lost consciousness as a result of a seizure caused by his NF2 disease. He also offered expert testimony to support his claim that the medications he took on the day of the incident distorted the accuracy of his blood alcohol content.
The jury rejected the petitioner's seizure defense and credited the state's evidence that the petitioner recklessly caused Lisa Pisani's death when he drove while under the influence of liquor or drugs.
The petitioner asks the Division to reduce the non-suspended portion of his sentence from ten years to five years of incarceration. He asserts that his sentence is inappropriate or disproportionate pursuant to the standards outlined in Practice Book Section 43-28. In his memorandum in aid of sentence review, he offers three reasons why he deserves a sentence reduction. First, he argues that others convicted of "similar" crimes have received, on average, lighter sentence than he did. Second, the petitioner asserts that his sentence is disproportionate in light of his NF2 disease. He says the trial court refused to factor his health problems into its sentencing calculus and that the Department of Corrections (DOC) is unable and unwilling to address his serious health issues by providing him with appropriate and necessary medical care. Finally, the petitioner claims that he deserves a modification because he is a person of good character and accepts responsibility for his crime.
Section 43-28 indicates that the Division shall "determine whether the sentence should be modified because it is inappropriate or disproportionate in light of the nature of the offense, the character of the offender, the protection of the public interest, the deterrent, rehabilitative, isolative, and denunciatory purposes for which the sentence was intended."
In his memorandum, the petitioner refers to Department of Corrections' records regarding the "average" sentence imposed on twenty-five criminal defendants after 2000 who have been convicted of various types of vehicular homicides and/or cases involving alcohol-related motor vehicle accident offenses. He fails, however, to include information regarding the factual basis in each case; the criminal/motor vehicle record of the each defendant; the nature and credibility of any aggravating or mitigating factors; the character and veracity of the perpetrator; the attitude, background and effect of the offense on any victims; whether the defendant accepted full responsibility for his criminal conduct and showed remorse; and other relevant information.
The record belies this claim. The August 11, 2000 sentencing transcript clearly reflects that the trial judge was aware of the petitioner's illness and took it into account in arriving at its sentence.
This claim is inconsistent with the petitioner's own memorandum, which indicates that after bringing a lawsuit against the DOC, he reached a settlement with it to ensure that his NF2 needs are being addressed. Assuming, however, without deciding, that the DOC is being deliberately indifferent to the petitioner's serious medical condition, his remedy is to seek a conditions of confinement/medical writ of habeas corpus, See Hunnicutt v. Commissioner of Corrections, 67 Conn.App. 65 (2001), not a reduced sentence.
The state urges the Division to reject the petitioner's arguments. It claims that the petitioner has consistently failed to accept responsibility for his criminal conduct and failed to show remorse. It also argues that leaving the petitioner's sentence in place will deter him as well as others who behave similarly. The victim's husband and daughter, who both addressed the Division at the sentence review hearing, join the state in asking that the sentence remain unchanged. They remind the Division that the petitioner's conduct has emotionally devastated their family and has forever deprived them of their loved one.
The Division has carefully considered all the information before it, including but not limited to the sentencing transcript, the pre-sentence investigation report, the petitioner's sentence review memorandum, the arguments of the parties and the comments of the victim's family members. After considering this information, the Division has determined that the petitioner does not merit a reduced sentence.
The petitioner's initial argument for a reduced sentence makes reference to others who have been convicted of "similar" crimes and what the "average" sentence was for those defendants. The limited information that he references, however, sheds little or no light on why the petitioner is entitled to a sentence modification. For example, it does not inform the Division about the facts in the other cases, the criminal and/or motor vehicle record of each defendant, whether and to what extent each defendant accepted responsibility for his conduct, the impact of each case on the victim(s) and society or other relevant factors.
The Division further notes that the petitioner's second argument for a sentence reduction, i.e., his NF2 disease, is unpersuasive because the trial court was fully aware of his health issues and appropriately considered them in arriving at its sentence. The trial court heard all the medical evidence submitted at trial, heard arguments regarding the petitioner's medical condition and commented on the petitioner's health issues at the time of sentencing. Even though the petitioner believes that the trial court refused to give his health concerns the gravity they deserved, the Division cannot say that the trial court failed to give them appropriate weight in deciding upon a proper sentence.
At the sentence review hearing and in the voluminous materials which he submitted with his memorandum, the petitioner reiterated the nature of his NF2 disease and documented how his illness has worsened. He also addressed the need for monitoring his disease and the type of treatment he needs to safeguard his health. The Division, however, may only consider matters which were before the sentencing court at the time of sentencing. See State v. Monaco, 27 Conn.Sup. 219 (1967); Practice Book Section 43-26. Therefore, the Division is unable to consider the petitioner's comments and materials to the extent that they reflect facts, circumstances and events that have arisen subsequent to his sentencing.
Section 43-26 states that "[t]he defendant, at the time the application for review is filed, may request the clerk to forward to the review division any documents in the possession of the clerk previously presented to the judicial authority at the time of the imposition of the sentence."
Finally, the record clearly reflects that the trial court considered the petitioner's character, professional background, family circumstances and other factors in the process of imposing an appropriate sentence. The Division notes that in this regard, the trial court specifically determined that the petitioner failed to accept responsibility for his criminal conduct and failed to exhibit any remorse. According to the trial court, the petitioner was in denial regarding the role that alcohol played his crime, failed to show empathy for the suffering caused the victim's family and posed a danger to society.
The sentence imposed by the trial court is neither inappropriate or disproportionate under the guidelines contained in Section 43-28.
The sentence is AFFIRMED.
White, J., Iannotti, J. and Alexander, J. participated in this decision.