Opinion
No. CR93-151905
October 28, 2003
MEMORANDUM OF DECISION
Santos Miranda, petitioner, was convicted by the trial court of 2 counts of Assault in the First Degree, a violation of General Statutes Sec. 53a-59; each provides a twenty-year maximum penalty and Injury or Risk of Injury to a Minor, a violation of General Statute Sec. 53-21, which provides for a 10-year maximum period of incarceration. The trial court imposed a sentence of 10 years on each conviction to be served consecutively one to the other for a net effective sentence of 30 years incarceration. It is this sentence petitioner seeks to have reviewed.
For the appellate history of this matter, please refer to State v. Miranda, 41 Conn. App. 333 (1996), 245 Conn. 209 (1998), 252 Conn. 935 (2000), 252 Conn. 936 (2000) and 260 Conn. 93 (2002).
The record reflects the following factual basis for the convictions. The petitioner co-habitated with a woman, age 16, (D.R.), and her two children, the youngest being a 4-month-old female infant, the victim herein. The infant suffered from multiple rib fractures, two skull fractures, a brachial plexus injury to her left arm, a rectal tear and bilateral subconjunctival nasal hemorrhages. The injuries were inflicted over a 2- to 3-week period. As a result of the nature of these injuries there was testimony that the infant would have screamed inconsolably. The trial court found that, under the circumstances of the household, the petitioner had a legal duty to protect the health and well-being of the infant in light of the fact that petitioner had established a familial relationship with the child's mother and her two children. The court found that petitioner violated his duty by his failure to intercede, seek medical attention for the child or remove the child from harm's way and was liable.
Injuries specified in 260 Conn. 93, 97 (2002).
At the hearing before the Division counsel for petitioner emphasized that petitioner has already served 10 1/2 years of his sentence and noted that this is the first time in Connecticut that anyone was found criminally liable for assault for failure to act.
Petitioner provided the Division with a Supplemental Memorandum dated July 8, 2003 which the Division did review.
The crux of counsel's argument was the sentencing disparity between petitioner (30 years) and the infant's mother. The petitioner claimed that under the state's theory, if petitioner was convicted not for actually inflicting the injuries but for his failure to intercede or render assistant then the only other suspect for actually inflicting the injuries is the child's mother, D.R. D.R. plead nolo contendere and received a sentence of 12 years suspended after 7 years and a period of probation.
Counsel claims the disparity in sentencing is unwarranted and that petitioner has a "lesser factual and moral responsibility" than D.R. and received a harsher sentence. Counsel for petitioner claims it is "unjust to have this great a sentencing disparity."
Counsel for petitioner stressed the rehabilitative aspect of sentencing and claimed that in his 10 1/2 years of incarceration the petitioner has made substantial rehabilitative strides.
The petitioner addressed the Division and related that he had "turned my life around, matured . . . learned many skills . . . educated to help my family . . ."
The state countered that the state found itself in a dilemma; there were two care givers, neither implicated themselves or others:
The state was in position whereby it was apparent that one or both of these individuals had done it, but the evidence at trial suggested that it may not have been possible to ever know exactly who had done what and when, but it was apparent that whoever was responsible for them, the person who was not had to know what was going on and vice-versa . . .
Transcript, re-sentencing January 17, 2003, page 15.
The trial court had the benefit of considering all the evidence presented during the trial and fashioning an appropriate sentence. Relevant to the fact that D.R. entered a plea of nolo contendere and received a sentence the trial court noted, "In considering the re-sentencing, the sentence of D.R. does not impact on this court's re-sentencing of the defendant."
Id., p. 19.
Generally, co-defendants are not in the same position when one defendant elects a trial and the other accepts a plea agreement. The defendant who chooses a trial must in no way be penalized for that election. However, it is a reality that oftentimes an election to trial brings to the attention of the sentencing court certain facts of an egregious nature, facts which may not be brought to the attention of the sentencing court of the defendant who accepts the plea bargain and avoids the ardors of trial and the concomitant elicitation of a certain quantum of proof.
It cannot be denied that the sentence imposed on D.R. is substantially less than that imposed on the petitioner. Although the courts strive for a degree of uniformity, such exactitude cannot reasonably be achieved in every case. The defendant elected a trial. The evidence produced is best considered by the trial court. The petitioner was convicted of multiple counts, the co-defendant less counts. The sentencing court was mindful of the sentence imposed on D.R. and, impliedly, the problems of proof presented in the case.
Pursuant to Connecticut Practice Book § 43-28 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 a sentence except in accordance with the provisions of Connecticut Practice Book § 43-23 et seq., and Connecticut General Statute §§ 51-194 et seq.
At the original sentencing the trial court stated, "It is obvious and without any dispute that this infant was brutalized and she suffered mercilessly. I have found you criminally responsible for these brutal injuries and the child's suffering and her risk of death. Based upon your conduct that I have found, you must be imprisoned for a lengthy period of time both as a punishment to you and as a protection to court civilized society."
Transcript, sentencing, December 2, 1994, page 21.
In reviewing the records as a whole, the Division finds that the sentencing court's actions were in accordance with the parameters of Connecticut Practice Book §§ 43-23 et seq.
The sentence is AFFIRMED.
Miano, J.
Holden, J.
O'Keefe, J.
Miano, J., Holden, J., and O'Keefe, J. participated in this decision.