Opinion
UWYCR08234198
06-26-2018
STATE of Connecticut v. Anthony ORR #319019
UNPUBLISHED OPINION
File Date: September 13, 2018
Joan K. Alexander, J., Brian T. Fischer, J., and Omar A. Williams, J.
OPINION
Omar A. Williams, J.
DATE OF APPLICATION (NOT DATED)
It was noted for the review division that this application arrived late because the Department of Correction had not forwarded the application.
Petitioner Anthony Orr seeks review of his five-year jail sentence imposed on June 16, 2017 upon being found in violation of probation (pursuant to § 53a-32 of the General Statutes). The sentence of five years to serve constituted the entirety of the petitioner’s exposure to incarceration after previously having been convicted of the underlying offense of Robbery in the First Degree by way of a Firearm Threat in violation of § 53a-134(a)(4), and having received the underlying sentence (that placed him on probation) of twelve years in jail, suspended after the service of seven years, followed by five years of probation. Again, it is the five-year jail sentence imposed after the petitioner was found in violation of his probation that the petitioner now challenges.
After a contested hearing on the violation of probation, the sentencing court found by a preponderance of the evidence that the petitioner violated his robbery probation in a number of ways, including by failing to report to his probation officer as scheduled (on at least eight occasions), by rendering urines that tested positive for an illegal substance, and by committing new criminal conduct. The new crime included conspiracy to sell narcotics surrounding allegations that, among other things, the petitioner constructively possessed one thousand, nine hundred sixty bags of heroin during his ongoing and repeated activity related to the sale of drugs. Transcript from (6/16/17) Violation of Probation Hearing and Sentencing (hereinafter Tr.) at 133-40. Accordingly, the sentencing court (Kevin J. Murphy, J.) imposed the aforementioned five-year jail sentence.
During his sentence review hearing, the petitioner noted that the criminal charges (relating to his alleged criminal conduct while on probation) eventually were dismissed. The review division’s discretion is limited in scope to modifying sentences that are "inappropriate or disproportionate." Practice Book § 43-28. The review division makes no such finding in the present case. Further, the review division notes that a probationer can be found in violation of probation based on new criminal conduct even when a jury acquits the probationer as to that new criminal conduct alleged by the state; this is because the burden of proof as to the violation of probation (proof by a preponderance of the evidence) is less than the burden of proof at trial (proof beyond a reasonable doubt) as to the new crime(s); State v. Durant, 281 Conn. 548 (2007); and also because "the court, in its capacity as the trier of fact for the purpose of the violation of probation hearing, [is] not bound by the factual findings of the jury in the criminal case." State v. Durant, 94 Conn.App. 219, 227 (2006) (citation omitted), aff’d by Durant, 281 Conn. 548 (2007). Therefore it is of no moment whether the petitioner’s charges related to his criminal conduct allegedly committed in violation of his probation were dismissed because such prosecution subsequently was abandoned by the state, whether such dismissal followed an acquittal by jury after trial, or whether the dismissal entered via other means. It is sufficient to reiterate that the review division’s discretion has not been triggered by the sentence imposed by the court upon finding the petitioner in violation of probation.
After careful consideration, pursuant to § 51-196 of the General Statutes, and for all of the foregoing reasons, the sentence is AFFIRMED.