Opinion
No. CR03-113252
September 25, 2007
MEMORANDUM OF DECISION
Stephen A. Sebjan III, petitioner, during jury selection entered pleas of nolo contendere to the following offenses in which the court made findings of guilty: Unlawful Restraint in the First Degree, a violation of CGS Section 53a-95 and Assault in the Second Degree, a violation of CGS Section 53a-60(a)(1) which violations provide for a maximum penalty of five years incarceration for each offense. The petitioner was also convicted of Attempt to Possess Narcotics a violation of CGS Sections 21a-279(a) and 53a-49(a)(2) which provides for a maximum penalty of seven years incarceration. The petitioner pled guilty to a Part B Information which effect was to enhance the sentence for the unlawful restraint and assault second charge to that of a C felony: a 10-year maximum sentence to each.
There existed no agreement relevant to sentencing. The petitioner was exposed to a maximum of 27 years incarceration. On May 10, 2005, the court imposed a sentence of 10 years incarceration on the unlawful restraint charge and the assault in the second degree charge each concurrent one to the other and seven years on the narcotics charge concurrent for a net effective sentence of 10 years incarceration.
Subsequently, in a Memorandum of Decision dated March 6, 2007, the court concluded that relevant to the sentencing enhancement the statutory citations were not accurate and the sentences imposed on May 10, 2005 were vacated.
The court elected not to proceed with the enhancement provisions and re-sentenced the petitioner to the charge of Unlawful Restraint in the First Decree and Assault in the Second Degree to five-year sentences on each consecutive to each other and sentenced petitioner to seven years on the narcotics charge concurrent for a net effective sentence of 10 years incarceration. It is this sentence petitioner seeks to have reviewed.
The record reflects that on the day the criminal offenses occurred the petitioner encountered Ms. Ferry, the victim, apparently in his efforts to obtain drugs in order to get high. The petitioner did physically abuse Ms. Ferry, in that he choked her to the point of unconsciousness, did dislocate the victim's elbow and did search her vaginally apparently seeking drugs, along with other assaultive behavior.
See Pre-Sentence Investigation Report dated May 3, 2005 and Transcript dated May 10, 2005.
At the hearing before the Division the crux of counsel for the petitioner's argument concerned the court's re-sentencing of the petitioner whereby the court subsequently imposed consecutive sentences (five years and five years) where originally the court had imposed the enhanced sentences concurrently (10 years and 10 years).
Counsel for the petitioner claims because the sentence enhancement was originally inappropriately applied and vacated, it is inappropriate for the court to re-sentence the petitioner consecutively for the same offenses for which petitioner was previously sentenced concurrently. The counsel for the petitioner claims this is inappropriate and improper in light of the fact that the charges arise from the same transaction. Counsel claims the court is "re-punishing" the petitioner and is modifying the original sentence. It is noteworthy that the net effective sentence under each sentencing scheme is a sentence of 10 years incarceration. Counsel claims the court in re-sentencing the petitioner should have left the sentences in the original form and "only correct the enhancement portion." Apparently, without the enhancement the unlawful restraint in the first degree and the assault in the second degree would have each remained D felonies with a maximum period of incarceration of 5 years incarceration each and the court was bound, claims counsel for petitioner, to maintain the concurrent sentences in each for a net sentence of five years incarceration and seven years concurrent on the narcotic charge for a net effective sentence of seven years incarceration.
The petitioner filed a Brief in Support of Sentence Review dated May 22, 2007, in support of petitioner's claim for concurrent sentences. Petitioner's reliance on State v. Johnson, 192 Conn. 471 is misplaced.
Counsel for the state countered that the PSI reflects that petitioner has a history of drug use and a history of violent crime. Counsel claims that in the PSI the petitioner denied his involvement in the instant matter and attributed the restraint and assault of the victim to an individual named "George" who, counsel for the state claims, is "a fiction to distract attention from the (petitioner)." Counsel noted petitioner's poor performance on probation and that petitioner is the "person who gave himself the sentence." The state requested the division to enhance the petitioner's penalty to 15 years incarceration.
The trial court reviewed the entire record including the 10 letters of recommendation on behalf of petitioner as well as a favorable citation petitioner received. The court took note of the "fairly lengthy" criminal history including previous 11 convictions and now 14 and two prior felony convictions, now amounting to five felony convictions. "The court is going to sentence him based on charges that he plead guilty to, based on his prior record, and based on his history. The court doesn't see probation really as an option in this case based on his history and based on what happened here." (Transcript, May 10, 2005, p. 19).
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 serious nature of the crime, and the previous criminal history of the petitioner, the sentence imposed is neither inappropriate and nor disproportionate.
In reviewing the record as a whole, the Division finds that the sentencing court's actions were in accordance with Connecticut Practice Book § 43-23 et seq.
In the event that petitioner claims he is aggrieved by an illegal sentence he should seek redress pursuant to Connecticut Practice Book § 43-22.
SENTENCE: AFFIRMED