State of Connecticut v. Josue Rodriguez (2010)

SENTENCE AFFIRMED

The petitioner is Josue Rodriguez.   The trial court in this case, after a hearing, found him in violation of probation ¹ on files in which he was serving concurrent sentences ² and imposed a total effective sentence of 12 years of incarceration.

The factual basis for the violation of probation conviction is that the petitioner vandalized the victim's automobile and home as she watched him commit the crime.   The victim is the petitioner's ex-girlfriend and the mother of his children.   The evidence at the violation of violation of probation hearing established that the petitioner damaged the victim's property because he was jealous and angry when he learned that she had a new boyfriend.

The petitioner asks for a downward modification in his sentence, claiming that he is committed to moving on with his life and has no further desire to interact with the victim.   He further asserts that the victim was not truthful regarding the claim that he vandalized her property and that therefore, he is entitled to continue on probation.

The state urges the Division to leave the sentence undisturbed.   It points out that the petitioner takes no responsibility for his criminal actions and shows no remorse.   It also argues that the petitioner has been found in violation of probation on multiple occasions and is clearly not amenable to leaving the victim alone.

The Division only has authority to modify a criminal sentence that is “inappropriate” or “disproportionate” within the meaning of Practice Book Section 43-28.³  The sentence imposed by the trial court in this case clearly falls within the parameters of that Practice Book provision.   The record plainly shows, and the trial court noted, that the petitioner has failed on multiple occasions to comply with the mandates of probation, has intimidated the victim over an extended period of time and continues to engage in criminal conduct despite having had many opportunities to change his lifestyle.   There simply is no good reason to decrease the petitioner's sentence.

The sentence is AFFIRMED.

White, J.

Iannotti, J.

White, J. and Iannotti, J. participated in this decision.⁴

FOOTNOTES

FN1. See General Statutes Section 53a-32..  FN1. See General Statutes Section 53a-32.

FN2. In CR03-563256 the petitioner had been previously sentenced to a 12-year suspended sentence on a narcotics offense and in CR06-230743 he had been previously sentenced to 10 years suspended and 5 years probation on charges of burglary and risk of injury to a minor..  FN2. In CR03-563256 the petitioner had been previously sentenced to a 12-year suspended sentence on a narcotics offense and in CR06-230743 he had been previously sentenced to 10 years suspended and 5 years probation on charges of burglary and risk of injury to a minor.

FN3. 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.”.  FN3. 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.”

FN4. At the time of the petitioner's sentence review application hearing, the judges who participated in this decision were the only ones available and the petitioner was offered an opportunity to postpone his sentence review hearing until a later date when a third judge would be available.   He was also told that if he wanted to proceed, the two judges who were available would proceed with the hearing and render a decision as authorized by General Statutes § 51-194.   After consulting with his counsel and being canvassed by Iannotti, J., the petitioner voluntarily decided to proceed with a two-judge panel in lieu of a three-judge panel..  FN4. At the time of the petitioner's sentence review application hearing, the judges who participated in this decision were the only ones available and the petitioner was offered an opportunity to postpone his sentence review hearing until a later date when a third judge would be available.   He was also told that if he wanted to proceed, the two judges who were available would proceed with the hearing and render a decision as authorized by General Statutes § 51-194.   After consulting with his counsel and being canvassed by Iannotti, J., the petitioner voluntarily decided to proceed with a two-judge panel in lieu of a three-judge panel.

White, Gary J., Iannotti, Frank A., J.