State of Connecticut v. 158434 (2010)

MEMORANDUM OF DECISION

The petitioner asks for a review of his sentence in two docket numbers.   In the first docket number, ending in 236, the petitioner was convicted by a jury of sale of narcotics by a non-drug dependant person within 1500 feet of a school, possession of narcotics with intent to sell by a non-drug dependant person within 1500 feet of a school, possession of narcotics and possession of marijuana.   He received a total effective sentence of 30 years suspended after 26 years, followed by 5 years of probation.   That sentence was imposed on August 30, 2006 by the trial court, Blawie, J.

In the second docket number, ending in 387, the petitioner voluntarily pleaded guilty to the charges of possession of narcotics with intent to sell ¹ and failure to appear in the first degree ² before the trial court, Carroll, J., on September 15, 2006.   The court then imposed a sentence of 13 years to serve for the drug charge and 5 years to serve concurrent for the failure to appear charge.   Hence, the trial court imposed a total effective sentence of 13 years, and that sentence was concurrent with the sentence in file ending in 236.   The 13-year sentence imposed in file ending in 387 was the result the court's acceptance of a plea agreement by the parties.   Therefore, that sentence is not eligible for review by the Division and the application to review it is dismissed.   See General Statutes Section 51-195.

The facts underlying the petitioner's conviction in file ending in 236 are detailed in State v. Wilson, 111 Conn.App 614, aff'd (2008).   For purposes of this sentence review opinion, however, it is sufficient to indicate that the facts are as follows.   On February 24, 2004 the Bridgeport Police gathered information that the petitioner would be selling crack cocaine at a local restaurant and set up an undercover operation at that location.   Shortly after the police began their surveillance, an undercover officer watched the petitioner arrive at the restaurant in an automobile, enter the restaurant and then make what he believed to be several sales of narcotics.   The undercover officer then used a marked $20.00 bill to buy a quantity of cocaine from the petitioner.

After the sale occurred the petitioner left the restaurant and the police approached him.   He ran from the police and while fleeing, threw down eight bags of cocaine and two cell phones.   When the police caught the petitioner, he was in possession of a quantity of marijuana and $120.00 in cash, including the marked $20 bill.   The police subsequently searched the petitioner's car and found 45 bags of crack cocaine, $984 in cash and a cell phone.

At his sentence review hearing the petitioner argued that his sentence is inappropriate and disproportionate pursuant to Practice Book 43-28 ³ for several reasons.   First, he claims that his concurrent sentence in file ending in 387 is a violation of his constitutional rights against double jeopardy.   Second, the petitioner claims that the police illegally searched his automobile and that the Division should factor that claimed impropriety into determining the proper sentence.   Finally, the petitioner asserts that the facts underlying his conviction constitute a “simple sale” of a small amount of narcotics and therefore, the sentence imposed is excessive.

The state urges the Division to leave the sentence as is.   It points out that the petitioner has multiple felony convictions and that he “jumped bail” during the very trial that is the subject of his sentence review application.   The state also argues that the petitioner is a high school dropout, has no meaningful employment history and has displayed a cavalier attitude regarding his obligation to obey the law.

After carefully considering the factual circumstances of this case, the petitioner's background and the parties' arguments, the Division finds that there is no persuasive reason to reduce the sentence imposed by the trial court, Blawie, J. The petitioner's application regarding his 13-year sentence in file ending in 387, again, is not properly before the Division.⁴  Furthermore, the legality of the search ⁵ is not one of the factors that the Division may review pursuant to Section 43-28.   Assuming, however, without deciding that the Division can properly consider the petitioner's claims regarding file ending in 387 and his claims regarding the search, the Division still finds that the sentence should remain the same.

The petitioner has a terrible record, he violated the criminal law after absconding in the matter in file ending in 236 and he willfully failed to appear during the trial of that matter.   He minimizes his conduct by calling it a “simple” sale.   That simple sale, as the petitioner's criminal record demonstrates, is part of his ongoing disregard for the law.   The sentence imposed for that conduct is well within the parameters of Section 43-28.

The sentence is AFFIRMED.

White, J.

Alexander, J.

Fischer, J.

White, J., Alexander, J. and Fischer, J. participated in this decision.

FOOTNOTES

FN1. In this matter, the police found the petitioner in a stolen car.   He then fled from the car which contained a large quantity of cocaine..  FN1. In this matter, the police found the petitioner in a stolen car.   He then fled from the car which contained a large quantity of cocaine.

FN2. In this matter, the petitioner willfully failed to appear on March 15, 2006 during the trial on his narcotics case in file ending in 236..  FN2. In this matter, the petitioner willfully failed to appear on March 15, 2006 during the trial on his narcotics case in file ending in 236.

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. As previously indicated, that sentence is a result of a plea agreement between the parties and is therefore not subject to modification by the Division.   In addition, to the extent that the petitioner claims that his 13-year sentence in file ending in 387 is illegal because it constitutes double jeopardy, he should address that claim to the trial court, Carroll, J., pursuant to Practice Book 43-22..  FN4. As previously indicated, that sentence is a result of a plea agreement between the parties and is therefore not subject to modification by the Division.   In addition, to the extent that the petitioner claims that his 13-year sentence in file ending in 387 is illegal because it constitutes double jeopardy, he should address that claim to the trial court, Carroll, J., pursuant to Practice Book 43-22.

FN5. It should be noted that the petitioner's claims regarding legality of the vehicle search were reviewed and rejected by the Appellate Court in State v. Wilson, supra..  FN5. It should be noted that the petitioner's claims regarding legality of the vehicle search were reviewed and rejected by the Appellate Court in State v. Wilson, supra.

White, Gary J., Alexander, Joan K., Fischer, Brian T., J.'s