State of Connecticut v. Dwight G. (2012)

MEMORANDUM OF DECISION

Defendant is now an inmate in the custody of the Commissioner of Corrections.   Before this court are his November 9, 2011 “Petition for a New Trial,” and his November 21 “Motion to Correct an Illegal Sentence.”   These were docketed for a hearing on January 27, 2012.   In the course of the hearing, he brought to the court's attention two additional matters, namely, a “Motion to Return Seized Property,” dated June 8, 2011, but not previously heard;  and a letter to the court clerk, dated November 3, 2011, seeking clarification of the requirement that he register as an offender on the Sexual Offenders Registry List. Since the defendant is now representing himself, the court has deemed the letter, which contains all the elements essential to a motion for the same purpose, to function as a motion;  Oliphant v. Commissioner of Correction, 274 Conn. 563 (2005).   In the interest of efficiency, the court heard him on these two additional issues on January 27, but has allowed the State until March 23 to respond in writing to these assertions not originally on that day's docket.

The record indicates that on June 20, 2001, the court (Foley, J.) convicted defendant of Sexual Assault in a spousal or cohabitor relationship in violation of General Statutes § 53a–70b.   He was then sentenced to, and began serving, a sentence of ten years, execution suspended after three years, followed by a period of ten years probation.   On November 21, 2008, after a trial on a charge of violation of the terms of that probation, the court (Swords, J.) found him guilty and sentenced him to serve six years and three months of the time remaining from his 2001 sentence.

The record further reveals that defendant appealed the 2008 conviction to the Appellate Court, which, on September 14, 2010, affirmed the trial court's decision.   See, 123 Conn.App. 760 (2010).   Additionally, he applied to the Sentence Review Division of the Superior Court for a review of his sentence pursuant to General Statutes § 51–196.   On September 27, 2011, that Division affirmed the trial court's 2008 decision.

I. The Petition for a New Trial

The defendant petitions for a new trial on the violation of probation charge, pursuant to General Statutes § 52–270, and alleges in that petition a total of nine reasons why it ought to be granted, to wit:  1) my pleading (sic);  2) the trial court lacked jurisdiction over the subject matter;  3) perjury by the alleged victim;  4) defense counsel did not adequately protect my rights during the original trial;  5) wrongfully allowing prejudicial exhibits and testimony to be entered and used;  6) improper argument by the state's attorney;  7) clear abuse of discretion and jurisdiction;  8) the first substituted count of V.O.P. is unconstitutionally void for vagueness;  and 9) discovery of new information.

At the hearing, petitioner offered testimony and argument only upon points 3 and 5, claiming that the victim lied and that certain information seized through execution of a search warrant following his arrest ought not to have been admitted in the violation of probation trial.   This court will limit its analysis to these two factors.

In State v. Skakel, 295 Conn. 447 (2010), it was held that “ ․ a court is justified in granting a petition for a new trial when the petitioner demonstrates that the evidence offered in support thereof:  (1) is newly discovered such that it could not have been discovered previously despite the exercise of due diligence;  (2) would be material to the issues on a new trial;  (3) is not cumulative;  and (4) is likely to produce a different result in the event of a new trial ․' This strict standard is meant to effectuate the underlying equitable principle that once a judgment is rendered it is to be considered final, and should not be disturbed by posttrial motions except for a compelling reason.'  “ 295 Conn. 447, 466–7 (Citations omitted).

Claims of perjury may be an appropriate basis for a new trial order.  In re James L., 55 Conn.App. 435 (1999).   That case involved a motion for a new trial filed after the termination of the parental rights of the parents of the child named.   Months later, a witness in the termination proceeding testified in her own criminal case, and recanted what she had stated in the juvenile court.   Nonetheless, the trial court's rejection of the petition was sustained on appeal because, inter alia, the outcome on a second trial would fairly clearly be the same as had occurred in the first, notwithstanding this development.

Here, defendant's claims are substantially weaker.   He makes a bald assertion that the state's principal witness against him, his intimate partner, was a liar.   Other than his own narrative as to what occurred between them, which he already had occasion to proffer to the trier of fact, there is no corroborating evidence that she did not tell the truth the first time.   He has no confession of hers to point to, nor any third-party testimony supporting his contention.   There is no reason to believe that she would testify differently if a second trial were ordered, and allowing such an event would run afoul of the principle favoring the finality of judgments without any justification for ignoring that principle.   His petition cannot be granted on the strength of this argument.   His claim that evidence was improperly admitted in the 2008 trial, in contrast, is not a proper basis of a petition for a new trial.   The statute allows a petitioner to assert the existence of new evidence which, had it been available on the first trial, might have led to a different outcome.   A complaint that a trial court has instead admitted and then, presumably, reached its judgment upon evidence which was inadmissible is, instead, the proper basis for an appeal.  Fritz v. N. York & N. England R.R. Co., 63 Conn. 452 (1893).   Here, where defendant has actually filed an appeal (and failed to convince the Appellate Court), his petition for a new trial on this basis cannot be entertained.

II. The Motion to Correct an Illegal Sentence

The gravamen of the motion claiming that defendant was exposed to an illegal sentence is that the sentencing court had not ordered a Presentence Investigation as required by General Statutes § 54–91a and Practice Book § 43–3(a).   In this case, since two sentences were imposed seven years apart, this court asked defendant to clarify which he believed to be illegal, and he indicated that he contests both of them.

General Statutes §§ 54–91a(a) and (b) provide, in pertinent part, that “[n]o defendant convicted of a crime ․ the punishment for which may include imprisonment for more than one year, may be sentenced, or the defendant's case otherwise disposed of, until a written report of investigation by a probation officer has been presented to and considered by the court, if the defendant is so convicted for the first time in this state ․” but that “․ [a] defendant who is convicted of a crime and is not eligible for sentence review pursuant to section 51–195 may, with the consent of the sentencing judge and the prosecuting official, waive the presentence investigation.”

Since the defendant's first conviction occurred in 2001, this statute does not apply to the 2008 proceedings.

This court reviewed the transcript of the June 20, 2001, plea and sentencing hearing (State's Exhibit 2).   Defendant was represented by counsel.   He entered a guilty plea and was canvassed at length as to his understanding thereof.   The transcript reveals that a different jurist had conducted a pretrial conference in the case and that that jurist's recommendation formed the basis for the sentence imposed.   The State's Attorney commented:  ․ I believe we'll be waiving PSI's ․” (Tr., p. 4), to which defendant's counsel replied “Your Honor, that is the agreement in this matter ․ We do wish to take advantage of the plea agreement at this time.”  (Tr., p. 5.) Next, asked whether he understood what was happening here, defendant answered in the affirmative.   Following additional colloquy, the court proceeded to articulate the agreed-upon sentence without protest from defendant or his counsel.

While the court did not expressly “consent” to the waiver of a presentence investigation, this court finds that it did so implicitly.   Obviously, such a report is mandatory unless waived;  State v. Olson, 115 Conn.App. 806, 814 (2009).   The trial court which sentenced Olson had done so in the absence of a report, and in the wake of an agreement that he could argue for a lesser sentence than recommended by the state.   He subsequently moved to correct that sentence as having been improperly imposed, which the trial court denied.   That ruling was sustained on appeal, since Olson offered no evidence that anything contained in a presentence investigation would have affected the outcome.   Here, where the parties joined in a sentencing agreement which the trial court adopted, and did so after both counsel indicated that a waiver of the report was part of the bargain, the court's failure to ritualistically express its “consent” to the waiver is of no consequence to the validity of the sentence it imposed.

III. The Motion to Return Seized Property

In his motion regarding personal property, defendant seeks a return of certain computer equipment, dvds, “downloaded materials,” and “all other items” seized in an investigative search of his premises.   The state disclosed that it holds four items which fall into the first category, three knives which fall into the catch-all fourth category, and nothing fitting the second or third categories.   The state's principal objection to the return of the computer equipment is that if any court orders a retrial, these items may be needed as evidence in that hearing.   It contends that the knives, on the other hand, are not the kind of tools that ought to be readily available to a convicted felon, regardless of their value as evidence in the future.

This court concurs with that assessment.   The computer equipment shall be returned to defendant upon the expiration of all limits of his seeking a new trial.   The knives shall not be returned.

IV. The Motion for Clarification as to Registration Requirement

In 2001, defendant was convicted of sexual assault in a spousal or cohabiting relationship, in violation of General Statutes § 53a–70b.   The parties had agreed upon a sentence of ten years, execution suspended after three years, followed by ten years probation.   In the canvass, the court informed him that such a conviction has a mandatory requirement of registration as a sexual offender, and, after additional discussion, granted a motion allowing the registration to remain undisclosed to the public, as allowed by General Statutes § 54–255.   The court went on to find “․ that this was a sexually violent offense ․ which requires ․ lifetime registration”;  (Tr., p. 12).   In response, defendant's attorney countered that it should only be ten years, and indicated that there was an agreement to that effect.   The court responded “․ the sentence is as imposed ․”;  (Tr., p. 13).

The clerk thereupon prepared a mittimus stating, inter alia, the terms of the sentence, and, as “conditions of probation,” a requirement of “registration as sex offender pursuant to 54–250.”   Defendant now maintains that this reflects a limitation of the registration term to a period of ten years, the duration of the period of probation.   He has apparently been informed by either probation or corrections personnel that he faces, instead, a lifetime registration obligation.

In State v. Pentland, 296 Conn. 305 (2010), the Supreme Court considered the sufficiency of a sentencing hearing at which the trial court had erroneously informed the defendant that he was not required to attend to sex offender registration.   That mistake—which obviously was not replicated by the trial court in the instant matter—did not excuse Pentland from registering.   The registration requirement is statutory and mandatory, and a court's failure to correctly communicate it to a defendant whom it sentences does not amount to an exemption for one so convicted.¹

This court has reviewed the applicable statutes. § 54–250(11) classifies a conviction for violation of § 53a–70b as a “sexually violent offense.” § 54–252 provides that a person convicted of a “sexually violent offense” must maintain lifetime registration.   No exceptions appear to apply to the facts of this case.   What discretion the court has to waive or limit the registration requirement as to violations of § 53a–70b inheres in § 54–255(a), authorizing a restriction upon the dissemination of the registration information this discretion, as indicated, was in fact exercised here.

What defense counsel had in mind in contending that a ten-year period was required is unknown.   The clerk's description of the registration requirement as a “condition of probation” is unfortunate and perhaps misleading, but amounts to a scrivener's error.   In light of the fact that the sentencing court correctly stated the duration of the registration requirement, and the Pentland rule that even an error on the part of the court in articulating the requirement does not obviate the need to register, this court can only conclude that this detail on the mittimus is effectively irrelevant as setting any limitations upon this defendant's obligations.

V. Conclusions and Orders

For the foregoing reasons, it is hereby ORDERED:

1) The petition for a new trial is hereby DISMISSED.

2) The motion to correct an illegal sentence is hereby DENIED.

3) The motion for return of personal property is GRANTED, in part.   The state shall return to defendant's agent his computer, keyboard, monitor, and cable.   This order, however, is stayed until the twenty-first day following the issuance of this memorandum, or until the termination of any appeal which might be filed within such period, whichever is later.

4) The motion to clarify the registration requirement is GRANTED.   The registration required is for life.

Boland, J.

FOOTNOTES

FN1. The Pentland court went on to note that potentially, if a defendant sought to set aside his conviction, for instance, the challenge to a misleading canvass might succeed;  see, State v. Davenport, 127 Conn.App. 760, cert. denied, 301 Conn. 917 (2011).   This is not the objective of the defendant here..  FN1. The Pentland court went on to note that potentially, if a defendant sought to set aside his conviction, for instance, the challenge to a misleading canvass might succeed;  see, State v. Davenport, 127 Conn.App. 760, cert. denied, 301 Conn. 917 (2011).   This is not the objective of the defendant here.

Boland, John D., J.