State of Connecticut v. 218506 (2013)

MEMORANDUM OF DECISION

The petitioner is Gregory Miller.   He was convicted by a jury of multiple sex-related offenses, including one count of attempted sexual assault in the first degree,¹ five counts of risk of injury to a minor,² and two counts of sexual assault in the first degree.³  The trial court, after reviewing a pre-sentence investigation report and hearing arguments from the parties, imposed a total effective sentence of 90 years to serve.   The petitioner appealed his conviction, but the Appellate Court affirmed the trial court decision.   See State v. Miller, 121 Conn.App. 775 aff'd (2010), 298 Conn 902 cert denied (2010).

The facts underlying the petitioner's conviction are outlined in detail in the Appellate Court decision.   For purposes of this sentence review decision, however, they may be stated as follows:  In the spring of 2001 the petitioner lived in an apartment with the eight-year-old victim and her mother.   At the time the petitioner first resided with the victim, there was an occasion when he removed her clothes and attempted to have anal intercourse with her.   The victim initially did not report this incident because she was “scared and embarrassed.”   Sometime after this initial incident, the petitioner moved out of the apartment and the victim felt confident that she had nothing further to fear from him.

In January of 2003, however, the petitioner moved back into the child's home and victimized her again.   More specifically, he compelled her to engage in oral sex and vaginal intercourse.   In March of 2003, the young girl told her family and a friend about what the petitioner had done and she was then taken to a hospital for treatment.   The police thereafter became involved and their investigation culminated in the petitioner being arrested.

The petitioner claims that the sentence imposed by the trial court is inappropriate and disproportionate pursuant to Practice Book Section 43–28 ⁴ and asks that his sentence be reduced to a sentence of somewhere between 20 and 30 years.   He argues that he is not a “sexual predator” and that he was well raised by a supportive mother in a “tough” neighborhood.   He moreover asserts that his sentence is excessive because the victim did not die or suffer any permanent physical injuries.

The state objects to any downward modification of the sentence.   It points out that the petitioner has a criminal record stretching back to 1991 and that his criminal record includes a prior conviction for sexual assault in the first degree.   The first time the petitioner committed sexual assault in the first degree, he received a sentence of 12 years suspended after 6 years, followed by 3 years of probation.   The petitioner, after being released from prison, then violated his probation, was again incarcerated, and thereafter committed the crimes that are the subject of his sentence review application.   It is significant, according to the state, that the petitioner either attempted to sexually assault or in fact did sexually assault the child over more than a two-year period.   As a result of the petitioner's conduct, the state argues, the victim is severely traumatized and requires extensive mental health counseling.

The trial court was thoroughly familiar with the evidence and observed that the petitioner was “the poster child for a sexual predator” and noted that “there is no question in my mind that [he] must be removed from society forever.”   It carefully reviewed the petitioner's criminal history, noted his failures to abide by the conditions of probation when he was given opportunities for community supervision, and made it clear that the victim and the rest of society needed protection from the petitioner for as long as possible.

The majority ⁵ of the three Division panel members finds that the sentence imposed by the trial court is within the parameters outlined by Section 43–28.   The petitioner was a convicted sex offender at the time he victimized the child and at the time he was sentenced he failed to show any remorse or accept responsibility for his criminal conduct.   He attempted anal intercourse with the eight-year-old girl when he initially resided in a home with her, left the residence, returned and then proceeded to sexually assault her on multiple occasions.   The petitioner clearly treated the victim in a callous, cruel and brutal manner.   His actions have had a devastating effect on the young girl's emotional health and mental wellbeing.   It is true that the petitioner did not kill his victim, but the emotional trauma that he inflicted on the victim is still devastating in the extreme and merits a commensurate punishment.   The victim is still in the process of recovering from what the petitioner did to her and will require an indefinite amount of time to heal.   Although the sentence imposed by the trial court is clearly substantial, it is in fact both appropriate and proportionate under the facts and circumstances of this case.   There is no sufficiently persuasive reason to reduce the sentence imposed by the trial court.

The sentence is AFFIRMED.

Gary J. White, J.

Joan K. Alexander, J.

White, J., Alexander, J. and Fischer, J. participated in this decision.   Fischer, J. Issued a separate opinion.

FOOTNOTES

FN1. See General Statutes Section 53a–49(a)/53a–70(a)(2)..  FN1. See General Statutes Section 53a–49(a)/53a–70(a)(2).

FN2. See General Statutes Section 53–21.   The petitioner was convicted on one count pursuant to 53–21(a)(1) and four counts pursuant to 53–21(a)(2)..  FN2. See General Statutes Section 53–21.   The petitioner was convicted on one count pursuant to 53–21(a)(1) and four counts pursuant to 53–21(a)(2).

FN3. See General Statutes Section 53a–70(a)(2)..  FN3. See General Statutes Section 53a–70(a)(2).

FN4. 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. 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.”

FN5. Pursuant to General Statutes Section 51–194, [t]he decision of any two of the judges shall be sufficient to determine any matter before the review division.”.  FN5. Pursuant to General Statutes Section 51–194, [t]he decision of any two of the judges shall be sufficient to determine any matter before the review division.”

White, Gary J., Alexander, Joan K., Fischer, Brian T., J.s