State of Connecticut v. Henry Ossai Ojuma (2014)

MEMORANDUM OF DECISION ON MOTION FOR SENTENCE MODIFICATION

Before the court is the motion of the defendant, Henry Ossai Ojuma, to modify his sentence entered by this court on November 20, 2013, pursuant to a plea agreement.   He now petitions the court to reduce his sentence of two years, execution suspended, and two years conditional discharge to a total sentence of eleven months or less.

The substantive and procedural background is as follows:  On November 20, 2013, the defendant appeared before this court accused of larceny in the third degree pursuant to General Statutes § 53a–124.¹  He pled guilty pursuant to a plea agreement.

The defendant was accused of fraudulently purchasing items valued at $2,964 from the Sears at 1201 Boston Post Road in Milford on August 1, 2013, with a credit card that did not belong to him.   The items were recovered.   The court was informed by counsel that, although the defendant had no prior convictions in Connecticut, he had prior larceny convictions in New York. This court thoroughly canvassed the defendant, who was represented by counsel, inquiring into various matters such as:  whether the defendant had adequate time to discuss the case with his attorney and whether he was satisfied with the advice offered by her;  whether the defendant was aware that, by pleading guilty, he waived certain rights owed an accused party in criminal proceedings;  whether the defendant's attorney had explained to him the nature of the charge, the elements that the state would have to prove, and the total maximum penalty that could be attached by the court;  whether the defendant knew the nature of the Alford plea that he was asserting and whether he still wished to do so;  whether the defendant was aware that a conviction might, if the defendant was not a citizen of the United States, have deportation, exclusion from admission and/or denial of naturalization consequences;  and whether the defendant's plea was entered knowingly and voluntarily and was not the result of coercion or threats or inhibited by the influence of drugs, alcohol, or medication.   Satisfied with the defendant's answers to these inquiries and others, the court found that the Alford plea was knowingly, intelligently, and voluntarily entered, found that there was a factual basis for the charge, and accepted the proposed plea agreement offered subject to the conditions that the defendant not be arrested again and that the defendant not return to the Sears where the incident occurred.

The defendant is currently incarcerated in a Massachusetts jail, awaiting deportation due to his November 20, 2013 conviction.   On or about February 24, 2014, an immigration judge informed the defendant that the only way to terminate the deportation proceeding against him was to have his sentence reduced to eleven months or fewer.   This motion followed.

Sentence modifications for definite sentences of three years or less are governed by General Statutes § 53a–39(a), which provides in relevant part:  “At any time during the period of a definite sentence of three years or less, the sentencing court or judge may, after hearing and for good cause shown, reduce the sentence, order the defendant discharged, or order the defendant discharged on probation or conditional discharge for a period not to exceed that to which the defendant could have been originally sentenced.”

In the present case, the defendant has raised no issues concerning the adequacy of the canvassing, and the transcript attached to this motion reveals no apparent issues concerning the court's obligations under Practice Book § 39–19 ² or General Statutes § 54–1j.³  Additionally, the defendant had an immigration attorney present at the time the plea was accepted who the defendant's criminal counsel represented had advised the defendant concerning the immigration consequences of accepting the plea given his history.   As the defendant has not explicitly or implicitly raised any issues concerning any perceived deficiency concerning the plea proceedings, it appears that the defendant's motion is premised solely on the fact that there are immigration consequences as a result of this conviction.   Given that the court canvassed the defendant about this possibility and the defendant was represented by and had spoken with an immigration attorney at the time that he accepted the plea, the court finds that the mere existence of any subsequent immigration consequences are not a sufficient ground to reduce the defendant's sentence.

The defendant has also attached to his motion the submitted testimony of the Connecticut Criminal Defense Lawyers Association urging legislators to adopt Raised Bill No. 6539, 2011 Sess. That bill would have eliminated subsection (b) of § 53a–39, which requires the approval of the state's attorney before a court can modify definite sentences of more than three years, and made the provisions of subsection (a) applicable to all sentences for a definite term.   It thus would not change the analysis that the court is required to undertake for this motion.   Further, the bill that the document supports was tabled and never enacted into law.   Under either circumstance, this testimony does not further the defendant's position.

The motion is denied.

The Court

By John J. Ronan Judge Trial Referee

FOOTNOTES

FN1. Section 53a–124(a) provides in relevant part:  “A person is guilty of larceny in the third degree when he commits larceny, as defined in section 53a–119, and ․ (2) the value of the property or service exceeds two thousand dollars ․”.  FN1. Section 53a–124(a) provides in relevant part:  “A person is guilty of larceny in the third degree when he commits larceny, as defined in section 53a–119, and ․ (2) the value of the property or service exceeds two thousand dollars ․”

FN2. Practice Book § 39–19 requires the court to canvas the defendant personally on, and verify that they fully understand, a number of issues, including:  the nature of the charges to which the plea is offered;  the mandatory minimum sentence, if any;  whether the statute for the offense in question prevents the sentence from being suspended;  the maximum possible sentence on the charges and how that might be calculated when multiple sentences might be ordered to run consecutively and when different or additional punishments may be authorized because of a previous conviction;  and the fact that the defendant has the right to plead not guilty and the various rights that an accused criminal is entitled to at trial..  FN2. Practice Book § 39–19 requires the court to canvas the defendant personally on, and verify that they fully understand, a number of issues, including:  the nature of the charges to which the plea is offered;  the mandatory minimum sentence, if any;  whether the statute for the offense in question prevents the sentence from being suspended;  the maximum possible sentence on the charges and how that might be calculated when multiple sentences might be ordered to run consecutively and when different or additional punishments may be authorized because of a previous conviction;  and the fact that the defendant has the right to plead not guilty and the various rights that an accused criminal is entitled to at trial.

FN3. Pursuant to § 54–1j(a), the court cannot accept a plea of guilty from a defendant in a criminal proceeding without addressing the defendant personally and determining if the defendant understands that, if the defendant is not a citizen of the United States, the defendant's conviction might result, inter alia, in deportation, removal from the United States or denial of naturalization.   The court's failure to do so allows a defendant to move within three years of the court's acceptance of the plea to vacate the judgment, withdraw the plea of guilty, and enter a plea of not guilty.  General Statutes § 54–1j(c)..  FN3. Pursuant to § 54–1j(a), the court cannot accept a plea of guilty from a defendant in a criminal proceeding without addressing the defendant personally and determining if the defendant understands that, if the defendant is not a citizen of the United States, the defendant's conviction might result, inter alia, in deportation, removal from the United States or denial of naturalization.   The court's failure to do so allows a defendant to move within three years of the court's acceptance of the plea to vacate the judgment, withdraw the plea of guilty, and enter a plea of not guilty.  General Statutes § 54–1j(c).

Ronan, John J., J.T.R.