State of Connecticut v. 164809 (2015)

MEMORANDUM OF DECISION

The petitioner is Harold Waites.   On March 26, 2011, New London police responded to the report of a sexual assault involving two juvenile females.   A description of the offender was related to police and they found him sitting in front of the house in a silver car.   While patting him down they noted that his zipper was down and he made spontaneous comments such as “I didn't touch no one” and “Whatever they said I did, I didn't do.”

The two girls, ages nine and ten, were doing a sleep over at Victims 2's residence.   The offender was a friend of her father and known to them as Monte.   He entered the room three times and touched them in the vaginal area.   He also climbed into bed with Victim 1 with his zipper down and put his finger in her vagina.   He then assaulted Victim 2 and told them both that he was their uncle and that this was a secret.   Both victims were embarrassed and scared but were finally able to tell a parent.

The state charged the defendant with two counts of sexual assault in the first degree in violation of Connecticut General Statutes section 53a–70(a)(2), two counts of sexual assault in the fourth degree in violation of section 53a–73(a)(1)(A) and two counts of risk of injury to a child in violation of section 53–21(a)(2).   The defendant was tried before a jury which rendered verdicts convicting him of two counts of sexual assault in the fourth degree and two counts of risk of injury, he was acquitted of two counts of sexual assault in the first degree.

On May 17, 2013, the petitioner was sentenced by Judge Arthur Hadden to a total effective sentence of twenty years execution suspended after fifteen years followed by twenty years probation.

Counsel for the petitioner argued that his client would not plead guilty nor entertain a plea agreement that included a charge of sexual assault in the first degree.   As a result of being placed in a untenable situation, the petitioner rejected all plea agreements and persisted on going to trial.   The petitioner was acquitted of the more serious charges, sexual assault in the first degree, however he received a greater sentence than originally offered.   Counsel for the petitioner argued that his client was punished for taking his case to trial and that the petitioner's sentence should be reduced substantially.

Counsel for the state argued that the petitioner never took any responsibility for his criminal actions and it was disingenuous to suggest he was going to seriously entertain any plea agreement as it related to the underlying offenses.   He had no remorse and no comprehension of the effects of his actions on the victims.   The state also argued that the petitioner had an extensive criminal history.

The record reflects that the petitioner's prior criminal history dates back to 1988 with felony convictions for narcotics, assault, hindering prosecution, assault on an officer, and failure to appear.   The petitioner has also violated probation several times.   He incurred twenty-four disciplinary tickets over various periods of incarceration and violated conditions of his parole and release on several occasions.   Even though he claims to have a substance abuse problem, he has not followed through with treatment.

Pursuant to Connecticut Practice Book § 43–23 et seq., the Sentence Review Division is limited in the scope of its review.   The Division is to determine whether the sentence imposed “should be modified because it is inappropriate or disproportionate in the light of the nature of the offense, the character of the offender, the protection of the public interest and the deterrent, rehabilitative, isolative and denunciatory purposes for which the sentence was intended.”   The Division is without authority to modify sentences except in accordance with the provisions of Connecticut Practice Book § 43–23 et seq., and Connecticut General Statutes § 51–194 et seq.

Although the petitioner was acquitted of the two counts of sexual assault in the first degree, he was convicted of two counts of sexual assault in the fourth degree which are class D felonies under the circumstances in which they were committed and he was also convicted of two counts of risk of injury, class B felonies which carry a five-year mandatory minimum sentence.   The maximum sentence the petitioner could have received for the charges for which he was convicted far exceeds the sentence he received.

The Division finds there is nothing inappropriate or disproportionate about the sentence imposed by the court in this case.

In reviewing the record as a whole, the division finds that the sentencing court's actions were in accordance with the parameters of Connecticut Practice Book Section 43–23.

The sentence is Affirmed.

James P. Ginocchio, Judge

Brian T. Fischer, Judge

Joan K. Alexander, Judge

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

Ginocchio, James P., Fischer, Brian T., Alexander, Joan K., J.s