STATE v. BERMUDEZ, No. CR01-173392 (Jul. 14, 2004)

STATE OF CONNECTICUT v. LUISA BERMUDEZ

2004 Ct. Sup. 10741
No. CR01-173392Connecticut Superior Court, Judicial District of Fairfield at Bridgeport
July 14, 2004

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE LUISA BERMUDEZ
MIANO, HOLDEN, IANNOTTI, JUDGES.

The relevant facts are that on December 12, 2001, Luisa Bermudez (petitioner), was sentenced on the charge of Sale of Narcotics to 5 years execution suspended and 3 years of probation. Subsequently, while on probation the petitioner was arrested for violation of probation and was granted an evidentiary hearing. After the hearing the trial court made appropriate findings and concluded that the state had proven at said hearing that the petitioner committed Robbery in the First Degree on July 8, 2002, while on probation. The court made a finding of a violation of probation and that further probation was not a viable alternative. The court imposed the unexecuted portion of the sentence of 5 years incarceration. It is this sentence petitioner seeks to have reviewed.[1]

At the hearing before the Division counsel for petitioner advised that petitioner was presently serving two sentences: a five-year sentence for the violation of probation that is before the Division and an apparently subsequent 13-year sentence, imposed consecutively, for the conviction of Robbery in the First Degree (the same offense that provided the grounds for the violation). Counsel for petitioner requests that the Division run the violation sentence of 5 years concurrent to the subsequent robbery sentence.[2]

The petitioner addressed the Division and related that she is a changed and better person and is taking advantage of the schooling opportunities in corrections.

Counsel for the state countered that in 1995 the petitioner was convicted of two counts of Assault in the Second Degree with a firearm and given a split sentence which probation was subsequently revoked. Counsel for the state related that petitioner has a criminal history comprised of 5 prior felonies.

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 CT Page 10742 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 Statute § 51-194, et seq.

While on probation the petitioner committed a Robbery in the First Degree wherein at least one of petitioner’s accomplices was armed with a handgun. It is clear that based upon petitioner’s prior criminal history and the facts herein that probation is not a viable alternative.

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 Sec. 43-23 et. seq.

THE SENTENCE IS AFFIRMED.

Miano, J.

Holden, J.

Iannotti, J.

Miano, J., Holden, J., and Iannotti, J., participated in this decision.

[1] Although the application was filed beyond the 30-day limit, the record is silent as to if and when petitioner was notified as to right to sentence review and as to when she received the application. The Division did hear the petition for review of sentence.

[2] The Division is of the opinion that it has no authority to order that a prior sentence be served concurrently to a subsequent sentence imposed consecutive to the prior sentence. Even if the Division had such authority it would decline petitioner’s request under the circumstances of the case.

CT Page 10743