2007 Ct. Sup. 12221
No. CR95-472494Connecticut Superior Court Judicial District of Hartford at Hartford
July 2, 2007.
MEMORANDUM OF DECISION
FRANK A. IANNOTTI, GARY J. WHITE, LAWRENCE C. HAUSER, JUDGES.
The petitioner, Jerry Durant, was found in Violation of Probation after a hearing in violation of C.G.S. § 53a-32 and sentenced to six years incarceration. The court found that the petitioner violated his conditions of probation by a preponderance of the evidence. The petitioner had been on probation from two 1996 convictions for Attempted Assault in the Second Degree, where the petitioner received consecutive sentences of three years execution suspended, three years probation, and one year to serve on Failure to Appear in the First Degree, consecutive to the Attempted Assault counts. The total effective sentence imposed was seven years execution suspended after one year, three years probation. The petitioner owed six years on probation at the time of his hearing. The court, after hearing the evidence, found him in violation of C.G.S. § 53a-32, reopened the petitioner’s probation and sentenced him to the six years incarceration. It is from this sentence the petitioner seeks review.
The petitioner was arrested on June 25, 2001, while on probation for Assault in the First Degree and Risk of Injury to a Minor and again on June 29, 2001, for Criminal Lockout and Breach of Peace. The petitioner elected a jury trial and the violation of probation was heard simultaneously. The jury found the state had not met their burden of proof beyond a reasonable doubt and found the petitioner not guilty. The court, however, found the petitioner had violated his terms of probation by a preponderance of the evidence and sentenced the petitioner. The violation was based on allegations concerning the petitioner’s assault on a female victim, Cassie and a male victim, Mr. Morales.
Counsel for the petitioner argued his client completed four years and seven months of his probation successfully. This was a Payne v. Robinson violation alleging an assault in the First Degree while on probation. The petitioner elected a jury trial on the assault charge and was acquitted by the jury. The court found he violated his conditions of probation by a preponderance of the evidence and sentenced him to six CT Page 12222 years. Counsel concedes the court had the authority to impose the sentence, but believes in light of the acquittal the sentence was overly harsh. He completed all of the aspects of his probation and counsel is requesting fairness in light of these factors. He should not have received the full six years.
The state counters the petitioner’s argument referring to the petitioner’s violent background. The state argues the court appropriately considered this background before imposing the six-year sentence.
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 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 a sentence except in accordance with the provisions of the Connecticut Practice Book § 43-23
et seq., and Connecticut General Statutes § 51-194 et seq.
The court considered all aspects of the offense which included the two felony assault claims while the petitioner was on probation. The court knew the petitioner was on probation for assault and referred to the present case where the petitioner “. . . shot at the two victims.” The court also felt it was important to note Mr. Durant only had four and one-half months left on a five-year probation and considered this fact before imposing the sentence. Regardless, the court believed the acts of violence demonstrated while on probation warranted a substantial sentence.
It is significant that the petitioner did well for an extended period of probation, but one is required to fulfill all requirements of probation for the entire period. This does not necessarily mean every violation deserves a significant sentence. However, there are circumstances where repeated acts of violence deserves a significant punishment. This sentence was appropriate based on the petitioner’s history and the obligation to protect society from repeat offenders.
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 § 43-23 et seq.
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The sentence imposed was neither inappropriate or disproportionate.
The sentence is AFFIRMED.
Iannotti, J., White, J., and Hauser, J., participated in this decision.
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