2007 Ct. Sup. 1452
No. CR00-294084Connecticut Superior Court Judicial District of Waterbury at Waterbury
January 23, 2007
MEMORANDUM OF DECISION
THOMAS P. MIANO, J., FRANK A. IANNOTTI, J., CARMEN E. ESPINOSA, J.
Shawn Sells, petitioner, was convicted by jury verdicts of guilty on Count One to Sexual Assault in the Second Degree in violation of Genera! Statutes Sec. 53a-71(a)(1) which provides for a maximum penalty of up to ten years incarceration and on Counts Two and Three to Injury or Risk of Injury to a Minor in violation of CGS § 53-21(1) and (2) each provides for a maximum period of incarceration of ten years.
On the sexual assault conviction the trial court imposed a sentence of ten years execution suspended after eight years incarceration to be followed by ten years probation; on each of the counts of risk of injury the trial court imposed a sentence of ten years execution suspended after four years incarceration and ten years of probation, the second count is consecutive to the first count (the sexual assault conviction) and the third count is concurrent for a net effective sentence of 20 years execution suspended after 12 years incarceration and ten years of probation. It is this sentence petitioner seeks to have reviewed.
The factual basis for the convictions is found in State v. Sells, 82 Conn.App. 332, 334-36.[1] The jury could have reasonably found the following:
In 1998, when Donald Garcia befriended the victim, M, the two began spending a significant amount of time together. Garcia soon became a “father figure” to M, providing him with numerous gifts, as well as marijuana and alcohol. Later, Garcia importuned the victim for sexual favors and performed fellatio on the then twelve year old M. M also began to frequent Garcia’s residence where Garcia photographed M’s genitals and exposed him to a plethora of pornographic materials that were stored on a computer. During that time period, D, who is M’s mother, engaged CT Page 1453 in sexual intercourse with M on at least two occasions.
In April or May, 2000, after Garcia met the defendant in an Internet chat room, they engaged in a brief sexual relationship, and the defendant began residing at Garcia’s home. The defendant subsequently met M’s mother and they too engaged in a sexual relationship at Garcia’s residence. During that time, the defendant developed an interest in M and asked Garcia if he could share M with him. On at least two occasions, the defendant performed fellatio on the then fifteen-year-old M. On September 14, 2000, T, another youth residing at the Garcia residence, was arrested in an unrelated matter. During a police interview, T revealed the sexual abuse that was occurring at the Garcia residence. Garcia then became the target of a police investigation. On September 21, 2000, the defendant, of his own doing, turned over to the Federal Bureau of Investigation (FBI) all of Garcia’s pornographic computer files. When M was interviewed by the police in connection with the ongoing investigation, he gave a statement in which he alleged sexual abuse by Garcia, his mother and the defendant. D also gave a statement corroborating M’s accusations as to Garcia and herself.
Garcia pleaded guilty, and D, in a separate trial, was later convicted of having sexually abused M. At trial, Garcia and D admitted in their testimony that they had abused M. Garcia corrobated M’s allegations against the defendant. Additionally, M testified that the defendant had sexually abused him. The defendant testified and denied engaging in sexual conduct with M. The gravamen of his defense was that M and Garcia had conspired to accuse the defendant falsely of sexual assault out of jealousy over the defendant’s relationship with D and in revenge against the defendant for having reported Garcia’s criminal behavior to the authorities. The defendant was convicted on all three counts CT Page 1454 . . .
At the hearing before the Division counsel for the petitioner noted that in the Pre-Sentence Investigation (PSI) the probation officer opined that the petitioner “appears to be more of a threat to himself than the overall community . . .”[2]
Accordingly, claims counsel, extended incarceration is not warranted here and the 12-year sentence is “excessive.” The purpose of the statute, argues counsel, is to protect the community and the comments of the probation officer compels us to conclude that the petitioner is not a risk to the general community.
Counsel for the petitioner further noted that co-defendant Garcia, who plead guilty, was a prime mover in the events that occurred and received six years incarceration plus 14 years of special parole. Counsel further noted that the mother of the victim allowed these events to take place and even engaged in sexual intercourse with her own son and yet she received a sentence of four years incarceration which further supports petitioner’s claim, says counsel, that the sentence imposed on petitioner is excessive and counsel requested a reduction.
The petitioner addressed the Division and explained his displeasure at being robbed of five years of his life and related that he had contracted an illness and had undergone three surgeries.
Counsel for the State countered that the trial court had the benefit of presiding at the trial and hearing and evaluating the evidence and assessing the witnesses and their respective credibility. Counsel noted that “sometimes facts are such that particular sentences are warranted.”
Counsel for the State argued that the facts demonstrated that there were three sexual assaults perpetrated on the 14-year-old boy. Counsel noted that the case came to light because a friend of the victim reported that the petitioner “was trying to take the victim out of school . . . taking boys out and buying them things . . .”
The petitioner’s prior criminal history is comprised substantially of multiple larceny and failure to appear convictions wherein on multiple occasions the petitioner was sentenced to probation or a split sentence and probation and petitioner invariably violated that probation.
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 CT Page 1455 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.
Taking into consideration the criminal history of the petitioner and his continued failure on probation, the nature of the present conviction, and petitioner’s lack of remorse and complete denial of the behavior for which he was convicted which minimizes the prospects of genuine rehabilitation, the sentence imposed is neither inappropriate nor disproportionate.
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.
THE SENTENCE IS AFFIRMED.
Miano, Iannotti, Espinosa, J., and, participated in this decision.
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