Opinion
CR940100508
08-24-2017
State of Connecticut v. Keith Belcher
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO CORRECT ILLEGAL SENTENCE
ROBERT J. DEVLIN, JR., JUDGE.
The defendant, Keith Belcher, filed the present Motion to Correct Illegal Sentence on October 1, 2015. That motion raised several claims including a claim that his initial sentencing did not comport with the requirements of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2010), and State v. Riley, 315 Conn. 637, 110 A.3d 1205 (2015). After a hearing, this court agreed with that claim and granted the motion in a memorandum of decision dated April 29, 2016 [62 Conn.L.Rptr. 252, ]. This court, however, stayed its order until the resolution of cases pending in our Supreme Court that raised the same issue. Following the decision of those cases, it is now clear that a Miller violation may be remedied by parole eligibility and that this court lacks jurisdiction regarding the defendant's Miller/Riley claim. State v. Delgado, 323 Conn. 801, 151 A.3d 345 (2016); State v. Boyd, 323 Conn. 816, 151 A.3d 355 (2016). In addition, our Appellate Court has ruled that the Connecticut Constitution does not require a different result. State v. Williams-Bey, 167 Conn.App. 744, 144 A.3d 467 (2017). In light of the above, on August 9, 2017, this court vacated the order granting a new sentencing hearing and dismissed those claims based on lack of jurisdiction. On that same date, a hearing was held on the defendant's other claims that (1) his sentence is disproportionate, (2) the sentencing judge relied on inaccurate information and (3) notwithstanding Williams-Bey, his sentence violates our state constitution.
This court did not reach those claims in its initial ruling.
For the reasons set forth below, the motion to correct illegal sentence on these remaining claims is denied.
BACKGROUND
The defendant was convicted after trial of two counts of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(B), two counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1), one count of robbery in the first degree in violation of General Statutes § 53a-134(a)(2), one count of burglary in the first degree in violation of General Statutes § 53a-101(a)(1) and one count of attempted sexual assault in the first degree in violation of General Statutes § 53a-49(a)(2) and § 53a-70(a)(1).
Our Appellate Court summarized the facts of the case as follows:
" The defendant was fourteen years old when, on December 24, 1993, he and a companion approached the victim in front of her apartment in Bridgeport. The victim was unloading groceries from her car when the defendant approached her from behind, pulled a gun and demanded that she give him her purse. When she informed the defendant that the purse was upstairs, he dragged her up to the apartment to retrieve it, all the time holding the gun on her.
Once inside, the victim gave the defendant her purse, which he threw down the stairs to his companion. The victim asked the defendant to leave, but instead he forced the victim to perform oral sex on him. The defendant then forcibly dragged the victim through her apartment to a spare room where he again forced her to perform oral sex on him. The defendant subsequently hit the victim with the gun, leaving a severe laceration on her head. The defendant left when his companion called to him that it was time to go. After the defendant and his companion left, the victim called 911 for assistance. The police and ambulance arrived shortly thereafter. She was transported to St. Vincent's Hospital, where she was treated and released. When she returned home, she discovered that some items of jewelry were missing." State v. Belcher, 51 Conn.App. 117, 119-20, 721 A.2d 899 (1998).
DISCUSSION
I
PROPORTIONALITY
The trial court (Hartmere, J.) imposed a total effective sentence of sixty years. The defendant asserts that this sixty-year sentence is unconstitutionally disproportionate in violation of the Eighth Amendment of the United States Constitution. It is noted that the defendant never sought review of his sentence by the Sentence Review Division of the Superior Court. See General Statutes § 51-194 et seq.
The United States Supreme Court has stated that the Eighth Amendment has a " narrow proportionality principle" that applies to noncapital cases. Ewing v. California, 538 U.S. 11, 20, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003). Moreover, outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been " exceedingly rare." Id. The narrowness and rarity of success is evident from the cases. See e.g. Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (life in prison without parole for first time offender possessing 672 grams of heroin upheld); Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (life in prison without parole for three-time offender convicted of obtaining $120.75 by false pretenses upheld against constitutional attack); Ewing v. California, supra, 538 U.S. 30 (sentence of twenty-five years to life imposed under so-called " three strikes" law for stealing three golf clubs did not violate Eighth Amendment); Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1992) (two consecutive term of twenty years for possession with intent to distribute nine ounces of marijuana held constitutional); but compare, Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (life without parole imposed for writing a $100 bad check struck down).
In considering proportionality challenge to a sentence a court should asses the " gravity of the offense compared to the harshness of the penalty." Ewing v. California, supra, 538 U.S. 28. " If a claim crosses that threshold--itself a rare occurrence-- then the court should compare the sentence at issue to other sentences imposed on other criminals in the same, or in other, jurisdictions." Solem v. Helm, supra, 463 U.S. 290-91.
When examined in light of the " gravity of the offense compared to the harshness of the penalty" test, the defendant's sixty-year sentence is not unconstitutionally disproportional. This is particularly so because the defendant will be eligible for parole after thirty years. See Public Act 15-84 (juveniles sentenced in adult court eligible for parole at sixty percent of their sentence or thirty years, whichever is less).
Unlike the larceny and drug cases cited above, the present case involves extreme violence. The victim was kidnapped at gunpoint, sexually assaulted twice, struck with a gun causing a severe laceration to her head and robbed. The sentence that the trial court chose to impose is justified by the gravity of the offense notwithstanding the young age of the defendant.
The sentence imposed was not disproportional in violation of the Eighth Amendment.
II
INACCURATE INFORMATION
The next ground asserted in support of the motion to correct illegal sentence is that the sentencing court relied on inaccurate information in imposing sentence.
The defendant's sentencing hearing took place on January 24, 1997. At the beginning of the hearing, Judge Hartmere stated that he had reviewed the presentence investigation report (PSI) that he describes as " thorough" and that referenced school records and psychological records. Judge Hartmere then invited the prosecutor and defense counsel to make comments. The prosecutor noted the following: (1) the crime occurred when the defendant was on a holiday furlough from Long Lane School, (2) the victim was an elderly woman, (3) the defendant had an extensive juvenile record, (4) the psychiatrist and psychologist indicated that the defendant had difficulty with self-esteem, self-control and managing his emotions and conflicts, (5) a clinician indicated that he likes to take chances and evade the rules; he likes excitement and stimulation and is relatively uninhibited in regard to expressing aggressive and erotic impulses, (6) the Long Lane School officials indicated that he showed no remorse for any of his actions that led to his detention, (7) he had shot his sister, (8) he had stolen a car and (9) at the time of the verdict, he struck a sheriff which sparked a struggle involving other sheriffs and the defendant's family members--all in the presence of the jury.
In 1997, persons found delinquent by the juvenile court could be committed to Long Lane School.
Judge Hartmere, in his sentencing remarks, stated that he had presided at the trial and listened to all of the evidence including the testimony of the victim that he described as " most compelling and very credible." The court described the offense conduct as " inhumane." Judge Hartmere noted that the PSI showed the defendant, based on IQ and other tests, to be of average intelligence such that he could have chosen another lifestyle.
Judge Hartmere then mentioned the work of Professor John DiLulio of Princeton University. Professor DiLulio had coined the term " superpredator" to describe " radically impulsive, brutally remorseless youngsters who assault, rape, rob and burglarize." The judge categorized the defendant as a member of this group. Judge Hartmere suggested that the defendant had no fears from his conduct of the pains of imprisonment nor did the defendant suffer from the pangs of conscience.
The judge observed that the state's attorney, probation officer and victim all requested that the court impose a sentence of substantial incarceration. Judge Hartmere agreed that such a sentence was required to ensure the safety of the community. The judge then imposed a total effective sentence of sixty years.
In the present motion, the defendant asserts that Judge Hartmere relied on inaccurate information because, subsequent to the sentencing, Professor DiLulio repudiated his superpredator theory regarding certain young offenders.
In exercising their sentencing discretion, judges may consider a wide range of information. State v. Eric M., 271 Conn. 641, 649-50, 858 A.2d 767 (2004). Such information must, however, have some " minimal indicia of reliability." Id. As long as the sentencing judge has a reasonable persuasive basis for relying on the information used to fashion the ultimate sentence, an appellate court should not interfere with the judge's exercise of discretion. Id.
In the context of a motion to correct illegal sentence, our Supreme Court has held that a sentence " imposed in an illegal manner" is one that violates the right to be sentenced by a judge relying on accurate information. State v. Parker, 295 Conn. 825, 839, 992 A.2d 1103 (2010). To prevail on a claim that a sentencing court relied on inaccurate information at sentencing, however, a defendant must show that the information was materially inaccurate and the sentencing judge relied on that information. State v. Charles F., 133 Conn.App. 698, 705, 36 A.3d 731 (2012).
In connection with the defendant's claim, the case of State v. Martin M., 115 Conn.App. 166, 971 A.2d 828 (2009) is instructive. In Martin M., the defendant claimed that the sentencing judge (Prescott J.) relied on inaccurate information. Id., 143. Specifically, the defendant asserted that Judge Prescott inaccurately labeled him a " sexual predator" and inaccurately stated that sexual offenders collectively have a relatively high rate of recidivism. Id., 176.
The defendant proffered data to show that sex offenders do not have a high recidivism rate.
In rejecting this claim, our Appellate Court noted that the Connecticut Supreme Court had observed the perception that sex offenders have a greater probability of recidivism and that trial courts are entitled to rely on information articulated by the Supreme Court. Id., 178. In addition, our Appellate Court noted that Judge Prescott's reliance on the high recidivism rate was just one consideration in the court's sentence and not one on which the sentencing court substantially relied. Id., 179.
In the present case, the defendant's assertion that Judge Hartmere relied on materially inaccurate information must be rejected for at least four reasons. First, the label " superpredator" is not a fact but rather a descriptive term. It is of a different character than the recidivism rates challenged in Martin M. or the number of felony convictions challenged in Charles F. Second, even if the label is considered factual, the judge had a reasonable basis to rely on the information. Professor DiLulio was on the Princeton faculty and had published his findings. Third, Professor DiLulo used the term to describe youngsters who were impulsive and remorseless and who committed rape, robbery, assault and burglary. Forgetting about the superpredator label, the evidence at trial and the information provided to Judge Hartmere at sentencing amply supported the conclusion that the defendant, at that time in his life, met that definition. Fourth, the superpredator remarks were not central to Judge Hartmere's sentencing decision. Rather, it was the impression made by the elderly woman victim. As noted above, the judge described her testimony as " compelling" and the crime committed against her as " inhumane." The superpredator reference was just a gloss. This court has no doubt that, had Professor DiLulio repudiated his theory before sentencing, Judge Hartmere would have imposed the same sentence.
This court does not find that the defendant's sentence is illegal due to reliance on inaccurate information.
III
CONNECTICUT CONSTITUTIONAL CLAIM
The defendant's state constitutional claim is unrelated to his initial claim based on the Miller/Riley line of cases. It is instead premised on our Supreme Court's reasoning in State v. Santiago, 318 Conn. 1, 122 A.3d 1 (2015). In Santiago, the Court struck down Connecticut's death penalty as unconstitutional. The Court observed that the legislature had repealed the death penalty--but only for conduct occurring after the effective date of the statute. The Court reasoned that, given the legislature's repeal of the death penalty, maintaining such penalty for persons who committed capital crimes before the legislative change would violate the state constitution.
Public Act 15-183 now prohibits transfer of fourteen-year-old defendants to adult court. The defendant asserts that this statute represents a legislative statement of contemporary standards of decency akin to the legislative repeal of the death penalty. The defendant further asserts that it is unconstitutional to maintain adult sentences on persons who were fourteen years old at the time of their crimes and who, under present law, could not have their cases transferred to adult court.
As a threshold matter, this court must consider whether it has jurisdiction to consider this claim. Jurisdiction of a sentencing court terminates once the sentence has begun unless it has been expressly authorized to act. Cobham v. Commissioner of Correction, 258 Conn. 30, 37, 779 A.2d 80 (2006). In State v. Lawrence, 281 Conn. 147, 913 A.2d 428 (2007), our Supreme Court identified four common-law exceptions to the general rule cited above. Under Lawrence, a court has jurisdiction to consider: (1) whether the sentence was within the permissible range for the crimes charged, (2) whether the sentence violated double jeopardy, (3) whether the computation of the sentence's length as to concurrent/ consecutive time is illegal, and (4) whether the correct sentencing statute was applied. Id., 156-57. The defendant's claim of unconstitutionality does not fit within any of these common-law exceptions. Moreover, it is clear that the defects in the trial or other proceedings prior to the sentencing are not to be raised in a motion to correct illegal sentence. See Id., 158 (to invoke successfully the court's jurisdiction with respect to a claim of an illegal sentence, the focus cannot be on what occurred during the underlying conviction).
The defendant's claim as to the impact of Public Act 15-183 to his case is really a claim that the transfer of his case to adult court was unconstitutional. While styled in term of a motion to correct illegal sentence, the appropriate remedy would be to vacate his conviction because no resentencing could cure the flaw relating to the transfer of his case from juvenile court. As such, the claim does not concern the sentence but rather the conviction itself. As noted above, this court lacks jurisdiction to consider such a claim.
The defendant's claim that his sentence violates the state constitution is dismissed for lack of jurisdiction.
Should it be determined that this court has jurisdiction, the claim must be denied on its merits.
As stated above, the defendant's argument is that Public Act 15-183 reflects the legislature's judgment that contemporary standards of decency forbid transferring fourteen-year-olds to adult court. The defendant further asserts that this expression of contemporary standards renders the defendant's conviction and sentencing unconstitutional.
The defendant's argument does not take into account that, in the same legislative session, Public Act 15-84 was passed. That statute provided an opportunity for parole for persons, like the defendant, who received long sentences for offenses committed when they were minors. That statute is also a legislative expression of contemporary standards of decency that young offenders should have a chance for release. Public Act 15-84 does not contain any special provisions for fourteen-year-old minors. Taking the two public acts together suggests that the full legislative judgment is that, prospectively, fourteen-year-old persons should not have their cases transferred to adult court and fourteen-year-olds presently serving adult sentences should receive an opportunity for parole after the lesser of sixty percent of their sentence or thirty years.
This court sees the defendant's situation as distinguishable from the circumstances in Santiago . This court does not find the defendant's present sentence, which is parole eligible after thirty years, as unconstitutional cruel and unusual punishment.
IV
PUBLIC ACT 15-84
The defendant's final claim is that Public Act 15-84 does not provide an adequate remedy because, although it does provide for a parole hearing, it does not guarantee release. This claim lacks merit because the line of cases from Miller v. Alabama, supra, to Montgomery v. Louisiana, 577 U.S., 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) to State v. Delgado, supra, only require an opportunity for parole and not a guarantee of release.
CONCLUSION
For the reasons set forth above, the Motion to Correct Illegal Sentence is denied as to all claims other than the claim that the defendant's sentence violates the Connecticut Constitution. As to that claim, the motion is dismissed due to lack of jurisdiction.
So Ordered.