Opinion
No. CR02-00781
January 24, 2006
MEMORANDUM OF DECISION
In Docket No. CR02-00781 Adam Osoria, petitioner, was convicted by jury verdict of Robbery in the First Degree, a violation of CGS Sec. 53a-134(a)(4), Attempt to Commit Robbery in the First Degree, violations of CGS Sec. 53a-49 and 53a-134(a)(4), each offense provides for a period of incarceration of up to 20 years, Accessory to Larceny in the Third Degree, and in Docket No. CR02-210187 the petitioner was convicted of a second count of Accessory to Larceny in the Third Degree, each a violation of CGS Sec. 53a-124 which provide for a period of incarceration of up to five years. The trial court imposed a net effective sentence of 33 years incarceration. It is this sentence petitioner seeks to have reviewed.
On the basis of the evidence presented at trial, the jury reasonably could have found the following facts:,
See State v. Osoria, 86 Conn.App. 507, 509-10.
The petitioner is identified as the defendant.
"During the evening hours of January 8, 2002, the defendant, Jimmy Santos, Christin Lopez, Jose Ramos and another man identified at trial as "Jose" were gathered at a housing project in New Haven. The five men walked to East Haven for the purpose of stealing an automobile. The defendant was armed with a sawed-off shotgun. Upon reaching a condominium complex in East Haven, the men forcibly entered a Honda Accord, which the defendant drove away.
Jose later drove the vehicle to Orchard Street in New Haven where he pulled alongside Robert Long and Bruce Sherents, whom he and the other men had observed walking down the street carrying a marijuana cigar. The defendant and Ramos, donning masks and gloves, exited the car. The defendant and Ramos demanded whatever possessions Long and Sherents had on their persons. The defendant struck Long, and Ramos struck Sherents with the shotgun. Ramos took Sherents pager and, during the altercation, Lopez exited the car and picked up the marijuana cigar, which had been dropped by either Long or Sherents, from the sidewalk.
The five men drove away, ultimately reaching Whalley Avenue in Hamden. Robert Brockett, an officer in the Hamden police department who was patrolling the area, observed the Honda travel through an intersection at a very high rate of speed. Brockett pursued the automobile, which reached speeds in excess of 100 miles per hour. The Honda ultimately crashed on a residential property. The defendant and the four other occupants ran from the automobile to avoid capture. The defendant, Ramos, Santos and Jose ran to a nearby condominium complex and hid until they no longer detected police activity. Lopez ran in a different direction. The four men then observed a Nissan Altima parked nearby. The Nissan's owner left the automobile running while he was a short distance away from the automobile, delivering newspapers. The defendant and the other three men got into the Nissan and, with the defendant driving, left the scene.
The defendant drove to New Haven and, at some point thereafter, police officers from New Haven and Hamden, as well as Connecticut state troopers, pursued the defendant in a high speed chase through New Haven, West Haven and Milford. After taking Ramos to his home, the defendant ultimately drove to a public housing project in New Haven, where he, Santos and Jose ran from the stolen automobile to avoid capture. A police officer arrested the defendant several days later."
At the hearing before the Division counsel for the petitioner directed the panel's attention to factors which the petitioner considers mitigating in nature: in prior cases the Division has taken into consideration the tender age of the perpetrators — petitioner was only age 18 at the time of the instant offenses; the petitioner's criminal history is not extensive but is comprised of two prior misdemeanors and one larceny in the second degree; the instant offenses occurred on one night, one "horrible night for Mr. Osoria . . . a huge domino effect on that evening . . ."; the victims suffered no permanent injury; petitioner was not the one wielding the shotgun; during the robbery the petitioner told the shotgun wielding accomplice, "Don't do it, don't shoot him"; the co-defendants cooperated with the state and testified and were given substantially lesser sentences than petitioner. Counsel opined that the sentence imposed was "way off" and "disproportionate" to others similarly situated.
Counsel for the state countered by referring the panel to the comments of the state at sentencing that Mr. Osoria ". . . was the leader and set into motion the terror and the pain that was caused that night." Counsel for the state represented that it was petitioner who stole the Honda motor vehicle that was used by the group. Counsel for the state indicated the victims of the robbery were terrorized. Counsel referred to the prior felonious larceny of the petitioner and his prior conviction for interfering and resisting the police. The state further indicated the petitioner received disciplinary tickets from corrections while confined prior to his sentencing. The state indicated that the court's concern was the level of violence demonstrated by petitioner's behavior. Counsel noted in the instant matters there were four separate counts in the information relevant to four separate victims.
Transcript, April 11, 2003, page 2.
In extensive and thoughtful comments at the time of sentencing the trial court indicated that it had reviewed carefully all that was before the court including petitioner's social history. The court indicated that the serious felonies of which petitioner was convicted ". . . reflects a total disregard for the property of others and a lack of respect for the welfare of the victims by exposing them to the danger of physical and emotional harm."
Id.,p. 15.
The court further commented in relevant part:
"The evidence in this case presents a portrait of a dangerous and reckless young man who armed himself with a shotgun and made it available to a group of accomplices on the night of the incident." "Furthermore, your participation in the stealing of two cars on the evening in question and your reckless operation of one of the stolen vehicles wherein you engaged the police in a multi-car chase endangered your life, the life of your accomplices, the life of the chasing police officers as well as the life of members of the general public."
Id.
Id., pps. 15-16.
The record also reflects that the petitioner has failed to demonstrate any remorse and continued to maintain his innocence "notwithstanding the overwhelming and undisputed evidence to the contrary."
Id.,p. 19.
The trial court made an extensive record in support of the substantial sentence the court was about to impose.
Id., see pages 15 through 21.
The trial court imposed all sentences consecutively one to the other for the offenses of which petitioner was convicted. In CR02-0000781 the trial court sentenced petitioner on one count of robbery (the robbery of Mr. Bruce Sherents) to a term of 15 years incarceration and to the second count of robbery (the attempt of Mr. Robert Long) to a term of 10 years; to the charge of accessory to the theft of a motor vehicle in which an associate was the operator of the vehicle who engaged police in pursuit and eventually crashed the subject vehicle, a sentence of three years incarceration was imposed, and in CR02-210187 to the charge of accessory to the theft of another automobile in which petitioner was the operator who engaged police in pursuit, a sentence of five years was imposed. The imposition of consecutive sentences in each resulted in the net effective sentence of 33 years incarceration.
The Division does review certain factors in evaluating the appropriateness of the sentence imposed; the nature of the offenses, the petitioner's criminal history, the petitioner's age at the time of the commission of the offense, the duration of the criminal conduct and whether innocent persons were injured.
It is noteworthy that the robbery offenses emanate from a single transaction wherein the petitioner and his accomplice approached both victims and performed the prohibited acts against each at the same time and as part of a single incident. Although petitioner did provide the weapon for the robbery, it was he who implored his accomplice not to injure the victims. The Division has reviewed petitioner's criminal history and, in the opinion of the Division, said history is not of such an extended nature to serve as an aggravating factor in the court's consideration of the imposition of an appropriate sentence. We note at the time of the offenses petitioner was 18 years of age.
Taking into consideration the youth of the petitioner at the time of the offenses, the lack of a substantial criminal history and the fact that all these criminal acts were committed within a short span of several hours, the Division finds that the net effective sentence, under the circumstances, is excessive and disproportionate with others similarly situated.
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 Statute § 51-194, et seq.
Taking into consideration the egregious and serious nature of the crimes in which petitioner participated, combined with petitioner's lack of remorse and denial of responsibility, the trial court had ample reason to conclude that the petitioner was a threat to society and that a substantial period of incarceration was warranted. However, for reasons hereinabove articulated, the Division is of the opinion that the sentence imposed was excessive.
Accordingly, the Division pursuant to CGS Sec. 54-196(d) respectfully orders the Superior Court to modify the sentences imposed to a net effective sentence of 33 years execution suspended after 18 years incarceration and five years of probation. We direct the Superior Court to impose the sentence in whatever manner the court deems appropriate consistent with this decision.
Miano, J., Iannotti, J. and Espinosa, J. participated in this decision.