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State v. Bawza

Court of Appeals of Connecticut

January 9, 1990

STATE of Connecticut
v.
William BAWZA.

Argued Nov. 15, 1989.

William Bawza, pro se.

Timothy J. Sugrue, Deputy Asst. State's Atty., for appellee (state).

Before BORDEN, SPALLONE and LAVERY, JJ.

Page 1263

PER CURIAM

The defendant appeals from the trial court's denial of a motion to modify his sentence or to place him on intensive probation. We find no error.

On April 14, 1988, the defendant pleaded guilty to assault in the first degree in violation of General Statutes § 53a-59(a)(3). The trial court found that the plea was made freely and voluntarily and that there was a factual basis for it. On May 27, 1988, the court imposed the agreed upon sentence of five years. Shortly thereafter, the defendant, acting pro se, applied for intensive probation in accordance with General Statutes [20 Conn.App. 468] § 53a-39. The trial court, Noren, J., referred the motion to the office of adult probation for investigation. The probation office did not recommend intensive probation and the trial court denied the motion. In January, 1989, the defendant filed another motion for modification of the sentence or for intensive probation. The trial court, Shaughnessy, J., again referred the motion to the probation department, which recommended against the motion. The trial court denied the motion and the defendant appealed. The defendant did not appeal from the original conviction or the agreed upon sentence.

The defendant claims that the trial court erred because (1) the factual basis of the plea as adduced at the plea hearing supports only a conviction of assault in the second degree, and (2) the sentencing court was under the mistaken impression that the defendant was subject to a mandatory minimum sentence of five years.

Because § 53a-39 [1] allows a judge to modify a sentence of three years or less and the agreed upon sentence in this case was for five years, the court had no power to modify the sentence. As to the application under § 53a-39 for intensive probation, the office of adult probation twice gave the defendant an unfavorable recommendation and twice the trial court in the proper exercise of its discretion denied the motion.

[20 Conn.App. 469] The claims of error concerning the plea and sentencing [2] are not reviewable in this appeal. The defendant's claim concerning the factual basis for his plea was untimely, because he did not raise it prior to his sentencing. State v. Smith, 19 Conn.App. 646, 648-50, 563 A.2d 1034 (1989). Similarly, his claim concerning the sentencing procedure was not raised by motion to the trial court until approximately eight months after the sentence was imposed. This defendant cannot convert what are essentially attempts to withdraw his guilty plea and to challenge his sentence into viable appellate issues simply by

Page 1264

seeking relief under ยง 53a-39 that he was not ...


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