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State v. Vivo

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

October 5, 2015

State of Connecticut
v.
John Vivo, III

CONSOLIDATED MEMORANDUM OF DECISION RE MOTION FOR RECUSAL OF JUDGE MOTION FOR CHANGE OF VENUE MOTION TO CORRECT ILLEGAL SENTENCE

ROBERT J. DEVLIN JR., JUDGE.

BACKGROUND

In the captioned case, the defendant, John Vivo III, is challenging the seventy-five-year prison sentence imposed following his 1995 conviction for murder and assault first degree. That conviction was affirmed on direct appeal. State v. Vivo, 241 Conn. 665, 697 A.2d 1130 (1997).

Thereafter, the defendant filed a petition for writ of habeas corpus that was denied by the court (Rittenband, J.T.R.). On appeal, the Appellate Court affirmed the habeas court judgment except as to the conviction under General Statutes § 53-202k. As to that charge, the Appellate Court noted that § 53-202k is a sentence enhancement provision and not a separate crime. Vivo v. Commissioner of Correction, 90 Conn.App. 167, 177, 876 A.2d 1216 (2005). The Appellate Court stated: " [a]lthough the [defendant's] total effective sentence was proper, the judgment must be modified to reflect the fact that § 53-202k does not constitute a separate offense." The Appellate Court remanded the case " with direction to vacate that conviction and resentence the [defendant] to a total effective sentence of seventy-five years incarceration." Id., 177.

Thereafter, the defendant filed a motion to correct illegal sentence. Following a hearing, this court denied the defendant's claim that (1) the seventy-five-year sentence was contrary to the remand order of the Appellate Court and (2) that he was entitled to a new jury determination as to the applicability of § 53-202k. As to his third claim that he had not been properly been resentenced, this court conducted a new sentencing hearing on August 19, 2011. At that hearing, the court vacated the § 53-202k conviction and sentenced the defendant to sixty years on the murder count and ten years on the assault count enhanced to fifteen years pursuant to § 53-202k to run consecutive to the murder sentence for a total effective sentence of seventy-five years.

Thereafter, the defendant appealed this court's ruling denying his motion to correct illegal sentence to the Appellate Court. In a per curiam opinion, the Appellate Court found the defendant's claims on appeal to be without merit and affirmed the judgment. State v. Vivo, 147 Conn.App. 414, 81 A.3d 1241 (2015).

In the present motions, the defendant revisits (albeit in slightly different form) claims previously rejected by this court and the Appellate Court. A hearing on the present motions was conducted on September 30, 2015. The defendant continues to be self-represented.

I

Motion for Recusal of Judge

The defendant seeks the recusal of me as the judge to adjudicate and rule on the present motion to correct illegal sentence. Although the motion asserts that I have a personal interest, bias and prejudice in the outcome of the case and have acted vindictively toward the defendant, nothing was offered at the September 30th hearing to support these assertions. The defendant's basic reason to seek recusal is because I denied his earlier motion.

Disqualification of a judge is governed by Practice Book § 1-22 and Code of Judicial Conduct Rule 2.11. None of the grounds for disqualification apply in this case. Moreover, the Code of Judicial Conduct places upon all judges the responsibility to hear and decide all cases assigned to them unless disqualification is required. Code of Judicial Conduct Rule 2.7.

The motion to recuse the judge is denied.

II

Motion for Change of Venue


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