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State v. Bozelko

Court of Appeals of Connecticut

August 15, 2017

STATE OF CONNECTICUT
v.
CHANDRA BOZELKO

          Argued May 16, 2017

         Procedural History

         Substitute information, in the first case, charging the defendant with the crimes of attempt to commit larceny in the first degree, identity theft in the first degree, attempt to commit illegal use of a credit card and forgery in the third degree, and substitute information, in the second case, charging the defendant with the crimes of larceny in the third degree, identity theft in the third degree, illegal use of a credit card and forgery in the third degree, and substitute information, in the third case, charging the defendant with the crimes of attempt to commit larceny in the fifth degree, attempt to commit illegal use of a credit card and identity theft in the third degree, and substitute information, in the fourth case, charging the defendant with the crimes of larceny in the fifth degree, illegal use of a credit card and identity theft in the third degree, brought to the Superior Court in the judicial district of Ansonia-Milford, geographical area number five, where the cases were consolidated; thereafter, the matter was tried to the jury before Cronan, J.; verdicts and judgments of guilty, from which the defendant appealed to this court, which affirmed the judgment of the trial court; subsequently, the Supreme Court denied the defendant's petition for certification to appeal; thereafter, the court, Arnold, J., dismissed the defendant's motion to correct an illegal sentence, and the defendant appealed to this court, which reversed the judgment of the trial court and remanded the case for a hearing on the defendant's motion to correct an illegal sentence; subsequently, the court, Arnold, J., denied the defendant's motion to correct an illegal sentence, and the defendant appealed to this court. Affirmed.

          Chandra Bozelko, self-represented, the appellant (defendant).

          Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, Paul O. Gaetano, supervisory assistant state's attorney, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (state).

          Lavine, Sheldon and Flynn, Js.

         Syllabus

         The defendant, who had been convicted of ten felonies and four misdemeanors in connection with four separate incidents involving larceny, attempt to commit larceny, identity theft, forgery, illegal use of a credit card and attempt to commit illegal use of a credit card, appealed to this court from the trial court's denial of her motion to correct an illegal sentence. In her motion, the defendant alleged that the presentence investigation report utilized by the sentencing court had been prepared without her input, and that because the incomplete report contained material and harmful misrepresentations about her, including her purported lack of cooperation in the preparation of the report by refusing to participate in a presentence investigation interview, she was sentenced in an illegal manner because her sentence was based on inaccurate and misleading information in violation of her due process rights. Held that the trial court did not abuse its discretion in denying the defendant's motion to correct an illegal sentence: even if the defendant's probation officer had misrepresented the defendant's unwillingness to assist in the preparation of the presentence investigation report, the defendant failed to establish either that such misrepresentation was material to her sentencing or that it was actually relied on by the sentencing court, and, therefore, the trial court did not err in concluding that the defendant had failed to prove that the sentencing court gave specific weight or consideration to inaccurate or misleading information when it imposed its sentence, and although the defendant claimed that it was impossible for her to prove what portions of the report the sentencing court actually relied on because she was not permitted to subpoena the judge to testify at the evidentiary hearing, the defendant failed to file a motion for articulation with respect to those portions of the report considered and relied on by the sentencing court; moreover, the defendant was not precluded from presenting mitigating evidence to the court, as the defendant and her counsel were afforded nearly twenty-six hours to review the substance of the report and discussed a number of mitigating factors with the sentencing court, including the defendant's background, her advanced education, her full restitution to each of the victims and her role as a caregiver for her sick father, and she was afforded an opportunity to address the court and to present additional mitigating evidence, but declined to do so.

          OPINION

          SHELDON, J.

         This case returns to this court following our reversal of the trial court's ruling[1] that it lacked subject matter jurisdiction over the defendant's motion to correct an illegal sentence, and the resulting remand to the trial court, Arnold, J., for further proceedings on the merits of the defendant's motion. State v. Bozelko, 154 Conn.App. 750, 766, 108 A.3d 262 (2015). The defendant claimed that the sentencing court, Cronan, J., sentenced her in an illegal manner by relying on misleading or inaccurate information set forth in her presentence investigation report (PSI). Id., 763-64. On remand, Judge Arnold denied the defendant's claim, finding that the defendant had failed to present any evidence showing that the sentencing court had relied on misleading or inaccurate information in imposing her sentence. On appeal, the defendant challenges that determination. We affirm the judgment of the trial court.

         The lengthy procedural history of this case was previously set forth by this court, inter alia, on the defendant's direct appeal from her underlying convictions; see State v. Bozelko, 119 Conn.App. 483, 485-87, 987 A.2d 1102, cert. denied, 295 Conn. 916, 990 A.2d 867 (2010), cert. denied, U.S., 134 S.Ct. 1314, 188 L.Ed.2d 331 (2014); and in our decision remanding this matter back to the trial court. State v. Bozelko, supra, 154 Conn.App. 752-58. Following our decision remanding the matter back to the trial court, an evidentiary hearing on the defendant's motion to correct was held on July 13, 2015, and February 1, March 7, and March 28, 2016. In that hearing, Judge Arnold received testimony and documentary evidence as to the circumstances in which the defendant's December 7, 2007 sentencing took place.[2] Thereafter, on June 23, 2016, the court issued its written memorandum of decision denying the defendant's motion to correct an illegal sentence.

         The following facts are set forth in the court's written memorandum of decision. ‘‘The defendant . . . was convicted following a jury trial involving [ten felonies and four misdemeanors based upon her involvement in four separate incidents involving larceny or attempt to commit larceny, identity theft, illegal use of a credit card or attempt to commit illegal use of a credit card, and forgery]. On December 7, 2007, following the preparation of a [PSI] by the Department of Adult Probation, the defendant was sentenced by Judge Cronan . . . [to] a total effective sentence of ten years, [execution] suspended after . . . five years, with four years of probation following her release. . . . The defendant, who is self-represented, filed a motion to correct an illegal sentence on February 14, 2012. She concedes that the actual sentence . . . was not illegal, but rather, the sentence was imposed in an illegal manner. . . . Specifically, she claims that the [PSI] utilized by the court at her sentencing, was compiled without her participation, and . . . contained a material misrepresentation . . . because she was ‘tricked out' of participation in the report's preparation by the probation officer, who reported to the court that the defendant refused to participate in preparing the report.[3] The defendant argues that this ‘material misrepresentation' by the probation officer was prejudicial to the defendant.'' (Footnotes altered.)

         ‘‘A review of the December 7, 2007 sentencing transcript revealed that . . . [the defendant's counsel] Attorney [Tina] D'Amato . . . requested a continuance of the defendant's sentencing hearing, stating that the defendant had not had the opportunity to meet with the probation officer and complaining that probation officer [Lisa] Gerald was biased toward the defendant. . . . The [sentencing] court noted that it was in possession of a [PSI] . . . [but] indicated it was not going to hear argument as to why the defendant's interview was or was not done on time, providing an indication that this was not a primary concern or consideration of the court in imposing a sentence. . . .

         ‘‘In the course of the state's sentencing presentation, the state summarized the charges that the defendant had been convicted of and . . . [noted that, while] the defendant faced a maximum incarceration in excess of one hundred years, the state requested a total effective sentence of ten years [of] incarceration, execution suspended after . . . five years, followed by five years [of] probation supervision. Defense counsel then informed the court [that] she was not ready for sentencing, as she didn't know enough about the defendant to advocate for her.[4] Counsel did [however] admit that she had read the transcripts of the defendant's court proceedings . . . [and counsel] then related facts regarding the defendant's family background; her troubled relationship with her parents and involuntary hospitalization of the defendant by her parents. Counsel informed the court that the defendant had been diagnosed with schizophrenia, bipolar disorder and personality disorder; [and] had been forced to take antipsychotic medications. . . . Counsel informed the court that full restitution for her crimes had been accomplished; and that the defendant provided care for her [sick] father.'' (Footnote added.) ‘‘Counsel then reiterated that the defendant had been a student at Fordham ...


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