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State v. Petitpas

Court of Appeals of Connecticut

July 17, 2018

STATE OF CONNECTICUT
v.
CHAD PETITPAS

          Argued May 21, 2018

         Procedural History

         Informations, in three cases, charging the defendant with two counts each of sexual assault in the first degree, sexual assault in the second degree and risk of injury to a child, and with one count each of unlawful restraint in the second degree, sexual assault in the fourth degree, mutilation or removal of a motor vehicle identification number, and larceny in the third degree, brought to the Superior Court in the judicial district of Waterbury, where the cases were consolidated and tried to the jury before Levin, J.; verdict and judgment of guilty in each case; thereafter, the defendant appealed to the Supreme Court, which affirmed the judgments; subsequently, the court, Fasano, J., denied the defendant's motion to correct an illegal sentence, and the defendant appealed to this court. Affirmed.

          W. Theodore Koch III, assigned counsel, for the appellant (defendant).

          Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Catherine Brannelly Austin, supervisory assistant state's attorney, for the appellee (state).

          Elgo, Bright and Mihalakos, Js.

          OPINION

          MIHALAKOS, J.

         The defendant, Chad Petitpas, appeals from the judgment of the trial court denying his motion to correct an illegal sentence under Practice Book § 43-22. On appeal, the defendant claims that the sentencing court materially relied on inaccurate information pertaining to his age and criminal record. We disagree and, accordingly, affirm the judgment of the trial court.

         The defendant's conviction was the subject of a direct appeal before our Supreme Court. See State v. Petitpas, 299 Conn. 99, 6 A.3d 1159 (2010). In affirming the defendant's conviction, our Supreme Court concluded that the jury reasonably could have found the following facts: ‘‘In August, 2006, the fifteen year old victim[1] lived with her mother, her mother's boyfriend, her brother and the defendant. One day in October, 2006, after the defendant had moved out of the victim's residence, he visited the victim at her residence and forced her to engage in oral and vaginal intercourse. Approximately one month later, the victim reported the incident to her school psychologist, which led to a police investigation. During the investigation, the police discovered at the defendant's residence a stolen motorcycle that had its vehicle identification number removed. The defendant was arrested and charged with ten counts in three separate informations that were later consolidated for trial . . . .'' (Footnote in original.) Id., 101-102.

         Following a jury trial in July, 2007, the defendant was convicted of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), two counts of sexual assault in the second degree in violation of General Statutes (Rev. to 2005) § 53a-71 (a) (1), and one count each of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (2), unlawful restraint in the second degree in violation of General Statutes § 53a-96 (a), risk of injury to a child in violation of General Statutes § 53-21 (a) (1), and risk of injury to a child in violation of § 53-21 (a) (2).[2]Id., 100-101.

         Prior to sentencing, the court ordered the preparation of a presentence investigation report (PSI) by the Office of Adult Probation. The report contained the defendant's correct birth date, July 9, 1979, but incorrectly listed his age as thirty-eight rather than twenty-eight. Additionally, the PSI correctly set forth the defendant's criminal record, listing his sentence for a prior assault conviction as ‘‘[seventeen] years jail, [suspended] after 102 months, [five] years probation.''

         The court sentenced the defendant on September 28, 2007. In the course of the state's sentencing presentation, the state summarized the charges of which the defendant had been convicted and requested a total effective sentence of twenty-five years imprisonment followed by twenty years of special parole. In support of its recommendation, the state asked the court to consider, inter alia, the defendant's age and criminal record. The state correctly stated that ‘‘[t]he defendant was twenty-eight years old; the victim was fifteen years old, '' and, with regard to the defendant's prior assault conviction, ‘‘he received a sentence of seventeen years suspended after he served 102 months, five years probation.'' Defense counsel admitted that the defendant had ‘‘a prior criminal record'' and that he was ‘‘still a roughly young man, '' but requested that the court impose ‘‘the least amount of reasonable time possible, looking at all circumstances in this case'' for the defendant.

         Shortly before imposing the sentence, the court, Levin, J., incorrectly stated that the defendant was ‘‘now about age thirty-eight.'' With regard to the defendant's criminal record, the court stated: ‘‘[T]he defendant was convicted of assault in the first degree and received seventeen years suspended after 120 months. I believe 502 months of probation.'' The court indicated that it had considered the trial transcripts, the PSI, the victim's position as indicated in the PSI, the defendant's age, record, employment history and the acts underlying his conviction. The court then sentenced the defendant to a total effective term of nineteen years in prison followed by thirty years of special parole. Following a brief recess and discussion between the prosecutor and defense counsel off the record, the following colloquy ensued:

‘‘The Court: Okay. I'll vacate the orders of special parole and . . . refashion it as follows: The sentences imposed remain the same, however . . . . It will be twenty years special parole. Excuse me . . . fifteen years special parole. . . . That was my intent. ...

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