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. ...