State v. Martin G.

305 A.3d 324

222 Conn.App. 395

STATE of Connecticut

v.MARTIN G.^*

(AC 45812)

Appellate Court of Connecticut.

Argued September 13, 2023

Officially Released November 14, 2023

Naomi T. Fetterman, assigned counsel, for the appellant (defendant).

Melissa L. Streeto, senior assistant state’s attorney, with whom, on the brief, were John P. Doyle, state’s attorney, Michele C. Lukban, senior assistant state’s attorney, and Stacey Miranda, supervisory assistant state’s attorney, for the appellee (state).

Alvord, Prescott and Bishop, Js.

ALVORD, J.

₃₉₆The defendant, Martin G., appeals from the judgment of the trial court denying his motion for modification of his sentence pursuant to General Statutes § 53a-39 (a). On appeal, the defendant claims that the trial court abused its discretion in finding that he had failed to establish good cause to modify his sentence. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts underlying the defendant’s conviction, as set forth by this court in his direct appeal, are relevant to our resolution of this appeal. "The defendant became a member of the victim’s household when she ₃₉₇was six years old. Six years later, when the victim began to occupy a bedroom of her own, the defendant repeatedly engaged in sexual intercourse with her. His misconduct came to light when the victim became pregnant and had a baby. The state’s DNA testing of the victim, the baby and the defendant showed a high statistical probability that the defendant was the baby’s father." (Footnote omitted.) State v. Gray, 126 Conn. App. 512, 515, 12 A.3d 1008, cert. denied, 300 Conn. 928, 16 A.3d 703 (2011).

The following procedural history is also relevant to our resolution of this appeal. The state charged the defendant with sexual assault in the first degree in violation of General Statutes (Rev. to 2005) § 53a-70 (a) (2)¹ and risk of injury to a child in violation of General Statutes (Rev. to 2003) § 53-21 (a) (2).² The state extended a plea offer to the defendant, "which was if he entered a plea to the charge of sexual assault in the second degree, the court … would impose a sentence of fifteen years of incarceration, execution suspended after seven years, and twenty years of probation." Gray v. Commissioner of Correction, Superior ₃₉₈Court, judicial district of Tolland, Docket No. CV-16-4007870-S, 2019 WL 7597433 (December 16, 2019). The defendant rejected the plea offer. The state extended a second plea offer of "twenty years of incarceration, execution suspended after ten years to serve, and twenty years of probation, which would have been imposed consecutive to an existing sentence." Id. The defendant also rejected the second plea offer and, instead, proceeded to trial on the theory "that he often drank alcohol to excess and took illegal drugs and that, as a result, he often would fall into a deep sleep that resembled a blackout. Because he could not recall anything that had occurred while he had been asleep, he hypothesized that his intercourse with the victim must have resulted from her actions and not his own." State v. Gray, supra, 126 Conn. App. at 520, 12 A.3d 1008. The jury returned a guilty verdict on both counts. Id., at 515, 12 A.3d 1008. After accepting the jury’s verdict, the trial court imposed a total effective sentence of forty-five years of incarceration, execution suspended after thirty-five years, followed by fifteen years of probation. Id. This court affirmed the defendant’s conviction. Id., at 522, 12 A.3d 1008.

The defendant then filed an application for sentence review with the sentence review division of the Superior Court. On August 5, 2011, the sentence review division affirmed the defendant’s sentence. Next, the defendant filed a motion to correct an illegal sentence on the ground that his sentence with respect to his conviction of sexual assault in the first degree was illegal because it did not include a period of special parole.³ The court granted the defendant’s motion and resentenced him with respect to his conviction for sexual assault in the ₃₉₉first degree.⁴ It imposed a new, total effective sentence of forty-four years of incarceration, execution suspended after thirty-four years, with one year of special parole, and fifteen years of probation.

Thereafter, on January 31, 2022, the defendant, having served seventeen years of his, sentence, filed a motion for sentence modification seeking "to reduce his period of incarceration from thirty-four years to nineteen years or any other reduction the court feels is appropriate." The trial court, Harmon, J., held a hearing on the defendant’s motion on June 17, 2022. During the hearing, the court heard a statement from the victim’s mother, who opposed the sentence reduction. The victim’s mother discussed how she recently explained to her youngest son "that he has a brother/nephew that we had to put up for adoption from his father touching his sister, because his father felt that he wanted to start trying to reach out to [him] now." She further recalled having to explain to the victim’s school "that [the victim is] twelve years old and she’s pregnant, and she would still be continuing in school …." Additionally, the victim’s mother detailed the difficulties she encountered trying to put the victim’s child up for adoption, stating, "[I]t was a long process finding a good family for the child. I mean, we had families that [were] supposed to adopt him, but … when they found out how he was conceived … they literally signed the paperwork and then didn’t do it …." Significantly, the victim’s mother recognized that, "even to this day, [the victim is] still not the same and she’s never gonna be the same and neither are we." On the basis of the victim’s position, as expressed through her mother, the state objected to the defendant’s motion for sentence modification.

₄₀₀Next, the court heard argument from the defendant’s counsel, who represented that "we are not asking for release today …. What we are asking for is an opportunity for [the defendant] to seek parole." He argued that, since being incarcerated, the defendant has become "remorseful, a changed man," who "has held jobs while [incarcerated] and he’s had glowing evaluations that are all excellent. … With regard to education, [the defendant] has availed himself of what-ever certificates he … could find. … [H]e also engaged in domestic violence counseling with all goods or excellents … on his evaluation. He completed most of his [Offender Accountability Plan], including Voices, addiction services, and People Empowering People." The defendant’s counsel stated that the defendant had made numerous attempts to enroll in sex offender treatment, however, he has been unsuccessful due the program prioritizing inmates with earlier release dates. He then reiterated that the defendant was requesting the court to reduce his sentence because he has completed all available rehabilitative programs except sex offender treatment and, ultimately, the opportunity to complete sex offender treatment would improve his possibility of receiving parole. Finally, the defendant’s counsel stated "that [the defendant] was offered seven years of incarceration prior to going to trial … and received what I believe was thirty-seven years …. I did just want to highlight that … because although I will concede that after trial you are no longer able to avail yourself of the presumption of innocence, and while I understand that there can and perhaps should be an increase in the … time that [a defendant] actually [is] sentenced to … I don’t think anyone believes that an extra thirty years … for that is reasonable."

The defendant then addressed the court and apologized for his actions. He admitted that he had failed ₄₀₁to take responsibility for his actions in 2005, and he "should’ve thought more of the victim and the pain that [he] put her through and [he] should’ve took responsibility." Additionally, the defendant stated: "I’m not [the] type of person I was in 2007. I’m nowhere near that. I’ve grown from this … I know I’m a better person. The things that I’ve done inside the [Department of Correction] to try to better myself taught me how to stay clean, stay out of trouble, do the right things in life. … I’ve been discipline free for seventeen years."

In its memorandum of decision dated June 30, 2022, the court denied the defendant’s motion for sentence modification, The court determined that, "[i]n analyzing whether ‘a legally sufficient reason’ exists to warrant a modification of the defendant’s sentence, the court has considered whether the defendant has demonstrated substantial rehabilitation since the date the crime was committed. Factors that have been examined include, but are not limited to (1) the gravity of his crime; (2) correctional record and length of time incarcerated; (3) his age and circumstances at the time of the commission of the crime; (4) whether he has demonstrated remorse and increased maturity since the date of the offense; (5) whether he has contributed to the welfare of other persons through service while incarcerated; and (6) the degree [to] which he has fully availed himself of the opportunities for growth, rehabilitation, and contribution within the correctional system considering the nature and circumstances of the crime he committed. … [And] the court must consider the gravity of the offense itself." (Footnote omitted.)

With respect to the rehabilitative efforts the defendant has undertaken since incarceration, the court determined that "[t]he defendant submitted written materials documenting his employment while incarcerated and his training, and efforts at rehabilitation, during incarceration. [The defendant’s counsel] spoke on ₄₀₂[his] behalf and stressed the responsibility that [he] was taking regarding his past wrongdoings and his true remorse and desire to be a better individual. [The defendant] submitted an extensive package of recommendation letters,...