237 A.2d 565 | Conn. Super. Ct. | 1967
In these cases the parties and their counsel stipulated and agreed that the hearings on the applications for review of the sentences in question be held before two judges and that said two judges shall render decisions on such applications. Section
"A right of trial by jury even when guaranteed by the constitution may be waived . . . ." Nowey *318
v. Kravitz,
On Sunday, April 3, 1966, at about 7:55 p.m., the owner of a Torrington package store went to *319 the store to do some paper work. As he was unlocking the front door of the store, he saw two men behind the counter. The men, who were Clifton S. Dowdy and Melvin E. Knighton, ran out the back door and left the scene in a white Cadillac car owned by Dowdy. When apprehended by the police in Winsted, the officer observed a television set, a radio and a carton of assorted whiskey on the back seat of the car, and further investigation revealed that the trunk of the car was also full. The police recovered a vacuum cleaner, a hot plate, a radio, a television set, 227 bottles of liquor (many of which were pints and half pints), and cash amounting to $47. The total value of all the articles and money was approximately $787. A key found in Dowdy's possession fitted the front door of the package store. The presentence report indicates that Dowdy claimed that this key was to his home in Hartford and that he found the back door of the package store open when Knighton and he came to the scene of the break.
Although Dowdy was only twenty-one years of age when sentenced, he had had problems with the law over the years. The sentencing court noted that it was eliminating from its consideration those arrests in the past which were "on suspicious circumstances resulting in his eventually being released." However, it noted that he had been convicted of assault and battery, disorderly conduct, breach of peace, and resistance. In 1961, he was committed to a juvenile home for admittedly stealing a car. The court indicated it did not take the disorderly conduct and vagrancy matters too seriously. While free on bail on the charges involved in this case, he was arrested in Hartford for an offense which involved breach of the peace and resistance to an officer. As the court said, "apparently his arrest on this very serious charge which *320 he faces now didn't make much impression on him." At the time he was sentenced in this case, he had not yet been sentenced in Fairfield County (No. 16689) for crimes previously committed there. See part II of this opinion. His behavior prior to his sentencing in this case demonstrated a disregard for law and social sanctions. The sentencing court carefully weighed the considerations pertinent and proper to sentencing the defendant Dowdy.
The Division is of the opinion that the sentence under the Litchfield County information is fair and just and should stand.
Shortly before 2 a.m. on October 21, 1966, a Norwalk police officer on car patrol observed a pickup truck on the Post Road heading toward Westport and operating without lights. The officer attempted to stop the truck by turning on the flashing lights on his patrol car. Instead of stopping, the operator of the truck increased his speed. The operator was the defendant Dowdy. A chase ensued, and the pursuing police car had to exceed *321 speeds of over seventy miles per hour to approach the truck. Other police cars joined the chase. On several occasions, the pursuing police cars succeeded in driving alongside the speeding truck, but each time Dowdy would veer toward the police cars as if to ram them and thus cause the police cars to take evasive action. The pursuit ended when the pickup truck ran into an embankment in Westport. Dowdy attempted to flee from the scene, and he was captured after a struggle. A 600-pound safe was found in the back of the pickup truck. A check by the police disclosed that the truck was owned by a Norwalk automobile agency which had been broken into and from which the safe on the pickup truck had been removed. While Dowdy was being taken into custody, a car containing three males drove by, and police noted they displayed an unusual interest in the proceedings. None of these three owned the car, and a check with the Hartford police disclosed that the owner had given no one permission to use the car. The Hartford police also reported that the four males in custody were known in Hartford as "safe men" and associated together on "safe jobs." After a warrant was obtained to search the car carrying the three males, among other things the inside of that car disclosed a pry bar, which matched the pry marks on the door of the car agency, and nine pairs of cuff links, identified as having been in the car agency's office. Evidence found at the car agency by the police connected the four, including Dowdy, who had been taken into custody.
At sentencing, the state recommended that the defendant Dowdy be sentenced to a term of "one year and one day to three years in the state prison, that sentence to take effect upon the service of the sentence that he is presently serving." Defense counsel at that time, in speaking of Dowdy, said: "He was aware and I have conversed with him in *322 regard to the recommendation of the state prior to his plea, and he is aware and I here ask that the court accept the recommendation of the state in that case." The court accepted the recommendation and sentenced accordingly. However, at the hearing on the application for review of this sentence, counsel for Dowdy stated that while the sentence was not excessive per se, it should be made concurrent with and not consecutive to the sentence imposed in Litchfield County and being served at the time he was sentenced in Fairfield County. The Division, under all the circumstances, sees no valid reason to disturb the sentence imposed under the Fairfield County information.
The sentence imposed in Fairfield County is fair and just and should stand.
The Hartford County information charged the defendant Knighton in four counts. The first count charged him with the crime of attempt to break and enter a Hartford restaurant on July 19, 1966, in violation of § 53-77 of the General Statutes. The second count charged him with the crime of possession of burglars' tools in the night in Hartford on July 19, 1966, in violation of § 53-71 of the General Statutes. The third count charged him with breaking and entering in Granby on August 23, 1966, in violation of § 53-76 of the General Statutes. The fourth count charged that on August 23, 1966, he did "possess, have under his control, sell or dispense narcotic drugs, to wit: marihuana (as defined in Section
In sentencing the defendant Knighton under both the Litchfield County and Hartford County informations, the court said: "I will impose the same sentence for the Litchfield offenses as I did in the case of Mr. Dowdy. In other words, on the larceny, not less than three nor more than five; on the breaking and entering, an additional year, making a total three of three to six, an overall total. On the Hartford offense, on the first count, I believe the first — of attempted breaking and entering, one of the two, not less than one nor more than two; possession of burglary tools, an additional year, making the total effective sentence for that particular incident not less than one nor more than three. On the Granby incident, on the breaking and entering, not less than one nor more than three. Now, those sentences, I will order to be served consecutively so that the total would be five to twelve. On the drug violation, not less than one nor more than five to be served concurrently, so that he will not serve any additional time for that. I feel that that's as far as I can go."
The circumstances of Knighton's involvement in the Torrington package store break of April 3, 1966, have been hereinbefore mentioned. See part I of this opinion. The first and second counts of the Hartford County information stem from a police investigation of an incident at a Hartford restaurant at 3:45 a.m. on July 19, 1966, when police observed three men, including Knighton, standing in the darkness at the rear of a grill. The men fled, and Knighton and one Westry were apprehended. Burglar tools were found near the location where Knighton was first observed, and several pieces of brick had been chiseled from the rear wall of the grill. The third and fourth counts arose *325 out of events that occurred in the early morning hours of August 23, 1966, in Granby. At 12:18 a.m. on that date, police received a report that someone was breaking into a package store in Granby. Knighton was apprehended at the package store, where he had removed a double window fan from the store window. He had burglary tools in his possession when apprehended, as well as a walkie-talkie radio which was still turned on with noises emanating from it. Two hand-rolled marihuana cigarettes were found in the pocket of his shirt at that time. Knighton was out on bond for the Torrington package store break of April 3, 1966, and the Hartford restaurant incident of July 19, 1966, at the time he was apprehended at the Granby package store on August 23, 1966.
His record goes back to 1959, when he was bound over to the Superior Court for breaking and entering with criminal intent and theft, for which he received a suspended sentence with two years' probation. In 1961, he received a sentence of one year in jail for violation of that probation. He has a number of breach of the peace convictions and one conviction for interfering with a police officer. His past record, his nonchalant disregard for the property of others, and his alarmingly consistent involvement in the serious crimes in Torrington, Hartford and Granby, called for stern treatment.
In view of the offenses committed and the defendant Knighton's prior record, the Division is of the opinion that a total term of imprisonment of not less than five years nor more than twelve years for the offenses charged under the Litchfield County and Hartford County informations is fair and just.
A question does arise, however, as to the manner in which the sentences here in question were imposed. As previously stated, the sentence on the *326 two-count Litchfield information was not less than three nor more than five years on one count and one year on the second count, making an effective sentence of not less than three years nor more than six years. On the four-count Hartford information, sentence was imposed as follows: On the first count not less than one nor more than two years and on the second count an additional year, the court stating that the total effective sentence on the first and second counts was not less than one nor more than three years. On the third count, the sentence was not less than one year nor more than three years. At this point, the court said: "Now, those sentences, I will order to be served consecutively so that the total would be five to twelve." A concurrent sentence of not less than one nor more than five years was ordered on the fourth count. The only way in which the court's stated minimum of five years can be arrived at is to add the minimum of three years on the Litchfield County sentence, the minimum of one year on the first and second counts of the Hartford County information, and the minimum of one year on the third count of the Hartford County information. The court's stated maximum of twelve years is arrived at by adding the maximum of six years on the Litchfield County sentence, the maximum of two years on the first count of the Hartford County information, the one year on the second count of that information, and the maximum of three years on the third count of that information.
Since 1901 (Public Acts 1901, c. 78, § 1), any sentence to the state prison, otherwise than for life or in connection with a sentence of execution for a capital offense, has been governed by the Indeterminate Sentence Act, now §
In Moquin v. Walker,
Accordingly, the two counts in the Litchfield County information against Knighton constitute one case, and the four counts in the Hartford County information against him constitute a separate and distinct case. The sentence under the Litchfield County information of not less than three nor more than five years on one count and one year on the other count was in accordance with the provisions of the statute, by virtue of which it became an effective sentence of not less than three years and not more than six years. Abt v. Walker,
The sentence imposed under the Litchfield County information is just and proper and should stand.
The sentence under the Hartford County information fixed a minimum and a maximum on the first, third and fourth counts, and a term of one year on the second count, and the court ordered the sentences on the first, second and third counts to be served consecutively to the sentence under the Litchfield County information, and further ordered the sentence under the fourth count to be served concurrently, "so that . . . [the defendant] will not serve any additional time for that." The defendant has not raised any question about this sentence other than to ask for a reduction of the overall term, but we feel constrained to consider whether it has been properly imposes.
Under our indeterminate sentence law, where two or more sentences are imposed under a single information, ordinarily a minimum and a maximum period are set for the first offense for which sentence is imposed and only a maximum for the others. Sentences so imposed run consecutively by reason of §
It follows that the sentence under the Hartford County information was improper because it was not in accordance with either of the alternative methods of imposing sentences to the state prison. It did not fix a minimum and a maximum on one count and only maximum terms on the other counts as required by §
The Division is of the opinion that the sentence imposed under the Hartford County information was incorrectly stated, and should therefore be modified to accord with the governing law.
The Review Division is authorized to "order such different sentence or sentences to be imposed as could have been imposed at the time of the imposition of the sentence under review." General Statutes §
