State v. JohnsonState v. Johnson
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This is an appeal by the state from the imposition by the trial court of a modified sentence mandated by the sentence review division. Because we find in this case that the sentence review division exceeded its authority in promulgating a rule concerning the propriety of consecutive sentences, we find error, set aside the judgment, and remand to the sentence review division for further proceedings.
On January 16, 1979, the defendant was convicted after a jury trial on a two-count information of, on the *473first count, first degree robbery and, on the second cоunt, conspiracy to commit robbery.1 At the sentencing hearing on February 16, 1979, the trial court, Reynolds, J., sentenced the defendant to a term of not less than ten nor more than twenty years on the first count and not less than ten nor more than twenty years on the second count, to be served consecutively to the sentence on the first count, for a total effective sentence of not less than twenty years nor more than forty years. The trial court orally set forth the reasons for the sentence it imposed:
“I have read the presentence investigation. The testimоny, the evidence is fresh in my mind. I cannot overlook the fact that there were guns involved. I cannot overlook the fact that a bank is a public place, to which the public has the right and the privilege to go into it and to transact their business. I cannot overlook the physicаl location, the geographical location of the bank, in a busy commercial and industrial and residential area. I cannot overlook the area where the apprehension by the State Trooper took place; a car, loaded with four people, two guns in the car, a State Trooper heavily armed, had to draw his gun, the possibility of an exchange of gunfire, buses owned by the Greyhound Bus Company, the Trailways Bus Company, and all sorts of heavy vehicular traffic, trucks travelling at high rates of speed in the area; if one shot had bеen fired and went astray, killed a bus driver or a truck driver, travelling at a high rate of speed, it would have been a tragedy. I cannot overlook the fact that the conspirator was a 16-year old girl. Had there been a shot fired, had somebody been killed in the bank robbery, she would be facing a period of life imprisonment.
*474“The facts indicate that it’s a crime only short of murder in its severity, and in the opinion of the Court, it has to be dealt with with severity.”
The defendant promptly sought review of his sentence from the sentence review division of the Superior Court.2 On January 25, 1980, the reviеw division ordered a modification of the sentence so that the term on the second count would run concurrently with the term on the first count for a total effective sentence of not less than ten nor more than twenty years. The reasons for modification were stated as fоllows: “[Consecutive sentences are rarely appropriate and should be imposed only in exceptional cases where required for the protection of the public. See ABA Standards Relating to Sentencing, § 3.4. Even in such instances, separate sentences оf commitment imposed on a defendant for two or more crimes constituting a single criminal episode should normally run concurrently. Advisory Council of Judges of the National Council on Crime and Delinquency, Model Sentencing Act, § 22. Most authorities agree that
“This division has in the past expressed its disapproval of making a sentence for conspiracy to commit a crime run сonsecutive to a sentence for the commission of the crime itself. Such a sentence violates all of the accepted standards for sentencing and usually results in a sentence which is disproportionate, excessive and inappropriate. The nature оf the crimes involved and the past record of the petitioner may well have led the sentencing court to conclude that exceptionally lengthy incarceration was required for the protection of the public. However, a more appropriate аpproach to this problem would have been for the state to pursue the remedy provided by
On February 7,1980, the court, Ment, J., as required, resentenced the defendant in accordance with the decision of the sentence review division3 and over the objection of the state. See State v. Nardini, 187 Conn. 109, 127, 445 A.2d 304 (1982). The state then requested and received permission to аppeal4 the resentencing of the defendant.5
The state claims that the modification by the sentence review division was an abuse of discretion and there*476fore illegal. We agree not because of the actual result reached by the sentence review division but because of the method by which that result was reached.
“In 1956, in response to a major uprising at the State Prison at Wethersfield, Governor Ribicoff appointed a Prison Study Committee to investigate the reasons for the prisoner unrest and to propose legislation to remedy legitimate prisoner grievances. . . . Thе study committee found that the major complaint of prisoners was the inequitable distribution of penalties imposed on similar offenders for similar offenses and the unavailability of a practicable review of excessive sentences.” State v. Nardini, 187 Conn. 109, 118, 445 A.2d 304 (1982).
To reduce the disparity of penаlties imposed on similar offenders, in 1957 the legislature adopted sentence review legislation.
*477The record does not show that the review division applied any of the factors set forth in
It is proper for the sentence review division to articulate policies that inform its decisions. Indeed, the requirеment that the review division’s “reasons for such decision shall be stated”;
“The purpose and effect of the Sentence Review Act is to afford a convicted person a limited appeal for reconsideration of his sentence.” State v. Nardini, 187 Conn. 109, 121, 445 A.2d 304 (1982). While the sentence review division serves salutary objectives, it does not have unfettered discretion. Its review must be within the bounds prescribed by law. Thus, we must remand this case to the sentence review division for a determination of whether the sentences ordered initially by the trial court to be served consecutively on the two сounts “should be modified because [they are] inappropriate or disproportionate in the light of the nature of the offense, the character of the offender, the protection of the public interest, and the deterrent, rehabilitative, isolative, and denunciatory purposes for which the sentence[s] [were] intended.”
“The sentence review division is an arm of the Superior Court. When it issues a memorandum of decision ordering a modification of sentence such action is the operative judiсial act of the Superior Court. Jaquith *479v. Revson, 159 Conn. 427, 431, 270 A.2d 559 (1970); Grzys v. Connecticut Co., 123 Conn. 605, 607n., 198 A. 259(1938). . . . The trial court which imposes the modified sentence has no appellate authority and therefore is not authorized to review the action of the sentence review division. . . . Furthermore, because it is bound by the previous action; Maloney v. Pac, [183 Conn. 313, 439 A.2d 349 (1981)]; it laсks any independent discretionary authority to impose its own sentence. If the modified sentence is illegal in any respect the appropriate remedy for correcting such illegality is by appeal to this court; State v. Heyward, [152 Conn. 426, 207 A.2d 730 (1965)]; ... or by writ of habeas corpus. State v. Kyles, 169 Conn. 438, 443, 363 A.2d 97 (1975).” State v. Nardini, supra, 127-28. Although the trial court had no authority but to impose the sentence ordered by the sentence review division, the modification of sentence by the review division was an abuse of discretion and therefore illegal.
There is error, the judgment is set aside and the case is remanded to the sentence review division for further proceedings in accordance with this opinion.
In this opinion the other judges concurred.
Notes
The defendant’s convictions have been upheld by this court. State v. Johnson, 188 Conn. 515, 467 A.2d 1237 (1982).
The state аlso filed a writ of error because it was not clear at the time of the filing of the appeal whether the state had a right of appeal. On October 7, 1980, we granted the defendant’s motion to stay proceedings on the *476state’s writ of error. In State v. Nardini, 187 Conn. 109, 445 A.2d 304 (1982), we held that the state could appeal the resentencing judgment. In light of the resolution of this appeal, the state’s writ of error is moot. Cf. Wrinn v. Dunleavy, 186 Conn. 125, 131, 440 A.2d 261 (1982).