55 Conn. App. 28 | Conn. App. Ct. | 1999
Opinion,
The defendant, Lawrence James Thornton, appeals from the judgment of the trial court challenging the imposition as a condition of his probation, inter alia, certain monetary special conditions. The defendant claims that the trial court improperly included, as special conditions of probation, (1) a condition ordering him to pay a lump sum of $5000 into a fund “that will reimburse the victim for any deductible from a health insurance policy or [for] any treatment or counseling the victim may require” and (2) a condition that he pay $1000 per year for the first ten years of his probation into the same fund. The defendant claims further that (3) the terms directing him to make those payments rendered that portion of his sentence illegal. We agree and reverse the judgment of the trial court.
The following facts are relevant to the disposition of this appeal. On June 20, 1997, the defendant, who was known to the victim as a friend of her father, was with the victim’s father consuming numerous alcoholic beverages at a sports club. At approximately 10:30 p.m., the defendant returned with the victim’s father to the victim’s home where the men continued drinking. At some point, while the victim’s father was passed out in another part of the home, the defendant made his
When the defendant left the home, the victim and her sister, who had been asleep in the same room, got up and locked all the doors and windows of the house so that the defendant could not return. Unable to awaken their father to inform him of the incident, the victim reported it to her mother the next morning when she returned home.
On October 21, 1997, the defendant pleaded guilty to one count of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (2).
As a preliminary matter, we must determine whether the defendant’s claims as to these two special conditions of probation are reviewable.
“The court may in the interests of justice notice plain error not brought to the attention of the trial court.” (Internal quotation marks omitted.) HLO Land Ownership Associates Ltd. Partnership v. Hartford, supra, 248 Conn. 361. “[R]eview under the plain error doctrine
Here, the trial court improperly relied entirely on General Statutes § 53a-28 (c) for the authority to impose the special conditions of probation at issue. We find this to be plain error and will, therefore, review this claim accordingly.
It is well established that “[w]hen sentencing a defendant to probation, a trial court has broad discretion to impose conditions. State v. Smith, 207 Conn. 152, 167,
General Statutes § 53a-28 (c) provides that “[i]n addition to any sentence imposed pursuant to subsection (b) of this section, if a person is convicted of an offense that resulted in injury to another person or damage to or loss of property, the court shall order the offender to make financial restitution if it determines that financial restitution is appropriate. In determining whether financial restitution is appropriate, the court shall consider: (1) The financial resources of the offender and the burden restitution will place on other obligations of the offender; (2) the offender’s ability to pay based on instalments or other conditions; (3) the rehabilitative effect on the offender of the payment of restitution and the method of payment; and (4) other circumstances that the court determines makes restitution appropriate or inappropriate. Restitution ordered by the court pursuant to this subsection shall be based on easily ascertainable damages for injury or loss of property, actual expenses incurred for treatment for injury to persons and lost wages resulting from injury. Restitution shall not include reimbursement for damages for mental anguish, pain and suffering or other intangible losses, but may include the costs of counseling reasonably related to the offense.”
Here, the trial court required that the defendant pay moneys into a fund, but failed to make any findings with respect to actual expenses or anticipated out-of-pocket expenses for the victim’s medical, psychiatric, psychological or emotional care, treatment or counseling. While the trial court speculated in its articulation as to what it deemed “predictable long-term consequences” resulting from this terrible offense, we are not
The judgment is reversed and the case is remanded for resentencing with direction to delete the challenged special conditions of probation.
In this opinion the other judges concurred.
General Statutes (Rev. to 1997) § 53-21 provides in relevant part: “Any person who ... (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child, shall be guilty of a class C felony.”
In addition, the defendant filed a motion for articulation as to these special conditions of probation, which was granted by the trial court.
The defendant did not preserve tírese issues for appeal and has not requested, either in his brief or during oral argument, that we provide review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).