I agree with the majority in its conclusions as to the three issues raised by the defendant. I do not, however, agree with the reasoning of the majority which led it to conclude that the sentence imposed by the trial court was proper. It is my view, contrary to that of the majority, that a sentencing court may not consider, in its determination of an appropriate sentence for a defendant, the failure of a defendant to admit he is guilty of an element of a crime to which he has not pleaded guilty and with which he was not ultimately charged.
The defendant was originally charged with the offense of sexual assault in the first degree, in violation of General Statutes 53a-70, and with the offense of burglary in the first degree, in violation of General Statutes53a-101. Subsequently, the defendant pleaded guilty to a substitute information charging him with one count of sexual assault in the third degree in violation of General Statutes 53a-72a. General Statutes 53a-70(a) provides that "[a] person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse . . ." whereas General Statutes 53a-72a(a)(1) provides that "[a] person is guilty of sexual assault in the third degree when such person compels another person to submit to sexual contact . . . ." *Page 736
During the course of taking the defendant's guilty plea and during the course of the sentencing which immediately followed the acceptance of the guilty plea, the defendant refused to admit to the court that sexual intercourse had taken place. Counsel for the defendant, during the sentencing hearing, urged that the defendant receive a suspended sentence and probation, the condition of which was to be successful completion of a rehabilitative program. The trial court stated that there were two things "which pointed . . . in another direction." The first was the seriousness of the crime and the second was that the defendant had made no effort to rehabilitate himself by admitting that sexual intercourse had taken place. The court stated that "it is very difficult for me to accept the defendant's version that there was no sexual intercourse here."1
The defendant claims that the court erred in imposing a sentence based upon alleged criminal behavior which was not proscribed by the statute to which the defendant pleaded guilty. The majority of this court views this claim as being a complaint that the sentence was excessive. I disagree. The issue posed here is not whether the sentence was excessive but whether certain minimal due process standards attach to sentencing hearings which would preclude the sentencing court from considering, in its quest for an appropriate sentence, the fact that the defendant persisted in his claim of innocence as to an element of a crime to which he had not pleaded guilty and with which he was ultimately not charged.
Although an appellate court will not review the proper exercise of a trial court's discretion to fix a sentence which is within the statutory limits of the crime *Page 737 for which the defendant is being sentenced; State v. Nardini, 187 Conn. 109, 119, 445 A.2d 304 (1982); recent decisional trends cast doubt on whether that discretion is unfettered by any guarantee of due process. The case of Williams v. New York, 337 U.S. 241,69 S.Ct. 1079, 93 L.Ed. 1337 (1949), is the apex of the absolute no-due-process-at-sentencing rule since it approved the use of presentence reports by sentencing courts, regardless of whether such reports contained hearsay, and regardless of the opportunity of the defendant to rebut any such hearsay statements. In a more recent case, Gardner v. Florida, 430 U.S. 349,358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), the Supreme Court of the United States held that the sentencing process should satisfy some due process requirements in cases involving capital punishment. Legal scholars generally agree that the logic of Gardner should be extended to other types of cases and that certain basic due process principles should govern sentencing procedures. Nemerson, "Coercive Sentencing," 64 Minn. L. Rev. 669, 740-750 (1980); Fennell Hall, "Due Process at Sentencing; An Empirical and Legal Analysis of the Disclosure of Presentence Reports in Federal Courts," 93 Harv. L. Rev. 1615 (1980).
A sentencing hearing, following a guilty plea, is, to the particular defendant, the only really critical stage of the criminal proceedings. A total dichotomy should not exist between the due process procedures required of the state to prove a defendant guilty and the lack of any due process procedures at a sentencing hearing. It may be appropriate at sentencing for a trial judge to attempt to coerce statements from a defendant about the particular crime in order to gain additional information about it for law enforcement officials and to fix a higher sentence for defendants who do not provide such information than for those who do. United States v. Liddy, 397 F. Sup. 947, 951 (D.D.C. 1975); *Page 738 cf. United States v. Garcia, 544 F.2d 681, 682-83 (3d Cir. 1976). Furthermore, there is no impropriety in examining, for the purposes of sentencing, a wide range of information such as the circumstances of the offense, the attitude of the victim, and the criminal record, social history and present condition of the defendant. General Statutes 54-91a(c). I do not agree, however, that it is appropriate, during sentencing, to seek an admission of guilt of a crime of a higher degree of criminality than the crime for which the defendant is being sentenced, under the guise of testing the defendant's repentance or his potential for rehabilitation.
To force the admission of guilt, at a sentencing which follows a guilty plea, of a crime with which the defendant is not charged might jeopardize the defendant's rights in the future, either in connection with a retrial or with an independent trial claiming civil rights violations. See Haring v. Prosise, 462 U.S. 306,103 S.Ct. 2368, 76 L.Ed.2d 595, 603-604 (1983); United Brotherhood of Carpenters Joiners of America v. United States, 330 U.S. 395, 412, 675. Ct. 775,91 L.Ed. 973 (1947); United States v. Broome, 628 F.2d 403 404-405 (5th Cir. 1980).
A trial court should not consider, at sentencing, facts which underlie counts which were dismissed pursuant to a plea bargain. People v. Jones, 108 Cal.App.3d 9,16, 166 Cal.Rptr. 131 (1980). It should not make inquiry into whether the defendant intends to appeal the conviction since that inquiry gives rise to the inference that the severity of the sentence rests upon the defendant's response. Mahoney v. State, 13 Md. App. 105, 113,281 A.2d 421 (1971), cert. denied, 409 U.S. 978,93 S.Ct. 306, 34 L.Ed.2d 241 (1972). After a verdict of guilty, a defendant may continue to assert his innocence and should not be penalized for doing so at a sentencing hearing. United States v. Wright, 533 F.2d 214, 216 (5th Cir. 1976); People v. Costello, 95 Ill. App.3d 680, *Page 739 687, 420 N.E.2d 592 (1981). A defendant's assertions of innocence at his sentencing hearing, after a trial finding him guilty, should not result in a greater penalty, even if the sentencing court believes that he is lying about his innocence. Poteet v. Fauver, 517 F.2d 393,395 (3d Cir. 1975); United States v. Rodriquez, 498 F.2d 302,312-13 (5th Cir. 1974); Thomas v. United States,368 F.2d 941, 945-46 (5th Cir. 1966). A defendant may not be disadvantaged in the sentence rendered because of the trial court's disbelief in the defendant's answers to the court's questions regarding the defendant's failure to confess fully to other criminal behavior unrelated to the particular crime for which he is being sentenced. People v. Westfield, 71 Mich. App. 618, 625,248 N.W.2d 641 (1976).
The defendant in the present case should not have been asked to admit an element of a crime with which he was not charged. To do so was to exact a price from him for exercising his constitutional right to force the state to prove him guilty of sexual assault in the first degree. He chose not to plead guilty to that crime and the state chose not to proceed with a trial for that offense. When the state elected to file a substitute information charging him with the lesser offense of sexual assault in the third degree and he chose to plead guilty to the lesser offense, the trial court was then precluded from attempting, during sentencing, to obtain an admission of guilt of the greater crime. The failure of the defendant to admit that he had sexual intercourse with the victim does not necessarily indicate his reluctance to be restored to a crime-free life. It is equally indicative of his own belief in his own innocence of the crime of sexual assault in the first degree.
Although it is my opinion that the trial court should not have tainted its sentence with the inference that a persistence by the defendant that he was innocent of the crime with which he was originally charged would *Page 740 result in a heavier sentence, I find that the sentence should not be disturbed. The sentence, on the facts of this case, was warranted even without a belief of the trial court in the defendant's desire for rehabilitation. Mahoney v. State, supra; People v. Costello, supra.