The defendant appeals1 from a sentence imposed upon him after he pleaded guilty to sexual *Page 725 assault in the third degree in violation of General Statutes53a-72a.2 He raises three issues: (1) whether there was a factual basis for his plea of guilty; (2) whether a court can reconsider the sentence it imposed before that sentence is executed; and (3) whether the court imposed the sentence on the basis of alleged criminal behavior which was not proscribed by the statute to which he pleaded guilty.
The defendant was arrested on April 29, 1979, and charged with burglary in the first degree in violation of General Statutes 53a-101 and with sexual assault in the first degree in violation of General Statutes53a-70. In a bill of particulars, the state alleged that the defendant, while armed with a knife, had entered an apartment in New Milford with the intent to commit a sexual assault therein. Once inside he compelled the female occupant to engage in both vaginal and oral sexual intercourse by the use of force and threat of force against her person.
Plea bargaining did not initially result in a disposition of the case. On October 2, 1979, with the agreement of all parties, a presentence investigation and report was ordered. On February 26, 1980, counsel met in the trial judge's chambers at which time the case was set down for plea and sentence on February 28, 1980. The defendant's counsel submitted a detailed sentencing memorandum to the court urging a suspended *Page 726 sentence with successful compliance with a religiously affiliated program known as the "Lighthouse" program to be a special condition of probation.
On February 28, 1980, 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. The state made no recommendation regarding sentencing. The assistant state's attorney then recounted the facts of the offense. She stated that the defendant and the victim lived in the same apartment building. When the victim returned home from church, she was accosted by the defendant who was wearing a ski mask and a nylon stocking over his face. The defendant threatened her with a knife, made her undress, blindfolded her with her own dress and had sexual contact with her. These events went on for approximately thirty minutes. Upon further inquiry by the court, the assistant state's attorney stated that, if the case went to trial, the victim would testify that penetration had occurred. The assistant state's attorney also alluded to a statement made by the defendant in which he admitted that he fondled the victim's breasts and "performed oral-genital sex to a fair degree." This was in fact corroborated by the victim's statement. The assistant state's attorney indicated that the state would have difficulty proving penetration because no medical tests were performed on the victim, who had taken a bath immediately after the offense.
The defendant expressly admitted all of the facts of the offense as recited above except the part about vaginal intercourse. He admitted that he had fondled the victim, but claimed that he had had second thoughts and had stopped before intercourse occurred. The trial judge then accepted the defendant's plea, finding that there was an adequate factual basis. The judge stated that he had read both the presentence report and the sentencing memorandum prior to the plea. *Page 727
The sentencing took place immediately after the plea. The defendant spoke on his own behalf. Under questioning by the court, he again denied penetration but admitted that the victim had requested that he wear a condom and when she could not find one he permitted her to insert a diaphragm. The court indicated on two occasions that the defendant did not deny intercourse prior to the date of the sentencing.
At sentencing, the court emphasized the seriousness of the offense, even by the defendant's own account. It found strong evidence of premeditation and a strong inference of sexual intercourse. The court then stated that the defendant's denial of intercourse undercut a timely rehabilitative effort. The court then imposed a sentence of not less then two or more than four years.3 *Page 728
The defendant then moved for a hearing to reconsider the sentence claiming that the court had improperly considered the disputed evidence of whether *Page 729 vaginal sexual intercourse had occurred. The court denied the motion and ruled that it did not have the power to reconsider the sentence imposed and that even if it did have such power, it would not exercise it. *Page 730
The question of whether there was a factual basis for the plea is twofold: (1) that the definition of sexual contact in General Statutes 53a-65(3) requires that the other person be not married to the actor; and (2) that, under General Statutes 53a-67(b), it is an affirmative defense that the defendant and the alleged victim were living together by mutual consent in a relationship of cohabitation. Since no such affirmative defense was made by the defendant, we do not consider this prong of the question.
On appeal, the defendant now claims for the first time that there was no factual basis establishing that the parties were not married to each other.4 Practice Book 713 provides: "The judicial authority shall not accept a plea of guilty unless he is satisfied that there is a factual basis for the plea." Guilty pleas have been invalidated *Page 731 in those cases where the facts to which the defendant assented on the record failed to reveal all the elements of the crime charged. State v. Cutler,180 Conn. 702, 704-705, 433 A.2d 988 (1980); State v. Marra, 174 Conn. 338, 343-45, 387 A.2d 550 (1978); State v. Bugbee, 161 Conn. 531, 535, 290 A.2d 332 (1971).
In this case the state claims that there is on the record sufficient information from which to establish a factual basis for the guilty plea. Prior to the acceptance of the plea, the assistant state's attorney stated that "the victim of the crime and Mr. Huey and his family live in the same apartment building in New Milford, Connecticut." (Emphasis added.) The bill of particulars reveals that the victim and the defendant did not share the same surname.
Were this not sufficient, the court could rely on other sources of information available to it. The court stated in State v. Marra, supra, 346, that: "The fact that the record reveals inadequate factual support for either plea in no way suggests that further facts, properly submitted to a court or jury, could not support a conviction for the crimes charged. That question is not now before this court. The only issues decided concern the sufficiency of the facts before the court at the time the pleas were entered."
An evidentiary hearing is not required on a motion to withdraw a guilty plea "if the record of the plea proceeding and other information in the court file conclusively establishes that the motion is without merit. See Fontaine v. United States, 411 U.S. 213, 215,93 S.Ct. 1461, 36 L.Ed.2d 169 (1973)." (Emphasis added.) State v. Lasher, 190 Conn. 259, 265, 460 A.2d 970 (1983), quoting State v. Torres, 182 Conn. 176, 185,438 A.2d 46 (1980).5 *Page 732
The court had before it and read both the presentence report and the defendant's sentencing memorandum at the time of the plea. The defendant's sentencing memorandum, prepared by his counsel, specifically mentioned his wife and two children and stated that the defendant enjoyed a happy marriage. The memorandum stated that the same pastor assisted both the defendant and the victim and their respective spouses subsequent to the crime. There are numerous other references to the defendant's family in the memorandum.
Evidence known to the judge both from the record and from the file conclusively established the factual basis for the plea. The defendant's claim to the contrary is without merit.
II On May 15, 1980, the defendant moved for a hearing to reconsider the sentence which the court denied after a hearing on May 28, 1980.6
There is strong authority that the trial court had residual power to alter the indefinite sentence imposed upon the defendant. "[A] sentence in a criminal case may be modified at any time during the term of court at which it was imposed, if no act has been done in execution *Page 733 of it." State v. Nardini, 187 Conn. 109, 123,445 A.2d 304 (1982); State v. Pallotti, 119 Conn. 70, 74,174 A. 74 (1934). The record before us does not furnish any basis for determining what steps, if any, the defendant may have taken after sentencing that would negate this rule.
The defendant's sentence was stayed by taking the appeal. Practice Book 946; General Statutes 54-95. Practice Book 934 provides for reductions in definite sentences; 935 provides for the correction of an illegal sentence within 90 days. Neither section applies in this case since the sentence was indefinite and not illegal. We need not decide this issue, however, since the court's ruling, if erroneous, is harmless error since, as the court indicated, the claimed error could not possibly have changed its decision. See State v. Ruth,181 Conn. 187, 196-97, 435 A.2d 3 (1980).
III The defendant's claim that the court improperly considered evidence of the defendant's having penetrated the victim's vagina is essentially a claim that the sentence is excessive.
The trial court carefully considered the direct and inferential evidence as well the defendant's earlier statement to the effect that sexual intercourse did take place. In denying the defendant's request for a suspended sentence and conditional probation, the court quite properly considered the defendant's refusal to admit to penetrating the victim, in the face of what the court felt was strong evidence of sexual intercourse, as indicative of a lack of a rehabilitative effort on the part of the defendant.
In any event, it has long been the law in Connecticut that an appellate court will not review the proper exercise of the court's discretion in sentencing a defendant *Page 734 within the statutory limits for the offense charged.7 State v. Nardini, 187 Conn. 109, 119, 445 A.2d 304 (1982); State v. Williams, 173 Conn. 545, 558,378 A.2d 588 (1977).
The defendant claims, without citing authority in his brief, that the sentence was improper. A sentencing judge is not bound to a strict adherence to the rules of evidence which apply at a trial. The court exercises wide discretion in the sources and types of evidence which it may consider. Roberts v. United States,445 U.S. 552, 556, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980); Williams v. New York, 337 U.S. 241, 247,69 S.Ct. 1079, 93 L.Ed. 1337 (1949); State v. Harmon,147 Conn. 125, 128, 157 A.2d 594 (1960); State v. LaPorta,140 Conn. 610, 612, 102 A.2d 885 (1954); State v. Van Allen, 140 Conn. 39, 44, 97 A.2d 890 (1953); State v. Cuchelow, 128 Conn. 323, 324, 22 A.2d 780 (1941); see Williams v. Oklahoma, 358 U.S. 576, 585,79 S.Ct. 421, 3 L.Ed.2d 516, reh. denied, 359 U.S. 956,79 S.Ct. 737, 3 L.Ed.2d 763 (1959) (hearsay); United States v. Cijarelli, 401 F.2d 512, 514 (2d Cir.), cert. denied,393 U.S. 987, 89 S.Ct. 465, 21 L.Ed.2d 448 (1968) (evidence of other crimes for which defendant had been neither tried nor convicted.) Our statutes also recognize the wide range of information which the sentencing court should consider. General Statutes 54-91a (c) provides, in part, that a presentence investigation should consider the circumstances of the offense, the attitude of the victim, and the criminal record, social history, and present condition of the defendant. *Page 735
The defendant's claim that the sentence was excessive properly belongs before the sentence review division.8 See General Statutes 51-194 et seq. The defendant's claim that the sentence was improper is without merit.
There is no error.
In this opinion TESTO, J., concurred.