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STATE OF CONNECTICUT v. ANTHONY SINCHAK
(AC 42348)
Lavine, Elgo and Palmer, Js.*
Syllabus
The defendant, who had been convicted of murder and two counts of kidnap-
ping in the first degree, appealed to this court from the judgment of the
trial court denying his motion to correct an illegal sentence. The judge
who presided over the defendant’s probable cause hearing offered the
defendant a plea deal at a pretrial conference, proposing a thirty year
term of imprisonment if the defendant agreed to plead guilty to murder.
The defendant rejected the deal and it was withdrawn. A jury found the
defendant guilty of all charges and, at his sentencing hearing, the judge
who had presided over the trial imposed a sentence of sixty years of
imprisonment on the murder count and eighteen years on each of the
kidnapping counts, to run consecutively, for a total effective sentence
of ninety-six years of imprisonment. The defendant filed an application
with the sentence review division of the Superior Court, requesting a
reduction of his sentence, which he claimed was excessive. His request
was denied and the sentence was upheld. The defendant then filed a
motion to correct an illegal sentence, claiming that, by imposing a sen-
tence substantially longer than that which was proposed pretrial, the
sentencing judge was punishing the defendant for rejecting the plea
deal and, in doing so, violated the defendant’s constitutional right to
due process. Following a hearing, the trial court denied the defendant’s
motion and the defendant appealed to this court. Held that the trial court
properly denied the defendant’s motion to correct an illegal sentence
because the record did not contain any indication of vindictiveness on
behalf of the sentencing judge: the fact that the length of the sentence
imposed greatly exceeded the length of the sentence proposed prior to
trial did not give rise to an inference of vindictiveness when the record
was considered as a whole, including the defendant’s background, his
long and violent criminal history, and evidence that the defendant posed
such a grave danger to the community that he should spend the remain-
der of his life in prison; moreover, there were legitimate bases for
the disparity between the sentence proposed pretrial and the sentence
imposed posttrial, including that the trial provided the sentencing judge
with the opportunity to gain a greater appreciation of the evidence and
of the effect of the defendant’s actions on his victims and their families,
that a guilty plea would have shown evidence of the defendant’s willing-
ness to accept responsibility for his crimes, which is a mitigating factor
for sentencing, whereas his refusal to accept responsibility even after
his trial demonstrated a lack of remorse and dim prospects for rehabilita-
tion, and that the sentences were considered by two different judges,
with different sentencing philosophies and priorities, at different stages
of the case; furthermore, the sentencing judge was not required to
expressly disavow a vindictive or retaliatory motive for the sentencing
because the facts of the case did not give rise to a presumption of
vindictiveness.
Argued October 6, 2020—officially released June 22, 2021
Procedural History
Substitute information charging the defendant with
one count of the crime of murder and two counts of
the crime of kidnapping in the first degree, brought to
the Superior Court in the judicial district of Waterbury
and tried to the jury before Murray, J.; verdict and
judgment of guilty; thereafter, the court, Hon. Ronald
D. Fasano, judge trial referee, denied the defendant’s
motion to correct an illegal sentence, and the defendant
appealed to this court. Affirmed.
W. Theodore Koch III, assigned counsel, for the appel-
lant (defendant).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and John J. Davenport, senior assistant state’s
attorney, for the appellee (state).
Opinion
PALMER, J. The defendant, Anthony Sinchak,
appeals from the judgment of the trial court, Hon. Ron-
ald D. Fasano, judge trial referee, denying his motion
to correct an illegal sentence, which, he claims, was
imposed in violation of his right to due process guaran-
teed by the fourteenth amendment to the United States
constitution.1 The defendant contends that the trial
court improperly rejected his claim that the ninety-six
year prison sentence he received in 1995, after a jury
found him guilty of murder and kidnapping, was
imposed in retaliation for his refusal to forgo a trial
and accept a plea deal, offered at a judicial pretrial
conference by the judge who conducted the conference,
pursuant to which he would be sentenced to a term of
imprisonment of thirty years if he agreed to plead guilty
to the murder charge. We disagree with the defendant’s
claim and, accordingly, affirm the judgment of the
trial court.
The following undisputed facts and procedural his-
tory are relevant to our resolution of this appeal. On
August 4, 1992, the state charged the defendant with
one count of murder in violation of General Statutes
§ 53a-54a and two counts of kidnapping in the first
degree in violation of General Statutes § 53a-92 (a) (2)
(B); the defendant subsequently pleaded not guilty to
all three counts. On September 23, 1992, a probable
cause hearing was held on the murder charge, following
which the court, Kulawiz, J., made a finding of probable
cause to proceed on that charge. A judicial pretrial
conference was conducted on January 24, 1995, at
which Judge Kulawiz extended a plea offer to the defen-
dant of a sentence of thirty years of imprisonment in
exchange for his guilty plea to murder. The defendant
rejected the offer, however, and it was withdrawn. Sev-
eral days later, the case proceeded to a trial by jury,
Murray, J., presiding.
At trial, the state adduced evidence that, in the early
morning hours of July 27, 1992, the defendant was at
the Freight Street Social Club, an illegal after-hours
social club in Waterbury, when he shot and killed Kath-
leen Gianni, a bartender there, because he suspected
Gianni of being a police informant against several mem-
bers of the Helter Skelter Motorcycle Club, of which
the defendant was a member. In an effort to secure the
silence of two witnesses to the shooting, Jo Orlandi
and Laura Ryan, the defendant threatened and abducted
them at gunpoint and did not release them until the
next day. The defendant later disposed of Gianni’s body
and attempted to burn down the social club. On the
basis of that evidence, the jury found the defendant
guilty as charged, and Judge Murray rendered judgment
in accordance with the jury’s verdict.
The defendant’s sentencing hearing took place on
July 20, 1995. Before imposing sentence, Judge Murray
reviewed a five page written statement signed and sub-
mitted by the defendant that made three primary points:
(1) the defendant was innocent of the charges notwith-
standing the guilty verdicts; (2) the state’s case against
him was unreliable and based on knowingly false and
coerced testimony; and (3) a sentence greater than the
thirty years that, he asserted, he had been offered by
the state in return for pleading guilty to murder, would
constitute impermissible retaliation for exercising his
right to a trial.2
Judge Murray then heard remarks from the state as
well as from Gianni’s mother and daughter. On behalf
of the state, the prosecutor first made reference to the
presentence investigation report (PSI), explaining that
it conveyed ‘‘a sense of [the defendant as] a man who
possesses a most dangerous combination of character
traits . . . in that [he] appears to be set off with little
or no provocation . . . he appears obsessed with
weapons, and . . . he appears to repeatedly put him-
self above the law.’’ The PSI also revealed that the
defendant had compiled a lengthy criminal record over
more than two decades, which, the prosecutor
explained, consisted of a ‘‘variety of offenses primarily
involving weapons and assaultive, violent behavior,’’
some of which entailed ‘‘armed . . . attack[s] [against]
defenseless individuals,’’ including ‘‘complete strangers
. . . who simply had the misfortune of running into the
defendant on the street.’’ According to the prosecutor,
the defendant’s record ‘‘illustrates a . . . man [who is]
not a stranger to the court system. He has been given
the opportunity to straighten out his life time and time
again. He’s been fined a total of nine times. He has been
given probation five times. He has had a taste of jail
twice. All of those to no avail. The first step in rehabilita-
tion . . . is to admit your wrongdoing and accept
responsibility for your actions. To this day, the defen-
dant has not even taken that first step. . . . [H]is
refus[al] to do so in the face of the evidence against
him and the rarity of having two eyewitnesses [Orlandi
and Ryan] . . . relate [to the jury] the horrific details
of his crimes, illustrate[s] most clearly his continuing
refusal to acknowledge his antisocial behavior.’’
The prosecutor next spoke about the offenses of
which the defendant had been convicted, explaining
that they included the defendant’s ‘‘brutal ambush’’ of
Gianni, whom he shot multiple times. As the prosecutor
further explained, when the defendant learned, from
Gianni’s moaning, that the first shots had not killed her,
he walked closer to her, stood directly over her body,
and fired three more shots. At that point, realizing that
Orlandi and Ryan had witnessed the entire incident,
the defendant turned his gun on them and threatened
to kill them if they said anything about the shooting.
Although they tried to convince the defendant that they
would not do so, the defendant abducted and held them
and did not free them until the next day.
The prosecutor concluded his remarks by stating:
‘‘The defendant’s actions on that day speak of a total
disregard of human life. Not only for the life he took
but for the lives of [Gianni’s family] that were devas-
tated and the lives of the eyewitnesses who are now
permanently [scarred] by having to relive this murder-
ous nightmare forever. Jo Orlandi and Laura Ryan
related their ordeal at the trial and have made their
remarks in the PSI. Both indicated their positive belief
that they would be the next to be killed. And three
years later as we look at their lives they . . . both
have lives where they must continuously look over their
shoulders. . . .
‘‘Kathleen Gianni was a woman in the prime years
of her life. She was close to her family. She had friends
and she had every reason and every right to live out
all of the years to which she was entitled. At the time
of her death Miss Gianni had a seventeen year old
daughter, a daughter who testified at trial, a daughter
that has been left to forge into the world without her
mother’s advice, without her care and without her guid-
ing hand. Kathleen Gianni may never have realized what
she lost because of the defendant, but it’s her family
which lives that loss and suffers the consequences and
anguish every day.’’
Gianni’s mother and daughter next addressed the
court. They spoke lovingly of her and poignantly of
their unbearable loss, explaining how their lives and
the lives of other family members had been profoundly
and permanently affected by her shocking, senseless
and tragic death at the hands of the defendant. Both
women requested that the defendant be sentenced to
the maximum term of imprisonment of 110 years.
The prosecutor then spoke again briefly, underscor-
ing that the defendant’s ‘‘crimes could not be more
heinous or offensive to our judicial process’’ and
expressing the state’s view that a severe sentence was
warranted because, inter alia, the defendant had killed
Gianni for ‘‘speak[ing] up and cooperat[ing] against
criminal activity . . . .’’ The prosecutor further
informed Judge Murray that the state also was seeking
the imposition of the maximum possible sentence of
110 years. He stated that he hoped that such a sentence
would ‘‘bring some sense of peace for the family of
Kathleen Gianni, some sense of security for Jo Orlandi
and Laura Ryan and some protection for all of the peo-
ple who [comprise] the city of Waterbury.’’
Finally, the prosecutor stated with respect to the
statement that the defendant had submitted to the
court: ‘‘[T]he defendant refers to a plea agreement
which was offered to him by the state and that agree-
ment never occurred. It was never offered by the state.
That particular [thirty year] amount which is stated was
offered by one of the courts that was involved in plea
agreement negotiations and it is my belief that that is a
matter that should not be considered by the sentencing
court who’ll make his determination on the facts and
the evidence that were presented and not on the interest
in moving cases prior to their trial.’’
Judge Murray then asked the defendant if he wished
to address the court. The defendant declined, stating
only that, ‘‘I have nothing to say outside of what’s in
my statement there.’’ Judge Murray responded: ‘‘I’ve
read your statement and I understand what you say. I’ll
rely upon the body of evidence that I received and that
the jury has deemed credible in terms of rendering these
verdicts here against you.’’3
Before imposing sentence, Judge Murray made the
following statement: ‘‘Well then, Mr. Sinchak, it
becomes my awesome duty to impose sentence here
in the case involving the rendition of verdicts of murder
and kidnapping against you—kidnapping in the first
degree. The evidence presented during this trial, Mr.
Sinchak, persuaded the jury to find you guilty of mur-
der—[of] the murder of Kathleen Gianni and also kid-
napping—guilty of kidnapping in the first degree of Jo
Orlandi and Laura Ryan.
‘‘This court after having heard all the evidence pre-
sented is of the opinion that the killing of Kathleen
Gianni by you was a premeditated, heartless and cold-
blooded murder. Also, the kidnapping of Jo Orlandi and
Laura Ryan at gunpoint puts each of those two women
in real and substantial fear of losing their own lives
and, of course, denied them the opportunity to come
to the aid of the victim, Kathleen Gianni. The body of
evidence received by the court during this trial, the
presentence investigation reports submitted by the pro-
bation officer and your past record of convictions
reveals you, Mr. Sinchak, to this court to be a man given
to violence to solve your problems with others, with
little respect of the lives of other human beings. Based
on what has been presented to me at this time, this
body of evidence, I am reluctant but persuaded to say
that you should never again be a free man.’’ Judge Mur-
ray thereupon sentenced the defendant to consecutive
prison terms of sixty years on the murder count and
eighteen years on each of the kidnapping counts, for a
total effective sentence of ninety-six years of imprison-
ment.4
The defendant appealed and this court affirmed the
judgment of conviction. State v. Sinchak, 47 Conn. App.
134, 136, 703 A.2d 790 (1997), appeal dismissed, 247
Conn. 440, 721 A.2d 1193 (1999), cert. denied, 319 Conn.
926, 125 A.3d 201 (2015). Our Supreme Court granted
the defendant’s petition for certification; see State v.
Sinchak, 243 Conn. 964, 707 A.2d 1266 (1998), appeal
dismissed, 247 Conn. 440, 721 A.2d 1193 (1999);5 but
subsequently determined that the petition had been
improvidently granted and, accordingly, dismissed the
appeal. See State v. Sinchak, 247 Conn. 440, 442, 721
A.2d 1193 (1999) (per curiam).
The defendant thereafter filed an application with the
sentence review division of the Superior Court under
General Statutes § 51-195 seeking a reduction of his
sentence on the ground that it was excessive. The sen-
tence review division denied the defendant’s request,
however, and upheld his sentence. See State v. Sinchak,
Superior Court, judicial district of Waterbury, Docket
No. CR-92-207969 (November 23, 2004). In reaching its
decision, the sentence review division observed that
‘‘[t]he sentencing court was privy to the detailed,
explicit testimony of a gangland execution. All the facts
[and] surrounding circumstances leading up to this
offense were carefully considered by the sentencing
court. Moreover, the sentencing court was well aware
[that] the [defendant’s] criminal history dated back to
1973 and was replete with crimes of violence. The [sen-
tencing] court had no doubt [the defendant] would
never conform his behavior and sentenced him accord-
ingly. . . . The sentence imposed was neither inappro-
priate [n]or disproportionate.’’6 Id.
On August 18, 2017, the defendant filed a motion as
a self-represented party under Practice Book § 43-227
to correct his allegedly illegal sentence. He thereafter
was appointed counsel, who filed an amended motion
to correct, which the state opposed. In support of his
motion, the defendant filed a number of exhibits, includ-
ing the transcript of the July 20, 1995 sentencing hear-
ing, the PSI that had been prepared for purposes of that
sentencing, the written statement that the defendant
submitted to the court at the time of sentencing, a
transcript of the probable cause hearing conducted on
September 25, 1992, and the written decision of the
sentence review division dated November 23, 2004.
On September 14, 2018, the trial court8 heard argu-
ment on the defendant’s motion to correct.9 The defen-
dant asserted that the ninety-six year sentence imposed
by Judge Murray was ‘‘unconscionable’’ because it was
so much greater than the offer of thirty years that had
been made to him by Judge Kulawiz, who, the defendant
further maintained, understood the gravity of the defen-
dant’s offenses and was aware of his extensive criminal
history because she had conducted the defendant’s
probable cause hearing and had available to her a prior
PSI relating to the defendant.10 According to the defen-
dant, the ninety-six year prison term ‘‘amount[ed] to
vindictive sentencing to punish [him] not just for the
crime but for electing to exercise his state and federal
constitutional right to a jury trial and therefore is an
illegal sentence.’’ In response, the state, after underscor-
ing the fact that the defendant himself had alerted Judge
Murray of Judge Kulawiz’s offer, asserted that there
was nothing in the record to substantiate the defen-
dant’s claim that Judge Murray, in imposing a sentence
substantially longer than that offered by Judge Kulawiz,
was punishing the defendant for rejecting the proposed
plea deal.
Following the hearing, the trial court denied the
defendant’s motion in a memorandum of decision dated
September 24, 2018. That decision reads in its entirety
as follows:
‘‘By way of [his] amended motion to correct [an]
illegal sentence, [the defendant] claims that his sen-
tence of ninety-six years, imposed after convictions by
jury, was imposed vindictively and in an illegal manner,
since the presiding judge at pretrial had offered a sen-
tence of thirty years for a plea to one count of murder.
‘‘[The defendant] cites North Carolina v. Pearce, 395
U.S. 711 [89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969) (adopting
rebuttable presumption of judicial vindictiveness if
court imposes more severe sentence on defendant fol-
lowing retrial after defendant’s successful appeal from
conviction at original trial)] and Alabama v. Smith, 490
U.S. 794 [109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989) (Pearce
presumption of vindictiveness inapplicable to greater
sentence imposed after jury trial following successful
challenge to guilty plea; presumption applies only when
circumstances show reasonable likelihood that
increased sentence is product of actual vindictiveness)]
in support of [his] position that he was penalized for
exercising his federal and state constitutional right by
going to trial. Additionally, [the defendant] claims he
was, further, penalized when the state, for the purposes
of trial, added additional counts of kidnapping.11
‘‘Pearce and Smith involve situations where, follow-
ing successful appeals, [defendants] were retried and
convicted and resentenced to greater sentences than
they received when first convicted, without any change
in circumstances that would have warranted the more
severe sentences.
‘‘Here, [the defendant] had been offered a signifi-
cantly discounted pretrial number of thirty years to
serve for one count of murder by the presiding judge,
Kulawiz, J., in order to resolve the case and avoid
putting the families and victims through, what was sure
to be, a terrific ordeal at trial given the alleged factual
scenario.
‘‘[The defendant] rejected the offer and the state, as
is its right, added, prior to trial, other counts it believed
it could prove at trial. [The defendant] was convicted
of all counts. The sentencing court, Murray, J., set out
in detail the reasons for imposing its sentence of ninety-
six years; a sentence that comes as no surprise to any-
one who heard or read the trial testimony in this case.
Judge Murray was aware of the pretrial offer only
because it was brought to his attention by the [defen-
dant] himself. Clearly, it played no role in determining
the sentence imposed based on the court’s sentencing
remarks.
‘‘There is absolutely no evidence of vindictiveness
on the part of the sentencing judge nor is there support
for the proposition that the state was vindictive for
filing, pretrial, additional charges it could prove in prep-
aration for trial. Petition is denied.’’ (Footnote added.)
This appeal followed.
The defendant claims on appeal that the trial court
improperly rejected his contention regarding the consti-
tutional impropriety of the sentence imposed by Judge
Murray.12 In the defendant’s view, ‘‘the sheer magni-
tude’’ of that ninety-six year sentence ‘‘raises the infer-
ence that [it] was [imposed] vindictive[ly]’’ to punish
the defendant for refusing Judge Kulawiz’s offer and,
because Judge Murray ‘‘never explicitly disavowed a
retaliatory intent’’ in imposing that lengthy sentence,
he is entitled to a new sentencing hearing. The state
contends that the defendant’s claim is without merit
because the trial court correctly concluded that the
record contains no indication whatsoever of any such
vindictiveness on the part of Judge Murray. We agree
with the state.13
We begin by setting forth the applicable standard of
review. ‘‘[A] claim that the trial court improperly denied
a defendant’s motion to correct an illegal sentence [ordi-
narily] is reviewed pursuant to the abuse of discretion
standard. . . . In reviewing claims under [that] stan-
dard, we have stated that the ultimate issue is whether
the court could reasonably conclude as it did.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Mitchell, 195 Conn. App. 199, 206, 224 A.3d 564, cert.
denied, 334 Conn. 927, 225 A.3d 284 (2020). Thus, for
purposes of determining whether the trial court prop-
erly denied the motion to correct, ‘‘great weight is given
to the trial court’s decision and every reasonable pre-
sumption is given in favor of its correctness.’’ (Internal
quotation marks omitted.) State v. Anderson, 187 Conn.
App. 569, 584, 203 A.3d 683, cert. denied, 331 Conn. 922,
206 A.3d 764 (2019).
The principles governing claims of judicial vindic-
tiveness in sentencing are well established. ‘‘[A] trial
court possesses, within statutorily prescribed limits,
broad discretion in sentencing matters. On appeal, we
will disturb a trial court’s sentencing decision only if
that discretion clearly has been abused. . . . In exer-
cising its discretion, the trial court may appropriately
conduct an inquiry broad in scope, largely unlimited
either as to the kind of information [it] may consider, or
the source from which it may come. . . . A defendant’s
demeanor, criminal history, [PSI], prospect for rehabili-
tation and general lack of remorse for the crimes of
which he has been convicted are all factors that the
court may consider in fashioning an appropriate sen-
tence.’’ (Citations omitted; internal quotation marks
omitted.) State v. Angel M., Conn. , , A.3d.
(2020).
Nevertheless, ‘‘the trial court’s discretion in regard
to sentencing is not unfettered. . . . [A] [sentencing]
court generally is not prohibited from denying leniency
to a defendant who elects to exercise a statutory or
constitutional right. . . . Principles of due process,
however, forbid a court from retaliating against a defen-
dant by increasing his sentence merely because of the
exercise of such a right.’’ (Citations omitted.) Id., ;
see also State v. Revelo, 256 Conn. 494, 513, 775 A.2d
260 (‘‘[a]lthough a court may deny leniency to an
accused who . . . elects to exercise a statutory or con-
stitutional right, a court may not penalize an accused
for exercising such a right by increasing his or her
sentence solely because of that election’’), cert. denied,
534 U.S. 1052, 122 S. Ct. 639, 151 L. Ed. 2d 558 (2001);
State v. Kelly, 256 Conn. 23, 81, 770 A.2d 908 (2001)
(‘‘the [a]ugmentation of sentence based on a defen-
dant’s decision to stand on [his or her] right to put the
[state] to its proof rather than plead guilty is clearly
improper’’ (internal quotation marks omitted)).
Although the United States Supreme Court has identi-
fied a narrow category of cases in which a rebuttable
presumption of vindictiveness attaches when the court
imposes a greater sentence on the defendant following
his retrial after a successful appeal;14 see North Caro-
lina v. Pearce, supra, 395 U.S. 726; as a general rule,
the defendant bears the burden of demonstrating, on
the basis of the totality of the circumstances, that the
court increased his sentence as punishment for exercis-
ing his right to a trial. See, e.g., State v. Kelly, supra,
82. In other words, ordinarily, a defendant must prove
actual vindictiveness on the part of the sentencing
court. See Wasman v. United States, 468 U.S. 559, 569,
104 S. Ct. 3217, 82 L. Ed. 2d 424 (1984) (‘‘where the
presumption does not apply, the defendant must affirm-
atively prove actual vindictiveness’’). As the defendant
acknowledges, that is the burden that he shoulders in
the present case.15
The merits of the defendant’s claim can best be evalu-
ated by first identifying what he does not claim. He
does not contend that Judge Murray participated in
any plea discussions with the defendant, nor does he
maintain that the state played any role in alerting Judge
Murray to the terms of the plea deal that Judge Kulawiz
offered to him. Indeed, the defendant acknowledges
that he alone brought the proposed plea arrangement
to Judge Murray’s attention and that Judge Murray oth-
erwise would have had no knowledge of that proposal.16
Finally, the defendant does not maintain that the ninety-
six year sentence imposed by Judge Murray was exces-
sive as a matter of law, either on the ground that it was
impermissibly severe or because it was so much longer
than the sentence offered by Judge Kulawiz. His claim,
rather, is a much narrower one, namely, that the sen-
tence gives rise to an inference of vindictiveness that
could have been overcome only by an explicit statement
by Judge Murray at the time of sentencing that he was
not punishing the defendant for refusing the plea deal.
In other words, the defendant makes no claim that
Judge Murray’s sentence was improper in any way
except insofar as Judge Murray, having been made
aware of the plea offer tendered by Judge Kulawiz, did
not affirmatively state that he was not penalizing the
defendant for exercising his right to a trial.
With respect to the defendant’s underlying contention
that Judge Murray’s sentence gives rise to an inference
of vindictiveness, the defendant asserts that such an
inference is warranted by two considerations: first, the
severity of the sentence actually imposed as compared
to the sentence offered under the proposed plea agree-
ment and second, that, according to the defendant, ‘‘[n]o
material considerations that were available to [Judge
Murray] were not available to [Judge Kulawiz].’’
(Emphasis in original.) With respect to the defendant’s
further assertion that Judge Murray was required to
expressly disavow a vindictive or retaliatory motive,
the defendant argues that Judge Murray’s failure to
make such a statement leaves the inference of exces-
siveness unrebutted, thereby entitling him to a new
sentencing hearing.
The primary flaw in the defendant’s argument is that,
in light of the totality of the circumstances, there is no
valid reason to assign an improper motive to Judge
Murray due to the length of the sentence he imposed
relative to the length of the sentence offered by Judge
Kulawiz.17 There is no doubt that the sentence the defen-
dant received far exceeds the sentence proposed by
Judge Kulawiz. On the basis of the record as a whole,
however, that fact simply does not give rise to an infer-
ence of vindictiveness. Indeed, it appears quite clear
from the record that Judge Murray gave no consider-
ation to the thirty year offer extended by Judge Kulawiz
in imposing the sentence that he did. As we have
explained, after the defendant submitted his written
statement informing Judge Murray of that offer, the
prosecutor stated that the proposed plea bargain was
a matter ‘‘that should not be considered by’’ Judge Mur-
ray, who, the prosecutor further asserted, should ‘‘make
his determination on the facts and the evidence that
were presented . . . .’’ The defendant then declined
Judge Murray’s invitation to address the court, stating
that he had nothing to add to his written statement, to
which Judge Murray responded: ‘‘I’ve read your state-
ment and I understand what you say. I’ll rely upon the
body of evidence that I received and that the jury has
deemed credible in terms of rendering these verdicts
here against you.’’ That brief colloquy indicates quite
clearly that Judge Murray agreed with the state that the
plea deal offered by Judge Kulawiz had no bearing on
the appropriate sentence, which, consistent with the
position of the prosecutor, was to be based solely on
the relevant facts and the evidence.
This reading of the record is buttressed by Judge
Murray’s relatively brief sentencing remarks, in which
he characterized the murder of Gianni as ‘‘premedi-
tated, heartless and cold-blooded’’ and the ‘‘kidnap-
ping[s] of Jo Orlandi and Laura Ryan at gunpoint’’ as
having placed ‘‘those two women in real and substantial
fear of losing their own lives . . . .’’ Judge Murray then
explained that the sentence he was about to impose—
a sentence that, he stated, was designed to ensure that
the defendant would ‘‘never again be a free man’’
because he was ‘‘given to violence’’ and had ‘‘little
respect [for] the lives of other human beings’’—was
based on ‘‘[t]he body of evidence received by the court
during this trial, the presentence investigation reports
submitted by the probation officer and your past record
of convictions . . . .’’ There is not the slightest sugges-
tion in Judge Murray’s comments that he imposed his
sentence on the basis of anything but entirely proper
considerations, and it is apparent that the lengthy term
of imprisonment that he ultimately imposed was predi-
cated on his belief, reasonably founded on the evidence
and the defendant’s background, including the defen-
dant’s long and violent criminal history, that the defen-
dant posed such a grave danger to the community that
he should spend the remainder of his life in prison.18
It is true that Judge Kulawiz extended her plea offer
to the defendant after having presided over the defen-
dant’s probable cause hearing,19 and Judge Kulawiz also
had available to her a PSI prepared in connection with
certain other offenses that the defendant had commit-
ted some time prior to the offenses that are the subject
of this appeal. Under the circumstances, however, the
fact that Judge Kulawiz believed that a thirty year sen-
tence was appropriate for purposes of a plea bargain
has no bearing on the propriety of the sentence imposed
by Judge Murray following a trial. Because that trial
lasted approximately one month, and the probable
cause hearing was completed in just one day, Judge
Murray had the opportunity to gain a much fuller
appreciation of the defendant’s offenses than did Judge
Kulawiz, and the PSI reviewed by Judge Murray was
more recent and more comprehensive than the PSI that
was available to Judge Kulawiz. In addition, at trial,
Judge Murray heard extensive firsthand testimony from
both of the kidnapping victims and, at sentencing, he
learned about the impact of Gianni’s death from the
compelling in-court statements of her mother and
daughter, thereby enabling Judge Murray to gauge the
devastating effect of the defendant’s offenses on the
victims and their families. Furthermore, and signifi-
cantly, a plea of guilty to murder in accordance with
Judge Kulawiz’s offer would have evinced the defen-
dant’s willingness to accept responsibility for his hor-
rific crimes, an important mitigating factor for sentenc-
ing purposes, whereas his refusal to take any such
responsibility following his trial spoke of a complete
lack of remorse for those crimes and reflected adversely
on his already dim prospects for rehabilitation. Finally,
the fact that different judges, with different sentencing
philosophies and priorities, were involved at two
entirely different stages of the defendant’s case, pro-
vides further support for the conclusion that the propri-
ety of the ninety-six year sentence imposed by Judge
Murray after trial cannot be evaluated on the basis of
the thirty year offer made to the defendant by Judge
Kulawiz as part of a proposed plea bargain. These con-
siderations, when coupled with the defendant’s long
history of and propensity for violence, provided a legiti-
mate basis for the disparity in the sentence offered
by Judge Kulawiz and the sentence imposed by Judge
Murray. Put differently, these factors belie the defen-
dant’s claim that the disparity reasonably may be attrib-
uted to a vindictive motivation on the part of Judge
Murray.
The defendant relies on a number of cases from other
jurisdictions to support his claim that, even in the
absence of a presumption of vindictiveness, Judge Mur-
ray was required to explicitly disavow any such vindic-
tive or retaliatory motive. Those cases are inapposite
for several reasons, most significantly because in each
such case, the sentencing judge had been actively
involved in the plea discussions that took place before
trial and the record was devoid of any nonvindictive
reason why the sentence imposed by that same judge
following a trial was so much greater than the sentence
that had been offered and rejected. See United States
v. Stockwell, 472 F.2d 1186, 1187 (9th Cir.) (following
trial, court sentenced defendant to seven years of
imprisonment, having informed defendant prior to trial
that he would receive three year sentence if he pleaded
guilty but would receive sentence of between five and
seven years if he chose to stand trial; court violated
defendant’s right to due process by placing such burden
on his decision to stand trial), cert. denied, 411 U.S.
948, 93 S. Ct. 1924, 36 L. Ed. 2d 409 (1973); Longley v.
State, 902 So. 2d 925, 930 (Fla. App. 2005) (defendant’s
due process rights were violated when court initiated
plea negotiations and offered plea deal to defendant,
who rejected offer, and then, following trial, court
imposed sentence five times greater than pretrial offer
without placing reasons for harsher sentence on
record); Cambridge v. State, 884 So. 2d 535, 538 (Fla.
App. 2004) (after engaging in plea negotiations with
defendant and urging him to accept plea offer of time
served, court violated defendant’s right to due process
when, after defendant rejected proposed deal, court
imposed seven year sentence following trial with no
explanation of grounds for sentence); People v. Dennis,
28 Ill. App. 3d 74, 78, 328 N.E.2d 135 (1975) (inference
of constitutional violation was drawn when court partic-
ipated in pretrial conference at which defendant was
offered plea deal of not more than two to six years of
imprisonment and, after defendant rejected deal and
was convicted following trial, court sentenced defen-
dant to forty to eighty years of imprisonment, with
no explanation for harshness of sentence); People v.
Morton, 288 App. Div. 2d 557, 557–59, 734 N.Y.S.2d 249
(2001) (due process violation existed when, prior to
trial, court offered plea deal to defendant of indetermi-
nate term of imprisonment of two to four years in return
for guilty plea, which defendant rejected, and then,
upon defendant’s conviction after trial, court sentenced
defendant to indeterminate term of imprisonment of
twelve and one-half to twenty-five years, because
record contained nothing to justify substantial disparity
between pretrial offer and sentence actually imposed),
appeal denied, 97 N.Y.2d 758, 769 N.E.2d 365, 742
N.Y.S.2d 619, cert. denied, 537 U.S. 860, 123 S. Ct. 237,
154 L. Ed. 2d 99 (2002); People v. Patterson, 106 App.
Div. 2d 520, 521, 483 N.Y.S.2d 55 (1984) (record estab-
lished that, in imposing sentence, trial court impermissi-
bly increased defendant’s punishment solely for
asserting his right to trial). Under the facts of those
cases, a presumption or inference of vindictiveness was
appropriate; in the present case, by contrast, no such
presumption or inference is warranted in light of the
totality of the circumstances.20 Because the facts do not
give rise to an inference of vindictiveness, the defendant
had no right or reason to expect that Judge Murray
would, sua sponte, expressly disavow a vindictive or
retaliatory motive. Accordingly, we conclude that the
trial court properly denied the defendant’s motion to
correct an illegal sentence.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The fourteenth amendment to the United States constitution provides
in relevant part: ‘‘No State shall . . . deprive any person of life, liberty, or
property, without due process of law . . . .’’
2
The defendant’s assertion that the state had offered him the plea deal
was incorrect; rather, it was Judge Kulawiz who made that offer.
3
At no time did defense counsel address the court on behalf of the defen-
dant.
4
Judge Murray also sentenced the defendant for certain offenses unrelated
to the present case, in particular, one count of assault in the second degree
and three counts of reckless endangerment in the first degree. Those senten-
ces, which, in accordance with a plea agreement between the defendant
and the state, were imposed to run concurrently with the total effective
sentence of ninety-six years imposed in the present case, are not at issue
in this appeal.
5
The grant of certification by our Supreme Court was limited to two
issues unrelated to the issue raised by this appeal.
6
Commencing in 2000, the defendant also sought habeas corpus relief,
claiming, inter alia, that his sentence was unduly severe. Sinchak v. Warden,
Superior Court, judicial district of Tolland, Docket No. CV-XX-XXXXXXX-S
(June 29, 2007), appeal dismissed, Sinchak v. Commissioner of Correction,
126 Conn. App. 670, 14 A.3d 348, cert. denied, 301 Conn. 901, 17 A.3d 1045
(2011). The habeas court rejected the defendant’s contention, however,
on both procedural and substantive grounds. Id. Although the defendant
appealed from the judgment of the habeas court to the Appellate Court,
which rejected his claims; see Sinchak v. Commissioner of Correction, 126
Conn. App. 670, 671, 14 A.3d 348, cert. denied, 301 Conn. 901, 17 A.3d 1045
(2011); he did not challenge the habeas court’s decision with respect to his
claim concerning the excessiveness of his sentence.
7
Practice Book § 43-22 provides: ‘‘The judicial authority may at any time
correct an illegal sentence or other illegal disposition, or it may correct a
sentence imposed in an illegal manner or any other disposition made in an
illegal manner.’’
8
Unless otherwise noted or apparent from the context, all references
hereinafter to the trial court are to Judge Fasano.
9
Neither the defendant nor the state presented any testimony at the
hearing, relying, instead, on the exhibits submitted by the defendant in
connection with the motion to correct.
10
It appears that this earlier PSI was provided to Judge Kulawiz in connec-
tion with the offenses referred to in footnote 4 of this opinion.
11
Contrary to the suggestion of the memorandum of decision, the record
reflects that the state already had charged the defendant with kidnapping
when Judge Kulawiz tendered her plea offer to the defendant. Indeed, as
the state points out, the defendant acknowledged as much during argument
on the motion to correct. In any event, ‘‘[b]efore the commencement of
trial, a prosecutor has broad authority to amend an information under Prac-
tice Book § [36-17]’’; (internal quotation marks omitted) State v. Ayala, 324
Conn. 571, 585, 153 A.3d 588 (2017); and the defendant makes no claim on
appeal that the filing of the kidnapping charges by the state was vindictive
or otherwise improper.
12
The defendant’s claim of a due process violation is limited to the federal
constitution; he makes no claim under the due process provisions of the
state constitution.
13
The state also argues in the alternative that the defendant’s claim of
a vindictive sentence is barred by principles of res judicata because he
unsuccessfully raised a substantially similar claim both in the habeas court
and before the sentence review division. The record reveals, however, that
the state did not make that argument in the trial court and, as a result, the
trial court did not address it. Our determination that the defendant cannot
prevail on the merits of his claim makes it unnecessary for us to address
the state’s res judicata defense.
14
We note that when the presumption does apply, it may be overcome
by ‘‘objective information in the record justifying the increased sentence.’’
United States v. Goodwin, 457 U.S. 368, 374, 102 S. Ct. 2485, 73 L. Ed. 2d
74 (1982).
15
The defendant does not claim that he is entitled to a presumption of
vindictiveness under Pearce. His concession in this regard is well-founded
in view of the fact that the United States Supreme Court has ‘‘limited [the
application of the Pearce presumption] . . . to circumstances where its
objectives are thought most efficaciously served . . . . Such circumstances
are those in which there is a reasonable likelihood . . . that the increase in
sentence is the product of actual vindictiveness on the part of the sentencing
authority.’’ (Citations omitted; internal quotation marks omitted.) Alabama
v. Smith, supra, 490 U.S. 799. As the defendant recognizes, this is not such
a case.
16
In Connecticut, ‘‘[i]t is a common practice . . . for the presiding crimi-
nal judge to conduct plea negotiations with the parties. If plea discussions
ultimately do not result in a plea agreement, the trial of the case is assigned
to a second judge who was not involved in the plea discussions and who
is unaware of the terms of any plea bargain offered to the defendant. The
judge responsible for trying the case also is responsible for sentencing the
defendant in the event the defendant is convicted after trial.’’ (Emphasis
added.) State v. Revelo, supra, 256 Conn. 508 n.25. Our Supreme Court
repeatedly has recognized the propriety of this procedure, explaining that,
‘‘[a]s long as the defendant is free to reject the plea offer [made after
negotiations conducted by one judge] and go to trial before a [second] judge
who was not involved in or aware of those negotiations, [the defendant]
is not subject to any undue pressure to agree to the plea agreement, and
the impartiality of the judge who will sentence him in the event of conviction
after trial is not compromised.’’ (Emphasis added; internal quotation marks
omitted.) Id., 507–508. Thus, the rule prohibiting a sentencing judge from
learning about the substance of unsuccessful plea negotiations is designed
to protect the accused. In the present case, however, the defendant himself
affirmatively requested that Judge Murray consider Judge Kulawiz’s thirty
year offer, albeit in support of his appeal for leniency.
17
Although the defendant has disavowed any reliance on the presumption
of vindictiveness adopted in North Carolina v. Pearce, supra, 395 U.S. 726;
see footnote 15 of this opinion; it is difficult, as a practical matter, to
distinguish the inference of vindictiveness on which the defendant does rely
from the Pearce presumption of vindictiveness.
18
It bears emphasis that, despite the length of the sentence imposed by
Judge Murray, the sentence review division determined that that sentence
was neither inappropriate nor disproportionate in light of the nature of the
defendant’s offenses, the defendant’s extensive criminal record, and the
high likelihood that the defendant would reoffend if given the opportunity.
19
It is also true, however, that the probable cause hearing was held in
September, 1992, and the plea offer was not made until well over two years
later, in January, 1995.
20
We note that in State v. Coleman, 242 Conn. 523, 700 A.2d 14 (1997),
our Supreme Court considered ‘‘whether a defendant who has been sen-
tenced under the terms of a plea agreement but who later is permitted to
withdraw his guilty plea and allowed to proceed to trial is entitled, following
his conviction after trial, to an explanation from the trial court setting forth
its reasons for imposing a greater sentence than had been imposed under
the plea agreement.’’ Id., 525. Invoking its supervisory authority over the
administration of justice, the court concluded that, in those circumstances,
a trial court should provide such an explanation following a timely request
by the defendant. Id., 539. The defendant makes no claim under Coleman,
which, unlike the present case, involved a sentence imposed following the
withdrawal of a guilty plea. Id., 527. Even if Coleman were applicable,
however, the defendant would have been entitled to an explanation from
Judge Murray setting forth his reasons for imposing a greater sentence than
that offered by Judge Kulawiz only if the defendant had made a timely
request for such an explanation; see id., 539; which, of course, he did not do.