text:
    JULIO BURGOS-TORRES v. COMMISSIONER OF CORRECTION
    (AC 33685)
    DiPentima, C. J., and Sheldon and Flynn, Js.
    Argued January 17
    officially released May 14, 2013

      Mark M. Rembish, assigned counsel, for the appellant (petitioner).

      Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

SHELDON, J.

The petitioner, Julio Burgos-Torres, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal and that the denial of his petition for a writ of habeas corpus was improper because his trial counsel (1) was burdened by an actual conflict of interest and (2) failed to present an alibi defense. We dismiss the appeal.

The petitioner’s conviction was the subject of a direct appeal. See State v. Burgos-Torres, 114 Conn. App. 112, 968 A.2d 476, cert. denied, 293 Conn. 908, 978 A.2d 1111 (2009). In affirming the petitioner’s conviction, this court recited the following relevant facts: “The [petitioner] was upset that the victim, Jesus Gonzalez, had been selling drugs in the [petitioner’s] territory. A person whom the [petitioner] used as a runner for his drugs spoke with the victim, and the victim asked the runner to relay a vulgar insult to the [petitioner]. Angry over the insulting message from the victim, the [petitioner] demanded an apology, and he enlisted the assistance of Luis Gonzalez to contact the victim. After the

victim apologized to the [petitioner] via the telephone, the [petitioner] demanded a face-to-face apology. Luis Gonzalez, while in the company of [Michael A.] Munoz, picked up the victim, who was waiting outside the rear of Dorado’s Cafe in Waterbury, and drove him to Munoz’ home, which was nearby on Granite Street. After arriving at Munoz’ home, the victim telephoned the [petitioner] to tell him that he was at Munoz’ home if he wanted a face-to-face apology. The victim, Munoz and Luis Gonzalez waited outside for the [petitioner] to arrive. Munoz’ wife and children were in the backyard. The victim and the [petitioner] exchanged words, and the victim, again, apologized to the [petitioner]. The [petitioner] told the victim that the victim had been selling drugs in the [petitioner’s] territory, and the victim offered another apology. The exchange between the [petitioner] and the victim became more heated and some obscenities were exchanged. The victim told the [petitioner] that he had apologized and that there was nothing else he could do. The [petitioner] then pulled a gun from his waistband, pointed it at the victim’s chest and repeatedly shot him, before turning and running away. Munoz’ wife telephoned 911, and Munoz stayed with the victim until the police arrived. Both Luis Gonzalez and Munoz positively identified the [petitioner] as the murderer.

“The [petitioner] was arrested and charged with criminal possession of a firearm [in violation of General Statutes § 53a-217 (a) (1)] and murder [in violation of General Statutes § 53a-54a (a)]. After a trial, the jury found that on July 18, 2006, the [petitioner] criminally possessed a firearm and, with the intent to cause the death of another person, murdered the victim. After accepting the jury’s verdict, the court sentenced the [petitioner] to sixty years imprisonment on the murder conviction and five years, consecutive, for the criminal possession of a firearm conviction for a total effective sentence of sixty-five years incarceration.” Id., 114-16.

On April 7, 2011, the petitioner filed the operative amended habeas corpus petition alleging that his trial counsel, attorney Martin Minnella, provided ineffective assistance because (1) an actual conflict of interest existed between Minnella and Munoz that prevented the petitioner from receiving effective assistance of counsel; and (2) Minnella failed to call a witness to present an alibi defense demonstrating “that the petitioner was not at the scene of the crime at the time of the murder.” Following the habeas trial, the court, Schuman, J., denied the petition for a writ of habeas corpus and subsequently denied the petition for certification to appeal. This appeal followed. Additional facts and procedural history will be set forth as necessary.

On appeal, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal and that the court erroneously rejected his claims that he received ineffective assistance of trial counsel. We are not persuaded.

As an initial matter, we set forth the standard of review relevant to our resolution of this appeal. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason . . . [the] court could resolve the issues [in a different manner] . . . or . . . the questions are adequate to deserve encouragement to proceed further. . . . The required determination may be made on the basis of the record before the habeas court and applicable legal principles. . . .

“In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review the petitioner’s substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . . . adopted by this court for determining the propriety of the habeas court’s denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed.” (Internal quotation marks omitted.) Rosado v. Commissioner of Correction, 129 Conn. App. 368, 371-72, 20 A.3d 85, cert. denied, 302 Conn. 916, 27 A.3d 368 (2011).

“We examine the petitioner’s underlying claim[s] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . .

“In Strickland v. Washington, [466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction .... That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. . . . Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong.” (Citation omitted; internal quotation marks omitted.) Vazquez v. Commissioner of Correction, 128 Conn. App. 425, 429-30, 17 A.3d 1089, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011).

“To satisfy the performance prong [of the Strickland test] the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.” (Internal quotation marks omitted.) Boyd v. Commissioner of Correction, 130 Conn. App. 291, 294-95, 21 A.3d 969, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011). “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Internal quotation marks omitted.) Orellana v. Commissioner of Correction, 135 Conn. App. 90, 98, 41 A.3d 1088, cert. denied, 305 Conn. 913, 45 A.3d 97 (2012).

“With respect to the prejudice component of the Strickland test, the petitioner must demonstrate that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. ... It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings. . . . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) Vazquez v. Commissioner of Correction, supra, 128 Conn. App. 430.

Accordingly, in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal, we must consider the merits of the petitioner’s underlying claim that Minnella provided ineffective assistance. With the foregoing principles in mind, we now address the petitioner’s claims in turn.

I

The petitioner claims first that Minnella provided ineffective assistance because an actual conflict of interest existed between Minnella and Munoz. Specifically, the petitioner contends that because Minnella or, alternatively, assistant state’s attorney John Davenport, a past member of Minnella’s law firm, previously had represented Munoz, Minnella was burdened by an actual conflict of interest, which prevented him from effectively cross-examining Munoz at the petitioner’s probable cause hearing. According to the petitioner, Minnella “was ineffective for not disclosing [the conflict of interest] to him and withdrawing from the case prior to the probable cause hearing and certainly prior to the trial,” and these failures purportedly prejudiced him because “another attorney would have effectively cross-examined Munoz at the probable cause hearing and pursued the petitioner’s defense vigorously . . . .” We disagree.

“Our Supreme Court has established the proof requirements where a habeas corpus petitioner claims ineffective assistance of counsel because of a claimed conflict of interest. Where . . . the defendant claims that his counsel was burdened by an actual conflict of interest . . . the defendant need not establish actual prejudice. . . . Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. ... In a case of a claimed conflict of interest, therefore, in order to establish a violation of the sixth amendment the defendant has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer’s performance.” (Internal quotation marks omitted.) Day v. Commissioner of Correction, 118 Conn. App. 130, 136-37, 983 A.2d 869 (2009), cert. denied, 294 Conn. 930, 986 A.2d 1056 (2010).

“The [United States Court of Appeals for the Second Circuit] has honed this test further. Once a [petitioner] has established that there is an actual conflict, he must show that a lapse of representation . . . resulted from the conflict. ... To prove a lapse of representation, a [petitioner] must demonstrate that some plausible alternative defense strategy or tactic might have been pursued but was not and that the alternative defense was inherently in conflict with or not undertaken due to the attorney’s other loyalties or interests.” (Internal quotation marks omitted.) Santiago v. Commissioner of Correction, 87 Conn. App. 568, 584, 867 A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005).

“An actual conflict of interest is more than a theoretical conflict. The United States Supreme Court has cautioned that the possibility of conflict is insufficient to impugn a criminal conviction. ... A conflict is merely a potential conflict of interest if the interests of the defendant may place the attorney under inconsistent duties at some time in the future. ... To demonstrate an actual conflict of interest, the petitioner must be able to point to specific instances in the record which suggest impairment or compromise of his interests for the benefit of another party. ... A mere theoretical division of loyalties is not enough. ... If a petitioner fails to meet that standard, for example, where only a potential conflict of interest has been established, prejudice will not be presumed, and the familiar Strickland prongs will apply.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Anderson v. Commissioner of Correction, 127 Conn. App. 538, 660, 16 A.3d 668, cert. granted on other grounds, 301 Conn. 921, 22 A.3d 1280 (2011).

Regarding his claim that Minnella previously represented Munoz, the petitioner bases his ineffective assistance claim on the assertion that other testimony adduced before the habeas court and at the probable cause hearing contradicted Minnella’s testimony at the habeas trial.

“As an appellate court, we do not reevaluate the credibility of testimony, nor will we do so in this case. The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. ... In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous .... This court does not retry the case or evaluate the credibility of witnesses. Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Citation omitted; internal quotation marks omitted.) Corbett v. Commissioner of Correction, 133 Conn. App. 310, 316-17, 34 A.3d 1046 (2012).

At the habeas trial, Minnella testified, inter alia, that he previously had not represented Munoz. He further indicated that his office conducted conflict checks at the time of the petitioner’s criminal trial and again before the habeas trial. Minnella testified that on both occasions, the checks did not reveal that he had represented Munoz in any prior matter. In rejecting the petitioner’s ineffective assistance claim against Minnella, the habeas court specifically credited Minnella’s testimony as credible and found that, “[t]he petitioner’s claim thus lacks a factual basis.” The habeas court further found that “[t]he transcript of the hearing in probable cause, upon which the petitioner relies, reveals only that Munoz knew that Minnella was in practice with attorney Timothy [Moynahan], but does not clearly establish that Minnella actually represented Munoz in the past.” The following is an excerpt from the relevant portion of the transcript of the probable cause hearing:

“[Attorney Davenport]: And we talked about many things, including back when, years ago, Mr. Minnella was your lawyer?

“[Munoz]: I remember Mr. Minnella being with Moy-nahan, yes.

“[Attorney Davenport]: And you also remembered me being in that law firm, years ago?

“[Munoz]: Yes.”

It is clear, therefore, that as to the petitioner’s claim that Minnella previously had represented Munoz, the habeas court’s conclusion that no actual conflict existed was based upon a credibility determination, which we will not disturb on appeal. Corbett v. Commissioner of Correction, supra, 133 Conn. App. 316-17. On the basis of the record, we agree with the habeas court that the petitioner has failed to present evidence establishing that Minnella “actively represented conflicting interests . . . .” (Internal quotation marks omitted.) Anderson v. Commissioner of Correction, supra, 127 Conn. App. 649. As such, the petitioner has not demonstrated a violation of his right to counsel predicated on an actual conflict of interest.

The habeas court further rejected the petitioner’s claim that Davenport, as a past member of Minnella’s firm, previously had represented Munoz, resulting in an actual conflict of interest, which was imputed to Minnella as the petitioner’s attorney. The habeas court determined that the “petitioner does not even attempt to meet [the] fact-specific showing [required to demonstrate an actual conflict of interest].” The habeas court found that, “[t]he transcript reveals that [Minnella] thoroughly and vigorously cross-examined Munoz at the probable cause hearing and trial,” and further found that there is no evidence that Minnella’s performance was impaired or compromised as a result “of loyalty to Munoz as a putative former client of his firm.” Indeed, the habeas court noted that, “[d]uring summation, Min-nella described Munoz as an ‘admitted perjurer’ . . . .” We agree with the habeas court.

“We have had occasion to point out the caution from the United States Supreme Court that the possibility of conflict is insufficient to impugn a criminal conviction.” (Emphasis in original; internal quotation marks omitted.) Rodriguez v. Commissioner of Correction, 131 Conn. App. 336, 360, 27 A.3d 404 (2011), cert. granted on other grounds, 304 Conn. 911, 40 A.3d 318 (2012).

On appeal, the petitioner merely speculates as to the possibility that Minnella compromised the petitioner’s interests. He argues that Minnella did not fully and effectively cross-examine Munoz. Specifically, the petitioner claims that, “[i]t is likely that had attorney Min-nella done his due diligence in representing the petitioner effectively and spoken to Munoz prior to the [probable cause] hearing, he would have been in a position to realize there was a conflict. In addition, he would have been able to effectively cross-examine him at the probable cause hearing because he would have learned that Munoz gave a false statement to the police which falsely implicated the petitioner as being involved in the murder.” The petitioner has not pointed to a scintilla of evidence in the record to support his assertions or to indicate that Minnella did not adequately cross-examine Munoz. Because he has failed to offer any evidence in support of his claim, the petitioner has failed to undermine the habeas court’s factual finding that “Minnella thoroughly and vigorously cross-examined Munoz at the probable cause hearing and the trial.” Accordingly, the petitioner has failed to allege anything more than a mere theoretical division of loyalties, which is insufficient to demonstrate an actual conflict of interest. See Santiago v. Commissioner of Correction, supra, 87 Conn. App. 685.

II

The petitioner next claims that the habeas court erred in concluding that Minnella was not ineffective for failing to call Alberto Cruz, the petitioner’s friend who allegedly was with him at the time of the incident, as an alibi witness at trial. We are not persuaded.

“The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense. Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it. . . . [T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment . . . .” (Internal quotation marks omitted.) Robinson v. Commissioner of Correction, 129 Conn. App. 699, 703, 21 A.3d 901, cert. denied, 302 Conn. 921, 28 A.3d 342 (2011).

Concluding that “[tjhere is no basis for this claim of ineffective assistance of counsel,” the habeas court credited the testimony of Minnella at the habeas trial. Minnella testified that the petitioner never informed him that Cruz could provide a possible alibi defense and that he did not learn about Cruz until one week before the habeas trial. Minnella testified that, instead, prior to the criminal trial, the petitioner had told Min-nella that his girlfriend could provide him with an alibi defense. Minnella testified that an investigation, conducted before the criminal trial, revealed that on the night of the incident, the petitioner’s girlfriend had been working about twenty miles from the scene of the incident.

In contrast, the petitioner testified that he never told Minnella that he had been with his girlfriend at the time of the incident. The petitioner claimed that, before his criminal trial, he had informed Minnella “[a] hundred times” that he had been with Cruz for the entire day on which the victim was murdered and that Cruz had attempted to contact Minnella “[m]ore than ten times” to inform him that he could provide an alibi defense. Cruz, however, testified that he never attempted to contact Minnella to reveal that he was an alibi witness for the petitioner.

The habeas court found that the petitioner’s testimony at the habeas trial was “completely unworthy of belief.” The habeas court further found that the petitioner did not raise the issue of Minnella’s failure to call Cruz either in his motion to discharge Minnella, which he filed after the jury verdict, or in his original pro se habeas petition. Accordingly, concluded the habeas court, “the only logical explanation for all these circumstances is that the petitioner has manufactured his alibi defense for purposes of the habeas trial.”

“This court does not retry the case or evaluate the credibility of witnesses.” (Internal quotation marks omitted.) Corbett v. Commissioner of Correction, supra, 133 Conn. App. 317. On the basis of the testimony and evidence presented at the habeas trial, we conclude that the habeas court reasonably could have found that the petitioner did not inform Minnella that Cruz could provide an alibi defense. Accordingly, we agree with the habeas court that the petitioner failed to demonstrate that Minnella’s performance was deficient and further conclude that the petitioner’s claim fails under the first prong of Strickland.

On the basis of the foregoing, this court concludes that the petitioner has not demonstrated that any issue raised with regard to the court’s denial of his petition for a writ of habeas corpus is debatable among jurists of reason, that a court could resolve any such issue in a different manner or that any question raised deserves encouragement to proceed further. Having failed to satisfy any of these criteria, the petitioner cannot demonstrate that the court abused its discretion in denying the petition for certification to appeal. See Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

The appeal is dismissed.

In this opinion the other judges concurred.

       Although the petitioner also alleges that Minnella adversely was affected by his prior representation of Munoz because he failed to pursue a theory that Munoz was the shooter instead of the petitioner, he did not raise that claim in his amended petition or during the habeas trial. “We do not entertain claims not raised before the habeas court but raised for the first time on appeal.” Bertotti v. Commissioner of Correction, 136 Conn. App. 398, 404, 44 A.3d 892, cert. denied, 307 Conn. 901, 53 A.3d 217 (2012). Accordingly, in resolving the petitioner’s ineffective assistance of counsel claim regarding Minnella’s alleged conflict of interest, we confine our review to the question of whether Minnella’s cross-examination of Munoz was impaired or compromised.

       The following colloquy occurred between the counsel for the respondent, the commissioner of correction, and Minnella at the habeas trial:
      “[The Respondent’s Counsel]: [During the conflict checks] did the name Mike Munoz come up as a prior client of your firm?
      “[The Witness]: Not anybody that I represented or was involved with at all.”

       During closing arguments, the habeas court stated that, the petitioner failed to “either [allege] or brief that claim.” After the habeas trial, the court stated in its memorandum of decision that “[t]he court gave the parties one week ... to file supplemental briefs on the issue. The petitioner did not file a brief within that time period and still has not done so. As a result, the petitioner has not advanced any reason why he did not investigate this claim before trial.” In its written memorandum of decision, the court stated that “the petitioner’s motion to amend the petition is denied.” Because, however, the habeas court also considered the merits of the petitioner’s claim regarding Davenport, we will address the merits of that claim. Alexander v. Commissioner of Correction, 103 Conn. App. 629, 640, 930 A.2d 58 (our review on appeal limited to matters in record and issues decided by trial court), cert. denied, 284 Conn. 939, 937 A.2d 695 (2007).

       At the habeas trial, Cruz did testify, however, that he was with the petitioner at the time of the incident “drinking, talking and washing cars.”


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    CHARLES D. GIANETTI v. DAVID RUTKIN ET AL.
    (AC 34045)
    DiPentima, C. J., and Lavine and Beach, Js.

      Submitted on briefs November 30, 2012
    —officially released May 21, 2013

      David Rutkin filed a brief for the appellants (defendants).

      Charles D. Gianetti, pro se, the appellee (plaintiff), filed a brief.
   Opinion

BEACH, J.

This case raises the spectre of “balance billing,” a practice by which the health care provider seeks to recover from the patient the difference between the self-determined value of the provider’s services and the amount provided for in the contract between the provider and the health maintenance organization. Although balance billing generally has not been countenanced, in this case the physician had no contractual arrangement with the patient’s health insurer. Because of this distinction, we affirm the judgment of the trial court in favor of the health care provider.

The facts of this case, as found by the trial court, are as follows. On August 8, 1999, the plaintiff, Charles D. Gianetti, aplastic surgeon, treated the defendant, David Rutkin, in the emergency department at St. Vincent’s Medical Center (St. Vincent’s). Rutkin was insured by Physician Health Services (insurer), a managed health care plan. According to Rutkin’s testimony, St. Vincent’s was within the insurer’s network of providers. At the time Gianetti treated Rutkin, however, Gianetti had no contractual relationship with the insurer. Gianetti testified that he did not inform Rutkin at St. Vincent’s that he was not a participating provider. After his emergency treatment, Rutkin had two follow-up visits with Gia-netti, the first on August 13, 1999, and the second on March 7, 2000.

At the August 13, 1999 appointment, Rutkin completed a “New Patient Information” form provided by Gianetti. Rutkin filled out the form, providing his name, address, social security number, employer, spouse’s name and insurance information. Rutkin also signed and dated the following statement: “I hereby authorize Charles D. Gianetti, M.D. to furnish information to insurance carriers concerning my illness [and] treatments. I understand that I am responsible for the payment of all fees regardless of insurance. In the event that payment of such fees is not made by me, I will be responsible for any reasonable costs of collection, including attomey[’s] fees.”

Gianetti did not seek payment from Rutkin’s insurance carrier. At some point, Gianetti informed Rutkin that he was not a provider within the network of Rut-kin’s insurer. Accordingly, on or about January 24,2000, Gianetti sent a bill to Rutkin in the amount of $8785, which represented his fees for the emergency department treatment and the August, 1999 follow-up appointment. At Rutkin’s March, 2000 appointment with Gianetti, Rutkin was presented with a copy of that bill. Gianetti advised Rutkin to submit the bill to his insurer. The bill never was submitted to the insurer, and Rutkin received overdue bill notices from Gianetti in May and June, 2000; in July, 2000, Rutkin received a final bill notice.

Despite receiving these notices that the bill was delinquent, Rutkin did not submit a claim to his insurer or otherwise inquire as to whether his insurer would cover any of the services provided by Gianetti. Rutkin did request that Gianetti submit a claim to his insurer; Gia-netti did not do so.

Almost three years later, on or about May 28, 2003, Gianetti sent another copy of the January 24, 2000 bill to Rutkin; this bill also included a $160 charge for the March, 2000 visit. The total charges were thus $8945. Upon receiving the bill, Rutkin wrote a note on the bottom of it and sent it back to Gianetti. The note said: “I went to a hospital that accepted PHS Health Insurance. If you were not an approved PHS [d]octor why did they send you? That’s why we had health [insurance. This is not my problem, I’m sorry.”

On or about May 27, 2005, Gianetti commenced this action, alleging breach of contract and quantum meruit. Gianetti also alleged that Rutkin’s wife, Elizabeth Rut-kin, was jointly liable for the outstanding medical bills pursuant to General Statutes § 46b-37 (b). The Rutkins answered the complaint, denying the material allegations, and pleaded the special defense of estoppel to all counts. The Rutkins additionally alleged in a counterclaim that Gianetti had violated, inter alia, General Statutes §§ 20-7f (b) and 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA).

The case was tried to the court. The court concluded that Gianetti had proved both counts of his complaint. Regarding the first count, the court found that the “New Patient Information” form signed by Rutkin created a contract between Rutkin and Gianetti for the services provided at the two follow-up visits. Rutkin breached this contract by failing to pay, entitling Gianetti to $320 in damages. As to the second count, no express contract existed at the time that Gianetti provided emergency treatment to Rutkin at St. Vincent’s; however, the court found that Gianetti was entitled to compensation in the amount of $8625 under the doctrine of quantum meruit. The court also found that, pursuant to § 46b-37 (b), Elizabeth Rutkin was jointly liable for the costs of her husband’s medical care. The court then rejected the special defense of estoppel and both counterclaims. The court rendered judgment in favor of the plaintiff. This appeal followed. Additional facts will be set forth as necessary.

I

We first address the Rutkins’ claim that the court erred in holding that Gianetti was owed reasonable compensation under the doctrine of quantum meruit for services he provided to Rutkin in the St. Vincent’s emergency department. The Rutkins essentially argue that the application of quantum meruit was inequitable because, at the time of the initial—and most costly part of—treatment, Rutkin assumed that all of the health care providers at the hospital who treated him would be contractually related with his insurer. We disagree.

“Literally translated, the phrase quantum meruit means as much as he deserved. Quantum meruit is a liability on a contract implied by law. ... It is premised on the finding of an implied promise to pay the plaintiff as much as he reasonably deserves, and it is concerned with the amount of damages resulting from an implied promise by the defendant to pay.” (Citation omitted; internal quotation marks omitted.) Derr v. Moody, 6 Conn. Cir. Ct. 718, 721-22, 261 A.2d 290 (1969); see 42 C.J.S. 31, Implied Contracts § 26, p. 31 (2007) (“[t]o receive damages in quantum meruit, a party must show that valuable services were rendered or materials furnished to the person sought to be charged, which were accepted and used by such person, and under circumstances that would give reasonable notice that the provider expected payment”). “An implied contract would arise if the plaintiff rendered services, at the request of the defendant, under an expectation that they were to be paid for and if the defendant either intended to pay for them or the services were rendered under such circumstances that the defendant knew, or, as a reasonable person, should have known, that the plaintiff did expect payment.” Butler v. Solomon, 127 Conn. 613, 616, 18 A.2d 685 (1941). Put another way, “[t]he question in such a case is not whether the defendant in fact expected to pay for the services . . . .” (Emphasis added.) Id., 616.

“A determination of a quantum meruit claim requires a factual examination of the circumstances and of the conduct of the parties . . . that is not a task for an appellate court [but rather for the trier of fact]. . . . This court may reject a factual finding if it is clearly erroneous, in that as a matter of law it is unsupported by the record, incorrect, or otherwise mistaken.” (Internal quotation marks omitted.) Schreiber v. Connecticut Surgical Group, P.C., 96 Conn. App. 731, 737, 901 A.2d 1277 (2006).

The court’s findings were not clearly erroneous. The court found that Gianetti “performed services with the expectation that he was to be paid and [Rutkin] knew or should have known of this expectation. The fact that [Rutkin] anticipated that the payment would be made by his insurance carrier does not eliminate his liability under the doctrine of quantum meruit.”

The court reasonably concluded that a reasonable person in Rutkin’s circumstances ought to have known that medical services ordinarily are not provided gratuitously, and that he would be expected to pay for the services, either personally or through his insurance, depending on the network status of the health care providers who treated him at St. Vincent’s. The Rutkins fault Gianetti for not apprising them earlier that he was not in their insurer’s network and, therefore, that he would be seeking compensation directly from them. Whether Rutkin actually intended to pay for the services out of pocket, however, is not the point. Rather, the issue is whether Gianetti’s services were rendered under such circumstances that a reasonable person would have anticipated personal liability if the care was not covered by his insurance carrier. See Butler v. Solomon, supra, 127 Conn. 616; cf. 42 C.J.S., supra, § 27, p. 33 (“a court need not find that [the] defendant intended to compensate the plaintiff for the services rendered or that the plaintiff intended that the defendant be the party to make compensation”). Thus, the court’s finding, that both sides knew that services were rendered with an eye to payment, was not clearly erroneous.

II

We next address the Rutkins’ claim that the court erred by holding that § 20-7f (b) prohibits “balance billing” patients only for services rendered by in-network providers. The court reached this conclusion as to the statute’s scope by noting that § 20-7f (b) precludes a “health care provider [from] request[ing] payment from an enrollee, other than a copayment or deductible, for medical services covered under a managed care plan.” (Internal quotation marks omitted.) The court further observed that to “ ‘request payment’ ” is defined as, among other things, submitting a bill to an enrollee for services “ ‘not actually owed.’ ” This language, the court stated, leads to the conclusion that it is an unfair trade practice to request billing from an enrollee only when the provider is within the plan’s network. In those cases, the patient is not hable for any costs, except for copay-ments and deductibles; thus, the bill is “ ‘not actually owed’ ” by the enrollee. We agree with the court.

We must determine whether Gianetti’s direct billing of Rutkin was permissible under § 20-7f (b). Statutory construction is a “[question] of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case .... In seeking to determine that meaning, [we first consider] the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Cornelius v. Rosario, 138 Conn. App. 1, 8, 51 A.3d 1144, cert. denied, 307 Conn. 934, 56 A.3d 713 (2012).

Section 20-7f addresses balance billing. Typically, “[b]alance billing [occurs] when a provider seeks to collect from [a managed care organization] member the difference between the provider’s billed charges for a service and the amount the [managed care organization] paid on that claim.” See J. Hoadley et al., “Unexpected Charges: What States Are Doing About Balance Billing,” California Healthcare Foundation (April, 2009), p. 3, available at http://www.chcf.org/ ~/media/MEDIA%20LIBRARY%20Files/PDF/U/PDF%20 UnexpectedChargesStatesAndBaianceBilling.pdf (last visited May 8, 2013). Managed care organization members generally face balance billing only when treated by an out-of-network provider. Id., 4. This is because “most privately insured people are covered by [a managed care organization], which contracts with a network of providers to offer medical services to members. In return, providers agree to deliver services at a negotiated rate that is generally below their usual charges. Providers also agree to ‘hold harmless’ (i.e., not to balance bill) members for the difference between the contracted rate and their typical billed charge. This benefits providers by offering a steady flow of insured patients for whom they are paid promptly and directly by the [managed care organization].” Id., 3.

In Connecticut, balance billing is prohibited not only by the contracts between providers and insurers, but also by statute. See General Statutes § 20-7f. The question we must resolve is whether Connecticut’s statutory prohibitions on balance billing extend to health care providers that are “out-of-network.” We hold that they do not.

Pursuant to § 20-7f (b), it is “an unfair trade practice in violation of chapter 735a for any health care provider to request payment from an enrollee, other than a copayment or deductible, for medical services covered under a managed care plan.” “ ‘Request payment’ includes, but is not limited to, submitting a bill for services not actually owed or submitting for such services an invoice or other communication detailing the cost of the services that is not clearly marked with the phrase ‘This is not a bill.’ ” General Statutes § 20-7f (a) (1). Read in isolation, § 20-7f (b) plausibly could be interpreted as prohibiting a health care provider from requesting payment, other than a copayment or deductible, from any patient with health insurance, regardless of whether the provider is under contract with the patient’s insurer. Thus, we next consider the context provided by related statutes. See Cornelius v. Rosario, supra, 138 Conn. App. 8. As the court noted, § 20-7f was passed as a part of Public Acts 1998, No. 98-163. See Public Acts 1998, No. 98-163, § 1. Review of the other provisions of Public Act 98-163 is instructive in determining the scope of § 20-7f (b).

Section 2 of Public Act 98-163, codified in General Statutes (Rev. to 1999) § 38a-193 (c), delineated provisions that must be included in every contract “between a health care center and a participating provider . . . .” (Emphasis added.) Section 38a-193 (c) provides in relevant part that the contract between a health care center and a participating provider must contain language stating that it is an unfair trade practice “(3) . . . for any health care provider to request payment from an enrollee, other than a copayment or deductible, for covered medical services, or to report to a credit reporting agency an enrollee’s failure to pay a bill for medical services when a health care center has primary responsibility for payment of such services.” The fact that the balance billing prohibitions in § 20-7f (b) are necessary components of the contracts between insurers and participating providers suggests that § 20-7f (b) does not apply to out-of-network providers who are, by definition, not in contractual relationships with insurers.

Not only did Public Act 98-163 prohibit balance billing, it also attempted to address one of the root motivations for balance billing—slow payment of claims by health insurers. Section 3 of Public Act 98-163 addressed this problem by expressly setting forth time limits for the payment or reimbursement of health care providers and by imposing a penalty of 15 percent interest per year when timely payment is not made. See General Statutes (Rev. to 1999) § 38a-816 (15).

We hold, then, that § 20-7f (b) is unambiguous when read in its context. Although it is not necessary for the determination of the statute’s scope, legislative history reinforces our conclusion that the statute’s prohibitions apply only to health care providers in contractual relationships with the patient’s insurance carrier. When the bill was being debated in the Joint Standing Committee on Public Health, providers testified that they would send statements—not bills—to patients because their insurers were not promptly paying claims. See Conn. Joint Standing Committee Hearings, Public Health, Pt. 5, 1998 Sess., pp. 1585-86. Legislators expressed concern that these statements may have been confusing to patients, who assumed they were bills. The providers testified that the statements were sent in the hope that patients would contact their insurance carriers and inquire as to the why the providers had not yet been promptly compensated. See id. As one physician noted, “[i]f the HMOs would pay the proper amount in a timely fashion there would be no need [to send statements to patients].” Id., p. 1587.

The context provided by Public Act 98-163 thus demonstrates that § 20-7f (b) was intended to address balance billing by network providers. By requiring contracts between insurers and participating providers to prohibit balance billing of enrollees and providing for the prompt payment of claims, the act took steps to ensure that enrollees would not be billed for services that their insurers were contractually obligated to cover. It is also worth noting that, if § 20-7f were to apply to out-of-network providers, the statute does not address how providers and insurers would negotiate the appropriate fee to be paid to the provider for a particular service. This omission further demonstrates that § 20-7f (b) applies only to network providers, who contractually set their rates with the insurers with which they are affiliated.

The Rutkins’ claim also fails for a simpler reason. Section 20-7f (b) prohibits balance billing for medical services “covered under a managed care plan.” Here, neither party submitted the bill for payment by the Rutkins’ insurer, and the court found that evidence as to whether the insurer would have paid the bill, in whole or in part, was “wholly lacking.” Therefore, as a factual matter, the Rutkins failed to demonstrate that the services rendered by Gianetti were “covered” under then-health insurance plan, and there is no basis in the evidence, then, for determining whether the statute applies at all. In atypical balance billing case, the dispute arises after the insurance company has paid less than the full amount billed by the provider. See, e.g., Gianetti v. Siglinger, Superior Court, judicial district of Fairfield, Docket No. CV-98-0349830 (April 26, 2004) (36 Conn. L. Rptr. 869) (balance billing statute implicated where insurer paid $1980.80 and Gianetti claimed reasonable and customary fee for services was $6386), aff'd, 279 Conn. 130, 900 A.2d 620 (2006). Without a showing that some part of the medical services provided here were covered by the Rutkins’ insurance, they could not appropriately seek the protection of § 20-7f (b).

Ill

The Rutkins additionally claim that the court erred by rejecting their defense of estoppel. We begin by noting that the court’s ruling on this defense was premised on factual determinations. “[F]actuai determinations will not be overturned on appeal unless they are clearly erroneous. ... As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . Our review of factual determinations is limited to whether those findings are clearly erroneous. . . . We must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) Riscica v. Riscica, 101 Conn. App. 199, 204-205, 921 A.2d 633 (2007).

“There are two essential elements to an estoppel— the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done. . . . [Further] [i]t is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge.” (Citations omitted; internal quotation marks omitted.) Reinke v. Greenwich Hospital Assn., 175 Conn. 24, 28-29, 392 A.2d 966 (1978).

The Rutkins’ estoppel claim is that employees in Gia-netti’s office told RutMn that they would submit a claim for payment to their insurer, and, in reliance on these representations, the Rutkins did not themselves take any action with respect to the subject bill. The court found there was no representation from Gianetti’s office that it would submit the claim. The court observed that such a promise would have been inconsistent with the multiple bills sent to Rutkin, marked with escalating levels of urgency. The court found that the Rutkins had an obligation, and the means, to ascertain the truth regarding the status of the bill after receiving multiple notices clearly indicating that their insurer had not processed the claim. The court’s finding in this regard, therefore, is not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       See, e.g., Gianetti v. Blue Cross & Blue Shield of Connecticut, Inc., United States District Court, Docket No. 3:07cv01561 (PCD), 2008 WL 1994895 (D. Conn. May 6, 2008), aff'd, 351 Fed. Appx. 520 (2d Cir. 2009); Gianetti v. Siglinger, Superior Court, judicial district of Fairfield, Docket No. CV-98-0349830 (April 26, 2004) (36 Conn. L. Rptr. 869), aff'd, 279 Conn. 130, 900 A.2d 520 (2006); State v. Gianetti, Superior Court, judicial district of Fairfield, Docket No. CV-04-000594-S (January 11, 2005) (38 Conn. L. Rptr. 524).

       David Rutkin and his wife, Elizabeth Rutkin, are both defendants in this action and will be referred to collectively, where appropriate, as the Rutkins. For convenience, we refer to David Rutkin as Rutkin.

       Literature regarding balance billing states that it is not uncommon for patients to be treated by out-of-network physicians in a network hospital’s emergency department. See J. Hoadley et al., “Unexpected Charges: What States Are Doing About Balance Billing,” California Healthcare Foundation (April, 2009), p. 5, available at http://www.chcf.org/~-/media/MEDIA%20 LIBRARY%20Files/PDF/U/PDF%20UnexpectedChargesStatesAndBalance Billing.pdf (last visited May 8, 2013); see also J. Gold et al., “Reimbursement for Emergency and Non-Emergency Services Provided by Out-of-Network Physicians: The Issue of Balance Billing,” 8 ABA Health eSource (November, 2011), available at http://www.americanbar.org/content/newsletter/publica tions/aba_health_esource_home/aba_health_law_esource_l 11 l_gold.html (lastvisitedMay8,2013) (even in participating hospital, “[c]ertain emergency services, or indeed all professional services in the emergency department, may be provided by out-of-network, or non-participating physicians”). Some hospitals have addressed this issue by requiring hospital based physicians to contract with all the insurance carriers with which the hospital is affiliated. Others inform patients upon admission that some physicians may not be within the patient’s network and that the patient may be financially responsible for some services provided during their stay. See J. Gold et al., supra.

       The reasonableness of Gianetti’s fees was not contested by the Rutkms at trial or on appeal.

       It has been well documented that not all hospital based physicians participate in all of the insurance networks in which their hospitals participate. See, e.g., R. Rabin, “WELL; Out-of-Network Bills for In-NetworkHealth Care,” NewYorkTimes, November20,2012, available athttp:// query.nytimes.com/gst/fullpage.html?sec=health&res=9E07EED81438-F933A15752ClA9649D8B63&smid=pl-share (last visited May 8, 2013) (cautioning consumers that “[d]octors who don’t participate in your network may work at [an in-network hospital]”); A. Matthews, “Surprise Health Bills Make People See Red,” Wall Street Journal, December 4, 2008, available at http://online.wsj.com/article/SB122834911902477643.html (“[c]onsumers also may be billed after visiting in-network hospitals if they received treatment from medical providers who work there but don’t participate in the same health plans”) (last visited May 8, 2013).

       There was no evidence presented at trial as to whether Rutkin’s insurer would have paid for Gianetti’s emergency department services. Literature on balance billing states that some insurance companies have paid a percentage of emergency services provided by out-of-network providers. See W. Konrad, “Avoiding Surprise Bills With Homework and Negotiation,” New York Times, April 30, 2010, available at http://www.nytimes.com/2010/04/30/ health/0 lpatienthtml (last visited May 8, 2013); see also Gianetti v. Fortis Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV-03-0403193-S (March 29, 2007) (noting that Gianetti was not preferred provider within defendant’s insurance network, but insurer still paid reasonable and customary fee for services).

       In support of its construction of § 20-7f, the court also noted, parenthetically, that the statute was revised editorially in 2003, so that it no longer appeared to apply to physicians and surgeons. See Revisor’s note to General Statutes (Rev. to 2011) § 20-7f (“[i]n 2003 a reference in Subsec. [a] [2] to ‘chapters 370 to 373 . . .’ was changed editorially by the Revisors to ‘this chapter, chapters 371 to 373 . . .’ ”). In the 2013 General Statutes, the Revi-sors noted that the 2003 revision excluding chapter 370 was an error and, accordingly, restored the language in the statute, which made it applicable to physicians and surgeons, as originally drafted in Public Acts 1998, No. 98-163.

       Some states do prohibit or otherwise regulate balance billing even when medical care is provided by an out-of-network provider. See J. Hoadley et al., supra, p. 6. These protections vary from state to state. Id. In California, for example, the state’s Supreme Court has held that it is illegal to balance bill an HMO member who receives emergency treatment, regardless of whether the emergency medical provider has a contract with that patient’s HMO. See Prospect Medical Group v. Northridge Emergency Medical Group, 45 Cal. 4th 497, 502, 198 P.3d 86, 87 Cal. Rptr. 3d 299 (2009) (“[B]illing disputes over emergency medical care must be resolved solely between the emergency room doctors, who are entitled to a reasonable payment for their services, and the HMO, which is obligated to make that payment. A patient who is a member of an HMO may not be injected into the dispute.”).

       The cited passage from § 38a-193 (c) (3) reflects the current revision of the statute. The cited language was added to § 38a-193 (c) (3) by Public Acts 2007, No. 07-178, § 1. The substance of the statute, as established by Public Act 98-163—that balance billing must be prohibited in the contracts between insurers and participating providers—was not changed by this revision.

       To limit the amount a provider may charge for services, when such limitation has neither been agreed to by the provider nor clearly regulated by law, is problematic. Statutes ought to be construed to avoid constitutional issues, if possible. See Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991) (in construing statutes, court must presume that legislature “intended a reasonable, just and constitutional result”); but see State v. Courchesne, 262 Conn. 537, 561, 816 A.2d 562 (2003).

       One remark summarizing the intent of the bill is particularly illuminating: “So this [bill] would make it an unfair [trade] practice if [health care providers] . . . [b]ill people . . . for services which . . . are already contracted for by insurance companies to pay the full bill.” (Emphasis added.) 41 H.R. Proc., Pt. 9, 1998 Sess., p. 2806.

       Because of our determination that § 20-7f (b) does not prohibit an out-of-network health care provider from billing patients directly, the Rutkins’ claim that the court erred in rejecting its CUTPA must also fail. See Ancona v. Manafort Bros., Inc., 56 Conn. App. 701, 715, 746 A.2d 184 (noting absence of “any authority that would support [the] claim that the filing of a civil action with probable cause could form the basis of a violation of CUTPA”), cert. denied, 252 Conn. 953, 749 A.2d 1202 (2000).

       There was testimony at trial that the insurer required a claim to be submitted within one year of the service.

       The court also found unavailing a related estoppel claim based on the premise that billing the Rutkins was improper simply because Gianetti could have submitted a claim to their insurer but chose not to do so. The court stated that Gianetti testified that he did not believe, as an out-of-network provider, that he could submit a claim on a patient’s behalf to their insurer, and the Rutkins presented no evidence to refute this position. Even if Gianetti was mistaken, the Rutkins certainly possessed “convenient means of acquiring .. . knowledge”; (internal quotation marks omitted) Reinke v. Greenwich Hospital Assn., supra, 175 Conn. 29; as to whether it was possible for Gianetti to submit a claim.


author: BEAR, J.

text:
    STATE OF CONNECTICUT v. NUNO MIRANDA
    (AC 34285)
    Bear, Sheldon and Sullivan, Js.

      Argued January 10
    officially released May 21, 2013

      David V. DeRosa, for the appellant (defendant).

      Emily Graner Sexton, special deputy assistant state’s attorney, with whom, on the brief, were Kevin D.

      Lawlor, state’s attorney, and Marjorie L. Sozanski, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEAR, J.

The defendant, Nuno Miranda, pleaded guilty to one count each of strangulation in the second degree in violation of General Statutes § 53a-64bb and unlawful restraint in the first degree in violation of General Statutes § 53a-95, in connection with conduct he engaged in while in the apartment of the victim, his former girlfriend, on the morning of May 9, 2009. Thereafter, the trial court sentenced him on those charges to consecutive terms of four years of incarceration, suspended after two years, with three years of probation, for a total effective sentence of eight years of incarceration, suspended after four years, with three years of probation.

Almost two years after he was sentenced, the defendant filed a motion pursuant to Practice Book § 43-22 to correct what he then claimed for the first time to be an illegal sentence on the two convictions. The defendant’s motion was based on two related claims. First, he argued that his separate convictions of and sentences for strangulation in the second degree and unlawful restraint in the first degree violated the express terms of the strangulation statute, § 53a-64bb (b), which provides in relevant part: “No person shall be found guilty of strangulation in the second degree and unlawful restraint or assault upon the same incident, but such person may be charged and prosecuted for all three offenses upon the same information. For the purposes of this section, ‘unlawful restraint’ means a violation of section 53a-95 or 53a-96 . . . .” (Emphasis added.) He alleged that his challenged sentence was illegal because it was improperly imposed on separate convictions for strangulation and unlawful restraint arising from what he claimed to have been “the same incident.”

The defendant’s second argument is that, by imposing multiple punishments on him for criminal conduct for which state law allows only one conviction and sentence, the court placed him twice in jeopardy for this same offense, in violation of the fifth amendment to the United States constitution, as applied to the states by the due process clause of the fourteenth amendment.

The state opposed the defendant’s motion, arguing that in light of the factual basis on which the defendant pleaded guilty to the two charges at issue, each of his pleas and resulting sentences was lawfully based on a separate incident within the meaning of § 53a-64bb. The court agreed with the state and, thus, denied the defendant’s motion. This appeal followed.

The issues presented on appeal are those presented to the trial court on the motion to correct. For the following reasons, we affirm the judgment of the trial court.

The following facts, set forth by the prosecutor as the factual basis for the defendant’s pleas of guilty to strangulation in the second degree and unlawful restraint in the first degree, are relevant to the claims presented in this appeal. On May 9, 2009, the defendant arrived at the apartment of the victim at approximately 5:30 a.m., and he was visibly intoxicated. He fell asleep. At approximately 8:30 a.m., the victim tried to find the defendant’s cell phone so she could call one of his friends to provide him with a ride. Instead, she found the driver’s license of another woman in one of his pockets. After she asked him about the license, he yelled, pushed her and hit her in the face. The victim went into a bathroom in her apartment so that she could telephone the police, but the defendant followed her, smashed her phone and did not allow her to leave the bathroom. While she was being confined to the bathroom by the defendant, he sprayed the contents of an aerosol can toward her, and then he ignited the fumes. The victim, however, was not burned. After a period of time elapsed, the victim was able to leave the bathroom and to go to the kitchen in her apartment, where she used another phone to call her brother, who called the police. As the victim was speaking with her brother, the defendant broke several items in the apartment, and then he came into the kitchen, where he struck the victim with a chair. He then grabbed the victim by her throat, lifted her off the floor and began to choke her. The victim could not breathe and became unconscious. The police saw visible marks on her that were consistent with being forcibly choked.

I

The central question presented on this appeal is whether the previously stated facts describe conduct constituting strangulation in the second degree and unlawful restraint in the first degree arising from “the same incident,” within the meaning of § 53a-64bb (b). This, in turn, requires us to determine, as a threshold matter, the meaning of “the same incident,” which is an undefined statutory term.

We begin by setting forth our well settled standard of review regarding statutory interpretation. “Issues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . .

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Citation omitted; internal quotation marks omitted.) Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838, 847, 937 A.2d 39 (2008).

“[I]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.” (Internal quotation marks omitted.) State v. Sunrise Herbal Remedies, Inc., 296 Conn. 556, 568, 2 A.3d 843 (2010). “Where a statute does not define a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries.” (Internal quotation marks omitted.) Southington v. State Board of Labor Relations, 210 Conn. 549, 561, 556 A.2d 166 (1989).

The relevant text of § 53a-64bb, in which the term “the same incident” appears, is as follows: “(a) A person is guilty of strangulation in the second degree when such person restrains another person by the neck or throat with the intent to impede the ability of such other person to breathe or restrict blood circulation of such other person and such person impedes the ability of such other person to breathe or restricts blood circulation of such other person.

“(b) No person shall be found guilty of strangulation in the second degree and unlawful restraint or assault upon the same incident, but such person may be charged and prosecuted for all three offenses upon the same information. For the purposes of this section, ‘unlawful restraint’ means a violation of section 53a-95 or 53a-96 ....

“(c) Strangulation in the second degree is a class D felony.”

The manifest purpose of § 53a-64bb, so written, is to make an act of strangulation in the second degree, as defined in subsection (a) of the statute, separately punishable as a class D felony, whether that act, as committed in the circumstances of a given case, also supports a conviction for assault or unlawful restraint in any degree, or both, but not to enhance the punishment for that act beyond the five year maximum for a class D felony even if, as proven, it is also sufficient to constitute assault and/or unlawful restraint. By that logic, the same incident to which the statute refers is an incident of strangulation, necessarily involving restraint of another person by the neck or throat either with the intent to impede the ability of that person to breathe or to restrict the blood circulation of such other person and which, in fact, either impedes the ability of such other person to breathe or restricts his blood circulation, not an event or course of conduct in which an act of strangulation occurs, but is preceded, followed or even accompanied by other, separate acts of assault or unlawful restraint not based, in whole or in part, upon one or more acts of strangulation.

In this appeal, the question that must be answered in ruling on the defendant’s challenge to his sentence is whether the factual basis on which he entered his guilty pleas to strangulation in the second degree and unlawful restraint in the first degree demonstrated conduct by the defendant, wholly separate from his strangulation of the victim in her kitchen on May 9, 2009, that established his guilt of unlawful restraint in the first degree. If there is such conduct, then the defendant’s separate convictions and sentences in this case did not violate § 53a-64bb.

The state correctly argues here, as before the trial court, that the defendant’s conduct toward the victim in the bathroom of her apartment, before he strangled her in her kitchen, amply established his guilt of unlawful restraint in the first degree on a basis separate from his later act of strangulation. Under Connecticut law, a person is guilty of unlawful restraint in the first degree when “he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.” General Statutes § 53a-95. A person “restrains” another person, within the meaning of § 53a-96, when, inter alia, he “restrictfs] a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty ... by confining him ... in the place where the restriction commences . . . without consent. ...” General Statutes § 53a-91 (1). Here, of course, the defendant physically restrained the victim in the bathroom of her apartment, before strangling her in the kitchen, by forcing her to remain in the bathroom against her will and spraying the contents of an aerosol can toward her while igniting its fumes. By such conduct, the court properly found that he had exposed the victim to the risk of physical injury, defined for this purpose as pain or the impairment of physical condition, and thereby completed the offense of unlawful restraint in the first degree against her.

For the foregoing reasons, we conclude that the trial court did not impose an illegal sentence on the defendant by imposing on him consecutive sentences of four years of incarceration suspended after two years, with three years of probation. The convictions of strangulation in the second degree and unlawful restraint in the first degree did not arise from the same incident in violation of § 53a-64bb.

II

The defendant’s separate claim that the trial court violated his fifth and fourteenth amendment right not to be placed twice in jeopardy for the same offense is based, entirely and necessarily, on his claim that we rejected in part I of this opinion. Once it is determined that multiple convictions and sentences challenged on double jeopardy grounds are not, in fact, for the same offense, as the state has defined the offense in question, the federal constitutional inquiry under the double jeopardy clause is at an end. Here, then, because the defendant’s state law challenge to his multiple convictions and sentences has been rejected, so must his double jeopardy challenge to those convictions and sentences. Accordingly, we conclude that the trial court’s judgment must be affirmed.

The judgment is affirmed.

In this opinion the other judges concurred.

       In response to the defendant’s claims, the state argues, in part, that the court “lacked jurisdiction to consider the defendant’s motion to correct an illegal sentence as exceeding the relevant statutory maximum sentence allowed because the defendant impermissibly attacked his underlying convictions, rather than his sentence or sentencing proceeding, as is required for jurisdiction.” On appeal, however, the defendant claims, in part, that his sentence exceeded the statutory maximum allowed because he was sentenced consecutively for each conviction. The defendant’s claim, therefore, challenges his total sentence rather than his underlying conviction. Thus, we are not persuaded that the court lacked jurisdiction pursuant to Practice Book § 43-22. See State v. Brown, 133 Conn. App. 140, 147-48, 34 A.3d 1007, cert, granted, 304 Conn. 901, 37 A.3d 745 (2012).

       General Statutes (Rev. to 2009) § 53a-35a provides in relevant part: “For any felony committed on or after July 1,1981, the sentence of Imprisonment shall be a definite sentence and the term shall be fixed by the court as follows ... (8) for a class D felony, a term not less than one year nor more than five years . . . .”

       “In determining whether a defendant has been placed in double jeopardy under the multiple punishments prong, we apply a two step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.) State v. Alvaro F., 291 Conn. 1, 6, 966 A.2d 712, cert. denied, 558 U.S. 882, 130 S. Ct. 200, 175 L. Ed. 2d 140 (2009).