text:
    STATE OF CONNECTICUT v. MARK DEMAIO
    (AC 27596)
    Flynn, C. J., and Beach and McDonald, Js.
    Argued January 17
    officially released May 6, 2008

      John C. Drapp III, special public defender, with whom, on the brief, was Joseph A. Jaumann, special public defender, for the appellant (defendant).

      Nancy L. Chupak, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Donald S. MacCalmon, assistant state’s attorney, for the appellee (state).
   Opinion

MCDONALD, J.

The defendant, Mark DeMaio, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics in violation of General Statutes § 21a-279 (a) and possession of narcotics within 1500 feet of a school in violation of General Statutes § 21a-279 (d). On appeal, the defendant claims that the trial court improperly denied his motions to suppress evidence. We affirm the judgment of the trial court.

Before trial, the defendant moved to suppress statements and physical evidence obtained by the police after an investigative stop that occurred in East Haven on September 23, 2005. The defendant claimed that the police had stopped him without the requisite reasonable and articulable suspicion required by the federal and state constitutions and that the results of that stop should be suppressed.

The court conducted a hearing on the defendant’s motions, and the state presented testimony from Officers David Cari, Brian Kelly and Joseph Mulhem of the East Haven police department. These officers were involved in the events that occurred up to and including the investigatory stop. The defendant presented testimony from Robert Moss, an investigator from the public defender’s office.

At the conclusion of the hearing, the court found the following facts. On September 10, 2005, Cari, who had served for four years as a police officer and was trained in narcotics enforcement, arrested Paul DeMartino, a man whom Cari knew to be always truthful to him although DeMartino previously had never given Cari rehable information leading to an arrest. DeMartino informed Cari that he had purchased drugs numerous times from the defendant, a homeless man who peddled drugs. DeMartino informed Cari that the defendant was a drug courier for those coming to the Brick House Cafe and Michael’s Cafe in East Haven. DeMartino told Cari that after the defendant asked him if he wanted to purchase drugs, the defendant would get on his ten speed bicycle and ride to the Wagon Wheel bar, a location in New Haven known to the police for drug transactions. According to DeMartino, the defendant would purchase drugs at the Wagon Wheel bar and, after placing the drugs in his bandana or in a pocket, would pedal back to East Haven and deliver the drugs. Cari himself knew the defendant was reputed to be a drug user and courier, and had seen the defendant riding into New Haven on his bicycle and returning to the Brick House Cafe or Michael’s Cafe five or ten minutes later. Whenever Cari saw the defendant outside of these establishments, the defendant would run inside.

On September 23, 2005, at approximately 10:30 p.m., Carl was traveling westbound in a marked police car on Main Street in East Haven, when he observed the defendant leave the Brick House Cafe, mount his bicycle and ride westbound toward the New Haven town line. At this time, Cari requested unmarked vehicles to follow the defendant. Officers Mulhem and Kelly received information that the defendant was riding a bicycle westbound on Main Street toward New Haven, where it was suspected that he would purchase drugs to bring back into East Haven. Mulhem and Kelly were in an unmarked, older model Mercedes to conduct surveillance. Mulhem and Kelly followed the defendant across the East Haven town line into New Haven to the Wagon Wheel bar, and Mulhem parked the vehicle across the street facing away from the bar. Mulhem and Kelly had a clear and unobstructed view of the side of the building.

Upon arriving at the Wagon Wheel bar at approximately 10:30 p.m., the defendant dismounted his bicycle and leaned it against the building. From their vantage point, there was enough light for Mulhem and Kelly to observe the defendant “milling around” in front of the Wagon Wheel bar. As the defendant was standing in front of the bar, Mulhem witnessed a man approach the defendant and a “hand-to-hand transfer” took place, which did not resemble a handshake. Mulhem testified that he understood a hand-to-hand transaction to be consistent with a dmg or money transfer. The other man left, and the defendant got on his bicycle, which had been leaning against the side of the building, and waited. The defendant, who was below a second story window, looked up toward the window. As the defendant leaned against the building, this window opened, and an arm extended out of the window. The defendant then pedaled away. Officer Mulhem did not see anything drop but inferred that something had been dropped from the window.

After Kelly radioed other officers, Mulhem and Kelly, traveling approximately one quarter of a mile behind the defendant, followed the defendant toward East Haven, maintaining consistent radio contact with Cari. As Mulhem and Kelly were following the defendant, he turned into a gasoline station and the officers drove by. Mulhem and Kelly continued to drive toward East Haven. At this point, other East Haven police officers followed the defendant into East Haven. Mulhem and Kelly drove to Dodge Avenue in East Haven, where Mulhem parked the car and shut off the vehicle’s headlights while the officers waited for the defendant to reenter East Haven.

With East Haven police officers following him, the defendant turned left onto Burr Street and then turned onto Dodge Avenue. Kelly observed the defendant “erratically” riding “all over the road,” and Kelly believed that the defendant posed a danger to himself and to others. A short time later, the defendant was stopped. Cari and other police officers also arrived at the scene after Kelly ordered the defendant to put his bicycle on the ground. The defendant complied, and Cari asked the defendant if he had any weapons or needles. The defendant informed Cari that he had a knife in his left front pocket. He also stated that he had a used needle in his sock. As Cari reached into the defendant’s pocket to remove the knife, he felt a knife and what seemed to be, on the basis of his training and experience in narcotics enforcement, packaged narcotics in the form of a bundle of glassine envelopes wrapped with an elastic band. As Cari removed the knife and the bundle of glassine envelopes from the defendant’s pocket, the defendant commented, “you got me.” Field testing revealed that the envelopes contained cocaine, and the defendant was arrested.

The defendant moved to suppress his statement and the evidence seized following the investigatory stop that occurred on Dodge Avenue in East Haven on September 23, 2005, as the fruits of an illegal stop. After hearing oral argument, on January 26, 2006, the court, in an oral ruling, denied the motions to suppress. On the basis of the facts set forth previously, the court concluded that a reasonable and articulable suspicion existed to stop the defendant. Thereafter, the jury found the defendant guilty of both charges. The court sentenced the defendant to five years of incar ceration and two years of special parole. This appeal followed.

As an initial matter, we note that our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. As stated by our Supreme Court: “A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record. . . . [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court’s memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Pierre, 277 Conn. 42, 92, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006).

On appeal, the defendant claims that the court improperly concluded that the officers had a reasonable and articulable suspicion of criminal activity to justify the stop, as required by Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In support of his claim, the defendant argues that the court erroneously concluded that the informant was reliable and that the facts of record as found by the court do not establish that the police had a reasonable and articulable suspicion to stop him.

“Under the fourth amendment to the United States constitution ... a police officer may briefly detain an individual for investigative purposes if the officer has a reasonable and articulable suspicion that the individual has committed or is about to commit a crime.” (Internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 281, 764 A.2d 1251 (2001).

“ [I]n justifying [a] particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. . . . Terry v. Ohio, supra, 392 U.S. 21 .... In determining whether a detention is justified in a given case, a court must consider if, relying on the whole picture, the detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity.” (Citations omitted; internal quotation marks omitted.) State v. Santos, 267 Conn. 495, 505, 838 A.2d 981 (2004); see also Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). “In determining the constitutional validity of an investigatory stop, both the United States Supreme Court and our Supreme Court require a balancing of the nature of the intrusion on personal security against the importance of the government interest inducing that intrusion. United States v. Hensley, 469 U.S. 221, 228, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985); State v. Mitchell, 204 Conn. 187, 196-97, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987) (Citation omitted.) State v. Pierog, 33 Conn. App. 107, 111, 634 A.2d 301 (1993), cert. denied, 228 Conn. 920, 636 A.2d 851 (1994).

In the present case, the court based its finding regarding the existence of a reasonable and articulable suspicion on the observations of East Haven police officers and the information supplied to the police by DeMartino. Despite the tip’s corroboration by the police, the defendant first claims that the record does not support the court’s conclusion that the informant provided reliable information about the defendant’s alleged criminal activity. In particular, the defendant argues that because DeMartino was a first time informant, his reliability should be assessed as if he were an anonymous tipster. We disagree.

First, the informant in this case was not anonymous but rather was someone known to Cari and who had purchased narcotics from the defendant on multiple occasions. Accordingly, despite the defendant’s assertion to the contrary, when an informant is known by a police officer personally, a stronger case exists than one in which police officers receive an anonymous tip. See Adams v. Williams, 407 U.S. 143, 146-47, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); see also State v. Barton, 219 Conn. 529, 550-51, 594 A.2d 917 (1991) (when identity of informant known, inference of reliability arises because informant could expect adverse consequences if information provided was erroneous). The United States Supreme Court also has observed that “[p]eople do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions.” United States v. Harris, 403 U.S. 573, 583, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971).

Moreover, during their surveillance of the defendant, the officers independently observed behavior that reasonably was consistent with criminal activity corroborating the informant’s assertion. Our Supreme Court has concluded that “[p]olice efforts in verifying information provided by an informant may help . . . verify his or her reliability.” (Internal quotation marks omitted.) State v. Sulewski, 98 Conn. App. 762, 770, 912 A.2d 485 (2006) (information provided by first time informant reliable when police independently verified many allegations), quoting State v. Smith, 257 Conn. 216, 226, 777 A.2d 182 (2001), on appeal after remand, 94 Conn. App. 188, 891 A.2d 974, cert. denied, 278 Conn. 906, 897 A.2d 100 (2006). In the present case, the informant stated that the defendant, whom the police knew had a reputation as being a drug user and courier, would solicit orders for drugs at two East Haven establishments, Michael’s Cafe and the Brick House Cafe and, after receiving an order for drugs, would ride his ten speed bicycle directly to a known drug location in New Haven, the Wagon Wheel bar, would purchase narcotics at this location, would conceal these narcotics in his bandana or pocket and carry these narcotics back into East Haven. After conducting surveillance of the defendant, the officers were able to corroborate many of these details. Therefore, on the basis of the foregoing, we conclude that the court’s conclusion that the informant was reliable was proper.

The defendant next challenges the propriety of the court’s legal conclusion that the facts of record provided a particularized and objective basis giving rise to a reasonable and articulable suspicion for a Terry stop. The defendant argues that because the police did not act immediately on the information received from DeMartino and because such information related to a pattern of drug transactions undertaken by the defendant at unspecified times, the tip lacked sufficient specificity, as it did not pertain to “future actions . . . [that are] not easily predicted.” (Internal quotation marks omitted.) We disagree.

“Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. . . . Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors—quantity and quality—are considered in the ‘totality of the circumstances—the whole picture’ . . . that must be taken into account when evaluating whether there is reasonable suspicion.” (Citations omitted.) Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990).

“In cases in which a police stop is based on an informant’s tip, corroboration and reliability are important factors in the totality of the circumstances analysis.” State v. Torelli, 103 Conn. App. 646, 653, 931 A.2d 337 (2007). “[Ijnformants do not all fall into neat categories of known or anonymous. Instead, it is useful to think of known reliability and corroboration as a sliding scale. Where the informant is known from past practice to be reliable ... no corroboration will be required to support reasonable suspicion. Where the informant is completely anonymous ... a significant amount of corroboration will be required. However, when the informant is only partially known (i.e., [informant’s] identity and reliability are not verified, but neither is [informant] completely anonymous), a lesser degree of corroboration may be sufficient to establish a reasonable suspicion.” Id., quoting United States v. Elmore, 482 F.3d 172, 181 (2d Cir. 2007).

In this case, the informant’s tip identified the defendant, a suspected drug user and courier, and described the locations where he operated, that he would be using a bicycle to transport the drugs, the establishment that he would ride to for his purchases and the manner in which he transported the narcotics back to his customer. The informant was able to furnish the police with a pattern of the defendant’s behavior that the police could confirm to predict accurately the defendant’s future behavior, his bicycle trips between Michael’s Cafe or the Brick House Cafe in East Haven and the Wagon Wheel bar in New Haven. The officers also were aware that the Wagon Wheel bar was a location in which drugs were sold. Mulhem testified that after arriving at the Wagon Wheel bar, he observed the defendant engage in a hand-to-hand transfer with an unknown male. Shortly thereafter, he observed the defendant mount his bicycle and sit immediately below a second story window, at which point, the window opened and an arm extended out of the window. Mulhem testified that he could not see anything drop from the window; however, he observed the defendant pedaling away from the Wagon Wheel immediately after the window closed. After Mulhem witnessed these events, the police continued their surveillance, and, as predicted by the informant’s tip, the officers observed the defendant pedal his bicycle back toward the East Haven town line. Although the informant’s tip did not provide the precise timing of the defendant’s trip, many aspects of the tip were corroborated by East Haven police officers before they stopped the defendant. Accordingly, we disagree with the defendant’s contention that the tip merely furnished details regarding his innocuous bicycle riding habits. See State v. Days, 89 Conn. App. 789, 802, 875 A.2d 59 (“[t]he fact that an innocuous explanation for the conduct observed may have existed is of no consequence to our analysis when, as here, there was a reasonable basis for the police to suspect criminal activity”), cert. denied, 275 Conn. 909, 882 A.2d 677 (2005).

The police officers received predictive information as to the defendant’s peculiar routine, conducted surveillance to corroborate much of the informant’s tip and witnessed the defendant participate in a hand-to-hand transfer that occurred outside an establishment known for its drug related activity, conduct that the officers reasonably believed was consistent with a drug related transaction. We conclude that the officers had a particularized and objective basis for suspecting that the defendant had engaged in criminal activity and that the Terry stop in this case was justified by the totality of the circumstances surrounding the defendant’s detention.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that the court carefully considered the motions and delivered a thoughtful and correct oral decision. The court subsequently signed a transcript of its ruling in compliance with Practice Book § 64-1.

       The defendant also claims that there was a violation of his rights under article first, § 7, of the constitution of Connecticut. We review his claim only under the fourth amendment to the United States constitution because file defendant has failed to provide a separate and distinct analysis of his state constitutional claim. See State v. Joyce, 243 Conn. 282, 288 n.6, 705 A.2d 181 (1997), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674 (1998).

       Cari testified, and the court concluded, that “Cari had always found the informant ... to be truthful to him.”

       In the context of deciding whether probable cause exists to support the issuance of a warrant, this court has concluded that information obtained from a first time informant is not inherently unreliable. See State v. Toth, 29 Conn. App. 843, 853, 618 A.2d 536 (“[w]ere police unable to rely on information obtained from first time informants, they would be deprived of an important resource in their criminal investigations”), cert. denied, 225 Conn. 908, 621 A.2d 291 (1993).

       Citing United States v. Hensley, supra, 469 U.S. 234, for the proposition that “[a] brief stop and detention at the earliest opportunity after the suspicion arose is fully consistent with the principles of the [fjourth [ajmendment,” the defendant argues that the police could not have had a reasonable suspicion that he was engaged in criminal activity because “if the officers truly believed that the defendant had engaged in illegal narcotics transactions at the Wagon Wheel, the officers should have arrested the defendant at that time and not waited until he rode to another location.” Hensley is not undermined where, as here, police postpone their detention of the defendant by less than ten minutes to corroborate details set forth in an informant’s tip.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    TIMOTHY J. SOLEK v. COMMISSIONER OF CORRECTION
    (AC 27405)
    Bishop, McLachlan and Harper, Js.

      Argued January 10
    officially released May 6, 2008

      PaulR. Kraus, special public defender, for the appellant (petitioner).

      C. Robert Satti, Jr., senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

BISHOP, J.

The petitioner, Timothy J. Solek, appeals from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus. Following the dismissal, the court granted the petition for certification to appeal. On appeal, the petitioner claims that the court improperly (1) determined that he had abandoned the claims of the first count of his habeas petition and (2) concluded that he was not denied the effective assistance of trial and appellate counsel. We affirm the judgment of the habeas court.

The following undisputed facts and procedural history are relevant to our discussion of the petitioner’s appeal. On or about May 13, 1995, the petitioner and Scott Smith were arrested and charged with murder. Subsequently, an amended information was filed by the state, charging the petitioner with capital felony in violation of General Statutes § 53a-54b, felony murder in violation of General Statutes § 53a-54c, murder in violation of General Statutes § 53a-54a (a), sexual assault in the first degree in violation of General Statutes §§ 53a-70 (a) (1) and 53a-8, and sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (3). Following trial, the jury found the petitioner guilty of murder and sexual assault in the second degree and not guilty of capital felony, felony murder and sexual assault in the first degree. The court sentenced the petitioner to a total effective term of fifty-five years incarceration. During the petitioner’s criminal trial, he was represented by attorneys James J. Ruane and Michael Fitzpatrick, and by attorney Lisa J. Steele on appeal.

Smith, who was tried separately, was found guilty by a jury of murder, sexual assault in the first degree and sexual assault in the third degree. This court affirmed both the petitioner’s conviction; State v. Solek, 66 Conn. App. 72, 783 A.2d 1123 (2001); and Smith’s conviction. State v. Smith, 65 Conn. App. 126, 782 A.2d 175 (2001). The Supreme Court denied the petitioner’s request for certification to appeal. State v. Solek, 258 Conn. 941, 786 A.2d 428 (2001). The Supreme Court, however, granted Smith’s petition for certification to appeal and, thereafter, reversed his conviction, concluding that the trial court’s failure to instruct the jury on the lesser included offense of manslaughter in the first degree was improper. State v. Smith, 262 Conn. 453, 815 A.2d 1216 (2003). As a result of the Supreme Court’s reversal of Smith’s conviction, the petitioner’s appellate counsel filed a motion with that court for reconsideration of its denial of the petition for certification to appeal from this court’s affirmance of his conviction. That motion was denied on September 18, 2003.

The petitioner’s fourth amended petition for a writ of habeas corpus consists of three counts. In the first count, the petitioner alleged that his conviction should be set aside due to errors made by the trial court. The latter two counts alleged ineffective assistance of trial and appellate counsel. A habeas hearing was held in December, 2005, at which the petitioner, Ruane, Fitzpatrick and Steele testified before the court. The court dismissed all three counts of the petition on January 4,2006. A petition for certification to appeal was granted and this appeal followed.

I

The petitioner first claims that the court improperly concluded that he had abandoned the claims enumerated in the first count of his habeas petition. We disagree.

The following procedural history is relevant to our review of the petitioner’s claim. At the beginning of the habeas trial, counsel for the petitioner outlined to the court the bases for the petitioner’s claims in count one of his habeas petition. During direct examination of Steele by the respondent, the commissioner of correction, the court engaged in a colloquy with habeas counsel for the petitioner about the propriety of the court, on a habeas petition, resolving the petitioner’s claims regarding the actions of the trial court during the underlying criminal trial. After all the witnesses had been examined, counsel for the respondent indicated his readiness to continue directly to closing arguments. The court initially refused, stating: “No, you’re not, no. We have a broad range of claims here starting off with the first count, which is some kind of a standing in the air claim that the court is supposed to find that the petitioner’s due process rights were infringed upon. We’ve got—you’ve delivered to me hundreds and hundreds of pages of transcripts and excerpts and all things like that, and it’s not a case that you’re going to stand up here and give me a nice short argument and then I’m going to have to struggle through all those records to find out what is relevant to the claims you’re making.”

The following colloquy with habeas counsel for the petitioner then ensued:

“The Court: What about you, counsel? You represent the petitioner. You have the burden of proof here.
“[The Petitioner’s Counsel]: I would argue. I don’t think I would go more than ten minutes. It would take me ten to twelve minutes to argue and kind of focus in on what I think is important, so that would be my request.
“The Court: So, you’re content with just an argument as well?
“[The Petitioner’s Counsel]: Yes, Your Honor.
“The Court: And then what?
“[The Petitioner’s Counsel]: Then, I would assume you’d look through the evidence and come to a decision.
“The Court: Okay. If that’s what you want to do. Go ahead, [counsel]. Let’s do arguments then.”

Counsel for the petitioner proceeded with his closing argument, during which he did not address count one of his fourth amended petition. Subsequently, the court informed the petitioner’s counsel that if “you stand up here and argue and there aren’t going to be any briefs and you don’t argue some claim that’s in this petition, I’m going to deem it abandoned. You’ve got to make some argument here.” On rebuttal, counsel for the petitioner once again failed to address count one. Neither party submitted briefs to the habeas court.

Before addressing the petitioner’s claim, we identify our standard of review for habeas corpus proceedings. On appeal, “[t]he underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense.” (Citation omitted; internal quotation marks omitted.) Copas v. Commissioner of Correction, 234 Conn. 139, 152, 662 A.2d 718 (1995).

The parties are not in agreement regarding our standard of review of a habeas court’s finding that a claim has been abandoned. Because, however, the idea of abandonment involves both a factual finding by the trial court and a legal determination that an issue is no longer before the court, we will treat this claim as one of both law and fact. Accordingly, we will accord it plenary review. See Duperry v. Solnit, 261 Conn. 309, 335, 803 A.2d 287 (2002).

On the basis of our thorough review of the record, we conclude that the petitioner made no mention, let alone argument, in support of the claims set forth in the first count of the petition after the court had informed counsel that it would consider, as abandoned, any claims not urged on the court during final argument. Practice Book § 5-2 provides: “Any party intending to raise any question of law which may be the subject of an appeal must either state the question distinctly to the judicial authority in a written trial brief under Section 5-1 or state the question distinctly to the judicial authority on the record before such party’s closing argument and within sufficient time to give the opposing counsel an opportunity to discuss the question. If the party fails to do this, the judicial authority will be under no obligation to decide the question.”

The petitioner argues that there is evidence, admitted through various exhibits, that is probative of the claims in count one. We are unpersuaded. It is not the responsibility of the trial judge, without some specific request from a petitioner, to search a record, often, in a habeas case, involving hundreds of pages of transcript, in order to find some basis for relief for a petitioner. As our Supreme Court has stated: “[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned. . . . These same principles apply to claims raised in the trial court.” (Citation omitted; internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).

In the case at hand, the petitioner filed no brief in support of his claims; in argument, he made no reference to the claims set forth in the first count of his petition. His suggestion, at trial, that the court “look through the evidence and come to a decision” cannot reasonably be seen as an attempt to alert the court to the viability of the claims in his first count. The responsibility of a habeas court, in confronting an often voluminous trial court record, is to respond to those claims fairly advanced by the petitioner. The mere recital of those claims in a petition, without supporting oral or written argument, does not adequately place those claims before the court for its consideration. This is particularly true when counsel has been warned by the court, as in this instance, that it would consider abandoned any claims not advanced by counsel in closing argument. Because the petitioner did not argue any of the claims in his first count in any greater specificity other than to assert his entitlement to relief, we conclude that the court properly deemed them abandoned.

II

The petitioner next claims that the court improperly rejected his allegations of ineffective assistance of trial and appellate counsel. The petitioner claims that trial counsel was ineffective for failing to secure jury instructions as to the lesser included offense of manslaughter, and appellate counsel was ineffective for failing to secure a reversal of the judgment of conviction on this basis. The petitioner also claims that trial counsel was ineffective for failing to make argument to the jury on intoxication and that appellate counsel was ineffective for failing to secure a reversal of the judgment of conviction on this basis.

We first note that the standard of review for 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. Ricks v. Commissioner of Correction, 98 Conn. App. 497, 502, 909 A.2d 567 (2006), cert. denied, 281 Conn. 907, 916 A.2d 49 (2007). The sixth amendment to the United States constitution has long guaranteed the right to assistance of counsel in all criminal prosecutions. U.S. Const., amend. VI. The sixth amendment right to counsel is made applicable to state prosecutions through the due process clause of the fourteenth amendment. See Gideon v. Wainwright, 372 U.S. 335, 342, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). “It has long been recognized that the right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970).

“In Strickland v. Washington, [466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show 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 adversarial process that renders the result unreliable. . . .

“The first component, generally referred to as the performance prong, requires that the petitioner show that counsel’s representation fell below an objective standard of reasonableness. ... In Strickland, the United States Supreme Court held that [¡judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, 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. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Internal quotation marks omitted.) Kaddah v. Commissioner of Correction, 105 Conn. App. 430, 436-37, 939 A.2d 1185, cert. denied, 286 Conn. 903, 943 A.2d 1101 (2008).

In reviewing claims of ineffective assistance of appellate counsel, we apply the two part Strickland test; however, the proper focus in assessing the prejudice prong is the result of the trial, not the appeal. “To satisfy the prejudice prong, a petitioner must . . . establish that, as a result of appellate counsel’s deficient performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. Put another way, [the petitioner] must establish that, because of the failure of his appellate counsel to raise a [particular] claim, there is a reasonable probability that [the petitioner] remains burdened by an unreliable determination of his guilt. ... In order to prevail on a claim of ineffective assistance of appellate counsel, therefore, a habeas petitioner must show not only that his appeal would have been sustained but for counsel’s deficient performance, but also that there is a reasonable probability that the trial verdict would have been different.” (Citation omitted.) Vivo v. Commissioner of Correction, 90 Conn. App. 167, 173, 876 A.2d 1216, cert. denied, 275 Conn. 925, 883 A.2d 1253 (2005).

A

The petitioner claims that trial counsel was ineffective for failing to secure jury instructions as to the lesser included offense of manslaughter and that appellate counsel was ineffective for failing to secure a reversal of the judgment of conviction on this basis. The petitioner argues that trial and appellate counsel were ineffective because they failed to argue from the full record of evidence in support of this charge. We disagree.

The following additional procedural history relates to the petitioner’s claim. Prior to charging the jury, trial counsel submitted a request to charge on the lesser included offenses of manslaughter in the first degree and manslaughter in the second degree. Trial counsel then argued the request to the court. The court denied the request because, in the court’s opinion, “manslaughter just doesn’t fit, based on the testimony, the facts of this case.”

On direct appeal to this court, the petitioner’s appellate counsel argued that the court should have given the requested charge. This court disagreed. This court applied the four factors of State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), to the petitioner’s claim that the trial court abused its discretion in failing to charge the jury on the lesser included offense of manslaughter. Although this court concluded that the request to charge did not comply with Practice Book § 42-18, as it was too general and made only a “bald assertion” that the evidence supported the requested charge, this court determined, nevertheless, that the petitioner’s request, even if it had been adequately specific, would not have satisfied the third and fourth Whistnant factors. State v. Solek, supra, 66 Conn. App. 82-83. This court concluded that even if the petitioner’s claim had satisfied the first Whistnant factor, it would nevertheless fail because the evidence was insufficient to justify a finding of guilt for the lesser included offense of manslaughter. Id., 83.

Upon affirmance by this court of the petitioner’s conviction on direct appeal, one of the issues appellate counsel raised in the petition for certification to our Supreme Court was the requested manslaughter charge. That petition was denied. When Smith’s case was reversed by our Supreme Court on the ground that the trial court failed to charge the jury on manslaughter, appellate counsel filed a motion for reconsideration of the denial of the petition for certification. It was also denied.

The petitioner argues that trial and appellate counsel were ineffective because they did not make reference to the full record in their respective arguments at trial and on appeal in regard to the lesser charge of manslaughter. The petitioner refers to the trial evidence that there was no forced entry, as well as testimony from a neighbor that initially the victim, Smith and the petitioner were having a good time. The petitioner argues that had trial counsel appropriately marshaled this evidence in support of his request for a manslaughter charge, the court likely would have acceded to his request. We are unpersuaded.

Whatever this evidence may have suggested as to the mood of Smith, the petitioner and the victim earlier on in the evening, it would not provide a basis for determining that the petitioner lacked the intent to kill later in the evening. In fact, after a thorough review of the entire record, we conclude, as this court did in the petitioner’s direct appeal, that the evidence was insufficient to support a charge of manslaughter. Furthermore, the petitioner did not offer any expert testimony by which to determine whether counsel’s performance deviated from the acceptable standards of criminal defense counsel. As the evidence in the record was insufficient to entitle the petitioner to a charge of manslaughter, the petitioner was not prejudiced by the form of counsel’s request to charge, nor was appellate counsel deficient in her presentation of this issue on appeal.

B

The petitioner also claims that trial counsel was ineffective for failing to secure the opportunity to argue a defense of intoxication to the jury and that appellate counsel was ineffective for failing to secure a reversal of the judgment of conviction on that basis. This argument is not supported by the facts.

The record of the petitioner’s criminal trial reveals that at the close of evidence, the court declined to charge on the intoxication defense. After the petitioner’s trial counsel finished closing argument, however, the court announced, sua sponte, that it would provide the intoxication instruction. In response, the state requested and was granted the opportunity to address the issue of intoxication. Trial counsel also had the opportunity to make this request but did not. As Ruane explained in his testimony during the habeas trial, he specifically declined to pursue argument on intoxication as a matter of trial strategy because he believed it was not the petitioner’s strongest argument, that it would open the door for a rebuttal by the state and that it would “leave the case in the jury’s hands and the last thing they hear from the parties is a stronger argument by the state.” Ruane explained that his primary objective was to obtain an acquittal on the charge of sexual assault in the first degree and, thereby, to save the petitioner’s life.

The petitioner relies on State v. Arline, 223 Conn. 52, 612 A.2d 755 (1992), for the proposition that trial counsel’s failure to request argument was a violation of his constitutional right to effective assistance of counsel. In Arline, our Supreme Court held that the court’s limitation of a central argument in the defendant’s final argument improperly encroached on the defendant’s right to effective assistance of counsel. Id., 64-65. The petitioner’s reliance on Arline is misplaced, however, because in the case at hand, trial counsel had the opportunity to argue the issue of intoxication. Counsel testified at the habeas hearing that he declined this opportunity for strategic reasons. “[T]he [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Internal quotation marks omitted.) Strickland v. Washington, supra, 466U.S. 689. As the habeas court credited Ruane’s testimony that the decision not to argue intoxication was a matter of trial strategy, the petitioner failed to demonstrate that counsel’s actions were unreasonable.

Steele testified at the habeas trial that she did not believe that Arline was relevant to the petitioner’s case, as the trial court did not prevent trial counsel from making an argument on intoxication and that her strategy on appeal was to emphasize her strongest issues. Although she acknowledged that the intoxication claim was not frivolous, she also stated her belief that it was not one of the petitioner’s strongest arguments. We have stated that “[e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible . . . .” (Internal quotation marks omitted.) Vivo v. Commissioner of Correction, supra, 90 Conn. App. 172. We find no fault with appellate counsel’s decision to present, on appeal, only those issues she considered to be the strongest. Additionally, the habeas court had an adequate evidentiary basis from which to conclude that trial counsel’s failure to argue the issue of intoxication was a matter of trial strategy. We conclude, therefore, that the petitioner failed to demonstrate that trial and appellate counsel’s actions in regard to seeming argument on intoxication were unreasonable.

The judgment is affirmed.

In this opinion the other judges concurred.

       In his first count, the petitioner claimed that the trial court violated his right to due process by failing to charge the jury on manslaughter in the first and second degrees and violated his rights to due process and to counsel by failing to allow him to argue his defense of intoxication to the jury, improperly commenting on the court’s lack of interest in his case in front of the jury, chastising defense counsel during a cross-examination in front of the jury, chastising defense counsel for his closing argument in front of the jury and improperly commenting on the defendant’s use of a learned treatise for impeachment purposes.
      Two of these claims, use of a learned treatise and failure to charge the jury on manslaughter, were raised unsuccessfully by the petitioner on direct appeal to this court. See State v. Solek, supra, 66 Conn. App. 80-90. As a result, the respondent, the commissioner of correction, argued to the habeas court and to this court that the petitioner is collaterally estopped from raising these two issues again. The petitioner counters that collateral estoppel is an affirmative defense that the respondent failed to raise in her reply and ihat she is, therefore, barred from raising it now. As we resolve this count on different grounds, we need not reach the issue of whether these two claims are barred by collateral estoppel.

       Both parties argued at the habeas trial and in their appellate briefs whether the claims in count one were subject to procedural default. Typically, in a habeas case, the respondent replies to the petition with the affirmative defense of procedural default to all claims that could have been raised through a direct appeal, and subsequently, the petitioner sets forth claims in avoidance of procedural default. “The appropriate standard for reviewability of habeas claims that were not properly raised at trial . . . or on direct appeal . . . because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition. . . . [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance . . . .” (Citations omitted; internal quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001). In this case, however, because we conclude that the claims were abandoned, we do not reach the issue of procedural default.

       The four-pronged Whistnant test for whether a court failed to charge on a lesser included offense provides: “A defendant is entitled to an instruction on a lesser offense if, and only if ... (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, supra, 179 Conn. 588; see also State v. Greene, 274 Conn. 134, 155-56, 874 A2d 750 (2005), cert. denied, 548 U.S. 926, 126 S. Ct. 2981, 165 L. Ed. 2d 988 (2006).

       Practice Book § 42-18 (a) provides: “When there are several requests, they shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply. Bequests to charge should not exceed fifteen in number unless, for good cause shown, the judicial authority permits the filing of an additional number. If the request is granted, the judicial authority shall apply the proposition of law to the facts of the case.”

       After the state’s request to argue was granted, Ruane did not request argument but, rather, asked that the court reconsider its previous decision and admit twelve beer cans into evidence.

       If the petitioner had been convicted of sexual assault in the first degree as an element of capital felony, he would have potentially faced the death penalty.

       In describing why she chose to limit the number of claims on appeal, the petitioner’s appellate counsel stated: “[0]ne of the things we do is pick the best issues, and the general received wisdom in the appellate bar is [that] you’re normally looking at between one and three issues and if you’re not going to win on the best three, you’re not going to win by adding four or five or six to the same brief. There’s a limited amount of pages in the brief, there’s a limited amount of time for oral argument and normally, again, the perceived wisdom is that the shotgun approach just doesn’t work.”


author: BEACH, J.

text:
    JEFFREY RUBENSTEIN v. BONNIE RUBENSTEIN
    (AC 27634)
    (AC 28298)
    Bishop, Gruendel and Beach, Js.

      Argued February 4
    officially released May 6, 2008

      Bonnie Rubenstein, pro se, the appellant (defendant).

      Jeffrey Rubenstein, pro se, the appellee (plaintiff).

      John T. Asselin-Connolly, for the guardian ad litem.
   Opinion

BEACH, J.

These two appeals arise from the 1997 dissolution of the parties’ marriage. The substantial gap in time between the dissolution judgment and the rendering of the judgments that are the subject of this appeal was caused when the pro se defendant, Bonnie Rubenstein, removed herself and the parties’ minor son from this jurisdiction from 1997 until 2002. In AC 28298, the defendant claims that the trial court (1) improperly entered an award of lifetime alimony because it (a) failed to consider and to apply the statutory factors set forth in General Statutes § 46b-82 and (b) erroneously found that she was at fault for causing the debt of the pro se plaintiff, Jeffrey Rubenstein, and (2) was biased against her. In AC 27634, the defendant claims that the court improperly (1) awarded guardian ad litem fees that were excessive and unreasonable, and (2) precluded evidence of fault during the apportionment hearing as to those fees. We affirm the judgments of the trial court.

The following facts and procedural history are relevant to our discussion. In March, 1996, the plaintiff filed an action seeking to dissolve the parties’ three and one-half year marriage. In September, 1997, while the dissolution action was pending, the defendant removed the parties’ minor son from Connecticut in derogation of the court’s orders. Shortly thereafter, the court appointed attorney Susan M. Asselin-Connolly guardian ad litem for the child. A few months after the disappearance of the defendant, on December 5, 1997, the court, Hon. Hadley W. Austin, judge trial referee, dissolved the parties’ marriage and, after finding that the plaintiff had accumulated considerable debt in the search for his son, ordered the defendant to pay alimony and child support to the plaintiff. The alimony order stated specifically that “[t]he defendant shall pay to the plaintiff the amount of $50 per week as alimony, without prejudice.” The whereabouts of the defendant and the child were not known until 2002, when they were discovered by federal law enforcement officers and returned to Connecticut.

Following the defendant’s return to the jurisdiction, both parties filed motions to modify the December, 1997 alimony and child support award. Following a July 11, 2006 hearing at which both parties testified, the court, Gordon, J., on November 16, 2006, filed a memorandum of decision construing the parties’ motions to modify as motions for de novo review of the alimony order. The court concluded that “[b]oth the plaintiff and the defendant have good earning capacities, but the plaintiffs financial situation was more dire, and moreover, it was caused by the conduct of the defendant. It is only equitable that she assist his support through a continuing order of alimony. Therefore, the court [orders that] the defendant shall pay to the plaintiff, as alimony, $50 per week until the death of either party. ... All arrearages previously found are therefore still valid . . . .” The defendant thereafter filed an appeal challenging the court’s de novo alimony order.

Prior to the parties’ motions to modify, the guardian ad litem had filed a motion seeking costs and fees and an affidavit of debt detailing an outstanding sum of $78,542.30 yet to be paid. On January 6, 2006, the court, Boland, J., filed interlocutory orders on fees for the attorney for the minor child and of the guardian ad litem in which it concluded that the guardian ad litem was entitled to fees totaling $77,208.30 but expressly left the allocation of the fees between the parties for a later determination in light of the plaintiffs bankruptcy proceedings. On March 28, 2006, an allocation hearing was held at which the court, Gordon, J., rendered an oral decision in which the court, inter alia, “[divided] responsibility for both the attorney’s fees and guardian ad litem’s fees, two-thirds attributable to [the defendant], one-third attributable to [the plaintiff].” The defendant subsequently filed an appeal challenging the allocation and reasonableness of the award of fees to the guardian ad litem.

I

AC 28298

A

The defendant first challenges the de novo lifetime alimony order rendered by the court as well as the factual basis underlying that order. We conclude that the court did not abuse its discretion in awarding alimony and that its findings are supported by the record.

We begin by setting forth the standard of review. “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... 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.” (Internal quotation marks omitted.) Rivnak v. Rivnak, 99 Conn. App. 326, 328-29, 913 A.2d 1096 (2007).

“A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria. ... In reviewing the trial court’s decision under [an abuse of discretion] standard, we are cognizant that [t]he issues involving financial orders are entirely interwoven. The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” (Internal quotation marks omitted.) Kunajukr v. Kunajukr, 83 Conn. App. 478, 481, 850 A.2d 227, cert. denied, 271 Conn. 903, 859 A.2d 562 (2004).

1

The defendant first claims that the court abused its discretion when it failed to consider and to apply the statutory factors set forth in § 46b-82. The defendant argues that several factors were ignored and that “the factors that were considered took place after the divorce proceedings and are irrelevant and not in accordance with the alimony guidelines.” The defendant also asserts that the court’s consideration of the plaintiffs debt in crafting its orders was improper under the guidelines. We are not persuaded.

“Trial courts are vested with broad and liberal discretion in fashioning orders concerning the type, duration and amount of alimony and support, applying in each case the guidelines of the General Statutes.” Hartney v. Hartney, 83 Conn. App. 553, 559, 850 A.2d 1098, cert. denied, 271 Conn. 920, 859 A.2d 578 (2004). General Statutes § 46b-82* ** describes factors a court should consider in its decisions regarding alimony. “The court must consider all of these criteria. ... It need not, however, make explicit reference to the statutory criteria that it considered in making its decision or make express finding[s] as to each statutory factor. . . . Nor need it give each factor equal weight.” (Citation omitted; internal quotation marks omitted.) Dombrowski v. Noyes-Dombrowski, 273 Conn. 127, 137, 869 A.2d 164 (2005).

In its memorandum of decision, the court stated that it “considered all the evidence and statutory criteria contained in General Statutes § 46b-82 . . . .” It found that “[t]he plaintiff, in a search for his child, taken and hidden in contravention of court orders by the defendant, incurred monumental debt. The testimony of the defendant as to the reasons for the breakdown of the marriage is not credible. Both the plaintiff and the defendant have good earning capacities, but the plaintiffs financial situation was more dire, and moreover, it was caused by the conduct of the defendant.” The court also emphasized that it was not retroactively modifying the alimony order to take into account subsequent changes in the plaintiffs financial circumstances, which would be “contrary to law,” but rather reviewing the order de novo, as “provided for in the [original] judgment.”

The court is not required to make explicit reference to the statutory criteria that it considered in making its decision or to make express findings as to each statutory factor. Dombrowski v. Noyes-Dombrowski, supra, 273 Conn. 137. Here, the court expressly noted its consideration of the statutory criteria set forth in § 46b-82 and mentioned its findings as to several of those criteria in its memorandum of decision. Therefore, the defendant’s argument that the court ignored several factors is unavailing. The defendant’s assertion that the court impermissibly considered the debt the plaintiff incurred in the search for his child also is without merit. The court’s finding in that regard is a reflection of the court’s previous December 5, 1997 finding, which it communicated at a hearing held on the same day that the original alimony order was issued. As to any debt the plaintiff incurred after the original December, 1997 alimony order, the court specifically underscored that it was not retroactively modifying the judgment due to any substantial change in the financial circumstances of the plaintiff. The court specifically noted that its “review must take the place of the original proceeding.” Accordingly, the defendant’s argument fails.

2

The defendant next claims that the court abused its discretion in crafting its alimony order when it ignored the “tremendous debt [she incurred] due to the plaintiffs behavior.” The defendant further argues that the court wrongfully blamed her for the plaintiffs financial situation. We interpret the defendant’s argument as an invitation to review the court’s finding that her testimony was not credible. We decline that invitation.

11 It is the sole province of the trial court to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Emphasis in original; internal quotation marks omitted.) Doody v. Doody, 99 Conn. App. 512, 519-20, 914 A.2d 1058 (2007). It “has the advantage of viewing and assessing the demeanor, attitude and credibility of the witnesses and is therefore better equipped than we to assess the circumstances surrounding the dissolution action. ” Palazzo v. Palazzo, 9 Conn. App. 486, 488, 519 A.2d 1230 (1987). The court is therefore free to reject testimony it does not find credible. Emanuelson v. Emanuelson, 26 Conn. App. 527, 532, 602 A.2d 609 (1992). Here, we find nothing in the record to undermine our confidence in the court’s fact-finding process. Therefore, we defer to the court’s sound judgment in making its observations of the demeanor and conduct of the witnesses, including the defendant.

B

The defendant next claims that the court was prejudiced against her when it found that she was at fault for the plaintiffs financial situation. We do not agree.

“Accusations of judicial bias or misconduct implicate the basic concepts of a fair trial. . . . The appearance as well as the actuality of [partiality] on the part of the trier will suffice to constitute proof of bias sufficient to warrant disqualification. . . . Canon 3 (c) (1) provides in relevant part: A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (A) the judge has a personal bias or prejudice concerning a party .... To prevail on [his] claim of a violation of this canon, the [defendant] need not show actual bias. The [defendant] has met [his] burden if [he] can prove that the conduct in question gave rise to a reasonable appearance of impropriety.” (Internal quotation marks omitted.) Lucas v. Lucas, 88 Conn. App. 246, 258, 869 A.2d 239 (2005).

The defendant has not cited anything in the record that demonstrates the court’s bias against her. To support her claim, the defendant specifically refers to the court’s observation that “[t]hat’s her fault.” That statement, however, pertained to the court’s discussion of the alimony arrearage and its finding that the defendant had notice of the alimony order, despite her claims to the contrary. The defendant has not met the burden of proof required to prevail on a claim of judicial impropriety, and we find no merit to this claim.

II

AC 27634

A

Before considering the merits of the defendant’s claims in AC 27634, we briefly address the guardian ad litem’s assertion that the defendant’s appeal from the March 28, 2006 judgment is untimely. The appeal form states that the defendant is appealing from the “final judgment of award [to the] guardian ad litem [of] fees.” The guardian ad litem claims that the appeal from that judgment is untimely because the defendant should have appealed from an earlier, November 18,2005 order granting the guardian ad litem’s motion in limine for preclusion. The guardian ad litem, however, failed to file a motion to dismiss within ten days of the filing of the defendant’s appeal, as required by Practice Book § 66-8. Consequently, she waived her right to seek dismissal of the defendant’s appeal as untimely. See Chase Manhattan Mortgage Corp. v. Machado, 83 Conn. App. 183, 185 n.3, 850 A.2d 260 (2004).

B

The defendant next claims that the court improperly awarded guardian ad litem fees that were excessive and unreasonable. She also claims that the court improperly precluded evidence of fault during the apportionment hearing as to those fees. We disagree.

As we already have noted, “[a]n appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented.” (Internal quotation marks omitted.) Prial v. Prial, 67 Conn. App. 7, 9-10, 787 A.2d 50 (2001). “The court may order either party to pay the fees for [a] guardian ad litem pursuant to General Statutes § 46b-62, and how such expenses will be paid is within the court’s discretion.” Ruggiero v. Ruggiero, 76 Conn. App. 338, 347-48, 819 A.2d 864 (2003). “[W]e may not alter an award of attorney’s fees unless the trial court has clearly abused its discretion, for the trial court is in the best position to evaluate the circumstances of each case. . . . Because the trial court is in the best position to evaluate the circumstances of each case, we will not substitute our opinion concerning counsel fees or alter an award of attorney’s fees unless the trial court has clearly abused its discretion.” (Citation omitted; internal quotation marks omitted.) LaMontagne v. Musano, Inc., 61 Conn. App. 60, 64, 762 A.2d 508 (2000). “An abuse of discretion in granting [guardian ad litem] fees will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did.” (Internal quotation marks omitted.) Sachs v. Sachs, 60 Conn. App. 337, 347-48, 759 A.2d 510 (2000); see also Lamacchia v. Chilinsky, 79 Conn. App. 372, 375, 830 A.2d 329 (2003).

1

The defendant first claims that the court’s award of fees to the guardian ad litem was unreasonable and excessive. She specifically challenges the guardian ad litem’s claim for twenty-seven straight hours of service, the time claimed for the services of the guardian ad litem’s associates, the rate charged for the guardian ad litem’s time spent in Juvenile Court and the guardian ad litem’s claims for time spent performing “nonguardian ad litem legal tasks and duties . . . .” The defendant also asserts that “some of the guardian ad litem’s time was spent wastefully and needlessly and should be disallowed.” We do not agree.

The following additional facts are necessary to our resolution of the defendant’s claim. In its January 6, 2006 interlocutory orders on fees for the attorney for the minor child and of the guardian ad litem, the court began its resolution of the guardian ad litem’s claim by detailing the extraordinary nature of this case. The court noted specifically that during the five year period that the defendant and the child were outside the jurisdiction, “the guardian ad litem made numerous attempts at locating her ward, even involving international police authorities. When the child (then eight years old) was located in Florida, she made a rapid trip there to accompany him back to this forum and [to] avoid his being treated as an abandoned child in that state.”

The court then made findings associated with the time ledger sheets that the guardian ad litem attached to her affidavit of debt. It noted that “[h]er time sheets show that in those almost six years of service, she and her associate counsel recorded approximately 374.75 hours on the file. She filed legal pleadings; communicated with the parties and their counsel, with members of the extended family and other witnesses, and with law enforcement and child protection officials; attended court proceedings; and kept herself prepared for the multidimensional task to which this court had appointed her. The court does not find that her documentation of these efforts is exaggerated. Further, the court notes that her services were reasonably effective, as the child has been located and returned here in part due to her work.” The court examined the guardian ad litem’s claimed billing rate, reviewed her lodestar calculations on the basis of the rates of attorneys in her area with similar experience and reduced her claim by $1330, concluding that she was entitled to fees totaling $77,208.30.

The court also addressed an argument the plaintiff had raised that the guardian ad litem should be paid at lower state rates for the several hours she spent at Juvenile Court. The court found that argument unpersuasive because the guardian ad litem’s appearance at Juvenile Court was a function of her appointment “by this court, not a separate appointment by that tribunal.” It added that “the reasonableness of her fee request should be judged by the standards typically employed in this forum, and this court has weighed her request in light of the multiple factors which our appellate court, in Ernst v. Deere & Co., 92 Conn. App. 572 [576, 886 A.2d 845] (2005), has recently said are pertinent in setting such fees . . . .”

Last, in response to a motion filed by the defendant for an articulation of the January 6, 2006 order, the court, Boland, J., issued a memorandum of decision clarifying its earlier order. In reply to the defendant’s questions regarding the guardian ad litem’s time claimed for “nonlegal work,” in addition to the appropriate rate to be charged for such services, the court stated that “however ‘legal work’ is defined, the court did award her an hourly rate of $200 for some of her time spent upon ‘other than legal work.’ In probably every case, even an attorney serving qua attorney does work that is not strictly ‘legal work,’ including, but not limited to, fact investigation, education about the details and significance of those facts, communication with third parties who might have a role in the case, travel to court, etc.” After referencing several Superior Court cases on the subject, the court concluded that “the hourly rate approved here is well in line with the amount which other courts have awarded to other counsel serving as guardians ad litem in recent years.”

Our Supreme Court consistently has noted that “[trial] courts have a general knowledge of what would be reasonable compensation for services which are fairly stated and described.” (Internal quotation marks omitted.) Shapero v. Mercede, 262 Conn. 1, 9, 808 A.2d 666 (2002). Because of this general knowledge, “[t]he court [is] in a position to evaluate the complexity of the issues presented and the skill with which counsel had dealt with these issues.” (Internal quotation marks omitted.) Miller v. Kirshner, 225 Conn. 185, 201, 621 A.2d 1326 (1993). “While the decision as to the liability for payment of such fees can be made in the absence of any evidence of the cost of the work performed . . . the dollar amount of such an award must be determined to be reasonable after an appropriate evidentiary showing.” (Citation omitted; internal quotation marks omitted.) Panganiban v. Panganiban, 54 Conn. App. 634, 644, 736 A.2d 190, cert. denied, 251 Conn. 920, 742 A.2d 359 (1999).

We conclude that under the circumstances of this unusual, lengthy and complicated appointment, the fees awarded to the guardian ad litem were reasonable.

The court carefully considered the time sheets submitted by the guardian ad litem in relation to the services she performed, compared her billing rate to the comparable rate of attorneys of similar experience in her area and weighed her requests pursuant to “the standards typically employed in this forum . . . .” After noting that this case was “anything but routine,” the court engaged in a thorough analysis of the fees claimed before awarding an amount it deemed reasonable.

As to the specific challenges raised by the defendant, we agree with the court’s assessment that the guardian ad litem’s appearance in Juvenile Court was a function of her original appointment by the court in 1997 and that the court properly rejected the defendant’s claim that a lower billing rate was warranted. We likewise agree that any “nonlegal work” claimed by the guardian ad litem was a small portion of the total work performed and that because practically every case involves the performance of some services that are not strictly “legal” in nature, the court did not abuse its discretion. The defendant’s other assertions concerning the guardian ad litem’s allegedly questionable billing records are equally without merit. The guardian ad litem’s role in this case went far beyond the role assigned in a typical child custody case and, consequently, involved significantly more effort for the guardian ad litem and any staff assisting her. Specifically, the guardian ad litem’s claim as to the twenty-seven consecutive hours pertains to her flight to Florida to return the minor child to Connecticut. We agree with the court that under the circumstances of this case, such a claim was not an exaggeration. For the foregoing reasons, we conclude that the court did not abuse its discretion in finding that the guardian ad litem was entitled to fees totaling $77,208.30.

2

The defendant claims finally that the court improperly precluded evidence of fault during the apportionment hearing as to the guardian ad litem fees. We disagree.

The following additional facts are necessary to our resolution of the defendant’s claim. On November 18, 2005, the court, Swienton, J., granted the guardian ad litem’s motion to preclude evidence of postdissolution fault in the determination of the allocation of fees between the parties. On March 28, 2006, an allocation hearing was held at which both parties submitted financial affidavits at the request of the court and testified regarding their current financial statuses and capabilities. Before the testimony began, the court, Gordon, J., reiterated that evidence of postdissolution fault was precluded at the hearing. The court then rendered an oral decision, on the basis of the earning capacities of each party, inter alia, “[dividing] responsibility for both the attorney’s fees and the guardian ad litem’s fees, two-thirds attributable to [the defendant], one-third attributable to [the plaintiff].”

“The order for payment of [guardian ad litem] fees under General Statutes § 46b-62 requires consideration of the financial resources of both parties and the criteria set forth in General Statutes § 46b-82.” (Internal quotation marks omitted.) Lamacchia v. Chilinsky, supra, 79 Conn. App. 376. Section 46b-82 instructs the court to consider, inter alia, “the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability [and the] estate and needs of each of the parties . . . .”

The additional criterion sought to be considered by the defendant, namely, postdissolution fault, is not a factor included among those enumerated in § 46b-82. As already noted, the order for payment of guardian ad litem fees “requires consideration of the financial resources of both parties and the criteria set forth in General Statutes § 46b-82.” (Internal quotation marks omitted.) Lamacchia v. Chilinsky, supra, 79 Conn. App. 376. There is no requirement, however, to consider any additional factors or evidence deemed relevant by any of the parties. Accordingly, we cannot conclude that the court abused its discretion in precluding evidence of postdissolution fault at the allocation hearing.

The judgments are affirmed.

In this opinion the other judges concurred.

      The plaintiff likewise argues that the court’s allocation of fees was improper. We decline to review the plaintiffs claim because he failed to file a cross appeal. See Practice Book § 61-8; Housing Authority v. Charter Oak Terrace/Rice Heights Health Center, Inc., 82 Conn. App. 18, 19 n.1, 842 A.2d 601 (2004).

       Specifically, the court stated: “While the plaintiff has filed a motion to modify the alimony award entered, the motion is mistitled in light of the relief sought, and the court therefore construes it as a motion for a de novo review of the alimony award.”

       Intertwined with the defendant’s claim concerning the application of the alimony guidelines is an argument that the court improperly limited her testimony and did not allow her to introduce some evidence showing that the plaintiff was abusive and caused the breakdown of the marriage. The record reveals, however, that the defendant was permitted to testify as to her account of the breakdown of the marriage, including the alleged abusive conduct of the plaintiff that purportedly led to her actions in leaving the country with her son. The court did not credit her testimony in this regard, as it stated explicitly in its memorandum of decision, and we do not second-guess the trial court’s assessment of credibility. See Doody v. Doody, 99 Conn. App. 512, 519-20, 914 A.2d 1058 (2007).

       General Statutes § 46b-82 (a) provides in relevant part: “At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. ... In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parlies and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”

       At the hearing on December 5, 1997, the court, Hon. Hadley W. Austin, judge trial referee, stated: “With regard to the issue of alimony, once again the court reemphasizes . . . the particularly difficult situation, and mindful of the large sums that have been expended here as exiiibited by [the plaintiff] in trying to locate the defendant and the child . . . .”

       In her motion in limine, the guardian ad litem asked the court to “preclude both [the] [p]laintiff and [the] [defendant from calling any witnesses, eliciting any testimony and offering any evidence that relates to events that postdate the filing of the action seeking the dissolution of their marriage.”

       Practice Book § 66-8 provides: “Any claim that an appeal or writ of error should be dismissed, whether based on lack of jurisdiction, failure to file papers within the time allowed or other defect, shall be made by a motion to dismiss the appeal or writ. Any such motion must be filed in accordance with Sections 66-2 and 66-3 within ten days after the filing of the appeal or the return day of the writ, or if the ground alleged subsequently occurs, within ten days after it has arisen, provided that a motion based on lack of jurisdiction may be filed at any time. The court may on its own motion order that an appeal be dismissed for lack of jurisdiction.”

       The filing of a late appeal does not implicate the subject matter jurisdiction of this court. See Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 762-63, 628 A.2d 1303 (1993).

       “We note that although § 46b-62 addresses only the issue of attorney’s fees, we previously have recognized that the same criteria properly inform the court’s exercise of discretion regarding fees for a guardian ad litem appointed for a minor child in a dissolution of marriage action or in an action seeking a modification of custody and visitation.” (Emphasis in original.) Lamacchia v. Chilinsky, 79 Conn. App. 372, 375 n.3, 830 A.2d 329 (2003).

       The “lodestar" component of an attorney’s fee is the product of “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983).

       The factors referenced by the court are “(1) the time and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee for similar work in the community, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation and ability of the attorneys, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client and (12) awards in similar cases.” Ernst v. Deere & Co., supra, 92 Conn. App. 576; see also Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).

       The defendant does not make a plausible argument that lawyers working in juvenile courts must necessarily work for less than their normal billing rates, and we see no reason why that would be true.

       The guardian ad litem argues that the record is not adequate for review of this claim because the defendant “failed to make a record relative to her proposed ‘fault’ evidence and thereafter failed to be prepared to present that record to this court.” We disagree. Practice Book § 61-10 provides in relevant part that “[i]t is the responsibility of the appellant to provide an adequate record for review. . . . [T]he term ‘record’ . . . includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety.” In addition to several other documents and exhibits, the defendant has provided a transcript of the relevant March 28, 2006 allocation hearing and a copy of the November 18, 2005 order granting the guardian ad litem’s motion in limine for preclusion of fault testimony. These documents provide an adequate record for the resolution of the defendant’s claim as to fault.

       See footnote 6, which specifically articulates the guardian ad litem’s motion.

       The factors enumerated in General Statutes § 46b-82 are “the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”


author: ROBINSON, J.

text:
    WALBER GONZALEZ v. COMMISSIONER OF CORRECTION
    (AC 28071)
    Bishop, Robinson and Freedman, Js.
    Argued February 19
    officially released May 6, 2008

      PaulR. Kraus, special public defender, for the appellant (petitioner).

      Bruce R. Lockwood, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and David L. Zagaja, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

ROBINSON, J.

The petitioner, Waiber Gonzalez, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that it lacked subject matter jurisdiction over his petition. The petitioner further claims that the court (1) violated his right to counsel under General Statutes § 51-296, (2) violated his right to due process under the state and federal constitutions, and (3) abused its discretion in denying his motion to open the judgment denying the petition. We disagree and, accordingly, affirm the judgment of the habeas court.

Our review of the record reveals the following facts and procedural history. On January 14, 1998, the petitioner pleaded guilty to larceny in the third degree in violation of General Statutes § 53a-124 and failure to appear in the first degree in violation of General Statutes § 53a-172 (larceny case). The court sentenced the petitioner, in accordance with his plea agreement, to a total effective term of two years incarceration. The petitioner completed his sentence for the larceny case on May 14, 1999.

On the basis of a separate incident, the petitioner subsequently was arrested, tried and convicted of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a (murder case). See State v. Gonzalez, 69 Conn. App. 649, 650-52, 796 A.2d 1225, cert. denied, 260 Conn. 937, 802 A.2d 91 (2002). The jury found the petitioner guilty on December 22, 1999. Id., 651-52. The court sentenced the petitioner on February 16, 2000, to a period of seventeen years incarceration. Id., 652. Following his unsuccessful direct appeal, the petitioner filed a petition for a writ of habeas corpus, alleging that his attorney in the murder case had been ineffective. See Gonzalez v. Commissioner of Correction, 87 Conn. App. 744, 867 A.2d 134, cert. denied, 273 Conn. 929, 873 A.2d 997 (2005). The habeas court denied that habeas petition, and we dismissed the subsequent appeal. See id., 745.

On November 17, 2003, the petitioner, acting pro se, filed a petition for a writ of habeas corpus, alleging that he had received ineffective assistance of counsel from attorney Michael J. Graham. Graham had represented the petitioner when he pleaded guilty in 1998 to the charges of larceny and failure to appear. Specifically, the petitioner claimed that he would not have pleaded guilty if he had known that pretrial jail time credits earned for the larceny case would not be applied to his subsequent sentence for murder.

On December 26, 2003, the office of the chief public defender, habeas corpus unit, filed an appearance on behalf of the petitioner. On June 24, 2004, with the permission of the court, attorney Sean K. Crowshaw, acting as a special public defender, filed an appearance in lieu of the office of the chief public defender, habeas corpus unit. On November 10, 2004, Crowshaw and counsel for the respondent, the commissioner of correction, signed a habeas scheduling order that was approved by the habeas court. This scheduling order provided, inter alia, that the trial date was scheduled for April 27, 2005.

On April 27, 2005, the court noted that Crowshaw did not appear for the scheduled trial. The court then issued an oral decision dismissing the petition. “In light of the failure of counsel, attorney Crowshaw, to be present, in light of the failure to file an amended petition, in view of the fact that there is no return filed in the file, in view of the fact that of the events that were set forward in the habeas scheduling order that were entered on November 10, 2004, not a single one of those events had been accomplished—and I further note that this involves a 1998 conviction for which the [petitioner] received a two year sentence according to his pro se petition, the petition was filed November, 2003. On the face of the petition, the court would appear to lack jurisdiction because the sentence has totally run before the filing of the petition. The [case] is dismissed for failure to prosecute and apparent lack of jurisdiction in that the [petitioner] was not in custody at the time ... he filed the petition.” (Emphasis added.) Notice of the dismissal was mailed to the parties of record on May 17, 2005.

On May 27, 2005, the petitioner, through the office of the chief public defender, filed a motion to open the judgment. The motion alleged that Crowshaw had been permitted to withdraw prior to the April 27, 2005 dismissal with the understanding that new counsel would be appointed for the petitioner. A petition for certification to appeal also was filed on May 27, 2005. The court denied the motion to open on July 8, 2005. On August 15, 2006, the court granted the petition for certification to appeal.

On appeal, the petitioner claims that the court improperly concluded that it lacked subject matter jurisdiction over his petition. Specifically, he argues that “the petition can state a claim of ineffective assistance of counsel as to counsel in the murder case, which overlapped the larceny case by more than one year, for failure to coordinate with counsel in the larceny case to ensure that whatever strategy either was employing did not ultimately affect the allocation of the petitioner’s jail credits when he was sentenced.” The respondent counters that to read the petition in the manner advocated by the petitioner would “contort the pleading in such a way so as to strain the bounds of rational comprehension.” We agree with the respondent.

At the outset, we set forth the standard of review and legal principles germane to the petitioner’s appeal. Our Supreme Court has “long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. . . . Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal.” (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 532-33, 911 A.2d 712 (2006).

“[Pjursuant to General Statutes § 52-466, a Connecticut habeas court has subject matter jurisdiction only over those cases brought by a petitioner who is legally confined or deprived of his liberty under the challenged conviction. ... A person is in custody when he is under a legal restraint. ... A habeas court has subject matter jurisdiction to hear a petition for habeas corpus when the petitioner is in custody at the time that the habeas petition is filed.” (Citations omitted; internal quotation marks omitted.) Young v. Commissioner of Correction, 104 Conn. App. 188, 191-92, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008); see Lebron v. Commissioner of Correction, 274 Conn. 507, 521-26, 876 A.2d 1178 (2005).

In the present case, the petitioner filed his pro se petition for a writ of habeas corpus on November 17, 2003. In his petition, he indicated that the date of his sentencing was January 14, 1998, his sentence was for two years, his attorney was Graham and that he had pleaded guilty. The petitioner further alleged in his petition that he did not appeal from his conviction and that his attorney had not represented him properly. Finally, the petition claimed that “[tjrial counsel failed to inform the petitioner of the consequences of his guilty plea(s) and full ranges of permissible punishment [when] he authorized the petitioner to plead guilty to a two year sentence . . . .”

It is undisputed that the petition, filed in November, 2003, was filed after the petitioner had completed his two year sentence stemming from his January 14, 1998 guilty plea in the larceny case. The petitioner argues that the petition, drafted pro se, should be read broadly and apply to counsel who represented him on the murder case. We are mindful of the petitioner’s pro se status at the time he drafted his petition. “This court has always been solicitous of the rights of pro se litigants and, like the trial court, will endeavor to see that such a litigant shall have the opportunity to have his case fully and fairly heard so far as such latitude is consistent with the just rights of any adverse party. . . . Although we will not entirely disregard our rules of practice, we do give great latitude to pro se litigants in order that justice may both be done and be seen to be done. . . . For justice to be done, however, any latitude given to pro se litigants cannot interfere with the rights of other parties, nor can we disregard completely our rules of practice.” (Emphasis added; internal quotation marks omitted.) Shobeiri v. Richards, 104 Conn. App. 293, 296, 933 A.2d 728 (2007); see also Orcutt v. Commissioner of Correction, 284 Conn. 724, 740 n.26, 937 A.2d 656 (2007).

We have reviewed the petition in the present case. We acknowledge that it must be read in “its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties.” (Internal quotation marks omitted.) Lorthe v. Commissioner of Correction, 103 Conn. App. 662, 669, 931 A.2d 348, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007). We are also mindful that the “modem trend ... is to constme pleadings broadly and realistically, rather than narrowly and technically.” (Internal quotation marks omitted.) Oliphant v. Commissioner of Correction, 274 Conn. 563, 569, 877 A.2d 761 (2005). Nevertheless, it is clear that the petition, as drafted, presents a claim of ineffective assistance of counsel only as to Graham, and not counsel who represented the petitioner in the murder case.

In Oliphant, our Supreme Court observed that the rule of liberal constmction of pro se pleadings has limits. “Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant mies of procedural and substantive law.” (Internal quotation marks omitted.) Id., 570. It further stated that “while courts should not construe pleadings narrowly and technically, courts also cannot contort pleadings in such a way so as to strain the bounds of rational comprehension.” (Emphasis added; internal quotation marks omitted.) Id.

In the present case, even under a broad and liberal reading, it is clear that the petition sets forth a claim of ineffective assistance with respect to Graham and not as to counsel who represented the petitioner with respect to the murder case. The petition specifically indicates that Graham was his attorney and refers to the date of the guilty plea when he was represented by Graham. It further indicates that the petitioner received a two year sentence rather than the seventeen year sentence that he received for the murder case. Moreover, the petition states that he entered a plea, as opposed to a jury’s returning a verdict of guilty, which happened in the murder case. Further, the petition indicates that he did not file a direct appeal, which was true for the larceny case when he was represented by Graham, but not for the murder case. See State v. Gonzalez, supra, 69 Conn. App. 649. We conclude, therefore, that the habeas court properly determined that the claim of ineffective assistance of counsel referred only to the charges to which the petitioner had pleaded guilty on January 14, 1998, and for which he received a sentence of two years, and, therefore, he was not in custody at the time he filed the petition. As a result, the habeas court properly concluded that it lacked subject matter jurisdiction over the petition.

Despite our conclusion regarding subject matter jurisdiction, we heed mention briefly the other claims raised by the petitioner’s appeal. Specifically, he argues that the court (1) violated his right to counsel under § 51-296, (2) violated his right to due process under the state and federal constitutions and (3) abused its discretion in denying the motion to open. We conclude that under the facts and circumstances of the present case and our determination regarding the lack of subject matter jurisdiction, we need not consider the other claims presented by the petitioner.

Our conclusion is guided and informed by our Supreme Court’s decision in Ajadi v. Commissioner of Correction, supra, 280 Conn. 514. In that case, the commissioner of correction moved to dismiss the petition for a writ of habeas corpus for lack of subject matter jurisdiction on the ground that the petitioner was not in custody within the meaning of § 52-466. Id., 521. During the pendency of his appeal, the petitioner discovered that the habeas judge previously had represented him. Id., 522. Our Supreme Court concluded that the failure of the habeas judge to disqualify himself constituted plain error. Id., 525. The court, however, conducted an independent review of the jurisdictional issue and concluded that the habeas court lacked subject matter jurisdiction because the petitioner was not in custody at the time he filed his petition. Id. Specifically, the court stated: 11 In light of the unique nature of subject matter jurisdiction, we conclude that we independently are obligated to address the commissioner’s jurisdictional claim. After conducting an independent review of the record and the case law concerning the custody requirement in § 52-466, we conclude that the petitioner was not in custody when his habeas petition was filed and, therefore, the habeas court lacked subject matter jurisdiction.” (Emphasis added.) Id., 532. In other words, despite the existence of plain error, our Supreme Court decided the case on the basis of the lack of subject matter jurisdiction and affirmed the judgment of dismissal of the habeas petition.

Similarly, in the present case, we conclude that the lack of subject matter jurisdiction is dispositive of the petitioner’s appeal. We previously concluded, on the basis of our plenary review, that the claim of ineffective assistance of counsel applied only to the larceny case for which the petitioner had completed his sentence and, therefore, that the petitioner was no longer in custody. Accordingly, the habeas court lacked subject matter jurisdiction to consider the petition. Even if we were to assume arguendo that these other claims had merit, they do not change the fact that the court simply lacked the authority or power to consider the petition. See Sullivan v. Thorndike, 104 Conn. App. 297, 300, 934 A.2d 827 (2007) (“[jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy.” [Internal quotation marks omitted.]), cert. denied, 285 Conn. 907, 942 A.2d 415 (2008). Accordingly, we need not reach the other claims raised in the petitioner’s appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that there is nothing in the record indicating that Crowshaw had been allowed to withdraw as the petitioner’s counsel.

       We further note that the petitioner’s sentence on the larceny case ended on May 19, 1999, approximately seven months prior to his conviction and sentencing in the murder case.

       We note, however, that counsel was subsequently appointed for the petitioner, and the petition was never amended.

       “It is well established that the interpretation of the pleadings presents a question of law, subject to plenary review by an appellate court.” Mejia v. Commissioner of Correction, 98 Conn. App. 180, 194, 908 A.2d 581 (2006).

       We remind counsel that “[ajnalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) Lefebvre v. Zarka, 106 Conn. App. 30, 40 n.5, 940 A.2d 911 (2008); see also Ziemba v. Commissioner of Correction, 90 Conn. App. 70, 71, 875 A.2d 597, cert. denied, 276 Conn. 905, 884 A.2d 1029 (2005).

       We note that in the present case, we need not require any findings by the habeas court with respect to jurisdictional facts. “A jurisdictional fact is a fact that will permit a court to find jurisdiction. . . . Specifically, with regard to subject matter jurisdiction, jurisdictional facts are [fjacts showing that the matter involved in a suit constitutes a subject-matter consigned by law to the jurisdiction of that court . . . .” (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, supra, 280 Conn. 535 n.23.