author: GRUENDEL, J.

text:
    ROBIN CRANDLEMIRE v. COMMISSIONER OF MOTOR VEHICLES
    (AC 30088)
    Gruendel, Harper and Pellegrino, Js.

      Argued September 14
    officially released November 10, 2009

      Drew S. Graham, assistant attorney general, with whom, on the brief, was Richa/rd Blumenthal, attorney general, for the appellant (defendant).

      Gregory A. Thompson, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

Pursuant to General Statutes § 4-183, the plaintiff, Robin Crandlemire, commenced an administrative appeal in the Superior Court from the decision of the defendant, the commissioner of motor vehicles, suspending her motor vehicle operator’s license for two years. Following a hearing, the court sustained that appeal. The defendant now challenges the propriety of that determination. We affirm the judgment of the Superior Court.

The facts are not in dispute. At the time of the incident giving rise to the defendant’s appeal, the plaintiff had a history of operating motor vehicles under the influence of alcohol. Following her September 10, 2000 arrest for driving under the influence of alcohol with a blood alcohol content at or more than 0.08 in violation of General Statutes § 14-227a, her operator’s license was suspended on October 10, 2000, pursuant to General Statutes § 14-227b, and restored on February 7, 2001. The plaintiff then was arrested on March 5, 2004, and again charged with a violation of § 14-227a, this time due to her refusal to submit to a chemical alcohol test. Her operator’s license was suspended on April 4, 2004, and restored on December 1, 2005.

On the afternoon of August 31, 2007, the plaintiff was arrested in Newington and charged with, inter alia, operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a. After failing multiple field sobriety tests, the plaintiff was transported to the Newington police department, where two blood alcohol content tests were performed at 4:38 p.m. and 5:15 p.m. Both tests yielded identical blood alcohol content readings of 0.30 and calibration readings of 0.096. The defendant subsequently notified the plaintiff of the suspension of her operator’s license for a period of two years and six months due to her failure of “a chemical alcohol test.”

At the plaintiffs request, an administrative hearing was held on October 24, 2007. At that hearing, the arresting police officers testified, and copies of the plaintiffs driving history and an A-44 form, which included the blood alcohol content test results, were marked as exhibits. Thereafter, the defendant, through a hearing officer, reached the following findings of fact and conclusions of law: “1. The police officer had probable cause to arrest [the plaintiff] for a violation specified in § 14-227b .... 2. The [plaintiff] was placed under arrest. 3. [The plaintiff] was operating the motor vehicle. 4. [The plaintiff] was not under 21 years of age [and] 5. The [plaintiff] submitted to the test or analysis and the results indicated a [blood alcohol content] of 0.16 percent or more.” The defendant, through the hearing officer, thus concluded that “[a]fter a review of the totality of the evidence, there is ample support in the record to find that probable cause existed for an arrest for § 14-227a” and ordered the suspension of the plaintiffs operator’s license for a period of two years and six months.

On November 13, 2007, the plaintiff filed a petition for reconsideration predicated on newly discovered evidence questioning the validity of the test results. In support thereof, the plaintiff attached a letter from Robert H. Powers, a toxicologist and director of the controlled substance toxicology laboratory for the department of public safety. In that November 5, 2007 letter, Powers stated: “[I]n this case, we have arecurrent and identical pattern of calibration check values (0.100, 0.096) and identical subject readings. Such an unusual circumstance raises our interest and concern such that we attempted to access the stored instrumental values. In this case, and contrary to routine practice, the test sequence values and associated information were not stored in the instrumental memory, and we have therefore, no means of evaluating the overall test process. Because of the unusual test results, and the inability of the laboratory to evaluate the instrumental data, we are unable to offer an opinion as to the validity of this specific test sequence.” (Emphasis in original.) The hearing officer granted the petition for reconsideration on January 30, 2008, noting that the “[plaintiff] should be permitted to raise the issue of the chemical test validity at a new hearing. Dr. Powers should be permitted to testify at said hearing.”

Accordingly, a second administrative hearing was held on February 27, 2008. At the outset, the hearing officer offered “a little history on the case,” reciting its procedural history. After noting that Powers’ November 5, 2007 letter “dealt with the validity of the breath test, which . . . became the basis for a petition for reconsideration,” the hearing officer cautioned the plaintiff that “that would be the only issue before me today. . . . [W]e can’t revisit the issue, in my opinion, of the admissibility of the [chemical alcohol test] readings .... But we’ll certainly be here to revisit the issue of the validity.” During that proceeding, the plaintiff introduced Powers’ November 5, 2007 letter as an exhibit. In addition, Powers testified that the identical blood alcohol content readings and calibration checks were “unusual,” stating that “the fact that all the numbers are the same in both tests raises my question as to what on Earth is going on here.” He later opined that “restricting my comments to an evaluation of this instrumental data alone, I have questions about the validity of this testing process and the information that can be drawn from it,” and later concluded that “[viewing the Intoxilyzer results by themselves ... I would not consider them reliable.” As Powers succinctly put it, “if [the chemical alcohol test results] must stand alone, they cannot stand.”

At the urging of the hearing officer, Powers then reviewed certain documents prepared by the Newing-ton police department that were introduced at the October 24, 2007 hearing. On the basis of that additional information, Powers opined that the plaintiff likely had a blood alcohol level at or above 0.10. Following the conclusion of the hearing, the hearing officer made the following findings of fact and conclusions of law: “1. The police officer had probable cause to arrest [the plaintiff] for a violation specified in § 14-227b .... 2. The [plaintiff] was placed under arrest. 3. The [plaintiff] submitted to the test or analysis and the results indicated a [blood alcohol content] of 0.08 percent or more [and] 4. [The plaintiff] was operating the motor vehicle.” On the basis of the foregoing, the defendant ordered the suspension of the plaintiffs operator’s license for a period of two years.

Pursuant to § 4-183, the plaintiff appealed from that decision to the Superior Court, which conducted a hearing on June 18,2008. At the outset, the defendant agreed with the court that a § 14-227b administrative hearing is limited to a determination of “not whether the person was intoxicated, but . . . what the results of the [chemical alcohol] test show . . . .” The court questioned whether the hearing officer simply found that “in spite of the testimony of [Powers] . . . these [blood alcohol content] readings are accurate” or whether the hearing officer, in addition to making that finding, considered evidence extrinsic to the results of the blood alcohol tests. The plaintiff argued that such consideration was inappropriate, maintaining that the hearing officer cannot make a determination as to blood alcohol content independent of the test results. Ultimately, the court agreed with the plaintiff, stating that “if [the hearing officer] went and made an independent finding as to the range of the test, of blood alcohol content, he is entirely disregarding the machine results, and I think that’s the purpose of the statute. [The hearing officer] is making his own independent judgment based on other evidence, and I don’t think that is his statutory function.” The court therefore sustained the plaintiffs appeal, and the defendant’s appeal to this court followed.

Before considering the defendant’s specific claims, we note the standard applicable to our review of administrative decisions. “[J]udicial review of the [defendant’s] action is governed by the Uniform Administrative Procedure Act [General Statutes §§ 4-166 through 4-189], and the scope of that review is very restricted. . . . [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” (Internal quotation marks omitted.) Winsor v. Commissioner of Motor Vehicles, 101 Conn. App. 674, 679-80, 922 A.2d 330 (2007).

In this appeal, the defendant proffers two differing explanations for the finding by the hearing officer that “the [plaintiff] submitted to the test or analysis and the results indicated a [blood alcohol content] of 0.08 percent or more.” The defendant first insists, as he did before the Superior Court, that the hearing officer found the chemical alcohol test results reliable despite Powers’ testimony to the contrary. In the alternative, the defendant contends that in the event that those test results in fact were deemed unreliable, the hearing officer nevertheless was free to reach a determination independent of that testing as to the plaintiffs blood alcohol content on the basis of extrinsic evidence submitted for consideration. We address each argument in turn.

I

The defendant first argues that, notwithstanding Powers’ expert testimony that “if [the chemical alcohol test results] must stand alone, they cannot stand,” the hearing officer remained free to “rely on the statutory presumption that the results of the test are sufficient to indicate that the person had [an] elevated blood alcohol content while operating a motor vehicle.” The infirmity in that argument is the fact that the hearing officer made no such finding. To the contrary, the precise suspension ordered indicates that the hearing officer implicitly found those test results unreliable.

It is undisputed that the plaintiff twice had her operator’s license suspended pursuant to § 14-227b prior to the incident giving rise to the defendant’s appeal. The period of suspension for a third offense is circumscribed by state law. General Statutes § 14-227b (i) (3) requires the defendant to suspend the operator’s license “if such person has two or more times previously had such person’s operator’s license . . . suspended under this section, (A) except as provided in subparagraph (B) of this subdivision, two years if such person submitted to a test or analysis and the results of such test or analysis indicated that such person had an elevated blood alcohol content, (B) two and one-half years if such person submitted to a test or analysis and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was sixteen-hundredths of one per cent or more of alcohol, by weight, and (C) three years if such person refused to submit to such test or analysis.” As counsel for the defendant conceded at oral argument before this court, if the hearing officer had found the chemical alcohol tests that produced identical 0.30 blood alcohol content readings to be reliable, Connecticut law required the defendant to suspend the plaintiffs operator’s license for a period of two years and six months. The February 27, 2008 decision, however, ordered her license suspended for a period of two years. Given the clear mandate of § 14-227b (i) (3), with which we presume that the hearing officer complied, that term of suspension cannot be reconciled with the defendant’s claim that the hearing officer implicitly found the chemical alcohol tests that produced identical 0.30 blood alcohol content readings to be reliable. Given that patent inconsistency between the chemical alcohol test readings and the suspension ordered, we can only conclude that the hearing officer concurred with the expert opinion of Powers that “[viewing the [chemical alcohol test] results by themselves ... I would not consider them reliable.” We thus reject the defendant’s claim that the hearing officer found the test readings to be “accurate” in the present case.

II

The question that necessarily follows, then, is, on what did the hearing officer base his finding that “the [plaintiff] submitted to the test or analysis and the results indicated a [blood alcohol content] of 0.08 percent or more” if he found that test unreliable? This query brings us to the defendant’s alternative argument that the hearing officer is free to reach such a determination independent of the chemical alcohol testing on the basis of extrinsic evidence presented at the administrative hearing. The defendant has provided this court with no authority for that novel proposition.

Pursuant to § 14-227b (g), the administrative hearing “shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that such person had an elevated blood alcohol content; and (4) was such person operating the motor vehicle. ...” Only the third criterion is at issue in the present case. Because the plaintiff submitted to “a chemical analysis of such person’s blood, breath or urine”; General Statutes § 14-227b (a); the proper focus of our analysis is on whether the hearing officer properly found that the results of the chemical alcohol tests indicated that she had an elevated blood alcohol content.

In making that determination, the hearing officer may consider other evidence presented at the hearing. Section 14-227b-17 (b) of the Regulations of Connecticut State Agencies provides that “[t]he findings required to be made at the hearing in accordance with subsection (g) or (j) of section 14-227b of the Connecticut General Statutes shall be based on substantial evidence when the record is considered as a whole.” The defendant relies on the seminal case of Bancroft v. Commissioner of Motor Vehicles, 48 Conn. App. 391, 710 A.2d 807, cert. denied, 245 Conn. 917, 717 A.2d 234 (1998), and its progeny to support his contention that a hearing officer is free to reach an independent determination as to the plaintiffs blood alcohol content on the basis of evidence other than chemical alcohol test results presented at the administrative hearing. For two reasons, that reliance is misplaced.

First and foremost, Bancroft does not support that proposition. In that case, this court held that the hearing officer in an administrative hearing conducted pursuant to § 14-227b was not required to accept the testimony of the plaintiffs expert and properly relied on the statutory presumption that the results of a chemical alcohol test or analysis are sufficient to indicate a person’s blood alcohol content at the time of the operation of a motor vehicle. Id., 402-407. Significantly, the court in Bancroft concluded that the hearing officer had applied the “statutory rebuttable presumption”; id., 402; which permits a hearing officer to presume that “the results of the [chemical alcohol] test or analysis shall be sufficient to indicate the ratio of alcohol in the blood of such person ... at the time of operation.” (Internal quotation marks omitted.) Id., 396; see General Statutes § 14-227b (g); see also General Statutes § 14-227a (b). Subsequent appellate decisions likewise have concluded that the hearing officer was free to rely on the statutory rebuttable presumption in the face of conflicting expert testimony. See Simard v. Commissioner of Motor Vehicles, 62 Conn. App. 690, 695, 772 A.2d 1137 (2001); Dumont v. Commissioner of Motor Vehicles, 48 Conn. App. 635, 641, 712 A.2d 427, cert. denied, 245 Conn. 917, 717 A.2d 234 (1998); Settani v. Commissioner of Motor Vehicles, 48 Conn. App. 418, 421, 710 A.2d 816, cert. denied, 245 Conn. 916, 719 A.2d 1166, 1167 (1998). Although this court on occasion has noted certain other evidence presented at the administrative hearing that indicated intoxication; see Alvord v. Commissioner of Motor Vehicles, 84 Conn. App. 302, 306-307, 853 A.2d 548 (2001); Simard v. Commissioner of Motor Vehicles, supra, 695-96; it always has been in tandem with the application of the statutory rebuttable presumption regarding the chemical alcohol tests performed. In neither Bancroft nor its progeny has this court or our Supreme Court concluded that a hearing officer may find, pursuant to the third criterion of § 14-227b (g), that a person submitted to a chemical alcohol test “and the results of such test or analysis indicated that such person had an elevated blood alcohol content” solely on the basis of evidence extrinsic to said test results that was introduced at the hearing.

Second, our Supreme Court has held repeatedly that “the plain language of [§ 14-227b (g)] expressly and narrowly limits the scope of the license suspension hearing to the four issues enumerated in the statute.” Fishbein v. Kozlowski, 252 Conn. 38, 46, 743 A. 2d 1110 (1999). The third criterion of § 14-227b (g) by its plain language does not ask whether the plaintiff operated her motor vehicle with an elevated blood alcohol content, but rather requires a more specific determination, namely, whether the chemical alcohol test administered revealed an elevated blood alcohol content. Thus, although the hearing officer may consider the evidence of the record as a whole; Regs., Conn. State Agencies § 14-227b-17 (b); that evidence must demonstrate that the chemical alcohol test revealed an elevated blood alcohol content. See Dumont v. Commissioner of Motor Vehicles, supra, 48 Conn. App. 644 (noting that such additional evidence must demonstrate “that the results accurately indicate the blood alcohol content”). Given our conclusion in part I that the precise suspension ordered strongly indicates that the hearing officer did not find the test results to be accurate, it cannot be said that the other evidence submitted at the hearing demonstrated the reliability of those test results.

As we have noted, the defendant has not provided any authority for the proposition that a hearing officer, after concluding that the chemical alcohol test results are unreliable, may reach an independent determination on the basis of other evidence presented as to whether a person operated a motor vehicle with an elevated blood alcohol level. Such a determination is outside the narrow scope of the license suspension hearing. See Bancroft v. Commissioner of Motor Vehicles, supra, 48 Conn. App. 404 (decision of hearing officer “limited by statute to a determination of four specific issues”). To the extent that the defendant wants us to rewrite the parameters of administrative hearings conducted pursuant to § 14-227b, we decline to do so, as that remains properly the province of our General Assembly.

The narrow question presented in the present case was whether the results of the chemical alcohol tests submitted to by the plaintiff on August 31, 2007, “indicated that such person had an elevated blood alcohol content . . . .” General Statutes § 14-227b (g). In suspending the plaintiffs operator’s license for a period of two years despite identical blood alcohol content readings of 0.30, the hearing officer answered that question in the negative. We therefore conclude that the Superior Court properly sustained the appeal in the present case.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also was charged with failure to drive in the proper lane in violation of General Statutes § 14-236 and failure to obey a traffic control signal in violation of General Statutes § 14-299.

       “The A-44 form is used by the police to report an arrest related to operating a motor vehicle under the influence and the results of any sobriety tests administered or the refusal to submit to such tests.” Roy v. Commissioner of Motor Vehicles, 67 Conn. App. 894, 396 n.3, 786 A.2d 1279 (2001).

       At one point in the proceeding, the hearing officer inquired of Powers: “[M]y ultimate finding has to be whether or not I believe that [the plaintiff] was operating at or above either 0.08 or 0.16. In conjunction with what has become [an] exhibit, meaning the [police] report, would that evidence assist you in some way at arriving at an opinion?” At that moment, counsel for the plaintiff objected, stating that he “would object to that because that was not within the context of your motion for reconsideration. And as framed at the beginning of this hearing, it’s my understanding [that] the sole issue here is the reliability of the test results.”
      The hearing officer overruled that objection: “The sole issue is whether or not I can properly make a finding as to whether or not [the plaintiff] was operating with an elevated blood alcohol content, and I believe that the evidence that I rely upon as a hearing officer is the totality of the record, not simply an isolated letter from Dr. Powers or an opinion that is based only on Intoxilyzer printouts. So, if we’re going to explore this issue, I need to be able to satisfy myself as a heating officer that we’ve explored everything within the purview of this gentleman and his ability to testify as an expert, which may well include looking at this sole piece of paper in front of him and in conjunction with the rest of the evidence in this case. So, with all due respect, I would overrule that objection, and we already have as evidence in the case [the defendant’s] exhibit A, which, if we go off the record for a moment, I would like to have the doctor review.”

       In this appeal, we do not consider the propriety of a toxicologist proffering an expert opinion predicated on police reports, testimony of law-enforcement personnel or other evidence extrinsic to the chemical alcohol tests performed.

       This appeal is complicated by the fact that although the sole issue at the February 27,2008 administrative hearing was the validity of the chemical alcohol test results, the hearing officer never made an express finding on that question.

       The defendant appears to overlook this critical distinction, as his appellate brief concludes by asking this court to “reverse the decision of the [Superior Court] and dismiss the plaintiffs administrative appeal of the [department’s] suspension of her operator’s license for two years and six months.” (Emphasis added.)

       As this court has observed, “the hearing officer is presumed to have acted legally and properly until the contrary appears.” Bancroft v. Commissioner of Motor Vehicles, 48 Conn. App. 391, 404, 710 A.2d 807, cert. denied, 245 Conn. 917, 717 A.2d 234 (1998). The defendant has not argued, before the Superior Court or in this appeal, that the hearing officer misapplied § 14-227b (i) (3).

       The fact that the hearing officer ordered the plaintiffs operator’s license suspended for a period of two years, rather than two and one-half years, in the face of identical 0.30 blood alcohol content readings; see part I; indicates that the statutory rebuttable presumption was not applied in the present case.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. BRIAN DAWSON
    (AC 29481)
    Bishop, Haiper and Foti, Js.
    Argued September 2
    officially released November 10, 2009

      Carlos E. Candal, special public defender, for the appellant (defendant).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Seth R. Garbarsky, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Brian Dawson, appeals from the judgment of conviction, following a jmy trial, of assault in the third degree in violation of General Statutes § 53a-61 (a) (l). The defendant claims that the trial court improperly instructed the jury regarding the issue of self-defense, thereby depriving him of his right to present a defense, his right to due process and his right to a fair trial in violation of the sixth and fourteenth amendments to the United States constitution. Because we conclude that the defendant waived his right to challenge the court’s self-defense instruction, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 7, 2005, the defendant and the victim, Miguel Rodriguez, were inmates at the Cheshire Correctional Institution and were both housed in an area known as north block one. At approximately 11:37 a.m., the inmates from north block one were in the process of returning from the dining hall, and many of the inmates were still moving around the cell block. A surveillance camera recording showed Rodriguez waiting for the defendant and then walking up to the defendant outside of the defendant’s cell. The two men were seen speaking and gesturing to each other. The defendant then walked away in the direction of his cell. Moments later, the inmates again were seen speaking to each other, and the defendant raised his hands and gestured at Rodriguez. The defendant appeared to walk away again, and then there was “some movement” and Rodriguez backed up and put his arms up. The two men then began fighting. The video did not show who threw the first punch, and the two men each claimed at trial that it was the other.

Correction officer Richard DeMorro testified that he saw in his peripheral vision that the defendant and Rodriguez were “tossing around on the chairs” in a physical altercation. On seeing the two inmates fighting, DeMorro issued a “code blue,” which alerted the other staff that there was a fight taking place between inmates. The video recording showed that the defendant began choking Rodriguez and then “slammed” him to the floor. At that point, Rodriguez was on the ground and did not continue to fight. Once Rodriguez was on the floor, the defendant twice “stomped” on Rodriguez’ head with his sneaker. DeMorro testified that when a fight is taking place, it is standard procedure to remain at the guard desk and await the arrival of additional officers to help secure the area. DeMorro admitted, however, that he broke protocol and left the desk because “[t]he injuries put upon . . . Rodriguez were starting to get severe.”

Ricardo Ruiz, a physician working in the medical department of the Cheshire Correctional Institution, testified that when he responded to the scene in north block one, Rodriguez was unconscious. Ruiz observed a red shoeprint across the right side of Rodriguez’ face and blood coming from the back, right portion of his head. Ruiz diagnosed Rodriguez as having suffered internal injury to his brain, as evidenced by hemorrhaging, as well as contusions and hematomas in the front, side and back of his head. Ruiz noted that Rodriguez’ subarachnoid hemorrhaging risked causing a host of serious medical conditions and created a substantial risk of death.

Throughout the course of the trial and during summations, the defendant maintained that he acted in self-defense. He argued that he was merely defending himself against Rodriguez, who was waiting for him at his cell, had threatened him and had punched him in the head. The defendant stated that after he was hit, he believed that he was under attack and that it was “him or me.” He admitted to engaging in a “mutual fight” with Rodriguez. The defendant claimed that when he and Rodriguez went to the ground, he fell on top of Rodriguez but could not have slammed him down because he was weak from being hit by Rodriguez. He also claimed that once he had Rodriguez on the ground and was on top of Rodriguez, Rodriguez remained a threat to him because he himself had been injured. The defendant stated that he next got up and “stomp [ed] him.” Specifically, the defendant described how twice he jumped in the air and came down on Rodriguez’ face with his sneakered foot. The defendant testified that he did not know what Rodriguez’ physical condition was at that point in the altercation and that his intention was only to stop Rodriguez from harming him and to keep Rodriguez down because he still feared for his safety. The defendant maintained that he had acted in self-defense during the entire physical altercation.

The juiy found the defendant not guilty of the charge of assault in the first degree with a dangerous instrument. On the lesser included offenses, the juiy found the defendant not guilty of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (1) and 53a-59 (a) (1), and assault in the second degree in violation of General Statutes § 53a-60 (a) (1), but found him guilty of assault in the third degree in violation of § 53a-61 (a) (1). The court rendered judgment of conviction in accordance with the jury’s verdict and sentenced the defendant to one year imprisonment to be served consecutively to the sentence that he was then serving. This appeal followed.

The defendant claims that the court improperly instructed the jury on self-defense and, thus, deprived him of his constitutional rights to present a defense, to due process and to a fair trial. The defendant argues that the court incorrectly substituted an objective standard for the subjective-objective standard, which is contemplated by the self-defense statute, thereby confusing and misleading the jury. Additionally, the defendant argues that it was error to include an instruction regarding the duty to retreat because such an instruction is appropriate only when deadly force is alleged, and it was not alleged in this case.

Practice Book § 42-16 provides in relevant part: “An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of exception. . . .” Indeed, it is well settled that absent exceptional circumstances, it is unfair to the trial court, as well as the state, to allow a defendant to pursue a claim of error on appeal that was not raised before the trial court or that conflicts with the theory of defense or defense strategy pursued at trial. See State v. Johnson, 289 Conn. 437, 461, 958 A.2d 713 (2008); see also Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977) (“[ojrderly procedure requires that the respective adversaries’ views as to how the jury should be instructed be presented to the trial judge in time to enable him to deliver an accurate charge and to minimize the risk of committing reversible error”). The defendant acknowledges that he failed to preserve his claim by taking exception to the charge as given. As a result, he now requests review under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or in the alternative, under the plain error doctrine. See Practice Book § 60-5.

Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two Golding requirements involve whether the claim is reviewable . . . and the second two involve whether there was constitutional error requiring a new trial. . . . [I]n the usual Golding situation, the defendant raises a claim on appeal [that], while not preserved at trial, at least was not waived at trial. ... [A] constitutional claim that has been waived does not satisfy the third prong of the Golding test because, in such circumstances, we simply cannot conclude that injustice [has been] done to either party ... or that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial .... To reach a contrary conclusion would result in an ambush of the trial court by permitting the defendant to raise a claim on appeal that his or her counsel expressly had abandoned in the trial court.” (Citations omitted; internal quotation marks omitted.) State v. Holness, 289 Conn. 535, 542-43, 958 A.2d 754 (2008).

Preliminarily, the state maintains that the defendant cannot prevail under Golding because he waived any objection to the propriety of the instruction challenged in his appeal. As noted previously, when a defendant has waived the constitutional claim being raised on appeal, the third prong of the Golding test is not satisfied and the unpreserved claim will not be reviewed. In this instance, because we find that the defendant waived any claim of error regarding the court’s self-defense instruction, his claim fails to meet the third prong of the Golding test. Thus, we decline to review the defendant’s claim on its merits because the defendant, at trial, waived the claim he now asserts.

The following additional facts are relevant to the state’s claim of waiver. On September 21, 2007, following the close of the state’s case, there was a discussion outside the presence of the jury during which the court asked both counsel how far along they were with their preparation for proposed jury instructions. Counsel for the defendant responded, stating that “[m]y main focus has been [that] we will be asking for a self-defense charge, and I don’t think anything, I don’t at this point intend to ask for charges on any lesser included offenses.” On September 25, 2007, the next day the court was in session, counsel for the defendant stated on the record, “I will say that I handed the prosecutor our request for jury instructions. And my reference is to the evidence, to some degree I anticipate [the defendant’s] evidence today, but it’s just in regard to the self-defense request to charge.” Prior to the start of the afternoon court session on the same day, the prosecutor handed to the court the state’s preliminary request to charge. Outside the presence of the jury, the court told the prosecutor that “[y]our self-defense request is this; it looks as though it’s the same as [defense counsel’s].” The prosecutor responded by saying, “I’m sure it is, it was taken right from the judicial page;1 did not read [defense counsel’s preliminary request to charge].” Defense counsel did not make any comment during this discussion with the court.

Later that same afternoon, after the defense had rested, the court conducted a charge conference off the record in chambers. Subsequently, the court discussed the charge with counsel on the record. At the start of the discussion on the record, the court indicated that it had given the parties a document that was a preview of its intended jury instruction and wanted to go through it with counsel on the record. The court proceeded to review its written proposed changes in significant detail. When the parties reached the issue of self-defense, the court stated: “Then, with respect to self-defense, I think both parties have generally included the same language. It’s the sample 2.39 from the instructions online, which is the general instruction of self-defense. So, I’ll include that.” Defense counsel responded: “It’s pretty much what I gave you.” The court then continued on with other unrelated issues.

A short time later, defense counsel again addressed the self-defense instruction by interjecting, “[a]nd the only other issue, I think, in my request on self-defense, I ask for some sort of language indicating that self-defense is a complete defense with regar d to all of the charges . . . .’’In response, the state noted that the judicial sample instruction contained the phrase, “if you find there is self-defense, you must acquit.” There was no further discussion regarding that specific issue, but the state did raise an objection regarding a phrase included in the defendant’s proposed instruction. The state wanted to replace the phrase, “one of those is the physical force or the product of illegal combat,” with the phrase, “mutual combat,” as it was the language used in a more recent update of the judicial sample charge. Defense counsel did not object but only noted: “I may have been using an older version.” Finally, the court asked the parties if there were any other issues that needed to be included. Defense counsel responded: “No, [Your Honor].”

The following day, September 26, 2007, prior to the start of closing arguments, the court informed the parties of changes that were reflected in the court’s second draft of its jury charge. The court went through each of those changes on the record, none of which pertained to the self-defense charge. When the court had finished, it asked the parties if there were “any other changes that [they] would seek.” Defense counsel responded: “No, [Your Honor].”

The defendant’s claim of self-defense featured prominently in both parties’ closing arguments. The prosecutor argued that it was not a case of self-defense. He also told the juiy that it would be given an instruction regarding self-defense and referred specifically to the factors listed in the instruction. On this basis, the state argued that the defendant should not prevail in his claim of self-defense. The prosecutor then argued that because the defendant was engaged in “mutual combat” and used “unreasonable” force, the self-defense claim should fail. Conversely, the defense attorney crafted his entire closing argument around the theory that the defendant was acting in self-defense, that he was in danger and that he had to keep fighting until the threat was over.

When the arguments were finished, the court instructed the jury. In the challenged portion of the self-defense charge, the court stated: “Similarly, you must determine whether the degree of force used was reasonable. The test for the degree of force in self-defense is a subjective-objective test, meaning that it has some subjective aspects and some objective aspects. Self-defense, thus, requires the jury to measure the justifiability of the defendant’s actions from a subjective perspective, that is, what the defendant reasonably believed under the circumstances presented in this case and on the basis of what the defendant perceived them to be. [General Statutes §] 53a-19 (a) requires, however, that the defendant’s belief must have been reasonable and not irrational or unreasonable under the circumstances; that is, would a reasonable person in the defendant’s circumstances have reached that belief? That is the objective aspect of the test. It is both a question of what his belief was and whether it was reasonable.”

Additionally, the defendant challenges the following portion of the jury charge: “However, you must find that the use of physical force was not justified if the state proves beyond a reasonable doubt that, one, the defendant provoked the use of physical force by the other person. In order to provoke the use of physical force by another, it is not enough that the defendant by his conduct elicited the use of physical force by another; rather, the defendant must have embarked upon such conduct with the specific intent to provoke the other into using physical force and intending to cause the other physical injury or death. Two, the physical force was the product of mutual combat that [was] not authorized by law, or, three, the defendant was the initial aggressor and did not adequately retreat. If you find that the defendant was the initial aggressor, the defendant’s use of force may still be justified if he withdrew from the encounter and made it clear to the other person that he was retreating from the use of force.”

After the charge, outside the presence of the jury, the state noted that it had “one minor exception” regarding the self-defense instruction. The state argued that in the section that listed the three exceptions for which the defendant was not entitled to a defense of self-defense, the word “or” was used between the second and third exceptions, but not between the first and second exceptions. The prosecutor requested the addition of the word “or” to the printed copy of the instruction that would be provided to the jury. When asked for comment, the defense attorney replied that the correction was “so slight as hardly to be needed,” but he did not object. Defense counsel asked if the court was going to instruct the jury on the use of the video recording, but on being informed that the court already did so, he did not take exception to any part of the jury charge.

With these procedural facts at hand, we now turn to the applicable law. “Waiver is an intentional relinquishment or abandonment of a known right or privilege. ... It involves the idea of assent, and assent is an act of understanding. . . . The rule is applicable that no one shall be permitted to deny that he intended the natural consequences of his acts and conduct. . . . Connecticut courts have consistently held that when a party fails to raise in the trial court the constitutional claim presented on appeal and affirmatively acquiesces to the trial court’s order, that party waives any such claim.” (Internal quotation marks omitted.) State v. Hampton, 293 Conn. 435, 448-49, 978 A.2d 1089 (2009). “[T]he reason that the objection must be raised at trial is to afford the court an opportunity to correct an allegedly improper instruction. . . . When we speak of correcting the claimed error, we mean when it is possible during that trial, not by ordering a new trial. We do not look with favor on parties requesting ... an instruction or a procedure to be followed, and later claiming that that act was improper.” (Citation omitted; internal quotation marks omitted.) State v. Velez, 113 Conn. App. 347, 358, 966 A.2d 743, cert. denied, 291 Conn. 917, 970 A.2d 729 (2009).

Our Supreme Court recently has held that a party will not be found to have waived a claim of instructional error unless it is shown that he “actively induced” the trial court to give the instruction that he challenges on appeal. State v. Ebron, 292 Conn. 656, 682, 975 A.2d 17 (2009); see also State v. Madigosky, 291 Conn. 28, 35 n.7, 966 A.2d 730 (2009) (acquiescence at trial to jury instruction challenged on appeal, without more, does not constitute induced error that would preclude review under Golding). Conversely, when there is an indication that the defendant actively induced the trial court to give the instruction that he now challenges on appeal, the defendant’s claim is waived and is thus not reviewable under Golding. State v. Madigosky, supra, 35 n.7.

We conclude, consistent with the court’s reasoning in Ebron, that the defendant actively induced the court to give the instruction that he now challenges on appeal. It is asserted in the defendant’s brief that the defendant did not file a request to charge. The defendant literally may be correct that he did not “file” a request to charge, in that the trial record does not include a copy of the defendant’s request to charge, but the record makes it abundantly clear that he did submit one to the court. The record is replete with references to the defendant’s request to charge. Defense counsel stated on the record that he gave the prosecutor a copy of “our request for jury instructions,” and he noted that the defendant’s request to charge on self-defense was based in part on anticipated testimony from the defendant. Upon receiving a copy of the state’s request to charge, the court commented that the state’s requested self-defense charge appeared to be the same as that requested by the defendant.

Although the record does not contain a copy of the defendant’s request to charge regarding self-defense from which to compare the charge that was given, the record is sufficient to indicate that the charge was consistent with the defendant’s request. The court, the prosecutor and defense counsel all mentioned at some point in the record that they had used the sample instruction for self-defense, taken from the judicial branch Internet site, when drafting their proposed or requested jury instructions. After the court’s comment to the prosecutor that his request to charge looked as though it was the same as defense counsel's, the prosecutor responded by saying, “I’m sure it is, it was taken right from the judicial page.” See footnote 7 of this opinion. Significantly, following the charge conference that was held in chambers, the court went through its proposed jury instruction on the record. When the parties reached the issue of self-defense, the court stated: “Then, with respect to self-defense, I think both parties have generally included the same language. It’s the sample 2.39 from the instructions online, which is the general instruction of self-defense. So, I’ll include that.” Defense counsel responded: “It’s pretty much what I gave you.” This section of the trial transcript clearly shows that the court’s proposed instruction for self-defense largely mirrored that which was requested by the defendant. This colloquy also reveals that the defendant actively induced the court to use the language that was being proposed by the court. The defendant’s remark, “[i]t’s pretty much what I gave you,” indicates the defendant’s acknowledgment that his request was being followed by the court and that he did not merely acquiesce to the court’s instruction.

Further, a careful review of the record presents the strong inference that the specific language being challenged in the court’s self-defense instruction is identical to the language used in the state’s and the defendant’s requests to charge. We know from the record that the state took the language in its request to charge directly from the judicial sample instruction, and because we know that the court’s self-defense charge was exactly the same as the state’s request to charge, we also know that the charge as given was the same as the judicial sample instruction. Because a fair review of the record demonstrates that the defendant also used the judicial sample instruction for his request to charge, we can infer that the charge given by the court was very similar, if not identical, to that requested by the defendant.

In sum, unlike Ebron, the defendant here did not merely acquiesce to the court’s jury instructions. To the contrary, he played an active role in crafting the charge given by the court. Both the state and the defendant spent considerable time during closing arguments addressing the issue of self-defense. The record shows that defense counsel was concerned with the self-defense instruction above all others, as is evident from his statement that “my main focus has been [that] we will be asking for a self-defense charge.” Multiple times during the trial, the parties’ attention was directed to the self-defense charge, and in none of those discussions did the defendant raise any question as to the propriety of the proposed self-defense charge. When asked if there were any other issues, the defendant said on multiple occasions: “No, [Your Honor].” On the basis of the entire record, we find that the defendant played an active role in advocating for the specific instruction that he now challenges. Accordingly, he waived his right to challenge that instruction on appeal. Having waived his right to challenge the propriety of the court’s instruction, the defendant’s claim fails to satisfy the third prong under the Golding test for unpreserved constitutional claims, and, thus, we do not review the claim on its merits.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-61 (a) provides in relevant part: “A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person . . .

       The defendant testified that the “movement” seen on the video recording was Rodriguez throwing the first punch. The state maintained, however, that it was the defendant who threw the first punch, and it appears from the record that the video recording was inconclusive as to this point.

       The day after the incident, the state charged the defendant with assault in the first degree in violation of General Statutes § 53a-59 (a) (1). On September 21, 2007, the state filed an amended information charging the defendant with assault in the first degree with intent to cause serious physical injury in violation of § 53a-59 (a) (1) and assault in the first degree with extreme indifference to human life in violation of § 53a-59 (a) (3). On September 26, 2007, the state filed an amended information charging the defendant with assault in the first degree with a dangerous instrument in violation of § 53a-59 (a) (1).

       General Statutes § 53a-19 (a) provides in relevant part: “[A] person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.”

       The state does not assert that the claim fails to meet either of the first two prongs of Golding. We agree that the record is adequate for review and that the claim is of constitutional magnitude. See State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995) (“[a]n improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension” [internal quotation marks omitted]). Thus, we do not address these prongs in any greater detail.

       We also decline to grant review under the plain error doctrine. “[The] [p]lain [e]rror [r]ule may only be invoked in instances of forfeited-but-reversible error . . . and cannot be used for the purpose of revoking an otherwise valid waiver. This is so because if there has been a valid waiver, there is no error for us to correct. . . . The distinction between a forfeiture of a right (to which the [p]lain [e]rror [r]ule may be applied) and a waiver of that right (to which the [p]lain [e]rror [r]ule cannot be applied) is that [wjhereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62, 70-71, 967 A.2d 41 (2009).

       The Connecticut criminal jury instructions are available on the Connecticut judicial branch website. See http://jud.ct.gov/ji/criminal.


author: ALVORD, J.

text:
    PAUL CONEY v. COMMISSIONER OF CORRECTION
    (AC 29618)
    Lavine, Alvord and West, Js.
    Argued September 21
    officially released November 10, 2009

      Mark Diamond, special public defender, for the appellant (petitioner).

      Jo Anne Sulik, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Terence D. Mariani, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

ALVORD, J.

The petitioner, Paul Coney, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the court improperly (1) denied his petition for certification to appeal and (2) denied his petition for a writ of habeas corpus that was based on his claim of ineffective assistance of counsel. We dismiss the petitioner’s appeal.

The relevant facts and procedural history are set forth in the decision of our Supreme Court disposing of the petitioner’s direct appeal. “On August 20,1999, the [petitioner] met an acquaintance, Terence Conyers, at a bar in Waterbury. Also present at the bar that evening was the victim, Shawn Howard. At some point during the night, while the [petitioner] and the victim were seated in close proximity to one another, the victim accused the [petitioner] of being one of a group of individuals who had assaulted him approximately five months earlier. The [petitioner] denied such involvement, and a verbal altercation ensued. The [petitioner] and the victim then agreed to settle their differences by fighting outside the bar.

“As the [petitioner] and the victim exited the bar through the back door, a number of other persons followed, ostensibly to watch the fight. Before the fight began however, the [petitioner] removed a loaded revolver that he had secreted on his person and began waving the weapon. At the time the [petitioner’s] gun was brandished, the distance between the [petitioner] and the victim was approximately eight to ten feet.

“Upon seeing the weapon, the group that had gathered to observe the fight scattered. As a result of this hurried mass exodus, no one witnessed the subsequent interaction between the [petitioner] and the victim. Shortly thereafter, the [petitioner] shot the victim once in the left chest area and twice in the lower right abdomen area.” State v. Coney, 266 Conn. 787, 791-92, 835 A.2d 977 (2003). The victim died from his injuries. Id., 792.

The petitioner was arrested and charged with murder in violation of General Statutes § 53a-54a (a) and criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a). At the jury trial, “the [petitioner’s] testimony as to the sequence of events essentially mirrored the state’s presentation in all material respects. The one significant divergence regarded the [petitioner’s] testimony about what had occurred after he had brandished his weapon. The [petitioner] testified that, after he had exhibited the weapon, the victim attempted to strip the gun from him. The [petitioner] further testified that he and the victim began to struggle for control of the weapon, and the gun ‘went off three times. After the first two shots had been fired, the victim continued to wrestle for the weapon but, following the third discharge, the victim fell to the ground.

“On cross-examination, the [petitioner] estimated the distance between the victim and the weapon at the time the three shots were fired. In the [petitioner’s] words, the two individuals were struggling over the weapon and ‘twirling around’; the two ‘were right on each other basically’; and the weapon was within inches of the victim, if not in direct contact with him, at the time it discharged.” State v. Coney, supra, 266 Conn. 792-93.

On rebuttal, the state called Robert K. O’Brien, a criminalist from the state police forensic laboratory. O’Brien, at the request of defense counsel Dennis Harri-gan, had analyzed the weapon and the victim’s clothing to determine the approximate distance from the muzzle of the gun to the clothing at the time the three gunshots were fired. O’Brien’s report, which Harrigan had received and reviewed prior to trial, indicated that the hole in the chest area of the target material was of a contact type of origin. With respect to the two gunshots to the lower abdomen area, however, the report did not specify exact distances. After Harrigan spoke with O’Brien about the report at the time he received it, Harrigan concluded that O’Brien was unable to reach an opinion as to the distances involved in the discharges creating the two holes in the abdomen area. For that reason, Harrigan was surprised when O’Brien testified on rebuttal that the two holes in the lower abdomen area of the target material were caused by a firing from a distance of four feet or more. Id., 793-95.

Harrigan immediately requested a continuance to contact Peter DeForest, a forensic consultant, to discuss O’Brien’s opinions and to determine if DeForest could be used as a surrebuttal witness. The court granted the motion for a continuance until the following morning. The following morning, Harrigan requested additional time to provide an offer of proof. The court reluctantly agreed. The next morning, which was a Friday, Harrigan indicated that DeForest needed the weekend to perform his own testing and that, if he was able to form an opinion, DeForest would be available to testify in surrebuttal the following Monday. The court denied the defense motion for a continuance, noting that Harrigan’s cross-examination of O’Brien had been thorough, thereby ameliorating any possible harm occasioned by the failure to present a defense expert witness to refute O’Brien’s testimony. Id., 795-97. The jury returned its verdict finding the petitioner guilty of both charges.

On direct appeal, the petitioner claimed that the trial court’s denial of his motion for a continuance to procure an expert surrebuttal witness deprived him of his due process right to a fair trial as protected by the federal constitution. Our Supreme Court rejected that claim because the petitioner had not sufficiently demonstrated any prejudice flowing from the denial of the motion. “The record reveals that nothing in the [petitioner’s] proffer in connection with DeForest indicated that DeForest had an opinion inconsistent with that of O’Brien, or that, if given the opportunity to conduct an independent examination, DeForest would have arrived at conclusions different than those of O’Brien.” Id., 803. The Supreme Court affirmed the judgment of conviction.

Following his unsuccessful appeal, the petitioner filed an amended petition for a writ of habeas corpus, in which he alleged that Harrigan rendered ineffective assistance of counsel by failing to call a ballistics expert witness to testify on his behalf at the criminal trial. At the habeas trial, the court heard testimony from Harrigan, O’Brien and DeForest. The court, by memorandum of decision filed January 7, 2008, denied the habeas petition on the ground that the petitioner had failed to prove that Harrigan’s performance was deficient or that he had suffered any prejudice from Harri-gan’s failure to call DeForest to testify at the criminal trial. The court denied the petition for certification to appeal from the judgment denying the habeas petition. This appeal followed.

We first consider the petitioner’s claim that the habeas court improperly denied his petition for certification to appeal. The standard of review is well settled. “We examine the petitioner’s underlying claim ... to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. ... In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . .

“In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court 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.” (Internal quotation marks omitted.) McClam v. Commissioner of Correction, 98 Conn. App. 432, 435-36, 909 A.2d 72 (2006), cert. denied, 281 Conn. 907, 916 A.2d 49 (2007). “A reviewing court need not address both components of the inquiry if the [petitioner] makes an insufficient showing on one.” (Internal quotation marks omitted.) Smith v. Commissioner of Correction, 89 Conn. App. 134, 139, 871 A.2d 1103, cert. denied, 275 Conn. 909, 882 A.2d 676 (2005).

With this standard in mind, we conclude that the habeas court correctly determined that the petitioner failed to demonstrate that his defense was prejudiced by Harrigan’s failure to call a ballistics expert to testify on his behalf at the criminal trial. Accordingly, the court did not abuse its discretion in denying the petition for certification to appeal.

To demonstrate prejudice, a petitioner must prove that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S. Ct. 1368, 164 L. Ed. 2d 77 (2006). In its memorandum of decision, the habeas court made the following findings that were supported by the evidence presented at trial. “DeForest did not propose flatly to contradict O’Brien. Rather, the ultimate of [the] opinion of DeForest was that there was insufficient information to reach a conclusion about the distance from which the petitioner fired the two [gun]shots in question. This point was the same as the thrust of Harrigan’s cross-examination of O’Brien, which culminated with the admission that distance determination is not an ‘exact science.’ ”

The court also noted that there was ample additional evidence that contradicted the petitioner’s claim that the shooting was accidental. Although the petitioner testified that the gun accidentally fired, the jury was made aware of the fact that the petitioner had been convicted of seven prior felonies. The petitioner was the only individual with a gun, a revolver, which the jury may have reasoned would be unlikely to fire three times by accident during a struggle. The court also noted that the petitioner fled from the scene, lied to his girlfriend about the incident, threw the revolver into a pond, disposed of his bloodstained pants and lied to the police at the time of his arrest. On the basis of those findings, the habeas court concluded that it was highly unlikely that the testimony of DeForest would have made any difference in the outcome of the criminal trial.

Upon our examination of the record and briefs, as well as the court’s resolution of the issues presented in the habeas petition, we are not persuaded that the court abused its discretion in denying the petition for certification to appeal. The petitioner has not demonstrated that the issues presented are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions are adequate to deserve encouragement to proceed further. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

The appeal is dismissed.

In this opinion the other judges concurred.

       The record reflects that the petitioner also is known as Stephen Coney. See State v. Coney, 266 Conn. 787, 835 A.2d 977 (2003).

       “Distance determination testing is a scientific process by which, through analyzing a weapon that has been involved in a shooting and the ‘target’ material, such as clothing, struck by the bullet, an approximation may be made as to the distance between the muzzle of the weapon and the target material at the time of discharge.” State v. Coney, supra, 266 Conn. 793 n.7.


author: HARPER, J.

text:
    JEROME HILL v. COMMISSIONER OF CORRECTION
    (AC 29594)
    Flynn, C. J., and Harper and Ilennessy, Js.

      Argued September 10
    officially released November 10, 2009

      W. Theodore Koch III, special public defender, with whom, on the brief, was William T. Koch, Jr., special public defender, for the appellant (petitioner).

      AdamE. Mattei, special deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, former state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

HARPER, J.

The petitioner, Jerome Hill, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court, Schu-man, J., denying his amended petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion when it denied his petition for certification to appeal. He claims that the habeas court improperly found that the trial court was correct in finding him competent to enter a plea and that the habeas court improperly found that his trial counsel provided effective assistance. Our examination of the record and briefs persuades us that the denial of the petition for certification was proper. Accordingly, we dismiss the petitioner’s appeal.

After pleading guilty under the Alford doctrine; North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); to three counts of sexual assault in the first degree and one count of attempt to commit sexual assault in the first degree, the petitioner was sentenced to an effective term of twenty years imprisonment, suspended after fifteen years, and twenty years probation. Thereafter, on May 16, 2005, the petitioner filed a petition for a writ of habeas corpus. The following procedural history and factual findings of the habeas court are relevant to the disposition of the petitioner’s appeal.

Shortly after the petitioner was arrested, senior assistant public defender William R. Schipul entered an appearance on his behalf. At Schipul’s request, the petitioner was referred to a psychologist, Ralph S. Welsh, for a psychological evaluation. Welsh evaluated the petitioner on May 15, 2001, and noted that based on his observations, the petitioner was “within the mild range of mental retardation” and had “intellectual limitations in all areas.” He further noted that the petitioner’s psychological tests revealed a “pattern consistent with a long-term alcohol dementia . . . .” Welsh reevaluated the petitioner on August 3,2001. After this reevaluation, Welsh concluded that “the [petitioner], because of his mild dementia, does not fully understand the charges against him, is going to have difficulty assisting his attorney in his own defense and appears to be an individual who does not fully comprehend the gravity of the charges against him.” After Welsh’s reevaluation, the petitioner was evaluated by the Bridgeport office of court evaluations on September 4, 2001. At a competency hearing on October 1,2001, a member of the team that evaluated the petitioner for the office of court evaluations testified that the petitioner was not, at that time, competent but that there was a substantial probability that he could be restored to competency. The court, Rodriguez, J., found the petitioner not competent but restorable and sent him to the Connecticut Valley Hospital, Whiting Forensic Division, to be restored to competency.

On December 11, 2001, a second competency hearing was held. At this hearing, the court had before it a report issued by mental health experts at Connecticut Valley Hospital that concluded that “[the petitioner] possesses rational as well as factual understanding of the proceedings against him. . . . [The petitioner] can effectively assist in his own defense. He is aware of the charges against him and the possible penalties. ... It is therefore, the recommendation of the team that [the petitioner] be found competent to stand trial at the forthcoming hearing.” The court also heard the testimony of Harry Hernandez, a social worker who was a member of the team that treated the petitioner at Connecticut Valley Hospital. Hernandez testified that “[w]e believe that [the petitioner] can participate in this—in working with his attorney and discussing his charges with the attorney and working on his defense.” At the conclusion of the competency hearing, the court found that the petitioner was competent to stand trial.

On April 3, 2002, the court accepted the petitioner’s plea of guilty under the Alford doctrine to three counts of sexual assault in the first degree and one count of attempt to commit sexual assault in the first degree. During the plea canvass, he was again represented by Schipul.

After the petitioner entered his plea but before he was sentenced, Welsh evaluated him twice more, on April 18 and June 6, 2002. After each evaluation, Welsh wrote that in his opinion, the petitioner was incapable of understanding the court proceedings he was involved in and was not competent.

On June 11, 2002, a hearing was held to determine whether a new competency evaluation should be ordered. At the hearing, Welsh testified in regard to his two latest evaluations. Welsh was questioned by both Schipul and the prosecution. Schipul argued at length that the court should order another competency review by the state mental health officials on the basis of Welsh’s reports. The prosecution counterargued that Welsh’s reports in essence repeated the same conclusions he had reached earlier regarding the petitioner’s competence and that Welsh’s conclusions regarding the petitioner’s competence were incorrect. Alter hearing arguments from both counsel, the court found that “[n]o reasonable doubt concerning [the petitioner’s] competency has been raised thus far,” and, therefore, there was no need to order a new competency evaluation before the petitioner was sentenced.

As a result, on June 28, 2002, the court sentenced the petitioner. At the sentencing hearing, the court weighed the petitioner’s various mental health issues against the “heinous” nature of his crimes. The court also noted that “the plea agreement that [the petitioner’s] lawyer worked very hard to get for [him] is fair under all of the circumstances.”

On May 16, 2005, the petitioner filed his petition for a writ of habeas corpus. The habeas trial was based on amended petitions filed July 30 and December 12, 2007, in which the petitioner alleged that it was improper for the court to accept his plea of guilty because he was not competent at the time it was entered and that he was deprived of the effective assistance of trial counsel. As to the claim related to the effectiveness of his trial counsel, the petitioner alleged, in substance, that Schi-pul was ineffective in that he failed to make the case adequately that the petitioner was incompetent to enter a plea.

By memorandum of decision filed December 20,2007, Judge Schuman denied the petition, declining to second-guess the decision of the trial court regarding the petitioner’s competence and finding that the petitioner failed to prove ineffective assistance of counsel. The court thereafter denied the petition for certification to appeal from its decision. This appeal followed. Additional facts will be set forth as necessary.

We begin by setting out our standard of review. In reviewing a petitioner’s challenge to an adverse judgment of the habeas court, we apply a two part test. When confronted with a denial of certification to appeal from an adverse ruling of the habeas court, a petitioner must first “demonstrate that the habeas court’s ruling constituted an abuse of discretion.” Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). “To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Weinberg v. Commissioner of Correction, 112 Conn. App. 100, 106, 962 A.2d 155, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009). If the petitioner is unable to overcome this initial hurdle, our inquiry ends. If, however, he succeeds in establishing an abuse of discretion, “the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” Simms v. Warden, supra, 612.

I

We will first review the petitioner’s claim that the habeas court improperly found that the trial court properly determined that he was competent to enter a plea of guilty and be sentenced.

Although it is well established that a person cannot be convicted of or plead guilty to a crime while he is legally incompetent to stand trial; see, e.g., State v. Gonzalez, 205 Conn. 673, 686, 535 A.2d 345 (1987); our courts begin with the presumption that an accused is competent to stand trial. General Statutes § 54-56d (b). “Section 54-56d establishes the procedural requirements for competency determinations. A court may undertake a competency examination upon a motion by the defendant or the state and in some circumstances must evaluate the defendant’s competency sua sponte.” State v. Johnson, 253 Conn. 1, 22, 751 A.2d 298 (2000). “[A] trial court must order a competency hearing at any time that facts arise to raise a reasonable doubt about the defendant’s competency to continue with the trial.” (Emphasis added.) State v. DesLaurier, 230 Conn. 572, 589 n.12, 646 A.2d 108 (1994).

“[A] defendant is not competent if the defendant is unable to understand the proceedings against him or her or to assist in his or her own defense.” General Statutes § 54-56d (a). “[W]e review the trial court’s determination of competency to plead guilty under an abuse of discretion standard. Essentially, we examine the relevant record to determine whether the trial court reasonably could have concluded that the petitioner was competent to plead guilty. In doing so, we give deference to the trial court’s findings of fact because the trial court has the benefit of firsthand review of the defendant’s demeanor and responses during the canvass.” State v. Johnson, supra, 253 Conn. 27 n.26.

Judge Schuman ruled that it was not constitutional error for Judge Rodriguez to accept the petitioner’s guilty plea and impose sentence. The habeas court declined to “second-guess” the decision of the trial court that the petitioner was competent to plead guilty, finding that “Judge Rodriguez relied largely on his opportunity, which this court did not have, to observe the petitioner at the time and hear the testimony of . . . Welsh. This opportunity put Judge Rodriguez in an advantageous position.” Finally, the habeas court found that “the question of competence is a legal rather than a medical conclusion. . . . There is no basis to say that Judge Rodriguez reached the wrong conclusion based on the evidence before him.”

We agree with the habeas court that the findings of the trial court should not be disturbed. Before the petitioner was sentenced, the trial court held no fewer than three separate hearings on the subject of his competency, was presented with conflicting reports by qualified experts as to the petitioner’s competency and, more importantly, had the opportunity to consider these reports after having witnessed the petitioner’s demeanor and behavior firsthand. Although Welsh testified at the hearing held just before the petitioner was sentenced in June, 2002, that the petitioner was unable to understand the proceedings or to contribute to his defense, Welsh’s conclusions, in sum and substance, did not contradict his earlier evaluations of the petitioner’s mental state. He simply disagreed with other reports and testimony that indicated that the petitioner was competent to stand trial. The trial court, citing the correct legal standard, stated on the record that “[t]he court today finds that there is no reasonable doubt concerning the [petitioner’s] competency raised by . . . Welsh. The court makes that finding based upon the evidence presented today and based upon the prior evaluations, which the court has referred to, and having considered again the evaluations made by . . . Welsh.” (Emphasis added.)

Although the petitioner submitted new expert testimony regarding his competency at his habeas trial, this evidence was not available to the trial court and, in any event, the testimony of these experts does not seriously call into question the prior findings of mental health experts who evaluated the petitioner at the time he pleaded and whom the trial court credited. Given the deference that is to be afforded to the trial court on review, and after our own review of the evidence that was before it, we cannot conclude that the habeas court abused its discretion in determining that there was no error with regard to the trial court’s finding that the petitioner was competent.

II

We next review the petitioner’s claim of ineffective assistance of counsel. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Mock v. Commissioner of Correction, 115 Conn. App. 99, 103-104, 971 A.2d 802, cert. denied, 293 Conn. 918, 979 A.2d 490 (2009).

“A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice. . . . For ineffectiveness claims resulting from guilty verdicts, we apply the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Levine v. Manson, 195 Conn. 636, 639-40, 490 A.2d 82 (1985). For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59,106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), which modified Strickland’s prejudice prong.” (Citations omitted; internal quotation marks omitted.) Baillargeon v. Commissioner of Correction, 67 Conn. App. 716, 721, 789 A.2d 1046 (2002). Therefore, because the petitioner accepted his trial counsel’s advice to plead guilty, to prevail on the ineffective assistance of counsel claim, the petitioner has the burden of (1) demonstrating that the advice was not within the range of competence demanded of attorneys in criminal cases and (2) showing “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Internal quotation marks omitted.) Id., 722.

“To satisfy the performance prong, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. ... A petitioner who accepts counsel’s advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases. . . . The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. . . . Reasonably competent attorneys may advise their clients to plead guilty even if defenses exist. . . . A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time.” (Citations omitted; internal quotation marks omitted.) Id., 721-22.

The habeas court found that Schipul “was and is an experienced trial attorney who had many interactions with the petitioner and considerable information about him from other sources.” Schipul, recognizing the petitioner’s mental impairment, referred the petitioner to Welsh for psychological evaluation on more than one occasion and also called Welsh as a witness on behalf of the petitioner. The habeas court found that in regard to the June, 2002 hearing to determine whether another competency evaluation should be ordered, “although [Schipul] personally saw no basis to relitigate the issue of competency, he raised it in the interests of justice and out of an abundance of caution.” The habeas court proceeded to find that “Schipul’s performance was exemplary in that he renewed the issue of competence in June, 2002, in the interests of justice even though he did not see a strong basis to question competency at that point.” All of the court’s factual findings regarding Schipul’s performance are supported by the record.

After considering the parties’ written and oral arguments to this court, and our own review of the record and transcript, we conclude that there is no indication in the record that Schipul’s performance was deficient; to the contrary, all indications are that he provided the petitioner with a careful and competent defense. Because the petitioner has failed to satisfy the first prong of the Strickland test for ineffective assistance of counsel, we need not analyze whether counsel’s performance unfairly prejudiced the petitioner. In sum, we conclude that the petitioner has failed to demonstrate that the habeas court abused its discretion in denying certification to appeal as to the claim of ineffective assistance of trial counsel.

The appeal is dismissed.

In this opinion the other judges concurred.

       Schipul testified at the habeas trial that he initially had requested these examinations by Welsh for the purpose of mitigation at sentencing, not to raise the issue of competency. When, however, Welsh raised the issue of competency again, Schipul felt compelled to raise it with the court and requested a hearing on competency.

       During the petitioner’s habeas trial, Schipul testified that he has been a full-time public defender with the public defender office in Bridgeport since 1982 and has tried more than seventy-five criminal cases to verdict and has been involved with “hundreds” of cases that have been disposed of by plea agreement.

       Schipul testified that although Welsh’s findings in April and June, 2002, had “surprised” him, he raised the issue with the court again because he “wanted to give [the petitioner] the benefit of the doubt.”

       The petitioner also claims that, his ineffective assistance of counsel claim aside, the petition for a writ of habeas corpus should be granted because he “was convicted and sentenced while he was incompetent” and that this amounts to a constitutional violation. We agree with the petitioner that the trial court could not have accepted the guilty plea of a person who is legally incompetent. State v. Gonzalez, supra, 205 Conn. 686. The petitioner, however, was first given a full and fair opportunity to litigate the subject of his competency before the trial court. He then had a second opportunity to litigate this issue before the habeas court, in which the court permitted him to present new evidence that was unavailable to the trial court. This claim is not distinguished by the appellant in any way from the claims addressed and decided in this opinion.


author: Per Curiam.

text:
    ROBERT WARD v. COMMISSIONER OF CORRECTION
    (AC 30343)
    Beach, Robinson and Schaller, Js.
    Argued September 11
    officially released October 13, 2009
   Per Curiam.

The judgment is affirmed.


text:
    NYRON DUMAS v. COMMISSIONER OF CORRECTION
    (AC 29888)
    Flynn, C. J., and Alvord and Sullivan, Js.
    Argued September 15
    officially released October 13, 2009
   Per Curiam.

The appeal is dismissed.


text:
    CORNELIUS J. HARGROVE v. COMMISSIONER OF CORRECTION
    (AC 29817)
    Bishop, Beach and Hennessy, Js.
    Argued September 24
    officially released October 20, 2009
   Per Curiam.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. DAVID ABRAHAMS
    (AC 29928)
    Flynn, C. J., and Lavine and Alvord, Js.
    Argued September 21
    officially released October 20, 2009
   Per Curiam.

The judgment is affirmed.


text:
    FRANCISCO JIMENEZ v. COMMISSIONER OF CORRECTION
    (AC 29973)
    Beach, Alvord and Peters, Js.
    Submitted on briefs September 25
    officially released October 20, 2009
   Per Curiam.

The appeal is dismissed.


text:
    CHARLES W. COLEMAN v. COMMISSIONER OF CORRECTION
    (AC 30169)
    Beach, Robinson and Schaller, Js.
    Argued September 21
    officially released October 20, 2009
   Per Curiam.

The appeal is dismissed.


text:
    NORTHERN CITY, LLC v. 259 GROVE STREET, LLC, ET AL.
    (AC 30323)
    Gruendel, Harper and Robinson, Js.
    Submitted on briefs September 22
    officially released October 20, 2009
   Per Curiam.

The judgment is affirmed.


text:
    MICHAEL TULLO v. GERALD E. KING
    (AC 29774)
    Gruendel, Harper and Robinson, Js.
    Argued September 22
    officially released October 20, 2009
   Per Curiam.

The judgment is affirmed.


text:
    DAVID PALMER v. COMMISSIONER OF CORRECTION
    (AC 29887)
    Bishop, DiPentima and Peters, Js.
    Argued October 19
    officially released November 3, 2009
   Per Curiam.

The judgment is affirmed.


text:
    JOHN TYSON v. COMMISSIONER OF CORRECTION
    (AC 30078)
    Gruendel, Harper and Schaller, Js.
    Argued October 16
    officially released November 3, 2009
   Per Curiam.

The appeal is dismissed.


text:
    JULIO CENTENO COLON v. COMMISSIONER OF CORRECTION
    (AC 29312)
    Lavine, Beach and Hennessy, Js.
    Argued October 19
    officially released November 3, 2009
   Per Curiam.

The appeal is dismissed.