author: DiPENTIMA, C. J.

text:
    LAWRENCE SMITH v. COMMISSIONER OF CORRECTION
    (AC 34321)
    DiPentima, C. J., and Gruendel and West, Js.

      Argued October 17, 2013
    officially released March 4, 2014

      Sarah F. Summons, assigned counsel, for the appellant (petitioner).

      Nancy L. Chupak, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Clifton, assistant state’s attorney, for the appellee (respondent).
   Opinion

DiPENTIMA, C. J.

The petitioner, Lawrence Smith, appeals from the judgment of the habeas court denying in part his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly determined that he received effective assistance of trial and appellate counsel. We are not persuaded by the petitioner’s arguments, and, accordingly, affirm the judgment of the habeas court.

A jury found the petitioner guilty of murder in violation of General Statutes §§ 53a-54a (a) and 53a-8 (a), felony murder in violation of General Statutes §§ 53a-54c and 53a-8 (a), conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (2), and hindering prosecution in the first degree in violation of General Statutes § 53a-165 (5). In affirming the petitioner’s conviction, our Supreme Court noted the following facts underlying the crimes committed by the petitioner: “On July 21, 2000, Robert Marrow and Jonathan Rivers, acting on the orders of Miguel Estrella, a drug dealer in Meriden, met the victim, Juan Disla, who was a rival drug dealer, at a Dairy Queen in Meriden to rob him. During the course of the robbery, Marrow shot the victim in the leg. Marrow contacted Estrella for instructions and was told to drive to the [petitioner’s] house. Marrow and Rivers took the victim, whom they had bound with duct tape, to the [petitioner’s] house, where Estrella and the [petitioner] removed money and cocaine from the victim’s vehicle. Thereafter, the [petitioner], Estrella, Rivers and Marrow drove the victim to a remote location in a wooded area in the Higganum section of Haddam, where the victim was suffocated to death. The four men left the victim’s body in the woods and returned to Meriden. That evening, Estrella, Marrow, Rivers and some friends drove the victim’s car to New York state and abandoned it on the highway, where it eventually was vandalized.

“The state also offered evidence, which the [petitioner] unsuccessfully challenges in this appeal, to establish the following additional facts. Two days after the murder, Estrella and the [petitioner] returned to the location of the victim’s body with a chainsaw, plastic buckets and several containers of acid. The [petitioner] used the chainsaw to dismember the body while Estrella watched. The [petitioner] and Estrella then placed the body parts in the buckets and covered them with acid to destroy them. The [petitioner] subsequently disposed of any remains. The victim’s body was never recovered, and no bloodstains, DNA or bones ever were found.

“The record reflects the following procedural history. In 2001, the [petitioner] was arrested in connection with the murder of the victim. He was charged with conspiracy to commit murder in violation of §§ 53a-48 (a) and 53a-54a, and kidnapping in the first degree in violation of General Statutes § 53a-92. On December 5, 2001, after the [petitioner] had moved for a speedy trial, the state entered a nolle prosequi of the charges pursuant to the missing witness provision of General Statutes § 54-56b and Practice Book § 39-30. The state represented that Estrella, an essential witness in the case, was asserting his fifth amendment privilege against self-incrimination and therefore would be unavailable to testify. The [petitioner] filed a motion to dismiss the charges on the ground, inter alia, that he had been denied a speedy trial. The court, Fasano, J., denied the motion, and thereafter, the [petitioner] was released from custody.

“Pursuant to a warrant dated March 9,2005, the [petitioner] subsequently was rearrested in connection with the murder of the victim. He was charged in a long form information with murder, felony murder, conspiracy to commit murder, conspiracy to commit robbery in the first degree and hindering prosecution in the first degree. The [petitioner] pleaded not guilty and, after a jury trial, was found guilty of all the charges. In accordance with the verdict, the trial court, Alexander, J., imposed a total effective sentence of seventy-five years imprisonment.” (Footnotes omitted.) State v. Smith, 289 Conn. 598, 602-604, 960 A.2d 993 (2008).

Thereafter, the petitioner commenced this habeas action. In his second amended petition, filed September 13, 2011, the petitioner alleged that he had received ineffective assistance of counsel from his first attorney, Glenn Conway, who had represented him during certain pretrial proceedings. The petitioner further claimed that Attorney Leo Ahem had provided him with ineffective assistance of counsel during the criminal trial. Last, the petitioner alleged ineffective assistance from his appellate counsel, Attorney Elizabeth Inkster. The petitioner specifically argued that Conway and Ahem improperly failed to pursue a claim that the petitioner had a right to a speedy trial under Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), “because there was a considerable delay from the time that he was first arrested in 2001 to the time that jury selection commenced in 2005 and to the time that presentation of evidence commenced in 2006.” In count two, the petitioner contended that Inkster improperly failed to present his Barker claim during his direct appeal to our Supreme Court. In count three, the petitioner claimed that Ahem had failed to investigate his defenses and improperly had advised him not to testify during the criminal trial. In count four, the petitioner raised a claim of actual innocence, and in count five, he alleged that he had not been advised properly of his ability to seek sentence review.

Following a two day trial, the habeas court issued a memorandum of decision on January 20, 2012, and rendered judgment in favor of the respondent, the Commissioner of Correction, on counts one through four of the second amended petition. With respect to counts one and two of the petition, the court found that Conway, Ahem, and Inkster did not perform deficiently by not raising a Barker claim. As to count three, the court found that Ahern’s strategic decisions during the trial were not deficient and that the petitioner had failed to establish prejudice. It further found, with respect to the claim that the petitioner had been advised improperly not to testify, that Ahern’s advice was objectively reasonable and that the petitioner had knowingly and voluntarily elected not to testify. Finally, the court found in favor of the respondent on the claim of actual innocence because “[t]he petitioner presented no evidence of this claim at trial and did not brief this issue.” On February 1, 2012, the court granted the petition for certification to appeal from the partial denial of the petition for a writ of habeas corpus. This appeal followed.

Our standard of review in a challenge to the denial of a petition for a writ of habeas corpus is long established. We employ plenary review in examining the legal conclusions of the habeas court, and we consider whether those conclusions are legally and logically correct and supported by the factual record. Davis v. Commissioner of Correction, 140 Conn. App. 597, 602, 59 A.3d 403, cert. denied, 308 Conn. 920, 62 A.3d 1133 (2013); see also Smith v. Commissioner of Correction, 122 Conn. App. 637. 641, 999 A.2d 840 (2010), cert. denied, 300 Conn. 901, 12 A.3d 574 (2011). This court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous. Davis v. Commissioner of Correction, supra, 602. Further, the habeas judge is the “sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Id.

I

We first address the petitioner’s claims surrounding Barker. Specifically, the petitioner argues that Conway should have included a Barker claim in the pretrial motion to dismiss, Ahem should have raised the Barker claim during the trial, and Inkster should have taken steps in the direct appeal to present an adequate record on a Barker claim. We are not persuaded.

Before addressing the claims against each attorney, we state the law regarding ineffective assistance of trial counsel. “The petitioner’s right to the effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution, and by article first, § 8, of the constitution of Connecticut. In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsels performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. . . .

“With respect to the performance component of the Strickland test, [t]o prove that his counsel's performance was deficient, the petitioner must demonstrate that trial counsel’s representation fell below an objective standard of reasonableness. . . . Competent representation is not to be equated with perfection. The constitution guarantees only a fair trial and a competent attorney; it does not ensure that every conceivable constitutional claim will be recognized and raised. ... 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. . . . Nowhere is it said, though, that such a presumption is irrebuttable. As with any refutable presumption, the petitioner may rebut the presumption on adequate proof of sufficient facts indicating a less than competent performance by counsel. . . .

“With respect to the prejudice component of the Strickland test, the petitioner must demonstrate that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. ... It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings. . . . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Citations omitted; internal quotation marks omitted.) White v. Commissioner of Correction, 145 Conn. App. 834, 840-42, 77 A.3d 832, cert. denied, 310 Conn. 947, 80 A.3d 906 (2013); see also Spyke v. Commissioner of Correction, 145 Conn. App. 419, 424, 75 A.3d 738 (claim of ineffective assistance of counsel will succeed only if performance and prejudice prongs are satisfied), cert. denied, 310 Conn. 932, 78 A.3d 858 (2013).

A

The petitioner argues that Conway, his attorney prior to trial, should have included a Barker claim in his motion to dismiss the charges. In a May 5, 2005 memorandum of law in support of the petitioner’s motion to dismiss the charges, Conway stated that the petitioner had been arrested on February 1, 2001, and charged with conspiracy to commit murder and kidnapping in the first degree. The petitioner filed a motion for a speedy trial, and the state entered a nolle prosequi as to all charges. Conway further indicated that “[t]he basis for the nolle, as asserted by the state, was an essential witness, Miguel Estrella, would assert his Fifth Amendment privilege against self-incrimination and thus was unavailable to testify.” The court accepted the state’s nolle and released the petitioner from custody. Criminal proceedings were reinstituted, and the petitioner was rearrested in March, 2005.

During the habeas trial, Conway testified that he had researched the issues of speedy trial rights and presented them to the criminal court in the best way he could. He further indicated that he had made a tactical decision on how to advance the petitioner’s motion to dismiss and that the arguments he raised, which did not include a Barker claim, were the best way to have the charges against the petitioner dismissed. Conway also explained his analysis as to why a Barker claim would not succeed, namely, the likelihood that such a claim would fail as a result of application of the first and fourth Barker factors. See footnote 2 of this opinion.

“[Jjudicial 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.” (Internal quotation marks omitted.) Gonzalez v. Commissioner of Correction, 145 Conn. App. 16, 23-24, 75 A.3d 705, cert. denied, 310 Conn. 932, 78 A.3d 858 (2013); Coward v. Commissioner of Correction, 143 Conn. App. 789, 800-801, 70 A.3d 1152, cert. denied, 310 Conn. 905, 75 A.3d 32 (2013).

The petitioner bears the burden of showing that Conway’s actions fell below an objective standard of reasonableness. See Williams v. Commissioner of Correction, 142 Conn. App. 744, 752, 68 A.3d 111 (2013). Furthermore, we note that “[t]here are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. . . . Likewise, there is no expectation that competent counsel will be a flawless strategist or tactician . . . .” (Citations omitted; internal quotation marks omitted.) Id., 753; see also Mozell v. Commissioner of Correction, 291 Conn. 62, 79, 967 A.2d 41 (2009) (“[a]s a general rule, a habeas petitioner will be able to demonstrate that trial counsel’s decisions were objectively unreasonable only if there [was] no . . . tactical justification for the course taken” [internal quotation marks omitted]).

The petitioner has failed to sustain his burden in this case. The habeas court correctly determined that Conway made a reasonable and sound tactical decision to file the motion to dismiss that did not include a Barker claim because he had reasonably concluded that it had little chance to succeed. Additionally, the court concluded that the petitioner had failed to demonstrate that he would have prevailed on his Barker claim. We note that the petitioner elected not to present the testimony of a legal expert at his habeas trial. “An expert witness is not essential to show that an attorney’s performance was so deficient that it fell below the standard of reasonably effective assistance, but in many cases, expert testimony is useful.” Small v. Commissioner of Correction, 98 Conn. App. 389, 394, 909 A.2d 533 (2006), aff'd, 286 Conn. 707, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008); see also Gray v. Commissioner of Correction, 138 Conn. App. 171, 179, 50 A.3d 406, cert. denied, 307 Conn. 929, 55 A.3d 570 (2012); Urda v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-09-4003248-S (January 4, 2012).

This court recently stated: “[W]ith regard to the performance prong of Strickland, 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. . . . The law presumes that counsel is competent until evidence has been introduced to the contrary. ... It is elementary jurisprudence that the determination of whether counsel’s conduct was ineffective is a peculiarly fact bound inquiry. . . . Moreover, [i]t is well established that a petitioner in a habeas proceeding cannot rely on mere conjecture or speculation to satisfy either the performance or prejudice prong [of Strickland] but must instead offer demonstrable evidence in support of his claim.” (Citations omitted; internal quotation marks omitted.) Martinez v. Commissioner of Correction, 147 Conn. App. 307, 315-16, 82 A.3d 666 (2013). For these reasons, we conclude that Conway’s tactical decision not to raise a Barker claim in his motion to dismiss fell within the wide range of reasonable professional assistance and did not amount to ineffective assistance of counsel.

B

The petitioner next claims that Ahem, his criminal trial counsel, should have raised a Barker claim after he replaced Conway. The habeas court concluded that “it was reasonable for [Ahem] not to file a second motion to dismiss under Barker v. Wingo [supra, 407 U.S. 514] days before the trial was set to begin, particularly since prior counsel had attended to the pretrial matters and he was retained to handle the trial of the case.”

Ahem testified that he filed his appearance immediately before the trial commenced, and after the pretrial matters had concluded. Ahem had discussed the petitioner’s case with Conway and had received his file. Ahem also stated that he had seen the transcript of the hearing on Conway’s motion to dismiss. Ahem “felt that [the speedy trial issue] had been presented. A judge had ruled on it, and now it was time to try the case.”

We agree with the habeas court that the petitioner has failed to meet his burden of proving that Ahem was ineffective for failing to raise the Barker issue. “An attorney can avoid activities that appear distractive from more important duties. . . . Counsel was entitled to formulate a strategy that was reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies.” (Citation omitted; internal quotation marks omitted.) Harrington v. Richter, 562 U.S. 86, 107, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011). Ahern’s decision to focus on the pending trial and not to revisit the issue of the Barker claim constituted reasonable strategy and, thus, did not amount to ineffective assistance.

c

The petitioner next claims that Inkster provided ineffective assistance of counsel during his direct appeal. Specifically, he argues that Inkster took no action to present an adequate record regarding a Barker claim to our Supreme Court. We disagree.

“A criminal defendant’s right to the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution. . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland . . . .” (Citation omitted; internal quotation marks omitted.) Synakorn v. Commissioner of Correction, 124 Conn. App. 768, 771-72, 6 A.3d 819 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1004 (2011). “Our Supreme Court has distinguished the standards of review for claims of ineffective assistance of trial counsel and of appellate counsel. . . . For claims of ineffective assistance of appellate counsel, we must assess whether there is a reasonable probability that, but for appellate counsel’s failure to raise the issue on appeal, the petitioner would have prevailed [on] appeal, i.e., [obtaining] reversal of his conviction or granting of a new trial.” (Citation omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, 131 Conn. App. 805, 808, 29 A.3d 166 (2011); Moody v. Commissioner of Correction, 127 Conn. App. 293, 300-301, 14 A.3d 408, cert. denied, 300 Conn. 943, 17 A.3d 478 (2011).

Inkster testified that she reviewed the transcripts of the petitioner’s criminal trial, identified the possible legal issues, conducted research, and selected two issues to pursue on his direct appeal to our Supreme Court. She specifically considered making a Barker claim, but decided against it because of the lack of prejudice. See footnote 2 of this opinion. She expressly testified that she did not make such an argument because she felt it lacked a chance of success on appeal and instead focused on other issues.

“Just as with a claim of ineffective assistance of trial counsel, success on a claim of ineffective assistance of appellate counsel requires the petitioner to establish that appellate counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. . . . [Although] an appellate advocate must provide effective assistance, [she] is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments ... in a verbal mound made up of strong and weak contentions. . . . Indeed, [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, or at most on a few key issues. . . . Moreover, [a] habeas court will not, with the benefit of hindsight, second-guess the tactical decisions of appellate counsel.” (Citation omitted; internal quotation marks omitted.) Saucier v. Commissioner of Correction, 139 Conn. App. 644, 651-52, 57 A.3d 399 (2012), cert. denied, 308 Conn. 907, 61 A.3d 530 (2013); Johnson v. Commissioner of Correction, supra, 131 Conn. App. 809; see also Synakorn v. Commissioner of Correction, supra, 124 Conn. App. 775 (“Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at a lack of confidence in any one [issue] .... [M]ultiplying assignments of error will dilute and weaken a good case and will not save a bad one.” [Internal quotation marks omitted.]).

We agree fully with the habeas court that “the petitioner has failed to prove that . . . Inkster’s representation fell below the objective standard of reasonableness. Inkster did precisely what the law requires of her. She reviewed the pleadings and transcripts, identified the possible issues and then strategically determined which issues had the best chance of winning.” Accordingly, we conclude that the habeas court properly determined that Inkster provided the petitioner with effective assistance of counsel.

II

We next address the petitioner’s additional claims of ineffective assistance of counsel as to Ahem. Specifically, he argues that Ahem failed to present evidence regarding muriatic acid and advised the petitioner not to testify. We disagree.

A

The petitioner argues that Ahem provided ineffective assistance of counsel by failing to present evidence regarding muriatic acid and its ability, or lack thereof, to dissolve human body parts. At the habeas trial, the parties stipulated that muriatic acid, even in large quantities, will not dissolve a body. The habeas court determined that Ahem made an objectively reasonable strategic decision not to present evidence regarding the properties of muriatic acid because of his belief that it had no value to the petitioner’s defense. The corut further reasoned that had such evidence been presented to the jury, it would not have made any difference in the outcome. Accordingly, the court concluded that the petitioner had failed to carry his burden with respect to both Strickland prongs.

We consider the following additional facts in addressing this claim. During the petitioner’s criminal trial, the jury heard recorded statements that Estrella made to his cellmate in prison that the petitioner had suggested that they use acid to dispose of the victim’s body. Estrella was also heard saying that the petitioner went to The Home Depot to purchase acid for this purpose. During the habeas trial, Ahem testified that the state was unable to produce evidence that forensically linked the petitioner to the death of the victim. Ahem also explained that conviction of the petitioner was based exclusively on testimony of codefendants.

In rejecting this claim, the habeas court stated: “The victim’s body was never located in this case. Witnesses testified about the petitioner’s role in the murder of the victim, and such evidence was sufficient for the jury to find him guilty of the charges. The issue of how the victim’s body was secreted after the murder was not a central issue in the case. The evidence of the murder and elimination of the body came from eyewitnesses, not forensic proof. Codefendant Estrella, who raised the issue of the petitioner’s statement regarding the acid, was not present when the victim’s dead body was later concealed by the petitioner and another. The petitioner during his testimony in this case admitted that he agreed to get rid of the body in exchange for drags and did so, with another person, by dragging the body into a wooded area and throwing it in a watery ditch. He later told Estrella that he dissolved the body in acid, but that is not what actually happened.”

At the outset, we note that “[i]n its analysis, a reviewing court may look to the performance prong or to the prejudice prong, and the petitioner’s failure to prove either is fatal to a habeas petition.” (Internal quotation marks omitted.) Davis v. Commissioner of Correction, 147 Conn. App. 343, 349, 81 A.3d 1226 (2013). “To establish prejudice, a [petitioner] must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . [I]n a habeas corpus proceeding, the petitioner’s burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities.” (Emphasis in original; internal quotation marks omitted.) Id. We agree that the manner in which the victim’s body was disposed of constituted a collateral issue that would not have affected the verdict. Accordingly, we conclude that the habeas court properly determined that the petitioner failed to establish prejudice with respect to this claim.

B

The petitioner argues that Ahem provided ineffective assistance by advising him not to testify during the criminal trial. He argues that because the state’s case lacked physical or forensic evidence linking the petitioner to the death of the victim and was based exclusively on the statements of convicted felons, Ahem should not have advised and persuaded him not to testify during the criminal trial.

The habeas court found the following facts relating to this claim. “Ahem had ongoing discussions with the petitioner as to whether or not he should testify in this case. The petitioner did not have a strong view on whether he should or should not testify. Although Ahem advised the petitioner that he had the right to testify, he strongly advised him not to do so. Ahem explained to the petitioner that the state had a strong case, but there were holes in its case. If the petitioner chose to testify, and testified poorly as Ahem believed he would, the petitioner could seriously hurt his case. As a convicted felon, the state could use the petitioner’s conviction record on cross-examination. More importantly, Ahem did not believe that the petitioner had a cohesive and consistent story to tell the jury.

“In addition, the [criminal] court thoroughly canvassed the petitioner on the record on his decision not to testify. In particular, the trial court explained to the petitioner that he had the right to testify in his case or not testify in this case. It expressly asked him whether it was his choice not to testify. The petitioner indicated that he understood his right and elected not to testify. He also indicated during the canvass that he had discussed the issue with Ahem. . . .

“The court finds that Ahem provided objectively reasonable advice regarding the petitioner’s decision to testify or not testify. He appropriately reviewed the state’s evidence with the petitioner and reviewed with him the substance of what the petitioner would say if he took the [witness] stand. Based on this, Ahem strongly advised the petitioner not to testify. Having heard the petitioner’s version of events during the trial of this case, this corut cannot disagree with Ahern’s judgment that the petitioner’s story was inconsistent and contained damaging and incriminatory details that would not have assisted his defense that he was a minor player in the events of the murder and its aftermath. In addition, the decision whether or not to testify was the petitioner’s, and it is clear from the [criminal] corut’s canvass, that the petitioner knowingly and voluntarily elected not to testify. Accordingly, the court finds that the petitioner has failed to prove that Ahern’s advice as to whether the petitioner should or should not testify was in any way deficient.”

The criminal defendant’s right to testify on his own behalf, after consultation with counsel, is well established. “[Although the due process clause of the [f]ifth [a]mendment may be understood to grant the accused the right to testify, the if and when of whether the accused will testify is primarily a matter of trial strategy to be decided between the defendant and his attorney.” (Internal quotation marks omitted.) Coward v. Commissioner of Correction, supra, 143 Conn. App. 799; see also Wideman v. Commissioner of Correction, 67 Conn. App. 739, 740, 789 A.2d 1097, cert. denied, 260 Conn. 906, 795 A.2d 547 (2002).

The habeas court properly determined that the petitioner had failed to sustain his burden of overcoming the strong presumption that Ahem provided effective assistance of counsel. “[J]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant 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. . . . [Tjhere is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment. ... It is well established that [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.” (Internal quotation marks omitted.) Coward v. Commissioner of Correction, supra, 143 Conn. App. 800-801.

We agree with the reasoned decision of the habeas court that Ahern’s advice constituted sound trial strategy and, therefore, did not constitute ineffective assistance of counsel. See, e.g., Toccaline v. Commissioner of Correction, 80 Conn. App. 792, 815, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S. Ct. 301, 160 L. Ed. 2d 90 (2004). Accordingly, we conclude that this claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The habeas court found that Ahem “did not properly advise the petitioner as to his right to sentence review after either the March sentencing or the May 17 correction hearing.” It further found that the petitioner suffered prejudice by this “absence of access to sentence review” and restored his right to sentence review under General Statutes § 51-195. The issue of sentence review is not before this court on appeal.

       “The sixth amendment guarantee of a speedy trial is a fundamental right made applicable to the states through the fourteenth amendment to the United States constitution. ... In Barker v. Wingo, [supra], 407 U.S. 514 . . . the United States Supreme Court articulated a balancing test for determining when a defendant’s constitutional right to a speedy trial has been violated. . . . The Supreme Court of the United States and [the Connecticut Supreme Court] have identified four factors which form the matrix of the defendant’s constitutional right to speedy adjudication: [l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. ... A balancing test is to be applied on a case by case basis. None of the factors standing alone demands a set disposition; rather it is the total mix which determines whether the defendant’s right was violated.” (Citation omitted; internal quotation marks omitted.) State v. Gaston, 86 Conn. App. 218, 226, 860 A.2d 1253 (2004), cert. denied, 273 Conn. 901, 867 A.2d 840 (2005); see also State v. Lacks, 58 Conn. App. 412, 417, 755 A.2d 254, cert. denied, 254 Conn. 919, 759 A.2d 1026 (2000).

       Conway noted that the state cited General Statutes § 54-56b and Practice Book § 39-30 as the provisions in support of its use of a nolle prosequi.

       Specifically, the parties stipulated that “[m]uriatic acid, even in very large quantities, will not completely dissolve a human body or human body parts. . . . Muriatic acid as sold at [The] Home Depot and as possessed by [the petitioner] will not, even in very large quantities, completely dissolve a human body or human body parts. . . . Muriatic acid is commonly used to clean concrete, brick and swimming pools.”

       We also agree with the habeas court that Ahern’s tactical decision not to introduce any evidence of muriatic acid did not constitute deficient performance in this case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. FRANCIS GAFFNEY
    (AC 35983)
    DiPentima, C. J., and Gruendel and Norcott, Js.

      Argued January 8—
    officially released March 4, 2014

      Francis Gaffney, self-represented, the appellant (defendant).

      Adam E. Mattei, deputy assistant state’s attorney, with whom, on the brief, was John C. Smriga, state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Francis Gaffney, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, he claims that the court erred in denying that motion because felony murder is neither a class A felony nor a murder as defined under our General Statutes. Rather, he claims, felony murder is an unclassified felony. In addition, the defendant claims for the first time on appeal that his right to due process under the fourteenth amendment to the United States constitution was violated because (1) he was never given notice of the maximum penalty for felony murder, and (2) the legislature’s failure to classify felony murder as an intentional murder deprived him of his right to know that his “unintentional” conduct constituted a murder, punishable by a sentence of up to sixty years imprisonment. As a result, he contends that the trial court committed plain error by sentencing him pursuant to the agreed upon plea bargain. We disagree with the defendant as to his first claim of error and conclude that his second claim of error is unreviewable. Accordingly, we affirm the judgment of the trial court.

On March 28, 1989, the defendant pleaded guilty, under the Alford doctrine, to felony murder in violation of General Statutes § 53a-54c and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (b). After a thorough plea canvass, the court imposed the agreed upon sentence: sixty years incarceration for the defendant’s felony murder conviction and twenty-five years incarceration for the defendant’s kidnapping conviction, to run concurrently, for a total effective sentence of sixty years incarceration.

On January 9, 2012, the defendant filed a motion to correct an illegal sentence. The defendant claimed that the sentence imposed for his felony murder conviction was illegal because felony murder is an unclassified felony for which a sixty year sentence of imprisonment was impermissible. The court denied the defendant’s motion, and he now appeals.

I

On appeal, the defendant claims that the trial court abused its discretion in denying his motion to correct an illegal sentence because felony murder is neither a class A felony nor a murder. Rather, he claims, as an unclassified felony, the maximum term of incarceration to which he could legally have been sentenced was twenty-five years. We disagree.

“A denial of a motion to correct an illegal sentence is reviewed under the abuse of discretion standard. . . . Of course, when the court is called upon to exercise its legal discretion, we must determine whether the trial court correctly interpreted and applied the law.” State v. Kokkinakos, 143 Conn. App. 76, 80, 66 A.3d 936 (2013). “[A]n illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory. . . . Connecticut courts have considered four categories of claims pursuant to [Practice Book] § 43-22. The first category has addressed whether the sentence was within the permissible range for the crimes charged. . . . The second category has considered violations of the prohibition against double jeopardy. . . . The third category has involved claims pertaining to the computation of the length of the sentence and the question of consecutive or concurrent prison time. . . . The fourth category has involved questions as to which sentencing statute was applicable. . . . Accordingly, if a defendant’s claim falls within one of these four categories the trial court has jurisdiction to modify a sentence after it has commenced.” (Citation omitted; emphasis omitted; internal quotation marks omitted.) State v. Crump, 145 Conn. App. 749, 765 n.8, 75 A.3d 758, cert. denied, 310 Conn. 947, 80 A.3d 906 (2013).

Our Supreme Court’s recent decision in State v. Adams, 308 Conn. 263, 63 A.3d 934 (2013), and our decision in State v. Miller, 140 Conn. App. 620, 59 A.3d 411 (2013), are dispositive of the defendant’s claim of error. In Adams, our Supreme Court held that felony murder, is a class A felony, punishable, in accordance with General Statutes § 53a-35a (2), by a term of imprisonment of twenty-five years to life. State v. Adams, supra, 269. On the basis of an analysis of the relevant statutory provisions, our Supreme Court concluded that “the plain and unambiguous language of § 53a-54c defines felony murder as a type of murder, and the relevant statutory scheme classifies murder as a class A felony.” Id., 272-73.

The court explained: “[I]t is important to note that our conclusion is consistent with this court’s prior interpretation of the legislative intent of § 53a-54c. In State v. John, 210 Conn. 652, 696, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989), this court stated as follows: The legislative history of the felony murder statute, § 53a-54c, indicates that its purpose was to fill an omission in the statutory definition of murder in § 53a-54a. In restoring the concept of felony murder, which had been omitted from the original enactment of the [P]enal [C]ode, the legislature intended to specify another manner in which the crime of murder could be committed, rather than create a new crime. Such a purpose would have been in keeping with this state’s murder statute prior to the enactment of the [P]enal [C]ode, when the felony murder principle was simply included in the statutory definition of first degree murder.

“We conclude, therefore . . . that the charge of felony murder is not an unclassified felony but, rather, a felony classified as murder. ... As such, it is punishable as a class A felony .... Section 53a-35a explicitly provides in relevant part as follows: For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and, unless the section of the general statutes that defines the crime specifically provides otherwise, the term shall be fixed by the court as follows ... (2) for the class A felony of murder, a term of not less than twenty-five years nor more than life .... General Statutes § 53a-35b, in turn, provides that [a] sentence of life imprisonment means a definite sentence of sixty years . . . .” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Adams, supra, 308 Conn. 273-74; see also State v. Miller, supra, 140 Conn. App. 621 (holding that felony murder is not unclassified felony; felony murder is one species of murder).

Accordingly, this issue already having been decided by our Supreme Court in Adams and by this court in Miller, we conclude that the defendant’s sixty year sentence for felony murder was not illegal under our law.

H

The defendant next claims that his right to due process under the fourteenth amendment to the United States constitution was violated because (1) he was never given notice of the maximum penalty for felony murder, and (2) the legislature’s failure to classify felony murder as an intentional murder deprived him of his right to know that his “unintentional” conduct constituted murder, punishable by a sentence of up to sixty years imprisonment. The defendant did not preserve that claim and now argues that it was plain error, under Practice Book § 60-5, for the trial court to sentence him pursuant to the agreed upon plea bargain. He requests relief pursuant to the plain error doctrine. We decline the defendant’s request.

“[T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. ... In addition, the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Darryl W., 303 Conn. 353, 371-73, 33 A.3d 239 (2012). The defendant’s claim, does not present an extraordinary situation to invoke the doctrine.

The judgment is affirmed.

         North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).


text:
    CONNIE CHEN ET AL. v. HOPKINS SCHOOL, INC., ET AL.
    (AC 35164)
    Alvord, Bear and Schaller, Js.
    Argued December 5, 2013
    officially released March 4, 2014

      William F. Gallagher, with whom, on the brief, was Hugh D. Hughes, for the appellants (plaintiffs).

      John C. Pitblado, with whom were James M. Sconzo and, on the brief, John W. Herrington, for the appellee (named defendant).
   Opinion

PER CURIAM.

The plaintiffs, Connie Chen and Ping Chen, appeal from the judgment of the trial court in favor of the defendant Hopkins School, Inc. The plaintiffs claim that the court improperly dismissed their negligence action for failure to make out a prima facie case. They claim that the court used an incorrect standard to evaluate the testimony of the plaintiffs’ expert, Harry Boardsen, which resulted in the court improperly concluding that Boardsen’s testimony failed to present sufficient evidence of liability. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The plaintiffs brought a two count complaint on November 9, 2010, against the defendant for injuries alleged to have occurred due to a single car accident. In the first count, the plaintiffs allege that on or about November 6, 2008, while Connie Chen was a student at Hopkins School (school), the front right tire of her vehicle suffered a catastrophic failure as she was operating it less than one-half mile from the entrance to the school, resulting in an accident and injuries. The plaintiffs assert that the “failure of the tire was caused by a laceration in the tire’s sidewall made by a knife or a similarly sharp and pointed object,” and that the tire was lacerated while the vehicle was parked in Connie Chen’s assigned school parking spot. The plaintiffs alleged five instances of negligence by the defendant, including the defendant’s failure “to use surveillance technology as a disincentive to criminal activity and as an aid to apprehending offenders.” In its answer, the defendant denied the plaintiffs’ substantive allegations and asserted multiple special defenses.

On July 17, 2012, the plaintiffs disclosed Boardsen as a security expert. The defendant deposed Boardsen on August 17, 2012. Thereafter, on October 10, 2012, the defendant filed a motion to preclude Boardsen from testifying as an expert. On October 17, 2012, the bench trial began, and the court preliminarily addressed the defendant’s pending motion to preclude Boardsen’s testimony. Boardsen was not present during the trial. The court, after hearing argument from both parties on the motion to preclude, did not grant or deny the motion, but instead asked the parties to stipulate that the court could consider the deposition testimony of Boardsen as trial testimony. The parties agreed, and the court stated that after “[h]aving reviewed [Boardsen’s testimony] at length,” it was “discounting his testimony [because] [i]t is not helpful to the court in making the determination on [the] issue [as to security].” Shortly thereafter, the defendant’s counsel orally moved to dismiss the case, arguing that without Boardsen’s testimony “there is no basis for this case to proceed.” The court invited the plaintiffs’ counsel to put on any additional evidence, and asked him whether there was “any other theory that’s being offered to the court as to how [the defendant] would be held liable . . . The plaintiffs’ counsel replied that “[t]he only evidence that [he] had was [Boardsen’s testimony regarding] the [security] camera,” and that he was resting as to the liability portion of the plaintiffs’ claim. The defendant’s counsel again asked for judgment in the defendant’s favor on the liability portion of the claim. The court noted the absence of any other evidence of proof of liability, and orally rendered judgment in favor of the defendant. This appeal followed.

On appeal, the plaintiffs claim that the court improperly dismissed their action for failure to make out a prima facie case because the court used an incorrect standard to evaluate Boardsen’s testimony, which resulted in the court improperly concluding that his testimony failed to present sufficient evidence of liability to establish a prima facie claim of negligence. The plaintiffs assert that the trial court impermissibly made findings as to disputed facts, weighed the credibility of Boardsen, and drew inferences against the plaintiffs when evaluating Boardsen’s testimony for purposes of “what in effect was a motion for a judgment of dismissal for failure to make out a prima facie case.” The plaintiffs argue that “a finder of fact [reasonably] could . . . have inferred liability” from Boardsen’s testimony. We are not persuaded.

We begin with the law on judgments of dismissal and the standard of review. “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced evidence and rested his or her cause, the defendant may move for judgment of dismissal, and the judicial authority may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. ... A prima facie case ... is one sufficient to raise an issue to go to the trier of fact. ... In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove. . . . In evaluating [the trial court’s decision on] a motion to dismiss, [t]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiffs] favor. . . . Whether the plaintiff has established a prima facie case entitling the plaintiff to submit a claim to a trier of fact is a question of law over which our review is plenary.” (Internal quotation marks omitted.) Padawer v. Yur, 142 Conn. App. 812, 816, 66 A.3d 931, cert. denied, 310 Conn. 927, 78 A.3d 145 (2013); see also Practice Book § 15-8.

A careful review of the record reveals that the trial court did not impermissibly make findings as to disputed facts, weigh the credibility of Boardsen’s testimony, or draw inferences against the plaintiffs. Instead, the court determined that even if Boardsen’s testimony was credited, it was insufficient to establish the facts which it was adduced to prove, namely, that the presence of security cameras would have prevented the incident alleged by the plaintiffs. To make out a prima facie case of negligence, the plaintiffs were required to establish the essential elements of duty, breach of that duty, causation, and actual injury. See Sweeney v. Friends of Hammonasset, 140 Conn. App. 40, 46, 58 A.3d 293 (2013). The plaintiffs did not introduce any other evidence beyond Boardsen’s testimony to support their allegations regarding the defendant’s failure “to use surveillance technology” or any of the four other negligent acts alleged in the complaint; they called no additional witnesses, and introduced no exhibits. We conclude that Boardsen’s testimony, even if believed and given the benefit of all favorable inferences, fails to make out a prima facie case for the negligent acts alleged in the complaint. Accordingly, the trial court properly dismissed the plaintiffs’ complaint.

The judgment is affirmed.

       The Hopkins Committee of Trustees, Inc. (Hopkins Trustees), was originally named as an additional defendant. The plaintiffs, however, withdrew their complaint as to the Hopkins Trustees on June 20, 2011. The Hopkins Trustees are not a party to this appeal. We therefore refer in this opinion to Hopkins School, Inc., as the defendant.

       Connie Chen’s alleged injuries occurred when she was a minor child. She subsequently reached the age of majority and brought this action in her individual capacity, with her father, Ping Chen, as an additional plaintiff.

       The second count of the complaint was brought by Ping Chen for medical expenditures incurred for Connie Chen’s medical care resulting from the defendant’s alleged carelessness and negligence. Because recovery under this count is dependent on a finding of negligence in the first count, we need not address it independently in this opinion.

       The other four negligent acts alleged were that the defendant failed: (1) “to provide apolicy(ies) or guideline[(s)] for the protection of students and their property”; (2) “to provide supervision and training to their agents, servants and/or employees to enable them to control, prevent and manage such situations”; (3) “to have adequate staffing to ensure the safety of the students on the premises”; and (4) “to provide adequate security or protective services to ensure the safety of students on such premises.”

       On October 12, 2012, the plaintiffs filed a motion for continuance, asserting that Boardsen was not available for the scheduled trial dates of October 17 through 19, 2012, as he was out of the country. They requested a new trial date of “November 11,12 and during the entire week of December 10, 2012.” The court denied the motion on the same day it was filed, and provided the following rationale for its decision: “Counsel for the parties attended a scheduling conference with the court, selected and agreed to the dates of October 17 through 19, 2012, to conduct a Porter hearing and the liability portion of the trial. There was no indication of any problem with scheduling of witnesses. This matter has been scheduled five times for trial. . . . Further continuance interferes with the orderly administration of justice.”

       “The Court: All right. So, the [plaintiffs’ counsel] would be in agreement that the court could consider the transcript as being trial testimony.
      “[The Plaintiffs’ Counsel]: Yes.
      “The Court: What is the defense’s position?
      “[The Defendant’s Counsel]: We don’t disagree with that, Your Honor.”

       The court’s resolution of the motion to preclude was entered in a written order on October 17, 2012, which stated in relevant part: “The parties have agreed that the deposition testimony of Mr. Boardsen is to be considered trial testimony. Whether it is admissible or not, the opinion testimony of Mr. Boardsen, which is not grounded upon any scientific, empirical or statistical basis, does not assist the court in determining the issues before it, and, therefore, the court assigns no weight to Mr. Boardsen’s testimony.”

       “The Court: All right. ... I’ll ask . . . whether you are resting as to the liability portion of the trial?
      “[The Plaintiffs’ Counsel]: Well, yes. If we had put the evidence on, we would have rested based on the testimony and the theory that we had with respect to the cameras.
      “The Court: Okay. But again—because we seem to be at an impasse here, you—you do not wish to present any further testimony or evidence as to liability?
      “[The Plaintiffs’ Counsel]: No, I don’t see any point to it.”

       The court subsequently rendered a written judgment of dismissal of the plaintiffs’ action.

       Practice Book § 15-8 provides in relevant part: “If, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has produced evidence and rested, a defendant may move for judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case. . . .”

       The court stated: “[T]he opinion that [Boardsen is] rendering is specifically [that] security cameras are possibly a deterrence which I think we all know; and the second one, the most important one, is that this school should have had a security camera in the parking lot. Even if you are [to] credit his opinion, it doesn’t help the court know whether this purported vandal or criminal who purportedly inserted some object into the tire would have known that there was a security camera there because there was nothing testified to about signage, whether a lack of knowledge would have deterred this activity from taking place, whether the camera would be monitored twenty-four hours a day, whether if someone saw this person doing what he or she did, it would have stopped what ultimately transpired. None of this is being offered by this expert, neither is there any statistical or empirical evidence presented by this gentleman to indicate that the ultimate incident would not have occurred because there were security cameras in the parking lot.”

       “The Court: All right. Well, I’m trying to afford you an opportunity to— if—if you are able to proceed with the liability portion of this case and proceed with it understanding that I wouldn’t allow any late disclosure of corroborative . . . information.
      “[The Plaintiffs’ Counsel]: Well, the problem [is] .... I have no tie-in on causation. ... I understand . . . what the requirements are for proof here. And the only thing that I had of the five [alleged negligent acts] was the fifth one and—and that’s now out of the case. And I don’t see how I can tie [the defendant] to any of these other claims in the absence of some expert testimony and there isn’t any.
      “The Court: All right. If—if that’s your position, then I’m not sure how we can go forward.
      “[The Plaintiffs’ Counsel]: Yeah, I—I understand that, and I agree.”


author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. RICHARD BRUNDAGE
    (AC 35419)
    Gruendel, Keller and Borden, Js.

      Argued November 14, 2013
    officially released March 11, 2014

      Kathryn W. Bare, assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Cynthia S. Serafini, senior assistant state’s attorney, for the appellant (state).

      Raymond L. Durelli, assigned counsel, for the appel-lee (defendant).
   Opinion

GRUENDEL, J.

This case concerns the proper scope of a remand order. In State v. Brundage, 138 Conn. App. 22, 50 A.3d 396 (2012) (Brundage I), this court reversed the judgments of conviction of the defendant, Richard Brundage, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and (2) and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). We concluded in relevant part that “[o]f the four counts in the operative informations, only count one ... is completely time barred [under General Statutes (Rev. to 1993) § 54-193a]. . . . [T]he other three counts are partially untimely and partially timely.” (Footnote omitted.) Id., 32. We further rejected the defendant’s claim that this court “should set aside the judgments of conviction and direct the trial court to dismiss the partially untimely charges, rather than remand the cases for a new trial,” holding that “[r]etrial here is not barred by the double jeopardy clause of the fifth amendment.” Id. We thus remanded the matter to the trial court for a new trial on those charges that are not time barred under the aforementioned statute. Id.

On remand and prior to the commencement of that new trial, the state filed a substitute information charging the defendant with two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2). The defendant filed an objection to that substitute information, arguing, inter alia, that the new charges contained therein exceeded the scope of the remand from this court. The trial court agreed and sustained the defendant’s objection. The court thus dismissed the substitute information and thereafter granted the state permission to appeal pursuant to General Statutes § 54-96.

In this appeal, the state contends that the court improperly concluded that the remand order in Brund-age I precluded the state from amending its information to charge the defendant with kidnapping in the first degree at his second trial. We agree and, accordingly, reverse the judgment of the trial court.

The relevant facts are not disputed. IsxBrundage I, the defendant was charged in two separate informations, which were consolidated for trial. This court reversed the defendant’s judgments of conviction and remanded the matter to the trial court “for a new trial as to the charges that are not time barred.” State v. Bnmdage, supra, 138 Conn. App. 32. The rescript to the decision provides that “[t]he judgments are reversed and the cases are remanded with direction to dismiss count one of the Wolcott information and for a new trial as to the remaining charges.” Id., 39-40. That decision officially was released on September 11, 2012.

On November 26, 2012, the state filed a substitute information charging the defendant with two counts of kidnapping in the first degree, to which the defendant filed a written objection. In an attempt to resolve any ambiguity as to the scope of the remand order in Bnmd-age I, the state on December 4, 2012, filed a motion for articulation with this court, which was dismissed. The trial court heard argument on the defendant’s objection to the substitute information on January 24, 2013. At that time, the state argued that “if you look at the decision of the Appellate Court, there hasn’t been—[it] didn’t decide the issue of whether or not the state could amend the charges.” Defense counsel argued that “the reason we object is because we feel that the Appellate Court was very, very clear in its decision when it stated that the case was going to be reversed and remanded for [a] new trial for charges that are not time barred. . . . [W]e feel it’s very clear the Appellate Court was referring to charges not time barred regarding the sexual assault charges and that would be it.”

In ruling from the bench, the court agreed with the defendant, stating in relevant part: “It would seem to me what [the Appellate Court in Brundage i] contemplated was an amendment that would put the remaining charges within the period of the statute of limitations and an immediate retrial because, after all, the parties had been through an entire proceeding, a trial, a sentencing and appellate period, a remand. I don’t think they contemplated starting again with new charges that would require discovery, that would require issues raised just in terms of any new charge that would come before the court. ... I think the remand was clear, and I think the reason, the idea of the remand was that simply the state would amend the charges to reflect a time period within the statute of Umitations and go back to trial fairly immediately as opposed to an entirely new prosecution. . . . Kidnapping was not charged in any effect during the prior proceedings. They would be, in effect, new charges that would allow for discovery and motions to be filed. It would be going back to day one as far as the arrest and prosecution of this defendant. So I don’t think it was contemplated by the Appellate Court. I think I have to strictly construe any remand order. The remand order . . . [concluded that] the cases should be remanded for a new trial as to the charges that are not time barred. And I think that’s what the state is limited to with respect to this prosecution. . . . [W]ith respect to this prosecution, the motion for substitute information charging kidnapping is denied. So the objection is sustained as to the substituted information.” From that judgment, the state now appeals.

The state claims that the trial court improperly sustained the defendant’s objection. It argues that the state, on remand from this court following our decision in Brundage I, was not precluded from filing additional charges via substitute information in the defendant’s prosecution. The defendant maintains that the court properly dismissed the substitute information as beyond the bounds of the Brundage I remand and, further, that the charges contained therein are barred by the doctrine of res judicata. We agree with the state.

At the outset, we note that the abuse of discretion standard governs our review of a court’s decision to permit a pretrial amendment to an information. State v. Ramos, 176 Conn. 275, 276, 407 A.2d 952 (1978); State v. Caraeoglia, 78 Conn. App. 98, 101, 826 A.2d 192, cert. denied, 266 Conn. 903, 832 A.2d 65 (2003). Whether a trial court properly determined the scope of a remand presents a question of law, over which our review is plenary. State v. Tabone, 301 Conn. 708, 713-14, 23 A.3d 689 (2011). “Well established principles govern further proceedings after a remand by this court. In carrying out a mandate of this court, the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion. . . . This is the guiding principle that the trial court must observe. . . . The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein. . . . These principles apply to criminal as well as to civil proceedings.” (Citations omitted; internal quotation marks omitted.) Id., 714-15.

The resounding mandate that emanates from this court’s decision in Brundage I is that the state could not proceed on any charges against the defendant that were time barred under General Statutes (Rev. to 1993) § 54-193a. The distinct issue presented to this court was whether the trial court “improperly . . . denied [the defendant’s pretrial] motions to dismiss the sexual assault charges against him that were time barred by General Statutes (Rev. to 1993) § 54-193a . . . .” State v. Brundage, supra, 138 Conn. App. 23. In interpreting that statute, this court agreed with the parties that “§ 54-193a, as amended on May 23, 2002, does not apply retroactively and that any offenses that occurred prior to May 23, 2002, are time barred pursuant to General Statutes (Rev. to 1993) § 54-193a.” Id., 29. We then applied that determination to the facts on hand, concluding in relevant part: “Of the four counts in the operative informations, only count one of the Wolcott information alleged a time period that is completely time barred. By alleging time periods up to October 18, 2002, the other three counts are partially untimely and partially timely. Because the trial court erroneously concluded that the current version of § 54-193a applied retroactively, it foreclosed the defendant from offering proof regarding the dates of the offenses in support of an affirmative statute of limitations defense. Such a defense simply no longer was viable in light of the court’s ruling. Therefore, the court erred in denying the motions to dismiss.” (Footnotes omitted.) Id., 32.

The remaining question concerned the proper remand. In his appellate brief, the defendant urged this court “to set aside the judgment and dismiss the charge of sexual assault in the first degree, § 53a-70 (a) (2).” Although the state agreed with the defendant’s claim that the trial court improperly applied the statute in question retroactively, it disagreed that a dismissal was warranted and instead contended that a remand for a new trial was appropriate. This court agreed with the state that a remand for a new trial, and not an outright dismissal, was the more appropriate order. Indeed, the decision in Brundage I expressly notes the aforementioned disagreement between the parties, stating: “Although the defendant acknowledges on appeal that prosecution of offenses that occurred after May 22, 2002, is not time haired, he argues that we should set aside the judgments of conviction and direct the trial court to dismiss the partially untimely charges, rather than remand the cases for a new trial. He fails, however, to provide any legal support for this request. Retrial here is not barred by the double jeopardy clause of the amendment. ... In the absence of any persuasive reason to do otherwise, we conclude that the cases should be remanded for a new trial as to the charges that are not time barred.” (Citation omitted; footnote omitted.) State v. Brundage, supra, 138 Conn. App. 32.

The state maintains that this court in Brundage I simply addressed the distinct question before it concerning retroactive application of § 54-193a, and thereby determined whether the trial court properly denied the defendant’s motion to dismiss. We agree. “It is axiomatic that an appellate decision stands only for those issues presented to, and considered by, the court in that particular appeal.” Dept. of Public Safety v. Freedom of Information Commission, 103 Conn. App. 571, 582 n.10, 930 A.2d 739, cert. denied, 284 Conn. 930, 934 A.2d 245 (2007). The issue of whether the state on remand was precluded from amending its information to add new charges was neither raised by the parties nor decided by this court. The only reference to the state’s ability to amend comes in a footnote appended to the concluding sentence of part I of the opinion, in which this court noted that “[t]he defendant also conceded at trial that the state would have the opportunity to amend the informations if the court accepted his argument that the current version of § 54-193a is not retroactive.” State v. Brundage, supra, 138 Conn. App. 32-33 n.13.

Viewed in context of the analysis set forth in Brund-age I, we cannot say that the order remanding the matter “with direction to dismiss count one of the Wolcott information and for a new trial as to the remaining charges”; id., 39^40; precluded the state from filing a pretrial amendment to the information on remand. The decision merely returned the parties to the position that they would have been in had the trial court properly ruled on the defendant’s motion to dismiss, hence the footnote in part I of that opinion on the defendant’s concession regarding the state’s ability to amend the informations.

As our Supreme Court has observed, “[t]he state’s attorneys, who are responsible for prosecuting violations of the criminal laws of this state, are executive branch officials. . . . There can be no doubt that [t]he doctrine of separation of powers requires judicial respect for the independence of the prosecutor. . . . Prosecutors, therefore, have a wide latitude and broad discretion in determining when, who, why and whether to prosecute for violations of the criminal law. . . . This broad discretion, which necessarily includes deciding which citizens should be prosecuted and for what charges they are to be held accountable . . . rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. . . . [Judicial deference to the decisions of these executive officers . . . also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function.” (Citations omitted; internal quotation marks omitted.) State v. Kinchen, 243 Conn. 690, 699-700, 707 A.2d 1255 (1998). Indeed, a fundamental function of the state’s attorney is “to determine [whether] there is reasonable ground to proceed with a criminal charge . . . .” State v. Moynahan, 164 Conn. 560, 568, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973).

It is well established that “[b]efore a trial begins, the state has broad authority to amend an information pursuant to Practice Book § 36-17. ” (Internal quotation marks omitted.) State v. Mullien, 140 Conn. App. 299, 311, 58 A.3d 383 (2013). Because this court in Brundage I was not presented with, and did not decide, any claim that the state should be precluded from amending its information on remand, the trial court was not constrained in its ability to permit a pretrial amendment to the information. As the United States Court of Appeals for the Second Circuit explained, on remand “the trial court is barred from reconsidering or modifying any of its prior decisions that have been ruled on by the court of appeals. Of course, there is a corollary to this rule—if an issue was not part of the appellate decision, a trial court may consider the matter. . . . Put differently, [w]hen an appellate court has once decided an issue, the trial court, at a later stage in the litigation, is under a duty to follow the appellate court’s ruling on that issue.” (Citation omitted; emphasis added; internal quotation marks omitted.) Burrell v. United States, 467 F.3d 160, 165 (2d Cir. 2006); see also 5 Am. Jur. 2d 498, Appellate Review § 753 (2007) (“[o]n remand, a trial court is free to make any order or direction in further progress of [the] case ... as to any question not settled by [the] decision [of the appellate court]”).

Accordingly, the salient inquiry before the court in considering the propriety of the substitute information was whether the state had proffered a sufficient factual basis on which to predicate the two counts of kidnapping in the first degree in violation of § 53a-92 (a) (2) (A) and (B) contained in the amended information. See State v. Menzies, 26 Conn. App. 674, 681, 603 A.2d 419 (discretionary power of state to select appropriate charge limited by facts prosecutor reasonably expected to prove at trial), cert. denied, 221 Conn. 924, 608 A.2d 690 (1992). To establish the defendant’s guilt, the state must prove that he abducted the complainant and restrained her with the intent to “inflict physical injury upon [her] or violate or abuse [her] sexually; or . . . accomplish or advance the commission of a felony . . . .” General Statutes § 53a-92 (a) (2). The warrants for the defendant’s arrest provide the requisite factual basis. The October 19, 2007 arrest warrant alleged in relevant part that the defendant “would pick [the complainant] up from school, and was suppose[d] to bring her right to her mother’s business . . . however, he would instead take her to parking lots at abandoned buildings, force her to drink . . . white wine, and then force her to have sexual intercourse with him in his vehicle. . . .” Similarly, the November 20, 2007 arrest warrant alleged in relevant part that the defendant “would pick [the complainant] up after school, and was supposefd] to take me to my mom’s business .... On the way [the defendant] would pull into a vacant lot ... . [The defendant] would climb over the seat and get on top of me. [He] would pull up my uniform skirt, and force my legs apart, and then he would put his penis inside my vagina, and have sex with me. I didn’t want to have sex with [him], but I just laid there, and stared at the door until he got off me. Then he drove me to my mom’s store. ...”

In fight of those factual allegations, the state was well within its broad discretion to charge the defendant with the aforementioned offenses. The mandate of Brundage I is that the state could not proceed on any charges against the defendant that were time barred under General Statutes (Rev. to 1993) § 54-193a. The charges contained in the November 26, 2012 substitute information are not time barred under that statute. Accordingly, we conclude that the court improperly dismissed that substitute information.

That determination, however, does not end our inquiry. The defendant also argues, as an alternate ground of affirmance, that the kidnapping in the first degree charges contained in the substitute information are barred by the doctrine of res judicata. We do not agree.

Res judicata is “a judicial doctrine”; State v. Ellis, 197 Conn. 436, 465, 497 A.2d 974 (1985); designed to inhibit the ability of “a plaintiff to litigate the same question over and over again, encumbering the mechanisms our society has established to resolve disputes . . . .” (Internal quotation marks omitted.) Sunbury v. Sunbury, 216 Conn. 673, 677, 583 A.2d 636 (1990). At the same time, our Supreme Court has instructed that this doctrine of preclusion “should be flexible and must give way when [its] mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies.” In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983). For that reason, “the scope of matters precluded necessarily depends on what has occurred in the former adjudication.” State v. Ellis, supra, 467.

“Under the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter [that] was offered to sustain the claim, but also as to any other admissible matter [that] might have been offered for that purpose. . . . Nonetheless, in applying the doctrine of res judicata to a [criminal] defendant’s constitutional claim, special policy considerations must be taken into account. The interest in achieving finality in criminal proceedings must be balanced against the interest in assuring that no individual is deprived of his liberty in violation of his constitutional rights. . . . Whether two claims in a criminal case are the same for the proposes of res judicata should therefore be considered in a practical frame and viewed with an eye to all the circumstances of the proceedings. . . . Because the doctrine has dramatic consequences for the party against whom it is applied ... we should be careful that the effect of the doctrine does not work an injustice.” (Citations omitted; internal quotation marks omitted.) State v. Long, 301 Conn. 216, 236-37, 19 A.3d 1242, cert. denied, 565 U.S. 1084, 132 S. Ct. 827, 181 L. Ed. 2d 535 (2011). In ruling on the defendant’s objection to the substitute information, the trial court in the present case concluded that the kidnapping charges were not barred by res judicata. Our review of that determination is plenary. State v. McCarroll, 113 Conn. App. 274, 277, 967 A.2d 323 (2009).

It is undisputed that the crimes of sexual assault in the first degree and risk of injury to a child differ from the crime of kidnapping in the first degree, in that they do not contain the same statutory elements. It also is undisputed that the kidnapping claims were not actually litigated in the original action. The defendant nevertheless contends that the state should be precluded from amending its information to include kidnapping claims.

“The decision whether to apply res judicata to matters not actually litigated should be made in light of the policies underlying that doctrine—the competing interests of the defendant and of the courts in bringing litigation to a close and of the plaintiff in the vindication of a just claim.” (Internal quotation marks omitted.) State v. Ellis, supra, 197 Conn. 465. The -underlying purposes of the doctrine “are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harrassed by vexatious litigation.” Id., 465-66. Consideration of those purposes in light of the facts of this case persuades us that the defendant’s claim is without merit.

First and foremost, because this court remanded the matter to the trial court for a new trial prior to the filing of the kidnapping charges, judicial resources would not be conserved by application of the preclusion doctrine. There likewise is no danger of inconsistent judgments resulting from the defendant’s prosecution on kidnapping charges. As the Supreme Court noted, “[o]ur statute of limitations distinguishes between offenses according to their severity, and there is nothing inconsistent in the fact that some prosecutions are barred where others are not.” Id., 476. Finally, this is not a case in which the defendant has been harassed by vexatious litigation. Following his successful appeal in Brundage I, this court remanded the matter to the trial court, effectively placing the parties in the same position which they would have been in had the trial court properly ruled on the defendant’s original motion to dismiss. Had the court done so, there is little doubt the state at that time would have been free to amend its informa-tions to include the kidnapping charges the defendant now wishes to preclude.

In his appellate brief, the defendant alleges that “[t]he state is seeking to retry the defendant on the kidnapping charges only because the defendant successfully exercised his constitutional and statutory rights to contest the validity of the original prosecution.” That bald assertion is not accompanied by analysis or reference to any evidence indicative of such animus. As the state persuasively has argued in this appeal, its decision not to pursue the kidnapping charges at the defendant’s first trial “very well may have been influenced by the state of flux that existed in our kidnapping law in 2008 and 2009 . . . .” See State v. Salomon, 287 Conn. 509, 531, 949 A.2d 1092 (2008); see also State v. DeJesus, 288 Conn. 418, 426, 953 A.2d 45 (2008); State v. Sanseverino, 287 Conn. 608, 612, 949 A.2d 1156 (2008), overruled in part by State v. DeJesus, 288 Conn. 418, 437, 953 A.2d 45 (2008), and superseded in part after reconsideration by State v. Sanseverino, 291 Conn. 574, 969 A.2d 710 (2009). Absent any evidence to the contrary, we presume that the state did not harbor such animus toward the defendant, but rather acted to vindicate its legitimate interest in the prosecution of crime.

Our Supreme Court has observed that “[e]very prosecution is necessarily ‘harrassing’ and ‘vexatious’ from the standpoint of the defendant .... Principles of finality are offended only by that harassment which results from repetitious attempts to relitigate matters previously decided. Weighing against the minimal interests in finality presented by this case are strong social and legislative policies aimed at the effective administration of criminal justice.” State v. Ellis, supra, 197 Conn. 477. That logic applies with equal force in the present case. We therefore conclude that the doctrine of res judicata does not bar the state from amending its information to include the kidnapping in the first degree charges.

The judgment is reversed and the case is remanded with direction to reinstate the November 26, 2012 substitute information and for farther proceedings.

In this opinion the other judges concurred.

       General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same maimer and to the same effect as if made by the accused.”

       The state’s motion for articulation explained that, on remand before the trial court, “a question has arisen concerning the scope of [the Appellate] Court’s rescript. The state has construed the rescript as permitting it to proceed on any charges which are not time barred. Because the trial court can only adjudicate rights and duties within the scope of the remand, the state respectfully submits that further clarification of the rescript in [Bnmdage I\ is necessary to the proper litigation of the case on remand.”

        Brundage I also addressed the defendant’s claim that the court improperly permitted the state’s expert witness to give an opinion in response to a hypothetical question. Noting that the issue “is likely to recur on retrial”; State v. Brundage, supra, 138 Conn. App. 33 n.14; we addressed the merits of that claim and determined that the court did not abuse its discretion. Id., 39. That analysis has little bearing on the issue presented in this appeal.

       On appeal, the state concurred with the defendant’s claim that the trial court improperly determined that § 54-193a, as amended on May 23, 2002, applied retroactively, and thus improperly denied in part the defendant’s motion to dismiss.

       Practice Book § 36-17 provides in relevant part: “If the trial has not commenced, the prosecuting authority may amend the information, or add additional counts, or file a substitute information. . . .”

       At oral argument before this court, counsel for the defendant conceded that the state is permitted to file a new information with a different docket number charging the defendant with the two counts of kidnapping in the first degree contained in the substitute information.

       To the contrary, the state submits that application of the doctrine of res judicata would create inconsistent judgments in that no statute of limitations exists for the crime of kidnapping, evincing the legislature’s intent to have that crime prosecuted at any time.