author: GRUENDEL, J.

text:
    LPP MORTGAGE, LTD. v. JOSEPH A. LYNCH ET AL.
    (AC 29874)
    Flynn, C. J., and Gruendel and McDonald, Js.

      Argued November 18, 2009
    officially released July 27, 2010

      Frank W. Murphy, with whom, on the brief, was Donald F. Reid, for the appellants-appellees (named defendant et al.).

      John F. Carberry, with whom, on the brief, was David T. Martin, for the appellee-appellant (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

GRUENDEL, J.

The defendants Joseph A. Lynch and Frances H. Lynch appeal from the judgment of foreclosure by sale rendered by the trial court in favor of the plaintiff, LPP Mortgage, Ltd. On appeal, the defendants claim that the court erred in awarding (1) interest on the principal amount they owed under the promissory note and (2) attorney’s fees to the plaintiff under the note. On cross appeal, the plaintiff claims that the court erred in calculating the amount of (1) principal debt due under the note and (2) attorney’s fees under the note. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this matter. On December 18,1992, the defendants’ corporation, Birdseye Printing Company, executed and delivered a promissory note in the amount of $650,000 to Business Loan Center, Inc. (lender), with the United States Small Business Administration acting as the lender’s agent. The defendants, as individuals, signed the note. As security for the note, the defendants executed and delivered (1) a UCC-1 financing statement dated December 18, 1992, granting a security interest to the lender in Birdseye Printing Company’s business equipment, (2) a first mortgage on real property located at 65 Stillman Avenue in Bridgeport (commercial property) and (3) a second mortgage on real property located at 2 Betmarlea Road, in Norwalk (home).

In 1998, the defendants defaulted on the promissory note, and they declared business and personal bankruptcies. Thereafter, the lender obtained a judgment of strict foreclosure on the commercial property, as well as a judgment of replevin of Birdseye Printing Company’s business equipment, which culminated in the sale of that equipment through auction. The money obtained from those sales was applied toward the defendants’ debt under the promissory note.

On August 31, 2000, the plaintiff acquired the promissory note and mortgage from the lender by way of assignment and, on May 19, 2005, instituted a foreclosure action against the defendants’ home in Norwalk to collect the balance owed under the note. Pursuant to General Statutes § 52-434 (a) (4) and Practice Book § 19-2A, the matter was referred to an attorney trial referee, who conducted a trial and submitted a report, dated September 21, 2005, as required by Practice Book § 19-8, in which he found, inter alia, that the promissory note signed by the defendants and payable to the plaintiff as an assignee remained in default. He further recommended that judgment enter in favor of the plaintiff in the principal amount of $224,486 with an interest rate of 8.75 percent from February 24, 1999, until the date of judgment. Thereafter, the plaintiff and the defendants objected to the attorney trial referee’s report and recommendation. The court, Hon. William, B. Lewis, judge trial referee, issued a memorandum of decision, filed February 22, 2006, in which it overruled those objections, accepted the attorney trial referee’s report and recommendation and rendered judgment in favor of the plaintiff. The court further ordered a hearing to determine the value of the subject premises, the type of foreclosure, the amount of attorney’s fees and other matters associated with the foreclosure of the mortgage. Subsequently, upon the plaintiffs motion for a judgment of strict foreclosure, the court, Nadeau, J., rendered judgment of foreclosure by sale in favor of the plaintiff, awarding $224,486 in principal, with an interest rate of 8.75 percent and attorney’s fees in the amount of $44,640.27. The defendants filed an appeal, and the plaintiff filed a cross appeal from that judgment, both of which were dismissed by this court for lack of a final judgment. On April 15, 2008, the matter was referred back to the court, Nadeau, J., and judgment again was rendered in favor of the plaintiff, awarding $224,486 in principal, an interest rate of 8.75 percent from the date of default until the date of judgment and $51,168.27 in attorney’s fees. From that judgment, the defendants now appeal and the plaintiff cross appeals.

I

THE DEFENDANTS’ APPEAL

A

The defendants first claim that the court erred in awarding the plaintiff interest on the principal amount of debt owed under the terms of the promissory note. We disagree.

The following additional facts are necessary for our discussion. At trial before the attorney trial referee, the plaintiff introduced evidence purporting to show that the defendants owed it various amounts under the note, ranging from $390,863 to $539,323.11. The attorney trial referee concluded that the plaintiff had failed to satisfy its burden in establishing the defendant’s debt under the promissory note and recommended judgment of foreclosure to enter in favor of the plaintiff in the amount of $224,486.37. Thereafter, the defendants objected to the attorney trial referee’s report and recommendation on the ground that it recommended that interest be added to the principal amount of debt from February 24, 1999, to the date of judgment. The court overruled that objection and accepted the attorney trial referee’s report and recommendation. Subsequently, the defendants filed a motion to reargue their objection. The court denied that motion.

On appeal, the defendants contend they were denied a meaningful opportunity to raise the issue of the plaintiffs entitlement to interest. Specifically, they allege that all issues other than the plaintiffs right to foreclosure and the calculation of the correct amount of principal debt were reserved for further proceedings. Additionally, the defendants contend that the plaintiff acted inequitably in allegedly artificially inflating the principal amount that the defendants owed under the promissory note, preventing them from refinancing their mortgage and paying off their debt. Specifically, they argue that the plaintiff made no effort to justify the amount that it alleged was due to it from the defendants. As such, they aver that interest should not have been awarded for the period between August 1, 2000, when they assert that they would have refinanced their mortgage, and the date of judgment.

We begin by setting forth our standard of review. “A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court ... or the Superior Court reviewing the findings of . . . attorney trial referees. . . . This court has articulated that attorney trial referees and [fact finders] share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court. . . .

“The factual findings of a[n] [attorney trial referee] on any issue are reversible only if they are clearly erroneous. ... [A reviewing court] cannot retry the facts or pass upon the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . .

“Although it is true that when the trial court reviews the attorney trial referee’s report the trial court may not retry the case and pass on the credibility of the witnesses, the trial court must review the referee’s entire report to determine whether the recommendations contained in it are supported by findings of fact in the report. It is also true that the trial court cannot accept an attorney trial referee’s report containing legal conclusions for which there are no subordinate facts.” (Citations omitted; internal quotation marks omitted.) Post Road Iron Works, Inc. v. Lexington Development Group, Inc., 54 Conn. App. 534, 540-41, 736 A.2d 923 (1999).

We first consider whether the defendants were denied a meaningful opportunity to establish factually the basis on which interest should not have been equitably awarded. Our review of the record convinces us that the defendants reasonably could have expected prejudgment interest to be a matter decided by the attorney trial referee for the following reasons. First, the promissory note provides in relevant part that “the undersigned promises to pay . . . Six FFundred Fifty Thousand . . . dollars, with interest on unpaid principal computed from the date of each advance to the undersigned at the initial rate of 8.75 percent per annum .... Holder is authorized to declare all or any part of the indebtedness immediately due and payable upon the happening of . . . (1) Failure to pay any part of the indebtedness when due . . . .” (Emphasis added.) The note also provides in relevant part: “The term ‘Indebtedness’ as used herein shall mean the indebtedness . . . including principal, interest, and expenses . . . .” (Emphasis added.) Notably, at the May 19, 2005 hearing before the attorney trial referee, counsel for the plaintiff stated that “there’s an issue as to what the true amount of the debt is.” (Emphasis added.) Similarly, in addressing counsel for the defendants, the attorney trial referee inquired: “[YJou’re in agreement that this [exhibit] accurately states . . . the plaintiffs claim as to what the indebtedness is?” (Emphasis added.) Second, the defendants’ assertion that the parties stipulated that all issues other than the plaintiffs right to foreclosure and the calculation of the principal amount of debt were reserved for future proceedings is not supported by the record. Finally, to the extent that the defendants allege that attorney trial referees are precluded from recommending prejudgment interest, they are mistaken. To the contrary, attorney trial referees have broad discretion to recommend an award of prejudgment interest. See Alliance Partners, Inc. v. Voltrac Technologies, Inc., 263 Conn. 204, 207 n.6, 820 A.2d 224 (2003); Paulus v. LaSala, 56 Conn. App. 139, 141, 742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000).

More significantly, the defendants had a meaningful opportunity before the attorney trial referee to establish the basis on which interest should not have been awarded. The attorney trial referee stated: “And the trial before me, today, would be a trial on the special defense of unclean hands or breach of the [covenant of] good faith and fair dealing. . . . The other issue, too, is whether the defendants] [prevail] on the defenses or not, there’s an issue as to what the true amount of the debt is.” Thus, the defendants had the opportunity to introduce evidence and present their case concerning the plaintiffs entitlement to interest. The same is true of the hearings before the court with regard to the parties’ respective objections to the attorney trial referee’s report and recommendation, as well as their motion to reargue that objection.

We finally consider whether the attorney trial referee properly recommended that interest be awarded from the date of default until the date of judgment. “The allowance of prejudgment interest under [General Statutes] § 37-3a is a matter within the discretion of the trial court. . . . This allowance turns on whether the detention of the money is or is not wrongful under the circumstances. ... If the trial court determines that one party has wrongfully detained funds, it must next determine the date the wrongful detention began. Where the claim rests on a breach of contract, statutory interest accrues from the date the contract was breached.” (Citations omitted; internal quotation marks omitted.) Patron v. Konover, 35 Conn. App. 504, 517, 646 A.2d 901, cert. denied, 231 Conn. 929, 648 A.2d 879 (1994); see also Rissolo v. Betts Island Oyster Farms, LLC, 117 Conn. App. 344, 358, 979 A.2d 534 (2009) (award of prejudgment interest discretionary, not mandatory).

The referee’s recommendation that interest be awarded from the date of default until the date of judgment finds sufficient support in the record. It was not disputed that the mortgage note and deed properly were executed. Nor was it disputed that the defendants defaulted on the promissory note. As stated earlier, the promissory note provides that upon default, the holder of the note may declare the indebtedness due, which includes principal and interest. In light of the foregoing, as well as the court’s discretion to award prejudgment interest, the attorney trial referee’s report and recommendation that interest be awarded from the date of default until the date of judgment, we conclude, was not clearly erroneous.

B

The defendants also claim that the court erred in awarding the plaintiff attorney’s fees. Specifically, they contend that the court erred in awarding attorney’s fees because the plaintiff did not prevail by virtue of their having recovered only $224,486.37, an amount the defendants conceded was due, of the $390,836.88 the plaintiff sought under the promissory note. Alternatively, they contend the court erred in applying a formula to calculate attorney’s fees. We disagree.

We first consider the defendants’ claim that the court erred in awarding the plaintiff attorney’s fees because the plaintiff did not prevail. General Statutes § 52-249 (a) provides: “The plaintiff in any action of foreclosure of a mortgage or lien, upon obtaining judgment of foreclosure, when there has been a hearing as to the form of judgment or the limitation of time for redemption, shall be allowed the same costs, including a reasonable attorney’s fee, as if there had been a hearing on an issue of fact. The same costs and fees shall be recoverable as part of the judgment in any action upon a bond which has been substituted for a mechanic’s lien.” (Emphasis added.) Contrary to the defendants’ assertion, the plain language of § 52-249 (a) makes clear that the plaintiff need not prevail to recover attorney’s fees. Rather, the court need only render a judgment of foreclosure in favor of the plaintiff, as it did in the present case. Because the court entered a judgment of foreclosure in favor of the plaintiff, we conclude that its award of attorney’s fees was proper.

Alternatively, the defendants contend the court erred in applying a formula to calculate attorney’s fees. The following facts are relevant to our discussion. When the court, Nadeau, J., pondered how best to calculate the amount of attorney’s fees at the April 15, 2008 hearing concerning the plaintiffs motion for strict foreclosure, the following colloquy transpired:

“[The Defendants’ Counsel]: I think the—the easiest resolution—we’re both going to leave unhappy. But if you took one of the formulas and applied it to the entire claim of $77,000, it would—it would be an acceptable result—
“The Court: And you can—
“[The Defendants’ Counsel]:—rather than going—
“The Court: You can plug that disastrously ridiculous solution into the remaining place I worried about the bankruptcy problem.
“[The Defendants’ Counsel]: Yes, it would take all of the issues that have been raised.
“The Court: All right. Well, let me do that formula, okay. It’s the best I can come up with. I’ve done it before . . . .” (Emphasis added.)

Ultimately, the court applied a formula in which it established a ratio by comparing the amount of the principal award ($224,486.37) to the amount of principal the plaintiff argued it was entitled ($390,836.88). As such, the court awarded $44,640.27 of the $77,729.88 sought by the plaintiff on the basis of the proportion of the principal recovered. Although the trial court did not award attorney’s fees incurred in connection with the first appeal dismissed by this corat for lack of a final judgment, it did allow the plaintiff to recover an additional $6528 in fees and expenses not related to the first appeal, raising the total amount of attorney’s fees to $51,168.27.

Initially, we consider whether the defendants have preserved their claim properly. “Waiver is the intentional relinquishment or abandonment of a known right or privilege. ... As a general rule, both statutory and constitutional rights and privileges may be waived. . . . Waiver is based upon a species of the principle of estop-pel and where applicable it will be enforced as the estoppel would be enforced. . . . Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed .... Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Internal quotation marks omitted.) Wiele v. Board of Assessment Appeals, 119 Conn. App. 544, 549, 988 A.2d 889 (2010). Because the defendants expressly approved the court’s application of the formula to calculate the amount of attorney’s fees, they have waived any right to challenge this matter on appeal.

Alternatively, we note that “[t]his court routinely has held that it will not afford review of claims of error when they have been induced. [T]he term induced error, or invited error, has been defined as [a]n error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the erroneous ruling. ... It is well established that a party who induces an error cannot be heard to later complain about that error. . . . This principle bars appellate review of induced nonconstitu-tional and induced constitutional error. . . . The invited error doctrine rests [on principles] of fairness, both to the trial court and to the opposing party.” (Internal quotation marks omitted.) Snowdon v. Grillo, 114 Conn. App. 131, 139, 968 A.2d 984 (2009). Because the defendants invited the court to apply the formula to calculate attorney’s fees, we decline to review their claim that the court erred in applying that formula. See E. Udolf, Inc. v. Aetna Casualty & Surety Co., 214 Conn. 741, 752, 573 A.2d 1211 (1990) (party may not secure reversal on basis of any invited error); Pineau v. Home Depot, Inc., 45 Conn. App. 248, 252, 695 A.2d 14 (1997) (same), appeal dismissed, 245 Conn. 422, 713 A.2d 825 (1998).

II

THE PLAINTIFF’S CROSS APPEAL

A

The plaintiff claims that the attorney trial referee erred in determining the amount of principal debt the defendants owed under the promissory note. We disagree.

The following facts are relevant to our discussion. At the first foreclosure action between the defendants and the lender, the defendants introduced a motion for deficiency judgment, dated February 24, 1999. At the defendants’ request, the attorney trial referee took judicial notice of the motion and admitted it into evidence. It provides in relevant part: “At the time of entry of said judgment, the subject property was appraised at a value of $180,000 (subject to taxes in the amount of $49,116.00) and the plaintiffs debt was found to be $539,323.11. There is an additional offset for the sale of equipment in the amount of $183,952.74 leaving a balance of $224,486.37.” The plaintiff introduced two exhibits into evidence to support its argument that the defendants owed $390,863.88 under the promissory note: (1) a spreadsheet entitled “Loan Payment History” admitted as a business record, and indicating that the defendants owed $390,863.88 as of July 6,1999, and (2) an affidavit of debt from the first foreclosure action, dated July 1, 1999, indicating that the defendants owed $390,863.88. In his report and recommendation, the attorney trial referee concluded that judgment of foreclosure should enter in favor of the plaintiff in the amount of $224,486.37.

On cross appeal, the plaintiff claims that the attorney trial referee erred in determining the amount of principal debt the defendants owed under the promissory note. Specifically, the plaintiff contends that the court did not afford enough weight to its evidence supporting its claim that the defendants owed $390,863.88. As such, the plaintiff asserts that the court erred in accepting the attorney trial referee’s report and recommendation.

“Our standard of review concerning a trial court’s findings of fact is well established. If the factual basis of the court’s decision is challenged, our review includes determining whether the facts set out in the memorandum of decision are supported by the record or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . Further, a court’s inference of fact is not reversible unless the inference was arrived at unreasonably. . . . We note as well that [t]riers of fact must often rely on circumstantial evidence and draw inferences from it. . . . Proof of a material fact by inference need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact. . . . Moreover, it is the exclusive province of the trier of fact to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony. . . . Thus, if the court’s dispositive finding . . . was not clearly erroneous, then the judgment must be affirmed. . . . The function of the appellate court is to review, and not retry, the proceedings of the trial court. (Citation omitted; internal quotation marks omitted.) Stein v. Tong, 117 Conn. App. 19, 24, 979 A.2d 494 (2009).

The record in the present case makes clear that the attorney trial referee had sufficient evidence to conclude that the defendants owed $224,486.37 under the promissory note. The plaintiff essentially requests that we transgress our function as an appellate court and weigh conflicting evidence. See IN Energy Solutions, Inc. v. Realgy, LLC, 114 Conn. App. 262, 275, 969 A.2d 807 (2009) (Appellate Court cannot sift and weigh evidence). This, we cannot do.

B

The plaintiff also claims that the court erred in calculating attorney’s fees. We disagree.

The following facts aid our discussion. The promissory note provides in relevant part: “The undersigned shall pay all expenses of any nature, whether incurred in or out of court, and whether incurred before or after this Note shall become due at its maturity date or otherwise, including but not limited to reasonable attorney’s fees and costs, which Holder may deem necessary or proper in connection with the satisfaction of the Indebtedness or the administration, supervision, preservation, protection of (including, but not limited to, the maintenance of adequate insurance) or the realization upon the Collateral.” At the hearing on the plaintiffs motion for a judgment of strict foreclosure, the plaintiff claimed that it was entitled to $77,729.88 in attorney’s fees. The plaintiff also provided an itemized list of fees and expenses in connection with this matter. In calculating attorney’s fees, the court applied a formula to which the plaintiff repeatedly objected.

On appeal, the plaintiff claims that the court erred in calculating attorney’s fees. Specifically, the plaintiff contends that the court should not have arbitrarily disallowed fees it incurred in the first appeal when those fees, pursuant to the language of the promissory note, were “in connection with the satisfaction of the [indebtedness . . . .” Additionally, the plaintiff contends that the court rewrote the terms of the contract by applying the formula to calculate attorney’s fees. We are not persuaded.

We begin by setting forth our standard of review. “It is well established that we review the trial court’s decision to award attorney’s fees for abuse of discretion. . . . This standard applies to the amount of fees awarded . . . and also to the trial court’s determination of the factual predicate justifying the award. . . . Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, 114 Conn. App. 671, 680, 970 A.2d 807 (2009).

“Connecticut adheres to the American rule, which provides that attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. . . . When a contract expressly provides for the recovery of reasonable attorney’s fees, an award under such a clause requires an evidentiary showing of reasonableness. ... A trial court may rely on its own general knowledge of the trial itself to supply evidence in support of an award of attorney’s fees. . . . The amount of attorney’s fees to be awarded rests in the sound discretion of the trial court and will not be disturbed on appeal unless the trial court has abused its discretion. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law . . . .” (Citations omitted; internal quotation marks omitted.) Young v. Vlahos, 103 Conn. App. 470, 479, 929 A.2d 362 (2007), cert. denied, 285 Conn. 913, 943 A.2d 474 (2008); see Buccino v. Cable Technology, Inc., 25 Conn. App. 676, 679, 595 A.2d 376 (1991) (amount of attorney’s fees awarded rests in sound discretion of trial court because it is always in more advantageous position to evaluate services of counsel than reviewing court).

We first consider the plaintiffs claim that the trial court should not have arbitrarily disallowed fees that the plaintiff incurred in the first appeal when those fees, pursuant to the language of the promissory note, were “in connection with the satisfaction of the Indebtedness . . . .” In refusing to award attorney’s fees in connection with the first appeal that had been dismissed by this court for lack of a final judgment, the following colloquy transpired:

“The Court: And the reason you said they shouldn’t recover with regard to their cross appeal is what?
“[The Defendants’ Counsel]: It was dismissed. Their cross appeal was dismissed, as was my appeal.
“The Court: So, it wasn’t that their cross appeal was deemed on the merits to have been dismissed; it’s that it was the baby with the bathwater that was dumped out entirely by the Appellate Court. ... It seems crazy in a sense to be receiving it now, but it does prompt the question—because the answer doesn’t seem all that simple about when would you get it, if you don’t get it now.
“Should not this particular fee for the prosecution of your cross appeal await the day when you get it?
“In other words, it seems to me, for example, if the Appellate Court said, ‘Here, [plaintiffs counsel], you are entitled to that [$390,000] that [Judge] Nadeau didn’t give you,’ it seems to me, at that point, as it was remanded to the trial court to make a final pronouncement about that [$390,000] that, that would be the time to collect for the pursuit of the [$390,000] on appeal. . . . But wouldn’t that be a possible place to do it? ... All right. What I’m going to do now, then, is to not award those.” In light of the foregoing, we conclude that the court exercised sound discretion in refusing to award the plaintiff attorney’s fees related to the first appeal.

We next consider the plaintiffs claim that the court rewrote the terms of the contract by applying the formula to calculate attorney’s fees. In the present case, the court indicated why it was applying a formula to calculate attorney’s fees. It stated: “It strikes me, it’s very difficult to award the entire fee when it’s clear that the entire goal wasn’t achieved.” The court also stated: “Well, let me do that formula, okay. It’s the best I can come up with. I’ve done it before, but I do think it’s fairer to [the plaintiffs counsel] in a sense that we acknowledge their premium, so to speak, at having been hauled in for the difficult matter and had people of not—of not garden variety talent, but of supreme talent brought to bear on a more difficult matter. I’d rather acknowledge that and chop out based on success than to chop them back down toward the level of the fees . ...” In adopting the formula to calculate attorney’s fees, the court implicitly deemed certain fees uncollected to be unreasonable. It is incumbent on the appellant to provide an adequate record for review on appeal. Celini v. Celini, 115 Conn. App. 371, 379, 973 A.2d 664 (2009). Here, the plaintiff did not request an articulation as to what fees the court deemed reasonable and what fees it deemed unreasonable. “In the absence of a motion for articulation, we read an ambiguous trial record to support, rather than to undermine, the judgment.” (Internal quotation marks omitted.) Perez v. D & L Tractor Trailer School, 117 Conn. App. 680, 707, 981 A.2d 497 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010) We, therefore, conclude that the court correctly applied the law and did not abuse its discretion in awarding attorney’s fees to the plaintiff.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.

In this opinion the other judges concurred.

       Also named as defendants in this mortgage foreclosure action were Business Loan Center, Inc., the Internal Revenue Service and Yale-New Haven Hospital, Inc. Those defendants are not parties to this appeal. We refer in this opinion to Joseph A. Lynch and Frances H. Lynch as the defendants.

       The defendants’ corporation, Lynch Enterprises, Inc., did business as Birdseye Printing Company. We refer to their corporation as Birdseye Printing Company in this opinion.

       The promissory note provides in relevant part: “[T]he undersigned promises to pay . . . Six Hundred Fifty Thousand . . . dollars, with interest on unpaid principal computed from the date of each advance to the undersigned at the initial rate of 8.75 percent per annum .... Holder is authorized to declare all or any part of the indebtedness immediately due and payable upon the happening of . . . (1) Failure to pay any part of the indebtedness when due . . . .”
      The note also provides in relevant part: “The term ‘Indebtedness’ as used herein shall mean the indebtedness . . . including principal, interest, and expenses . . . .”

       The amount of $63,400 was generated by the separate sale of a printing press.

       The plaintiff objected to the referee’s use of the calculation of debt based on the plaintiffs own calculation of the correct amount in the prior proceeding. The defendants objected on the ground that the attorney trial referee recommended that interest be added to the principal amount of the debt from February 24, 1999, to the date of judgment.

       The court set the interest rate at 10 percent. That rate later was modified to 8.75 percent.

       The motion was granted to reconsider only the rate of interest. See footnote 6 of this opinion.

       The court was referring to exhibit four, which counsel for the plaintiff indicated was “the loan payment history prepared by [the plaintiff], reflecting the amount of the debt, including the principal and accrued interest.”

       The plaintiff stipulated that determination of attorney’s fees only may be premature.

       At the hearing concerning the parties’ objections to the attorney trial referee’s report and recommendation, the court did not take any evidence. The defendants’ “Objection to Acceptance of Report of Attorney Trial Referee,” however, states: “By July 11, 2000, the Lynch defendants had secured financing from Old Kent Mortgage Company which would have allowed the Lynches to pay off the mortgage principal of $224,486.37 plus the interest thereon. However, [the plaintiff] insisted that its mortgage debt was $390,863.08 as of July 19,1999, which grew to $414,210.40 as of June 1, 2005 due to capitalization of certain unexplained expenses added by the [United States] Small Business Administration.”

       The plaintiff also contends that because the spreadsheet entitled “Loan Payment History” was admitted as a business record, it “should be the barometer for reliability . . . .” We note, however, that “[i]t has long been recognized that a record kept in the usual course of business is admissible. ... It is equally clear that business records do not cany any presumption of accuracy merely because they are admissible. The credibility of such records remains a question for the trier of fact.” (Internal quotation marks omitted.) Midstate Resources Corp. v. Dobrindt, 70 Conn. App. 420, 425, 798 A.2d 494 (2002).


source: Caselaw Access Project

author: LAVINE, J. BISHOP, J., SCHALLER, J.,

license: Public Domain

text:
    ODILIO GONZALEZ v. COMMISSIONER OF CORRECTION
    (AC 29686)
    Bishop, Lavine and Schaller, Js.

      Argued September 8, 2009
    officially released July 27, 2010

      MichaelE. O’Hare, supervisory assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, chief state’s attorney, and GailP. Hardy, state’s attorney, for the appellant (respondent).

      Robert J. McKay, special public defender, for the appellee (petitioner).
   Opinion

LAVINE, J.

The respondent, the commissioner of correction, appeals from the judgment of the habeas court granting the second amended petition for a writ of habeas coipus filed by the petitioner, Odilio Gonzalez. On appeal, the respondent claims that the court improperly concluded that the petitioner was denied the effective assistance of trial counsel because (1) the sixth amendment does not confer a right to the effective assistance of counsel in matters pertaining to credit for presentence confinement and (2) the petitioner did not meet his burden of showing deficient performance by his counsel or prejudice as a result of any such deficiency. Counsel renders ineffective assistance in violation of the sixth amendment when, after the right to counsel has attached, he fails to request that bond in connection with his Ghent’s prior arrest be increased in order to maximize his client’s presentence confinement credit, leading to the deprivation of his client’s liberty. Accordingly, we affirm the judgment of the habeas court.

The following facts are relevant to the respondent’s claims on appeal. The petitioner was arrested on April 21, 2006, docket number CR-06-0599898-S, and charged with threatening in the second degree in violation of General Statutes § 53a-62 (first arrest). He was released later that same day on a $500 nonsurety bond. On May 31, 2006, the petitioner was arrested again and charged with breach of the peace in the second degree in violation of General Statutes § 53a-181 and criminal violation of a protective order in violation of General Statutes § 53a-223, docket number CR-06-0600923-S (second arrest). The petitioner was arraigned the following day, and the court set bond in the amount of $35,000. He remained in custody until the court reduced his bond on June 16, 2006, to a promise to appear. On January 12, 2007, the petitioner was arrested for a third time, docket number CR-07-0607605-S, and charged with criminal violation of a protective order in violation of § 53a-223 and harassment in the second degree in violation of General Statutes § 53a-183. He was arraigned, with his counsel present, on January 16, 2007, at which time the court set bond in the amount of $65,000 on his January 12, 2007 arrest, and the petitioner remained in custody, unable to post bond (third arrest).

The petitioner’s counsel, who represented the petitioner in all three matters, requested, on March 30,2007, that the bonds in connection with the petitioner’s first two arrests be increased so that the petitioner could receive presentence confinement credit for those arrests. The court, Ward, J., ordered that the petitioner’s bonds resulting from the first two arrests be increased. On May 21, 2007, the petitioner, pursuant to a plea agreement, pleaded guilty to one count of violation of a protective order, arising out of the second arrest, and one count of threatening in the second degree, arising out of the first arrest. All other charges against him were nolled. The court, White, J., sentenced the petitioner on June 11, 2007, to five years incarceration, execution suspended after one year, followed by three years probation for violation of a protective order to be served concurrently with one year of incarceration for threatening in the second degree. At no time did counsel request that the petitioner receive presenten ce confinement credit for the seventy-three day period between January 16 and March 30, 2007, for one of his first two arrests.

On January 7, 2008, the petitioner filed his second amended petition for a writ of habeas coipus, claiming that counsel was ineffective in failing to request that the petitioner’s bond be increased prior to March 30, 2007, and by not asking the court at any time following March 30, 2007, to credit the petitioner with seventy-three days of presentence confinement credit. He argued that had counsel asked for the bond increase on January 16, 2007, or asked that the petitioner be credited with the seventy-three days of presentence confinement credit, the petitioner would have discharged his sentence seventy-three days earlier than calculated. Following a trial, the habeas court, Sahú-man, J., found that the petitioner met his burden of proving that counsel’s performance was deficient and ordered the respondent to credit the petitioner with seventy-three days of presentence confinement credit. The habeas court granted the respondent’s petition for certification to appeal, and this appeal followed.

I

The respondent first claims that the habeas court improperly concluded that the petitioner was denied the effective assistance of counsel because he had no sixth amendment right to the effective assistance of counsel for a matter pertaining to presentence confinement. Specifically, the respondent argues that the petitioner did not have a right to the effective assistance of counsel because the calculation of presentence confinement credit is not a critical stage of the proceedings. The respondent mischaracterizes the issue to be decided, and his claim is therefore rejected.

The respondent argues that the petitioner was not entitled to effective assistance of counsel for matters pertaining to presentence confinement credit. He further contends that because the calculation and application of jail credits are posttrial administrative matters, the January 16, 2007 court proceeding was not a critical stage of the petitioner’s prosecution for which he is guaranteed effective assistance of counsel. The respondent’s focus on whether a matter pertaining to presen-tence confinement is a critical stage misses the mark. The appropriate inquiry is whether the petitioner was entitled to the effective assistance of counsel at his January 16, 2007 arraignment and, if he had counsel, whether counsel was effective.

“The [s]ixth [a]mendment guarantees that [i]n all criminal prosecutions, the accused shall enjoy the right ... to have the [assistance of [c]ounsel for his defence. . . . This right attaches only at or after the initiation of adversary judicial criminal proceedings— whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. . . . The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of [the] government and [the] defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the criminal prosecutions to which alone the explicit guarantees of the [s]ixth [a]mendment are applicable. . . . We also have noted that the time of the attachment of the right to counsel under the federal constitution is no different under article first, § 8, of the constitution of Connecticut. . . .

“The United States Supreme Court has indicated that the sixth amendment’s core purpose is to assure that in any criminal prosecutio[n] . . . the accused shall not be left to his own devices in facing the prosecutorial forces of organized society. ... By its very terms, it becomes applicable only when the government’s role shifts from investigation to accusation. For it is only then that the assistance of one versed in the intricacies ... of law ... is needed to assure that the prosecution’s case encounters the crucible of meaningful adversarial testing. ... In this regard, [w]e have consistently adopted the reasoning of the United States Supreme Court with respect to when the sixth amendment right to counsel attaches in a criminal proceeding, finding that [n]o right to counsel attaches until prosecution has commenced.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Pierre, 277 Conn. 42, 92-93, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006).

“[I]t is the state’s decision to move forward with the prosecution of the crimes charged in the information document, by arraigning the suspect and filing the information with the court, that signifies the state’s commitment to prosecute as well as the initiation of the adversary judicial proceedings that trigger a defendant’s right to counsel under the sixth amendment.” (Emphasis added.) Id., 95. Our Supreme Court has cited with approval Hamilton v. Alabama, 368 U.S. 52, 54—55, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961), for the proposition that a criminal defendant enjoys the right to counsel at arraignment. State v. Falcon, 196 Conn. 557, 563-64, 494 A.2d 1190 (1985). “It is at this point in the process that the ‘prosecutorial forces of organized society’ aligned against the defendant, and the defendant actually found himself ‘immersed in the intricacies of substantive and procedural criminal law,’ thus warranting protection under the sixth amendment.” State v. Pierre, supra, 277 Conn. 97. The petitioner’s constitutional right to counsel had attached by the time of his arraignment.

Furthermore, “the right to counsel is the right to the effective assistance of counsel.” (Internal quotation marks omitted.) Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970). “The right to counsel . . . would be meaningless unless it also implied the right to effective assistance of such counsel.” Andrades v. Commissioner of Correction, 108 Conn. App. 509, 515, 948 A.2d 365 (concluding that indigent criminal defendant has right to appointed counsel at sentence review), cert. denied, 289 Conn. 906, 957 A.2d 868 (2008).

Here, the petitioner had a sixth amendment right to be represented by counsel at his January 16, 2007 arraignment. He was represented by counsel at that arraignment. Because he had a right to counsel and was represented by counsel, the petitioner had a sixth amendment guarantee to the effective assistance of counsel. Having arrived at this conclusion, it must now be determined whether the habeas court was correct in finding that the petitioner was denied the effective assistance of counsel.

II

The respondent claims that the habeas court improperly concluded that the petitioner was denied the effective assistance of trial counsel because the petitioner did not meet his burden of showing deficient performance by his counsel or prejudice resulting from any such deficiency. This claim must be rejected.

The following facts are relevant to the respondent’s claim. During the habeas trial, attorney Bruce McIntyre, a criminal lawyer, testified on behalf of the petitioner. McIntyre testified that he believed “it is within the range of competency for an attorney to address the bond issue with every client and, where appropriate, to have it raised to preserve and increase his pretrial credit.”

In its oral decision, the habeas court noted: “The consequences to a petitioner are grave if he is detained in jail as opposed to being released. I don’t see any difference in this case where the issue of bail had not been addressed the first time. It still continued and should have been raised—it should have been raised the first time, actually. It was raised the second time in March, but it should have been raised in January.” The court then stated that it could “see no strategic reason why [the] petitioner’s defense counsel would not have asked for an increase of bond on January 16, 2007, when the petitioner was arraigned on the newest charges.” Having found that the petitioner was denied his constitutional right to the effective assistance of counsel, the court ordered that the respondent credit the petitioner with seventy-three days of presentence confinement.

“We begin our discussion by noting that the effectiveness of an attorney’s representation of a criminal defendant is a mixed determination of law and fact that . . . requires plenary review .... The sixth amendment to the United States constitution guarantees a criminal defendant the assistance of counsel for his defense. U.S. Const., amend. VI. It is axiomatic that the right to counsel is the right to the effective assistance of counsel. ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied.” (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 525, 903 A.2d 169 (2006). “It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier.” (Emphasis in original; internal quotation marks omitted.) Washington v. Commissioner of Correction, 287 Conn. 792, 832-33, 950 A.2d 1220 (2008).

A

“Turning first to the performance prong, we note that the petitioner must show that [counsel’s] representation fell below an objective standard of reasonableness in order to establish ineffective performance. ... In other words, the petitioner must demonstrate that [counsel's] representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... In analyzing [counsel’s] performance, we indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance .... The petitioner bears the burden of overcoming this presumption.” (Citations omitted; internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 460, 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).

“Counsel . . . can . . . deprive a defendant of the right to effective assistance, simply by failing to render adequate legal assistance . . . .” (Citations omitted; internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. 686. This case does not deal with an assertion that counsel failed to raise an exotic legal theory or pursue a groundbreaking strategy. Nor does this case deal with a failure having only inconsequential impact. This case deals with an oversight that directly and adversely impacted the defendant’s liberty. See Bowen v. Johnston, 306 U.S. 19, 26, 59 S. Ct. 442, 83 L. Ed. 455 (1939) (“[i]t must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired’’); Santiago v. Commissioner of Correction, 39 Conn. App. 674, 679, 667 A.2d 304 (1995) (“[o]ur Supreme Court found that [t]he writ of habeas corpus . . . does not focus solely upon a direct attack on the underlying judgment or upon release from confinement . . . but is available as a remedy for issues of fundamental fairness implicating constitutional rights” [citation omitted; internal quotation marks omitted]).

The habeas court found that there was “no strategic reason why [the] petitioner’s defense counsel would not have asked for an increase of bond on January 16, 2007, when the petitioner was arraigned on the newest charges.”

The habeas court correctly determined that a reasonably competent attorney not only would have known to ask for an increase in bond, but also would have asked for bond to be increased during the petitioner’s third arraignment, not two and one-half months later. No evidence to the contrary was presented at the habeas trial. Counsel’s conduct fell below an objective level of reasonableness, as it was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law. The prejudicial effect of his performance must now be considered.

B

“To satisfy the prejudice prong, a claimant must demonstrate 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.) State v. Brown, supra, 279 Conn. 525. General Statutes § 18-98d (a) (1) provides in relevant part: “Any person who is confined to a community correctional center or a correctional institution for an offense committed on or after July 1, 1981, under a mittimus or because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of such person’s sentence equal to the number of days which such person spent in such facility from the time such person was placed in presentence confinement to the time such person began serving the term of imprisonment imposed; provided (A) each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement; and (B) the provisions of this section shall only apply to a person for whom the existence of a mittimus, an inability to obtain bail or the denial of bail is the sole reason for such person’s presentence confinement . . . .” After the bonds in connection with the first two arrests were increased, the petitioner was unable to obtain bail and was eligible to receive presentence confinement credit for the time he spent in jail from March 30, 2007, until sentencing. Had counsel requested that the bonds be increased at the third arraignment on January 16,2007, the petitioner would have been entitled to seventy-three additional days of presentence confinement credit. There can be no dispute that counsel’s failure to request that the bonds be raised at the third arraignment prejudiced the petitioner by exposing him to seventy-three additional days in jail for which he received no credit. This being the case, the petitioner has satisfied his burden of proving that he was prejudiced by counsel’s representation.

The judgment is affirmed.

BISHOP, J., concurred in the result.

BISHOP, J.,

concurring in result. In this habeas corpus action, the respondent, the commissioner of correction, advances two arguments challenging the habeas court’s decision granting the petition for a writ of habeas corpus filed by the petitioner, Odilio Gonzalez. First, the respondent argues that “[b]ecause the calculation and application of jail credits are a posttrial, administrative matter, counsel’s performance with respect to such credits cannot fall within the sixth amendment’s guarantee of effective counsel at a criminal prosecution.” Second, the respondent argues, in the alternative, that the habeas court was simply wrong in determining that the petitioner’s trial counsel was ineffective by not assuring that bond had been raised, on the occasion of a third arrest, on the two previously pending files in which he later pleaded guilty. I write separately because I agree that the habeas court’s decision should be affirmed, but I disagree with my colleagues’ view of the record and, specifically, with their characterization of the issues on appeal.

As to the respondent’s first claim, I find it more deft than persuasive. In focusing on the respondent’s post-trial sentence calculation, this claim attempts to shift the focus from the pretrial conduct of trial counsel to the postconviction ministerial duty of the respondent, positing that, because the petitioner had no right to counsel at the moment at which the respondent calculated the petitioner’s required period of confinement, he could not have been deprived of a constitutional right. This claim is wide of the mark. The petitioner has not asserted that the respondent’s calculation was either incorrect or an act of discretion. To the contrary, it is plain that because the petitioner had not been held in custody in lieu of bond on the two files in which he ultimately pleaded guilty, he was not statutorily entitled to pretrial jail credit on those files pursuant to General Statutes § 18-98d. The operative moment was not when the respondent made a necessary calculation, but, rather, as the court determined, on January 16, 2007, when the petitioner was arraigned in a third file and ordered held in lieu of bond. The habeas court determined, and I agree, that his trial counsel on all three then pending files should reasonably have sought an increase in bond with respect to each of the two files, already pending so that, if convicted on any or both of those files, he would have received pretrial jail credit time as set forth in § 18-98d. Once the petitioner’s trial counsel failed to do so, the calculation of his sentence without jail credit time was a foregone conclusion. In sum, because the petitioner did not claim that he was entitled to counsel at the moment the respondent determined the application of § 18-98d, and the trial court made no such determination, the respondent’s assertion that the petitioner had no such right is simply not responsive to the record.

The respondent’s second argument is no more than a rehashing of facts and a disagreement with the conclusions drawn by the habeas court from the evidence. The respondent takes issue with the court’s conclusion, supported by expert evidence at the habeas trial, that on January 16, 2007, trial counsel should have secured higher bonds on the two pending files in which he also represented the petitioner. The respondent argues: “The foremost concern of any competent defense attorney at this point would be avoiding a lengthy period of incarceration for his client and not maximizing his client’s credit for presentence confinement. While the failure to seek an increase in the previous bonds was an oversight, it was hardly an error so serious that [the] petitioner’s counsel was not acting as the ‘counsel’ guaranteed by the sixth amendment.” Noticeably, nowhere in this argument does the respondent claim that the petitioner had no constitutional right to counsel at his arraignment on the third charge and that his right to counsel did not pertain, as well, to the two previously pending files in which trial counsel also represented the petitioner. Because the respondent makes no such claim, I see no useful purpose in an analysis of whether this moment was a critical stage in the underlying criminal trial proceedings. And, because the respondent’s claims are simply a refutation of the habeas court’s well reasoned findings based on evidence credited by the court, I regard this part of the respondent’s argument as no more than an effort to retry the factual issues on appeal, a function for which we have no charter. Accordingly, I respectfully concur that the judgment should be affirmed.

SCHALLER, J.,

dissenting. I respectfully disagree that the petitioner, Odilio Gonzalez, is entitled to habeas corpus relief on the basis of his claim of ineffective assistance of counsel. In his habeas petition, the petitioner claimed that he was denied the effective assistance of counsel because his attorney failed (1) to request increases in the petitioner’s bail in two pending cases (docket number CR-06-0600923-S and docket number CR-06-0599898-S), in which the attorney had represented him, as soon as bond was set in a third case (docket number CR-07-0607605-S), in order to qualify him for presentence confinement credit with respect to the two earlier cases and (2) to request, at sentencing, that the petitioner receive presentence confinement credit for the period of time between January 16 and March 29, 2007. The petitioner claimed that, as a result of counsel’s failure to act, he was deprived of seventy-three days of presentence confinement credit, representing the period of time that elapsed before counsel obtained an increase in bail in the earlier two cases.

The habeas court granted the petition for a writ of habeas corpus, finding in its oral decision that counsel's performance was deficient and that it caused prejudice to the petitioner. In addressing counsel's performance, the habeas court focused its attention on counsel’s performance at the bail hearing. The court found that counsel promptly should have asked for an increase in bail in the first two of the three cases. As to prejudice, the habeas court stated: “I should make clear that not only have I found deficient performance, but I have found prejudice and the prejudice is the loss of the seventy-three day jail credit in the Hartford cases.” In sum, the habeas court premised its determination solely on the rationale that the petitioner’s constitutional right to the effective assistance of counsel under the Strickland test applied to the initial bail hearing, as well as all subsequent bail hearings. It is noteworthy that, although the habeas court, thereby, addressed the issue of when sixth amendment rights attach in a criminal proceeding, it made no mention of whether qualifying the petitioner for later presentence confinement credit at a bail hearing constituted a critical stage of the criminal proceeding. As a remedy, the habeas court determined that “[t]he most commensurate remedy here is to order the respondent warden ... to credit the petitioner with the seventy-three days of pretrial time . . . .”

In challenging the habeas court’s decision, the respondent first claims that the petitioner had no right to the effective assistance of counsel for a matter pertaining to pretrial confinement credit because the calculation of presentence confinement credit is a posttrial matter and, therefore, the issue cannot be a critical stage of the proceedings, regardless of when it arises. The respondent also claims that counsel’s performance was not deficient and did not cause prejudice to the petitioner.

I

Unlike the principal opinion, I believe that the respondent’s characterization of the issue, of whether a matter pertaining to presentence confinement is a critical stage, is the appropriate inquiry to determine whether the petitioner was entitled to counsel under the sixth amendment, and, therefore, entitled to effective assistance of counsel. I believe that two separate and distinct inquiries must be made in determining whether the petitioner was entitled to counsel under the sixth amendment. See Rothgery v. Gillespie County, 554 U.S. 191, 212, 128 S. Ct. 2578, 171 L. Ed. 2d 366 (2008) (“[t]he question whether arraignment signals the initiation of adversary judicial proceedings . . . is distinct from the question whether the arraignment itself is a critical stage requiring the presence of counsel” [internal quotation marks omitted]); see also id., 213-14 (Alito, J., concurring) (“[T]he term ‘attachment’ signifies nothing more than the beginning of the defendant’s prosecution. It does not mark the beginning of a substantive entitlement to the assistance of counsel.”). These two inquiries are, first, whether the sixth amendment right to counsel has attached and, second, if the sixth amendment right to counsel has attached, whether the events alleged constitute a critical stage of the proceedings.

A

I agree with the principal opinion’s statement, based on relevant case law, that “the petitioner’s constitutional right to counsel had attached by the time of his arraignment.” Having determined that the sixth amendment right attaches at arraignment, the appropriate inquiry is whether the function of counsel to maximize the later calculation of the presentence confinement credit constitutes a critical stage if it occurs during pretrial or trial proceedings. See Rothgery v. Gillespie County, supra, 554 U.S. 212 (“[o]nce attachment occurs, the accused at least is entitled to the presence of appointed counsel during any ‘critical stage’ of the postattachment proceedings” [emphasis added]).

B

The appropriate inquiry in this case is to determine the narrow question of whether the function of counsel to maximize a future calculation of the petitioner’s pre-sentence confinement credit constitutes a critical stage if it occurs during pretrial or trial proceedings. See id. (“what makes a stage critical is what shows the need for counsel’s presence”).

Whether a particular matter rises to the critical stage level depends, not on timing, but on the nature of the matter—in particular, whether it involves protecting the defendant’s vital interests by way of defense in the course of the adversarial confrontation between the defendant and the government. In this regard, the Supreme Court of the United States has stated that “cases have defined critical stages as proceedings between an individual and agents of the State (whether ‘formal or informal, in court or out,’ see United States v. Wade, 388 U.S. 218, 226 [87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967)]) that amount to ‘trialdike confrontations,’ at which counsel would help the accused ‘in coping with legal problems or . . . meeting his adversary . . . .’” (Citations omitted.) Rothgery v. Gillespie County, supra, 554 U.S. 212 n.16. The purpose of the sixth amendment right to counsel is “to protect the fundamental right to a fair trial.” (Internal quotation marks omitted.) Lockhart v. Fretwell, 506 U.S. 364, 368, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993), quoting Strickland v. Washington, 466 U.S. 668, 684, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The Supreme Court also has explained the purpose of extending the right to counsel before trial. Specifically, in United States v. Ash, 413 U.S. 300, 309-12, 93 S. Ct. 2568, 37 L. Ed. 2d 619 (1973), the court stated: “This historical background suggests that the core purpose of the counsel guarantee was to assure Assistance at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor. Later developments have led this Court to recognize that Assistance would be less than meaningful if it were limited to the formal trial itself.

“This extension of the right to counsel to events before trial has resulted from changing patterns of criminal procedure and investigation that have tended to generate pretrial events that might appropriately be considered to be parts of the trial itself. At these newly emerging and significant events, the accused was confronted, just as at trial, by the procedural system, or by his expert adversary, or by both. In Wade, the Court explained the process of expanding the counsel guarantee to these confrontations: When the Bill of Rights was adopted, there were no organized police forces as we know them today. The accused confronted the prosecutor and the witnesses against him, and the evidence was marshalled, largely at the trial itself. In contrast, today’s law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused’s fate and reduce the trial itself to a mere formality. In recognition of these realities of modem criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to critical stages of the proceedings. . . .

“The Court consistently has applied a historical interpretation of the guarantee, and has expanded the constitutional right to counsel only when new contexts appear presenting the same dangers that gave birth initially to the right itself.” (Citation omitted; internal quotation marks omitted.)

In this case, the presentence credit matter did not involve any action on the part of counsel. Rather, it involved inaction on the part of counsel, with respect to two pending cases, in which the petitioner had been released on bail and on a promise to appear. Because neither the calculation of presentence confinement credit, pursuant to General Statutes § 18-98d, nor earlier preservation or enhancement of the credit constitutes a proceeding that affects the accused's trial rights or his right to a defense in any of his pending cases, neither is a critical stage matter that entitles the petitioner to habeas relief. In light of the purposes of the sixth amendment right to counsel, it is clear that a failure of counsel to request an increase in bail on the petitioner’s cases does not amount to ineffective assistance in a “trial-like [confrontation]”; (internal quotation marks omitted) Rothgery v. Gillespie County, supra, 554 U.S. 212 n.16; or involve the petitioner’s right to a fair trial. I am not aware of any authority—federal or state—that so holds. Certainly, none of the cases submitted by the petitioner, relied on by the habeas court or cited by the principal opinion, supports that proposition. The closest analogies that appear to illustrate the trial-related rationale involve proceedings under rule 35 (b) of the Federal Rules of Civil Procedure, as argued by the respondent. In United States v. Palomo, 80 F.3d 138, 142 (5th Cir. 1996), the court held that a rule 35 (b) proceeding is “not a trial-related proceeding and no Sixth Amendment right to counsel attaches at this stage.” In United States v. Nevarez-Diaz, 648 F. Sup. 1226, 1230 (N.D. Ind. 1986), the District Court held similarly. In conclusion, if a matter does not implicate the right to counsel under the sixth amendment, regardless of when it is raised, there can be no deprivation of such right. See Wainwright v. Toma, 455 U.S. 586, 587-88, 102 S. Ct. 1300, 71 L. Ed. 2d 475 (1982).

II

Even assuming for purposes of argument that the petitioner was entitled to counsel under the sixth amendment during pretrial or trial to maximize the later calculation of the petitioner’s presentence confinement credit, I disagree with the principal opinion that the habeas court correctly determined that the petitioner satisfied both the performance and prejudice prongs of the Strickland test for ineffective assistance of counsel.

Although I agree with the habeas court that counsel’s failure to seek increased bail promptly was an oversight on the part of the attorney, I do not believe that it rises to the level of a constitutional deficiency. Our case law is clear, moreover, that “[t]he right to counsel ... is the right to effective assistance and not the right to perfect representation.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 36 Conn. App. 695, 701, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995). To satisfy the performance prong, the petitioner must show that “counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the Sixth Amendment.” (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). As stated in Strickland, “the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.” Strickland v. Washington, supra, 466 U.S. 696.

On the basis of the foregoing, I conclude that the petitioner’s trial counsel did not provide constitutionally deficient performance, nor has the petitioner shown that the result of the particular proceeding is unreliable. Because the petitioner has failed to satisfy the first prong of the Strickland test for ineffective assistance of counsel, I need not analyze whether counsel’s performance unfairly prejudiced the petitioner. See Washington v. Commissioner of Correction, 287 Conn. 792, 835-36, 950 A.2d 1220 (2008). ,

I respectfully submit that the principal opinion affirms the result and remedy ordered by the habeas court in the absence of a clear and consistent rationale for doing so. Because I believe that no basis exists for sustaining the habeas court’s decision, regardless of how the original issue is construed, I would reverse the judgment of the habeas court.

For the foregoing reasons, I respectfully dissent.

       At oral argument, this court requested that the parties submit supplemental briefing addressing the issue of whether this case was moot because no relief could be granted. After considering those briefs, we conclude that the case is not moot. Accordingly, we address the respondent’s claims.

       General Statutes § 18-98d provides in relevant part: “(a) (1) Any person who is confined to a community correctional center or a correctional institution for an offense committed on or after July 1,1981, under a mittimus or because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of such person’s sentence equal to the number of days which such person spent in such facility from the time such person was placed in presentence confinement to the time such person began serving the term of imprisonment imposed; provided (A) each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement; and (B) the provisions of this section shall only apply to a person for whom the existence of a mittimus, an inability to obtain bail or the denial of bail is the sole reason for such person’s presentence confinement ....
      “(c) The Commissioner of Correction shall be responsible for ensuring that each person to whom the provisions of this section apply receives the correct reduction in such person’s sentence; provided in no event shall credit be allowed under subsection (a) of this section in excess of the sentence actually imposed.”

       The petitioner, in his habeas petition, alleged that counsel was ineffective not only in failing to request that the bonds for the petitioner’s first two arrests be raised at the January 16, 2007 arraignment, but also in failing to request at sentencing that the petitioner be credited with seventy-three days of presentence confinement. The habeas court’s decision, however, does not address this allegation. Although counsel, at sentencing, could have asked the court to take the petitioner’s presentence confinement into account when calculating his total effective sentence; see Washington v. Commissioner of Correction, 287 Conn. 792, 829 n.19, 950 A.2d 1220 (2008) (in determining term of sentence to impose, even if defendant has no right to credit for presentence incarceration, it is within trial court’s discretion to consider such incarceration in its sentencing determination); the conclusion in this case rests solely on the argument that counsel was ineffective when, at the January 16, 2007 arraignment, he failed to request that bond in connection with the petitioner’s prior arrests be increased in order to maximize the petitioner’s presentence confinement credit.

       The court acknowledges that the calculation of presentence confinement credit is administered by the department of correction. What is at issue in this case, however, is not the calculation itself but the claimed failure of counsel to take necessary steps during proceedings to protect his client’s statutory right to receive his presentence confinement credit.

       The dissent accepts the respondent’s characterization of the issue on appeal and analyzes the case accordingly. Cases that undertake a critical stage analysis, including Rothgery v. Gillespie County, 554 U.S. 191, 128 S. Ct. 2578, 171L. Ed. 2d 366 (2008), the case primarily relied on by the dissent, normally involve matters in which a defendant was denied access to counsel, did not have counsel present or was not himself present, at a critical stage of trial. See United States v. Cronie, 466 U.S. 648, 659, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) (presumption that counsel’s assistance is essential requires conclusion that trial unfair if accused denied counsel at critical stage of trial); Rushen v. Spain, 464 U.S. 114, 117, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983) (right to personal presence at critical stages of trial is fundamental right of criminal defendant).
      This case, however, deals not with a petitioner who was denied access to counsel, but rather with a petitioner whose counsel failed to provide him effective assistance after his right to counsel had attached and counsel was present. The court therefore does not agree with the dissent that this claim presents a critical stage issue and declines to undertake any critical stage analysis.

       The petitioner sought to have McIntyre deemed “an expert in the practice of criminal law and procedure in the part B and part A courts.” The court explained that, according its understanding of the Connecticut Code of Evidence, it was unnecessary to label a person an expert. The court did, however, refer to McIntyre as an expert during the trial.

       The petitioner was the only other witness during the habeas trial. He testified that he had told counsel, prior to his accepting the plea agreement, that he would only plead guilty if he got his presentence confinement credit. He further stated that had he known he would not be credited with his presentence confinement, he would not have pleaded guilty and instead would have gone to trial.

       The court’s terminology of “the first time” refers to the January 16, 2007 arraignment.

       The seventy-three days represent the time period between the petitioner’s third arraignment on January 16, 2007, and the time when his counsel requested that the bonds be raised for the first two arrests on March 30, 2007. The petitioner accrued presentence confinement credit from March 30, 2007, through the date he was sentenced. That time period is not at issue in this appeal.

       The respondent malees no claim on appeal that the habeas court lacked the authority to order that the respondent credit the petitioner for his presentence confinement.

       Additionally, to the extent that the respondent’s argument rests, in any part, on the notion that a defendant no longer has the right to counsel in postjudgment discretionary sentencing procedures, the respondent fails to acknowledge that our Supreme Court has held that the constitutional and statutory right to counsel pertains to the discretionary process of sentence review. Consiglio v. Warden, 153 Conn. 673, 677, 220 A.2d 269 (1966).

       See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which requires a petitioner to establish both that counsel’s representation fell below an objective standard of reasonableness and that counsel’s deficient performance prejudiced the defense.

       I note that I disagree with the concurrence’s characterization of the respondent’s issue on appeal. I agree that the habeas court determined that the “trial counsel on all three then pending flies should reasonably have sought an increase in bond with respect to each of the two files already pending so that, if convicted on any or both of those files, he would have received pretrial jail credit time as set forth in [General Statutes] § 18-98d." I believe, however, that the respondent has sufficiently challenged this determination by the habeas court on appeal. Specifically, the respondent claims in his statement of issues the following: “Whether the habeas court erred in ruling that the petitioner was denied his right to effective assistance of counsel when his attorney failed to request that his bond be raised after he was arrested and held in lieu of bond in another case.” I agree with the concurrence that the respondent’s argument as to why the petitioner was not entitled to claim ineffective assistance of counsel pursuant to the sixth amendment focused on the calculation of the presentence confinement credits. I believe that the respondent’s argument does not limit our review of his underlying claim. Therefore, I review the respondent’s claim, that is, whether the petitioner was entitled to claim ineffective assistance of counsel pursuant to the sixth amendment for counsel’s failure to request an increase in bond in two pending cases.

       I disagree with the principal opinion’s reasoning that critical stage analysis is not required in this case. Specifically, the principal opinion states: “Cases that undertake a critical stage analysis . . . normally involve matters in which a defendant was denied access to counsel, did not have counsel present or was not himself present, at a critical stage of trial. . . . This case, however, deals not with a petitioner who was denied access to counsel, but rather with a petitioner whose counsel failed to provide him effective assistance after his right to counsel had attached and counsel was present. This court does not agree with the dissent that this claim presents a critical stage issue and declines to undertake any critical stage analysis.” (Citations omitted.) When a defendant is denied access to counsel, the question for the court is whether the defendant is entitled to counsel pursuant to the sixth amendment to the United States constitution. The sixth amendment provides in relevant part that “[i]n all criminal prosecutions, the accused shall eqjoy the right ... to have the assistance of counsel for his defense.” U.S. Const., amend. VI. In Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the court stated that in previous cases it had “recognized that the right to counsel is the right to the effective assistance of counsel.” (Internal quotation marks omitted.) Because an ineffective assistance of counsel claim stems from the petitioner’s right to counsel, if a petitioner is not entitled to counsel pursuant to the sixth amendment, his claim for ineffective assistance of counsel must fail. Therefore, the critical stage analysis used to determine whether a petitioner is entitled to counsel pursuant to the sixth amendment is appropriate in determining whether a petitioner may make a claim for ineffective assistance of counsel. Furthermore, this court has recognized that ineffective assistance of counsel claims have to involve allegations of ineffectiveness that occurred during a critical stage of the proceedings. See Ebron v. Commissioner of

        Correction, 120 Conn. App. 560, 567, 992 A.2d 1200 (2010) (“[o]ur Supreme Court has recognized that pretrial negotiations implicating the decision of whether to plead guilty is a critical stage, and, therefore, a defendant is entitled to adequate and effective assistance of counsel at this juncture of the criminal proceedings” [emphasis added; internal quotation marks omitted]). Therefore, I believe that the question of when the sixth amendment right attaches is separate and distinct from the question of whether every matter that arises after the right to counsel attaches constitutes a critical stage requiring the effective assistance of counsel.

       I recognize that obtaining the maximum credit for presentence confinement is beneficial to the petitioner. The sixth amendment, however, guarantees only the “right ... to have the assistance of counsel for his defense.” U.S. Const., amend. VI. “ ‘[Djefence’ means defense at trial, not defense in relation to other objectives that may be important to the accused.” Rothgery v. Gillespie County, supra, 554 U.S. 216 (Alito, J., concurring); see also id., 235 (Thomas, J., dissenting) (“[W]e have never suggested that the accused’s right to the assistance of counsel ‘for his defence’ entails a right to use counsel as a sword to contest pretrial detention. To the contrary, we have flatly rejected that notion, reasoning that a defendant’s liberty interests are protected by other constitutional guarantees.”). Last, “the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial. " Stricklands. Washington, supra, 466 U.S. 689.

       See footnote 1 of this dissent.