author: LAVERY, C. J.

text:
    RICHARD BAILLARGEON v. COMMISSIONER OF CORRECTION
    (AC 20729)
    Lavery, C. J., and Foti and Flynn, Js.

      Argued September 20, 2001
    officially released January 29, 2002

      Adam A. Laben, special public defender, with whom, on the brief, was Denise Ansell, special public defender, for the appellant (petitioner).

      Lisa A. Riggione, senior assistant state’s attorney, with whom were Vincent J. Dooley, senior assistant state’s attorney, and, on the brief, Mark S. Solak, former state’s attorney, and Roger Caridad, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

LAVERY, C. J.

The petitioner, Richard BaiUargeon, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. He claims that the habeas court improperly (1) held that neither his trial nor sentencing counsel was ineffective, (2) applied the Strickland standard to his attempt to withdraw his plea and (3) failed to address his claim that the state lacked a factual basis for charging him with the crime to which he pleaded guilty. We affirm the judgment of the habeas court.

According to the factual statement made by the state at his sentencing hearing, the petitioner took a female to a reservoir in Killingly against her will where he forced her to engage in intercourse. The habeas court found that the attack occurred on July 12, 1994, and that the victim filed a complaint with the police on August 12, 1994. The police questioned the petitioner later that month, and he voluntarily gave a statement claiming that the intercourse was consensual. An arrest warrant was issued on March 15, 1995, and he was arrested on March 20, 1995. He then made a second statement in which he admitted that he had lied in his first statement and that the intercourse was forced.

On March 26, 1996, the day that his case was scheduled for jury selection, the petitioner pleaded guilty in accordance with North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). The trial court canvassed the petitioner in accordance with Practice Book § 711, now § 39-19, and found the plea to be “entered voluntarily and understandingly, and with the assistance of competent counsel.” At the petitioner’s request, the court scheduled sentencing for May 3, 1996.

Between the time of his plea and sentencing, the petitioner expressed dissatisfaction with his appointed counsel, Ramon J. Canning of the public defender’s office for the judicial district of Windham, and his desire to fire Canning, to withdraw his plea and to have a trial on the merits. He unsuccessfully attempted to castrate himself to draw attention to his plight, and sent a letter to the court with copies to the news media, the governor and other public officials that detailed his situation and proclaimed his innocence. He also filed a grievance against Canning with the statewide grievance committee.

At Canning’s request, attorney Lawrence Bates, Jr., represented the defendant at the sentencing hearing. The trial court treated the petitioner’s letter as a request to withdraw his plea in accordance with Practice Book § 720, now § 39-26. Because the court already had accepted the defendant’s plea, the court analyzed whether the petitioner had proved one of the exceptions set forth in Practice Book § 721, now § 39-27, and concluded that the petitioner was seeking to withdraw his plea because of ineffective assistance of counsel. After a colloquy with Bates, the court denied the petitioner’s request to withdraw his plea and imposed the previously agreed upon sentence of fifteen years incarceration, suspended after ten years, with five years probation.

On January 3, 2000, the petitioner filed a second amended habeas corpus petition, claiming that both Canning and Bates were ineffective. The habeas court conducted a trial and dismissed the petition in a memorandum of decision filed January 31, 2000. It concluded that Canning’s performance was neither deficient nor prejudicial and Bates’ performance, while deficient, was not prejudicial. A petition for certification to appeal from that court’s decision was granted and this appeal followed. The petitioner largely restates the claims set forth in his habeas petition and asks that we reverse that court’s decision and remand the case for trial.

We first note our standard of review. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Fuller v. Commissioner of Correction, 59 Conn. App. 302, 303, 755 A.2d 380, cert. denied, 254 Conn. 943, 761 A.2d 760 (2000).

With that standard in mind, we assess the petitioner’s claims. Additional facts will be provided as necessary.

I

The petitioner’s first two claims allege that both appointed counsel were ineffective because of their failure to investigate his case adequately. Arguing the inverse of the habeas court’s findings, he claims that his first attorney’s representation was deficient and prejudicial and that his second attorney’s representation was prejudicial. We are not persuaded.

Because a defendant often relies heavily on counsel’s independent evaluation of the charges and defenses, the “right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction.” Copas v. Commissioner of Correction, 234 Conn. 139, 154, 662 A.2d 718 (1995); Siemon v. Stoughton, 184 Conn. 547, 556-57 n.3, 440 A.2d 210 (1981). Regardless, “counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it.” (Internal quotation marks omitted.) Ostolaza v. Warden, 26 Conn. App. 758, 765, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992).

A habeas petitioner can “prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice.” Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992); see also Phillips v. Warden, 220 Conn. 112, 132, 595 A.2d 1356 (1991). For ineffectiveness claims resulting from guilty verdicts, we apply the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Levine v. Manson, 195 Conn. 636, 639-40, 490 A.2d 82 (1985). For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), which modified Strickland’s prejudice prong. Copas v. Commissioner of Correction, supra, 234 Conn. 156-57.

To satisfy the performance prong, the petitioner must “show that counsel’s representation fell below an objective standard of reasonableness.” Strickland v. Washington, supra, 466 U.S. 688; Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989). A petitioner who accepts counsel’s advice to plead guilty has the burden of demonstrating on habeas appeal “that the advice was not -within the range of competence demanded of attorneys in criminal cases.” Buckley v. Warden, 177 Conn. 538, 542, 418 A.2d 913 (1979), citing McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970). The range of competence demanded is “reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.” (Internal quotation marks omitted.) Buckley v. Warden, supra, 543. Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist. State v. Lopez, 197 Conn. 337, 343, 497 A.2d 390 (1985). 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. Strickland v. Washington, supra, 689.

To satisfy the prejudice prong, the petitioner must show a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, supra, 474 U.S. 59; Copas v. Commissioner of Correction, supra, 234 Conn. 156. “Reasonable probability” does not require the petitioner to show that “counsel’s deficient conduct more likely than not altered the outcome in the case,” but he must establish “a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, supra, 466 U.S. 693-94; Bunkley v. Commissioner of Correction, supra, 222 Conn. 446. The Hill court noted that “[i]n many guilty plea cases, the ‘prejudice’ inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate . . . the determination whether the error ‘prejudiced’ the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.” Hill v. Lockhart, supra, 59; Copas v. Commissioner of Correction, supra, 156-57; Minnifield v. Commissioner of Correction, 62 Conn. App. 68, 72, 767 A.2d 1262, cert. denied, 256 Conn. 907, 772 A.2d 596 (2001). “A reviewing court can find against apetitioner on either ground, whichever is easier.” Valeriano v. Bronson, 209 Conn. 75, 86, 546 A.2d 1380 (1988).

After considering the parties’ written and oral arguments to this court, and our own review of the record and transcript, we conclude that the habeas court properly concluded that neither attorney’s performance violated the petitioner’s constitutional right to effective assistance of counsel.

A

The petitioner first claims that Canning had guaranteed that he would be found guilty if he went to trial without first adequately investigating the state’s case or his claim of innocence. As the habeas court found, and the petitioner agrees, the allegations that Canning provided ineffective assistance can be divided into two broad categories: (1) his failure to fully investigate the petitioner’s defense that the intercourse was consensual and (2) his failure to interview individuals who would support the petitioner’s claim that he was intoxicated when he signed the inculpatory statement. The petitioner challenges the court’s conclusions that Canning was not deficient in either category.

The petitioner asserts that the sexual encounter was consensual, and argues that the victim claimed otherwise only after she had reconciled with her husband and they discovered that they were infected with chlamydia. He claims that the victim accused him of rape to mask the fact that she contracted the disease while “sleeping around” during her marital separation. At the request of the state police, the petitioner was tested for chlamydia in October, 1994, and tested negative. He argues that Canning should have further investigated chlamydia epidemiology to determine whether the petitioner actually could have infected her. He attacks the court’s factual findings that Canning used the negative test results in bargaining with the state to get a more favorable sentence. He also attacks the court’s legal conclusion that farther investigation into the disease itself would not have been “crucial.” We disagree.

The court’s factual finding that Canning took the chlamydia defense into account in plea negotiations was not clearly erroneous. At the habeas trial, Canning testified that he believed that not only did he think that the chlamydia test and the victim’s thirty day delay in reporting the incident could have been used to impeach the victim’s credibility, but that the state “knew that they had problems with the case.” We do not reevaluate the credibility of witnesses or second-guess the habeas court on such questions of fact. Crowder v. Commissioner of Correction, 66 Conn. App. 864, 867, 786 A.2d 439 (2001). That, coupled with the petitioner’s failure to put on any evidence to the contrary; cf. Copas v. Commissioner of Correction, supra, 234 Conn. 158 (upholding habeas court’s finding that defense counsel's investigation inadequate where state’s attorney testified that defense attorney never raised any potential defense during plea negotiations); leads us to conclude that the habeas court properly could have found as it did.

We also disagree with the petitioner’s assertion that the results of a further investigation into chlamydia would have been crucial to his case. The petitioner attempts to argue that because he may not have infected the victim, he did not in fact sexually assault her. That argument might have credence if he denied that he and the victim engaged in intercourse; here, however, the petitioner admitted that the intercourse occurred. Whether the petitioner infected the victim does not answer the question of whether she consented to the intercourse. This was recognized by Canning, who testified to that effect at the habeas trial. Accordingly, the petitioner has not shown why it was unreasonable for Canning to not devote an inordinate amount of time to investigate a disease that would not be dispositive as to the petitioner’s innocence. Canning also did not testify that he would have changed his recommendation to plead under the Alford doctrine even if he had learned more about chlamydia. See Minnifield v. Commissioner of Correction, supra, 62 Conn. App. 75. Additionally, as the court found, the petitioner did not attempt to introduce medical records of the victim and her husband to demonstrate their relevance or admissibility.

The petitioner briefly restates allegations that he presented to the habeas court that Canning rendered ineffective assistance by failing to obtain a videotape of the petitioner’s polygraph test or subsequent statement, failing to obtain police reports of the petitioner’s prior interaction with the criminal justice system and failing to assess adequately the victim’s credibility. For support, the petitioner notes the testimony of his expert witness, attorney Arthur P. Meisler, who cited Canning’s failure to get a copy of the videotape or the police reports, among other alleged investigatory failures that the defendant does not cite on appeal, as evidence that Canning’s preparation was deficient for a case on the active trial list.

Although the court noted that Meisler is “a respected lawyer with considerable experience representing criminal defendants,” it disagreed with his conclusions that Canning’s failure to get the claimed information was either deficient or prejudicial. Our own independent review of the record, briefs and transcripts leads us to the same conclusions. Meisler noted that the videotape, although not independently admissible, would contain any statements against interest made by the petitioner that could be used to impeach the petitioner at trial. Although that information might have been helpful, it cannot be said that the failure to obtain it was below the reasonable competence of criminal defense attorneys. It also was not deficient in these particular circumstances for Canning not to obtain police reports of the petitioner’s prior arrests. Canning had represented the petitioner in the past and was familiar with his prior convictions. Additionally, the defense file contained a copy of the petitioner’s record. As to the allegation that Canning was deficient in failing to assess the victim’s credibility, the court properly rejected the petitioner’s claim. Canning testified that the victim refused to speak with his investigator, that he observed her on the day of the plea, and that she appeared “articulate, well dressed,” and that he “didn’t think she would break down” on the witness stand and admit that the sex was consensual as the petitioner hoped.

In a single sentence of his appellate brief, the petitioner restates his claim that Canning was deficient in failing to interview individuals who could corroborate the petitioner’s claim that he was intoxicated the second time he was interviewed by the police and signed an inculpatory statement. We are not persuaded.

“Defense counsel will be deemed ineffective [for not contacting a witness] only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it.” State v. Talton, 197 Conn. 280, 297-98, 497 A.2d 35 (1985); Tatum v. Commissioner of Correction, 66 Conn. App. 61, 66, 783 A.2d 1151, cert. denied, 258 Conn. 937, 785 A.2d 232 (2001).

Canning testified that the petitioner told him conflicting stories regarding the circumstances of his second statement. Canning testified that the petitioner had told him, “[o]ne, that he was sober when he made the statement, but that he made it because the police told him he would be released from incarceration if he would sign the statement. The second was, that he was drunk when he originally talked to the police.” Canning also testified that the petitioner did not give him the names of any witnesses who could corroborate his intoxication story, which the petitioner disputed. As the court noted, the public defender’s file contained some information supporting Canning’s view. The first, a handwritten letter from Canning to the petitioner after it was clear that the petitioner was unhappy with the decision to plead, stated, “[y]ou never told me you had been drinking prior to giving the second statement; in fact you told me that you understood everything [the state police trooper] told you and gave him the statement because it was true, and he told you that if you were truthful he would recommend a low bond.” The second, a September 28, 1995 letter from the petitioner to a judge mentioned nothing about intoxication, but stated that the state police had tricked him into giving the second confession by promising that he would be released from custody if he admitted to the offense. In light of those factors and Canning’s explanation, it cannot be said that he conducted an inadequate investigation.

B

The petitioner next claims that the court improperly found that Bates’ representation was not prejudicial. He argues that if Bates had prepared adequately, he would have realized that Canning did not properly prepare for trial and then presumably would have made his own independent investigation into the merits of the state’s case. We are not persuaded.

At the sentencing hearing, Bates briefly presented the petitioner’s claims that Canning did not allow him to review his file and then forced him to plead guilty, stating at one point, “I’m making these statements because these are what [the petitioner] told me. I have no confirming evidence of this and I have not seen the file — to know if there’s anything to that effect in the file.” Bates also admitted to the court that he received the file from Canning the previous day, but had not reviewed it. He did not, however, accept the court’s offer for additional time so that he could do so and agreed with the court that the file probably would not contain any information supporting the petitioner’s aliegations as to Canning’s allegedly ineffective representation.

The court found that Bates’ performance was deficient, concluding that he should have requested a continuance to review the file, should have read the plea transcript and should have interviewed Canning to better prepare for the sentencing hearing. The court found that the petitioner, however, had not suffered any actual prejudice.

Our own review of the record and briefs leads us to conclude that the court properly found that Bates’ performance was deficient. It was below the range of competence for a criminal defense attorney in a similar circumstance not to review his client’s file and to imply before a tribunal that he is not zealously advocating on the defendant’s behalf. That is especially true in light of the court’s offer to give Bates additional time to conduct such a review. Despite those shortcomings, the petitioner has not shown that the outcome would have been different had Bates cured his deficiencies. Bates did present the petitioner’s chief complaint, that Canning essentially guaranteed that the petitioner would be found guilty if the case went to trial and that he entered an Alford plea as a result. The trial court denied the petitioner’s motion to withdraw the plea, noting that an attorney can be “very emphatic” with a client regarding his chances before a jury. The court also reminded the petitioner about the plea canvass, in which the court found that his waiver was knowing and voluntary. The petitioner does not challenge the canvass and admitted before this court at oral argument that it was “by the book.” Indeed, the petitioner failed to show a sufficient probability that a continuance and further investigation would have led the court to allow the defendant to withdraw his plea and go to trial. Furthermore, because Canning’s representation was not deficient, the petitioner also has failed to show that a further investigation would have led to a defense that would have succeeded at trial. Taken together, Bates’ representation does not “undermine confidence in the outcome.” Strickland v. Washington, supra, 466 U.S. 694; Bunkley v. Commissioner of Correction, supra, 222 Conn. 446.

The petitioner also briefly claims that a further investigation would have caused Bates to realize that the plea lacked a factual basis. First, our procedural rules do not require a factual basis for a court to accept an Alford plea. State v. Godek, 182 Conn. 353, 363-64, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981). 11 Second, the state’s attorney gave a factual basis during the Alford plea, which was based on the petitioner’s second statement and which the court found to be adequate. Indeed, the petitioner has repeatedly recognized that the state had a factual basis for charging him with the crime to which he pleaded. An Alford plea allows the defendant to maintain his innocence while at the same time “acknowledg[ing] that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea.” Henry v. Commissioner of Correction, 60 Conn. App. 313, 315 n.1, 759 A.2d 118 (2000); see also State v. Palmer, 196 Conn. 157, 169 n.3, 491 A.2d 1075 (1985). Additionally, he did not challenge the factual basis during his attempted plea withdrawal. Finally, at oral argument before this court, the petitioner conceded that the state had provided a factual basis.

II

The petitioner combines his final two claims that the habeas court improperly applied Practice Book § 39-27 (4) and (5). First, he argues that the court improperly concluded that the Strickland-Hill standard applied when analyzing his claim that the trial court wrongfully rejected his attempt to withdraw his guilty plea on the basis of ineffective assistance of counsel under Practice Book § 39-27 (4). Second, he claims that he should be granted a de novo hearing and trial to challenge his guilty plea because he believes that his plea lacked a factual basis, which he believes is required by Practice Book § 39-27 (5). We are not persuaded.

When a defendant moves to withdraw a guilty plea after it has been accepted but before sentencing, a court is obligated to allow the motion upon proof of one of the grounds provided in Practice Book § 39-27. Practice Book § 39-26; State v. Johnson, 253 Conn. 1, 49-50, 751 A.2d 298 (2000). The petitioner argues that the habeas court improperly applied Strickland-Hill’s prejudice prong to his claim under Practice Book § 39-27 (4) that he should have been allowed to withdraw his plea because of Bates’ ineffective representation. He asks that we apply instead “an appellate review standard,” which he apparently assumes does not include a prejudice prong.

The Strickland-Hill standard is the appellate standard of review for ineffective counsel claims raised on a direct appeal. See State v. Turner, 67 Conn. App. 708, 712-13, 789 A.2d 1058 (2002). Although our phrasing of the prejudice prong has not been uniform in previous instances where a party has claimed ineffective assistance on direct appeal; compare, e.g., State v. Gray, 63 Conn. App. 151, 161-62, 772 A.2d 747, cert. denied, 256 Conn. 934, 776 A.2d 1151 (2001), with State v. Louise-Julie, 60 Conn. App. 837, 840, 762 A.2d 913 (2000), cert. denied, 255 Conn. 929, 930, 767 A.2d 102, 103 (2001); the prejudice prong has always existed in that the appellant has the burden of showing that there is a reasonable probability that but for counsel’s ineffective assistance, the result would have been different. Furthermore, our Supreme Court has stated that the standard and analysis for ineffective assistance of counsel claims is the same regardless of whether they are raised in a habeas corpus petition or on direct appeal. State v. Webb, 238 Conn. 389, 422 n.30, 680 A.2d 147 (1996). Accordingly, the petitioner’s ineffective assistance claim based on Practice Book § 39-27 (4) fails because he did not show that Canning’s representation fell below the objective standard of reasonableness or that he would not have pleaded guilty had Bates’ representation been effective.

The petitioner’s claim that the state’s case lacked a factual basis in contravention of Practice Book § 39-27 (5) seems actually to be a freestanding claim of innocence. Although the state correctly points out that the petitioner did not raise a claim of actual innocence separately in his second amended habeas petition, he has continuously attempted to profess his innocence through his physical actions and in several letters to the courts, and his claim of actual innocence is the basis of his ineffective assistance claim against Canning. Cf. Holley v. Commissioner of Correction, 62 Conn. App. 170, 182, 774 A.2d 148 (2001) (declining to consider claim of actual innocence where “[n]owhere in [habeas] petitions does the petitioner allege that his trial counsel was ineffective for failing to advance a defense . . . that he was innocent as a matter of law”). Because the petitioner failed to meet his burden to show that he is actually innocent, however, he cannot prevail on a claim of actual innocence.

Even without an underlying constitutional violation that affected the result of his criminal trial, “a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus . . . .” Summerville v. Warden, 229 Conn. 397, 422, 641 A.2d 1356 (1994). To prevail, a petitioner must satisfy two criteria. “First, [he] must establish by clear and convincing evidence that, taking into account all of the evidence— both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial— he is actually innocent of the crime of which he stands convicted. Second, [he] must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime.” Miller v. Commissioner of Correction, 242 Conn. 745, 747, 700 A.2d 1108 (1997). It is an open question whether a habeas claim of actual innocence must be based on new evidence. Clarke v. Commissioner of Correction, 249 Conn. 350, 358, 732 A.2d 754 (1999); Miller v. Commissioner of Correction, supra, 789-90 n.29.

Despite his claims of innocence, the petitioner failed to introduce any evidence before the habeas court that we would be able to review. The mere fact that the petitioner may not have infected the victim with a sexually transmitted disease does not address whether the intercourse was consensual and, thus, is not the talisman he believes it to be. In addition to the lack of evidence that the petitioner produced, a reasonable fact finder could find that the petitioner committed the offense for the reasons discussed regarding the existence of a factual basis for the charge to which he pleaded. Accordingly, we conclude that the petitioner did not satisfy either part of the test required to show actual innocence.

The judgment is affirmed.

In this opinion the other judges concurred.

         Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

       The long form information presented on that date also charged the petitioner with kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and unlawful restraint in the first degree in violation of General Statutes § 53a-95. Part two of that information charged the petitioner with being a persistent dangerous felony offender in violation of General Statutes § 53a-40 (a). Those charges were not prosecuted foEowing the defendant’s plea agreement.

       The petitioner does not chaEenge the judicial canvass.

       The grievance was dismissed.

       Practice Book § 720, now § 39-26, provides: “A defendant may withdraw his or her plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his or her plea upon proof of one of the grounds in Section 39-27. A defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed.”

       Practice Book § 721, now § 39-27, provides: “The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Section 39-19;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;
      “(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the judicial authority had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;
      “(4) The plea resulted from the denial of effective assistance of counsel;
      “(5) There was no factual basis for the plea; or
      “(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant.”

       In his brief, the petitioner argued that Canning should have filed a motion to suppress the confession. At oral argument, however, he conceded that a motion to suppress was unnecessary in light of the judicial district’s practice to hear such motions shortly before the beginning of the trial and the fact that a denial of that motion could negatively affect the petitioner’s ability to obtain a favorable plea agreement. The petitioner then modified his stance, arguing that Canning should have interviewed witnesses recommended by the petitioner to properly assess the success of a suppression motion.

       The petitioner’s habeas attorney and Canning engaged in the following colloquy:
      “[Petitioner’s Attorney]: Was there any way in your opinion, sir, that you could have used [the petitioner’s] test results for chlamydia coming back negative to clearly exonerate him of this purported charge?”
      “Attorney Canning: The results of the test? As exoneration I didn’t understand. I know [the petitioner] brought it up a couple of times. I didn’t understand it. He certainly said that he had voluntary sexual intercourse with this woman .... The test results didn’t seem to have a bearing on whether it was forced or voluntary.”

       The habeas court noted that General Statutes §§ 19a-25 and 19a-215 may have protected the confidentiality of the records. The contours of those provisions have not yet been explored in a criminal case. We need not reach that issue, however, because the petitioner did not attempt to introduce the records.

       A court may nevertheless, in its discretion, require a factual basis before accepting a nolo contendere or Alford plea. State v. Godek, 182 Conn. 353, 365 n.13, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981).

       Although State v. Godek, supra, 182 Conn. 363-64, dealt with a plea of nolo contendere, it addressed the issue of whether the Practice Book provisions regarding pleas apply only to pleas of guilty or to those in which the defendant does not admit to the crime. Concluding that those provisions apply only when the defendant admits guilt, the Godek court used the language and reasoning set forth in North Carolina v. Alford, supra, 400 U.S. 25. State v. Godek, supra, 363-64. Our Supreme Court also has noted that the United States Supreme Court has treated Alford pleas and pleas of nolo contendere as the “functional equivalent” of one another. State v. Palmer, 196 Conn. 157, 169 n.3, 491 A.2d 1075 (1985). We have stated previously that the two are functionally equivalent. See, e.g., State v. Banks, 24 Conn. App. 408, 412, 588 A.2d 669 (1991); State v. Pena, 16 Conn. App. 518, 533, 548 A.2d 445, cert. denied, 209 Conn. 830, 552 A.2d 1217 (1988). As a result, the rationale in Godek that a factual basis is not required for Alford pleas applies.

       Because the numbering of the applicable Practice Book provisions changed with the 1998 revision of the Practice Book but the language of those provisions did not, we refer to former Practice Book § 720 as § 39-26 and to former Practice Book § 721 as § 39-27.

       We previously concluded in part IB that the state did provide a factual basis to support the plea.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JAMES CUMMINGS STATE OF CONNECTICUT v. JUAN SANTIAGO STATE OF CONNECTICUT v. MAURICE FLANAGAN
    (AC 21730) (AC 21731) (AC 21732)
    Lavery, C. J., and Flynn and McDonald, Js.
    Argued December 4, 2001
    officially released January 29, 2002

      James B. Streeto, deputy assistant public defender, for the appellant (defendant James Cummings).

      Damon A. R. Kirschbaum, special public defender, for the appellant (defendant Juan Santiago).

      Felix Esposito, special public defender, for the appellant (defendant Maurice Flanagan).

      Robert M. Spector, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, Herbert E. Carlson, Jr., and Stephen G. Preleski, supervisory assistant state’s attorneys, and John Russotto, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

Three of five codefendants, James Cummings, Juan Santiago and Maurice Flanagan, appeal from the judgments of conviction rendered after a joint jury trial. On appeal, each codefendant claims, inter alia, that the court violated General Statutes (Rev. to 1999) § 54-82h (c) when it substituted an alternate juror for a regular juror after deliberations had begun and, therefore, his judgment of conviction must be reversed. We reverse the judgments of conviction and remand the cases for new trials.

The following facts and procedural history are relevant to our resolution of the defendants’ appeals. In connection with the killing of two members of the Latin Kings street gang on May 14, 1994, in New Britain, the codefendants and four others, all of whom were members of the Los Solidos street gang, were arrested. The state charged each of the codefendants with the following crimes: (1) two counts of murder in violation of General Statutes §§ 53a-8 and 53a-54a; (2) two counts of attempt to commit murder in violation of General Statutes §§ 53a-54a (a), 53a-8 and 53a-49 (a); (3) one count of conspiracy to commit murder in violation of General Statutes §§ 53a-54a and 53a-48; (4) one count of capital felony in violation of General Statutes §§ 53a-54b and 53a-8; and (5) one count of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-48 (a). Jury selection commenced on October 27, 1998, and evidence began on January 5, 1999.

Following closing arguments, the court, on March 4, 1999, instructed the jury and then excused the twelve regular jurors from the courtroom, directing them to begin deliberating. Immediately thereafter, the court dismissed the two alternate jurors. When doing so, the court advised the alternate jurors that “there may or may not come a time when you get a phone call saying come on down, we need you to come in.” The court also cautioned the alternate jurors “not to discuss the case with anyone until you know there is a verdict.”

Later that same day, the court received a note from one of the regular jurors, juror A, and, in response, summoned her to the courtroom for questioning. On the basis of the information that juror A provided during her questioning, the state and the attorneys for the codefendants agreed that she should be dismissed. Cummings’ defense counsel stated to the court: “I would like to let you know that we are in agreement that she should be excused and that an alternate should be chosen in her stead . . . .” The state responded, “We agree that she should go at this point,” and suggested that the court either could substitute an alternate juror for juror A or, if the parties agreed, proceed with an eleven person jury. The court dismissed juror A from the jury and randomly selected one of the alternate jurors, juror F, to replace her. It also requested and received confirmation from the parties that none of them had an objection to recalling one of the alternate jurors.

The next day, another regular juror, juror P, telephoned the court and stated that he was ill with “a very serious stomach problem” and could not attend court because he was at his physician’s office. After questioning alternate juror F, whom the court randomly had selected to replace juror A, the court excused the jury until the following day. On March 8, 1999, the court, after hearing no objection, decided to recall the remaining alternate juror, juror E, as a replacement for juror P, who remained unavailable. The court questioned juror E and, later, the clerk swore in jurors F and E as regular jurors. The jury deliberated for four days before returning the following verdict: Cummings, Santiago and Flanagan each were guilty of two counts of murder, two counts of attempt to commit murder, one count of conspiracy to commit murder and one count of conspiracy to commit assault in the first degree, and each were not guilty of capital felony. Two other codefendants, Reynaldo Arroyo and Larry Gadlin, both were found not guilty as to all counts. The court rendered judgments in accordance with the verdicts. On March 14, 1999, the court sentenced Cummings, Santiago and Flanagan each to a total effective term 140 years imprisonment. These appeals followed.

The state concedes that our Supreme Court’s decision in State v. Murray, 254 Conn. 472, 757 A.2d 578 (2000) (en banc), controls and, therefore, Cummings, Santiago and Flanagan are entitled to new trials. “In Murray, [our Supreme Court] held that General Statutes (Rev. to 1999) § 54-82h (c) requires a trial court to dismiss alternate jurors once deliberations have begun, and prohibits the trial court from substituting dismissed alternate jurors mid-deliberation.” State v. Figueroa, 257 Conn. 192, 195, 777 A.2d 587 (2001), citing State v. Murray, supra, 496. The Murray court held that “an alternate, discharged from service when the case was submitted for deliberation to the jury, lost her status as a juror” and “was no longer qualified to participate in the remainder of the proceedings.” State v. Murray, supra, 498. Also, the Murray court held that “the inclusion of a nonjuror among the ultimate arbiters of innocence or guilt necessarily amounts to a [defect] in the structure of the trial mechanism that defies harmless error review.” (Internal quotation marks omitted.) Id.

The present appeals are controlled by the 1999 revision of § 54-82h (c) because the underlying trial occurred in 1999. In light of the procedural history of that trial, specifically, the inclusion of two nonjurors in the jury, we reverse the judgments of conviction and remand the cases for a new trial. We need not address the remaining claims raised by Cummings, Santiago and Flanagan, as they do not challenge the sufficiency of the evidence. Cf. id., 478.

The judgments are reversed and the cases are remanded for new trials.

       The two remaining codefendants, Reynaldo Arroyo and Larry Gadlin, were acquitted of all charges.

       Hereinafter, the five codefendants will be referred to collectively as “the codefendants.”

       General Statutes (Rev. to 1999) § 54-82h (c) provides in relevant part: “A juror who has been selected to serve as an alternate shall not be segregated from the regular panel except when the case is given to the regular panel for deliberation at which time he shall be dismissed from further service on said case.”

       See footnote 3.

       We note that several weeks after our Supreme Court released the Murray decision, General Statutes § 54-82h (c) was amended, effective October 1, 2000. See Public Acts 2000, No. 00-116, §§ 6, 7. Under that amendment, which does not apply to the present cases, a court no longer is prohibited by statute from substituting an alternate juror for a regular juror after the jury has begun deliberating.


text:
    JOHN WIDEMAN v. COMMISSIONER OF CORRECTION
    (AC 21497)
    Landau, Mihalakos and Dupont, Js.
    Submitted on briefs December 13, 2001
    officially released January 29, 2002

      Patrice A. Cohan, special public defender, filed a brief for the appellant (petitioner).

      Jonathan C. Benedict, state’s attorney, and Joseph Corradino, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, John Wideman, appeals from the habeas court’s denial of his amended petition for a writ of habeas corpus. Following the habeas court’s granting of the petitioner’s request for certification to appeal, the petitioner appealed, claiming that the court abused its discretion when it concluded that he was not denied the effective assistance of counsel at trial. We affirm the judgment of the habeas court.

In 1993, the petitioner was convicted of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), conspiracy to commit both kidnapping in the first degree and sexual assault in the first degree in violation of General Statutes §§ 53a-92 (a) (2) (A), 53a-70 (a) (1) and 53a-48 (a), aiding sexual assault in the first degree in violation of General Statutes §§ 53a-8 and 53a-70 (a) (1) and sexual assault in the first degree in violation of § 53a-70 (a) (1). This court upheld the petitioner’s conviction on direct appeal. State v. Wideman, 36 Conn. App. 190, 650 A.2d 571 (1994), cert. denied, 232 Conn. 903, 653 A.2d 192 (1995).

In his amended petition for a writ of habeas corpus, the petitioner alleged that his trial counsel was ineffective because he permitted the petitioner to waive his right to testify on his own behalf. In its memorandum of decision, the court noted that the defendant had a constitutional right to testify at trial and that the decision to testify is one that the petitioner had to make himself on the basis of the advice of counsel. The court found that the petitioner made the decision not to testify himself on the basis of the advice of counsel and that counsel’s advice fell within the range of competence displayed by lawyers of ordinary training and skill in the criminal law. The court concluded that counsel’s advice to the petitioner that he not testify at trial was a reasonable tactical choice. The defense theory was that the sexual acts were consensual, and thus the issue at trial turned on the credibility of the victim and the petitioner. The victim testified that she performed the sexual acts because she was afraid of the petitioner. At the time, the victim knew that the petitioner was free on bail after being indicted for a double homicide. Trial counsel advised the petitioner not to testify to avoid cross-examination about his criminal history. Trial counsel cross-examined the victim about her own criminal past, her drug addition and subsequent history with the petitioner. The habeas court concluded that the cross-examination of the victim by the petitioner’s trial counsel was done well.

For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for counsel’s mistakes, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . The issue, however, of [wjhether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Internal quotation marks omitted.) Denby v. Commissioner of Correction, 66 Conn. App. 809, 813, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002).

The habeas court’s dismissal of the petition for a writ of habeas corpus was predicated on a factual review of the petitioner’s claim that he was denied the effective assistance of counsel and a determination that the petitioner had failed to rebut the strong presumption that “counsel’s conduct [fell] within the wide range of reasonable professional assistance . . . .” Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992). On the basis of our review of the record and briefs, we conclude that the court’s findings were not clearly erroneous and that the court did not abuse its discretion by dismissing the amended petition for a writ of habeas corpus.

The judgment is affirmed.

       The petitioner’s expert witness at the habeas trial testified that trial counsel’s assistance was within the range of competence of criminal lawyers of ordinary training and skill.

       The petitioner was subsequently convicted in the homicide case.


author: SCHALLER, J.

text:
    IN RE LATIFA K. ET AL.

    (AC 20950)
    Foti, Schaller and O’Connell, Js.
    Argued September 18, 2001
    officially released January 29, 2002

      William R. Kinloch, for the appellant (respondent father).

      Mary K. Lenehan, assistant attorney general, with whom, on the brief, were Richard, Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

SCHALLER, J.

The respondent father appeals from the judgments of the trial court terminating his parental rights with respect to his minor children, L and S. On appeal, the respondent claims that the court improperly (1) denied his motion to amend the petitions to terminate his parental rights filed by the petitioner and (2) denied his request to strike a sentence in a social study as inadmissible hearsay. We affirm the judgments of the trial court.

The following facts and procedural histoiy are relevant to our resolution of this appeal. At the time of trial, the respondent was twenty-eight years old. He did not complete high school and began using marijuana at age fifteen. The respondent began living with the children’s mother sometime in 1992 or 1993, and the twin children were bom on February 14, 1994. At birth, both children tested positive for cocaine. The department of children and families (department) offered to provide both parents substance abuse treatment, but the mother refused and the respondent denied abusing substances.

On April 13, 1995, the respondent was arrested for robbery. As a result of that arrest, he was sentenced to fifteen years incarceration, execution suspended after eight years, and three years of probation. On July 12, 1996, the commissioner of children and families (commissioner) filed neglect petitions with regard to the two children. The commissioner obtained orders of temporary custody for the children on September 13, 1996.

Prior to March, 1997, the respondent did not visit regularly with the children. After a paternity test in March, 1997, confirmed that the respondent was the father, the respondent began monthly visitation with the children at the prison. The respondent missed some visits and was late for others. In August, 1997, disciplinary action taken against the respondent resulted in his losing a visit with his children.

On June 3, 1998, the commissioner filed petitions to terminate the parental rights of the respondent with respect to his children. The petitions alleged, in relevant part, that the respondent had failed to achieve personal rehabilitation within the meaning of General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B). Initially, the case was tried against the respondent on November 9, 1998, in Waterbury. Because no written or oral decision was rendered within the 120 days as required by General Statutes § 51-183b, a mistrial resulted.

In February, 1999, the respondent was discharged from the prison’s tier IV drug program due to an unexcused absence. He did not request that the department treatment plan reviews take place at the prison despite the department’s offers to that effect. He did, however, complete a variety of prison programs over the course of his incarceration.

In early 1999, the children exhibited increased opposition toward the respondent. In addition, they experienced nightmares and engaged in self-injurious behaviors. In March, 1999, a psychologist found that there was no bond between the respondent and his children and that the children instead were bonding with their new foster family. The psychologist recommended discontinuing visits, and the department adopted the recommendation. The respondent was released from prison in January, 2000, and placed on parole.

A consolidated second trial of the petitions to terminate the respondent’s parental rights took place in the Superior Court in Middletown on April 28 and May 9, 2000. At that time, the respondent lived with his sister and was employed at both a full-time and part-time job. The children were living in their foster home, and their foster parents expressed a strong desire to adopt them. Prior to the second trial, the respondent filed a motion to amend the termination petitions pursuant to Practice Book § 35-1 (c). After hearing oral argument, the trial court denied that motion. On May 15, 2000, the Superior Court granted the petitions to terminate the respondent’s parental rights. Additional facts will be set forth as necessary.

I

On appeal, the respondent first claims that the court improperly denied his motion to amend the termination petitions. We are not persuaded. At the outset, we note our standard of review. In so doing, we also note the unusual factual scenario underlying this claim due to the respondent’s use of Practice Book § 35-1 (c). While § 35-1 (c) provides that a petition may be amended by the court in response to a motion by “any party,” that rule of practice is usually relied on by petitioners who seek to amend petitions that they themselves have filed. Here, in contrast, the respondent has filed a motion requesting that the court amend the petitions filed by the petitioner.

Despite this oddity, our standard of review regarding Practice Book § 35-1 and motions to amend is settled. We will not disturb the trial court’s decision regarding amendments to a petition unless there has been an abuse of discretion. In re Angellica W., 49 Conn. App. 541, 548, 714 A.2d 1265 (1998).

In the present case, the respondent’s proposed amendment sought to add allegations that at the time of trial, the respondent had been discharged from incarceration, was fully compliant with all the conditions of his probation and was employed full-time. In addition, the amendment also sought to add an allegation that the respondent had commenced an administrative hearing to reinstate his visitation with the children. Therefore, by way of the motion to amend, the respondent attempted to make substantive changes to the petitions by adding facts that existed not on the date of the filing of the petitions but rather at the time of trial.

The trial court denied the respondent’s motion after a full hearing on the matter. In denying the motion, the court stated that “[it did] not believe that a respondent [could] decide through the court what the petitioner has to prove.” The respondent did not seek an articulation of the trial court’s decision.

The trial court’s decision was correct because the amendments that the respondent proposed in his motion, in essence, would have required the petitioner to prove the defenses that the respondent wanted to assert. Because the burden is on the petitioner to prove the allegations of the petitions, the requested changes, as the trial court pointed out in its decision, would have put the petitioner in the position of proving allegations that she did not necessarily believe. See id. (noting trial court’s correct statement that petitioner has right to amend and allege whatever she wants, but that burden is on petitioner to prove allegations).

To allow the respondent to amend the petitions filed by the commissioner in light of this burden would work a substantial injustice to the commissioner by requiring the commissioner to prove the position of the respondent, rather than her own. We therefore conclude that the court did not abuse its discretion in denying the respondent’s motion to amend the petitions.

The respondent also argues that by denying the motion to amend, the court could not and did not consider in the adjudicatory phase of the termination proceedings whether he had achieved personal rehabilitation over the last eighteen months because in that phase, the court can review only facts and events that occurred up to the filing of the petitions or the latest amendment. We disagree.

Practice Book § 33-3 (a) provides that “[i]n the adjudicatory phase, the judicial authority is limited to events preceding the filing of the petition or the latest amendment.” Our case law explains how this rule of practice is applied in termination proceedings. “A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition.” (Internal quotation marks omitted.) In re Roshawn R., 51 Conn. App. 44, 52, 720 A.2d 1112 (1998). “In the adjudicatory phase of termination proceedings, the court determines the validity of the grounds alleged in the petition, and therefore is limited to events preceding the filing date of the petition. In the disposition phase, the courtis concerned with what action should be taken in the best interests of the child, and in that phase the court is entitled to consider facts occurring until the end of the trial.” In re Romance M., 30 Conn. App. 839, 859, 622 A.2d 1047 (1993), appeal dismissed, 229 Conn. 345, 641 A.2d 378 (1994).

Despite Practice Book § 33-3 (a) and case law regarding termination proceedings generally, we have determined that with regard to termination petitions brought under § 17a-112 (c) (3) (B), the trial court may, in the adjudicatory phase, properly consider facts and events that occur after the filing date of the petition in determining whether a respondent has achieved a sufficient degree of personal rehabilitation within the meaning of that statute. See In re Stanley D., 61 Conn. App. 224, 230, 763 A.2d 83 (2000). In In re Stanley D., we addressed a claim that the trial court improperly found that the respondent had not achieved sufficient personal rehabilitation within the meaning of § 17a-112 (c) (3) (B). Id., 225. In our explanation of the requirements of § 17a-112 (c) (3) (B) and the hearing process for petitions to terminate parental rights based on that section, we stated that “ ‘[pjersonal rehabilitation’ refers to the reasonable foreseeability of the restoration of a parent to his or her former constructive and useful role as a parent, not merely the ability to manage his or her own life. ... In the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child’s life within a reasonable time.” (Citation omitted; emphasis in original.) Id., 230. The respondent, therefore, cannot prevail on his claim that the court could not consider whether he had achieved personal rehabilitation during the eighteen months subsequent to the filing of the petitions.

In the adjudicatory phase of the present case, the court determined that the commissioner established by clear and convincing evidence that the respondent had failed to achieve sufficient personal rehabilitation within the meaning of § 17a-112 (c) (3) (B). While the respondent further argues that the court did not consider facts that occurred subsequent to the June, 1998 filing of the termination petitions, our review of the trial court’s memorandum of decision discloses the opposite. In its decision, the court stated: “The father’s incarceration from 1995 through and well after the end of the adjudicatory period as a result of his own criminal conduct sufficiently establishes that he failed to rehabilitate . . . .” The court also noted that there was no “basis for finding that, at the end of the adjudicatory period in June, 1998, the father could have assumed a responsible position in the children’s lives ‘within a reasonable time.’ ” While that statement focuses on the time period prior to the date of the petitions, the court further stated: “Even assuming that, in June, 1998, the father was certain to be paroled in January, 2000, that intervening period of eighteen months is not a ‘reasonable time.’ By January, 2000, the father had been in prison for almost five years of the [children’s] lives.”

Additionally, the memorandum of decision discloses that the court reviewed the father’s interaction with his children from prison during the adjudicatory period, which ended in June, 1998, as well as at subsequent times. It stated that “[d]uring 1997, the father’s attendance at visits was not exemplary. Although some visits in 1998 went quite well, the [children] started reacting adversely to visits in 1999.”

On the basis of our review of the memorandum of decision, we do not agree with the respondent that the court did not take into consideration facts from the eighteen months after the filing of the petitions in the adjudicatory phase. Therefore, this argument also must fail.

Because we have determined that the court could, and did, take facts into account from beyond the adjudicatory period in making its decision in the adjudicatory phase, we conclude that the trial court did not abuse its discretion in denying the respondent’s motion to amend the termination petitions.

II

The respondent also claims that the court improperly admitted hearsay evidence that was contained in the social study during the adjudicatory phase of the trial. The following additional facts are necessary for our resolution of this claim. During the trial, the respondent objected to the admission of a letter written by an officer of the department of correction to the department of children and families. The letter, which was included as part of the social study, concerned conduct of the respondent during his period of incarceration. The court sustained the respondent’s objection and refused to admit the letter into evidence. The court, however, did admit the remainder of the social study.

During cross-examination, the author of the social study testified that she had quoted a sentence from the excluded letter elsewhere in the social study. The sentence related observations concerning the respondent’s visitation with the children during his incarceration. The author of the social study also testified that other social workers had made observations similar to those made by the correctional officer and quoted in the social study. In addition, another department worker testified at trial that the respondent had missed visitation as a result of being put in segregation during a period in 1997.

The respondent requested that the court strike the portion of the social study that quoted the sentence from the excluded letter. The court denied the respondent’s request. Without deciding whether the portion of the social study sought to be excluded falls within any of the exceptions to the hearsay rule, we conclude that the admission of the sentence in the social study, even if improper, was harmless.

We first note our standard of review. “Our standard of review regarding challenges to atrial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Rolli, 53 Conn. App. 269, 275, 729 A.2d 245, cert. denied, 249 Conn. 926, 733 A.2d 850 (1999). Additionally, it is well settled that even if the evidence was improperly admitted, the respondent must also establish that “the ruling was harmful and likely to affect the result of the trial.” In re Amneris P., 66 Conn. App. 377, 382, 784 A.2d 457 (2001).

In this case, we conclude that the challenged evidence was not harmful because the court heard other properly admitted evidence that related similar information. Our review of the record discloses that another department worker testified that problems existed in 1997 regarding the respondent’s visitation with his children as a result of his segregation from the prison community. In addition, the court was provided with documentation of the respondent’s behavior and disciplinary record in prison to support this testimony. This evidence supports the court’s finding that “[djuring 1997, the father’s attendance at visits was not exemplary.” The disputed sentence in the social study therefore did not likely affect the result of the trial because it merely reiterated other properly admitted testimony regarding the respondent’s visitation with the children in 1997.

Moreover, the respondent has not established that the admission of the challenged evidence likely affected the court’s decision because the court based its decision in the adjudicatory phase on a number of findings. The court found that the respondent’s “incarceration from 1995 through and well after the end of the adjudicatory period as a result of his own criminal conduct sufficiently established] that he failed to [achieve personal] rehabilitation].” The court also found that the respondent, as a prisoner, could not assume a responsible position in the life of his children or tend to their daily needs.

As we previously noted, the court found no basis for concluding that at the end of the adjudicatory period in June, 1998, the respondent could have assumed a responsible position in the children’s lives “within a reasonable time.” The court also found that by January, 2000, the respondent had been in prison for almost five years of the children’s lives and that although some of the visits in 1998 went well, the children reacted adversely to his visits in 1999 and they were not bonded with him. Evidence of the respondent’s poor disciplinary record in prison further supported the court’s conclusion.

In light of the other evidence, specifically the evidence regarding the respondent’s poor prison record, and the trial court’s varied findings that it relied on to decide that the respondent had not achieved personal rehabilitation, we conclude that the evidence in question would not have affected the outcome of the trial. Given the court’s findings and the ample evidentiary support for its decision, the respondent has failed to establish that the admission of the sentence in the social study was harmful.

The judgments are affirmed.

In this opinion the other judges concurred.

       Because there was no record or decision with regard to the respondent mother, the trial court ordered a trial concerning the mother’s parental rights wi1h respect to the two children. We refer in this opinion to the respondent father as the respondent.

       General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part: “The Superior Court. . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence ... (3) that . . . (B) the parent of a child who has been found by the Superior Court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       The respondent did not challenge this decision until February or March, 2000.

       Practice Book § 35-1 (c) provides: “A petition may be amended at any time by the judicial authority on its own motion or in response to the motion of any party prior to any final adjudication. When an amendment has been so ordered, a continuance shall be granted whenever the judicial authority finds that the new allegations in the petition justify the need for additional time to permit the parties to respond adequately to the additional or changed facts and circumstances.”

       The petition also alleged another ground for termination, which is not relevant to this appeal because the trial court determined that the commissioner failed to prove the allegation.

       We note that the respondent also makes another argument within his claim that the court improperly denied the motion to amend. The respondent asserts that the commissioner’s pleadings were stale because eighteen months had passed between the time that the petitions were originally filed in 1998 and the second trial. We need not decide whether this eighteen month period requires the petitions to be updated because we have determined that the court did take into account facts that occurred after the date that the petitions were filed. Therefore, even if the allegations were out of date, the respondent’s argument must fail based on the trial court’s consideration of events after 1998.

       The challenged portion of the social study provides: “On July 7, 1997, [the department] received a letter from Craig Gallick, CRSO II at Cheshire Correctional Institute, which indicated that [the respondent] was showing lack of initiative to get to the visitation room in a timely fashion which was impacting the amount of time he was able to visit with his [children].”


author: FOTI, J. FLYNN, J.,

text:
    ANTHONY J. SCALISE v. AMERICAN EMPLOYERS INSURANCE COMPANY
    (AC 20928)
    Foti, Dranginis and Flynn, Js.

      {One judge dissenting)
    Argued October 23, 2001
    officially released January 29, 2002

      Michael A. Catalano, for the appellant (plaintiff).

      Frederick L. Murolo, with whom, on the brief, were Karen T. Gerber and Marc J. Ubaldi, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff, Anthony J. Scalise, appeals from the judgment of the trial court denying his application for an order to compel the defendant, American Employers Insurance Company, to proceed with arbitration of his underinsured motorist claim as set forth in his automobile insurance policy with the defendant. On appeal, the plaintiff argues that the court improperly concluded that he failed to make a written demand for arbitration before the running of the statute of limitations, General Statutes § 52-576. We affirm the judgment of the trial court.

The relevant facts underlying the plaintiffs appeal are not disputed. The defendant issued an automobile insurance policy to the plaintiff that included an under-insured motorist provision. That provision provided that in the event that the defendant and the plaintiff did not agree as to either an insured’s entitlement to damages or the amount of such damages, the insured may make a written demand for arbitration. Neither the underinsured motorist provision nor the policy as a whole adopted a specific time limitation for submitting an arbitration demand. On April 1,1989, the plaintiff was involved in an automobile accident caused by the negligence of another operator. USAA General Indemnity Company (General Indemnity) insured the operator of the other automobile.

On April 10,1991, General Indemnity offered to settle the plaintiffs claim for damages against its insured for $20,000, the policy limit. On April 18, 1991, the plaintiff signed a release in favor of General Indemnity’s insured. On April 23, 1991, General Indemnity issued an uncertified check to the plaintiff for $20,000. On April 26,1991, the plaintiffs counsel received and deposited the check on the plaintiffs behalf.

In a letter dated April 29, 1997, the plaintiff made a demand against the defendant to arbitrate his still pending underinsured motorist claim. The defendant refused. On May 2,1997, the plaintiff filed an application in the Superior Court for an order to compel the defendant to proceed with arbitration. The defendant thereafter pleaded, as a special defense, that the statute of limitations on the plaintiffs claim had expired and that this fact precluded the plaintiffs demand for arbitration. The court conducted an evidentiary hearing and, on May 24, 2000, issued a memorandum of decision denying the plaintiffs application. The court held that the statute of limitations began to run on April 26,1991, the date on which the plaintiffs attorney received the check from General Indemnity. The court further reasoned that because the plaintiff did not demand arbitration until April 29, 1997, his demand was barred by the statute of limitations.

This appeal presents an issue concerning the interaction of two statutes, one dealing with an insurer’s obligation to make underinsured motorist payments to its insured and another that establishes the time frame in which an insured may bring an action to recover such payments. “Statutory interpretation is a matter of law over which this court’s review is plenary.” (Internal quotation marks omitted.) Wallerstein v. Stew Leonard’s Dairy, 258 Conn. 299, 302, 780 A.2d 916 (2001). Likewise, “[t]he question of whether a party’s claim is barred by the statute of limitations is a question of law, which this court reviews de novo.” Giulietti v. Giulietti, 65 Conn. App. 813, 833, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).

Because the plaintiffs policy was silent as to the time period in which he could exercise his right to demand arbitration of his underinsured motorist claim, the statute of limitations set forth in § 52-576 applied to his right to do so. See Coelho v. ITT Hartford, 251 Conn. 106, 107, 752 A.2d 1063 (1999) (noting that “in the absence of a contrary provision in the claimant’s motor vehicle policy, an action for underinsured benefits can be brought at any time prior to the expiration of the time limitation of that statute”); Wynn v. Metropolitan Property & Casualty Ins. Co., 30 Conn. App. 803, 807, 623 A.2d 66, aff'd, 228 Conn. 436, 635 A.2d 814 (1993). Section 52-576 (a) provides that “[n]o action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section.” Our Supreme Court has explained that “because the statute of limitations under § 52-576 is based on the accrual of a cause of action for underinsured motorist benefits, and accrual is dependent upon enforcement, the time for commencing such an action begins to run on the date of exhaustion of the tortfeasor’s liability limits.” Coelho v. ITT Hartford, supra, 112.

General Statutes § 38a-336 (b) provides in relevant part that “[a]n insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured and underinsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements . . . .” The purpose underlying underinsured motorist coverage is to protect a victim from “suffering an inadequately compensated injury caused by an accident with an inadequately insured automobile.” (Internal quotation marks omitted.) Doyle v. Metropolitan Property & Casualty Ins. Co., 252 Conn. 79, 88, 743 A.2d 156 (1999). The plaintiffs underinsured motorist coverage became necessary when the amount of his claimed damages from the accident exceeded General Indemnity’s settlement payment in the amount of its insured’s policy limit. The outcome of this appeal turns on our resolution of the issue of when General Indemnity exhausted by payment its insured’s policy limit because the plaintiff could not have successfully maintained a cause of action against the defendant until that time. See Wynn v. Metropolitan Property & Casualty Ins. Co., supra, 30 Conn. App. 807-808.

The plaintiff argues that General Indemnity did not exhaust its insured’s liability limit until it “satisfied” its settlement with the plaintiff. He posits that the term “exhaustion by payment” means that “the check must be honored, it must be paid by the bank on which it was drawn.” His argument rests on the premise that he could not have withdrawn the deposited funds from General Indemnity’s check from his account on the date on which he received and deposited the settlement check, April 26, 1991. The plaintiff refers us to the fact that state law defined the latest date on which a bank must make deposited funds available for withdrawal. See General Statutes (Rev. to 1991) § 36-9v, now § 36a-302. It follows, he argues, that because he deposited General Indemnity’s check on Friday, April 26, 1991, the earliest that the check could have cleared and the funds could have been available for his withdrawal would have been Monday, April 29,1991. Applying that analysis, the plaintiff reasons that the six year statute of limitations set forth in § 52-576 did not bar his April 29, 1997 demand for arbitration.

Application of § 52-576 requires us to determine the precise time at which General Indemnity “exhausted by payment” its settlement with the plaintiff. We begin our analysis by interpreting that statutory term to determine when exhaustion by payment occurs if payment is in the form of an uncertified check. That is an issue that no appellate court in this state has yet resolved. We undertake that exercise mindful that our interpretation should be faithful to the legislative intent behind the statute’s enactment and give effect to that legislative action. Gelinas v. West Hartford, 65 Conn. App. 265, 275, 782 A.2d 679, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001). As in any exercise of statutory interpretation, we accord the words and phrases of a statute their commonly approved usage and their ordinary meaning, mindful that legislative intent is usually apparent in the words that the legislature used. Id.; General Statutes § 1-1 (a).

The legislature did not define exactly when exhaustion by payment occurs. “Exhaust” is defined as “to empty ... to consume entirely.” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1999). “Payment” is defined as “the act of paying . . . something that is paid.” Id. The word is also defined as “[a] discharge in money or its equivalent of an obligation or debt owing by one person to another, and is made by debtor’s delivery to creditor of money or some other valuable thing, and creditor’s receipt thereof, for purpose of extinguishing debt.” Black’s Law Dictionary (6th Ed. 1990). Our Supreme Court has stated in a similar context that a policy is exhausted “only when the limit of coverage actually has been paid to the claimant.” Ciarelli v. Commercial Union Ins. Cos., 234 Conn. 807, 811, 663 A.2d 377 (1995).

Those definitions do not shed light on the issue of when payment occurs if a party makes payment, as here, by delivering an uncertified check. Although the payment by check in the present case was made for the purpose of settling an insurance claim, we are able to gamer guidance from the analogous context of payment by check for the payment of an obligation or debt.

“[T]he giving of a draft by a debtor to his creditor does not discharge the debt itself until the draft is paid, it being a means adopted to enable the creditor to obtain payment of the debt and remaining, until honored or paid, but evidence of the indebtedness . . . .” (Emphasis in original; internal quotation marks omitted.) Huybrechts v. Huybrechts, 4 Conn. App. 319, 321, 494 A.2d 593 (1985). In that light, we have recognized that the delivery of a note or an uncertified check suspends an obligation to pay “until dishonor of the note [or uncertified check] or until [either] is paid.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. DaSilva, 231 Conn. 441, 447, 650 A.2d 551 (1994); see also General Statutes (Rev. to 1991) § 42a-3-802 (“where an instrument is taken for an underlying obligation . . . the obligation is suspended pro tanto until the instrument is due or if it is payable upon demand until its presentment”).

It is well settled, however, that a debtor’s delivery of an uncertified check as payment for an obligation not only suspends his obligation to pay until such check is, upon its presentment, either honored or dishonored, but that once the check is honored, the obligation to pay no longer exists. Our legislature codified that principle in General Statutes § 42a-3-310 (b), which provides in relevant part: “[I]f a note or an uncertified check is taken for an obligation, the obligation is suspended to the same extent the obligation would be discharged if an amount of money equal to the amount of the instrument were taken, and . . . [i]n the case of an uncertified check, suspension of the obligation continues until dishonor of the check or until it is paid or certified. Payment or certification of the check results in discharge of the obligation to the extent of the amount of the check. . . .”

It is not disputed that General Indemnity was free to satisfy its settlement by paying the plaintiff with a check, a customary practice. We also recognize that payment by check is ordinarily understood to constitute payment for an obligation as of the moment of delivery of the check, provided that the check is honored upon its presentment. “[W]here a check delivered to a creditor ... is in fact paid in due course, the debt is discharged pro tanto, as of the time at which the check was received .... A check is . . . often referred to as conditional payment, the condition being its collect-ability from the bank on which it is drawn. On fulfillment of the condition by payment of the check on presentation, the payment, which was previously conditional, becomes absolute.” (Emphasis added.) 70 C.J.S., Payment § 18 (1987); see also 60 Am. Jur. 2d, Payment § 18 (1987) (“time of payment of the obligation relates back to the time when the check was delivered to the obligee”).

As one court explained, that rule recognizes the realities of modem day commerce and yields a sensible result, for “[i]f the check is dishonored on presentment to the drawee, no timely ‘payment’ has been made.” Duke v. Sun Oil Co., 320 F.2d 853, 862 (5th Cir. 1963). Another court noted that if a party’s act of delivering a check as payment for an obligation “is not the sending of money in discharge of the debt it is hard to figure out what a payment can be.” (Internal quotation marks omitted.) Staff Builders of Philadelphia, Inc. v. Koschitzki, 989 F.2d 692, 694 (3d Cir. 1993). We find such authority to be persuasive. Accordingly, we hold that if an uncertified check is honored and paid on presentment, its conditional nature ends and it becomes absolute payment at that time. The date of the payment for the underlying obligation relates back to the date of the delivery of the check. We believe that this “conditional payment” mle is fair and that it reflects the common understanding of the practice of paying by check. By interpreting § 38a-336 (b) harmoniously with that rule, we fulfill our duty of interpreting the statute to achieve a rational and sensible result. See Interlude, Inc. v. Skurat, 253 Conn. 531, 539, 754 A.2d 153 (2000).

Having reached that point in our analysis, we conclude that General Indemnity exhausted by payment its settlement with the plaintiff on April 26,1991. Pursuant to § 38a-336 (b), the plaintiff could have maintained a cause of action against its insurer for underinsured motorist benefits on that date. The six year statute of limitations set forth in § 52-576 permitted the plaintiff to bring a claim against the defendant, if he so desired, within six years. The plaintiff did not do so. Instead, he filed his written demand for arbitration on April 29, 1997. Accordingly, the plaintiffs application for an order to compel the defendant to proceed with arbitration is barred.

The judgment is affirmed.

In this opinion DRANGINIS, J., concurred.

FLYNN, J.,

dissenting. I respectfully dissent from the

opinion of the majority. I would reverse the decision of the trial court, remand with a rescript ordering it to determine when the tortfeasor’s insurer’s check cleared and was paid, and if paid within six years of the date of the demand for arbitration, ordering it to compel arbitration and allow what is, in my opinion, a timely claim to proceed to arbitration in the usual manner.

First, I note that the plaintiffs attorney deposited the check received in settlement of the plaintiffs third party claim for collection in his account on the day it was received after proper indorsement by his client. The contract statute of limitations, which all agree governs, provides in pertinent part that “[n]o action . . . on any contract in writing, shall be brought but within six years after the right of action accrues . . . .” General Statutes § 52-576 (a). The insurer’s liability for underinsured benefits is covered by a policy provision found on page ten of the written contract at issue, under the heading “Endorsements.” The policy states in pertinent part: “We will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.” See also General Statutes § 38a-336 (b). I agree with the plaintiffs contention that “payment” was not made, nor was the third party tortfeasor’s policy “exhausted,” until the check cleared.

The majority defines “payment” as “ ‘[a] discharge in money or its equivalent of an obligation or debt owing ....’” Under Connecticut law, an uncertified check does not discharge the underlying obligation. Our Supreme Court has stated that “the giving of a check by a debtor to his creditor does not discharge the debt until the check is paid.” Tuckel v. Jurovaty, 141 Conn. 649, 651, 109 A.2d262 (1954). In fact, the majority quotes Huybrechts v. Huybrechts, 4 Conn. App. 319, 321, 494 A.2d 593 (1985), for the same proposition: “[T]he giving of a draft by a debtor to his creditor does not discharge the debt itself until the draft is paid, it being a means adopted to enable the creditor to obtain payment . . . .” (Emphasis added; internal quotation marks omitted.) If the delivery of an uncertified check is a means for later obtaining payment, I do not understand how we arrive at the legal conclusion that payment has already been made upon its mere delivery. It is undisputed that the tortfeasor’s insurer, USAA General Indemnity Company (General Indemnity), issued an uncertified check. The Uniform Commercial Code § 3-310, enacted in Connecticut under General Statutes § 42a-3-310 and also cited by the majority, covers the same territory: “[When] an uncertified check is taken for an obligation, the obligation is suspended to the same extent the obligation would be discharged if an amount of money equal to the amount [indicated on] the instrument were taken . . . (Emphasis added.) General Statutes § 42a-3-310 (b). The same provisions contrast the effects of a certified check. When a certified check is taken for an obligation, “the obligation is discharged to the same extent discharge would result if an amount of money equal to the amount [indicated on] the instrument were taken in payment of the obligation. ...” (Emphasis added.) General Statutes § 42a-3-310 (a). Thus, the code provision plainly states that the obligation is not yet discharged simply by handing over an uncertified check. I do not understand how General Indemnity’s obligations under policy limits are “exhausted by payment” within the meaning of the policy and § 38a-336 (b) when the obligation to pay has not been discharged. The majority seems to agree, stating that “payment” is “[a] discharge in money or its equivalent of an obligation or debt owing . . . (Emphasis added; internal quotation marks omitted.)

A check is a form of written instruction to pay a sum of money to a payee. See General Statutes §§ 42a-3-103 and 42a-3-104. If it is honored, it constitutes payment. Under most circumstances, a check also evidences a promise to pay a sum of money, in the event that the check is dishonored. See, e.g., Tuckel v. Jurovaty, supra, 141 Conn. 651. In Tuckel, the court stated that “[t]he indorsement of the check made it negotiable in the hands of the defendant but it did not convert it into money. . . . The check still retained its character as a written promise to pay in accordance with its terms.” Id.

If an insurer agrees to a settlement of a third party claim and issues its check for the amount agreed upon, but the check is not honored, then payment of the claim has not been made.

It follows that payment of a claim made against an underlying tortfeasor’s insurance policy and exhaustion of that policy sufficient to trigger a supplementary claim made under the underinsured motorists provisions of the claimant’s own policy cannot occur or commence until the day the check is honored.

It seems to me that the situation is analogous to an executory accord until the check is honored and actually paid and that any statute of limitations which payment triggered the running of should not begin to run against the plaintiff until actual payment occurs.

“ ‘An accord is a contract under which an obligee promises to accept a stated performance in satisfaction of the obligor’s existing duty. Performance of the accord discharges the original duty.’ 2 Restatement (Second), Contracts § 281 (1981); W. H. McCune, Inc. v. Revzon, 151 Conn. 107, 109, 193 A.2d 601 (1963).” Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 809, 626 A.2d 729 (1993).

“Satisfaction of a claim may be found in either the promise to settle or the full performance of that promise. Connecticut law comports with the view that the intention of the parties is determinative of whether a settlement agreement constitutes an executory accord or a substitute agreement. Halloran v. Fischer, 126 Conn. 44, 46, 9 A.2d 290 (1939).” Air-Care N.O. Nelson Co. v. Patchet, 5 Conn. App. 203, 205, 497 A.2d 771 (1985).

“It is frequently difficult to determine as a matter of fact whether the parties agreed that the settlement agreement itself constituted satisfaction of the original cause of action, or whether the performance of the agreement was intended to be the satisfaction. 15 Williston, Contracts (3d Ed. Jaeger) § 1847.” Air-Care N. O. Nelson Co. v. Patchet, supra, 5 Conn. App. 205.

“ ‘[I]t is not a probable inference that a creditor intends merely an exchange of his present cause of action for another. It is generally more reasonable to suppose that he bound himself to surrender his old rights only when the new contract of accord was performed.’ 15 Williston, supra, § 1847.” Air-Care N. O. Nelson Co. v. Patchet, supra, 5 Conn. App. 206.

In this kind of factual scenario, I would hold that the six year contract statute of limitations did not begin to run until the check of the tortfeasor’s insurer was honored because not until payment was the policy exhausted by payment.

The majority treats the delivery of an uncertified check by the tortfeasor’s insurer as the commencement date of the statute of limitations period, or not, depending on future events unknown at the time of the check’s delivery. Under this rule, if the uncertified check “is in fact paid in due course” at a later date, then the earlier delivery is treated as the beginning of the statute of limitations period. Conversely, “if the check is [later] dishonored on presentment,” the majority states that delivery is then deemed not to have triggered the limitations period after all. Where does this leave the plaintiff when he takes delivery of the check? Under this rule, the plaintiffs time to exercise his rights to recover underinsured benefits begins to run before he even has any such rights. This rule is “inconsistent with basic limitations principles.” Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of California, Inc., 522 U.S. 192, 200, 118 S. Ct. 542, 139 L. Ed. 2d 553 (1997). A statute of limitations is a “period during which suit [can] be brought”; Clark v. Jeter, 486 U.S. 456, 463, 108 S. Ct. 1910, 100 L. Ed. 2d 465 (1988); and “during which [a defendant’s] rights may be subject to challenge.” United States v. Beggerly, 524 U.S. 38, 49, 118 S. Ct. 1862, 141 L. Ed. 2d 32 (1998). The United States Supreme Court stated: “The question presented [in an earlier Supreme Court case] was whether a statute of limitations could commence to run on one day while the right to sue ripened on a later day. We answered that question, and only that question, ‘no,’ [unless the legislature has told us otherwise in the legislation at issue]. ... [If not] a cause of action does not become ‘complete and present’ for limitations purposes until the plaintiff can file suit and obtain relief. See Reiter v. Cooper, 507 U.S. 258, 267 [113 S. Ct. 1213, 122 L. Ed. 2d 604] (1993) (‘While it is theoretically possible for a statute to create a cause of action that accrues at one time for the purpose of calculating when the statute of limitations begins to run, but at another time for the purpose of bringing suit, we will not infer such an odd result in the absence of any such indication in the statute’).” (Citation omitted.) TRW, Inc. v. Andrews, 534 U.S. 19, 34 n.6, 122 S. Ct. 441, 151 L. Ed. 2d 339 (2001).

A statute of limitations is a span of time in which a plaintiff has the right to bring a cause of action and after which the action is barred. Our Supreme Court’s use of the term “ ‘exhausted by payment’ ”; (emphasis added) Ciarelli v. Commercial Union Ins. Cos., 234 Conn. 807, 810, 663 A.2d 377 (1995); does not contemplate a looming cloud over the plaintiffs right to demand arbitration and to ask a court to compel arbitration if the demand is refused. By exhaustion, our Supreme Court meant that on the date in question, without the information derived from any later hindsight review, the plaintiff could have successfully demanded arbitration because the policy limits were paid. The policy limits of the insured tortfeasor cannot be “exhausted” when the value indicated by the limits has not yet been transferred. The payment process has perhaps begun, but it has not been completed, and thus the policy has not been exhausted, until the plaintiff has the money.

For these reasons, I respectfully dissent from the majority opinion.

       General Statutes § 52-410 (a) provides in relevant part: “A party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the superior court . . . for an order directing the parties to proceed with the arbitration in compliance with their agreement. ...”

       The plaintiff did not submit evidence to the trial court as to when exactly the check cleared. He argues that this is of no consequence because April 29, 1991, was the earliest date on which the check could have cleared, thereby enabling him to draw upon the deposited funds, and that if the court had used that date as the date of payment it also would have had to conclude that his demand for arbitration was timely.

       An uncertified check is a negotiable instrument. As such, its use is governed by the provisions of article III of Connecticut’s Uniform Commercial Code, General Statutes § 42a-l-101 et seq. The provisions therein do not define when payment occurs if a note or an uncertified check is taken as payment for an obligation.

       Our legislature intended the provisions of Connecticut’s Uniform Commercial Code, General Statutes § 42a-l-101 et seq., to be construed liberally so as “to simplify, clarify and modernize the law governing commercial transactions . . . .” General Statutes § 42a-1-102 (2) (a).

       In this case, the underlying obligation of the tortfeasor’s insurance was to pay the policy limits, which would thereby “enforce” them, triggering the accrual of the plaintiffs cause of action for statute of limitations purposes.

       Title 42a of the General Statutes is Connecticut’s enactment of the Uniform Commercial Code and may be cited as such. See General Statutes § 42a-l-101 et seq. Under these provisions, a check is defined in relevant part as a “draft, other than a documentary draft, payable on demand and drawn on a bank . . . .” General Statutes § 42a-3-104 (f). A draft is defined as an “instrument” that is “an order.” General Statutes § 42a-3-104 (e). Finally, an order is a form of “written instruction to pay money . . . .” General Statutes § 42a-3-103 (6).