author: SCHALLEE, J.

text:
    STATE OF CONNECTICUT v. ADAM H.

    (AC 17912)
    Schaller, Spear and Sullivan, Js.
    Argued January 28
    officially released August 10, 1999

      Glenn M. Conway, with whom, on the brief, were Paul Stuart and Paul McCarty, legal interns, for the appellant (defendant).

      Susan C. Marks, supervisory assistant state’s attorney, with whom on the brief, were Michael Dearington, state’s attorney, and David J. Strollo, assistant state’s attorney, for the appellee (state).

       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

SCHALLEE, J.

The sole issue raised in this appeal is whether the trial court had jurisdiction under General Statutes § 53a-39 to modify á sentence of nine years imprisonment, execution suspended after three years, when the state did not agree to seek review of the sentence. Specifically, this court must determine whether the portion of the sentence to be executed constitutes a “definite sentence of three years or less,” bringing the defendant within the authority of § 53a-39 (a), or whether the full sentence of nine years, consisting of the executed and unexecuted portions, constitutes a “definite sentence,” thereby making the permission of the state’s attorney a prerequisite to sentence modification pursuant to § 53a-39 (b). The trial court denied the defendant’s motion for modification, ruling that the executed portion by itself does not constitute a definite sentence within the meaning of the statute. We affirm the judgment of the trial court.

The relevant facts and procedural history are as follows. On March 21,1996, the defendant was adjudicated a youthful offender as defined by General Statutes (Rev. to 1995) § 54-76b and pleaded guilty to a charge of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l). On July 12,1996, the trial court sentenced the defendant to nine years imprisonment, execution suspended after three years, with five years of probation. On June 17, 1997, the defendant filed a motion for modification of his sentence pursuant to § 53a-39. The state’s attorney did not agree to seek review of the defendant’s sentence. Because the trial court determined that under § 53a-39 the defendant’s sentence was a “definite sentence of more than three years,” it concluded that without the agreement of the state’s attorney it lacked jurisdiction to modify the sentence and denied the motion. This appeal followed.

The defendant claims that the definite sentence referred to in § 53a-39 is comprised solely of the executed portion of his sentence. Specifically, the defendant argues that (1) case law supports his claim, (2) the plain language of General Statutes §§ 53a-35a and 54-125a establishes that a definite sentence is limited to the three year portion of his sentence, (3) the purpose and legislative history of § 53a-39 also compel the result he urges and (4) if we find, after exhausting all sources relevant to the determination of the legislature’s intent with respect to the meaning of definite sentence as used in § 53a-39, that there remains an ambiguity, we should invoke the rule of lenity and decide in his favor. See, e.g., State v. Ledbetter, 240 Conn. 317, 331 n.12, 692 A.2d 713 (1997).

The state argues that a definite sentence is the entire term to which the defendant was sentenced and not merely the executed portion thereof. The state relies on the plain language and legislative history of § 53a-39 in conjunction with the plain language of General Statutes § 53a-35a and General Statutes (Rev. to 1995) § 53a-28 to support its claim.

The defendant argues that State v. Cavallo, 200 Conn. 664, 513 A.2d 646 (1986), supports his claim. In that case, the defendant argued for the first time on appeal that his sentence of five years imprisonment suspended after eighteen months was excessive. Our Supreme Court declined to consider the defendant’s claim for lack of preseivation. Because, in so doing, the court cited § 53a-39 as a possible vehicle for preservation, the defendant in the present case argues that that court concluded that a motion to review a five year sentence suspended after eighteen months fell within the authority of § 53a-39 and that we should determine that his sentence similarly qualifies. We are not persuaded. First, we note that the court referred to § 53a-39 in dictum, as the issue there was the defendant’s lack of preservation. Also, subsequent to its reference to § 53a-39, the court cited General Statutes § 51-195 as a possible means of preseivation; id., 675 n.11; which demonstrates that it did not say definitively which was the appropriate vehicle for the modification of the defendant’s sentence.

The defendant next argues that State v. Tuszynski, 23 Conn. App. 201, 579 A.2d 1100 (1990), supports his position. His reliance on that case, however, is misplaced. The defendant in Tuszynski was sentenced to a total effective sentence of five years, suspended after forty-two months with two years of probation. We clearly stated that sentence modification under § 53a-39 was not appropriate for such a sentence. Id., 205. Having determined that the cases relied on by the defendant have not resolved the issue raised in this appeal, we turn to our interpretation of the statutory language.

Statutory interpretation is a question of law; North Haven v. Planning & Zoning Commission, 220 Conn. 556, 561, 600 A.2d 1004 (1991); and, therefore, our review is plenary. . When interpreting statutes, we rely on well established principles of statutory construction. “[0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Castagno v. Wholean, 239 Conn. 336, 339, 684 A.2d 1181 (1996). We conclude that, on its face, the phrase at issue here is equally capable of either of the interpretations advocated by the parties in this case and is, therefore, ambiguous. Accordingly, we look to legislative history as we proceed to construe the statute.

Upon examination of the legislative history and circumstances surrounding the enactment of § 53a-39, as well as its relationship to existing legislation governing the same general subject matter, we hold that the legislature intended a definite sentence to include both the executed and suspended portions of a sentence. The defendant, therefore, cannot use § 53a-39 to petition for sentence reduction without the permission of the state’s attorney.

Prior to 1981, defendants were subjected to an “indeterminate” sentencing scheme. See General Statutes § 53a-35. “The indeterminate sentencing scheme used . . . allowed the court to set both the minimum and maximum portion of the sentence . . . parole eligibility [was] established at the minimum less any good time used to reduce that minimum term. . . . The minimum and maximum portions of the sentence [were] a fixed number of years except for a class A felony where the maximum [was] life imprisonment, unless for a capital felony where a sentence of death [could] be imposed.” (Citations omitted.) Williams v. Bronson, 24 Conn. App. 612, 618, 590 A.2d 984, cert. denied, 219 Conn. 913, 593 A.2d 138 (1991). This scheme was subsequently abolished and replaced by the current scheme of definite sentencing applicable to crimes committed on or after July 1, 1981. See General Statutes § 53a-35a. Under this system, sentencing courts “impose a flat or exact term of years of imprisonment without a minimum or maximum; that term could be reduced by various statutory credits.” Williams v. Bronson, supra, 618. The legislature’s purpose, therefore, in using the label definite sentence is to differentiate the type of sentence it denotes from the historical, indeterminate sentence, and not to indicate any “definite” amount of time that a defendant will be incarcerated. Furthermore, because of the availability of statutory credits as well as the operation of probation, the precise time that a defendant will serve in prison cannot be predicted with exact certainty. Accordingly, the most logical interpretation of definite sentence is the flat maximum to which a defendant is sentenced, in this case, nine years.

Finally, we note that pursuant to No. 87-538 of the 1987 Public Acts, § 53a-39 formerly provided in relevant part: “If a definite sentence includes suspension of incarceration after a period of at least two years but not more than five years, followed by a period of probation . . . .” (Emphasis added.) General Statutes (Rev. to 1989) § 53a-39. Although that language was subsequently eliminated from the statute, we conclude that the language reinforces our interpretation that the legislature intended a definite sentence to include both the executed and suspended portions of a sentence.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-39 provides in relevant part: “(a) At any time during the period of a definite sentence of three years or less, the sentencing court or judge may, after hearing and for good cause shown, reduce the sentence, order the defendant discharged, or order the defendant discharged on probation or conditional discharge for a period not to exceed that to which the defendant could have been originally sentenced.
      “(b) At any time during the period of a definite sentence of more than three years, upon agreement by the defendant and the state’s attorney to seek review of the sentence, the sentencing court or judge may, after hearing and for good cause shown, reduce the sentence, order the defendant discharged, or order the defendant discharged on probation or conditional discharge for a period not to exceed that to which the defendant could have been originally sentenced. . . .”

       General Statutes (Rev. to 1995) § 54-76b provides in relevant part: “ ‘[Y]outhful offender’ means a youth who is charged with the commission of a crime which is not a violation of section 53a-70a or a class A felony, who has not previously been convicted of a felony or been previously adjudged a youthful offender, or been afforded a pretrial program for accelerated rehabilitation under section 54-56e, and who is adjudged a youthful offender pursuant to the provisions of said sections. . .

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such other person or a third person . . . .”

       General Statutes § 53a-35a provides in relevant part: “Por any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court . . . .”

       General Statutes § 54-125a (a) provides in relevant part: “A person convicted of one or more crimes who is incarcerated on or after October 1, 1990, who received a definite sentence or aggregate sentence of more than two years, and who has been confined under such sentence or sentences for not less than one-half of the aggregate sentence or one-half of the most recent sentence imposed by the court, whichever is greater, may be allowed to go at large on parole in the discretion of the panel of the Board of Parole for the institution in which the person is confined

       See footnote 4 of this opinion.

       General Statutes (Rev. to 1995) § 53a-28 (b) provides: “Except as provided in section 53a-46a, when a person is convicted of an offense, the court shall impose one of the following sentences: (1) A term of imprisonment; or (2) a sentence authorized by section 18-65a or 18-73; or (3) a fine; or (4) a term of imprisonment and a fine; or (5) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a period of probation or a period of conditional discharge; or (6) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a fine and a period of probation or a period of conditional discharge; or (7) a fine and a sentence authorized by section 18-65a or 18-73; or (8) a sentence of unconditional discharge.”

       General Statutes § 51-195 provides in relevant part,: “Any person sentenced on one or more counts of an information to a term of imprisonment for which the total sentence of all such counts amounts to confinement for three years or more, may, within thirty days from the date such sentence was imposed or if the offender received a suspended sentence with a maximum confinement of three years or more, within thirty days of revocation of such suspended sentence, except in any case in which a different sentence could not have been imposed or in any case in which the sentence or commitment imposed resulted from the court’s acceptance of a plea agreement or in any case in which the sentence imposed was for a lesser term than was proposed in a plea agreement, file with the clerk of the court, for the judicial district in which the judgment was rendered an application for review of the sentence by the review division. ...”

       We note that while the phrase “definite sentence” appears in several statutes, it is not defined in any of them. See, e.g., General Statutes §§ 18-100c. 53a-28, 53a-35, 53a-35a. 53a-35b. 53a-36 and 53a-38.

       Number 90-261, § 7, of the 1990 Public Acts eliminated the quoted language from § 53a-39; it was used in conjunction with intensive probation, which was then among the choices the sentencing court could turn to when modifying a sentence. That alternative is no longer available under § 53a-39.


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    TOWN OF EAST LYME v. ALFRED WOOD ET AL.
    (AC 18218)
    O’Coimell, C. J., and Spear and Sullivan, Js.
    Argued March 22
    officially released August 10, 1999

      Barry Ward, for the appellants (defendants).

      David P. Condon, for the appellee (plaintiff).
   Opinion

O’CONNELL, C. J.

The defendants appeal from the judgment of the trial court granting the plaintiff town of East Lyme (town) a prejudgment attachment of certain real estate. The defendants claim that the trial court improperly found that (1) a prior injunction authorized the plaintiff to enter upon the defendants’ land, (2) it had subject matter jurisdiction over a motion for payment and (3) the plaintiff complied with General Statutes § 52-278b. We affirm the judgment of the trial court.

The following facts are necessary for a resolution of this appeal. For nearly forty years, the defendants, Alfred Wood and Sarah Wood, operated a window repair business on their East Lyme property. Over the years, excess glass, windows and old frames, among other things, accumulated on the Woods’ property. In 1981, the town commenced a zoning enforcement action to compel the Woods to remove the inordinate quantity of debris from their land. That action culminated in a stipulated judgment for a permanent mandatory injunction.

The stipulated judgment states that “there shall be no deposit, collection or storage of broken, used or discarded parts of windows and doors, scrap aluminum, glass, automobile or truck tires, unusable stoves, refrigerators or house furnishings, wrecked or broken down vehicles or parts thereof, demolition materials or other items of trash or debris.” The judgment also provided that if the Woods did not comply with its terms by May 1, 1982, the town, upon ten days of written notice to the Woods, could enter the property and perform such work as was necessary to bring the premises into compliance. Furthermore, if the town did enter and clear the property, it would be at the Woods’ expense.

Sometime after the trial court rendered the injunction, the Woods made an attempt to place the property in compliance. In February, 1997, however, the town determined that the Woods had not done so and, relying on the self-help provision in the 1981 injunction, directed agents of the town to enter onto the Woods’ property to remove the accumulated waste and debris. The town incurred expenses of $13,671.05 in bringing the defendants’ property into compliance with the injunction and filed a motion for payment pursuant to the judgment. On March 13,1998, the trial court granted the town’s application for a prejudgment remedy of attachment of the defendants’ property.

As a threshold matter, we note the nature of the proceedings that were before the trial court. In response to the town’s application, the trial court conducted a hearing and concluded, inter alia, that the town had established that there was probable cause that it would prevail on the merits of the case. Accordingly, the trial court granted the town’s application. The defendants have appealed from the judgment granting of the application for attachment.

We emphasize that a hearing on an application for a prejudgment attachment is not a full-scale trial on the merits of a plaintiffs claim. Fischel v. TKPK, Ltd., 34 Conn. App. 22, 24, 640 A.2d 125 (1994). “In acting on a prejudgment remedy motion, the trial court must evaluate the arguments and evidence produced by both parties to determine whether there is probable cause to sustain the validity of the plaintiffs claim.” (Internal quotation marks omitted.) Tyler v. Schnabel, 34 Conn. App. 216, 219, 641 A.2d 388 (1994); see General Statutes § 52-278d (a).

“This court’s role in reviewing the trial court’s ruling on a prejudgment remedy is limited. It is not to duplicate the trial court’s weighing process, but rather to determine whether its conclusion was reasonable. In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses.” (Internal quotation marks omitted.) Tyler v. Schnabel, supra, 34 Conn. App. 220.

I

The defendants first claim that the trial court improperly granted the prejudgment attachment because the injunction did not authorize the town to enter and clear the property. This claim is without merit.

“The construction of a judgment is a question of law with the determinative factor being the intent of the court as gathered from all parts of the judgment.” Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 806, 695 A.2d 1010 (1997). “Effect must be given to that which is clearly implied as well as to that which is expressed. . . . [Wjhere the language is clear and unambiguous it becomes a question of law for the court.” (Citation omitted; internal quotation marks omitted.) Id., 807

The defendants claim that the trial court improperly found that the 1981 injunction authorized the plaintiff to enter upon the defendants’ land to clear the property. The stipulated judgment states that “there shall be no deposit, collection or storage of broken, used or discarded parts of windows and doors, scrap aluminum, glass, automobile or truck tires, unusable stoves, refrigerators or house furnishings, wrecked or broken down vehicles or parts thereof, demolition materials or other items of trash or debris.” The judgment states that if the Woods did not comply with its terms by May 1, 1982, the town could enter the property and perform such work as was necessary to bring the premises into compliance.

The record reflects that the trial court reasonably could have determined that the defendants never complied with the injunction and that the self help remedy available to the plaintiff remained in effect. The trial court heard testimony from the defendants regarding the level of compliance and testimony from the town indicating the amount of debris that the town removed from the property. We find that the trial court’s conclusion that the original injunction was never complied with was founded upon a reasonable basis and that the trial court acted well within its broad discretion in determining that a prejudgment remedy should be granted.

II

The defendants next claim that the trial court lacked subject matter jurisdiction to award the town a money judgment based on a motion for payment. This claim is without merit. Because this is an appeal from the granting of a prejudgment attachment, we consider this issue only insofar as it relates to the probability that a judgment will be rendered against the defendants in the underlying action.

The trial court, in the exercise of its equitable powers, has the authority to fashion whatever orders are required to protect the integrity of its original judgment. Hall v. Dichello Distributors, Inc., 14 Conn. App. 184, 192-93, 540 A.2d 704 (1988). In 1981, the trial court issued an injunction with a self-help provision for the town in the event that the defendants failed to comply with the order. We conclude that the trial court had jurisdiction to issue its order because the motion for payment is a foreseeable extension of that original injunction and that order did not operate to modify or to alter the terms of the original judgment. Because a permanent injunction does, in fact, require continuing jurisdiction, the trial court did not lack jurisdiction to enforce its prior judgment. Id., 193. The town’s motion for payment was properly before the court.

Ill

The defendants’ final claim is that the trial court lacked subject matter jurisdiction over the town’s application because the town did not comply with § 52-278b. General Statutes §§ 52-278a through 52-278g set forth the forms and procedure, including service on the defendant, for obtaining a prejudgment remedy prior to the commencement of suit.

The defendants’ argument fails, however, because General Statutes §§ 52-278h and 52-278m control applications for prejudgment remedies in a case, like the present, where the action has already been instituted. Section 52-278h provides for the appropriate modification of the statutory forms and § 52-278m eliminates the requirement of personal service on the defendant. “Because the defendant’s counsel had filed a general appearance in the action, personal service of the motion and its accompanying documents on the defendant was not necessary . . . .” Burnham v. Carr, 53 Conn. App. 425, 427-28, 730 A.2d 643 (1999); see also Brookfield v. Greenridge, 35 Conn. Sup. 49, 393 A.2d 1316 (1977) (phrase after institution of action sufficiently broad to include period when case on appeal after judgment in trial court).

The defendants claim further that the underlying injunction action is not pending and, therefore, the matter at issue in this case is a postjudgment remedy and not a prejudgment remedy. This claim has no merit. The case is still in court, and the town is seeking a determination of the amount that the defendants owe for property clearing. Until that determination is made, the town is entitled to a prejudgment attachment to secure any monetary order that may be rendered.

The judgment is affirmed.

In this opinion the other judges concurred.

       According to the transcript, the trial court questioned the lapse in time between the 1981 injunction and the 1997 cleanup. The transcript reveals that there were numerous attempts by the town to contact the defendants. In addition, town officials mailed numerous letters to the defendants requesting immediate “clean-up efforts.”

       General Statutes § 52-278b provides in relevant part: “Notwithstanding any provision of the general statutes to the contrary, no prejudgment remedy shall be available to a person in any action at law or equity (1) unless he has complied with the provisions of sections 52-278a to 52-278g, inclusive

       General Statutes § 52-278h provides: “The provisions of this chapter shall apply to any application for prejudgment remedy filed by the plaintiff at any time after the institution of the action, and the forms and procedures provided therein shall be adapted accordingly.”
      General Statutes § 52-278nt provides: “Whenever a prejudgment remedy is sought under the provisions of sections 52-278h or 52-278i against a party who has previously filed a general appearance in such action, personal service of any application or order upon such party shall not be required, unless ordered by the court, but any such application or order may be served in the same manner as any motion in such action.”