text:
    STATE OF CONNECTICUT v. HOWARD E. HOPKINS
    (AC 19884)
    Foti, Schaller and Dupont, Js.

      Argued January 25
    officially released April 10, 2001

      Vicki H. Hutchinson, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Patricia M. Froehlich, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant, Howard E. Hopkins, appeals from the judgment of conviction, rendered after a jury trial, of harassment in the second degree in violation of General Statutes § 53a-183 and threatening in violation of General Statutes § 53a-62. The defendant claims that (1) the evidence of threatening was insufficient to establish his guilt beyond a reasonable doubt, (2) the admission of certain letters he sent to the victim violated his first amendment rights, (3) § 53a-183 (a) (2) is unconstitutionally vague as applied to him, (4) the trial court abused its discretion in imposing a nonfinancial condition of the defendant’s pretrial release on bond and (5) a condition of his pretrial release on bond and of his probation impinges on his religious freedom. We affirm the judgment of the court.

The jury reasonably could have found the following facts. The victim and the defendant attended the Church of Jesus Christ of Latter-Day Saints in Newtown. In addition to being a member of the church, the victim also taught religious education there. The defendant’s son was a student in the victim’s class at the church. The victim and the defendant exchanged brief pleasantries when they passed one another. A few passing “hellos” was the extent of their contact until the events that are the subject of the criminal charges in this case took place.

Beginning in January, 1995, the defendant mailed the victim unwanted letters and other items. The defendant mailed at least twenty-one letters, varying in length and content, a scarf, a teddy bear and poems. The letters, amounting to no fewer than 139 pages, were replete with declarations of love, marriage proposals, hundreds of pleas for forgiveness, religious teachings, employment discussions and other topics.

The victim repeatedly expressed to the defendant that she wanted him to stop mailing her letters, and the defendant was well aware of her wishes. The victim complained to the church bishop several times after she received the initial letters. The defendant testified that the bishop had yelled at him after the victim had complained about the first letter. The third letter frightened the victim, and she spoke again to church officials. The bishop, the victim, two counselors and the defendant subsequently attended a meeting to address his behavior. According to the victim’s testimony, at that meeting she explained to the defendant in clear, simple language and in short sentences to avoid confusion or misunderstanding that she wanted no contact with him. She told him that she had no interest in him, that what he was doing was wrong, that his letters and actions offended her, and that he was to leave her alone. The defendant’s letters reveal that he also understood that his actions were offensive, unwelcome and blatantly inappropriate, that the victim had no interest in him, that he had received repeated warnings and that future contact with her could result in his excommunication from the church. The defendant remained undeterred and continued to send letters despite the victim’s unequivocal demands to leave her alone.

The victim received a letter dated July 9, 1998, that caused her to contact the police. In that letter, the defendant informed the victim that it was the fourth letter in twenty-three days since a church official had advised against further contact with her. The letter states: “When I spoke with [the church president], he counseled me that it would not be wise to contact you. His advice did not induce even a moment’s hesitation. This is my fourth letter in the twenty-three days since then.” The police advised the victim that they could arrest the defendant immediately or warn him that further contact would result in his arrest. The victim opted for the latter, and the police subsequently telephoned the defendant to warn him that his actions violated the law, and told him to cease sending letters.

Several weeks later, the victim received a five page, single-spaced typewritten letter from the defendant dated August 5, 1998. The defendant also enclosed a scarf on which he had silk screened one of his poems. The letter, unlike the previous twenty-two, bore an invented return address and the writing on the envelope did not resemble the defendant’s handwriting. The victim did not know that the defendant was the sender until she opened the letter because of the masked handwriting and fictitious return address. In that letter, the defendant referenced his encounter with the police. He wrote: “I got a call from an officer of the Danbury Police Department. ... He advised me against writing you any more letters, making any phone calls, or driving by your house. He told me that if you made another complaint, he would have no choice but to arrest me.” Later in that letter, the defendant explained that he dismissed the officer’s warning because he believed the officer was simply one of the victim’s friends and, therefore, not acting in an official capacity.

The August 5, 1998 letter provided the basis for the threatening charge. It states in relevant part: “ [Understand that I have been awake for a long time, and I am starting to suffer from it. Sadly, due to the extremity of the current situation, the intent of my method is to tear your heart out so you can take a look at it. I am sorrowful beyond words at this.”

The police arrested the defendant, and the state charged him with harassment in the second degree and threatening. On April 14, 1999, the jury returned a verdict of guilty on both charges. On July 15, 1999, the court sentenced him to a total effective sentence of fifteen months incarceration, execution suspended, three years probation and a $250 fine. This appeal followed. We will supply additional facts where the discussions warrant.

I

The defendant first claims that the state did not produce sufficient evidence to sustain a verdict of guilty beyond a reasonable doubt on the threatening charge. The defendant’s insufficiency of the evidence claim has two prongs. The first is that the evidence did not sufficiently establish that he threatened the victim, and the second is that the evidence did not sufficiently establish that he ever placed the victim in fear of imminent serious physical injury. We disagree.

Our standard of review is well settled. A defendant who asserts an insufficiency of the evidence claim bears an arduous burden. We first review the evidence in a light most favorable to sustaining the verdict and then must decide whether the jury reasonably could have concluded as it did. State v. Szymkiewicz, 237 Conn. 613, 622, 678 A.2d 473 (1996).

Pursuant to § 53a-62 (a), “ [a] person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury . . . .” The defendant claims that the evidence did not support the jury’s conclusion that he threatened the victim. The August 5, 1998 letter formed the basis for the threatening charge. The state relied principally on the following language from that letter: “the intent of my method is to tear your heart out.”

A

The defendant maintains that he intended the words only figuratively and not as a physical threat. He argues that his language is comparable to phrases such as “eat your heart out” or “tug at one’s heartstrings.” The defendant testified at trial that his intention was always “twofold, to obtain her forgiveness and to encourage her continuing relationship with the church.” The defendant’s argument as to the intent of his words was a question of fact uniquely for the jury to resolve. State v. Torwich, 38 Conn. App. 306, 314, 661 A.2d 113, cert, denied, 235 Conn. 905, 665 A.2d 906 (1995). “Intent may be, and usually is, inferred from conduct. . . . and whether such an inference should be drawn was properly a question for the jury to decide.” (Citations omitted; internal quotation marks omitted.) State v. Sober, 166 Conn. 81, 92-93, 347 A.2d 61 (1974).

The jury reasonably could have rejected the defendant’s proclamations as to his intent. The defendant sent the threatening letter immediately following a police warning not to contact the victim again. The defendant, for the first time, disguised his handwriting on the envelope. The defendant also falsified the return address for the first time. The letter reveals a sense of frustration that the victim had contacted the police. In the several months preceding the August 5, 1998 letter, the frequency of the letters and poems increased. Indeed, during the four months preceding the threatening letter, the defendant wrote letters and poems dated April 15, May 2, May 3, May 19, May 25, June 17, June 25, July 1, July 9 and August 5,1998. We cannot conclude that the evidence viewed in a light most favorable to sustaining the verdict indicates any infirmity in the jury’s conclusion. The jury had before it sufficient evidence to conclude that the words at issue revealed the defendant’s intent to threaten the victim and not merely to convey a figurative expression.

B

The defendant also claims that the evidence was insufficient to establish beyond a reasonable doubt the element of “fear of imminent serious physical injury.” He argues that the victim’s delay in both contacting and actually speaking with the police negates the possibility that she feared for her physical safety. We disagree.

As previously discussed, we evaluate the evidence and the reasonable inferences drawn therefrom in a light most favorable to sustaining the verdict. In so doing, we cannot say that the evidence left the jury unable to conclude reasonably that the victim feared for her safety. We note that the law does not equate imminent with immediate. A threat does not require “immediate menace of violence or acts showing a present ability and will to execute the threat. That would liken the threat to an assault, which is and always has been a separate offense under our statute and distinct from a threat. A threat imports the expectation of bodily harm, thereby inducing fear and apprehension in the person threatened. A threat, unlike an assault, is not limited by time or distance.” State v. Snead, 41 Conn. App. 584, 593, 677 A.2d 446 (1996). The state produced sufficient evidence from which the jury reasonably could have found that the victim interpreted the defendant’s letter as foretelling “probable evil to come.” Id., 594.

The victim testified at trial that reading the letter “scared [her] to death.” She feared that the defendant “would get pushed over the edge” and was afraid he was going to hurt her. On cross-examination, the victim testified further that on the basis of her training as a nurse and as an emergency medical technician, she knew “of the effects of sleep deprivation, and also [that the defendant was] very distressed in that letter, and in a previous letter he had already talked about [her] in the physical realm, and letters leading up to that talked about sexuality and it had all been progressive, just all leading up to him hurting [her].” In the context of determining whether the state has sufficiently established the element of “fear of imminent serious physical injury,” the fact finder can focus on the victim’s reasonable perception of the events. It is her fear to which the statute speaks. Here, the jury reasonably could have credited the victim’s testimony as to her fearful state.

Moreover, the victim’s decision to contact the police evinces a fear for her own safety. She testified at trial that she went to the police station on four consecutive days because the officer who had started the case was unavailable on several of her earlier visits. Under our deferential standard of review, it was reasonable for the jury to conclude in light of all the evidence that the defendant’s words placed or attempted to place the victim in fear of imminent, serious physical injury.

II

The defendant’s second claim is that the admission of his letters into evidence violated his first amendment rights as secured by the federal constitution. This claim must fail in light of State v. Murphy, 254 Conn. 561, 757 A.2d 1125 (2000), which our Supreme Court decided after the parties submitted their briefs in the present case.

In Murphy, the state charged the defendant with, inter aha, a violation of § 53a-183. At trial, the state introduced several letters into evidence to establish the defendant’s intent. Id., 569. “At no time did the prosecutor imply that the defendant should be convicted based upon the content of his communications; rather, the prosecutor argued only that those communications were evidence of the defendant’s intent to harass, annoy or alarm.” Id., 570.

On appeal, the defendant challenged his conviction under § 53a-183, contending “that his conviction was predicated upon the content of the letter that he sent to the victim rather than his conduct in using the mail to harass the victim.” Id., 567. Our Supreme Court rejected the argument and concluded that “the fact finder may consider the language used in the communication in determining whether the state has proven the elements of the offense, namely, that the defendant intended to harass, annoy or alarm, and that he did so in a manner likely to cause annoyance or alarm. . . . (‘[t]he First Amendment . . . does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent’). Indeed, the use of such evidence may be ‘indispensable to a proper determination of whether the statutory requirement of intent to harass ha[s] been proven.’ ” (Citations omitted.) Id., 569.

We discern no meaningful distinction between Murphy and the present case. As did the trial court in Murphy, the court here admitted the letters into evidence, but solely for the purpose of establishing intent. The court also immediately instructed the jury that it could consider the letters only for purposes of intent. Accordingly, we conclude that the admission of the letters did not violate the defendant’s constitutional right to free speech.

Ill

The defendant’s third claim is that § 53a-183 (a) (2) is unconstitutionally vague as applied to him. In his brief, the defendant contends that “[n] either the statutory language nor authoritative judicial gloss applied to [§ 53a-183 (a) (2)] gave [him] sufficient notice that mailing twenty letters to an individual over a period of thirty-three months (11/1/95 through 8/5/98), all sent by regular United States postal service in normal mailing envelopes devoid of any markings other than name and address of sender, and recipient and postage was illegal.” We disagree.

The defendant urges review of this unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The record is adequate for review, and the defendant alleges a violation of his due process right to fair warning. He therefore satisfies the reviewability requirements of Golding. The defendant fails, however, to establish that a constitutional violation clearly exists that deprived him of a fair trial.

The void for vagueness doctrine accords due process protection in that it requires statutes (1) to provide fair notice of the conduct governed by them and (2) to prescribe minimum guidelines to govern law enforcement. In re Shane P., 58 Conn. App. 244, 253, 754 A.2d 169 (2000). The defendant must demonstrate beyond a reasonable doubt that the statute, as applied to him, deprived him of adequate notice of what conduct the statute proscribed or that he fell victim to arbitrary and discriminatory enforcement. Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 322, 732 A.2d 144 (1999).

Section 53a-183 (a) provides in relevant part that “[a] person is guilty of harassment in the second degree when ... (2) with intent to harass, annoy or alarm another person, he communicates with a person by . . . mail ... in a manner likely to cause annoyance or alarm . . . .” This court has had the opportunity to examine the statutory language of § 53a-183 (a) (2). In State v. Snyder, 49 Conn. App. 617, 717 A.2d 240 (1998), we considered and rejected an unconstitutionally vague as applied claim similar to the defendant’s in the present case.

The defendant in Snyder caused several people to receive hundreds of unsolicited mailings, subscriptions and other packages. Id., 623. He appealed from his conviction under § 53a-183 (a) (2), arguing, inter alia, that the statute was unconstitutionally vague as applied to him. We disagreed because the evidence demonstrated that the defendant in Snyder intended to harass the victims by means of the mail, and the execution of his plan indicated that his sole purpose was to harass by ordering vendors to send multiple mailings to the victims. Id., 629. “We conclude that a person of ordinary intelligence would have fair warning that the outrageous conduct of sending unsolicited magazine subscriptions, videocassettes, audio discs, music cassettes, collector plates and cards, and seminar enrollments to victims through the mail in retaliation for perceived harassment would constitute a violation of the statute.” Id., 630. Moreover, in Snyder, we were unable to conceive of a plausible argument that the defendant “acted in reliance on the belief that his conduct was lawful or that a person of ordinary intelligence would have no reason to know that he was engaging in prohibited conduct. See State v. Payne, [240 Conn. 766, 779, 695 A.2d 525 (1997)]; State v. Cummings, [46 Conn. App. 661, 674, 701 A.2d 663, cert, denied, 243 Conn. 940, 702 A.2d 645 (1997)].” State v. Snyder, supra, 49 Conn. App. 630.

Similarly, in the present case, the defendant, as the contents of his letters evidence, knew that the victim neither welcomed nor solicited any contact with him. On more than one occasion, church officials intervened, and notified the defendant that the victim did not welcome his conduct and wanted him to stop. The defendant testified at trial that the police had warned him that his conduct was illegal. See State v. George, 37 Conn. App. 388,391,656 A.2d 232 (1995) (police warned defendant just prior to arrest that his conduct could lead to criminal consequences). In light of his own admissions in the letters, the advisements by church officials, the police warning and case law interpreting the statute, we cannot conclude that the defendant did not have fair warning that the statute proscribed his activity or that a person of ordinary intelligence would have no reason to suspect that his conduct was illegal. The defendant, therefore, has failed to show a clear constitutional violation and, consequently, his third claim fails.

IV

The defendant’s fourth claim is that the court, prior to trial, abused its discretion when it imposed a nonfinancial condition on his pretrial release on bond. He argues that the court did not have the authority to impose a nonfinancial condition under Practice Book § 38-4, which governs the terms and conditions that the court may impose when setting bail or bond. The state counters that the impossibility of reinstating the defendant’s pretrial release, either with or without the challenged condition, negates the existence of a controversy, thus rendering the claim moot.

The following additional facts are necessary to place the claim in proper context. At the August 14, 1998 arraignment hearing, the court set bond in the amount of $5000. The defendant posted a surety bond, which allowed for his release. On October 30, 1998, the court denied the defendant’s request for accelerated rehabilitation; see General Statutes § 54-56e; and modified the conditions of his pretrial release on bond to include a prohibition from attending the same parish of the church that the victim attended. The defendant never objected to the condition, nor did he seek appellate review of the condition of release.

In his brief, the defendant “acknowledges that the issue is moot at this point, but seeks a ruling for future cases.” We decline his invitation to engage in a purely gratuitous exercise. It is beyond question that we are without jurisdiction to issue advisory opinions and to “decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Internal quotation marks omitted.) Rivera v. Commissioner of Correction, 254 Conn. 214,225, 756 A.2d 1264 (2000); Hechtman v. Savitsky, 62 Conn. App. 654, 657, 772 A.2d 673 (2001).

General Statutes § 54-63g allows defendants to seek immediate review of an allegedly unauthorized condition of pretrial release. The defendant did not avail himself of that statutory light. The parties have tried the case, a jury has convicted the defendant and a court has sentenced him. We cannot, therefore, afford the defendant any practical relief on a claim concerning conditions of pretrial release. Moreover, as conceded by the defendant’s counsel during oral argument, a decision by this court would effect no collateral consequences. See Hechtman v. Savitsky, supra, 62 Conn. App. 657-60. As such, the claim is moot and we do not have jurisdiction to afford review.

V

The defendant’s final claim is that the court violated his first amendment right of religious freedom when it barred him from attending the same parish of the church that the victim attended as a condition of both his pretrial release on bond and his probation. The state responds that issue of the constitutionality of a pretrial condition is moot. The state also argues that the defendant inadequately briefed the issue of whether the condition of postconviction probation is constitutional. We agree with the state.

A

Again, in his brief, the defendant states that he “understands that at this point the issue as to the ban imposed as a condition of pretrial bond may be moot, but seeks a ruling from the court nevertheless to establish a standard for future cases.” The constitutionality of the prohibition as a condition of pretrial release on bond is moot for the same reasons set forth in part IV. We have no jurisdiction to decide the issue.

B

The defendant also argues that the postconviction condition of probation violates his right of religious freedom. He appears to argue that the free exercise clause of the first amendment guarantees the broad right to attend specific services at a specific parish of a specific church of one’s own choice.

The defendant did not object to the condition at the time the court imposed it. Indeed, he agreed to the terms of probation, which included the prohibition from attending the same church that the victim attended. In his brief to this court, the defendant fails to indicate the type of review he seeks of this unpreserved claim. The law restricts our review of unpreserved claims to extraordinary circumstances such as review pursuant to the constitutional bypass doctrine of Evans-Golding; see State v. Golding, supra, 213 Conn. 239-40; State v. Evans, 165 Conn. 61, 70,327 A.2d 576 (1973); plain error review; see Practice Book § 60-5; or review pursuant to our general supervisory powers. See Practice Book § 60-2. The defendant fails to indicate why he has not waived any constitutional entitlement he might have had to such a broad right as he now asserts or specifically why the condition is unconstitutional. We decline to review his claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state introduced only twenty-one of twenty-three letters into evidence because the first two letters did not form a basis for either the threatening charge or the harassment charge.

       In the August 5, 1998 letter, the defendant also wrote: “I was frankly shocked at the simplistic approach you took to resolve the issue(s) you perceive. . . . [A]fter receiving four letters from me in little over three weeks, why did you wait three weeks to do something about it? . . . [W]hat happened? What have I now done? . . . [I]n your consideration, is my letter-writing the sum total of the problem? Does your problem go away if I don’t write? Are things really that simple from your aspect? Why did you wait three weeks? Did you carefully ponder your response for that long, or was it indeed a reaction to a more immediate circumstance? Just what do you make of my letters?”

       We do note that the defendant in Murphy did not object to the admission of the letters, unlike the defendant in the present case. That the defendant in the present case preserved the claim, however, does not affect our conclusion.

       The defendant’s counsel objected to the admission of the letters. Outside the presence of the jury, each side offered argument as to the admissibility of the letters. Following the arguments, the court stated: “I’m satisfied [they are] admissible, and [they are] relevant [and material] on the question of intent. The jury will be told [that it] can consider [them] on the issue of intent only.”

       After the court overruled the objection to the admissibility of the letters, the jury returned and the court informed it that the letters were “admissible ... on the question of what the [defendant’s] intent was — nothing else. ... So, when you are using [them], you’re using [them] to determine what his intent may have been or may not have been from the content of the documents], and that’s the only way you can use [those] documents].”

       In its brief, the state argues that we should decline to review this claim because the defendant “has not applied the relevant case law to the virtually undisputed facts of his case.” The defendant has, however, referred us to some authority for his arguments. We therefore review the claim.

       In his brief, the defendant, also argues that the statute does not give nolice as to what manner of mailing would cause annoyance or harm, and, for that reason, it is unconstitutionally vague as applied to him. That argument speaks, however, more to a facial challenge than to an “as applied” challenge. We previously have found that § 53a-183 (a) (2) survives a facial challenge. State v. Snyder, 40 Conn. App. 544, 551, 672 A.2d 535 (“[w]e conclude that [the language of § 53a-183 (a) (2)] is not ambiguous”), cert, denied, 237 Conn. 921, 676 A.2d 1375 (1996), on appeal after remand, 49 Conn. App. 617, 717 A.2d 240 (1998).

       Pursuant to Golding, an appellate court may review an unpreserved claim so long as the record is adequate for review and the claim is of constitutional magnitude. States. Golding, supra, 213 Conn. 239-40. A defendant who satisfies the first two prongs is then entitled to have this court reach the merits of the claim. The defendant must show that the constitutional violation clearly exists, which violation clearly deprived the defendant of a fair trial and, if the claim is subject to harmless error analysis, that the state has failed to establish harmlessness beyond a reasonable doubt. Id., 240.

       Practice Book § 3M provides in relevant part: “(a) Except as provided in subsection (b), when any defendant is presented before a judicial authority, such authority shall, in bailable offenses, promptly order the release of such person upon the first of the following conditions of release found sufficient reasonably to assure the person’s appearance in court . . .

        “(2) The defendant’s execution of a written promise to appear with nonfinancial conditions ....
      “(c) When any defendant charged with the commission of [certain class A, B, C and D felonies] is presented before a judicial authority, such authority shall, in bailable offenses, promptly order the release of such person upon the first of the following conditions of release found sufficient reasonably to assure his or her appearance in court and that the safety of any other person will not be endangered . . .
      “(2) The defendant’s execution of a written promise to appear with nonfinancial conditions ....
      “(e) If the judicial authority determines that a nonfinancial condition of release should be imposed pursuant to subsections (a) (2) or (c) (2) of this section, the judicial authority shall order the pretrial release of the defendant subject to the least restrictive condition or combination of conditions that the judicial authority determines will reasonably assure the appearance of the defendant in court and, with respect to the release of the defendant pursuant to subsection (c) of this section, that the safety of any other person will not be endangered . . . .”

       The state argues, alternatively, that even if the claim is not moot, we should not review it because the defendant did not preserve it at trial, and he failed to claim entitlement to its review pursuant to either State v. Golding, supra, 213 Conn. 239-40, or the plain error doctrine. See Practice Book § 60-5. The state also asserts that the defendant consented to the condition, thus waiving the claim. We do not address those arguments in light of our conclusion that the claim is moot.

       General Statutes § 54-63g provides: “Any accused person or the state, aggrieved by an order of the Superior Court concerning release, may petition the Appellate Court for review of such order. Any such petition shall have precedence over any other matter before said Appellate Court and any hearing shall be heard expeditiously with reasonable notice.”

       The first amendment to the United States constitution provides in relevant part: “Congress shall malte no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”

       The state argued, alternatively, that the condition is constitutional because it is part of a comprehensive “no contact with the victim” order. It also argued that the defendant acquiesced to the condition. In light of our conclusion that the defendant inadequately briefed the issue, we do not address its constitutionality or the defendant’s alleged waiver.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    IN RE CARLOS Q.

    (AC 20497)
    Laveiy, C. X, and Dranginis and Peters, Js.

      Argued November 28, 2000
    officially released April 10, 2001

      Grace Cavero Feliu, supervisory assistant public defender, for the appellant (respondent).

      Michael Besso, 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 parlies 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

PETERS, J.

This case concerns the validity of an extension of the period of a juvenile’s commitment to the commissioner of children and families (commissioner). The dispositive issue is whether the commissioner may obtain such an extension if the commissioner fails to act within the time constraints established by and incorporated in General Statutes § 17a-10 (d). Contrary to the view of the trial court, we conclude that the statutory limitation is mandatory and reverse the judgment of the trial court.

As a matter of procedure, on January 14, 2000, nine days before the juvenile’s commitment was set to expire, the commissioner filed a petition for its extension pursuant to General Statutes § 46b-141 (b). The respondent (juvenile) filed a motion to dismiss the petition on the ground that it was untimely in light of § 17a-10 (d). The court, however, denied the motion to dismiss and thereupon rendered a judgment granting the commissioner the extension that she sought. The juvenile has appealed.

As a matter of substance, the undisputed facts demonstrate the following. On July 23, 1998, the juvenile was convicted as a delinquent following his plea of guilty for violating General Statutes (Rev. to 1997) § 53a-70. In that proceeding, the juvenile admitted to having sexually assaulted his younger sister on three separate occasions within a two year span. Following the juvenile’s conviction, the court committed the juvenile to the custody of the department of children and families (department) for a period not to exceed eighteen months. That commitment was set to expire on January 23,2000. Only nine days prior to the expiration date, the commissioner filed a petition to extend the juvenile’s commitment. Neither the juvenile nor his counsel was immediately notified of the pendency of the petition.

The juvenile has raised two issues on appeal. On statutory grounds, he argues that the court improperly granted a belated extension petition. This claim focuses on the time limits for such a petition that are set out in § 17a-10 (d). On constitutional grounds, he argues that the judgment violated his due process rights to a fair hearing because he did not have sufficient notice to enable him to prepare for that hearing. Both issues were adequately raised at trial.

The law is well settled that the issues raised by the juvenile “are entitled to plenary appellate review because the court’s judgment was based entirely on the legal inferences to be drawn from presently uncontested facts.” Connecticut Post Ltd. Partnership v. South Central Connecticut Regional Council of Governments, 60 Conn. App. 21, 25, 758 A.2d 408, cert, granted on other grounds, 255 Conn. 903, 762 A.2d 907 (2000), citing SLI International Corp. v. Crystal, 236 Conn. 156, 163, 671 A.2d 813 (1996).

It is common ground between the parties that the proper construction of § 17a-10 (d) is the dispositive issue in this case. The juvenile claims that, in light of that statute, the court lacked the statutory authority to extend his commitment because the commissioner’s petition for such an extension was filed too late. He argues that § 17a-10 (d) requires the commissioner to petition the court for an extension of commitment “[n]ot more than sixty days nor less than thirty days prior to the expiration of the original commitment of [the] child . . . .” Although the statute states that “the commissioner may petition the court for an extension of commitment”; (emphasis added) id.; in the juvenile’s view “may” does not make the filing period permissive. The commissioner, on the other hand, urges us to construe “may” literally and permissively.

We approach the task of statutory construction from two related points of view. First, we seek to determine, in a reasoned manner, “the meaning of the statutory language as applied to the facts of this case .... In seeking to determine that meaning, 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.) Driscoll v. General Nutrition Corp., 252 Conn. 215, 221, 752 A.2d 1069 (2000). Second, if possible, we construe a statute so as to avoid placing it in constitutional jeopardy. State v. Metz, 230 Conn. 400, 422-23, 645 A.2d 965 (1994); Sassone v. Lepore, 226 Conn. 773, 785, 629 A.2d 357 (1993); see Kron v. Thelen, 178 Conn. 189, 197, 423 A.2d 857 (1979).

The juvenile argues that we should interpret the statute to mean that the commissioner may, in her discretion, petition the court for an extension of commitment, but that any such petition must be filed “[n]ot more than sixty days nor less than thirty days prior to the expiration of the original commitment of any child to the department . . . .” General Statutes § 17a-10 (d). If the court agrees, he argues, the department must release him from its custody on the date on which his commitment expires. According to the juvenile, the commissioner’s filing violated § 17a-10 (d) because the commissioner filed the petition a mere nine days before his commitment was set to expire. That limited time period did not, he claims, afford him the right to the proper notice as specified in § 46b-141 (b), which § 17a-10 (d) expressly incorporates. See footnote 1.

The commissioner argues to the contrary. She rests most of her argument on the use of the word “mai/” in § 17a-10 (d). In her view, that language permits an extension petition to be filed at any time before the expiration of a child’s commitment, even the day before. Although she does not deny that an expedited hearing may put a juvenile at a disadvantage, she maintains that she needs the flexibility that is implied in the use of “may” in order properly to supervise conditions in a juvenile’s life that suddenly may change, such as the unavailability of the person to whom the juvenile was expected to go after his release from commitment. In support of apermissive construction of “may,” the commissioner cites In re Adrien C., 9 Conn. App. 506, 512, 519 A.2d 1241, cert, denied, 203 Conn. 802, 522 A.2d 292 (1987), in which this court held a “shall” provision to be permissive.

We agree with the commissioner that, as a general rule, the use of “may” in § 17a-10 (d) presumptively should be construed to be directory rather than mandatory. See, e.g., Office of Consumer Counsel v. Dept. of Public Utility Control, 252 Conn. 115, 122, 742 A.2d 1257 (2000). The general rule is, however, subject to override if “the context in which it is employed requires otherwise . . . .” (Internal quotation marks omitted.) Id.

In this case, the relevant context is that § 17a-10 (d) not only describes a time period for filing a petition for extension of commitment, but also incorporates a mandatoiy provision for timely notice to the juvenile whose status is at issue. See footnotes 1 and 2. The notice provision in § 46b-141 (b), which is incorporated in § 17a-10 (d) and uses the word “shall,” obligates the court to give notice to the parent and the juvenile “at least fourteen days prior to the hearing” to determine whether there is a basis for extending the juvenile’s commitment. See footnote 2.

The record unequivocally establishes that the notice provision was ignored in this case. The petition was filed on January 14, 2000, and was heard and granted on January 21, 2000. The commissioner’s request for a prompt hearing was undoubtedly motivated by the expiration of the juvenile’s commitment on January 23, 2000. The commissioner has not explained, however, how her belated filing to beat the clock justifies depriving the juvenile of a mandatory statutory right to notice.

On this record, we conclude that the juvenile’s construction of the statute is proper. It is familiar learning that we construe a statute as a whole, seeking to give effect to all of its text. Hall Manor Owner’s Assn. v. West Haven, 212 Conn. 147, 154, 561 A.2d 1373 (1989). The appropriate way to reconcile all the parts of § 17a-10 (d) is to construe its permissive language to refer to the discretionary power to decide whether to seek an extension of commitment. The remainder of the section, in view of its incorporation of § 46b-141, imposes mandatory time constraints with respect to the filing of such an extension and to the notice to be provided to and for the benefit of the juvenile. We are not persuaded that the legislature intended to make a nullity of its carefully crafted notice requirement.

Our reading of § 17a-10 (d) is reinforced by principles of constitutional prudence. We “are guided by the principle that we should seek to construe [a] statute so as not to place it in constitutional jeopardy.” State v. Metz, supra, 230 Conn. 422-23. In the present case, if we were to accept the commissioner’s argument and deprive the juvenile of a timely opportunity to challenge the commissioner’s petition, we would be overlooking the constitutional principle that the absence of timely notice violates a juvenile’s due process rights to a fair hearing. See Ledgebrook Condominium Assn., Inc. v. Lusk Corp., 172 Conn. 577, 583, 376 A.2d 60 (1977); see. also Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965).

Our Supreme Court has “held that it is a principle of natural justice of universal obligation, that before the rights of an individual be bound by a judicial sentence he shall have notice ... of the proceedings against him. . . . Fundamental tenets of due process, moreover, require that all persons directly concerned in the result of an adjudication be given reasonable notice and the opportunity to present their claims or defenses.” (Citations omitted; internal quotation marks omitted.) Kron v. Thelen, supra, 178 Conn. 193. Kronis especially instructive because, in that case, our Supreme Court held that principles of due process required that a mandatory notice requirement be read into a statute that, on its face, contained no reference whatsoever to timely notice.

We recognize that the commissioner argues that this court should follow the analysis set forth in In re Adrien C., supra, 9 Conn. App. 512, to conclude that the “may” provision of § 17a-10 (d) is directory. In In re Adrien C., the statute in question, General Statutes (Rev. to 1983) § 46b-129 (e) provided in relevant part: “Ninety days before the expiration of each eighteen-month commitment made in accordance with the provisions of subsection (d) of this section . . . the commissioner . . . shall petition the court either to (1) revoke such commitment ... (2) terminate parental rights . . . or (3) extend the commitment . . . .” (Emphasis added.)

In that case, this court concluded that the ninety day prescription established in § 46b-129 (e) was directory rather than mandatory. It stated the following: “The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. . . . If it is a matter of substance, the statutory provision is mandatory. ... If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.” (Citations omitted; internal quotation marks omitted.) In re Adrien C., supra, 9 Conn. App. 510. The commissioner in the present case claims that the “may” provision in § 17a-10 (d) is designed to secure order, system and dispatch, and, therefore, it is directory.

We conclude that In re Adrien C. is not persuasive under these circumstances because, in undertaking its analysis in that decision, this court did not consider the due process implications. Perhaps no such argument was made at that time, but the juvenile has raised it squarely in this case. We cannot ignore it.

We conclude, therefore, that it is proper to construe § 17a-10 (d) to make time constraints mandatory, in light of its incorporation of § 46b-141, to avoid confronting a constitutional challenge to the validity of § 17a-10 (d). A statute that expressly requires due notice to be given comports with the constitutional requirements of due process. We are persuaded that the legislature did not intend to subordinate such a statutory notice requirement to a discretionary time within which the commissioner must act to extend a juvenile’s commitment.

In sum, we conclude that the petition filed by the commissioner was not timely under § 17a-10 (d) and that the hearing requested by the commissioner was flawed because of the failure to comply with the notice requirement incoiporated in § 17a-10 (d). The juvenile’s motion to dismiss should have been granted.

The judgment is reversed and the case is remanded with direction to render judgment dismissing the petition and ordering the juvenile’s release.

In this opinion the other judges concurred.

       General Statutes § 17a-10 (d) provides: “If the Superior Court requests a report on any committed child, the commissioner shall be responsible for preparing and transmitting such report to the requesting court. Not more than sixty days nor less than thirty days prior to the expiration of the original commitment of any child to the department, the commissioner may petition the court for an extension of commitment pursuant to the provisions of section 46b-141. If the commissioner, or the board of review pursuant to the provisions of section 17a-15, at any time during the commitment of any child, determines that termination of commitment of a child is in the best interest of such child, the commissioner or the board may terminate the commitment and such termination shall be effective without further action by the court.”

       General Statutes § 46b-141 (b) provides: “The Commissioner of Children and Families may petition the court for an extension of the commitment as provided in subdivision (1) of subsection (a) beyond the eighteen-month period on the grounds that such extension is for the best interest of the child or the community. The court shall give notice to the parent or guardian and to the child at least fourteen days prior to the hearing upon such petition. The court may, after hearing and upon finding that such extension is in the best interest of the child or the community, continue the commitment for an additional period of not more than eighteen months.”

       General Statutes (Rev. to 1997) § 53a-70 (a) provides: “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 person or a third person, or (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person, or (3) commits sexual assault in the second degree as provided in section 53a-71 and in the commission of such offense is aided by two or more other persons actually present.”

       At the time of the first incident, the juvenile was eleven years old and his sister was eight and one-half.

       The court directed the department to place the juvenile in a residential facility known as Brightside School.

       The original petition had a hearing date of January 24,2000. The commitment expired on January 23, 2000, a Sunday. An amended petition was filed on January 20, 2000, with an amended hearing date of January 21, 2000.

       The juvenile acknowledges that it is within the commissioner’s discretion to decide whether to petition for an extension of commitment.

       We have never assigned dispositive significance to statutory use of “may” or “shall.” See Alexander v. Retirement Board, 57 Conn. App. 751, 764-65, 750 A.2d 1139, cert, denied, 254 Conn. 902, 755 A.2d 217 (2000), citing Capobinco v. Samorak, 102 Conn. 310, 313, 128 A. 648 (1925).

       We need not decide whether a failure to file a petition within the window of opportunity defined by the statute could be cured by postponing a hearing so as to give timely notice and a reasonable opportunity to be heard. In this case, such a postponement was not feasible because the juvenile’s commitment was scheduled to terminate on January 23, 2000.


author: PELLEGRINO, J.

text:
    EDGAR SIMARD v. COMMISSIONER OF MOTOR VEHICLES
    (AC 19765)
    Lavery, C. J., and Landau and Pellegrino, Js.

      Submitted on briefs October 18, 2000
    officially released April 10, 2001

      Jeffrey D. Brownsiein and Gregory A. Thompson filed a brief for the appellant (plaintiff).

      Richard Blumenihal, attorney general, and Alan N. Ponanski, assistant attorney general, filed a brief for the appellee (defendant).
   Opinion

PELLEGRINO, J.

The plaintiff, Edgar Simard, appeals from the judgment of the trial court dismissing his appeal from the decision of the defendant commissioner of motor vehicles (commissioner) suspending his motor vehicle operator’s license pursuant to General Statutes (Rev. to 1997) § 14-227b. On appeal, the plaintiff claims that the court improperly dismissed his appeal because the record lacked substantial evidence sufficient to permit the hearing officer to suspend his motor vehicle operator’s license. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. On November 30, 1998, the plaintiff, while operating a motor vehicle, was stopped by a Plainville police officer after the vehicle was observed traveling erratically. The officer detected the odor of alcohol emanating from within the vehicle and about the plaintiffs person. The plaintiff was slow to react to the officer’s questions, had glassy eyes and could not remember the alphabet. Furthermore, the plaintiff admitted to having consumed “three to four drinks” that evening. Thereafter, the officer requested the plaintiff to perform three standard field sobriety tests. The plaintiff failed all three tests and subsequently was charged with operating a motor vehicle while under the influence of liquor in violation of General Statutes (Rev. to 1997) § 14-227a. The plaintiff then was transported to the Plainville police department, where he agreed to perform two breath tests. The first test indicated a blood alcohol content (BAC) of 0.126 percent, and the second resulted in a BAC reading of 0.114 percent; both tests registered a BAC in access of the 0.10 percent legal limit established pursuant to § 14-227a.

A written report of the arrest and test failure was forwarded to the department of motor vehicles pursuant to § 14-227b (c). The plaintiff then was notified of the suspension of his motor vehicle operator’s license for a period of one year. The plaintiff requested an administrative hearing which was held on December 22,1998. The plaintiff presented evidence from James E. O’Brien, a toxicologist, who testified that the plaintiffs BAC reading may have been falsely elevated because of alcohol trapped under the plaintiffs dental plate. The plaintiff also presented a letter from Brian E. Pape, a toxicologist, which stated his opinion that the plaintiffs BAC was likely below 0.10 percent at the time he operated the motor vehicle. Upon review of the evidence brought before him, the hearing officer issued a decision upholding the defendant’s suspension of the plaintiffs motor vehicle operator’s license. Thereafter, pursuant to the provisions of the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., the plaintiff appealed to the court, which dismissed the appeal. This appeal followed.

“[J]udicial review of the commissioner’s action is governed by the Uniform Administrative Procedure Act . . . and the scope of that review is very restricted.” (Internal quotation marks omitted.) Bancroft v. Commissioner of Motor Vehicles, 48 Conn. App. 391, 399, 710 A.2d 807, cert, denied, 245 Conn. 917, 717 A.2d 234 (1998). “The substantial evidence rule governs judicial review of administrative [fact-finding] under General Statutes [§ 4-183 (j)]. ... An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . Such a standard of review allows less room for judicial scrutiny than does the weight of the evidence rule or the clearly erroneous rule. . . . Basically, an agency is not required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair.” (Citations omitted; internal quotation marks omitted.) Id., 400.

“[W]e must decide, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily or illegally, or abused its discretion.” (Internal quotation marks omitted.) Id., 401, quoting Stamford v. Freedom of Information Commission, 241 Conn. 310, 314, 696 A.2d 321 (1997); Burinskas v. Dept. of Social Services, 240 Conn. 141, 147, 691 A. 2d 586 (1997).

On appeal, the plaintiff claims that the court improperly dismissed his appeal because there was not substantial evidence to suspend his motor vehicle operator’s license. The plaintiff specifically argues that absent evidence to rebut his proffered expert opinion evidence, the hearing officer was required to accept his experts’ opinions that the plaintiffs BAC was less than 0.10 percent at the time of operation. The plaintiff further claims that once the presumption found in § 14-227b (f), now (g), is rebutted, then the burden shifts to the commissioner to prove that the plaintiffs BAC was over the legal limit. In response, the commissioner argues that the hearing officer was not required to accept the testimony of the plaintiffs expert and properly relied on the statutory presumption that the results of a chemical alcohol test or analysis are sufficient to indicate a person’s BAC at the time of the operation of a motor vehicle. This court examined those same issues in Dumont v. Commissioner of Motor Vehicles, 48 Conn. App. 635, 712 A.2d 427, cert, denied, 245 Conn. 917, 717 A.2d 234 (1998), Settani v. Commissioner of Motor Vehicles, 48 Conn. App. 418, 421, 710 A.2d 816, cert, denied, 245 Conn. 916, 719 A.2d 1166, 1167 (1998), and Bancroft v. Commissioner of Motor Vehicles, supra, 48 Conn. App. 391. Considering the holdings of those cases, we agree with the defendant and affirm the judgment of the trial court.

I

The plaintiffs first claim is that the hearing officer improperly rejected uncontradicted evidence from two experts, O’Brien and Pape, that the plaintiffs BAC was less than 0.10 percent at the time of the operation of the vehicle. We disagree.

It is clear that “[t]he hearing officer is not required to believe unrebutted expert testimony, but may believe all, part or none of such unrebutted expert evidence.” (Internal quotation marks omitted.) Dumont v. Commissioner of Motor Vehicles, supra, 48 Conn. App. 641; Bancroft v. Commissioner of Motor Vehicles, supra, 48 Conn. App. 405. “In determining whether an administrative finding is supported by substantial evidence, a court must defer to the [commissioner’s] . . . right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part.” (Internal quotation marks omitted.) Bancroft v. Commission of Motor Vehicles, supra, 405-406; quoting Pickles v. Goldberg, 38 Conn. App. 322, 325, 660 A.2d 374 (1995); see also Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217, 554 A.2d 292 (1989). “Despite the defendant’s contention to the contrary, the trial court is not required to accept uncontradicted expert testimony. The court might reject it entirely as not worthy of belief or find that the [expert] opinion was based on subordinate facts that were not proven.” (Internal quotation marks omitted.) Bancroft v. Commissioner of Motor Vehicles, supra, 405, quoting State v. Blades, 225 Conn. 609, 629, 626 A.2d 273 (1993). As in Bancroft, the plaintiff in the present case has failed to demonstrate that the hearing officer disregarded the expert evidence presented. “We are entitled to presume that the hearing officer considered all the evidence before him in arriving at his decision . . . .” Bancroft v. Commissioner of Motor Vehicles, supra, 404.

In the present case, the record before the hearing officer included evidence of the plaintiffs intoxication at the time of operation. The plaintiff failed three field sobriety tests, was slow to react to the arresting officer’s questions and admitted to having consumed three to four alcoholic beverages before operating his motor vehicle that evening. Therefore, because the hearing officer was not required to accept the unrebutted expert evidence and because there was sufficient evidence independent of the expert testimony to establish the plaintiffs intoxication during the time he operated the vehicle, we cannot conclude that the hearing officer acted unreasonably, arbitrarily, illegally or in abuse of his discretion in suspending the plaintiffs motor vehicle operator’s license.

II

The plaintiff also claims that he successfully rebutted the statutory presumption of intoxication when he presented expert evidence. We disagree.

It is clear that § 14-227b (f), now (g), “creates a rebut-table, as opposed to a conclusive, presumption.” Dumont v. Commissioner of Motor Vehicles, supra, 48 Conn. App. 644. We stated in Bancroft, and again in Dumont, that “the statutory presumption is sufficient to withstand expert evidence to the contrary and support a conviction without further evidence, if the [trier of fact] disbelieves the contrary evidence. . . . [T]his principle applie[s] equally to an administrative hearing under § 14-227b, [where a] hearing officer may rely on the presumption created by the statute if he or she disbelieves expert evidence to the contrary. Additional expert evidence to rebut the plaintiffs evidence is not required in such a case.” (Internal quotation marks omitted.) Id., 641; Bancroft v. Commissioner of Motor Vehicles, supra, 48 Conn. App. 407. Therefore, considering the limited scope of our review, we cannot conclude that the hearing officer improperly relied on the statutory presumption in suspending the plaintiffs motor vehicle operator’s license.

We conclude that the administrative record contains substantial evidence to support the commissioner’s suspension of the plaintiffs motor vehicle operator’s license. Accordingly, the court properly dismissed the plaintiffs appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The three field sobriety tests were the horizontal gaze nystagmus, the walk and turn, and the one leg stand.

       General Statutes (Rev. to 1997) § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor . . . . A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor ... if he operates a motor vehicle ... (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       General Statutes (Rev. to 1997) § 14-227b (c) provides in relevant part: “If the person arrested . . . submits to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicate that the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight, the police officer, acting on behalf of the Commissioner of Motor Vehicles, shall immediately revoke and take possession of the motor vehicle operator’s license .... The police officer shall prepare a written report of the incident and shall mail the report together with . . . any operator’s license taken into possession and a copy of the results of any chemical test or analysis to the Department of Motor Vehicles within three business days. . . .”

       General Statutes § 4-183 Q) provides: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment.”

       General Statutes (Rev. to 1997) § 14-227b (f), now (g), provides in relevant part: “In the hearing, the results of the test or analysis shall be sufficient to indicate the ratio of alcohol in the blood of such person at the time of operation, except that if the results of the additional test indicate that the ratio of alcohol in the blood of such person is twelve-hundredths of one per cent or less of alcohol, by weight, and is higher than the results of the first test, evidence shall be presented that demonstrates that the test results and analysis thereof accurately indicate the blood alcohol content at the time of operation. ...”


text:
    STATE OF CONNECTICUT v. DARRYL BELTON
    (AC 20656)
    Foti, Landau and Pellegrino, Js.
    Argued November 2, 2000
    officially released April 10, 2001

      Thomas M. Conroy, for the appellant (defendant).

      Robin S. Schwartz, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio N. Vitale, senior assistant state’s attorney, for the appellee (state).
   Opinion

PELLEGRINO, J.

The defendant, Darryl Belton, appeals from the judgment of conviction rendered after his guilty plea under the Alford doctrine to robbery in the first degree in violation of General Statutes § 53a-134 and carrying a pistol without a permit in violation of General Statutes § 29-35. The defendant claims that the trial court improperly denied him an evidentiary hearing in support of his motion to withdraw his guilty plea. We disagree and affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. On November 8, 1999, during jury selection, the defendant pleaded guilty to the robbery and weapon charges in exchange for a sentence of ten years incarceration concurrent to other state and federal sentences previously imposed. The defendant was represented by counsel and, during the court’s canvass, responded affirmatively when asked whether he was under the influence of medication. The court inquired as to the type, but the defendant could not identify the medication. The defendant, however, stated that he did understand “somewhat” that he was pleading guilty to the charged offenses. After being questioned by the court, his attorney indicated that the defendant was “clearheaded” enough to understand what he was doing and that he understood that he was changing his plea after having rejected an earlier plea offer from the state. Thereafter, when asked by the court whether he understood what he was doing, the defendant replied that he understood that he was pleading guilty. In addition, the defendant acknowledged that he had not been coerced into changing his plea and that he had had an opportunity to discuss the plea agreement with his counsel. The court then accepted his plea. Thereafter, the defendant waived his right to have a presentence investigation report made and asked that he be sentenced in three weeks.

On December 3, 1999, the defendant appeared with his counsel at the sentencing hearing and moved to withdraw his plea, claiming that the effects of the medication had prevented him from understanding what he had done at the time he entered his Alford plea. The court then appointed a new attorney and continued the matter to a future date. On January 14, 2000, the defendant’s new counsel appeared and asked for an evidentiary hearing in connection with the defendant’s motion to withdraw his plea. No new information was presented to the court regarding the medication or its alleged influence on the defendant at the time the plea was accepted. The request for an evidentiary hearing was denied, and the defendant was sentenced in accordance with his plea agreement. This appeal followed.

On appeal, the defendant argues that once he made the claim that he was incompetent at the time he entered his plea, he was, a fortiori, entitled to an evidentiary hearing in connection with his claim. We disagree.

“The decision to grant [an evidentiary] hearing [into a defendant’s competence] requires the exercise of sound judicial discretion.” State v. Lloyd, 199 Conn. 359, 366, 507 A.2d 992 (1986); see also State v. Wolff 237 Conn. 633, 664, 678 A.2d 1369 (1996). “[U]nless otherwise required by statute, a rule of practice or a rule of evidence, whether to conduct an evidentiary hearing generally is a matter that rests within the sound discretion of the trial court.” State v. Nguyen, 253 Conn. 639, 653, 756 A.2d 833 (2000), citing State v. Wolff, supra, 664. “On appeal, every reasonable presumption in favor of the trial court’s discretionary ruling will be made.” (Internal quotation marks omitted.) State v. Nguyen, supra, 654; State v. McKnight, 191 Conn. 564, 577, 469 A.2d 397 (1983).

In State v. Lloyd, supra, 199 Conn. 366-68, our Supreme Court held that the trial court properly denied the defendant’s motion to withdraw his plea without holding an evidentiary hearing because his bare assertion that he was incompetent at the time he entered his plea, as a result of previously ingesting narcotics, was insufficient to establish the need for such a hearing. The court stated that when “considering whether to hold an evidentiary hearing on a motion to withdraw a guilty plea the court may disregard any allegations of fact, whether contained in the motion or made in an offer of proof, which are either conclusory, vague or oblique. For the purpose of determining whether to hold an evidentiary hearing, the court should ordinarily assume any specific allegations of fact to be true. If such allegations furnish a basis for withdrawal of the plea under [Practice Book § 39-27], and are not conclusively refuted by the record of the plea proceedings, and other information contained in the court file, then an evidentiary hearing is required.” (Internal quotation marks omitted.) State v. Lloyd, supra, 362-63, quoting State v. Watson, 198 Conn. 598, 612-13, 504 A.2d 497 (1986); State v. Torres, 182 Conn. 176, 185-86, 438 A.2d 46 (1980).

In the present case, the defendant offered no explanation at the time of the plea or at the time an evidentiary hearing was requested as to the cause of his alleged incompetency other than the bare assertion that he was under the influence of medication at the time he entered the plea. As in Lloyd, the defendant’s conclusory assertion that he was under the influence of medication and that he therefore did not understand the questions asked or the nature of changing his plea is insufficient to warrant an evidentiary hearing. See State v. Lloyd, supra, 199 Conn. 363. Furthermore, the court in the present case was satisfied that the defendant was competent to enter his plea, not only because of the positive assurance of his attorney, but also because the defendant himself, when canvassed, assured the court that he understood that he was pleading guilty.

Therefore, because the defendant’s allegations were merely conclusory, vague and oblique, we cannot conclude that the court abused its discretion when it refused to conduct an evidentiary hearing. Accordingly, we must affirm the judgment of the trial court.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       The defendant also was charged with larceny in the second degree in violation of General Statutes § 53a-123. The state, however, entered a nolle as to that charge.


author: LAVERY, C. J.

text:
    STATE OF CONNECTICUT v. TAMEKAH RUDD
    (AC 20131)
    Lavery, C. J., and Dranginis and Daly, Js.
    Argued December 1, 2000
    officially released April 10, 2001

      Norman A. Pattis, with whom, on the brief, was Angelica N. Papastravros-Corbo, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Kevin J. Dunn, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Tamekah Rudd, appeals from the judgment of conviction, rendered after a jury trial, of criminal trespass in the first degree in violation of General Statutes (Rev. to 1997) § 53a-107 (a) (l), breach of the peace in violation of General Statutes § 53a-181 (a) (l), disregarding an officer’s signal in violation of General Statutes (Rev. to 1997) § 14-223 (b) and reckless driving in violation of General Statutes § 14-222 (a). The defendant was acquitted on a charge of reckless endangerment in the second degree in violation of General Statutes § 53a-64. The defendant claims that the trial court improperly refused (1) to instruct the jury on creating a public disturbance as a lesser included offense of breach of the peace and (2) to set aside the judgment of conviction as to reckless driving after she had been acquitted of reckless endangerment.

The jury reasonably could have found the following facts. On February 6, 1997, the defendant asked the principal of Stratford Academy, a public elementary school, if she could speak with her sister, Makeda Bright. The principal told the defendant that an injunction had been issued prohibiting her presence on school grounds and access to Bright, a sixth grade student at the school. The principal also instructed her secretary to call the police. When the police arrived, they directed the defendant to leave the premises.

Later that day, the defendant and her mother forcibly entered Stratford Academy. They rushed up the stairs and into a second floor classroom. The defendant and her mother took Bright from the classroom and outside to the parking lot in violation of the injunction prohibiting the defendant and her mother from having access to the child. Several school employees stood in front of the defendant’s car to try to prevent her from leaving with the child. Their efforts were to no avail, and the defendant sped out of the parking lot.

Officers in two police cruisers observed the defendant leave the parking lot. She appeared to be traveling at a high rate of speed. The police chased her with their vehicles’ lights flashing. The defendant failed to stop at three stop signs in a residential school zone, and drove through a red traffic light and onto Interstate 95. The police continued to pursue the defendant while she weaved in and out of traffic on the three lane highway. Finally, the police surrounded the defendant’s car in the middle lane of Interstate 95 and forced her to come to a complete stop. Additional facts relevant to this appeal will be set forth as necessary.

I

The defendant claims that the court improperly refused to instruct the jury on creating a public disturbance in violation of General Statutes § 53a-181a as a lesser included offense of breach of the peace. The state argues in response that the court properly refused to give the lesser included offense instruction because the defendant failed to request an appropriate instruction. We agree with the state.

“There is no fundamental constitutional right to a jury instruction on every lesser included offense . . . rather, the right to such an instruction is purely a matter of our common law.” (Citation omitted; internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 260, 681 A.2d 922 (1996). In State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), our Supreme Court determined that a lesser included offense instruction should be given when: “(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.”

“Under the first prong of Whistnant, we must determine if the defendant’s request to charge was an appropriate instruction. ‘A proposed instruction on a lesser included offense constitutes an appropriate instruction for purposes of the first prong of Whistnant if it complies with Practice Book § 854 [now § 42-18]. . . .’ Practice Book § 42-18 (a) provides in relevant part: ‘When there are several requests, they shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply. . . State v. McPhee, 58 Conn. App. 501, 515, 755 A.2d 893, cert, denied, 254 Conn. 920, 759 A.2d 1026 (2000).

Applying that rule to the present case, we conclude that the court properly refused to grant the defendant’s request for a lesser included offense instruction. As an initial matter, the request was oral rather than in writing. Our Supreme Court has stated that absent a written request, “the refusal of the court to so charge is justified.” State v. Jacobs, 194 Conn. 119, 128, 479 A.2d 226 (1984), cert, denied, 469 U.S. 1190, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985). We have further “rejected the view that an in-court discussion of whether the [requested] charge was warranted, held immediately before the court’s charge to the jury, is an acceptable alternative to the rules of practice. First, the rules of practice do not give oral argument as an alternative to a written request to charge. Second, the purpose of the provision, that attorneys help rather than hinder the trial court in its determination of whether a particular instruction should be given ... is not well served by oral argument. Rather than affording the court time to scrutinize the requests and investigate the relevant case law, so as to arrive at the proper legal answer, oral argument is likely to require the court to commit to memory the arguments of both sides, or to pressure it into making an immediate decision on the issue. We do not think it necessary or proper to burden the trial bench so.” (Citation omitted; internal quotation marks omitted.) State v. Payne, 31 Conn. App. 370, 378-79, 625 A.2d 231, cert, denied, 227 Conn. 901, 630 A.2d 73 (1993).

Because the request to charge was oral, it clearly was not in the form of “separate and numbered paragraphs” as required by our rules of practice. See Practice Book § 42-18 (a). It also did not contain a citation of authority to support the defendant’s claim that she was entitled to a charge of creating a public disturbance as a lesser included offense of breach of the peace. “[AJlthough the request cites State v. Whistnant as authority for the propositions stated, we emphasize that Whistnant, by itself, does not provide the substantive principles of the criminal law which would justify any particular instruction. In setting the four preconditions to a lesser included offense instruction, Whistnant states no more than a rule of procedure which must be followed before the requested instruction need be given.” State v. McIntosh, 199 Conn. 155, 160, 506 A.2d 104 (1986).

Finally, the defendant’s request did not contain a citation to “the evidence to which the proposition would apply.” Practice Book § 42-18 (a). In the context of a written request to charge on a lesser included offense, our Supreme Court has stated that “this requirement of [§ 42-18 (a)] is met only if the proposed request contains such a complete statement of the essential facts as would have justified the court in charging in the form requested.” (Internal quotation marks omitted.) State v. Tomasko, supra, 238 Conn. 262. “A mere general statement of the entire incident at issue does not comply with our rules of practice.” State v. Hall, 213 Conn. 579, 591-92, 569 A.2d 534 (1990).

“While this court does not favor unyielding adherence to rules of procedure where the interests of justice are thereby disserved ... the ever increasing refinement of our law justifies cooperation of counsel in stating requests for jury instruction. The minor burden of cooperation imposed by [Practice Book § 42-18 (a)] is neither unreasonable nor novel.” (Internal quotation marks omitted.) State v. Tomasko, supra, 238 Conn. 262. We conclude, in light of the foregoing, that the court properly refused the defendant’s request to instruct the jury on creating a public disturbance as a lesser included offense of breach of the peace. The defendant did not request an appropriate instruction and, therefore, the first prong of Whistnant was not satisfied.

II

The defendant next argues that the court improperly refused to set aside the judgment of conviction as to reckless driving after she had been acquitted of reckless endangerment. The defendant argues that the verdict was inconsistent and, thus, should have been set aside. We disagree.

With regard to any claimed factual inconsistency, we simply note that “a factually inconsistent verdict will not be overturned on appeal. On several occasions, [our Supreme Court] has refused to reverse a verdict of guilty on one count where that verdict appeared to be inconsistent with a verdict of acquittal on another count. . . . The law permits inconsistent verdicts because of the recognition that jury deliberations necessarily involve negotiation and compromise.” (Internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 242, 745 A.2d 800 (2000).

We further conclude that the jury’s verdict was not inconsistent as a matter of law. “[W]here the inconsistent verdicts claim involves a simultaneous conviction and acquittal on different offenses, the court, in testing the verdict of guilty for inconsistency as a matter of law, is necessarily limited to an examination of the offense charged in the information and the verdict rendered thereon without regard to what evidence the jury had for consideration. ... If the offenses charged contain different elements, then a conviction of one offense is not inconsistent on its face with an acquittal of the other.” (Citations omitted; internal quotation marks omitted.) Id., 244.

A defendant may be found guilty of reckless endangerment in the second degree in violation of § 53a-64 if the state establishes that the defendant recklessly engaged in conduct that created a risk of physical injury to another person. For a defendant to be found guilty of reckless driving in violation of § 14-222 (a), the state must prove that the defendant operated a motor vehicle on any public highway of the state, or on certain roads, or in any parking area for ten cars or more or on any school property recklessly, having regard to the width of, traffic on and use of such highway, road, school property or parking area, the intersections of streets and the weather conditions. An individual violates § 14-222 (a) if she operates a motor vehicle on any such highway or road or in a parking area at such a rate of speed as to endanger the life of any person other than the operator of that motor vehicle.

As the state correctly points out, the two offenses previously discussed contain different elements. Reckless endangerment involves a risk of physical injury, and reckless driving involves endangering the life of another person. Reckless driving is limited to conduct solely involving the use of a motor vehicle. Reckless endangerment is not so limited. Because the two offenses contain different elements, “a conviction of one ... is not inconsistent on its face with an acquittal on the other.” (Internal quotation marks omitted.) Id., 245.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1997) § 53a-107 (a) provides in relevant part: “A person is guilty of criminal trespass in the first degree when: (1) Knowing that he is not licensed or privileged to do so, he enters or remains in a building or any other premises after an order to leave or not to enter personally communicated to him by the owner of the premises or other authorized person . ”

       General Statutes § 53a-181 (a) provides in relevant part: “A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place . . . .”

       General Statutes (Rev. to 1997) § 14-223 (b) provides in relevant part: “No person, when signalled to stop by an officer in a police vehicle using an audible signal device or flashing or revolving lights, shall increase his speed in an attempt to escape or elude such police officer. ...”

       General Statutes § 14-222 (a) provides in relevant part: “No person shall operate any motor vehicle upon any public highway of the state, or any road of any specially chartered municipal association or of any district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or in any parking area for ten cars or more or upon any private road on which a speed limit has been established in accordance with the provisions of section 14-218a or upon any school property recklessly, having regard to the width, traffic and use of such highway, road, school property or parking area, the intersection of streets and the weather conditions. The operation of a motor vehicle upon any such highway, road or parking area ... at such a rate of speed as to endanger the life of any person other than the operator of such motor vehicle . . . shall constitute a violation of the provisions of this section. The operation of a motor vehicle upon any such highway, road or parking area ... at a rate of speed greater than eighty-five miles per hour shall constitute a violation of the provisions of this section.”

       Following oral argument in this case, we ordered the parties to file supplemental briefs addressing the issue of whether an infraction can be a lesser offense included within a misdemeanor. The parties complied with that order and are in agreement that an infraction can be a lesser offense included within a misdemeanor. Because we conclude, however, that an appropriate instruction was not requested, we need not address this issue.

       The state also argues that the defendant’s claim fails to satisfy the fourth prong of Whistnant, which requires that “the proof on the element or elements which differentiate the lesser offense from the offense charged [be] sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, supra, 179 Conn. 588. The issue, as related to the present case, is whether proof that conduct occurred in a “public place,” as required under the relevant portion of the breach of the peace statute, § 53a-181 (a) (1), was sufficiently in dispute to permit the jury to acquit the defendant of breach of the peace but find her guilty of creating a public disturbance. Because we conclude that the defendant’s claim fails to satisfy the first prong of Whistnant, we need not decide this issue. We do note, however, that we find persuasive the state’s argument that a public school is a “public place.”

       General Statutes § 53a-64 (a) provides: “A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a risk of physical injury to another person.”

       See footnote 4.