author: ALVORD, J.

text:
    DISCIPLINARY COUNSEL v. MARK VILLENEUVE
    (AC 31841)
    Lavine, Alvord and Borden, Js.

      Argued December 1, 2010
    officially released February 22, 2011

      Corey J. Brinson, with whom, on the brief, was Mark Villeneuve, pro se, for the appellant (defendant).

      Patricia A. King, with whom was Mark A. Dubois, chief disciplinary counsel, for the appellee (plaintiff).
   Opinion

ALVORD, J.

The defendant, Mark Villeneuve, appeals from the judgment of the trial court suspending his license to practice law. On appeal, he claims that, inter alia, (1) the court improperly denied his motion to dismiss for lack of subject matter jurisdiction, (2) the court improperly suspended his license prior to ruling upon his motion to dismiss for lack of personal jurisdiction, and (3) the court and the statewide grievance committee (grievance committee) violated his due process rights because (a) the grievance complaint was not executed under “penalties of false statement,” thus violating Practice Book § 2-32, and (b) he was improperly adjudicated for a violation of rule 8.4 (3) of the Rules of Professional Conduct when the grievance complaint did not allege that rule. We affirm the judgment of the trial court.

The record discloses the following relevant facts and procedural history. During 2008, the defendant submitted an application for a staff attorney position with the state workers’ compensation commission (commission). After interviewing the defendant, reviewing his resume and references and attempting to verify the information therein, the commission’s human resources director, Sandra C. Cunningham, suspected a number of misrepresentations. She brought her concerns to the attention of the grievance committee in a letter dated May 6, 2008 (Cunningham letter). The Cunningham letter identified the following discrepancies in the defendant’s application: (1) he claimed to be presently employed by the Law Office of Jean Smith, but Cunningham could find no such attorney or office in existence; (2) his resume indicated that he graduated from Western New England College School of Law cum laude, when in fact he did not graduate with honors; (3) his resume indicated that he was an assistant note editor for his school’s law review, when the school had no record of his participation on law review; (4) he listed a reference at an address that did not exist, and Cunningham was contacted by two references who “sounded very similar on the phone,” causing her to “doubt the legitimacy of the reference information”; and (5) although the Law Office of Jean Smith apparently did not exist, the defendant had worked for another law firm during the time that he allegedly was working for Smith and did not indicate that fact on his application or resume.

The grievance committee referred the Cunningham letter to the Hartford-New Britain judicial district grievance panel (Hartford panel). The Hartford panel sent the defendant a copy of the Cunningham letter and the grievance committee’s referral. The defendant replied that he had “absolutely no knowledge of this position, application, resume, interview or anything else that occurred regarding this incident as described by attorney Cunningham” because his identity had been stolen. The Hartford panel requested further information concerning the alleged identity theft, but the defendant failed to respond to the panel’s inquiry and never provided supplemental information substantiating his claim of identity theft. In light of the defendant’s failure to provide any evidence of his identity having been stolen or an alternative explanation for the discrepancies in his application and resume, the Hartford panel filed a formal grievance complaint alleging violations of mies 8.1 (l), 8.2 (a) and 8.4 (4) of the Rules of Professional Conduct, which was sent to the grievance committee and subsequently referred to the Windham judicial district grievance panel (Windham panel).

The defendant was provided with a copy of this grievance complaint. Instead of filing an answer, he filed a motion to dismiss for lack of subject matter jurisdiction. Upon review, the Windham panel issued a finding of probable cause that the defendant had violated rules 8.4 (3) and 8.4 (4) and filed its record with the grievance committee.

The reviewing committee scheduled a hearing on the grievance complaint. At the defendant’s request, the reviewing committee rescheduled the hearing. Instead of attending the rescheduled hearing, the defendant mailed written “testimony” that stated that he was “not able to travel all the way to Middletown, CT in order to attend,” and again alleged, inter alia, that his identity had been stolen. The defendant did not provide probative evidence to substantiate his claim and his failure to attend the hearing made it impossible for the reviewing committee to confirm any mistake in identity. The reviewing committee found that, because the defendant had failed to appear and to testify under oath despite being given a two month continuance, “little weight” should be given to his claims of identity theft. The reviewing committee found by clear and convincing evidence that, because the employment application contained misrepresentations, the defendant had violated rule 8.4 (3) of the Rules of Professional Conduct. It directed disciplinary counsel “to file a presentment against the [defendant] in the Superior Court, for the imposition of whatever discipline is deemed appropriate.” Two weeks later, after the defendant filed a request for review, the grievance committee affirmed the decision of the reviewing committee.

On November 5, 2009, the plaintiff filed this presentment with the Superior Court, outlining the previously mentioned factual and procedural background. The defendant filed a motion to dismiss, claiming lack of subject matter jurisdiction, and a motion for summary judgment, claiming that rules 8.4 (3) and 8.4 (4) of the Rules of Professional Conduct are unconstitutionally broad and void for vagueness. Both motions were denied during a December 21, 2009 hearing.

The defendant filed a second motion to dismiss claiming lack of personal jurisdiction because the disciplinary committee failed to serve him properly with the presentment. The second motion to dismiss was set for hearing on January 22, 2010, when the defendant again failed to appear but instead, on the same date, filed via facsimile a “Notice that Hearing Cannot Proceed Prior to Adjudication of Motion to Dismiss.” The hearing proceeded in the defendant’s absence. The court denied the defendant’s second motion to dismiss and also issued the following order: “The court suspends the [defendant] from the practice of law without prejudice because he faded to appear at the presentment. The court will consider reinstatement if [the defendant] appears and establishes good cause for his failure to appear at the hearing. The court will not consider the pendency of the . . . motion to dismiss as being good cause. If [the defendant] wanted to assert the necessity for ruling on that motion before considering the presentment, he should have appeared and could have argued the motion and, possibly, obtained a ruling at that time.”

On March 16, 2010, the corut articulated its legal and factual basis for denying all three motions. It ruled that, inter alia, (1) the motion to dismiss for lack of subject matter jurisdiction was denied because the court had the inherent authority to regulate attorney conduct, (2) the motion for summary judgment was denied because the defendant failed to satisfy the burden of showing the nonexistence of any issue of material fact, and (3) the motion to dismiss for lack of personal jurisdiction was denied because the defendant waived this claim when he filed a motion contesting the issues. The court declined to articulate further the suspension order because its reasoning was “clearly stated on the record.” Further, the court stated that “[h]ad the [defendant] appeared, on that date or a subsequent date, the court would have entertained his motion to vacate suspension and would have held a hearing on the merits. But the [defendant] has never appeared at any proceeding.” In light of this factual and procedural history, we turn to the arguments of the parties.

I

The defendant argues that the court improperly denied his first motion to dismiss for lack of subject matter jurisdiction. He claims, inter alia, that the grievance complaint was defective, the Hartford panel was biased and acted in an arbitrary and capricious manner, the grievance committee’s findings of fact were clearly erroneous, and the grievance committee did not perform a fair, intelligent and equitable review pursuant to Practice Book § 2-38. We disagree.

We begin by setting forth our standard of review. “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . Because such a determination involves a question of law, our review is plenary. . . . Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged. . . . Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action. . . . Fixing the qualifications for, as well as admitting persons to, the practice of law in this state has ever been an exercise of judicial power. . . .

“The Superior Court possesses inherent authority to regulate attorney conduct and to discipline the members of the bar. . . . The judiciary has the power to admit attorneys to practice and to disbar them ... to fix the qualifications of those to be admitted . . . and to define what constitutes the practice of law. ... In the exercise of its disciplinary power, the Superior Court has adopted the [Rules of Professional Conduct].” Statewide Grievance Committee v. Burton, 88 Conn. App. 523, 528-29, 871 A.2d 380 (2005), aff'd, 282 Conn. 1, 917 A.2d 966 (2007).

In light of the court’s inherent power to regulate attorney conduct, the court’s denial of the motion to dismiss for lack of subject matter jurisdiction was not improper.

II

The defendant also claims that the court improperly suspended his license prior to ruling on his motion to dismiss for lack of personal jurisdiction. We decline to consider this claim.

In this case, the record is inadequate for review because on January 22, 2010, there was a hearing, at which time the trial court ruled on the motion to dismiss for lack of personal jurisdiction. We were not provided with a copy of the transcript from that hearing because the defendant did not request that a single transcript be provided to this court. The duty to provide this court with a record adequate for review rests with the appellant. See Practice Book § 61-10; Ng v. Wal-Mart Stores, Inc., 122 Conn. App. 533, 537, 998 A.2d 1214 (2010); Forrestt v. Koch, 122 Conn. App. 99, 111, 996 A.2d 1236 (2010); Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998). Without the necessary factual and legal conclusions furnished by the trial court, any decision made by us respecting the defendant’s claims as to timing would be entirely speculative. See Chase Manhattan Bank/City Trust v. AECO Elevator Co., supra, 608-609. Thus, we decline to review this claim.

Ill

The defendant also claims that the grievance procedure that led to his presentment and the court’s subsequent suspension of his license to practice law violated his constitutional right to due process. Specifically, he argues, inter alia, that he was denied due process because (1) the grievance complaint was not filed “under penalties of false statement” as required by Practice Book § 2-32 (a) and (2) he was improperly adjudicated for a violation of rule 8.4 (3) of the Rules of Professional Conduct when the initial grievance complaint did not cite that rule. We disagree and will address both issues in turn.

First, we set out the appropriate standard of review for each of these due process claims. “Because a license to practice law is a vested property interest and disciplinary proceedings are adversary proceedings of a quasi-criminai nature, an attorney subject to discipline is entitled to due process of law.” (Internal quotation marks omitted.) Kucej v. Statewide Grievance Committee, 239 Conn. 449,462,686 A.2d 110 (1996), cert. denied, 520 U.S. 1276, 117 S. Ct. 2457, 138 L. Ed. 2d 214 (1997).

“Due process does not mandate a particular procedure but rather requires only that certain safeguards exist in whatever procedural form is afforded. ... In [presentment] proceedings such as this a defendant is entitled to notice of the charges against him, to a fair hearing, and a fair determination, in the exercise of a sound judicial discretion, of the questions at issue, and to an appeal to [an appellate] court for the purpose of having it determined whether or not he has in some substantial manner been deprived of such rights.” (Citation omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Presnick, 215 Conn. 162, 169, 575 A.2d 210 (1990).

“The ultimate question is whether he is a fit person to be longer allowed the privileges of being an attorney. . . . His relations to the tribunal and the character and purpose of the inquiry are such that unless it clearly appears that his rights have in some substantial way been denied him, the action of the court will not be set aside upon review.” (Internal quotation marks omitted.) Id., 172-73.

A

With these principles in mind, we turn to the defendant’s claim that his due process rights were violated because the grievance complaint did not include the language “executed under penalties of false statement” as required under Practice Book § 2-32 (a). We reject this claim in its entirety because the grievance complaint did in fact include such language.

B

In addition, the defendant claims that his due process rights were violated because the court improperly adjudicated a violation of rule 8.4 (3) of the Rules of Professional Conduct when the initial grievance complaint did not allege a violation of that rule. We disagree.

“This court long ago set forth the standard that a complaint for misconduct must be sufficiently intelligible and informing to advise the court of the matter complained of, and the attorney of the accusation or accusations made against him, to the end that . . . the latter may prepare to meet the charges against him. ... If this condition is satisfied, so that the accused is fully and fairly apprised of the charge or charges made, the complaint is sufficient to give him an opportunity to be fully and fairly heard .... [W]e [have] stated that the presentment need not refer to specific sections [of the Rules of Professional Conduct] .... Rather, reference to a specific rule simply assists the trial court in drawing its conclusions as to whether, under the totality of the circumstances, professional misconduct occurred. ... [A] court may find a violation even if a specific rule has not been cited so long as the attorney subject to discipline has been accorded the full measure of due process required under the particular circumstances of the case.” (Citations omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Botwick, 226 Conn. 299, 310, 627 A.2d 901 (1993).

It is undisputed that the grievance complaint raised only concerns of violations of rules 8.1 (1), 8.2 (a) and 8.4 (4) but that subsequently the Windham panel found probable cause for a violation of rule 8.4 (3). Nonetheless, in light of the above standard and our thorough review of the record, we conclude that the defendant’s right to due process was not implicated when a violation of rule 8.4 (3) was not explicitly alleged in the grievance complaint.

The defendant argues that the failure to allege a violation of rule 8.4 (3) in the grievance complaint breaches Practice Book § 2-32 (j), which provides in relevant part that “[t]he panel shall not make a probable cause determination based, in full or in part, on a claim of misconduct not alleged in the complaint without first notifying the [defendant] that it is considering such action and affording the [defendant] the opportunity to be heard.” This rule does not, as the defendant contends, require that the panel provide notification of every rule it is considering, but rather each claim of misconduct. In the present case, the factual basis underlying the allegations of misconduct remained unchanged throughout.

Further, the purpose of Practice Book § 2-32 (j) is to allow the defendant “an opportunity to be heard” as to each allegation. Practice Book § 2-32 (j); see W. Horton & K. Knox, 1 Connecticut Practice Series: Connecticut Superior Court Civil Rules (2011) § 2-32, authors’ comments, p. 281. We agree with the court’s finding that the defendant’s claim that he had no opportunity to respond to the charge was contradicted directly by the record. In the present case, the defendant repeatedly was provided with notice and an opportunity to respond. He was (1) contacted by the Hartford panel upon its receipt of the Cunningham letter, prior to a grievance complaint being filed, but he did not provide a substantive response to the allegations; (2) given a copy of the grievance complaint, but he never responded to the allegations except to file a motion to dismiss; (3) notified of the Windham panel’s finding of probable cause; (4) notified of a hearing before the reviewing committee on the grievance complaint, which was continued at his request, and which he failed to attend; (5) provided a copy of the decision by the reviewing committee finding that he was in violation of the rules and suggesting a presentment be filed; (6) provided the opportunity to, and did in fact, appeal the reviewing committee’s decision to the grievance committee; (7) provided with a copy of the grievance committee’s decision affirming the findings of the reviewing committee; (8) provided a copy of the presentment, (9) summoned to the court on December 21, 2009, to argue his motions to dismiss and for summary judgment, which hearing he failed to attend; and (10) summoned to the court again to address the presentment, which hearing he failed to attend. Not once, at any of these many junctures, did the defendant dispute the underlying facts except to allege that his identity was stolen without substantiating the claim.

Not only did the defendant have the opportunity to be heard, but also he was in fact heard with respect to the very rule he now claims unfairly surprised him and violated his due process rights. As the court noted, in his written statement that was accepted as evidence by the reviewing committee during its initial hearing, the defendant explicitly addressed rule 8.4 (3) in a section entitled “Violations of Rules 8.4 (3) and 8.4 (4).”

Finally, because the presentment is reviewed by the court de novo, the defendant had the ability to challenge any allegation that was not stated in the grievance complaint during the presentment hearing. He chose not to attend that hearing in Superior Court. Accordingly, we agree with the court that the fact that the grievance complaint did not explicitly allege a violation of rule 8.4 (3) did not deprive the defendant of due process.

The judgment is affirmed.

In this opinion the other judges concurred.

       Rule 8.1 of the Rules of Professional Conduct provides in relevant part: “[A] lawyer ... in connection with a disciplinary matter, shall not:
      “(1) Knowingly make a false statement of material fact . . . .”

       Rule 8.2 of the Rules of Professional Conduct provides in relevant part: “(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”

       Rule 8.4 of the Rules of Professional Conduct provides in relevant part: “It is professional misconduct for a lawyer to . . .
      “(4) Engage in conduct that is prejudicial to the administration of justice . . . .”

       Rule 8.4 of the Rules of Professional Conduct provides in relevant part: “It is professional misconduct for a lawyer to . . .
      “(3) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation . . . .”

       The Windham panel determined that there was probable cause to support the following findings of fact: the defendant (1) submitted a false application for employment, (2) misrepresented that he had graduated from law school cum laude and had participated on the school’s law review, (3) misrepresented to the panel that he had been a victim of identity theft and that he had filed a complaint with the police, and (4) failed to address the substantive charges, leaving them unrebutted.

       Pursuant to Practice Book § 2-35 (c), after the grievance panel determined that probable cause existed that the defendant was guilty of misconduct, “the reviewing committee shall hold a hearing on the complaint. . . .”

       Pursuant to Practice Book §§ 2-35 (g) and 2-36, within thirty days of the issuance to the parties of the reviewing committee’s final decision, the defendant may submit to the grievance committee a request for review of the decision, and the grievance committee must review the previous decision and issue its own written decision.

       The disciplinary counsel had notified the defendant during an e-mail exchange between the parties that he would be served the presentment via United States mail. The defendant did not object at that time. He argued in his reply brief to the plaintiffs objection to his motion to dismiss for lack of subject matter jurisdiction that he “relied upon [the plaintiffs] representations that the proper service of process was to be made via service to his [post office] box.”

       This court was not provided with a transcript of that hearing.

       This court ordered the trial court to articulate whether, in suspending the defendant’s license on January 22, 2010, it also denied the defendant’s second motion to dismiss. On August 12, 2010, the trial court articulated that the second motion had been denied on January 22, 2010, when it suspended the defendant’s license.

       Practice Book § 61-10 provides: “It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. For purposes of this section, the term ‘record’ is not limited to its meaning pursuant to Section 63-4 (a) (2), but includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety.”

       The defendant also alleges that there has been a violation of equal protection. Practice Book § 60-5 provides in relevant part that this “court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. ...” This rule against considering claims not advanced at trial applies to constitutional issues. Statewide Grievance Committee v. Whitney, 227 Conn. 829, 846, 633 A.2d 296 (1993). Because this claim was not distinctly raised at trial, we decline to afford it consideration.

       Practice Book § 2-32 (a) provides in relevant part: “Any person, including disciplinary counsel, or a grievance panel on its own motion, may file a written complaint, executed under penalties of false statement, alleging attorney misconduct whether or not such alleged misconduct occurred in the actual presence of the court. . . .”

       We disagree with the defendant’s suggestion that the Cunningham letter had to comply with Practice Book § 2-32 because that letter was not a formal complaint

       The cover sheet to the grievance complaint, form JD-GC-06, was not appended to the presentment or included in the trial court file. This court has the authority to take judicial notice of files of the trial court in the same or other cases. State v. Adams, 117 Conn. App. 747, 749 n.3, 982 A.2d 187 (2009); see also Oliphant v. Commissioner of Correction, 274 Conn. 563, 579 n.17, 877 A.2d 761 (2005). The grievance committee is an “ ‘arm of the court’ ”; Sobocinski v. Statewide Grievance Committee, 215 Conn. 517, 526, 576 A.2d 532 (1990); and thus, it is within this court’s purview to take judicial notice of its file. We therefore taire judicial notice of that file and conclude that the grievance complaint was “executed under penalties of false statement . . . .” Practice Book § 2-32 (a).

       Failure to respond timely to the complaint is misconduct itself. Daniels v. Statewide Grievance Committee, 72 Conn. App. 203, 205 n.4, 804 A.2d 1027 (2002).

       As noted, the defendant had an abundance of opportunities to address the decision makers. Thus, we cannot conclude that, under the facts of this case, any of the due process allegations that can be gleaned from the defendant’s brief could have, in some substantial manner, deprived the defendant of due process as would be required for us to reverse the decisions of the trial court.

       The trial court astutely noted that “[the defendant’s] failure to attend any court or grievance proceeding related to this matter is truly puzzling in light of his identity theft defense. What better way to prove he was not the attorney who gave false information to Ms. Cunningham than appearing and allowing her to confirm that he was not that attorney?” At any of the proceedings, the defendant could have substantiated his special defense by simply appearing, which further undermines the possibility that the procedural issues raised by the defendant deprived him of his basic right to due process.


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    DEREK FULTON v. COMMISSIONER OF CORRECTION
    (AC 31685)
    Lavine, Robinson and West, Js.

      Argued December 8, 2010
    officially released February 22, 2011

      Daniel J. Foster, special public defender, for the appellant (petitioner).

      Sarah Hanna, assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and, Nicholas J. Bove, Jr., senior assistant state’s attorney, for the appellee (respondent).
   Opinion

LAVINE, J.

The petitioner, Derek Fulton, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion by denying his petition for certification to appeal and improperly rejected his claims that (1) pursuant to Practice Book § 43-10, he had been denied the right to be sentenced on the date scheduled and (2) his due process rights were violated when he was sentenced more than three weeks before the alleged date for sentencing. We disagree and dismiss the appeal.

The following facts and procedural history are relevant to the petitioner’s appeal. On June 10, 2005, the petitioner, with the assistance of his attorney, Frank Riccio II (Riccio II), pleaded guilty to charges contained in six court files pending in the judicial district of Fair-field at Bridgeport. Specifically, the petitioner pleaded guilty to three counts of forgery in the second degree in violation of General Statutes § 53a-139 and to one count each of larceny in the third degree in violation of General Statutes § 53a-124, larceny in the fourth degree in violation of General Statutes § 53a-125 and larceny in the fifth degree in violation of General Statutes § 53a-125a.

Prior to pleading guilty to those charges, the petitioner entered into a plea agreement (agreement) that called for sentencing to take place on July 25, 2005. The agreement also provided that if the petitioner made restitution in the amount of $4800 on or before the sentencing date, the court would consider imposing the low end of the plea agreement, which was a total effective sentence of ten years imprisonment, suspended after four years, with five years of probation.

Upon entry of his guilty pleas, the court, Reynolds, J., canvassed the petitioner regarding all aspects of his agreement and his understanding of the rights he was waiving. The court also conducted a Garvin canvass in which it advised the petitioner that if he failed to return to the court on the morning of July 25, 2005, with the $4800 in restitution, the court could impose an agreed on disposition of fifteen years imprisonment, suspended after seven years, with five years probation. The court also advised the petitioner that if he did not return to the court on July 25, 2005, the agreement would no longer be binding and the court could sentence him to thirty-four and one-half years of incarceration, the maximum sentence allowed by statute.

On July 25, 2005, the petitioner was hospitalized. The court continued his sentencing to July 26, 2005. On that day, the court notified both parties that sentencing would be continued to August 11, 2005. On August 10, 2005, the petitioner was notified by his attorney’s office that he was required to attend the sentencing proceeding the following day. The petitioner, however, failed to appear for the sentencing, and the court issued a rearrest warrant.

Sometime between August and December 13, 2005, the petitioner was served with a warrant concerning charges pending against him in Stamford and also was served with a warrant for failure to appear for his August 11, 2005 sentencing. The petitioner was taken to Bridgeport on December 13, 2005, and Judge Reynolds imposed a total effective sentence of fourteen years imprisonment on the charges to which he pleaded guilty in June, 2005, under the agreement.

On September 11, 2009, the petitioner filed an amended petition for a writ of habeas corpus. In his petition, he alleged that on December 7, 2005, he was notified by the court, in person, that all matters concerning the agreement would be addressed on January 4, 2006. Therefore, the petitioner claimed, his due process rights were violated when he was sentenced on December 13, 2005, because, among other things, the court imposed a harsher sentence based on his failure to have the restitution money at that time, even though he believed that he had until January 4, 2006, to provide restitution.

On October 9, 2009, the habeas court, Nazzaro, J., conducted a one day hearing on the petition and heard testimony from the petitioner and his wife, Lisa Fulton, Riccio II, Frank Riccio, Sr., and Nancy Jimenez, an employee at the Law Offices of Frank J. Riccio. The petitioner testified that he was arraigned in Bridgeport on a warrant for violation of probation on December 7, 2005, and the court stated that it was going to add the new violation of probation charge with his guilty pleas pursuant to the agreement and “move the schedule date to January 4. ” The petitioner claimed that it was his understanding that he was going to be sentenced on that date pursuant to the agreement and that restitution would be due then as well. Additionally, the petitioner testified that had he known that he was going to be sentenced on December 13, 2005, rather than on January 4, 2006, he would have brought the restitution money to the hearing.

Riccio II testified, however, that the petitioner’s sentencing was never continued to January 4, 2006, at any time. He also testified that he went to court on December 13, 2005, and requested to continue all matters to January 4, 2006, but that the petitioner was sentenced anyway.

Following the completion of evidence, in an oral decision, the habeas court denied the petitioner’s petition for a writ of habeas coipus. The habeas court concluded that the trial court acted within its “ability and power” to impose the sentence it did as a consequence of the violation of the agreement. It further concluded that there was no violation of due process and that “[b]y holding the [petitioner] to his guilty pleas while imposing sentences reflecting his failure to appear, the trial court did no more than enforce the terms of the plea agreement.” Accordingly, the habeas court found that the sentencing did not violate the petitioner’s right to due process.

The court further credited the testimony of Riccio II and did not credit the petitioner’s testimony that “he was able to pay the $4800 and even at the present has $4800 to pay the restitution that was referenced.” The court, however, did not make any findings that sentencing pursuant to the agreement had been moved from December 13, 2005, to January 4, 2006, and the petitioner did not file a motion for articulation concerning this issue.

On October 15, 2009, the petitioner filed a petition for certification to appeal from the denial of his petition for a writ of habeas corpus. On October 26, 2009, the court denied the petition. This appeal followed.

“We set forth the appropriate standard of review. Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... To prove an abuse of discretion, the petitioner must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted; internal quotation marks omitted.) Lewis v. Commissioner of Correction, 116 Conn. App. 400, 404, 975 A.2d 740, cert. denied, 294 Conn. 908, 982 A.2d 1082 (2009).

The petitioner first claims that his rights pursuant to Practice Book § 43-10 were violated when the trial court sentenced him on December 13, 2005, rather than on January 4, 2006. Section 43-10 provides in relevant part: “Before imposing a sentence or making any other disposition after the acceptance of a plea of guilty or nolo contendere or upon a verdict or finding of guilty, the judicial authority shall, upon the date previously determined for sentencing, conduct a sentencing hearing

The petitioner claims that this section unambiguously requires that the court conduct a sentencing hearing that has been scheduled in advance before any sentence may be imposed. The petitioner, however, did not raise this issue or cite this rule of practice in his amended petition for a writ of habeas corpus, nor did he raise this issue during the habeas hearing. In its oral decision, the habeas court did not address whether the petitioner’s rights under this section had been violated.

“It is well settled that [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action. . . . The principle that a plaintiff may rely only upon what he has alleged is basic. ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint. . . . While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations ... it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised.” (Internal quotation marks omitted.) Abdullah v. Commissioner of Correction, 123 Conn. App. 197, 202, 1 A.3d 1102, cert. denied, 298 Conn. 930, 5 A.3d 488 (2010).

Because the petitioner never presented the habeas court with the opportunity to address this issue, we will not speculate as to how the court would have decided it, had the issue been properly raised in the habeas court. “This court is not bound to consider claimed errors unless it appears on the record that the question was distinctly raised . . . and was ruled upon and decided by the court adversely to the appellant’s claim. . . . To review [the claim] now would amount to an ambuscade of the [habeas] judge. . . . This court is not compelled to consider issues neither alleged in the habeas petition nor considered at the habeas proceeding . . . .” (Internal quotation marks omitted.) Satchwell v. Commissioner of Correction, 119 Conn. App. 614, 619, 988 A.2d 907, cert. denied, 296 Conn. 901, 991 A.2d 1103 (2010). Therefore, the petitioner has failed to demonstrate that, based on this issue, the habeas court abused its discretion in denying his petition for certification to appeal.

The petitioner next argues that his due process rights were violated when the trial court sentenced him on December 13, 2005, because, had he been sentenced on January 4, 2006, he would have been able to procure the $4800 for restitution, and it is possible that the court would have imposed a shorter sentence as a result. We are not persuaded.

“The notion of fundamental fairness embodied in due process implies that whatever promises the government makes in the course of a plea agreement to induce a guilty plea must be fulfilled.” (Internal quotation marks omitted.) State v. Rosado, 92 Conn. App. 823, 827, 887 A.2d 917 (2006). In other words, “[w]hen a guilty plea is induced by promises arising out of a plea bargaining agreement, fairness requires that such promises be fulfilled by the state. . . . The same concept of fairness ordinarily impels the court, in its discretion, either to accord specific performance of the agreement or to permit the opportunity to withdraw the guilty plea.” (Internal quotation marks omitted.) State v. Garvin, 242 Conn. 296, 313, 699 A.2d 921 (1997).

Here, after pleading guilty to various offenses, Judge Reynolds advised the petitioner that if he failed to attend his sentencing hearing on July 25, 2005, with the $4800 for restitution, a sentence of fifteen years imprisonment, suspended after seven years, would be imposed. The court also told the petitioner that if he did not come back for sentencing, the plea agreement would no longer be binding on the court. The petitioner’s sentencing date subsequently was moved to August 11, 2005, and he was notified by his attorney’s office that he needed to appear in court on that date, yet he failed to appear. At that point, the plea agreement was violated, and the court could impose any sentence, permitted under statute, that it found warranted. Also, because the agreement was no longer binding, the court was under no obligation to take into consideration whether the petitioner had paid restitution to his victims.

The petitioner claims that when restitution is an issue at sentencing, holding a sentencing hearing on a date for which it was not scheduled prevents him from producing the restitution at the hearing. As noted, however, restitution was no longer an issue in this case because the plea agreement had been abrogated due to the petitioner’s own conduct.

Additionally, the petitioner does not claim that he was denied the assistance of counsel during his sentencing hearing. Instead, he claims that holding the sentencing hearing three weeks earlier than the date on which it had been scheduled deprived him and his counsel of a reasonable opportunity to prepare for the hearing. We find this argument unavailing given the circumstances of this case. Riccio II was not only present at the sentencing hearing on December 13, 2005, but he also testified that he was well aware that sentencing would occur on that date and that it had never been moved to January 4, 2006.

We conclude that Judge Reynolds was under no obligation to abide by the agreement. Also, Judge Reynolds adequately warned the petitioner of the consequences of failure to appear for his sentencing hearing. Pursuant to our case law and the agreement in this case, once the petitioner violated the Garvin agreement, Judge Reynolds had the authority to impose any sentence permitted by statute, and the petitioner no longer had the right to be given the opportunity to procure the money for restitution. The petitioner has failed to demonstrate that the issues are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions are adequate to deserve encouragement to proceed further. See Lewis v. Commissioner of Correction, supra, 116 Conn. App. 404.

The appeal is dismissed.

In this opinion the other judges concurred.

       The petitioner also claims that the judgment of the habeas court should be reversed on its merits because his due process rights and his rights pursuant to Practice Book § 43-10 were denied when he was sentenced more than three weeks before his scheduled sentencing date. Because we conclude that the petitioner has not demonstrated that the habeas court abused its discretion in denying his petition for certification to appeal from the denial of his petition for a writ of habeas corpus, we do not address whether the judgment of the habeas court should be reversed on its merits.

       “A Garvin agreement is a conditional plea agreement that has two possible binding outcomes, one that results from the defendant’s compliance with the conditions of the plea agreement and one that is triggered by his violation of a condition of the agreement. See State v. Garvin, 242 Conn. 296, 299-302, 699 A.2d 921 (1997). The term Garvin canvass is used to designate a canvass of a conditional plea agreement made pursuant to Garvin.” State v. Small, 78 Conn. App. 14, 16 n.l, 826 A.2d 211 (2003).

       The habeas court found that the petitioner, at the time of his guilty pleas, was able to understand the proceedings in court and the advice of his attorney.

       The petitioner also pleaded guilty to one count of failure to appear in the first degree in violation of General Statutes § 53a-172 and was sentenced to five years imprisonment. That sentence was to run concurrently with the sentence imposed on the charges to which the petitioner pleaded guilty on June 10, 2005.

       The petitioner did not file a motion to withdraw his plea, nor did he appeal from his conviction.

       The petitioner relies on the following colloquy with Judge Reynolds during his arraignment on a violation of probation charge to support his argument that the sentencing on the six charges to which he pleaded guilty in June, 2005, had been continued to January 4, 2006:
      “The Court: Weren’t you just in this court a couple days ago?
      “[The Petitioner]: Yes, ma’am.
      “The Court: What are you in on? Were you an arraignment a couple of days ago?
      “[The Petitioner]: Yes, ma’am.
      “The Court: Yeah. Do you remember what day we put the case down for?
      “[The Petitioner]: The thirteenth.
      “The Court: Thirteenth of?

        “[The Petitioner]: December. . . .
      “Bail Commissioner: He has six files down for the thirteenth, Your Honor, in this courthouse, and it’s only this courthouse. . . .
      “[Assistant Public Defender]: The only request is, on behalf of [the petitioner], he indicates that attorney Riccio [II] is going to handle this matter as well as all of his other cases and is on trial, currently. If Your Honor pleases, possibly this could either go to the thirteenth, but [the petitioner] indicates that attorney Riccio [II] will be on trial the thirteenth and is requesting some time after the thirteenth. . . .
      “The Court: All right. I’m going to set bond at $75,000. And the smart thing to do would be to take those six files, plus this one file, and put them all down for the fourth? January 4? . . . Let your attorney know that everything has been moved to January 4 from the thirteenth.”

       The court went on to state that “there is nothing remarkable about the conduct of the court in imposing what was the previously agreed upon sentence, where it is clearly established that [the petitioner] understood the full ramifications of his nonappearance.”

       The petitioner does not indicate, however, how long in advance a sentencing hearing must be scheduled in order to comply with this statute.

       In our analysis of this claim, we need not reach the issue of whether the petitioner’s sentencing was actually moved from December 13, 2005, to January 4, 2006. Moreover, the record is inadequate on this issue, and the petitioner failed to seek an articulation from the habeas court about whether it found that the sentencing date had been moved to January 4, 2006, or clarification from the trial court at the December 7, 2005 hearing about whether it had continued his sentencing date under the agreement for January 4, 2006.

       During oral argument in this court, counsel for the petitioner conceded that the plea agreement was no longer operative once the petitioner failed to attend his sentencing hearing on August 11, 2005.

       We also note that this court previously has decided that a trial court has the authority to impose a sentence that is not in accordance with a Garvin agreement if the defendant has violated one of the conditions of the agreement. See State v. Wheatland, 93 Conn. App. 232, 888 A.2d 1098, cert. denied, 277 Conn. 919, 895 A.2d 793 (2006).


author: FOTI, J.

text:
    RAMIRO RODRIGUEZ v. E.D. CONSTRUCTION, INC., ET AL.
    (AC 31115)
    Bishop, Lavine and Foti, Js.

      Argued October 26, 2010
    officially released February 22, 2011

      James T. Baldwin, with whom, on the brief, was Marisa F. Schafer, for the appellant (plaintiff).

      Robert Sciglimpaglia, Jr., for the appellee (named defendant).

      Lisa Guttenberg Weiss, assistant attorney general, for the appellee (defendant second injury fund).
   Opinion

FOTI, J.

The plaintiff, Ramiro Rodriguez, appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner) to dismiss his claim for benefits for injuries he suffered in an accident while installing a roof for the defendant E.D. Construction, Inc. On appeal, the plaintiff claims that the board improperly affirmed the commissioner’s finding that he was not an employee of the defendant at the time of the accident. We affirm the decision of the board.

The following facts and procedural history are relevant to this appeal. On June 14, 2003, the plaintiff was in the process of installing a rubber roof in Norwalk. During that installation, he attempted to dry with a torch the moist plywood foundation on which the rubber roof was to be adhered. Unbeknownst to the plaintiff, the plywood had been previously treated with a highly flammable adhesive, and his use of the torch produced an explosion and a fire. As a result, the plaintiff was engulfed in flames and fell from the two-story roof. Tragically, the plaintiff suffered life threatening bums to over 90 percent of his body, resulting in the amputation of his right arm and limiting the use of his left arm. Thereafter, the plaintiff filed a claim for workers’ compensation benefits with the commissioner for the seventh district. The plaintiff claimed that at the time of the accident, he was an employee of the defendant, the roofing company that contracted to install the roof. The defendant denied compensability. Specifically, the owner of the defendant, Edward Devingo, asserted that he hired the plaintiff as a subcontractor to install the roof.

Over the course of two years, the commissioner held nine formal hearings during which extensive evidence was introduced by both parties. In support of his claim that he was an employee of the defendant, the plaintiff testified that on the date of the accident, he was being paid $20 per hour by the defendant, that he was trained in the roofing trade by the defendant, that the defendant provided tools on his roofing jobs and provided transportation to and from work sites and that Devingo governed the manner of work at each of the various job sites. He also testified that although he was able to speak and to understand English “[a] little bit,” his primary language was Spanish, and under no circumstances was he able to read or to write English. As a result, the plaintiff testified, he was unaware of, and did not understand, the consequences of executing certain documents in which he acknowledged that he was excluded from coverage under the Workers’ Compensation Act (act), General Statutes § 31-275 et seq. He also testified that he executed a general liability insurance policy that named him as the insured policyholder and that Devingo originally advanced the premium on that general liability policy.

Devingo, on the other hand, testified that the plaintiff was able to speak, to understand and to read English capably and that (1) he did not train the plaintiff in the roofing trade, (2) the plaintiff provided his own tools and transportation to job sites, (3) he did not withhold taxes from the plaintiffs compensation, (4) he provided Internal Revenue Service form 1099 to the plaintiff in 1998 and 2000-2003, and (5) he paid the plaintiff according to each particular job rather than hourly. Devingo also testified that he did not control the plaintiffs work schedule, nor did he direct the manner of the plaintiffs work and was not on the work site on the day of the accident. Additionally, Devingo testified that the plaintiff had his own roofing business and that he would perform jobs for third parties, independent of the defendant. Moreover, Devingo testified that he informed the plaintiff that to continue installing roofs for the defendant, the plaintiff would need to become an independent contractor and to carry his own liability insurance. During this conversation, Devingo testified, he explained to the plaintiff that he was not covered under workers’ compensation insurance. Devingo further testified that, although he recommended the John M. Glover Agency (Glover) to the plaintiff, he did not make any payments on behalf of the plaintiff regarding that policy. Devingo also testified that he informed the plaintiff that to maintain his working relationship with the defendant, he would need to execute waiver forms declaring himself to be exempt from coverage under the act because he was an independent contractor. The plaintiff complied with these directives from Devingo.

The commissioner also heard testimony from former workers of the defendant and two employees from Glover. Both Glover employees testified that the plaintiff had obtained liability insurance policies through their agency prior to the accident. The commissioner also heard testimony from three homeowners with whom the plaintiff had contracted to perform roofing projects, independent of the defendant. In addition to the oral testimony, both parties introduced numerous exhibits, including (1) the plaintiffs business card, which stated, “Ramiro Roofing, Ramiro Rodriguez, owner. All types of roofs, wood shingles, copper work, etc. Free estimates”; (2) 1099 federal income tax forms for 1998 and 2000-2003 that were provided to the plaintiff by the defendant; (3) forms, signed by the plaintiff, stating that he acknowledged that he was not covered under the act; (4) a certified certificate of liability insurance naming the plaintiff as the insured policyholder providing coverage from March 29, 2003, to March 29, 2004; and (5) an estimate for roofing services from “Romero Rodriguez Roofing” dated October 31, 2002. At the close of the hearings, both parties submitted proposed findings and memoranda of law in support of their respective positions.

On January 10, 2008, the commissioner issued an eight page finding and dismissal of the plaintiffs claim. In that decision, the commissioner determined that the sole issue presented was whether the plaintiff “was an employee of [the defendant] on June 14, 2003, when he suffered horrific and catastrophic injuries . . . .” Under the heading “the following facts are found,” the commissioner summarized the evidence introduced at trial into fifty numbered paragraphs, which were also interspersed with specific findings of fact. Two explicit findings of fact found by the commissioner were that “on the date of the accident . . . the [plaintiff] was using his own tools and was in the process of drying moist plywood with a torch when the explosion and fire occurred” and that the plaintiff was being paid at an hourly rate at the time of the accident. In addition to these explicit findings of fact, the commissioner’s decision also contained several implicit findings in which he discounted the plaintiffs testimony as not being credible. For example, the commissioner stated that “[t]he [plaintiff] testified that the alleged [e]mployer would drive [him] to the job site in various vehicles owed by [the defendant] and would set the hours and the places to be worked. The [plaintiff] testified that during the period of time that he was working with or for [the defendant], he did not do any outside jobs other than possibly one or two in his own name. That is not so found by the undersigned commissioner.” (Emphasis added.) With the exception of accepting the plaintiffs testimony in which he stated that he was paid hourly, the remainder of the commissioner’s conclusions relating to the plaintiffs credibility were stated in similar fashion. Seven paragraphs contained in the finding and dismissal discredited the plaintiffs testimony with similar language indicating that the purported fact was not so found by the commissioner. For example, the commissioner did not find credible the plaintiffs testimony that (1) Devingo had paid for the plaintiffs liability insurance policy with Glover and then subtracted portions of the amount of the premium from the plaintiffs weekly checks, (2) the plaintiff did not understand the consequences of obtaining his own liability insurance or signing exclusionary documents regarding his status as an independent contractor and (3) the plaintiff did not understand English.

At the conclusion of the finding of facts section, the commissioner set forth four definitive findings and conclusions in four separately lettered paragraphs that incorporated by reference the fifty paragraphs of evidence and facts cited previously. In that summation, the commissioner found: “Based on all of the evidence before me, I determine, conclude and find: (A) That prior to the date of the [plaintiffs] injuries he was able to speak and understand English and read English to some extent. (B) That notwithstanding the contradictory testimony regarding the method of payment [and] the control exercised by [the defendant] over the [plaintiff], the [plaintiff] of his own volition agreed to change his status from that of an employee with which he had begun his relationship with [the defendant] to that of an independent contractor. (C) That the [plaintiff] understood and reluctantly agreed to continue the relationship with [the defendant] after he was informed that he would become an independent contractor. (D) That the [plaintiff] knowingly signed the exclusionary forms for the workers’ compensation commission and the agreements stating that he was an independent contractor and, thusly, he was not an employee on the date of his injuries. Wherefore it is so ordered, adjudged and decreed that the [plaintiffs] claim for benefits must be dismissed because he was not an employee on the date of his injuries.” The plaintiff did not file a motion to correct, nor did he file a motion for articulation of the commissioner’s dismissal of his claim. Instead, the plaintiff appealed to the board from the commissioner’s dismissal.

On May 11, 2009, the board issued a memorandum of decision affirming the commissioner’s dismissal of the plaintiffs claim. The board stated that to ascertain whether the plaintiff was an employee or an independent contractor, “[t]wo central questions need to be resolved in the [plaintiffs] favor in order to award benefits .... The [plaintiff] must demonstrate he or she is credible and the [plaintiff] has the burden of proving the presence of an employer-employee relationship.” The board concluded that the commissioner, in the face of conflicting evidence, resolved those questions to the detriment of the plaintiff. Specifically, the board found that “[t]he subordinate facts in the finding and dismissal indicate [that] the [plaintiff] was using his own tools and was acting in an autonomous manner at the time of the injury. . . . Since [e]mployment status is patently a factual issue, and is subject to a significant level of deference on review ... we must respect the trial commissioner’s findings . . . ,” (Citations omitted; internal quotation marks omitted.) In applying those subordinate facts to this case, the board ultimately concluded that the commissioner properly applied the right to control test articulated by our Supreme Court in Hanson v. Transportation General, Inc., 245 Conn. 613, 624-25, 716 A.2d 857 (1998), finding that “the trial commissioner determined that the totality of factors did not support the finding of an employer-employee relationship.” On June 30, 2009, the plaintiff filed a motion for articulation with the board. The board denied that motion on July 14, 2009. This appeal followed. Additional facts will be set forth as necessary.

“We begin by setting forth the standard of review applicable to workers’ compensation appeals. The principles that govern our standard of review in workers’ compensation appeals are well established. . . . The board sits as an appellate tribunal reviewing the decision of the commissioner. . . . [T]he review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [T]he power and duty of determining the facts rests on the commissioner .... [T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses .... Where the subordinate facts allow for diverse inferences, the commissioner’s selection of the inference to be drawn must stand unless it is based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . .

“This court’s review of decisions of the board is similarly limited. . . . The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . [W]e must inteipret [the commissioner’s finding] with the goal of sustaining that conclusion in light of all of the other supporting evidence. . . . Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it.” (Citations omitted; internal quotation marks omitted.) Williams v. State, 124 Conn. App. 759, 763-64, 7 A.3d 385 (2010).

In this appeal, the plaintiff claims that the board improperly affirmed the commissioner’s finding that he was not an employee of the defendant at the time of the accident. The gravamen of the plaintiffs argument is that the commissioner improperly applied the right to control test by relying exclusively on one factor, namely, that the plaintiff executed certain forms in which he acknowledged that he was not covered under the act. After our careful review of the briefs and record before us, we cannot conclude that the commissioner incorrectly applied the right to control test when he determined that the plaintiff was not an employee of the defendant at the time of the accident.

“The determination of the status of an individual as an independent contractor or an employee is often difficult . . . and, in the absence of controlling circumstances, is a question of fact.” (Internal quotation marks omitted.) Chute v. Mobil Shipping & Transportation Co., 32 Conn. App. 16,19-20, 627 A.2d 956, cert. denied, 227 Conn. 919, 632 A.2d 688 (1993). Thus, the plaintiffs claim requires us to review a finding of fact. See Nationwide Mutual Ins. Co. v. Allen, 83 Conn. App. 526, 533, 850 A.2d 1047, cert. denied, 271 Conn. 907, 859 A.2d 562 (2004). “A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In applying the clearly erroneous standard to the findings of a trial court, we keep constantly in mind that our function is not to decide factual issues de novo. Our authority, when reviewing the findings of a judge, is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence. . . . The question for this court ... is not whether it would have made the findings the trial court did, but whether in view of the evidence and pleadings in the whole record it is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Id., 533-34.

Additionally, “[w]e are mindful of the principles underlying Connecticut practice in workmen’s compensation cases: that the legislation is remedial in nature . . . and that it should be broadly construed to accomplish its humanitarian purpose. ... It is still true, however, that the power and duty of determining the facts rests on the commissioner, the trier of facts.” (Citations omitted.) Adzima v. UAC/Norden Division, 177 Conn. 107, 117, 411 A.2d 924 (1979).

“Our courts have long recognized that independent contractors are not within the coverage of the . . . [a]ct. . . . The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work.” (Citation omitted; internal quotation marks omitted.) Chute v. Mobil Shipping & Transportation Co., supra, 32 Conn. App. 19-20. It is the totality of the evidence that determines whether a worker is an employee under the act, not “subordinate factual findings that, if viewed in isolation, might have supported a different determination.” Hanson v. Transportation General, Inc., supra, 245 Conn. 624-25. “For purposes of workers’ compensation, an independent contractor is defined as one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.” (Internal quotation marks omitted.) Chute v. Mobil Shipping & Transportation Co., supra, 20. “Many factors are ordinarily present for consideration, no one of which is, by itself, necessarily conclusive. While the method of paying by the hour or day rather than by a fixed sum is characteristic of the relationship of employer and employee, it is not decisive. . . . Nor is it decisive that the injured party uses his own tools and equipment. . . . The retention of the right to discharge, upon which the finding is silent, is a strong, but again not a controlling, indication that the relationship is one of employment.” (Citations omitted.) Bourgeois v. Cacciapuoti, 138 Conn. 317, 321, 84 A.2d 122 (1951). Other persuasive factors that a person is holding oneself out to be an independent contractor include the issuance of 1099 federal tax forms; see Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 699, 651 A.2d 1286 (1995); and engaging independently in business with third parties and doing business apart from the putative employer under a different name. See Chute v. Mobil Shipping & Transportation Co., supra, 20-21. With those principles and the clearly erroneous standard of review to guide our inquiry, we now turn to the commissioner’s finding and dismissal.

After our thorough review of the record, we conclude that the evidence presented was sufficient to support the commissioner’s finding that the plaintiff was an independent contractor and, thus, not an employee of the defendant at the time of the accident. Although the commissioner’s finding and dismissal was not artfully drafted, we are satisfied that the evidence before the commissioner could have supported the finding that the plaintiff held himself out to be an independent contractor and, thus, is not clearly erroneous. See id.

In the present case, the burden rested with the plaintiff to prove that he was an employee. Bourgeois v. Cacciapuoti, supra, 138 Conn. 321. In his decision, the commissioner explicitly found that the plaintiff was using his own tools at the time of the accident and that he also was paid at an hourly rate. Although, under different circumstances, those factors could appear to be at odds in determining the plaintiffs employment status, the commissioner’s finding that the plaintiff was an independent contractor is supported when viewed in light of all of the evidence introduced during the hearings. For example, the commissioner was presented with evidence that the plaintiff (1) owned his own roofing business, (2) hired his own workers to complete roofing jobs for the defendant, (3) completed roofing jobs for the defendant in an autonomous manner, (4) contracted and completed roofing jobs independent of the defendant, (5) independently executed a general liability insurance policy and (6) received annual 1099 federal tax forms from the defendant. Last, it is clear from the commissioner’s finding and dismissal that he did not find the plaintiff credible, as evidenced by his multiple findings that discredited the plaintiffs testimony. See Daubert v. Naugatuck, 267 Conn. 583, 590-91, 840 A.2d 1152 (2004) (plaintiff unable to sustain burden of proof when workers’ compensation commissioner found plaintiffs testimony not to be credible).

The plaintiff argues that the commissioner improperly rendered his determination on the basis of one factor rather than the totality of the evidence. To support this premise, the plaintiff relies on paragraph D of the commissioner’s conclusion that stated that “the [plaintiff] knowingly signed the exclusionary forms for the workers’ compensation commission and the agreements stating that he was an independent contractor and, thusly, he was not an employee on the date of his injuries.” (Emphasis added.) The plaintiff asserted that the commissioner’s use of the adverb “thusly” definitively established that the commissioner relied exclusively on that one factor. We disagree.

First, the commissioner was not required to explain, pursuant to § 31-301-3 of Regulations of Connecticut State Agencies, how he arrived at his final determination after culling through the evidence. See Cable v. Bic Corp., 270 Conn. 433, 440-41, 854 A.2d 1057 (2004). Second, the plaintiffs argument ignores the preceding heading under which the commissioner states unequivocally that “[b]ased on all the evidence before me, I determine, conclude and find . . . .” (Emphasis added.) The plaintiff also misinterprets the factual finding, in paragraph B, in which the commissioner found that notwithstanding contradictory evidence, the plaintiff, “of his own volition,” agreed to change his employment status to that of an independent contractor. On the basis of the foregoing, it is not unreasonable to infer that the commissioner believed that the plaintiff held himself out to be an independent contractor and that this determination was based on all the evidence before him. Although we agree with the plaintiff that had the commissioner relied exclusively on the execution of the exclusionary waiver forms to guide his analysis, such a reliance would have resulted in an incorrect application of the law; see Latimer v. Administrator, 216 Conn. 237, 251-52, 579 A.2d 497 (1990) (signed agreement between worker and employer characterizing worker as independent contractor not dispositive of employment status); we conclude that this argument is not supported when viewed in conjunction with the entire record. As we have stated, there was ample evidence in the record to support the finding that the plaintiff was an independent contractor. Whether we agree with that finding is not relevant to our review. An equally important principle in our review is that we cannot conclude that the commissioner’s finding is clearly erroneous on the basis of subordinate factual findings that, even if viewed in isolation, might have supported a different determination. See Hanson v. Transportation General, Inc., supra, 245 Conn. 624.

In light of the foregoing, we cannot conclude that the subordinate facts and evidence do not support the commissioner’s decision that at some point prior to the accident, the plaintiff made a conscious choice to change his employment status from that of employee to independent contractor. Moreover, we cannot conclude that the commissioner’s determination relied on an inference that was illegally or unreasonably drawn from those facts or the evidence in the record. Nor can we as a “reviewing court . . . set aside that inference because the opposite one is thought to be more reasonable; nor can the opposite inference be substituted by [this] court because of a belief that the one chosen by the [commissioner] is factually questionable.” (Internal quotation marks omitted.) Daubert v. Naugatuck, supra, 267 Conn. 590. Accordingly, we are unable to conclude that the board erred when it found that the commissioner’s dismissal of the plaintiffs claim was not clearly erroneous.

The decision is affirmed.

In this opinion the other judges concurred.

       The second injury fund is a defendant and joined E.D. Construction Inc., on its appellate brief. Travelers Property & Casualty Insurance and CNA Claims Plus are also defendants but have not participated in this appeal. For convenience, we refer in this opinion to E.D. Construction, Inc., as the defendant.

       “The Workers’ Compensation Act . . . General Statutes § 31-275 et seq., provides benefits only for those workers who have the status of ‘employees’ at the time of their injury.” Hanson v. Transportation General, Inc., 245 Conn. 613, 614, 716 A.2d 857 (1998).

       The defendant stopped operations at some point after the plaintiffs accident.

       Devingo testified that once he subcontracted a roofing job to the plaintiff, the plaintiff would subsequently retain his own employees to assist in the completion of that job. Devingo testified that he had no input regarding the personnel that the plaintiff chose to hire for those jobs, nor did he have an arrangement for paying those individuals.

       Devingo testified that he informed the plaintiff expressly that, as a result of the execution of these documents, he was not covered under workers’ compensation insurance and that he was covered only by his own liability insurance policy. The record also indicates that Devingo had been advised by his accountant to have workers who were performing roofing jobs for the defendant sign these exclusionary forms and obtain their own liability insurance. Devingo testified 1hat the defendant’s workers’ compensation insurance policy had been cancelled because of a dispute between the defendant and its insurer regarding the number of employees who were employed by the defendant. See ED Construction, Inc. v. CNA Ins. Co., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-06-4008420-S (August 27, 2009).

       Additionally, the commissioner heard testimony from Chris Rose, the manager of All-Star Carting of Norwalk (All-Star), who testified that All-Star rented a dumpster to the plaintiff for a job in Bridgeport.

       Although the spelling of the plaintiffs first name on this invoice appears different from that on his business cards, the addresses provided on both documents are vituaily identical.

       On October 24,2007, the plaintiff submitted a seventy-two page proposed finding and award to the commissioner, which contained 531 findings of fact coupled with five conclusions. In support of his proposed finding and award, the plaintiff also submitted an eighteen page memorandum of law arguing that “[t]he [plaintiff] is clearly an employee of the [defendant]. The [defendant] had the right to control and did control the [plaintiff].”
      Conversely, the defendant submitted a sixteen page proposed “findings and dismissal/brief ’ on October 29, 2010. In its brief, the defendant argued that the plaintiff was an independent contractor and that the defendant did not possess the right to control his installation of the rubber roof on the day of the accident.

       Our close reading of the first part of the commissioner’s decision reveals that many of his “findings” were mere recitations of witness testimony or synoptic reviews of the evidence introduced during the trial.

       In its memorandum of decision, the board stated that “the [plaintiff] . . . was paid in a manner consistent with independent contractor status . . . .’’Although this conclusion did not appear to comport with the commissioner’s finding that the plaintiff was paid on an hourly basis, it does not appear to have been dispositive in the board’s analysis of the commissioner’s decision. In affirming the commissioner’s dismissal, the board relied on the commissioner’s finding that the plaintiff used his own tools, was acting in an autonomous manner at the time of the injury and that the plaintiff was not a credible witness. Assuming, arguendo, that the board’s conclusion was erroneous, we conclude that that finding was harmless because there was sufficient evidence in the record to support the board’s affirmance of the commissioner’s decision. See Henry v. Statewide Grievance Committee, 111 Conn. App. 12, 28, 957 A.2d 547 (2008).

       In his motion for articulation, the plaintiff requested, in relevant part, that the board articulate the following: (1) whether it found that the commissioner “applied the ‘right to control’ analysis and, if so, what part or parts of the . . . [c]ommissioner’s ruling supports that finding” and (2) “[i]/the . . . ‘right to control test’ was applied . . . what facts found by the . . . [c]om-missioner squarely address [the plaintiffs] credibility with respect to that legal standard.” (Emphasis in original.) The plaintiff did not seek review of the board’s denial of his motion for articulation pursuant to Practice Book § 66-5.

       Section 31-301-3 of the Regulations of Connecticut State Agencies provides: “The finding of the commissioner should contain only the ultimate relevant and material facts essential to the case in hand and found by him, together with a statement of his conclusions and the claims of law made by the parties. It should not contain excerpts from evidence or merely evidential facts, nor the reasons for his conclusions. The opinions, beliefs, reasons and argument of the commissioner should be expressed in the memorandum of decision, if any be filed, so far as they may be helpful in the decision of the case.” See also Cable v. Bic Corp., 270 Conn. 433,440-41, 854 A.2d 1057 (2004).

        Notwithstanding the fact that the commissioner’s findings and dismissal strayed from the template typically followed in workers’ compensation decisions; see 2 A. Sevarino, Connecticut Workers’ Compensation After Reforms (3d Ed. 2008) exhibit 75, pp. 211-15; the commissioner’s factual finding that the plaintiff was an independent contractor must stand unless found to be clearly erroneous. See Nationwide Mutual Ins. Co. v. Allen, supra, 83 Conn. App. 533-34. Coupling the fact that the commissioner did not find the plaintiff credible, with the evidence contained in the record, we cannot conclude that the commissioner’s finding was clearly erroneous. See Daubert v. Naugatuck, 267 Conn. 583, 590-91, 840 A.2d 1152 (2004).

       The plaintiff also argues that he was prejudiced when the commissioner refused to take administrative notice of a similar workers’ compensation commission decision that also involved the defendant. In addition, the plaintiff asserts that this refusal further illustrated the commissioner’s failure to consider all the relevant factors in rendering his decision. We are not persuaded.
      The decision whether to take administrative notice of prior proceedings falls squarely within the discretion of the commissioner. See Herbert v. RWA, Inc., 48 Conn. App. 449, 458, 709 A.2d 1149, cert. denied, 246 Conn. 901, 717 A.2d 239 (1998). In the present case, the commissioner properly exercised his discretion not to take administrative notice of a prior decision that might have unduly influenced him, stating: “I don’t think it would be proper for me to take administrative notice of [that decision] .... I mean I’m hearing the evidence here and it’s a different individual . . . .” As we noted previously in this opinion, there was sufficient evidence in the record to support the commissioner’s finding and dismissal and there is no evidence to suggest that the commissioner relied on incorrect information. Accordingly, we conclude that, in exercising his discretion, the commissioner did not prejudice the plaintiff. See Herbert v. RWA, Inc., supra, 458.

       Although the commissioner was not required to explain how he applied the right to control test, we note that this standard is not an attendant license for workers’ compensation commissioners to prepare poorly drafted findings in rendering their decisions.

       Additionally, we note that the plaintiff thoroughly addressed the application of the right to control analysis to the particular facts of this case in his proposed finding and award and memorandum of law to the commissioner. See footnote 8 of this opinion. In the absence of any indication to the contrary, we conclude that the commissioner properly applied that correct legal standard. See Cable v. Bio Corp., supra, 270 Conn. 441-42.