author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. TERRANCE R.A. JACOB
    (AC 21375)
    Mihalakos, Flynn and Shea, Js.

      Argued November 30, 2001
    officially released May 14, 2002

      Terrance R.A. Jacob, pro se, the appellant (acquittee).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Vicki Melchiorre, supervisory assistant state’s attorney, for the appellee (state).

      Gerard A. Smyth, chief public defender, Monte P. Radler, public defender, and Suzanne L. McAlpine, deputy assistant public defender, filed a brief for the office of chief public defender as amicus curiae.
   Opinion

FLYNN, J.

The acquittee, Terrance R.A. Jacob, appeals from the judgment of the trial court dismissing his application for discharge from the custody and jurisdiction of the psychiatric security review board (board). On appeal, the acquittee claims that (1) General Statutes § 17a-593 violates the due process rights of Connecticut acquittees because it is unconstitutionally vague, (2) the court’s finding that the acquittee is currently mentally ill to the extent that his discharge would constitute “a danger to himself or others” was not supported by the evidence presented at the hearing, (3) the court’s finding that the acquittee is currently mentally ill to the extent that his discharge would constitute “a danger to himself or others” was in contravention of the United States Supreme Court’s holding in Foucha v. Louisiana, 504 U.S. 71, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992), and (4) the court’s denial of the acquittee’s application for discharge was improperly based on information that was either misinterpreted by the court or false. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. In 1986, following the stabbing and robbing of a nun who had offered him a ride in her car because she thought he was a stranded motorist, the acquittee was charged with the crimes of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), assault in the second degree in violation of General Statutes § 53a-60 (a) (2) and larceny in the first degree in violation of General Statutes § 53a-122 (a) (3). On May 11, 1987, he was found not guilty by reason of mental disease or defect pursuant to General Statutes § 53a-13. On July 13, 1987, following an initial commitment to the custody of the commissioner of mental health and addiction services for a psychiatric evaluation pursuant to General Statutes § 17a-582 (a), the court, W. Sullivan, J., committed the acquittee to the jurisdiction of the board for a period not to exceed twenty years.

On September 22, 1999, in accordance with § 17a-593 (a), the acquittee filed an application with the court seeking a discharge from the custody and jurisdiction of the board. The court forwarded the acquittee’s application to the board, which held a hearing on the application pursuant to § 17a-593 (d). On April 20, 2000, the board filed a report with the court recommending that the acquittee not be discharged from its jurisdiction because it found that the acquittee “remains mentally ill and continues to require treatment and supervision for that illness and that without such treatment [he] would pose a danger to himself or others.” After receipt of that report, the court, Richards, J., promptly held a hearing on the acquittee’s application for discharge pursuant to § 17a-593 (f). On the basis of its consideration of the testimony of the five witnesses who appeared at the hearing: Peter Zeman, Kenneth Selig and Patrick Fox, psychiatrists; Stephen Curtain, the acquittee’s employer; and the acquittee himself, and all of the other evidence, the court concluded that the acquittee was currently mentally ill to the extent that his discharge would constitute a danger to himself or others. The court, therefore, dismissed the acquittee’s application for discharge. This appeal followed. Additional facts will be set forth as necessary.

I

The acquittee first claims that § 17a-593 violates the right of Connecticut acquittees to due process of law because it is impermissibly vague. In support of this claim, the acquittee advances two arguments. First, he argues that § 17a-593 is unconstitutionally vague because it requires an acquittee to prove by a preponderance of the evidence that he is no longer mentally ill to the extent that his discharge would pose a danger to himself or others, yet it fails to define “danger” or “dangerous.” Second, he argues that the statute is unconstitutionally vague because it requires an acquittee to prove that his discharge will not constitute a danger to himself or others, which necessarily requires making a prediction about future conduct. He claims that no acquittee can meet this burden of proof because it is virtually impossible to predict future conduct. We conclude that § 17a-593 is not unconstitutionally vague.

The acquittee did not raise the vagueness claim in the trial court. A party can prevail on an issue not raised at trial only if all of the four requirements set out in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), have been met. We conclude that the first two prongs of Golding have been satisfied in that the record is adequate for review and the acquittee’s claim is of constitutional magnitude. The acquittee has failed, however, to satisfy the third prong of Golding, which requires that a constitutional violation clearly existed and clearly deprived him of the right to a fair trial.

At the outset we note our standard of review. “In analyzing this claim, we proceed from the well recognized jurisprudential principle that [t]he party attacking a validly enacted statute . . . bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute’s constitutionality.” (Internal quotation marks omitted.) Thalheim v. Greenwich, 256 Conn. 628, 640, 775 A.2d 947 (2001).

We now turn to the statute at issue, § 17a-593. Under this statute, “[a]n acquittee may apply for discharge [from the jurisdiction of the board] not more than once every six months . . . .” General Statutes § 17a-593 (a). “The court shall forward any application for discharge received from the acquittee ... to the board. The board shall . . . file a report with the court, and send a copy thereof to the state’s attorney and counsel for the acquittee, setting forth its findings and conclusions as to whether the acquittee is a person who should be discharged. The board may hold a hearing or take other action appropriate to assist it in preparing its report.” General Statutes § 17a-593 (d). “Within ten days of receipt ... of the board’s report filed under subsection (d) of this section, either the state’s attorney or counsel for the acquittee may file notice of intent to perform a separate examination of the acquittee. An examination conducted on behalf of the acquittee may be performed by a psychiatrist or psychologist of the acquittee’s own choice and shall be performed at the expense of the acquittee unless he is indigent. If the acquittee is indigent, the court shall provide him with the services of a psychiatrist or psychologist to perform the examination at the expense of the state. . . .” General Statutes § 17a-593 (e).

“After receipt of the board’s report and any separate examination reports, the court shall promptly commence a hearing on the . . . application for discharge .... At the hearing, the acquittee shall have the burden of proving by a preponderance of the evidence that the acquittee is a person who should be discharged.” General Statutes § 17a-593 (f). A “ ‘[p]erson who should be discharged’ means an acquittee who does not have psychiatric disabilities ... to the extent that his discharge would constitute a danger to himself or others . . . .” General Statutes § 17a-580 (11). “ ‘Danger to himself or others’ includes danger to the property of others.” General Statutes § 17a-580 (5).

After the hearing, “[t]he court shall make a finding as to the mental condition of the acquittee and, considering that its primary concern is the protection of society, make one of the following orders: (1) If the court finds that the acquittee is not a person who should be discharged, the court shall order the . . . application for discharge be dismissed; or (2) if the court finds that the acquittee is a person who should be discharged, the court shall order the acquittee discharged from custody. . . .” General Statutes § 17a-593 (g).

We now set forth the law pertaining to vagueness claims. “The void for vagueness doctrinéis a procedural due process concept that originally was derived from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution.” State v. Burton, 258 Conn. 153, 158, 778 A.2d 955 (2001). “The essential purpose of the ‘void for vagueness’ doctrine is to warn individuals of the criminal consequences of their conduct. . . . [C]riminal statutes which fail to give due notice that an act has been made criminal before it is done are unconstitutional deprivations of due process of law.” (Citations omitted; emphasis added.) Jordan v. De George, 341 U.S. 223, 230, 71 S. Ct. 703, 95 L. Ed. 886 (1951).

We note that the statute at issue in the present case, § 17a-593, is not a criminal statute. “[T]he confinement of insanity acquittees, although resulting initially from an adjudication in the criminal justice system, is not ‘punishment’ for a crime. The puipose of commitment following an insanity acquittal, like that of civil commitment, is to treat the individual’s mental illness and protect him and society from his potential dangerousness.” (Internal quotation marks omitted.) Payne v. Fairfield Hills Hospital, 215 Conn. 675, 683-84, 578 A.2d 1025 (1990). We also note that § 17a-593 was not intended to guide any individual conduct on the part of the acquittee but, rather, it serves to guide the court in making a determination about whether an acquittee is a “person who should be discharged.” In that sense, it is similar to the now repealed proportionality review provisions of the death penalty statute, which also were enacted as a guide to the court and which have been held to survive a vagueness challenge. See State v. Webb, 238 Conn. 389, 530-32, 680 A.2d 147 (1996) (proportionality review statute does not impermissibly delegate law enforcement to judges for resolution on an ad hoc and subjective basis).

“While a statute may be invalidated as impermissibly vague as a result of a failure to give fair warning of the conduct proscribed by law, generally, the fair-warning requirement is not applicable to commitment scheme challenges, since the person is not confined as a result of any particular acts he or she may have performed, but is instead confined on the basis of his or her status. . . .”53 Am. Jur. 2d 464, Mentally Impaired Persons § 4 (1996).

We, nonetheless, apply the void for vagueness doctrine to § 17a-593 in recognition of the fact that involuntary commitment imposes a significant curtailment on liberty. See, e.g., Jordan v. De George, supra, 341 U.S. 231 (applying vagueness doctrine in view of grave nature of deportation, despite fact that deportation statute at issue was not criminal statute).

“[C]ommitment for any puipose constitutes a significant deprivation of liberty that requires due process protection.” (Internal quotation marks omitted.) Jones v. United States, 463 U.S. 354, 361, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983), quoting Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979).

A

The acquittee first claims that § 17a-593 is unconstitutionally vague because it requires a Connecticut acquittee to prove by a preponderance of the evidence that his discharge would not pose a “danger to himself or others” but does not define “danger” or “dangerous.” The acquittee further claims that because the word “danger” has been defined by § 17a-580 (5) to include danger to property, it has been given a meaning different from that of its ordinary meaning for purposes of a § 17a-593 hearing. We disagree.

The lack of an express definition does not, in and of itself, render a statute void for vagueness. See Ferreira v. Pringle, 255 Conn. 330, 356, 766 A.2d 400 (2001). “[T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute . . . and the guarantee against standardless law enforcement. ... If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties. . . . Reference to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute’s meaning to determine if it gives fair warning.” (Citation omitted; internal quotation marks omitted.) Id., 355-56.

General Statutes § 1-1 (a) provides: “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.”

According to Merriam-Webster’s Collegiate Dictionary (10th Ed. 1999), “danger” means “exposure or liability to injury, pain, harm or loss . . . .” “Dangerous” means “able or likely to inflict injury or harm.” Id.

We also note that before there was a separate statutory scheme applying specifically to insanity acquittees, acquittees were treated no differently from persons who were otherwise involuntarily committed because of mental illness under the civil commitment statutes. See Warren v. Commissioner of Mental Health, 43 Conn. App. 592, 594, 685 A.2d 332 (1996), cert. denied, 240 Conn. 901, 688 A.2d 331 (1997). Although the statutory scheme that applies to the confinement of insanity acquittees does not define the phrase “danger to himself or others,” the statutory scheme pertaining to civil commitments does define that phrase. General Statutes § 17a-495 (a) and (b) provide in relevant part that “ ‘dangerous to himself or herself or others’ means there is a substantial risk that physical harm will be inflicted by an individual upon his or her own person or upon another person . . . .”

We see no reason why the legislature would have employed nearly identical phrases in both the civil commitment and the insanity acquittee commitment statutory schemes if it did not intend those phrases to have the same meaning. “[T]he legislature is presumed to exercise its statutory authority . . . with the intention of creating one consistent body of law. . . . An identical term used in [statutory provisions] pertaining to the same subject matter should not be read to have differing meanings unless there is some indication from the legislature that it intended such a result.” (Internal quotation marks omitted.) In re Baby Z., 247 Conn. 474, 500, 724 A.2d 1035 (1999).

Further, the definition of “dangerous to himself or herself or others” contained in § 17a-495 (a) and (b) corresponds with the commonly approved usage of the terms “danger” and “dangerous,” and is in keeping with the manner in which our Supreme Court has interpreted those terms. See, e.g., State v. Lafferty, 192 Conn. 571, 573, 472 A.2d 1275 (1984) (“we construe the term ‘danger’ according to the ‘commonly approved usage of the language’ ”).

Our Supreme Court’s interpretations of “danger” and “dangerous,” as those terms are applied to the confinement, evaluation and release of an insanity acquittee, are of particular importance in this case because in determining whether a “statute is too vague and indefinite to constitute valid legislation we must take the statute as though it read precisely as the highest court of the State has interpreted it.” (Internal quotation marks omitted.) Kolender v. Lawson, 461 U.S. 352, 355-56 n.4, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983).

In State v. Putnoki, 200 Conn. 208, 510 A.2d 1329 (1986), our Supreme Court explained that “the determination of dangerousness in the context of a mental status hearing reflects a societal rather than a medical judgment, in which the rights and needs of the [acquittee] must be balanced against the security interests of society. . . . [Although we recognize that medical opinion may inform the court’s decision] [t]he ‘awesome task’ of weighing these two interests and arriving at a decision concerning release rests finally with the trial court. ... In reaching its difficult decision, the court may and should consider the entire record available to it, including the [acquittee’s] history of mental illness, his present and past diagnoses, his past violent behavior, the nature of the offense for which he was prosecuted, the need for continued medication and therapy, and the prospects for supervision if released.” (Citations omitted.) Id., 221.

We conclude that the ordinary meaning of the terms “danger” and “dangerous,” the statutory definition set out in § 17a-495 (a) and (b) and our Supreme Court’s interpretation of “dangerousness” provide Connecticut acquittees with fair warning of what “danger to himself or others” means for purposes of a § 17a-593 discharge application hearing, as well as the factors that a court may and should consider in making such a determination.

We also note that although the acquittee claims that the word “danger” is used in other than its ordinary sense because it “includes” danger to property, he provides no support for this contention. The terms “include” or “including” may be used to limit or expand the meaning of a word, or not. See State v. DeFrancesco, 235 Conn. 426, 434-35, 668 A.2d 348 (1995). We conclude, despite the acquittee’s claim to the contrary, that the word “danger” is used in its ordinary sense for purposes of a § 17a-593 hearing, and the fact that its meaning has been expanded to include danger to the property of others does not change the meaning of the word, but simply makes the definition of the word “danger” more inclusive. The meaning of the word “danger” is the same whether it relates to persons or property. In other words, under § 17a-593, an acquittee may not be discharged if, upon release, he would pose a danger to himself, to others, or to thie property of others, as a result of his mental illness.

B

The acquittee next claims that § 17a-593 is unconstitutionally vague because it requires an acquittee to prove by a preponderance of the evidence that he is not mentally ill to such a degree that his mental condition “would constitute a danger to himself or others” in the community if discharged. He claims that this requirement is unconstitutionally vague because it places upon him the burden to prove something that is virtually impossible to prove, his own future conduct. We disagree.

“It is, of course, not easy to predict future behavior.” Jurek v. Texas, 428 U.S. 262, 274, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976). “Predictions of future dangerousness are difficult for both psychiatrists and the courts to make because of the ‘inherent vagueness of the concept itself,’ and such determinations must be dealt with by trial courts to a considerable extent on a case-by-case basis.” State v. Gates, 198 Conn. 397, 403, 503 A.2d 163 (1986).

“The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system. The decision whether to admit a defendant to bail, for instance, must often turn on a judge’s prediction of the defendant’s future conduct. And any sentencing authority must predict a convicted person’s probable future conduct when it engages in the process of determining what punishment to impose. For those sentenced to prison, these same predictions must be made by parole authorities.” Jurek v. Texas, supra, 428 U.S. 274-75; see also State v. Gates, supra, 198 Conn. 403-404. Additionally, our probate courts must make assessments regarding the potential dangerousness of mentally ill individuals in the context of involuntary civil commitments. See generally General Statutes §§ 17a-497 through 17a-499. “What is essential is that the [trier of fact] have before it all possible relevant information about the individual defendant whose fate it must determine.” Jurek v. Texas, supra, 276.

In the present case, the acquittee does not claim that § 17a-593 hinders an acquittee’s ability to introduce such evidence; he simply claims that, regardless of the evidence introduced, an acquittee cannot meet his burden of proving that he would not pose a danger to himself or the community, if discharged, because future conduct is impossible to prove. We have already concluded that courts can and do make such determinations on a daily basis.

We also note that other courts have previously rejected similar arguments that it is impossible for an acquittee to meet his burden of proving that he will not constitute a danger upon discharge. See, e.g., Glatz v. Kort, 807 F.2d 1514, 1521 (10th Cir. 1986) (Colorado release procedures, which require insanity acquittee to prove that he has no abnormal condition that would likely cause him to be dangerous, not unconstitutionally vague because procedure merely requires court to predict future conduct of acquittee).

For all of the foregoing reasons, we conclude that the acquittee has failed to meet his burden of proving beyond a reasonable doubt that § 17a-593 is unconstitutionally vague. Accordingly, the acquittee has failed to satisfy the third prong of Golding, which requires that a clear constitutional violation existed and, therefore, his claim fails.

II

The acquittee next claims that the court’s finding that he is currently mentally ill to such a degree that his discharge would constitute a danger to himself or others was not supported by the evidence adduced at the hearing and, therefore, the court’s decision to dismiss his application for discharge was legally incorrect. We disagree.

The determination as to whether an acquittee is currently mentally ill to the extent that he would pose a danger to himself or the community if discharged is a question of fact and, therefore, our review of this finding is governed by the clearly erroneous standard. See State v. Warren, 169 Conn. 207, 211-12, 363 A.2d 91 (1975). “A finding is clearly erroneous 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 ... 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.” (Internal quotation marks omitted.) In re Ebony H., 68 Conn. App. 342, 348 n.4, 789 A.2d 1158 (2002).

The acquittee claims that there was no evidence adduced at the hearing that tended to show that he was either currently mentally ill or dangerous. In support of this contention he claims that Zeman and Selig, the psychiatrists who testified on his behalf at the hearing, stated that the acquittee is not currently mentally ill and does not present a danger to himself or others. He further claims that even Fox, the psychiatrist who testified on behalf of the state, indicated that the acquittee was not suffering from a psychotic illness and was not dangerous but that, in his opinion, the acquittee was not yet ready to be released from the jurisdiction of the board. We disagree with the acquittee’s characterization of the testimony.

“Implicit in this argument are two assumptions: that the determination of dangerousness is a medical rather than a legal decision, and that the trial court was bound by the testimony and conclusions of the psychiatrists. Both assumptions are incorrect. Although a trial court may choose to attach special weight to the testimony of medical experts at a hearing to determine mental status, the ultimate determination of mental illness and dangerousness is a legal decision. . . . Partly because definitions of dangerousness are necessarily vague . . . and partly because there are no ‘psychological or physical signs or symptoms which can be reliably used to discriminate between the potentially dangerous and the harmless individual’ . . . psychiatric predictions of future dangerousness are tentative at best and are frequently conceded, even within the profession, to be unreliable.” (Citations omitted.) State v. Putnoki, supra, 200 Conn. 219-20.

“In addition, the goals of a treating psychiatrist frequently conflict with the goals of the criminal justice system. . . . While the psychiatrist must be concerned primarily with therapeutic goals, the court must give priority to the public safety ramifications of releasing from confinement an individual who has already shown a propensity for violence.” (Citation omitted.) Id., 220-21.

“Although psychiatric testimony as to the defendant’s condition may form an important part of the trial court’s ultimate determination, the court is not bound by this evidence. ... It may, in its discretion, accept all, part, or none of the experts’ testimony.” (Citations omitted.) Id., 221.

Accordingly, although the acquittee in the present case had two experts, Zeman and Selig, testify that he was not currently mentally ill and that he would not pose a danger to himself or others in the community if he were discharged from the jurisdiction of the board, as opposed to the state’s one witness, the court was not bound to accept their testimony. “The [trier of fact] is at liberty to believe the testimony of any one witness against any number, or to weigh the evidence presented without regard to the number of witnesses who may testify to one particular fact, that is, without being controlled by the fact that more witnesses testify to one set of circumstances than to another.” 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 61d, p. 394. Here, the court specifically noted that the testimony of the acquittee’s experts did not provide the court with enough confidence that the acquittee was no longer suffering from a mental disability. In addition, despite the acquittee’s claim to the contrary, Fox did testify that the acquittee currently had an Axis I diagnosis that was just not manifesting itself at that time. According to Fox, the acquittee carried a diagnosis of depressive disorder, in remission, and polysubstance abuse, in a controlled environment. Fox also testified that the acquittee had an Axis II diagnosis, personality disorder. The court also noted that Fox had met with the acquittee on numerous occasions and that, of the three experts who testified at trial, Fox had met with the acquittee most recently. We also note that the acquittee conceded at oral argument before this court that he was mentally ill and required further therapy.

The record also reveals that at the hearing Zeman and the acquittee himself admitted that if discharged, the acquittee would still need further therapy. They both conceded, however, that after discharge the acquittee’s submission to therapy would have to be on a voluntary basis because, at that point, the acquittee would no longer be under the jurisdiction of the board and it, therefore, could not require him to submit to therapy. Also, the court noted that the acquittee exhibited a lack of cooperativeness and that in light of that tendency, the court was not convinced that if released the acquittee would seek the therapy he admittedly needs.

The record reveals that the acquittee has had a long history of mental illness and hospitalization that first began when the acquittee was about fourteen years old, and that he has been institutionalized most of his life.

Also, there was evidence in the record that the incident that led to the acquittee’s commitment, his attack on the mm, was precipitated by his ongoing depression and drug abuse. Fox testified that, in his opinion, the acquittee was not yet ready to cope with the day-today stress that he would face upon discharge and that it was stress that contributed to the acquittee’s previous depression and drug abuse. Fox further testified that the acquittee needs structure and a gradual transition into the community and that he was concerned that if discharged now the acquittee would relapse. He also testified that if the acquittee did relapse and failed to seek therapy, he might again become depressed or abuse drugs. On the basis of this testimony, it was not unreasonable for the court to find that it was likely that if discharged, the acquittee might experience a relapse and that if he did experience a relapse but failed to seek the therapy he needs, he could again engage in the type of dangerous behavior that led to his commitment in the first place.

Furthermore, the court noted that all of the experts agreed that, to some extent, past behavior is a good indicator of future behavior. The record reveals that besides the incident that originally led to his commitment, while the acquittee was a resident at Norwich State Hospital, he tied another patient to a bed with bedsheets and then, in an effort to free him, lit the bedsheets on fire. On another occasion, the acquittee attempted suicide. The acquittee testified that the suicide attempt was the result of stress he faced at a time when the board was attempting to transition him into the community and his first wife had filed for divorce. Although, as the acquittee points out, this conduct occurred many years prior to the hearing and the determination as to whether he should be discharged must be based on whether he is currently dangerous due to a mental illness, the acquittee’s past violent behavior and the nature of the offense of which he was acquitted are not irrelevant factors in determining current dangerousness. See State v. Putnoki, supra, 200 Conn. 221-22.

The court specifically noted that the acquittee had made significant progress toward recovery and, consequently, was allowed to the leave the grounds of the hospital for extended periods of time to engage in employment and to visit with his wife. It also noted that the acquittee does not now require any psychotropic medications. Despite the court’s recognition of these facts, it was not unreasonable for it to also take into consideration the fact that although the acquittee had not engaged in any dangerous conduct recently, this is due, in part, to the progress he has made since the time of his original commitment and, in part, to the fact that he has been confined, supervised and receiving treatment and, therefore, was less likely to do so.

We cannot conclude, on the basis of the record before us, that the court’s finding that the acquittee is currently mentally ill to the extent that his discharge would constitute a danger to himself or others was clearly erroneous.

We also cannot conclude, on the basis of that finding, that the court’s conclusion that the acquittee’s application should be dismissed was legally incorrect. Section 17a-593 (g) requires the court to dismiss the application if it finds that the acquittee is not a person who should be discharged. The acquittee is a person who should be discharged if he does not have a mental disability to the extent that his discharge would pose a danger to himself or the community. See General Statutes § 17a-580 (11). In the present case, the evidence adduced at the hearing amply supported the court’s finding that the acquittee was currently mentally ill and dangerous. We, therefore, conclude that the court was legally and logically correct in concluding that the acquittee was not a person who should be discharged and that his application for discharge should be denied.

III

The acquittee next claims that the court’s finding that he was currently dangerous and mentally ill is in contravention of Foucha v. Louisiana, supra, 504 U.S. 71. We disagree.

In Foucha v. Louisiana, supra, 504 U.S. 71, the United States Supreme Court declared unconstitutional a Louisiana statute that allowed an insanity acquittee to be committed indefinitely to a mental institution until he was able to demonstrate .that he was not dangerous to himself or others, despite the fact that he no longer suffered from any mental illness. Id., 75-85. The court reiterated the principle it first announced in Jones v. United States, supra, 463 U.S. 368, that, as a matter of due process, an acquittee is entitled to release when he either (1) recovered his sanity or (2) is no longer dangerous. Foucha v. Louisiana, supra, 77. The Connecticut Supreme Court has applied this principle, that as a matter of due process, an acquittee is entitled to be released when he has either recovered his sanity or is no longer dangerous. State v. Metz, 230 Conn. 400, 417-18, 645 A.2d 965 (1994).

A

The acquittee first contends that the court’s finding that he would pose a danger if discharged contravenes the holding in Foucha because none of the witnesses who testified at the hearing stated that the acquittee would constitute a danger to himself or others if discharged. We conclude that this claim is merely a rehashing of the acquittee’s previous claim that the court’s finding of dangerousness was not supported by the evidence, a claim which we have already rejected in part II of this opinion.

Furtheimore, we conclude that the holding in Foucha is inapplicable here because the factual circumstances underlying that case are readily distinguishable from the facts in the present case. First, unlike the Louisiana statute at issue in Foucha, which indefinitely allocated the burden of proving nondangerousness to the insanity acquittee; Foucha v. Louisiana, supra, 504 U.S. 81-82; the Connecticut statute at issue here, § 17a-593, fixes a definite period of time during which the acquittee must carry the burden of proving by a preponderance of the evidence that he is not dangerous, namely, until the maximum period of his commitment has expired. State v. Metz, supra, 230 Conn. 425. After that point, if the state seeks to continue the acquittee’s commitment, it must then carry the burden of proving by clear and convincing evidence that the acquittee is mentally ill and dangerous. Id.

Second, the United States Supreme Court’s holding in Foucha that continued confinement was violative of due process turned on the fact that the state had conceded that the acquittee was not mentally ill and that it was seeking to peipetuate his confinement solely on the basis that he was dangerous. Foucha v. Louisiana, supra, 504 U.S. 77-79. The court explained that an acquittee may properly be committed only when he is both mentally ill and dangerous and that once the acquittee’s mental illness had disappeared, the state’s basis for holding him in a psychiatric facility had also disappeared. Id., 76-80. Here, the court did not dismiss the acquittee’s application for discharge solely on the basis that the acquittee would pose a danger if discharged. In addition to finding that the acquittee was dangerous, the court in the present case also found that the acquittee remains mentally ill and that his potential dangerousness is due to that mental illness. Accordingly, we conclude that the holding in Foucha, that an acquittee who is dangerous but not mentally ill may not be confined in a psychiatric facility, is inapplicable to the facts of the present case.

B

The acquittee next contends that the court’s finding that he was mentally ill contravenes the holding in Foucha because his current diagnosis bears no reasonable relationship to his original acquittal and commitment because it is not the diagnosis that was the basis for that commitment. We disagree that Foucha requires a nexus between the acquittee’s original diagnosis and his current commitment.

In Foucha, the court explained that “[d]ue process requires that the nature of commitment bear some reasonable relation to the purpose for which the individual is committed.” (Emphasis added.) Id., 79. The purpose of the commitment “is to treat the individual’s mental illness and protect him and society from his potential dangerousness.” Payne v. Fairfield Hills Hospital, supra, 215 Conn. 683-84. Thus, as long as an acquittee has a mental illness that requires confinement for purposes of treatment and protection, his confinement to a psychiatric facility is reasonably related to the purpose of commitment and is, therefore, constitutional. Foucha v. Louisiana, supra, 504 U.S. 78-79.

It is true that the court should take into consideration the acquittee’s past and present diagnoses in assessing dangerousness for purposes of a § 17a-593 discharge hearing. See State v. Putnoki, supra, 200 Conn. 221. We conclude, however, that the reason for doing so is not to assess whether the acquittee’s diagnosis has remained constant throughout the length of his commitment but, rather, to determine whether he still suffers from a mental illness.

It is not important that the mental illness that the acquittee is currently diagnosed with is different from the mental illness that led to his acquittal and confinement. Section 17a-593 (g), which requires the court to consider the protection of society as its primary concern at a discharge hearing, would make little sense if the court had to discharge an acquittee because his diagnosis had changed but where his current mental illness is equally as dangerous to himself or others as was his previously diagnosed mental illness. What is important is that the mental illness that the acquittee is currently diagnosed with be of the type of mental illness that might cause the acquittee to be dangerous if discharged. In other words, to justify continued commitment, the acquittee must be diagnosed with “a dangerous mental illness” because just as the state cannot, consonant with due process, commit an individual who is dangerous but not mentally ill; Foucha v. Louisiana, supra, 504 U.S. 75-84; it also cannot commit an individual who is mentally ill but not dangerous due to that mental illness. O’Connor v. Donaldson, 422 U.S. 563, 573-76, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975).

In the present case, the court concluded that the acquittee had been diagnosed with a mental illness, which illness might cause him to be a danger to himself or the community if he were discharged from the jurisdiction of the board. It is, therefore, inconsequential that the diagnosis the acquittee now carries may be different from his original diagnosis.

IV

Finally, the acquittee argues that the court’s conclusion that his application for discharge should be dismissed was improper because it was based on information which was misinterpreted, false or absent from the record. This claim is wholly without merit.

The acquittee has simply “taken a shotgun approach in this appeal . . . and has assigned as error virtually all of the trial court’s findings and conclusions.” (Citation omitted.) Vaiuso v. Vaiuso, 2 Conn. App. 141, 145, 477 A.2d 678, cert. denied, 194 Conn. 807, 482 A.2d 712 (1984). A good number of these claims have already been considered and rejected in parts II and III, and, therefore, do not warrant independent consideration.

In addition, with respect to the acquittee’s claim regarding the expert testimony at trial, “ [t]he interpretation of testimony is the sole province of the trier and therefore objections to the findings which the [acquittee] wove into his claims of law will not be discussed. We cannot retry the case [and] . . . we are satisfied that the trial court’s conclusions are supported by its findings.” (Citations omitted.) Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472, 479-80, 423 A.2d 141 (1979), cert. denied, 445 U.S. 904, 100 S. Ct. 1079, 63 L. Ed. 2d 319 (1980).

We conclude, on the basis of the record before us, that the acquittee’s wholesale attack on the court’s findings and conclusions is merely an attempt to relitigate the case. We have already concluded in part II of this opinion that the factual findings of the court were supported by the evidence presented, and that its conclusions are legally and logically correct.

The judgment is affirmed.

In this opinion the other judges concurred.

       An “ ‘[ajcquittee’ [is] any person found not guilty by reason of mental disease or defect pursuant to section 53a-13 . . . .” General Statutes § 17a-580 (1).

       The notation by the trial judge on the application states: “Denied.” Because General Statutes § 17a-593 (g) (1) provides that the court shall order the dismissal of an unsuccessful application, we treat the court’s denial in this case as a dismissal.

       General Statutes § 53a-13 (a) provides: “In any prosecution for an offense, it shall bean affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.”

       If the court finds that the acquittee is a person who should be confined, the court shall order the acquittee committed to the jurisdiction of the board and shall fix a maximum term of commitment, which term cannot exceed the maximum sentence that the acquittee would have received had he been convicted of the offenses charged. General Statutes § 17a-582 (e) (1).

       The acquittee filed a second application for discharge with the court on May 18, 2000. Although the state’s brief seems to indicate that the hearing that was held before the court was conducted on the basis of the acquittee’s May 18, 2000 application for discharge, we conclude that the hearing was conducted after receipt of the board’s report regarding the acquittee’s September 22, 1999 application.

       We use the phrases mental illness, mental disability and psychiatric disability interchangeably.

       The fifth amendment to the United States constitution provides in relevant part: “No person shall be . . . deprived of life, liberty, or property, without due process of law . . .
      The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”

       The statutoiy scheme that applies to insanity acquittees can be found at General Statutes §§ 17a-580 through 17a-603, inclusive.

       The civil commitment statutes are found in General Statutes §§ 17a-495 through 17a-528, inclusive.

       We note that in Putnoki, our Supreme Court interpreted “dangerousness” under the provisions of General Statutes § 53a-47, which is now contained in General Statutes §§ 17a-580 through 17a-603.

       The amicus curiae brief of the psychiatric defense unit of the division of public defender services goes a step further. It claims that the court improperly found that the acquittee was currently mentally ill because an Axis II diagnosis, i.e., a diagnosis of a personality disorder, is insufficient to constitute a mental illness upon which the state can justify continued commitment under § 17a-593. We conclude that it is unnecessary to consider this claim because there was evidence in the record, namely the testimony of Fox, that the acquittee carried both an Axis II and Axis I diagnosis, i.e., a diagnosis of a clinical illness.
      Further, the Diagnostic and Statistical Manual of Mental Disorders (4th Ed. 1994) (DSM-IV), which the amicus relies on in its brief cautions the reader that there is an “imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis. In most situations, the clinical diagnosis of a DSM-IV mental disorder is not sufficient to establish the existence for legal purposes of a ‘mental disorder,’ ‘mental disability,’ ‘mental disease,’ or ‘mental delect’ In determining whether an individual meets a specified legal standard (e.g., for competence, criminal responsibility, or disability), additional information is usually required beyond that contained in the DSM-IV diagnosis.” DSM-IV, supra, p. xxiii.

       “[Bjoth the American Psychiatric Association . . . and the American Bar Association . . . have cautioned against the unfettered reliance in the criminal justice context on expert psychiatric predictions of future dangerousness as a predicate to the release from confinement of persons who have been adjudged guilty of, but not criminally responsible for, a criminal offense.” (Citations omitted.) State v. Putnoki, supra, 200 Conn. 220.

       This conflict was evidenced in the present case by the testimony of Selig, who stated that the acquittee’s treatment team’s decisions regarding the acquittee were countertherapeutic and that they were holding him back.

       The acquittee testified that he tied the patient to the bed because the patient had assaulted his mother while she was at the hospital visiting. He further testified that when he attempted to free the patient, he discovered that he had tied the knots too tight and that is why he burned the sheets.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ESTRELITA GORDON
    (AC 21156)
    Landau, Schaller, and Dupont, Js.
    Argued December 11, 2001
    officially released May 14, 2002

      LindyR. Urso, special public defender, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Steven Weiss, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Estrelita Gordon, appeals from the judgment of conviction of larceny in the second degree in violation of General Statutes § 53a-123 rendered after her guilty plea under the Alford doctrine. On appeal, the defendant claims that (1) her plea was not entered knowingly and voluntarily, in violation of her right to due process, and (2) the trial court’s failure to follow the mandates of Practice Book § 39-9 and the sentencing court’s failure to follow the mandates of Practice Book §§ 39-10 and 39-27 constituted plain error. We affirm the judgment of the trial court.

The following facts and procedural history are necessary for our resolution of this claim. The defendant was charged by information with larceny in the second degree in violation of General Statutes § 53a-123. At a hearing on September 23, 1997, the defendant pleaded guilty under the Alford doctrine to larceny in the second degree. As part of the plea process, the court canvassed the defendant pursuant to Practice Book §§ 39-19 through 39-21. The court recited the underlying facts and asked the defendant if she understood that the disposition was a three year cap, to which she responded, “Yes.” The court asked the defendant if she had taken any drugs, medication or alcohol that would affect her judgment. The defendant replied, “No.”

The court also asked whether she had reviewed the file with her attorney and if counsel had explained the elements of the crime charged, as well as the maximum and minimum penalty for that crime, to which the defendant answered, “Yes.” The court continued and asked the defendant if she understood the constitutional rights that she was giving up by pleading guilty. The defendant responded, “Yes.” The court also inquired as to whether the defendant was pleading of her own free will and without being forced to do so, and the defendant answered, “Yes.” The court asked both counsel if they knew any reason why the plea should not be accepted, and both replied, “No.”

The court found that the plea was entered knowingly and voluntarily, and continued sentencing until December 23, 1997. Before continuing the case, the court stated to the defendant: “All right, you understand, Ms. Gordon, that this is a cap sentence, which means I’m going to give your lawyer a right to argue at time of sentencing. However, if you do not show up for sentencing, the failure to appear in this particular case will result in a failure to appear in the first degree charge against you, which will mean a five year felony you will be faced with on that charge. Additionally, the court will feel free to sentence you to the maximum term on the charge you have [pleaded] guilty to here .... Do you understand that, ma’am?” The defendant answered, “Yes.” The court further stated: “You understand that if you don’t show up, you will be subject to those penalties?” The defendant again responded, “Yes, I’ll be here.” In conclusion, the court asked, “Do you agree to that, ma’am?” The defendant answered, “I’ll be here.”

On December 23,1997, the defendant failed to appear for sentencing. She was arrested more than two years later and appeared for sentencing on May 24,2000. After the state explained the history of the case and the plea agreement to the court, the state recommended a five year period of incarceration, and the court sentenced the defendant to five years imprisonment. The defendant did not move to withdraw her plea at any point during this proceeding. This appeal followed.

I

The defendant first claims that her plea was not entered knowingly and voluntarily in violation of her right to due process of law. While not clearly set out in her brief, the defendant asserts two arguments. First, the defendant argues that the plea was not knowing and voluntary because she did not know at the time that she entered the plea that she would be bound by it if she did not appear for sentencing. The defendant maintains that she was unaware of this because the trial court that accepted the plea failed to inform her of this consequence. Second, the defendant argues that the plea was not knowing and voluntary because the sentencing court rejected the plea agreement by imposing a sentence greater than that set forth in the plea agreement, but failed to inform her that she could withdraw her plea.

A

The defendant first claims that the plea was not knowing and voluntary because she did not know at the time that she entered the plea that she would be bound by it if she did not appear for sentencing. We are not persuaded.

At the outset, we note that the defendant failed to preserve this claim because she did not move to withdraw her plea at the sentencing hearing. We therefore review the defendant’s claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because a defendant’s claim that a plea entered was not knowing and voluntary is appropriate for constitutional review under that doctrine. See State v. Silva, 65 Conn. App. 234, 240, 783 A.2d 7, cert. denied, 258 Conn. 929, 783 A.2d 1031 (2001).

“Under the Golding doctrine, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . .

“In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances. . . . The first two prongs of Golding address the reviewability of the claim, and the last two involve the merits of the claim.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id.

We note that with respect to Golding review, we construe the question of whether the defendant knowingly and voluntarily entered her plea based on her understanding of the binding nature of that plea as similar to questions of voluntariness of the plea raised in the context of a defendant’s knowledge of the sentencing possibilities. See State v. Peterson, 51 Conn. App. 645, 725 A.2d 333 (appeal arising from trial court’s failure to advise defendant on minimum sentences for crimes to which he pleaded guilty), cert. denied, 248 Conn. 905, 731 A.2d 310 (1999). We draw this analogy because both circumstances implicate a defendant’s understanding of how much time the defendant may have to serve as a result of the plea. Therefore, to satisfy the third prong of Golding in the present case, “we must determine whether the defendant was aware of actual sentencing possibilities, and, if not, whether accurate information would have made any difference in his decision to enter a [guilty] plea.” (Internal quotation marks omitted.) Id., 657.

We note that the present case is controlled by State v. Garvin, 242 Conn. 296, 699 A.2d 921 (1997), a case with a factual scenario very similar to that of the present appeal. In Garvin, our Supreme Court stated that “[i]t is axiomatic that the trial court judge bears an affirmative, nondelegable duty to clarify the terms, of a plea agreement. [U]nless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. . . . When a defendant pleads guilty, he waives important fundamental constitutional rights, including the privilege against self-incrimination, the right to a jury trial, and the right to confront his accusers. . . . These considerations demand the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and its consequences. . . .

“We, therefore, require the trial court affirmatively to clarify on the record that the defendant’s guilty plea was made intelligently and voluntarily. ... In order to make a knowing and voluntary choice, the defendant must possess an understanding of the law in relation to the facts, including all relevant information concerning the sentence. . . . The defendant also must be aware of the actual value of any commitments made to him by the court . . . because a realistic assessment of such promises is essential in making an intelligent decision to plead guilty. ... A determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances.” (Citations omitted; internal quotation marks omitted.) Id., 309-10.

In Garvin, the defendant pleaded guilty under the Alford doctrine pursuant to a plea agreement with the state. State v. Garvin, 43 Conn. App. 142, 144, 682 A.2d 562 (1996), aff'd, 242 Conn. 296, 699 A.2d 921 (1997). In Garvin, the following colloquy took place between the trial court and the defendant:

“The Court: I’m going to sentence you on January 6. Understand that?
“The Defendant: Yes, sir.
“The Court: Now, if I give you more than fifteen [suspended] after eight and three probation, you can take your plea back. Understand that? As long as I give you that sentence you can’t take your plea back by saying I violated the plea agreement. You understand that?
“The Defendant: Yes, sir.
“The Court: Now, if you don’t show up on January 6, I’m going to order a rearrest, and they are going to come and they will find you, and they’ll arrest you. Now you are charged with failure to appear, you could get five years and, or, $5000 on that. You understand that?
“The Defendant: Yes, sir.
“The Court: But, I’m not going to be bound by the plea agreement of fifteen years suspended after eight years and three years probation. You understand that?
“The Defendant: Yes, sir.
“The Court: If you don’t show up, when they catch you, I could give you anywhere from nine months to forty years on the robbery, risk of injury, and the sexual assault second degree, plus you have the failure to appear to worry about. You understand that?
“The Defendant: Yes, sir.
“The Court: Any misunderstanding about that?
“The Defendant: No, sir.” (Internal quotation marks omitted.) Id., 144-45 n.3.

The defendant in Garvin failed to appear for sentencing on January 6. Id., 145. Following his arrest, the defendant appeared before the court. The sentencing court reminded the defendant that it was no longer bound by the agreement and sentenced the defendant to a term of incarceration greater than the fifteen years, execution suspended after eight years, which the plea specified if the defendant had appeared. Id. On appeal to our Supreme Court, the defendant argued that the trial court failed to articulate the circumstances under which he would forfeit his right to withdraw his pleas. State v. Garvin, supra, 242 Conn. 309. He contended that he did not know that he could not withdraw his plea if he did not appear. Id., 311.

Our Supreme Court concluded that “the trial court did not say, in so many words, that the defendant would not have a right to withdraw his guilty pleas if he failed to appear for sentencing. If this omission had, in fact, created any misunderstanding about the circumstances under which the defendant would be bound to the plea agreement, the guilty pleas would have been rendered unknowing and, therefore, involuntary.” Id.

Our Supreme Court, however, determined that no such misunderstanding existed in that case. Id. It noted that at the sentencing hearing, the defendant sought to withdraw his pleas only on the ground of intoxication and not on grounds relating to the sentence or his rights pertaining thereto. Id., 311-12. The court concluded that “the defendant in fact harbored no misunderstanding about the terms of the original plea agreement. With notice of the terms of the agreement, the defendant entered his plea knowingly and in compliance with the requirements of due process and fundamental fairness.” Id., 313.

In accord with our Supreme Court’s disposition of the notice claim in Garvin, to determine whether the defendant in the present case understood that the plea was binding, we must determine whether the court’s colloquy with her created any misunderstanding about the circumstances under which she would be bound by the agreement, thereby resulting in an unknowing plea. Our review of that discussion does not reveal that the defendant was misled or confused as to the terms of her plea agreement.

The transcript in the present case reveals that the court reviewed the terms of the plea with the defendant. As noted previously, the court stated that “this is a cap sentence, which means I’m going to give your lawyer a right to argue at time of sentencing. However, if you do not show up for sentencing, the failure to appear in this particular case will result in a failure to appear in the first degree charge against you, which will mean a five year felony you will be faced with on that charge. Additionally, the court will feel free to sentence you to the maximum term on the charge you have [pleaded] guilty to here .... Do you understand that, ma’am?” (Emphasis added.) The defendant answered, “Yes.” The court further stated, “You understand that if you don’t show up, you will be subject to those penalties?” (Emphasis added.) The defendant again responded, “Yes, Til be here.”

While the court here, as in Garvin, did not specifically state that the defendant would not be able to withdraw her plea if she did not appear, the record does not support the conclusion that this omission created a misunderstanding as to the terms of the plea agreement. The court twice asked the defendant if she understood the nature of the agreement, and twice she responded affirmatively. The defendant also specifically stated, “I’ll be here,” in response to the court’s final inquiry as to whether she agreed to the deal, which informs us that she was aware of the importance of appearing.

Despite the court’s lack of specificity regarding whether the defendant would be permitted to withdraw her plea if she did not appear, the record makes clear that the court explained, and the defendant understood, the terms of the plea and the penalties associated with not appearing at sentencing. Additionally, the defendant in this case did not move to withdraw her plea at the sentencing. This is significant in light of Garvin, where the court noted the defendant’s failure to move for a withdrawal of his pleas, after he failed to appear, on the ground that he received a harsher sentence. Id., 311-12.

The court in the present case did not create any misunderstanding about the circumstances under which the defendant would be bound by the agreement, and the defendant was not misled as to the terms of the agreement. We conclude, in light of all the relevant circumstances, that the defendant was aware of the actual sentencing possibilities and, therefore, that she entered her plea knowingly and voluntarily. Her claim fails the third prong of Golding.

B

The defendant next claims that the plea was not knowing and voluntary because the sentencing court rejected the plea agreement by imposing a sentence greater than that set forth in the plea agreement, but failed to inform her that she could withdraw the plea. Though inadequately briefed, the defendant argues that under Practice Book § 39-10, the sentencing court was required to inform her that it was rejecting the plea agreement and to afford her an opportunity to withdraw her plea.

We note again that we review this claim under Golding, as the defendant has failed to preserve it properly. Therefore, we must determine whether, in light of all the relevant circumstances, the plea was knowingly and voluntarily entered.

We have previously stated, in the context of discussing Practice Book § 39-10, that “[w]here the plea agreement includes a nonbinding prosecutional recommendation of sentence, the [sentencing] court, if it decides to reject the recommendation, must so advise the defendant and apprise the defendant of the sentence which it believes appropriate. The defendant must then be afforded an opportunity to withdraw his plea. Otherwise, a full understanding of the consequences of the plea is not present.” State v. Schaeffer, 5 Conn. App. 378, 390, 498 A.2d 134 (1985). We conclude that the defendant’s reliance on Practice Book § 39-10 in the present case is misplaced.

Garvin also controls our resolution of this claim. We rely on Garvin in addressing this claim because it is very similar to the present case in two important respects. First, an examination of the colloquy in the present case reveals that the trial court’s language here is similar to the trial court’s language in Garvin. Our previous discussion relates those similarities. Second, we construe the agreement that the defendant entered into in the present case to be of the same nature as the plea agreement in that case. In interpreting how our Supreme Court construed the plea in Garvin, however, we must first review our decision in State v. Garvin, supra, 43 Conn. App. 142.

On appeal to this court, Garvin claimed that the trial court improperly conditioned the acceptance of his plea on his appearance at the sentencing hearing. Id., 156. We construed the requirement that the defendant appear at sentencing as the equivalent of a condition precedent to the sentencing court’s not rejecting the plea. See id., 156-60. Because that condition was not met, we determined that the sentencing court properly rejected the plea. Id., 160. We further concluded that the defendant waived his right to withdraw the plea because he did not move to withdraw it at sentencing on the ground that the court imposed a sentence in excess of the plea agreement. Id.

Our Supreme Court, however, construed the agreement differently. State v. Garvin, supra, 242 Conn. 309. In response to the defendant’s assertion that the agreement was an illusory contract because he did not have the right to withdraw his plea if he failed to appear, our Supreme Court first noted that contract principles govern plea agreements. Id., 313-14. It further stated that “[u]nder the terms of the defendant’s plea agreement, in return for his guilty pleas, he received consideration in the form of the agreed upon sentence. One of the conditions of the agreement, however, was that the defendant appear for sentencing. Fulfillment of this condition was within the defendant’s control. He understood at the outset that, if he failed to satisfy this condition, he nonetheless would be bound to the agreement. By holding the defendant 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.” (Emphasis added.) Id., 314. Thus, while we concluded that an appearance at sentencing was a condition precedent to the continued acceptance of the plea, our Supreme Court interpreted the defendant’s appearance as a condition of the agreement itself.

Two important implications arise from this determination. First, by interpreting the appearance as a condition of the agreement itself, in accordance with the basic contract principles that guide our understanding of plea agreements; id.; our Supreme Court construed the agreement as having two possible binding outcomes. One would result from the defendant’s complying with the condition, and the other from his breaching it. If the defendant appeared at sentencing, he would be deemed to have performed his end of the bargain. Therefore, if the sentencing court wanted to give the defendant a sentence that exceeded the term of imprisonment provided for in the plea agreement, then the defendant could withdraw the plea because the sentencing court was rejecting the plea. The first portion of the trial court’s colloquy with the defendant in Garvin addresses this.

Under the remainder of the agreement, if the defendant did not appear at sentencing, he would be deemed to have breached a condition of the agreement. On the basis of our Supreme Court’s reasoning, should this occur, the agreement itself provides the remedy for the breach. The plea agreement specified that if the defendant breached the agreement by failing to appear, the court could impose any sentence consistent with the charges to which the defendant had admitted guilt. The agreement stated not only the term of imprisonment for sentencing if the defendant appeared, but also the sentence that the court would impose if the defendant did not appear on that date. The latter half of the trial court’s colloquy in Garvin addresses this.

Second, we note that our Supreme Court determined that the sentencing court did not reject the defendant’s plea, but rather enforced it. The Supreme Court made this clear in its decision because it would be impossible for a sentencing court to “[do] no more than enforce the terms of the plea agreement” if it has rejected that very agreement. Id. Our Supreme Court grounded this conclusion on the contractual nature of plea agreements. After noting that a sentencing court will usually either accord specific performance to the agreement or allow a defendant to withdraw the plea, it stated that it did not agree with the defendant’s contention that the court failed to accord specific performance to the plea. Id. Therefore, our Supreme Court determined that the sentencing court did, in fact, accord specific performance and, having done so, adhered to the accepted plea agreement underlying that obligation to perform. Combining these underlying aspects of the decision, the court determined that the sentencing court “did no more than enforce” the appropriate terms of the plea agreement that applied to the situation the defendant created. Id. Specifically, when the defendant failed to appear, the sentencing court enforced the terms that the plea stated would apply if the defendant failed to appear.

Guided by Garvin, we now address whether the sentencing court in the present case rejected the plea agreement by imposing a sentence greater than that set forth in the agreement. While the defendant argues that the sentencing court improperly imposed a sentence different from that in the agreement, on the basis of the similarities between this case and Garvin, we cannot agree. Rather, we conclude that the plea in the present case also contemplated two outcomes and that the sentencing court simply enforced the part of the agreement that related to the consequence for a breach of the condition that the defendant appear-.

In the initial colloquy between the court and the defendant in the present case when the plea was taken and accepted, the court reviewed the two possible outcomes and the sentences that would attach to each. The trial court first noted at the start of the canvass the agreed upon term that the defendant had worked out with the prosecutor. Later in the canvass, it stated that the case would be continued until December 23, 1997, for sentencing, which statement assumed as a factual predicate that the defendant would appear on that date. These remarks comprised the agreement that would be in effect if the defendant appeared at sentencing. The trial court then went on to discuss the other possible outcome. The court told the defendant that if she failed to appear, the court “will feel free to sentence you to the maximum term on the charge you have pled guilty to here . . . .” Prior to the court’s making that statement, the defendant’s attorney stated that the maximum penalty for the crime that the defendant was pleading guilty to was ten years. Accordingly, the second part of the agreement, applicable upon failure to appear, specified that if the defendant failed to appear and breached the agreement, she could be sentenced to up to ten years imprisonment.

When the defendant finally appeared, after breaching the condition, the sentencing court sentenced her to five years. This sentence was consistent with the part of the agreement that related to the consequence for failing to appear, namely, that the sentencing court could sentence the defendant up to ten years. The defendant’s assertion that the court imposed a sentence greater than that specified in the agreement therefore must fail because the sentencing court’s decision to impose five years did not exceed the term of imprisonment that the agreement itself stated the sentencing court could impose if the defendant failed to appear.

Because the sentence imposed was five years when the plea agreement allowed for as many as ten, we conclude that the sentencing court did no more than enforce the part of the agreement that related to the consequence for breach of the appearance condition.

The defendant also argues that the sentencing court in this case rejected the plea agreement. This contention is based on the defendant’s belief that the sentencing court imposed a sentence greater than that provided for in the agreement. We have determined that the sentencing court did not impose a greater sentence than that in the agreement. Rather, the sentencing court accorded specific performance to the plea agreement by fashioning a sentence that was within the bounds of the agreement. In accord with Garvin, we conclude that the sentencing court in the present case did not reject the defendant’s plea. To the contrary, it enforced the agreement. We conclude, guided by our Supreme Court, that the sentencing court in the present case “did no more than enforce the terms of the plea agreement.” Id.

Because we conclude that the sentencing court did not reject the plea agreement and enforced the terms of the plea relating to a failure to appear, we also conclude that the sentencing court had no obligation to inform the defendant under Practice Book § 39-10 because that section applies only to rejected pleas. In light of all the relevant circumstances, we conclude that the defendant’s plea was knowing and voluntary, and her claim fails the third prong of Golding.

II

The defendant also claims that under the plain error doctrine, the plea was not knowing and voluntary because the trial court did not follow the mandates of Practice Book § 39-9, and the sentencing court did not follow the mandates of Practice Book §§ 39-10 and 39-27 (3). The defendant argues that because both courts failed to follow the procedures set forth in the rules of practice, she was never informed at any point during the entire plea process that she had a right to withdraw her plea if the sentencing court imposed a sentence greater than that set out in the agreement.

We first note that “[t]o prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Silva, supra, 65 Conn. App. 243-44.

We dispose of the defendant’s claim with regard to the sentencing court’s failure to adhere to Practice Book §§ 39-10 and 39-27 (3) because those rules of practice are inapplicable to the present case. Section 39-10 pertains to plea rejections. Because we have determined that the plea in question was properly accepted, the sentencing court had no need to inform the defendant pursuant to Practice Book § 39-10.

Section 39-27 (3) deals with the withdrawal of an accepted plea when the sentence exceeds that specified in the agreement. That rule of practice does not require the court to make any statement to the defendant. Rather, it allows the defendant to move for a withdrawal after the plea has been accepted and a sentence imposed. Moreover, § 39-27 (3) is inapposite to the extent that the defendant might assert it in this case because the sentence in the present case did not exceed that specified in the plea agreement. Rather, the plea agreement contemplated both the sentence to be imposed if the defendant appeared, as well as the increased sentence that the defendant would face should she not appear.

The defendant also asserts plain error with regard to the trial court’s failure to inform her when it continued the case for sentencing, pursuant to Practice Book § 39-9, that she could withdraw her plea if, after the continuance, the sentencing court imposed a sentence other than the one specified in the agreement.

The defendant relies on the proposition that “[a] trial court’s failure to follow the mandatory provisions of a criminal procedural rule is plain error.” State v. Schaeffer, supra, 5 Conn. App. 388. That statement cannot be read in isolation or construed as a per se rule. Rather, for a trial court’s conduct to constitute plain error, the action must result in grave harm. No less is mandated by our standard of review for plain error claims, which requires harm such that the failure to remedy the error would result in manifest injustice.

In the present case, the record reveals that the trial court did fail to offer the defendant the advisory mandated by Practice Book § 39-9. Although inappropriate, the omission did not constitute plain error because that action did not cause the defendant any discernible harm. As we have determined, the sentencing court did not impose a sentence different from that specified in the plea agreement. Therefore, the trial court’s failure to notify the defendant of her right to withdraw if the sentencing court imposed a different sentence caused her no harm because that situation never arose. Because the defendant did not end up in a situation where she needed the information in the § 39-9 advisory, or where that information would even be relevant, she cannot show that the court’s failure to advise her was harmful error. The defendant cannot demonstrate that the court’s omission constituted manifest injustice.

The defendant also argues that the present case is similar to State v. Schaeffer, supra, 5 Conn. App. 378. In Schaeffer, we addressed the voluntariness of a plea when the defendant’s plea was accepted and subsequently rejected at sentencing. Id., 380. In this context, we determined that it was improper for the trial court to fail to inform the defendant pursuant to Practice Book § 697, now § 39-9, and for the sentencing court to fail to inform the defendant pursuant to Practice Book § 698, now § 39-10. State v. Schaeffer, supra, 387-91.

Our review of that case, however, reveals that Schaeffer is not applicable here. We distinguish Schaeffer on the facts of the case, as well as by way of procedure. Most importantly, the sentencing court in Schaeffer rejected the defendant’s plea. Id., 380. This stands in stark contrast to the present case where the sentencing court did not reject the plea. On the basis of the factual predicates discussed previously that are necessary to implicate §§ 39-9 and 39-10, this distinction is critical.

Additionally, in Schaeffer both the trial court that accepted the plea and the sentencing court acted improperly. The trial corut failed to inform the defendant when taking the plea, pursuant to Practice Book § 697, now § 39-9, of his right to withdraw if the sentencing court imposed a different sentence. Id., 387. The sentencing court then failed to inform the defendant of his right to withdraw the plea, pursuant to Practice Book § 698, now § 39-10, when it rejected the plea at sentencing. State v. Schaeffer, supra, 5 Conn. App. 388-89. This scenario worked an injustice to the defendant, given the fact that his plea agreement was rejected, because he was never given information that was critical in that situation.

In the present case, we do not have a scenario similar to that in Schaeffer. In contrast, here the defendant can rely only on the failure of the court to inform her under Practice Book § 39-9 since the plea agreement was not rejected. In the present case, we do not have either the duplicative error or the factual scenario, namely, the plea rejection, that we encountered in Schaeffer. A rejection is necessary before omissions of this sort can cause an unjust result that renders those actions plain error. Schaeffer does not apply.

Under the circumstances of this case, there is no plain error because the defendant cannot demonstrate that the court’s failure to inform her under Practice Book § 39-9 was so harmful that manifest injustice occurred.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       We note that while our Supreme Court in Garvin found procedural defects in the defendant’s claim, its disposition of the claim is still applicable because that court also addressed the substantive aspects of the claim despite the defects. State v. Garvin, supra, 242 Conn. 312.

       We note that while the defendant phrased his arguments to this court and our Supreme Court differently, both claims relate to the plea and its terms.

       In Garvin, the following colloquy transpired between the trial court, and the defendant:
      “The Court: I’m going to sentence you on January 6. Understand that?
      “The Defendant: Yes, sir.
      “The Court: Now, if I give you more than fifteen [suspended] after eight and three probation, you can take your plea back. Understand that? As long as I give you that sentence you can’t take your plea back by saying I violated the plea agreement. You understand that?
      “The Defendant: Yes, sir.” (Internal quotation marks omitted.) State v. Garvin, supra, 43 Conn. App. 144 n.3.

       In Garvin, the following colloquy transpired between the trial court and the defendant:
      “The Court: Now, if you don’t show up on January 6, I’m going to order a rearrest, and they are going to come and they will find you, and they’ll arrest you. Now you are charged with failure to appear, you could get five years and or $5000 on that. You understand that?
      “The Defendant: Yes, sir.
      “The Court: But, I’m not going to be bound by the plea agreement of fifteen years suspended after eight years and three years probation. You understand that?
      “The Defendant: Yes, sir.
      “The Court: If you don’t show up, when they catch you, I could give you anywhere from nine months to forty years on the robbery, risk of injury, and the sexual assault second degree, plus you have the failure to appear to worry about. You understand that?
      “The Defendant: Yes, sir.
      “The Court: Any misunderstanding about that?
      “The Defendant: No, sir.” (Internal quotation marks omitted.) State v. Garvin, supra, 43 Conn. App. 144 n.3.


author: BISHOP, J.

text:
    L. NEWTON HUNT ET AL. v. JOSEPH L. GUIMOND
    (AC 21504)
    Lavery, C. J., and Bishop and Hennessy, Js.
    Argued February 25
    officially released May 14, 2002

      Peter B. Benedict, for the appellant (defendant).

      Leo Nevas, with whom, on the brief, was Edward J. Capasse, for the appellees (plaintiffs).
   Opinion

BISHOP, J.

In this mortgage foreclosure action, the defendant, Joseph L. Guimond, appeals from the trial court’s judgment awarding attorney’s fees and interest to the plaintiffs, L. Newton Hunt and Dorothy S. Hunt. The defendant claims that in awarding attorney’s fees, the court improperly repudiated the express terms of a stipulated judgment entered into by the parties. We dismiss the appeal for lack of subject matter jurisdiction.

The following facts are relevant to a resolution of this appeal. In 1987, the plaintiffs conveyed a parcel of land to the defendant and in partial payment accepted a promissory note secured by a purchase money mortgage. On several occasions thereafter, the defendant failed to make the required monthly payments.

In 1992, at the defendant’s request, the plaintiffs agreed to restructure the note to reduce the monthly payments. The parties executed a new promissory note in the amount of $237,977.57, secured by a mortgage on the premises, to replace the former note. Under the terms of the new note, the plaintiffs agreed to obtain the necessary state and federal permits to allow a sea wall on the property to remain in place as constructed.

When the plaintiffs failed to deliver the permits, the defendant halted payments on the note. In 1995, the plaintiffs initiated an action to foreclose on the mortgage, and the defendant responded with an action to compel the production of the permits. After the two actions were consolidated for trial, an oral stipulation between the parties resolving both matters was entered into the record on April 14, 1999. The stipulation provided, inter alia, that (1) a judgment of foreclosure by sale would enter against the defendant, (2) the plaintiffs would obtain the necessary permits for the sea wall by August 1, 1999, (3) the defendant would pay the plaintiffs $219,814.54 on or before September 1, 1999, (4) the plaintiffs were entitled to file a motion to schedule a foreclosure sale date if the defendant failed to make the promised payment on or before September 1, 1999, (5) the defendant waived his right to object to such a motion and (6) should either party request a reasonable extension of time with respect to any of the dates set forth in the agreement, the other party would not unreasonably withhold granting such an extension. The court then rendered judgment in accordance with the stipulation.

Thereafter, the plaintiffs timely obtained the permits, but the defendant failed to make the required payment by September 1, 1999. On September 3, 1999, the plaintiffs filed a motion to set a sale date. The court granted a forty-five day extension of time by agreement of the parties. When the defendant failed to tender payment by October 15,1999, the plaintiffs reclaimed the motion. The court granted the defendant another extension of time to January 31, 2000. Over the next seven months, additional hearings were held in which the plaintiffs reclaimed the motion and the court granted the defendant further extensions of time.

At a hearing on June 12,2000, the defendant’s counsel advised the court that the plaintiffs had asked the defendant to pay interest on the debt. The defendant’s counsel objected to an award of interest because such an award was not contemplated under the stipulated judgment. He also stated, however, that the parties had “agreed to hold that issue in abeyance because we thought we were going to get the financing in place.” He continued, “We’ll take that money that represents interest, we’ll put it in an escrow account and we’ll argue about it later, not tying up the refinancing, not tying up the court.” The court later remarked: “You can fight [the interest issue until] you’re old and gray because I think the way you want to handle that is put it in escrow and do the closing.”

By August 28, 2000, the defendant still had not tendered payment to the plaintiffs. Accordingly, the court rendered a judgment of foreclosure by sale, scheduled a sale date for December 2, 2000, and appointed a committee to sell the property at a public auction. The court reserved judgment on awarding the plaintiffs interest and attorney’s fees because those issues were contested. In September, 2000, the parties submitted briefs to the court on the matter. In his brief, the defendant objected to “the inclusion of attorney’s fees or interest in the amount to be paid to the [plaintiffs] out of the sale proceeds.”

On November 20, 2000, the defendant filed a motion to open the judgment and to extend the sale date. The court denied the motion, reaffirmed that the sale would go forward as scheduled, stated that the principal amount of the debt was the amount agreed on in the stipulated judgment and added attorney’s fees and interest, as provided in the note. The court also directed: “Interest and disputed attorney’s fees will be paid into the court.”

One day before the sale was scheduled to take place, the defendant tendered, and the plaintiffs accepted, payment of the debt in full plus attorney’s fees and interest in the amount established by the court. The parties also agreed to cancel the sale. These events took place privately between the parties. Subsequently, the court denied the committee’s request for reimbursement of the fees and expenses incurred in preparing for the sale. The defendant now challenges the court’s award of attorney’s fees and interest to the plaintiffs.

We begin by addressing the issue of this court’s jurisdiction to hear the appeal. “Review by way of appeal is governed in general by General Statutes § 52-263, which provides in relevant part: Upon the trial of all matters of fact in any cause or action in the Superior Court ... if either party is aggrieved by the decision of the court or judge . . . he may appeal to the court having jurisdiction from the final judgment of the court .... Further, Practice Book § 61-1 provides: An aggrieved party may appeal from a final judgment, except as otherwise provided by law. . . . Aggrievement, in essence, is appellate standing. See Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978) (question of aggrievement essentially one of standing and unless plaintiff aggrieved by decision she had no standing to appeal). Where a party lacks standing to appeal, the court is without subject matter jurisdiction. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). Apossible absence of subject matter jurisdiction must be addressed and decided whenever the issue is raised. . . . [W]henever a lack of jurisdiction to entertain a particular proceeding comes to a court’s notice, the court can dismiss the proceeding upon its own motion.” (Emphasis in original; internal quotation marks omitted.) Marine Midland Bank v. Ahern, 51 Conn. App. 790, 796-97, 724 A.2d 537 (1999), appeal dismissed, 252 Conn. 151, 745 A.2d 189 (2000).

“Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected. . . . We traditionally have applied the following two part test to determine whether aggrievement exists: (1) does the allegedly aggrieved party have a specific, personal and legal interest in the subject matter of a decision; and (2) has this interest been specially and injuriously affected by the decision. . . . Proof of aggrievement is, therefore, an essential prerequisite to the court’s jurisdiction of the subject matter of the appeal.” (Citations omitted; internal quotation marks omitted.) Gladysz v. Planning & Zoning Commission, 256 Conn. 249, 255-56, 773 A.2d 300 (2001).

We conclude, after a thorough review of the record, that this court lacks subject matter jurisdiction to hear the appeal because the defendant is not aggrieved by a final decision of the court. Although the defendant had a specific personal interest in the order that he pay interest and attorney’s fees into the court, he voluntarily paid interest and attorney’s fees to the plaintiffs when the parties settled their dispute privately and agreed to cancel the foreclosure sale. Accordingly, it cannot be said that the defendant’s interest was injuriously affected by the court’s decision. See id., 256.

In its November 27, 2000 order, the court reaffirmed the foreclosure sale date and the principal amount of the debt, and directed that interest on the debt and the disputed attorney’s fees be “paid into the court.” The order thus anticipated that a sum for attorney’s fees and interest would be set aside from the sale proceeds and would be held by the court until the issues of attorney’s fees and interest could be resolved in a separate judicial proceeding. The order was consistent with the defendant’s expectation, as expressed in his brief, that attorney’s fees and interest, if awarded, would be paid out of the sale proceeds. The order also was consistent with the defendant’s counsel’s remark at the June, 2000 hearing that the parties expected to place the disputed amount in an escrow account pending further proceedings.

Instead of placing sale proceeds in escrow with the court pursuant to the judgment, however, the defendant paid the debt, attorney’s fees and interest directly to the plaintiffs in an out-of-court settlement. In return, the plaintiffs agreed to cancel the foreclosure sale only one day before the scheduled sale date. The parties thus acted outside the judicial process to resolve the issues in dispute. The court’s refusal to grant the committee’s request for reimbursement of the fees and expenses incurred in arranging for the sale is further affirmation of this fact. Having voluntarily entered into a private settlement agreement with the plaintiffs, the defendant cannot now claim that his personal and legal interest in the property was specially and injuriously affected by the court’s decision. Accordingly, the defendant is not aggrieved, and this court lacks subject matter jurisdiction to hear the appeal.

In light of our conclusion, there is no need to address the defendant’s claim on the merits or the plaintiffs’ claim regarding mootness.

The appeal is dismissed.

In this opinion the other judges concurred.