author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. DELROY ANTHONY WEBB
    (AC 19525)
    Schaller, Dranginis and Stoughton, Js.

      Submitted on briefs December 11, 2000
    officially released April 17, 2001

      Robert E. Lancaster, Carroll L. Lucht, Christine Lehmann, law student intern, Laura Fernandez, law student intern, and Sarah Sundell, law student intern, tiled a brief for the appellant (defendant).

      Eugene Callahan, state’s attorney, James M. Ralls, assistant state’s attorney, and Steven Weiss, supervisory assistant state’s attorney, filed a brief for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Delroy Anthony Webb, appeals from the judgment of conviction, rendered after he entered his guilty plea under the Alford doctrine, of possession of narcotics with intent to sell in violation of General Statutes § 2 la-277 (b) and altering a manufacturer’s serial number in violation of General Statutes § 53-132a. On appeal, the defendant claims that the trial court improperly (1) denied his motion to vacate the judgment and to withdraw his guilty plea, and (2) refused to conduct an evidentiary hearing on that motion. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The defendant, who is not a citizen of the United States, resided in an apartment located in Stamford. After receiving information that the defendant was selling marijuana from his apartment, the police executed a search and seizure warrant for his apartment on June 20, 1997. They seized ten plastic bags of marijuana, containing approximately ten grams, and twenty-five plastic bags of marijuana, containing approximately forty grams. The police also seized the defendant’s birth certificate and passport, $448 in cash, and two pagers and a cellular telephone, which had its serial number removed.

On July 24, 1997, the defendant entered a guilty plea under the Alford doctrine to the charges of possession of narcotics with intent to sell and altering a manufacturer’s serial number. Before accepting the defendant’s plea, the court conducted a plea canvass in which it notified the defendant of all of the rights he would be waiving by pleading guilty. Pursuant to General Statutes § 54-lj (a), the court also informed the defendant of the possible deportation consequences resulting from his guilty plea. The following colloquy occurred:

“The Court: If you’re not a citizen of the United States, you are advised that a conviction of the offense for which you are charged may have consequences of deportation, denial of naturalization or exclusion from the United States. Do you realize once the court accepts your plea, you can’t take it back without the permission of the court?
“The Defendant: Yes, sir.
“The Court: Do you have any questions at all concerning any of your rights?
“The Defendant: Your Honor—
“The Court: Any questions?
“The Defendant: Your Honor—
“The Court: Oh, I’ll explain what a cap means. It’s a—
“[Defense Counsel]: Well, no, he understands that. It’s just that he mentioned the birth certificate and passport.”

After the court addressed the defendant’s concern to his satisfaction about the return of those items, it accepted his guilty plea. On September 26, 1997, the court sentenced the defendant to a total effective sentence of three years. Subsequently, the United States Immigration and Naturalization Service initiated removal proceedings against the defendant pursuant to § 237 of the Immigration and Nationality Act. 8 U.S.C. § 1101 et seq.

On February 19,1999, almost seventeen months after sentencing occurred, the defendant filed a motion to vacate the judgment and to withdraw his guilty plea. During oral argument, the defendant asked the court for an evidentiary hearing to prove his claim that his plea was invalid because the court had failed to advise him properly concerning the immigration consequences of his plea as mandated by § 54-lj (a). He also claimed that his plea was not entered voluntarily and knowingly, thereby violating his rights to due process. After hearing oral argument, the court denied the defendant’s request for an evidentiary hearing on his motion. This appeal followed.

I

The defendant first claims that the court improperly denied his motion to vacate the judgment and to withdraw his guilty plea. According to the defendant, he was entitled to withdraw his guilty plea because (1) the court did not properly “advise” him of the deportation consequences of his guilty plea as mandated under § 54-lj, (2) his guilty plea was not entered knowingly and voluntarily as required by the federal due process clause of the fourteenth amendment to the United States constitution, and (3) his guilty plea was not entered knowingly and voluntarily as mandated by Practice Book § 39-27 (2). The state, in response, argues that the defendant’s first claim is without merit, and that he did not properly preserve his second and third claims for review, as he filed his motion after the imposition of the sentence.

A

As a threshold matter, we must determine whether the defendant’s claims are reviewable due to the untimely filing of the motion. Practice Book § 39-26 provides in relevant part: “A defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed.” (Emphasis added.) Our courts have held that “[b]ecause Practice Book § [39-26] precludes a defendant from withdrawing his plea after the conclusion of sentencing, [t]he failure of the defendant to make a motion to withdraw his plea before the conclusion of the proceeding at which the sentence was imposed ordinarily precludes review of claimed infirmities in the acceptance of a plea.” (Internal quotation marks omitted.) State v. Garvin, 43 Conn. App. 142,159, 682 A.2d 562 (1996), aff d, 242 Conn. 296, 699 A.2d 921 (1997), citing State v. Martin, 197 Conn. 17, 21, 495 A.2d 1028 (1985).

There are, however, two exceptions to that rule. First, review of the claim is allowable if the legislature grants the defendant the right to withdraw his plea after the time of sentencing. See State v. Soares, 57 Conn. App. 149, 748 A.2d 331 (2000) (although defendant did not file motion to withdraw guilty plea until after sentencing, court nonetheless reviewed claim, as it involved legislative authorization of defendant to withdraw plea beyond time of sentencing); see also State v. Boulier, 49 Conn. App. 702, 705, 716 A.2d 134 (1998) (“jurisdiction of . . . court terminates when the sentence is put into effect, and that court may no longer take any action . . . unless it has been expressly authorized to act”). Second, as with unpreserved claims raised on appeal after a trial, review of an unpreserved claim involving a guilty plea is allowable in cases in which the defendant asserts a constitutional claim that satisfies the requirements of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). See State v. Domian, 235 Conn. 679, 685, 668 A.2d 1333 (1996); State v. Lugo, 61 Conn. App. 855, 860-61, 767 A.2d 1250, cert, denied, 255 Conn. 955, 772 A.2d 153 (2001); State v. Williams, 60 Conn. App. 575, 578, 760 A.2d 948, cert, denied, 255 Conn. 922, 763 A.2d 1043 (2000).

Because the defendant in this case did not file his motion to withdraw his guilty plea until approximately seventeen months after his sentencing, we must examine the unpreserved claims to determine whether they are nonetheless subject to review under one of the exceptions previously noted. As for the defendant’s first claim regarding § 54-lj, the legislature has specifically authorized defendants to withdraw their guilty pleas beyond the time of sentencing. General Statutes (Rev. to 1997) § 54-lj (c) provides in relevant part that “[i]f the court fails to advise a defendant as required in subsection (a) of this section and the defendant later at any time shows that his plea and conviction may have one of the enumerated consequences, the court, on the defendant’s motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty. ...” (Emphasis added.) We conclude, therefore, that the defendant’s first claim challenging his guilty plea on the basis of § 54-lj is reviewable, despite the fact that he did not file the motion until approximately seventeen months after sentencing.

The defendant’s second and third unpreserved claims regarding whether he entered his guilty plea knowingly and voluntarily do not involve legislative authority allowing defendants to withdraw their guilty pleas beyond the time of sentencing. Instead, those unpreserved claims involve alleged due process violations, which may be reviewed if they satisfy the requirements of State v. Golding, supra, 213 Conn. 239-40. The defendant, however, has not requested that we review those claims under Golding. “In the absence of such a request, we have, in the past, declined to review a defendant’s claim under similar circumstances.” (Internal quotation marks omitted.) State v. Delgado, 50 Conn. App. 159, 175, 718 A.2d 437 (1998), citing State v. Casado, 42 Conn. App. 371, 374, 680 A.2d 981, cert, denied, 239 Conn. 920, 682 A.2d 1006 (1996). Accordingly, we decline to grant review of the defendant’s second and third unpreserved claims under Golding.

B

Having determined that only the defendant’s claim challenging his guilty plea on the basis of § 54-lj is reviewable, we now turn to that claim. The defendant claims that the court improperly denied his motion to vacate the judgment and to withdraw his guilty plea because it did not properly advise him of the deportation consequences of his guilty plea as mandated under § 54-lj. He argues that the term “advises,” as used in the statute, required the court to do something more than passively read or recite the relevant language of the statute. According to the defendant, the term “advises” required the court to actively interact with the defendant and to engage in a colloquy to ensure that he fully understood the deportation consequences of his guilty plea. We are not persuaded.

“Statutory construction is a question of law and therefore our review is plenary. ... If the language of a statute is plain and unambiguous, courts need look no further than the words used because courts assume that the language expresses legislative intent. . . . When a statute does not define a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries.” (Citations omitted; internal quotation marks omitted.) Funaro v. Baisley, 57 Conn. App. 636, 638, 749 A.2d 1205, cert, denied, 254 Conn. 902, 755 A.2d 218 (2000).

Section 54-lj (a) provides in relevant part: “The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court advises him of the following . . . .” (Emphasis added.) Because the term “advises” is not defined in the statute, we look to the common understanding of it. As defined in the dictionary, the term “advise” means “to give advice to . . . counsel . . . caution, warn . . . recommend ... to give information or notice to: inform, apprise . . . .” Webster’s Third New International Dictionary. We cannot conclude, in light of its ordinary definition, that the term “advises,” as used in the statute, places an affirmative duty on courts to engage in a colloquy with defendants to ensure that they fully understand the deportation consequences of their guilty pleas. To the contrary, we conclude that the term “advises” in § 54-lj simply requires courts to inform defendants of the potential deportation consequences of their guilty pleas.

After reviewing the record, we are convinced that the court adequately informed the defendant of the deportation consequences of his guilty plea pursuant to § 54-lj. The court recited, almost precisely, the language provided in the statute. We also note that the defendant has not claimed that the court improperly read the language of the statute or that he did not understand the words used. Under those circumstances, we conclude that the court properly denied the defendant’s motion to vacate the judgment and to withdraw his guilty plea as he was advised properly of the deportation consequences of his guilty plea pursuant to § 54-lj.

II

The defendant also claims that the court abused its discretion in denying him an evidentiary hearing to determine whether he was advised properly of the deportation consequences of his guilty plea as mandated by § 54-lj. Specifically, he argues on the basis of his interpretation of the statute, as discussed in part I, that an evidentiary hearing was required to determine whether he understood the deportation consequences that the court recited to him pursuant to the statute. We disagree.

We begin by noting our standard of review governing a court’s decision to grant an evidentiary hearing with respect to guilty pleas. Such a decision is committed to the sound discretion of the court and will be overturned only on a showing of an abuse of discretion. See State v. Gundel, 56 Conn. App. 805, 815, 746 A.2d 204, cert, denied, 253 Conn. 906, 753 A.2d 941 (2000).

“In considering whether to hold an evidentiary hearing on a motion to withdraw a guilty plea the court may disregard any allegations of fact, whether contained in the motion or made in an offer of proof, which are either conclusory, vague or oblique. For the purpose of determining whether to hold an evidentiary hearing, the court should ordinarily assume any specific allegations of fact to be true. State v. Torres, 182 Conn. 176, 185, 438 A.2d 46 (1980). An evidentiary hearing is not required if the record of the plea proceeding and other information in the court file conclusively [establish] that the motion is without merit.” (Internal quotation marks omitted.) State v. Gundel, supra, 56 Conn. App. 814.

In the present case, information in the record conclusively establishes that there was no merit to the defendant’s motion to withdraw his guilty plea. The defendant again relies on his misinterpretation of § 54-lj. The court was under no obligation based on the law previously discussed to engage in a colloquy with the defendant to ensure that he understood the deportation consequences recited to him by the court pursuant to § 54-lj. We also reiterate that the defendant was not claiming that he did not understand the words recited by the court. We conclude, therefore, that the court did not abuse its discretion in denying the defendant an evidentiary hearing to determine whether, under § 54-lj, he was advised properly of the deportation consequences of his guilty plea.

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). “A defendant who pleads guilty under the Alford doctrine does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea.” Henry v. Commissioner of Correction, 60 Conn. App. 313,315 n.l, 759 A.2d 118 (2000).

       General Statutes § 21a-277 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marijuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.”

       General Statutes § 53-132a provides in relevant part: “No person shall remove, deface, alter or obliterate any manufacturer’s serial number on any manufactured product with intent to prevent the tracing or identification of such product or shall knowingly sell, offer for sale, or purchase any such product whose manufacturer’s serial number has been removed, defaced, altered or obliterated with intent to prevent the tracing or identification of such product.”

       The court began the canvass as follows:
      “The Court: You realize that even though you’re pleading under the protection of North Carolina [v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970)], you’re giving up your right to continue to plead not guilty, to be tried by a judge or jury, your right to remain silent, your right to confront your accusers, your right to present evidence on your own behalf and your right to take an appeal should you be found guilty at the end of trial. Do you realize you’re giving up those rights?
      “The Defendant: Yes, sir.”

       General Statutes § 54rlj (a) provides: “The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court advises him of the following: ‘If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.’ ”

       The defendant also claims a violation of his due process rights under article first, § 8, of the constitution of Connecticut. He has not, however, provided an independent analysis of such a claim. Accordingly, we do not address that claim. See State v. Pinder, 250 Conn. 385, 389 n.4, 736 A.2d 857 (1999).

       Practice Book § 39-27provides in relevant part: “The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows ... (2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed . . . .”

       Under Golding, “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. (Emphasis in original.) [State v. Golding, supra, 213 Conn. 239^0]. The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself. . . . We may . . . dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case.” (Internal quotation marks omitted.) State v. Burrus, 60 Conn. App. 369, 374-75, 759 A.2d 149 (2000), cert, denied, 255 Conn. 936, 767 A.2d 1214 (2001).

       Section 54-lj (c) has been amended to limit the time in which the defendant may show that his plea and conviction have an enumerated consequence to three years from the acceptance of his plea.

       In addition, we note that the court actually went further than merely reciting the language of the statute by affirmatively inquiring of the defendant whether he understood the consequences of his guilty plea. The colloquy was as follows:
      “The Court: If you’re not a citizen of the United States, you are advised that a conviction of the offense for which you are charged may have consequences of deportation, denial of naturalization or exclusion from the United States. Do you realize once the court accepts your plea, you can’t take it back without the permission of the court?
      “The Defendant: Yes, sir.”
      Because the court’s inquiry directly followed its advisement regarding the deportation consequences, the court was obviously inquiring whether the defendant understood the deportation consequences of his guilty plea. Hence, even if we were to accept the defendant’s interpretation of the term “advises,” the court did comply with that definition in that it affirmatively asked the defendant whether he understood the consequences of his plea.

       The defendant also claims that the court abused its discretion in denying him an evidentiary hearing to determine whether his plea was made knowingly and voluntarily. Because we declined to review such claims in part I, we need not address them here. Accordingly, we address only the court’s denial of the request for an evidentiary hearing with respect to the defendant’s claim involving § 54-lj.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    TOWN OF CANTERBURY v. COMMISSIONER OF ENVIRONMENTAL PROTECTION
    (AC 20474)
    Foti, Dranginis and Stoughton, Js.

      Argued February 20
    officially released April 17, 2001

      Richard S. Cody, town counsel, with whom, on the brief, was Jason D. Westcott, for the appellant (plaintiff).

      Anthony Jannotta, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Eliot D. Prescott and Krista E. Trousdale, assistant attorneys general, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff, the town of Canterbury, appeals from the judgment of the trial court dismissing its action for a declaratory judgment. In that action, the plaintiff challenged the constitutionality of a state regulation that permits the defendant commissioner of environmental protection to impose conditions on the defendant’s grant of operating permits for certain waste transfer stations. The plaintiff claims that the court’s dismissal of its action on the ground that a town lacks standing to challenge the constitutionality of an agency regulation was improper. The defendant claims as an alternate ground for affirming the judgment that the plaintiff failed to exhaust its administrative remedies. We affirm the judgment of the trial court.

The defendant possesses statutory authority to “administer and enforce the planning and implementation requirements” of the state’s solid waste management laws. General Statutes § 22a-208 (a). The defendant promulgates regulations pursuant to General Statutes § 22a-209. One such regulation, § 22a-209-4 (c) (3) of the Regulations of Connecticut State Agencies, provides in relevant part: “The Commissioner may impose any reasonable conditions upon a permit to operate.” In October, 1996, the plaintiff applied to the defendant, pursuant to § 22a-208 et seq., to obtain a permit to construct and operate a municipal solid waste transfer station in Canterbury. In March, 1999, the defendant issued a proposed decision permitting the plaintiff to construct and operate the facility. The defendant imposed two conditions on the permit: (1) that the plaintiff properly close an adjacent landfill site, owned by a third party, before beginning operation, and (2) that the plaintiff exclude certain individuals and businesses associated with that adjacent landfill from managing the proposed facility. Thereafter, the plaintiff brought an action for a declaratory judgment, challenging the constitutionality of the regulation under both the federal and state constitutions.

The defendant moved to dismiss the plaintiffs complaint for lack of subject matter jurisdiction in that the plaintiff (1) failed to obtain a declaratory ruling from the defendant prior to seeking a declaratory judgment in the Superior Court, as required by General Statutes §§ 4-175 and 4-176, (2) failed to exhaust its administrative remedies in that it had sought a declaratory judgment prior to receiving a final decision from the defendant and (3) lacked standing to address the constitutionality of a state regulation. The court granted the motion solely on the basis that the plaintiff lacked standing to challenge the regulation.

The court denied the plaintiffs subsequent motion to open the judgment. The plaintiff appealed, challenging the court’s judgment and the court’s denial of the motion to open. The dispositive issue in this appeal is whether a town may challenge the constitutionality of state regulations.

Cities, towns and municipalities, as “creatures of the state,” may not challenge the constitutionality of state laws. (Internal quotation marks omitted.) Connecticut Assn, of Boards of Education, Inc. v. Shedd, 197 Conn. 554, 559, 499 A.2d 797 (1985); Horton v. Meskill, 187 Conn. 187,196,445 A.2d 579 (1982). “Valid agency regulations have the force of statutes and constitute state law. Savage v. Aronson, 214 Conn. 256, 267, 571 A.2d 696 (1990).” (Emphasis added.) Aero Technology, Inc. v. Administrator, 25 Conn. App. 130, 135, 593 A.2d 154 (1991). “[A]s a creation of the state, a municipality may not challenge the constitutionality of the state’s laws.” Horton v. Meskill, supra, 196. Political subdivisions of the state, including cities, towns and local governing bodies created through the legislature, derive all powers, rights and duties thereby, and may not challenge the constitutionality of a state agency’s regulation because it is, like a statute, an enactment of that subdivision’s creator, the state of Connecticut.

Enabling legislation, § 22a-208a, empowers the defendant to act as an arm of the state. Although the defendant may not under all circumstances enjoy the shield of sovereign immunity, the defendant is nevertheless an arm of the state and, as such, is entitled to similar protection. In that situation, the defendant’s regulations should be afforded the same protection as state statutes. Because state agencies enact regulations with legislative oversight, we conclude that a city or town may not challenge an agency’s duly enacted regulations on constitutional grounds.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 22a-209 provides: “The commissioner shall promulgate regulations governing solid waste management, and permits, as provided for in section 22a-208a, shall be conditioned upon conformance with such regulation as well as applicable laws.”

       On March 16, 2000, the. defendant issued a final decision approving the plaintiffs permit application with the same two conditions contained in its proposed decision. On April 24, 2000, the plaintiff filed an administrative appeal in the Superior Court. On July 12, 2000, we denied the defendant’s motion to dismiss the plaintiffs appeal from the judgment dismissing its declaratory judgment action. The defendant argued that (1) the plaintiff had failed to exhaust its administrative remedies and (2) the appeal was moot in light of the plaintiffs administrative appeal.

       Because the court concluded that the plaintiff lacked standing, it never reached a determination of the merits of the action.

       The plaintiff argues that it is challenging the regulation because it exceeds the defendant’s statutory authority. The challenge is clearly constitutional, rather than statutory, in nature. We also conclude to be without merit the plaintiffs claim that declaratory judgment actions are to be liberally construed and therefore may be the proper mechanism to challenge an administrative agency’s regulations.

       General Statutes § 22a-208a (a) provides in relevant part: “The Commissioner of Environmental Protection may issue, deny, modify, renew, suspend, revoke or transfer a permit, under such conditions as he may prescribe and upon submission of such information as he may require, for the construction, alteration and operation of solid waste facilities, in accordance with the provisions of this chapter and regulations adopted pursuant to this chapter. . . .”

       The legislature reviews and ratifies proposed agency regulations, which may not conflict with any federal or state law or regulation, and must comply with notice and hearing requirements as set forth by law. Given that degree of legislative oversight, a regulation, like a public act, serves a public purpose by promoting the welfare of the state or by benefiting the public. See Chotkowski v. State, 240 Conn. 246,260,690 A.2d 368 (1997); Beccia v. Waterbury, 192 Conn. 127, 134, 470 A.2d 1202 (1984).


author: PER CURIAM.

text:
    EDDY WOOLCOCK v. COMMISSIONER OF CORRECTION
    (AC 20105)
    Laveiy, C. J., and Zarella and Dranginis, Js.
    Submitted on briefs December 4, 2000
    officially released April 17, 2001

      Vicki H. Hutchinson, special public defender, filed a brief for the appellant (petitioner).

      Richard Blumenthal, attorney general, and Richard T. Biggar, assistant attorney general, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Eddy Woolcock, appeals following the denial by the habeas court of his petition for certification to appeal from the denial of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly denied (1) his petition for certification to appeal, (2) his claim of ineffective assistance of counsel and (3) his claim that he is due, and was not credited, pretrial and enhanced good time credits. We dismiss the appeal.

The petitioner’s amended petition for a writ of habeas corpus alleged that his criminal trial attorney was ineffective in that he failed to accompany the petitioner to his presentence investigation interview at which the petitioner made negative statements that he claims resulted in a more severe sentence. He further alleged that, pursuant to General Statutes § 18-98d (a), he was eligible for pretrial credit for time served from September 21, 1982, through March 2,1983, and that, pursuant to General Statutes § 18-7a (b), he was entitled to enhanced good time credit for the period of September 21, 1982, to March 2, 1983.

“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. ... 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.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). “To establish an abuse of discretion, the petitioner must demonstrate that the issues are debatable among jurists of reason, that a court could resolve the issues differently or that the questions are adequate to deserve encouragement to proceed further.” Rivera v. Commissioner of Correction, 57 Conn. App. 390, 391, 748 A.2d 368, cert, denied, 253 Conn. 921, 755 A.2d 215 (2000).

Having considered the evidence presented at the habeas trial and having assessed the credibility of the witnesses, the habeas court found that the petitioner had failed to show that counsel’s representation fell below an objective standard of reasonableness. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Accordingly, the court denied the petitioner’s claim of ineffective assistance of counsel. The habeas court next found that the petitioner was a sentenced prisoner and, hence, not eligible for pretrial credit. The court further found that under Chung v. Commissioner of Correction, 245 Conn. 423, 426, 717 A.2d 111 (1998), the petitioner was not entitled to enhanced good time credit because he was sentenced prior to July 1, 1983, and had not yet been confined for a period of five years. Accordingly, the court concluded that the petitioner’s sentences were correctly calculated. The court further denied the petition for certification to appeal as “wholly frivolous.”

“This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) Colon v. Commissioner of Correction, 55 Conn. App. 763, 765, 741 A.2d 2 (1999), cert, denied, 252 Conn. 921, 744 A.2d 437 (2000). Thus, in a habeas case, “[t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” Velez v. Commissioner of Correction, 57 Conn. App. 307,309, 748 A.2d 350 (2000); see also 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 125a, p. 1219.

After reviewing the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the habeas court’s denial of his petition for certification to appeal was a clear abuse of discretion or that an injustice has been committed. See Simms v. Warden, supra, 230 Conn. 612; Johnson v. Commissioner of Correction, 58 Conn. App. 729, 730, 754 A.2d 849, cert, denied, 254 Conn. 928, 761 A.2d 753 (2000); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The appeal is dismissed.

       On June 30, 1983, the trial court sentenced the petitioner following his conviction for the crimes of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a, assault on a peace officer in violation of General Statutes § 53a-167c and four counts of sale of narcotics in violation of General Statutes § 2la-277 (a). The sentences were consecutive on each count. The petitioner is currently serving a total effective sentence of forty years.

       The petitioner’s appeal form also states that the he appeals from the denial of his motion for clarification. A motion seeking an articulation or further articulation of a trial court’s decision is called a motion for articulation. See Practice Book § 66-5. “The sole remedy of any party desiring the court having appellate jurisdiction to review the trial court’s decision on the motion filed pursuant to this section . . . shall be by motion for review under Section 66-7.” Practice Book § 66-5. We therefore decline to review this claim.

       The petitioner testified that prior to September 21, 1982, he had been a parolee and that he was returned to jail on that date for a technical violation of parole without the benefit of a revocation of parole hearing or a waiver of arevocation of parole hearing. Thus, he argued that he was not a sentenced prisoner, but rather, was a pretrial detainee from September 21, 1982, to March 2, 1983.


author: CRETELLA, J.

text:
    STATE OF CONNECTICUT v. WILLIAM VALEDON
    (AC 20383)
    Lavery, C. J., and Schaller and Cretella, Js.
    Argued February 13
    officially released April 17, 2001

      Jerald S. Barber, for the appellant (defendant).

      Joy K. Fausey, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Laura DeLeo, assistant state’s attorney, for the appellee (state).
   Opinion

CRETELLA, J.

This is an appeal from a violation of probation hearing in which the court found the defendant, William Valedon, to be in violation of his probation, which resulted in the defendant being incarcerated for a substantial portion of the remainder of his original sentence. On appeal, the defendant claims that the evidence was insufficient to support the finding of a violation of probation and that he was deprived of the right of allocution to address the court personally prior to sentencing.

We first address the issue of the sufficiency of the evidence, for should it be found to be lacking, we need not address the allocution issue. Should it be necessary to address the allocution issue, which was unpreserved in the trial court, we would first have to determine if there is a basis for our doing so.

The defendant pleaded guilty to the crimes of risk of injury to a child and sexual assault in the fourth degree, and was given an effective sentence of five years’ incarceration, execution suspended after sixty days with three years probation. Conditions of probation included, among other things, that he not have any contact in any form, direct or indirect, with children under the age of sixteen; that he not possess children’s clothes, toys, games, etc.; and that he not go to or loiter near school yards, parks, playgrounds, swimming pools, arcades or other places primarily used by children under the age of sixteen.

From the evidence presented, the court reasonably could have found that the probation officer had observed the defendant at a baseball park watching a softball game and that many children were in the immediate area. Further, some nine days after the ballpark incident, the probation officer visited the defendant’s home and found two males who appeared to be less than ten years of age in the vicinity of the defendant outside of his home and, further, found items of children’s toys, games and clothing in the defendant’s home.

The defendant argues that the state failed to prove by a fair preponderance of the evidence, the standard for a violation of probation hearing; State v. Davis, 229 Conn. 285, 295, 641 A.2d 370 (1994); that the defendant had any actual contact with the children. He further argues that it cannot be a violation for the defendant to be in a park or in a ball field if there are no minor children actually there. We disagree.

The conditions of the defendant’s probation were precise and clear. The defendant was not to visit any park that was utilized by minor children, nor was he to have any contact with minor children, which the court properly interpreted to mean that the defendant could not be around children.

The finding of a violation of probation must be supported by evidence that would induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his probation. This court may reverse a trial court’s initial factual determination of a violation only if it determines that such finding was clearly erroneous. A finding is clearly erroneous when there is no evidence to support it, and, in making this determination, this court will give every reasonable presumption in favor of the trial court’s ruling. See id., 302; State v. Jones, 55 Conn. App. 243, 247, 739 A.2d 697 (1999), cert. denied, 253 Conn. 922, 754 A.2d 798 (2000). We conclude that there was sufficient evidence to support the court’s finding.

Turning our attention to the issue of allocution, it is noted that this issue was not preserved at the trial level, and, although the defendant’s brief is totally lacking as to any reason why we should take up this unpreserved issue, we will do so in the exercise of our supervisory authority for reasons set forth herein. In State v. Johnson, 50 Conn. App. 46, 48, 717 A.2d 786, cert. denied, 247 Conn. 923, 722 A.2d 811 (1998), this court considered the issue of allocution under our supervisory authority. The underlying facts in Johnson are strikingly similar to those here. In Johnson, as here, the court found a violation of probation and then immediately sentenced the defendant, as the court did here. The slight difference between Johnson and the present case is that in Johnson, immediately after imposing sentence, the court adjourned and left the bench. Id. In the case before us, the record reveals that immediately after finding the defendant to be in violation of probation and sentencing him, the court remained available for a short period of time while handling administrative matters such as exhibits and an appeal bond. This distinction, however, does not address the issue of whether we should review an unpreserved claim concerning the requirement that the trial court inquire of a defendant as to whether the defendant wishes to make any statement prior to sentencing.

The Johnson case was remanded for a resentencing in light of our Supreme Court’s decision in State v. Strickland, 243 Conn. 339, 354, 703 A.2d 109 (1997), which established that the right of allocution applies not only to sentences imposed after conviction, but also to sentences imposed as a result of a violation of probation. Strickland had not been decided at the time of the sentencing in Johnson, and, accordingly, this court, pursuant to our supervisory authority; Practice Book § 60-2; remanded the case in Johnson for resentencing and to allow the defendant to exercise his right of allocution. State v. Johnson, supra, 50 Conn. App. 50-51.

We find ourselves in a similar situation because of the recent decision of this court in State v. Hedman, 62 Conn. App. 403, 772 A.2d 603 (2001). Although the Johnson remand was based on the Strickland decision, this court indicated in Johnson that the defendant should have been given an opportunity to speak. Hedman has established that the trial court now has an obligation to inquire of defendants personally if they wish to speak before the court imposes a sentence. Pursuant to Hedman, we conclude that a new dispositional hearing is required in the interest of fairness to the defendant.

The judgment as to the disposition is reversed and the case is remanded for another dispositional phase of the probation revocation proceedings, before a different judge, in which the defendant is to be allowed the right of allocution. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.


author: DRANGINIS, J.

text:
    STATEWIDE GRIEVANCE COMMITTEE v. KAREN ZADORA ET AL.
    (AC 20185)
    Lavery, C. J., and Foti and Dranginis, Js.

      Argued January 11
    officially released April 17, 2001

      Samuel B. Feldman, for the appellants (defendants).

      Maureen A. Horgan, assistant bar counsel, for the appellee (plaintiff).
   Opinion

DRANGINIS, J.

The defendants, Karen Zadora and Richard Forsey, appeal from the judgment of the trial court holding them in contempt of court. On appeal, the defendants claim that the court improperly held that (1) the plaintiff had met its burden of proof concerning the defendants’ noncompliance with an existing court order and (2) the defendants were in contempt of court and in violation of the terms of an existing injunction. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our consideration of the defendants’ appeal. The plaintiff statewide grievance committee filed a complaint against the defendants, who were doing business as Divorce Documentation Service of Connecticut, also known as The Documentation Company, charging them with the unauthorized practice of law. The defendants do not dispute the fact that they are not attorneys. The complaint alleged that the defendants’ business, which claims that it offers only typing and forms for dissolution actions, actually offers legal advice to its customers.

In 1991, Zadora began a business known as the Legal Documentation Company. In December, 1991, the plaintiff initiated an investigation to determine whether this company was engaging in the unauthorized practice of law. After a hearing in April, 1992, at which only Zadora testified, the plaintiff concluded that Zadora’s services consisted only of typing legal forms for divorces, leases, real estate sales and commercial transactions as directed by the customer and that that type of clerical service did not constitute the unauthorized practice of law.

Sometime in late 1992, Forsey, who is Zadora’s father, joined the business. In 1993, the plaintiff initiated another investigation of the defendants because it had received a business card of the Legal Documentation Company that contained the names of both Zadora and Forsey. In 1994, the plaintiff again concluded that the defendants had not engaged in the unauthorized practice of law.

On April 29, 1998, the plaintiff commenced the current action, seeking an injunction pursuant to Practice Book § 2-47 (c) to restrain the defendants from engaging in the unauthorized practice of law. The court rendered judgment for the plaintiff and issued a restraining order enjoining the defendants from practicing law. The order expressly permitted the defendants to sell books or pamphlets about pro se divorce and to provide typing services for forms. The defendants did not appeal from that judgment.

In July, 1999, the defendants mailed flyers with attached business cards to numerous places. The flyers and business cards contained phrases such as “[w]hat we do is show people how they can obtain a divorce on their own,” “[w]e do all the necessary clerical preparation work for the individual,” “pro bono work accepted,” “extensive research” and “consultation.” On the basis of the representations contained in the flyers, the plaintiff filed a motion for contempt on August 6, 1999. The court held the defendants in contempt and ordered that they not distribute any advertising material for ten days following submission to the plaintiff for review. The court also ordered the defendants to post a $5000 performance bond with the court. This appeal followed.

The defendants claim that the court improperly found them in contempt of the order not to engage in the unauthorized practice of law. The defendants also claim that the plaintiff failed to meet its burden of proof for a finding of contempt.

A finding of contempt is a question of fact; see State v. Jackson, 147 Conn. 167, 170, 158 A.2d 166 (1960); and our standard of review is to determine whether the court abused its discretion in finding that the actions or inactions of the party were in contempt of a court order. Bunche v. Bunche, 36 Conn. App. 322, 324, 650 A.2d 917 (1994).

Certain established standards limit our review of the defendants’ claimed improprieties concerning the finding of contempt. “[0]ur review [of a finding of civil contempt] is technically limited to questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt. . . . This limitation originates because by its very nature the court’s contempt power . . . must be balanced against the contemnor’s fundamental rights and, for this reason, there exists the present mechanism for the eventual review of errors which allegedly infringe on these rights. . . . [Our Supreme Court has] found a civil contempt to be improper or erroneous because: the injunction on which it was based was vague and indefinite . . . [and] the findings on which it was based were ambiguous and irreconcilable .... Papa v. New Haven Federation of Teachers, 186 Conn. 725, 731-32, 444 A.2d 196 (1982) . . . .” (Citation omitted; internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 527-28, 710 A.2d 757 (1998); Sender v. Sender, 56 Conn. App. 492, 495-96, 743 A.2d 1149 (2000). “Although . . . plenary review of civil contempt orders extends to some issues that are not truly jurisdictional, its emphasis on fundamental rights underscores the proposition that the grounds for any appeal from a contempt order are more restricted than would be the case in an ordinary plenary appeal from a civil judgment.” (Internal quotation marks omitted.) Eldridge v. Eldridge, supra, 528; Sender v. Sender, supra, 496.

In a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order. See Potter v. Board of Selectmen, 174 Conn. 195, 197, 384 A.2d 369 (1978); Duve v. Duve, 25 Conn. App. 262, 269, 594 A.2d 473, cert. denied, 220 Conn. 911, 597 A.2d 332 (1991), cert. denied, 502 U.S. 1114, 112 S. Ct. 1224, 117 L. Ed. 2d 460 (1992).

In this case, the court did not abuse its discretion in finding that the defendants were in contempt of the court order. The court had authority to impose the order punishing the defendants, and the acts of the defendants for which the penalty was imposed constituted noncompliance with the order.

The trial court’s memorandum of decision states: “In the present case, the flyer and business cards strongly suggest that the respondents provide complete preparation of the legal documents needed to pursue a pro se dissolution of marriage. Phrases such as ‘[w]hat we do is show people how they can obtain a divorce on their own,’ and ‘[w]e do all the necessary clerical preparation work for the individual’ mislead prospective consumers into expecting that the respondents will advise and assist them in selecting and filling out the proper documents. Nowhere in the advertisement is it indicated that the service is limited to supplying blank forms requested by the consumer and typing consumer generated responses. The cards boast of the extensive research conducted by the respondents with attorneys and court personnel as background to perform document preparation. This boasting implies that the respondents are qualified to provide more than a collection of blank forms to be sifted through and responded to by the consumer alone. The repeated use of the word ‘consultation’ implies that the service involves the giving of advice as opposed to the mere recording of responses.”

Advertising alone is sufficient to constitute the unauthorized practice of law if the advertisement is for activity that amounts to legal services. See Statewide Grievance Committee v. Harris, 239 Conn. 256, 256-57, 683 A.2d 1362 (1996). That principle may apply despite the presence of disclaimers of being an attorney or providing legal advice. See Statewide Grievance Com mittee v. Patton, 239 Conn. 251, 253-55, 683 A.2d 1359 (1996).

The facts found by the court sufficiently supported the conclusion that the defendants violated the injunction and were in contempt of court. On the basis of our review of the record, we conclude that the court did not abuse its discretion by finding that the defendants were in wilful contempt of an order to terminate their unauthorized practice of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 2-47 (c) provides in relevant part: “A petition to restrain any person from engaging in the unauthorized practice of law not occurring in the actual presence of the court may be made by written complaint to the superior court in the judicial district where such violation occurs. . . .”


author: Per Curiam.

text:
    MALINOW AND SILVERMAN MORTUARY, INC. v. AARON HOCHMAN
    (AC 20734)
    Lavery, C. J., and Schaller and Cretella, Js.
    Argued February 13
    officially released March 20, 2001
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. DONNIE MENYFIELD
    (AC 20214)
    Foti, Flynn and Dupont, Js.
    Argued February 15
    officially released March 20, 2001
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. BRUCE TABER
    (AC 19193)
    Schaller, Spear and Daly, Js.
    Argued February 16
    officially released March 20, 2001
   Per Curiam.

The judgment is affirmed.


text:
    LAWRENCE BELOTTI v. CITY OF SHELTON
    (AC 20611)
    SchaUer, Spear and Daly, Js.
    Argued February 16
    officially released March 20, 2001
   Per Curiam.

The judgment is affirmed.


text:
    MILVIA DIBRINO v. JOSEPH FERRUCCI ET AL.
    (AC 20053)
    Mihalakos, Flynn and Healey, Js.
    Argued February 20
    officially released March 20, 2001
   Per Curiam.

The judgment is affirmed.


text:
    THEODORE LENCZYK v. CLIFFORD GRABOWSKI
    (AC 20290)
    Lavery, C. J., and Dranginis and Flynn, Js.
    Submitted on briefs March 2
    officially released March 20, 2001
   Per Curiam.

The judgment is affirmed.


text:
    JAMES HUDAK v. THE S. CARPENTER CONSTRUCTION COMPANY ET AL.
    (AC 20355)
    Lavery, C. J., and Dranginis and Flynn, Js.
    Submitted on briefs March 2
    officially released March 20, 2001
   Per Curiam.

The judgment is affirmed.


text:
    BETTY RAWLS, ADMINISTRATRIX (ESTATE OF EARL RAWLS) v. LEO CIOCCA ET AL.
    (AC 20819)
    Lavery, C. J., and Dranginis and Flynn, Js.
    Submitted on briefs March 2
    officially released March 20, 2001
   Per Curiam.

The judgment is affirmed.


text:
    JOHN MICHAEL MAGUIRE v. KATHLEEN JOAN MAGUIRE
    (AC 20176)
    Foti, Mihalakos and Daly, Js.
    Argued February 28
    officially released March 20, 2001
   Per Curiam.

The judgment is affirmed.


text:
    WILLIAM EVANS v. COMMISSIONER OF CORRECTION
    (AC 19690)
    Lavery, C. J., and Spear and Daly, Js.
    Argued February 26
    — officially released March 27, 2001
   Per Curiam.

The judgment is affirmed.


text:
    SAMUEL E. WILSON v. GEORGE MARENNA
    (AC 20541)
    Lavery, C. J., and Spear and Daly, Js.
    Argued February 26
    officially released March 27, 2001
   Per Curiam.

The judgment is affirmed.'


text:
    PATRICK UCCI v. MOLLY M. UCCI
    (AC 20574)
    Schaller, Mihalakos and Hennessy, Js.
    Submitted on briefs March 2
    officially released March 27, 2001
   Per Curiam.

The judgment is affirmed.


text:
    ELNORA PARMLEE v. RICHARD PARMLEE
    (AC 20838)
    Schaller, Mihalakos and Hennessy, Js.
    Submitted on briefs March 2
    officially released March 27, 2001
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. ANDRE PIERCE
    (AC 17787)
    Dranginis, Flynn and O’Connell, Js.
    Argued February 28
    officially released March 27, 2001
   Per Curiam.

The judgment is affirmed.


text:
    GENEVIEVE S. CLUKEY v. THOMAS F. CLUKEY
    (AC 20329)
    Lavery, C. J., and Foti and Daly, Js.
    Argued March 1
    officially released March 27, 2001
   Per Curiam.

The judgment is affirmed.


text:
    CONNECTICUT INVESTMENTS THREE, LLC v. GARY E. JEANFAIVRE
    (AC 20910)
    Foti, Spear and O’Connell, Js.
    Submitted on briefs March 2
    officially released March 27, 2001
   Per Curiam.

The judgment is affirmed.


text:
    FEDERAL DEPOSIT INSURANCE CORPORATION, RECEIVER OF SUMMIT NATIONAL BANK v. WINSTED LAND DEVELOPMENT COMPANY ET AL.
    (AC 20787)
    Foti, Spear and O’Connell, Js.
    Submitted on briefs March 2
    officially released March 27, 2001
   Per Curiam.

The judgment is affirmed.


text:
    JEFFREY PERRY v. COMMISSIONER OF CORRECTION
    (AC 19729)
    Foti, Spear and O’Connell, Js.
    Submitted on briefs March 2
    officially released March 27, 2001
   Per Curiam.

The appeal is dismissed.


text:
    BRUCE MERLIN v. LABOR FORCE OF AMERICA, INC., ET AL.
    (AC 20406)
    Landau, Spear and Dranginis, Js.
    Argued March 20
    officially released April 17, 2001
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    STATE OF CONNECTICUT v. ROGER MIKE
    (AC 20157)
    Foti, Spear and O’Connell, Js.
    Argued March 21
    officially released April 17, 2001
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. GEORGETTE TRELA
    (AC 21042)
    Lavery, C. J., and Mihalakos and Flynn, Js.
    Argued March 22
    officially released April 17, 2001
   Per Curiam.

The judgment is affirmed.


text:
    MAXIME HILL v. COMMISSIONER OF CORRECTION
    (AC 19728)
    Lavery, C. J., and Mihalakos and Flynn, Js.
    Argued March 22
    officially released April 17, 2001
   Per Curiam.

The judgment is affirmed.


text:
    SQUILLANTE ENTERPRISES, INC. v. JOZEF JUCK
    (AC 20976)
    Lavery, C. J., and Foti and Healey, Js.
    Argued March 26
    officially released April 17, 2001
   Per Curiam.

The judgment is affirmed.


text:
    MARY LIROT v. MASHANTUCKET PEQUOT GAMING ET AL.
    (AC 20637)
    Schaller, Mihalakos and Hennessy, Js.
    Argued March 23
    officially released April 17, 2001
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    ROCCO J. TIROZZI, EXECUTOR (ESTATE OF STEPHEN G. TIROZZI) v. COLONIAL PENN INSURANCE COMPANY
    (AC 20713)
    Schaller, Mihalakos and O’Connell, Js.
    Argued March 23
    officially released April 17, 2001
   Per Curiam.

The judgment is affirmed.


text:
    NEW HAVEN PLAZA ASSOCIATES ET AL. v. CITY OF NEW HAVEN ET AL.
    (AC 20417)
    Landau, Dranginis and Shea, Js.
    Argued March 26
    officially released April 17, 2001
   Per Curiam.

The judgment is affirmed.


text:
    CLAUDIA WALTER ET AL. v. STATE OF CONNECTICUT, SERVICES FOR THE BLIND
    (AC 19754)
    Lavery, C. J., and Landau and Schaller, Js.

      Argued October 23, 2000
    officially released April 24, 2001

      Brian W. Prucker, for the appellants (plaintiffs).

      Philip M. Schulz, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiffs, Claudia Walter and Dana Walter, surviving dependents of Norbert Walter, appeal from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner) to dismiss their claim for death benefits. On appeal, the plaintiffs claim that the board improperly (1) reversed the decision of the commissioner to grant their motion to preclude that was based on the defendant’s failure to name the plaintiffs in its notice to contest liability, (2) failed to require proof of service of the notice to contest as required by statute, (3) granted the defendant’s motion to open and (4) failed to find that the defendant did not have good cause for failing to file opposing affidavits as required by § 31-297 (b)-l of the Regulations of Connecticut State Agencies. We affirm the decision of the board.

The following facts and procedural history are relevant to our disposition of this appeal. The plaintiffs are the widow and daughter, respectively, of the decedent, Norbert Walter, who died on November 13, 1989. The decedent was employed by the defendant, the state of Connecticut Services for the Blind, at the time of his death. On January 18, 1990, the plaintiffs filed claims with the workers’ compensation commissioner for the second district for death benefits pursuant to General Statutes § 31-306. In response, the defendant filed a notice of intent to contest liability and mailed a copy to the decedent at his last home address. Thereafter, the plaintiffs filed a motion to preclude the defendant from contesting liability on the ground that the defendant’s notice failed to name the proper claimants, namely, the plaintiffs, rather than the decedent.

The first hearing was held on December 16, 1992. No representative of the office of the attorney general, counsel for the defendant, attended the hearing. Subsequently, the defendant moved to open the record and to submit additional evidence with respect to the claims, alleging that the failure to appear at the hearing occurred because of lack of timely notice. The commissioner granted the motion on April 6, 1993, and allowed the defendant to submit its disclaimer of liability and briefs. On April 16, 1993, the plaintiffs appealed to the board from the decision on the motion to open.

The commissioner subsequently issued a decision on the motion to preclude, finding that the plaintiffs were both supported by the decedent who, at the time of his death, was an employee of the state of Connecticut, and that the notice contesting liability named the wrong party as claimant and was not sent to the proper parties. After further hearings, the commissioner granted the plaintiffs’ motion to preclude the defendant from contesting liability in a decision dated May 28, 1993. The defendant appealed to the board from that decision, and the board held a hearing on November 18, 1994, concerning the commissioner’s decisions on the motion to open and the motion to preclude.

In its decision issued June 2,1995, the board affirmed the commissioner’s decision granting the defendant’s motion to open the record and to submit additional evidence, and reversed the decision granting the plaintiffs’ motion to preclude. The board remanded the case to the commissioner for a determination on the merits of the claim for death benefits. The commissioner held three more formal hearings to adjudicate the merits of the claim. The commissioner subsequently issued a finding and dismissed the plaintiffs’ claim for death benefits on March 3, 1998.

The plaintiffs appealed to the board from the commissioner’s decision dismissing their claim. The plaintiffs, however, did not challenge the findings and conclusions of the commissioner with regard to that ruling. Instead, the plaintiffs alleged that the board’s June 2, 1995 decision was improper. Specifically, they claimed that the board improperly affirmed the commissioner’s decision granting the state’s motion to open and improperly reversed the decision granting their motion to preclude. On June 18, 1999, the board affirmed the commissioner’s decision to dismiss the claim. The plaintiffs now appeal from that decision. Additional facts and procedural history will be set forth as necessary.

I

The plaintiffs first claim that the board improperly reversed the commissioner’s decision to grant their motion to preclude that was based on the defendant’s failure to name the plaintiffs in its notice to contest liability. Specifically, they argue that a failure to send a notice of contest to the proper claimants violates General Statutes § 31-321 and General Statutes (Rev. to 1989) § 31-297 (b), and, thus, the commissioner’s decision to grant the motion to preclude was proper. We disagree.

“As a threshold matter, we set forth the standard of review applicable to workers’ compensation appeals. ... It is well established that [although not disposi-tive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board. ... A state agency is not entitled, however, to special deference when its determination of a question of law has not previously been subject to judicial scrutiny. . . . Where ... [a workers’ compensation] appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision.” (Citations omitted; internal quotation marks omitted.) Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 603-604, 748 A.2d 278 (2000). Because the question of whether the notice requirements in §§ 31-297 (b) and 31-321 apply to claimants is an issue of statutory construction that has not yet been subjected to judicial scrutiny, we exercise our plenary power to review this administrative decision.

“The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Id., 604.

Further, “[w]e are mindful of the principles underlying Connecticut practice in [workers’] compensation cases: that the legislation is remedial in nature . . . and that it should be broadly construed to accomplish its humanitarian purpose.” (Citation omitted; internal quotation marks omitted.) Dubois v. General Dynamics Corp., 222 Conn. 62, 67, 607 A.2d 431 (1992). “The Workers’ Compensation Act [General Statutes § 31-275 et seq.] (act) provides the sole remedy for employees and their dependents for work-related injuries and death. ... Its purpose is to provide a prompt, efficient, simple and inexpensive procedure for obtaining benefits related to employment. . . . Furthermore, the act is remedial and must be interpreted liberally to achieve its humanitarian purposes. ... In addition, inherent in the act is its analog to the judicial policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.” (Citations omitted; internal quotation marks omitted.) Pietraroia v. Northeast Utilities, 254 Conn. 60, 74, 756 A.2d 845 (2000).

Neither § 31-297 (b) nor § 31-321 expressly provides for notice to claimants who are not employees. Both statutes refer to notice requirements applicable to employers, employees or the commissioner. “The entire statutory scheme of the Workers’ Compensation Act is directed toward those who are in the employer-employee relationship as those terms are defined in the act and discussed in our cases.” Castro v. Viera, 207 Conn. 420, 433, 541 A.2d 1216 (1988).

At the outset, we note that the express language of both §§ 31-297 (b) and 31-321 is plain and unambiguous. Section 31-321 provides in relevant part that “any notice required under this chapter [is] to be served upon an employer, employee or commissioner . . . .” Section 31-297 (b) provides in relevant part that “the employer . . . shall file with the compensation commissioner ... a notice in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. ...” The statutes at issue do not expressly provide for notice to “claimants.”

The absence of a term from the language of a statute can be telling. See Mahoney v. Lensink, 213 Conn. 548, 569, 569 A.2d 518 (1990). Although workers’ compensation statutes commonly use the terms “claimant” and “dependent,” §§ 31-297 (b) and 31-321 do not expressly provide for notice to either claimants or dependents. “In construing a statute, common sense must be used, and the courts will assume that the legislature intended to accomplish a reasonable and rational result .... A statute . . . should not be interpreted to thwart its purpose.” (Internal quotation marks omitted.) Police Dept. v. State Board of Labor Relations, 225 Conn. 297, 303, 622 A.2d 1005 (1993). “It is well established that the Workers’ Compensation Act is remedial in nature and that it should be broadly construed to accomplish its humanitarian purpose. . . . Construing the statute liberally advances its underlying purpose of providing financial protection for injured workers and their dependents.” (Citations omitted; internal quotation marks omitted.) Crook v. Academy Drywall Co., 219 Conn. 28, 32, 591 A.2d 429 (1991). We are also mindful that “[t]he court may not, by construction, supply omissions in a statute or add exceptions or qualifications, merely because it opines that good reason exists for so doing. . . . This is especially so where it appears that the omission was intentional. ... In such a situation, the remedy lies not with the court but with the General Assembly.” (Citations omitted.) Bailey v. Mars, 138 Conn. 593, 598, 87 A.2d 388 (1952).

The defendant argues that the absence of an express requirement that notice of a disclaimer of liability be sent to the claimants may be interpreted to mean that there is no requirement whatsoever for notice of the filing of a disclaimer. If we were to apply the limited construction proposed by the defendant, workers’ compensation law would impose no requirement that dependent claimants receive notice of a contested claim. This would run counter to the “underlying purpose of providing financial protection for injured workers and their dependents.” Crook v. Academy Drywall Co., supra, 219 Conn. 32. Claimants are therefore entitled to notice of the fact that the employer has filed a notice contesting liability. This notice requirement does not mandate, however, that the plaintiffs be allowed to resort to a motion to preclude. We note, significantly, that a motion to preclude is unavailable for the failure of an employer to send notice contesting liability to the employee within the twenty day time period, as long as the notice is timely filed with the commissioner. See Vachon v. General Dynamics Corp., 29 Conn. App. 654, 659, 617 A.2d 476 (1992), cert. denied, 224 Conn. 927, 619 A.2d 852 (1993).

In Vachon, this court stated that “[t]he language of [§ 31-297 (b)] is plain and unambiguous. In drafting the statute, the legislature mandated only that the notice contesting liability be filed within twenty days. General Statutes § 31-297 (b). It then provided that failure to comply would result in the preclusion of employer defenses. . . . The legislature did not provide any form of penalty for the failure to send such notice to the claimant, but limited the invocation of preclusion to the failure to file notice contesting liability with the commission. Id. If it intended to require the employer to send notice contesting liability to the employee within the twenty day period, it would have said so in the statute. The legislature would have included the phrase ‘on or before the twentieth day after he has received a written notice of claim’ after the phrase ‘a copy thereof shall be sent to the employee’ if it intended to place that time limitation on notification of contest to the claimant by the employer. To avoid preclusion, notice contesting liability must be filed within twenty days with the workers’ compensation commissioner. The employer is not required to send such notice to the employee within the twenty day time period.” (Citation omitted; emphasis added.) Id.

The plaintiffs in the present case assert rights to death benefits guaranteed by § 31-306. A decision imposing no notice of a disclaimer of liability to those who claim death benefits would be contrary to the remedial purpose of the Workers’ Compensation Act and does not “liberally [advance] its underlying purpose of providing financial protection for injured workers and their dependents.” Crook v. Academy Drywall Co., supra, 219 Conn. 32. The plaintiffs, therefore, are entitled to adequate notice. We have stated in the context of other agency proceedings that the “[f]ailure to provide prehearing notice prevents interested parties from becoming involved in the hearing process. Notice is adequate if it fairly and sufficiently apprises those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing.” (Internal quotation marks omitted.) Woodburn v. Conservation Commission, 37 Conn. App. 166, 177, 655 A.2d 764, cert. denied, 233 Conn. 906, 657 A.2d 645 (1995). Barring express notice requirements, we find this statement of “adequate notice” persuasive.

Our interpretation that the claimant is entitled to “adequate notice” is supported by a consideration of the severe consequences that accompany the granting of a motion to preclude pursuant to § 31-297 (b). “In the absence of a clearly expressed statutory provision to the contrary, the sanction of the conclusive presumption that the employer has accepted the compensability of an alleged injury and forfeited the right to contest compensability should apply only where the employer has failed timely to file the notice that he is contesting liability and should not by judicial construction be made applicable in such a case as this where the employer has within the time limited filed the notice of contest and expressly disclaimed liability.” Menzies v. Fisher, 165 Conn. 338, 357, 334 A.2d 452 (1973).

There is little doubt that the notice provided to the plaintiffs of the disclaimer of liability was adequate. As stated by the board, “[i]n this case, the state provided timely notice of its intent to contest compensability with the Workers’ Compensation Commission via certified mail as required by § 31-297 (b) and § 31-321. The state also mailed copies of said notice to the decedent’s address, which also happened to be the [plaintiffs’] address. The state fell short only with respect to the statutory requirement that the name of the claimant be included in the form 43, which requirement was certainly not clear from the form 43 itself. Moreover, there has been no showing that the [plaintiffs] have suffered prejudice from this deficiency. Indeed, it is clear- that the [plaintiffs] were in receipt of the defective notice when their motion to preclude was filed on February 20, 1992. Given these circumstances, we believe that it would be . . . inequitable to rule that § 31-297 (b) was not satisfied by the state in this case.” We note also that the form 43 notice of contest prescribed by the commissioner did not include a block for the claimant’s name. The defendant, therefore, completed the form with the decedent employee’s name and last known address. The form was then sent to the decedent at his address, which was also the plaintiffs’ address. We cannot conclude that a failure to send a copy of the notice of contest to the dependent plaintiffs, when a notice is sent to the decedent employee at the same address, is ineffective for purposes of notice. Moreover, Vachon does not allow a claimant to resort to the drastic remedy of preclusion for the failure of the employer to provide notice to the claimant within twenty days. The board, thus, properly reversed the commissioner’s decision granting the motion to preclude.

II

The plaintiffs next claim that the board improperly failed to require proof of service of the notice of contest as required by statute and, instead, improperly took administrative notice of the contents of the file. We are not persuaded.

The following additional facts are relevant to this issue. At the December 16, 1992 hearing, counsel for the plaintiffs admitted that the plaintiffs had received the notice of contest. The plaintiff Claudia Walter testified at the December 16 hearing that she was residing at the decedent’s address at the time of his death. The notice of contest was sent to that address.

As stated previously, there is no requirement that claimants receive notice of contest within a set time period, and the penalty of preclusion is not available unless the notice of contest is not timely filed with the commissioner. Because we conclude that the plaintiffs in this case were not specifically entitled to the benefit of notice under § 31-297 (b), we conclude that the commissioner did not improperly determine, on the basis of administrative notice of the file, that notice had been given, rather than requiring proof of service on the dependent plaintiffs.

Ill

The plaintiffs further claim that the board improperly affirmed the commissioner’s decision to grant the defendant’s motion to open on the ground that the office of the attorney general was not properly notified of the formal hearing. We disagree.

“While a workers’ compensation award may, under the appropriate circumstances, be opened, the decision to do so . . . is within the sound discretion of the commissioner.” Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 541, 612 A.2d 1222 (1992). That discretion is further supported by “General Statutes § 31-298 [which] provides . . . that [i]n all cases and hearings under the provisions of [the Workers’ Compensation Act], the commissioner shall proceed, so far as possible, in accordance with the rules of equity. . . . Our Supreme Court has stated that no matter shall be decided unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue.” (Internal quotation marks omitted.) LaPia v. Stratford, 47 Conn. App. 391, 400, 706 A.2d 11 (1997). General Statutes § 31-298 empowers “the commissioner to ascertain the substantial rights of the parties and carry out the provisions and intent of the workers’ compensation laws .... The substantial rights of the parties include the right of the employer, in an appropriate case, independently to examine the claimant, to notice his deposition, and to insist on hearing his personal testimony at a formal hearing.” (Internal quotation marks omitted.) Pietraroia v. Northeast Utilities, supra, 254 Conn. 72. “[M]ere inadvertence on [the claimant’s] part, mere negligence, without intentional withholding of evidence, particularly where there is no more than technical prejudice to the adverse party, should not necessarily debar him of his rights, and despite these circumstances a commissioner in the exercise of his discretion might be justified in opening an award. No definite rule can be formulated, but the policy that litigation should be brought to as speedy an end as is reasonably compatible with justice to the parties, prejudice or lack of it to the opposing party, the conduct of the party seeking to open the award, particularly with regard to any reason he may have for not having produced the evidence at the original hearing, the nature of the testimony and its probable effect upon the conclusion reached, and the other relevant circumstances must all be considered.” (Internal quotation marks omitted.) Meadow v. Winchester Repeating Arms Co., 134 Conn. 269, 274, 57 A.2d 138 (1948).

“As [our Supreme Court has] indicated, a speedy and effective workers’ compensation system is fostered by the recognition that parties frequently retain counsel to represent them. . . . [T]he fact is that the founders recognized that parties to workers’ compensation proceedings have the right to retain counsel, and the free exercise of that right never has been discouraged. . . . [The commissioners] recognize . . . the right of the parties to have counsel in any case, and in cases involving difficult questions of law and fact, and considerable amounts, they believe that injured parties and employers . . . are entitled to have all the light that can be secured, and that not only may the interests of the employer require expert assistance, but that it may be as unwise for an injured employee to try to handle his own claim for compensation as to attempt to heal his physical ills without a doctor.” (Citation omitted; internal quotation marks omitted.) Schreck v. Stamford, 250 Conn. 592, 600, 737 A.2d 916 (1999).

The board concluded that “[i]n this case, the commissioner’s decision to open the record was supported by the fact that the attorney general’s office was not properly notified of the formal hearing. Moreover, the commissioner had not yet issued an award based on the claimants’ motion to preclude, so the commissioner was not disturbing a final judgment when he allowed the state to file its brief and request that administrative notice be taken of its forms 43. Although the claimants allege prejudice, there is no evidence that they were unfairly burdened in any way by the commissioner’s decision, as they were well aware of the allegedly defective forms 43 when their motion to preclude was filed.”

We conclude that the commissioner did not abuse his discretion in granting the defendant’s motion to open. At best, the plaintiffs allege only a technical prejudice in opening the record. At the time that the commissioner granted the motion to open, an award had not yet been issued. The result of the decision to grant the motion to open resulted in a hearing on the merits of the claim, rather than the conclusive presumption of liability provided by a granting of a motion to preclude. “It is the policy of the law to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.” (Internal quotation marks omitted.) East Haven v. Paranto, 2 Conn. App. 449, 454, 479 A.2d 1225 (1984). We, therefore, conclude that the commissioner properly exercised his discretionary power under § 31-298 in granting the defendant’s motion to open.

IV

The plaintiffs’ final claim is that the board improperly failed to determine that the defendant did not have good cause for failing to file opposing affidavits as required by § 31-297 (b)-l of the Regulations of Connecticut State Agencies. We disagree.

Section 31-297 (b)-l of the Regulations of Connecticut State Agencies provides: “Whenever a party files a Motion to Preclude presentation of defenses, alleging rights under Sec. 31-297 (b) [of the General Statutes], the movant shall support such filing by such documents as are appropriate, including but not limited to affidavits, copies of notices with return receipt indicating date of service and written admissions. The movant shall also file a memorandum of law in support of such motion. The adverse party prior to the date set for hearing on such motion shall file opposing affidavits and any further documentation and memoranda of law. All such motions and accompanying filings and memo-randa shall be filed and served on all parties. Upon good cause shown the Commissioner may waive any of these requirements.” (Emphasis added.)

None of the parties in this case submitted affidavits as authorized by § 31-297 (b)-l, and none raised the issue before the commissioner. We have long held that “[a] party to an administrative proceeding cannot be allowed to participate fully at hearings and then, on appeal, raise claims that were not asserted before the board. We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.” (Internal quotation marks omitted.) Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 632, 613 A.2d 739 (1992). The plaintiffs, therefore, may not raise the defendant’s failure to file opposing affidavits when they themselves failed to comply with the statutory provisions and did not challenge the defendant’s alleged failure before the commissioner or the board.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       A disclaimer is 1mown as a form 43, is filed pursuant to General Statutes (Rev. to 1989) § 31-297 (b) and notifies the plaintiffs of an intent to contest liability to pay compensation. See Tovish v. Gerber Electronics, 19 Conn. App. 273, 274, 562 A.2d 76, cert. denied, 212 Conn. 814, 565 A.2d 538 (1989).

       General Statutes § 31-321 provides: “Unless otherwise specifically provided, or unless the circumstances of the case or the rules of the commission direct otherwise, any notice required under this chapter to be served upon an employer, employee or commissioner shall be by written or printed notice, service personally or by registered or certified mail addressed to the person upon whom it is to be served at his last-known residence or place of business. Notices in behalf of a minor shall be given by or to his parent or guardian or, if there is no parent or guardian, then by or to such minor.”

       General Statutes (Rev. to 1989) § 31-297 (b) provides: “Whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability.”

       The defendant argues that substantial compliance with the notice of contest provision should govern our decision in this case. It is unlikely that the substantial compliance theory, utilized to ascertain whether a notice of claim filed by a claimant is “sufficient to allow the employer to make a timely investigation of the claim [and, therefore,] triggers the employer’s obligation to file a disclaimer”; (internal quotation marks omitted) Russell v. Mystic Seaport Museum, Inc., supra, 252 Conn. 612; is applicable to a notice of contest. In a notice of claim, the employee or an employee’s dependent, an intended beneficiary of the act, is seeking compliance with notice requirements. In a notice of contest, it is the employer, not an intended beneficiary of the act, who is seeking compliance with notice requirements. Thus, the justification for liberally construing the notice provision to serve one who is not an intended beneficiary of the act would not apply.

       At the April 30, 1993 hearing, the commissioner took notice of the fact that the form 43s were stamped “received certified” by the workers’ compensation district office when no green card could be produced establishing that the forms were sent by certified mail. As stated in part I of this opinion, this cannot provide a basis for granting a motion to preclude.

       During one of the hearings, counsel for the plaintiffs stated that “[t]here was a disclaimer, commissioner. I would leave them to their proof whether or not it was properly served, but it would be our position if it was, that they served the wrong party.”