author: ALVORD, J. FLYNN, J.,

text:
    STATE OF CONNECTICUT v. RINALDO FLEURY
    (AC 32183)
    Lavine, Alvord and Flynn, Js.
    Argued January 31 —
    officially released May 22, 2012

      Michael Zariphes, special public defender, for the appellant (defendant).

      AdamE. Mattei, special deputy assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and C. Robert Satti, Jr., supervisory assistant state’s attorney, for the appellee (state).
   Opinion

ALVORD, J.

The defendant, Rinaldo Fleury, appeals from the judgment of conviction, rendered after a jury trial, of illegal sale of a pistol or revolver in violation of General Statutes § 29-33 (c) and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35. On appeal, the defendant claims that (1) the trial court violated his constitutional right to an impartial jury when it improperly severed the charges alleged in the original four count information and (2) the state failed to provide sufficient evidence that the defendant committed the crimes for which he was convicted. We disagree with the defendant and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Detective Arthur Huggins of the Milford police department had been working in an undercover capacity as part of a federal Drug Enforcement Administration (administration) investigation led by Agent Dana Mofenson. In his undercover role, Huggins had been communicating with Scott Similien and had met with Mm approximately a dozen times. On June 27, 2008, Huggins arranged to purchase a handgun from Similien and told Similien that he believed that he would be able to resell the handgun at the Pilot truck stop in Milford. After speaking by cell phones, Huggins and Similien agreed to meet on Linwood Avenue in Bridgeport for the exchange. Similien and Huggins agreed on a price of $500. The admimstration provided Huggins with $500 divided into five bundles of $100 each in varying denominations. In anticipation of the meeting, Mofenson positioned agents and Milford police detectives in six or seven unmarked cars around the Linwood Avenue area. The officers and agents were equipped with binoculars with wMch to view Similien and any other persons accompanying him for the transaction.

At approximately 5:45 p.m., Huggins parked Ms truck on Linwood Avenue to wait for Similien to arrive with the gun. Huggins had two different recording devices in Ms veMcle, a Kel momtoring device and a digital recorder. One recording device was located in the dashboard of the truck and the other was attached to the sun visor on the driver’s side of the veMcle. Huggms would speak into the Kel momtoring device in order to commumcate with the other members of the investigation team prior to the transaction. He also communicated with Mofenson via cell phone.

Later that afternoon, a black 1998 Infimti sedan bearing license plate number 558UZP pulled up on the left side of Huggins’ truck, in the middle of the road. Huggms stated aloud the license plate number of the Infimti for the benefit of the other team members who could hear him over the Kel device. Similien exited the Infimti and came up to the driver’s side door of Huggins’ truck. Another person later identified as the defendant exited the Infimti and came around to the passenger side, opening the door. A third man later identified as Fritze Dorce stayed in the driver’s seat of the Infimti with the engine idling. Special Agent Rodney George had a clear view of the transaction and the defendant through his binoculars. Huggins provided the money to Similien as the defendant took a brown bag from the waistband of his pants, throwing the bag on the passenger seat of Huggins’ truck. Huggins picked up the bag, looked inside, saw the gun and told Similien and the defendant, “it looks good.” The brown bag contained a .22 caliber handgun which laboratory tests later showed was fully operational.

During the exchange, the defendant, Similien and Huggins had a brief conversation at which time their voices were caught on the recording devices in Huggins’ truck. While speaking to the defendant, Huggins noticed a green tattoo featuring lettering on the left side of the defendant’s neck. Similien and the defendant then returned to the Infiniti which drove to the end of the street and turned left. Huggins brought the handgun in the brown bag to Mofenson and then entered George’s vehicle.

Special Agent Daniel Dobas followed the Infiniti as it turned left on Norman Street, as it turned left on Beechwood and then as it turned left on Wood where it stopped at 5 Elmwood, an address that the agents had monitored many times before. None of the three men exited the Infiniti at 5 Elmwood, but a man identified as Junior Etienne came out of the house and approached the vehicle on the passenger side. Dobas continued to follow the Infiniti after it left 5 Elmwood and continued to 123 Center Street, another location that the agents had been monitoring. None of the men exited the Infiniti at that location and no one entered the vehicle. The Infiniti then drove up Center Street toward Washington Avenue.

Dobas used a two-way radio to communicate with Bridgeport police Officer Jason Amato, who was in an unmarked police car on the east side of Bridgeport, and asked Amato to stop the Infiniti. Amato crossed the East Washington Bridge and observed the Infiniti traveling from Center Street onto Washington Avenue. Amato followed the Infiniti as it proceeded onto Main Street and, after the Infiniti failed to use a turn signal, Amato stopped the vehicle at the VIP Car Wash on Main Street.

After it was confirmed that the vehicle had been stopped, George and Huggins drove past the car wash. On the basis of this drive-by viewing, Huggins identified the car and the men as those involved with the gun sale. It was sunny that afternoon, so Huggins was able to get a good view of Similien and the defendant standing outside the vehicle at the car wash. Amato recognized all three of the men in the Infiniti, including the defendant, but also viewed each man’s state issued identification card. Amato then allowed the vehicle to leave the scene. The police later secured a warrant for the defendant’s arrest, and he arranged with the police to turn himself in. At no time did the defendant ever apply for or possess a permit to carry a pistol nor is there any record that he ever applied to the state for permission to sell a pistol.

The state charged the defendant in a four count information with violation of the Corrupt Organizations and Racketeering Activity Act (act) pursuant to General Statutes § 53-395 (c), conspiracy to violate the state dependency producing drug laws pursuant to General Statutes §§ 53a-48, 21a-277 (a) and 21a-279 (a), illegal sale of a pistol or revolver in violation of § 29-33 (c) and carrying a pistol or revolver without a permit in violation of § 29-35. On November 16, 17 and 18, 2009, the state and the defendant conducted voir dire. During voir dire, the court informed the venirepersons that the trial would be held December 14 through 18, 2009, and would not interfere with the holidays. All four counts of the information were read to the venirepersons and the venirepersons heard mention of the Stack Boys, a gang to which the defendant allegedly belonged.

Due to a prior trial that lasted longer than expected, however, the court was not able to commence the trial until December 16, 2009. On the day before trial began, the court sua sponte determined that severing the charges and holding separate trials for the gun charges and drug charges would ensure that the jury selected in November would be able to hear at least one trial in its entirety. At least two of the jurors were not able to continue service beyond the original time represented to them by the court. The defendant had filed a speedy trial motion, and the court expressed the belief that severing the charges was the only way to ensure that at least one of the trials would be concluded before the end of the year.

The state objected to severance, arguing that the conspiracy was the reason that the defendant was involved in the gun sale. Defense counsel stated that he approved of severance because it would avoid any spillover prejudice between the gun and drug charges. Defense counsel noted, however, that the defendant himself objected to severance. Defense counsel told the court: “As the defense counsel in this matter who is charged with the responsibility of defense trial strategy, I can tell the court that I, the defense has no objection to bifurcation and is in favor of it for reasons in addition to what the court indicated but for principal reasons to attempt to preclude spillover prejudice. I’ve explained this to [the defendant]. [The defendant] on the other hand wants to have everything tried together. . . . I’ve explained to him, however that — at the beginning of my representation of him, I told him that there are about two things or three things he absolutely controls; whether to plead guilty or not, whether to have a jury election or whether or not to testify. I also explained to him that within the confines of our legal system, since I determine trial strategy in. the matter that I thought that bifurcation would be in his best interest. And so as a consequence of that or in conclusion, I’m telling the court that even though [the defendant] doesn’t agree with me, the defense, on the other hand, believes that bifurcation is the best way to proceed.”

The court then explained to the defendant why it would be severing the charges because the defendant told the court he did not understand the purpose of the severance. The defendant continued to object to severance despite the court’s explanation and his counsel’s approval. The court then severed the charges and granted the defendant’s motions in limine to preclude evidence that the defendant was in the Stack Boys gang or that he was involved in any drug sales.

Following severance of the charges, the court gave the following instruction to the jury regarding the amended information: “So the defendant has been charged in the following information. This information’s a little different than the one that I think was presented to you at the time of jury selection. There were I think four counts. We’re going to go to trial on two counts here which I’m going to read to you right now. So don’t worry about those other counts. Just — your job is to concentrate on the two counts alleged in this trial.” The court also informed the jury: “The information itself is not evidence of guilt and you should draw no inference of guilt because a defendant has been charged with these two offenses.”

Following the trial, the jury convicted the defendant of both counts of the amended information, including illegal sale of a pistol or revolver in violation of § 29-33 (c) and carrying a pistol or revolver without a permit in violation of § 29-35. The court sentenced him to four years in prison. This appeal followed. Additional facts will be set forth as necessary.

I — I

The defendant claims that the trial court violated his constitutional right to an impartial jury when it improperly severed the proceedings because he personally objected to severance. We disagree and conclude that the defendant’s argument is without merit because the defendant did not have a right to decide whether or not the trial would be severed.

“Our rules of practice allow a trial court to order, sua sponte or upon motion of the defendant, a separate trial of two offenses if it appears that the defendant is prejudiced by the joinder of the offenses. See Practice Book § 41-18 . . . .” (Internal quotation marks omitted.) State v. Thompson, 81 Conn. App. 264, 284, 839 A.2d 622, cert. denied, 268 Conn. 915, 847 A.2d 312 (2004). “In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb.” (Internal quotation marks omitted.) State v. Bell, 93 Conn. App. 650, 654, 891 A.2d 9, cert. denied, 277 Conn. 933, 896 A.2d 101 (2006).

The issue of severance is one of trial tactics, not one of constitutional magnitude and not one over which the defendant personally had the right to make the final determination. See, e.g., State v. Berube, 256 Conn. 742, 747-49, 775 A.2d. 966 (2001). “The fundamental rights that a defendant personally must decide to waive are . . . distinguishable from tactical trial rights that are not personal to the defendant and that counsel may choose to waive as part of trial strategy.” State v. Gore, 288 Conn. 770, 778-79, 955 A.2d 1 (2008). “It is . . . recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal .... However, [o]nce counsel is appointed, the day-to-day conduct of the defense rests with the attorney. He, not the client, has the immediate — and ultimate — responsibility of deciding if and when to object, which witnesses, if any to call, and what defenses to develop. Not only do these decisions rest with the attorney, but such decisions must, as a practical matter, be made without consulting the client.” (Citations omitted; internal quotation marks omitted.) State v. Stewart, 64 Conn. App. 340, 352, 780 A.2d 209, cert. denied, 258 Conn. 909, 782 A.2d 1250 (2001), quoting in part State v. Davis, 199 Conn. 88, 95, 506 A.2d 86 (1986). “It is well established that [w]e may assume with confidence that most counsel, whether retained or appointed, will protect the rights of an accused.” (Internal quotation marks omitted.) State v. Stewart, supra, 353.

Counsel in this case made the tactical decision that severance of the drug and gun charges was in the best interest of the defense. “[Hjaving made the knowing, intelligent and voluntary choice to avail himself of the services of counsel, a defendant necessarily surrenders to that counsel the authority to make a wide range of strategic and tactical decisions regarding his case. . . . Absent a demonstration of ineffectiveness, counsel’s word on such matters is the last.” (Citation omitted; internal quotation marks omitted.) State v. Rivera, 129 Conn. App. 619, 630, 22 A.3d 636, cert. denied, 302 Conn. 922, 28 A.3d 342 (2011). The defendant’s personal disagreement with the tactical decisions of counsel is therefore not relevant to our analysis; State v. Stewart, supra, 64 Conn. App. 353-54; because there is no right to hybrid representation in this state. State v. Gethers, 197 Conn. 369, 382-94, 497 A.2d 408 (1985). Thus, the defendant’s argument fails.

n

The defendant next claims that the state failed to proffer sufficient evidence to establish the element of identity. We disagree.

In reviewing sufficiency of the evidence claims, we apply a two part test. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt .... While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Jennings, 125 Conn. App. 801, 805-806, 9 A.3d 446 (2011). “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. Rodriguez, 93 Conn. App. 739, 749, 890 A.2d 591 (2006), appeal dismissed, 281 Conn. 817, 917 A.2d 959 (2007).

The jury heard four law enforcement officials make in-court identifications of the defendant and testify that the defendant, along with Similien and Dorce, was involved in the gun sale with Huggins. Huggins testified that he identified the defendant outside the car wash after the gun sale as the same person who put the brown bag on the passenger seat of his truck. Huggins also testified that he saw the defendant’s green neck tattoo, and the jury was provided with photographs of the defendant including a tattoo matching the description provided by Huggins. Dobas testified that he followed the Infiniti from the scene of the gun sale to ensure that the passengers were the same men involved in the gun sale, only allowing the vehicle out of his sight for about five minutes before it was stopped by Amato at the car wash. George testified that he saw the defendant get out of the car and walk toward the passenger side of Huggins’ truck. Mofenson testified that he saw the defendant at the car wash.

Additionally, Amato’s testimony was particularly strong. Amato testified that when he pulled the Infiniti over at the car wash, he not only recognized the defendant based on prior encounters, but that he had seen the defendant in combination with the other passengers of the Infiniti on several other occasions. In fact, Amato testified that he saw the defendant and Dorce in the exact same Infiniti with the same license plate number, 558UZP, one month after the incident. Furthermore, at the time he stopped the Infiniti at the car wash, Amato viewed the defendant’s state identification card only minutes after the defendant had engaged in the gun sale transaction with Huggins and directly after Dobas tailed the Infiniti from the scene of the crime until he called for Amato to stop the car.

The state’s evidence establishing the defendant’s identity was overwhelming. The jury reasonably could have concluded that the passengers of the Infiniti at the time Amato stopped the vehicle at the car wash were the same passengers who had only minutes before been involved in the gun sale with Huggins. Moreover, Huggins himself drove by the car wash to ensure that the passengers were the same and he conveyed that information to the surveillance team. Accordingly, there was sufficient evidence for the jury reasonably to conclude that the defendant was involved in illegally selling the gun to Huggins.

The judgment is affirmed.

In this opinion LAVINE, J., concurred.

FLYNN, J.,

concurring. The right to a speedy trial is a civil liberty that is among the core fundamental rights protecting us as a free people. U.S. Const., amend. VI; Conn. Const., art. I, § 8; Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). Although gained through a revolution, this right needs to be honored and protected if it is to survive as something of substance rather than a hobbled, hollow promise.

Although the defendant, Kinaldo Fleury, was represented by counsel while incarcerated and awaiting trial, the defendant filed his own motion for speedy trial with the trial court on November 4, 2009, “[p]ursuant to [General Statutes] § 54-82m . . . article first, [§] 8, of the Connecticut constitution and, the sixth and fourteenth amendments] to the United States constitution.” Jury selection then began both on his pending gun and narcotics charges. The court told the defendant that the reason he was receiving a speedy trial was because he “filed a motion with the court.”

For the convenience of trial, the court permitted the joinder of the separate gun and narcotics offenses in one information. After the completion of jury selection, as trial was about to commence, however, the court, on its own motion, severed the charges, announcing that the current trial would be on only the gun charges. The defendant’s counsel agreed to the severance, but the defendant did not agree, claiming on the record that the delay caused by a later, separate trial on the narcotics charges would result in his incarceration for a longer period of time while he awaited trial on the severed narcotics charges. Although the defendant did not use magic words citing the particular constitutional sections guaranteeing a speedy trial when he addressed the court and objected to severance of the charges, I have no trouble understanding his objection to the severance as his assertion of a right to a speedy trial, which he already had requested and which the court had recognized previously.

As of the date of argument of this appeal, trial still had not commenced on the severed narcotics charges. The majority holds that the defendant, while represented by a lawyer, could not object to the narcotics charges being severed. They reason that, once represented, this right to object was his counsel’s, not his, and that his counsel could and did waive this right for tactical reasons, and, therefore, the defendant’s objection to the court’s severance of some charges could not serve to preserve the issue of the effect of that severance for appeal. I disagree.

The case of State v. Berube, 256 Conn. 742, 747-49, 775 A.2d 966 (2001), cited by the majority as authority for its position, is factually inapposite. In that case, there was a joint trial of two separate informations, no severance and no objection by counsel or the defendant to the joinder. Id., 744, 746-48. On the contrary, in this case, the defendant did object to severance, and the jury already had been selected to hear the joined charges. The court made no finding that a waiver of the right to a speedy trial had occurred.

I know of no decision by our Supreme Court or the United States Supreme Court holding that, when a jury has been picked and trial is about to begin because of a speedy trial motion on cases already joined for trial, a represented defendant has no right to object on the record to severance of one of two informations containing some of the charges, himself, despite his counsel’s agreement to sever them. Nor am I pointed to any such authority holding that, under these circumstances, any claims arising out of the severance have been waived on a defendant’s behalf by his counsel’s actions, when the court fully was aware of the defendant’s objection.

The circumstances of this case do not warrant deciding so for the first time. I therefore would review, not just one, but both of the defendant’s claims on appeal.

Under the procedural history of this case, the severance of the pending charges, over the defendant’s objection, or “bifurcation” as the parties inartfully call it in their briefs, leads to one functional result. Trial was delayed on the narcotics charges that the jury heard about in voir dire for the gun case actually tried. I would regard the propriety of the severance and its effect on the gun counts actually tried as preserved. On appeal, the defendant is constrained because the case he did not want severed is not before us on appeal. We deal only with the case that was appealed. The defendant’s claims on appeal are that there was insufficient evidence to show his identity as the perpetrator of the crimes and that the trial court abused its discretion and correspondingly violated his right to a fair trial when it untimely and improperly “bifurcated” the narcotics and gun charges after the jury already had been selected and told about the existence of the narcotics charges during the jury selection process.

As to the insufficiency claim, it really amounts to a claim that the evidence presented on identity was not credible. I would reject that argument. It was the jury’s function to determine what evidence to credit and, if believed, the evidence presented sufficed to support the verdict. State v. Feliciano, 74 Conn. App. 391, 397, 812 A.2d 141 (2002), cert. denied, 262 Conn. 952, 817 A.2d 110 (2003). I agree with the majority’s comprehensive analysis on this issue.

Finally, as to the charges on which the defendant actually was tried, his claim is that, to his prejudice, during voir dire jury selection, the jury was apprised of narcotics charges that were subsequently severed and were not heard during this trial. I would reject this claim also. Whatever the wisdom of the severance of the narcotics charges, the defendant in the gun case was in no worse position than anyone charged with multiple counts when, after the state and the defendant have rested, a court “charges out” of the jury’s consideration any counts on which there is no evidence as to some, one, or more essential elements of a crime. In such situations, we do not reverse the convictions that were obtained because the jury heard about criminal charges in voir dire that ultimately were charged out of the jury’s consideration. Nor should we here.

As the state notes, it is also difficult to see how there was any overall prejudice to the defendant in the trial on the gun charges as a result of the severance of the narcotics charges, because the severance obviated the need to present actual evidence in the gun trial that the defendant was involved in numerous narcotics transactions.

Thus, after review of both claims on appeal, I would affirm the judgment of conviction. Accordingly, I concur.

       The charges under the act were related to the defendant’s alleged violation of the state’s dependency producing drug laws pursuant to General Statutes §§ 2la-278 (b) and 21a-277 (a).

       We also conclude that the defendant did not suffer prejudice from the decision of the trial court to sever the charges. The defendant argues that he was prejudiced because the jury heard the court read the original four count information during voir dire. This argument fails because if the charges had not been severed, far more prejudicial information such as the state’s evidence that the defendant was involved in more than sixty drug transactions as part of a conspiracy would have been admitted into evidence. Defense counsel’s agreement with the severance was based on his position that severance would prevent prejudice and this strategy was successful because counsel then prevailed on his motion in limine to preclude any mention of drugs in the trial on the gun charges. The court instructed the jury to concentrate only on the two counts of the gun charges when the trial began. “In the absence of a showing that the jury failed or declined to follow the court’s instructions, we presume that it heeded them.” State v. Reynolds, 264 Conn. 1, 131, 836 A.2d 224 (2003), cert. denied, 641 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 264 (2004).

       Illegal sale, delivery, or otherwise transfer of a pistol or revolver, General Statutes § 29-33, and carrying a pistol or revolver without a permit, General Statutes § 29-35 (a).

       Conspiracy to sell and conspiracy to possess hallucinogenic substances/ narcotics, General Statutes §§ 53a-48, 21a-277 (a) and 21a-279 (a); violation of the Corrupt Organizations and Racketeering Activity Act, General Statutes § 53-395, by commission of predicate acts in violation of General Statutes §§ 21a-278 (b) and 21a-277 (a).

       The term “bifurcation” normally is used where one case is split into multiple parts. For example, ajury deliberates on liability and, after determining that liability exists, subsequently determines damages. Here, two separate cases were joined for trial, gun charges and narcotics charges, and severance is the appropriate term.


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    FRANK VANDEVER v. COMMISSIONER OF CORRECTION
    (AC 30646)
    DiPentima, C. X, and Beach and Borden, Js.

      Argued March 13 —
    officially released May 22, 2012

      Frank Vandever, pro se, the appellant (petitioner).

      Madeline A. Melchionne, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and TerrenceM. O’Neill, assistant attorney general, for the appellee (respondent).
   Opinion

BEACH, J.

The self-represented petitioner, Frank Vandever, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal. He also claims that the court improperly rejected his claims that his due process rights were violated by being placed on administrative segregation, or restrictive housing status, and by not having his statutory good time credits restored for the time he was placed on administrative segregation. We dismiss the appeal.

The following facts, as found by the habeas court, and procedural history are relevant to this appeal. While in prison for numerous offenses, including murder and escape from a correctional institution, the petitioner, in October, 1997, was found to be in possession of a publication from the National Institute of Justice entitled, “Stopping Escapes: Perimeter Security,” which pertained to perimeter security of prisons. The department of correction charged the petitioner with the disciplinary violation of conspiracy to commit escape. Following a disciplinary hearing on November 3, 1997, the petitioner was found “guilty” of possession of contraband. The department imposed sanctions, including the forfeiture of ninety days of previously credited good time.

A second action followed as a sequela to the discovery of the petitioner’s possession of the materials. On November 24, 1997, the inmate classification administrator authorized the placement of the petitioner on administrative segregation. The reason indicated by the inmate classification administrator was “[possession of escape related contraband and prior escape and attempts.” (Internal quotation marks omitted.) As a result of the petitioner’s placement on administrative segregation on November 24,1997, he became ineligible under departmental regulations to earn statutory good time credits and seven day work week good time credits.

On December 15, 2003, the department of correction credited the petitioner with 400 days of statutory good time credits and paid him a sum of $2000. This resulted from a settlement between the petitioner and the department resolving a federal civil rights case that the petitioner had brought. The 400 day credit represented proportional credits for the time served between July 6, 1994, and April 14, 1997. This time period preceded the October 21,1997 incident and analytically has nothing to do with the present case.

In a prior habeas action, the petitioner challenged on due process grounds the disciplinary report that had been issued for his possession of the National Institute of Justice publication. The warden agreed to withdraw the disciplinary report and restore the ninety days of good time that had been forfeited, and the habeas court, Fuger, J., then dismissed the petition on grounds of mootness. Again, the settlement in effect reversed the forfeiture of previously credited good time and did not involve the prospective assignment to the administrative segregation at issue in this case.

The petitioner was on restrictive housing status, or administrative segregation, from approximately December 1, 1997, until approximately July 1, 1999. After the petitioner’s release from restricted housing status and/or administrative segregation, he consistently earned statutory good time credits and seven day work week good time credits.

In November, 2003, the petitioner filed the petition for a writ of habeas corpus that is the subject of this appeal. He alleged that he had been wrongfully deprived of statutory good time credits and seven day work week good time credits. He claimed that his placement on administrative segregation on November 24, 1997, was based solely on the issuance of a disciplinary report in connection with the October, 1997 incident. He contended that, because the disciplinary report had been expunged, there was no longer any basis for the placement in administrative segregation, and that he is owed statutory good time credits that he was rendered ineligible to earn as a result of being placed in administrative segregation.

Following a trial, the court denied the petition. The court determined that an inmate does not have a constitutional right to any particular classification. The court also concluded that the petitioner did not have a right to statutory good time credits or seven day work week good time credits, but rather the awarding of such credits is solely within the department’s discretion. The court further reasoned that the reasons of the respondent, the commissioner of correction, for withdrawing the disciplinary report, restoring the forfeited ninety days and entering into a stipulated judgment providing the petitioner with 400 days of unearned good time do not necessarily require restoration of the credits in issue. The petitioner filed a petition for certification to appeal, which was denied. This appeal followed.

“Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. ... To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Gregory v. Commissioner of Correction, 111 Conn. App. 430, 432-33, 959 A.2d 633 (2008), cert. denied, 290 Conn. 906, 962 A.2d 794 (2009).

The petitioner argues that the court abused its discretion in denying his petition for certification to appeal because the issues presented are debatable among jurists of reason, capable of being resolved in a different manner and that the questions are adequate to deserve encouragement to proceed further. The petitioner argues that his due process rights were violated when he was placed, in November, 1997, on administrative segregation based solely, he claims, on a disciplinary report that was later expunged. He further argues that he has a liberty interest in statutory good time credits and is owed credit for the time he was placed on administrative segregation.

The petitioner does not have a constitutional right to a particular classification. “Inmates do not have a constitutionally protected right to a particular classification. . . . Discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of a sentence imposed by a court of law. ... In order to state a claim of a violation of due process, an inmate must show a protected liberty interest and a deprivation of that interest without being afforded due process of law. A prisoner’s liberty interest to be free from disciplinary segregation is not inherent in the due process clause of the federal constitution. Harris v. Meulemans, 389 F. Sup. 2d 438, 441 (D. Conn. 2005). Under Connecticut law, the Commissioner of Correction retains discretionary authority to classify prisoners at any security level. . . . [S]ee General Statutes § 18-81 (discussing respondent’s duties). ... A prisoner has no constitutionally protected interest in or to a particular classification.” (Citations omitted; internal quotation marks omitted.) Martinez v. Commissioner of Correction, 105 Conn. App. 65, 76-77, 936 A.2d 665 (2007), cert. denied, 285 Conn. 917, 943 A.2d 475 (2008).

The petitioner has not shown any deprivation of a constitutional right by his having been placed on administrative segregation. It was a decision within the respondent’s discretion to classify the petitioner at the administrative segregation security level.

The petitioner also has no constitutional right to unearned statutory good time credits. “The [commissioner of correction], pursuant to General Statutes § 18-7a, has discretion to award or not award the credit allowed in that statute, but there is no statutory right to good time credit.” Id., 77. “[P]ursuant to the plain language of § 18-7a (c), the commissioner may award good time credits at his discretion. Section 18-81 expressly permits the commissioner to promulgate the prison’s administrative rules. . . . [I]t is within the authority of the commissioner to promulgate rules that make an inmate ineligible to earn statutory good time. To conclude otherwise would render the discretionary nature of § 18-7a (c) superfluous.” (Citations omitted; internal quotation marks omitted.) Beasley v. Commissioner of Correction, 50 Conn. App. 421, 434-35, 718 A.2d 487 (1998), aff'd, 249 Conn. 499, 733 A.2d 833 (1999). “Any of a host of administrative or disciplinary decisions made by prison authorities might somehow affect the timing of a prisoner’s release, but such effects have never been held to confer a constitutionally protected liberty interest .... [T]he decision to deny inmates classified as safety threats the opportunity to earn the good time credits specified in § 18-7a (c) does not rise to the level of a constitutionally protected liberty interest.” (Citation omitted; internal quotation marks omitted.) Abed v. Commissioner of Correction, 43 Conn. App. 176, 181-82, 682 A.2d 558, cert. denied, 239 Conn. 937, 684 A.2d 707 (1996).

Accordingly, the respondent had the discretion to award good time credits; see General Statutes § 18-7a (c); and had the authority to promulgate rules that make an inmate ineligible to earn statutory good time. See General Statutes § 18-81. The respondent had the authority in this case to determine that, because of his overall behavior, the petitioner was ineligible to earn statutory good time credits, including seven day work week good time credits, during the time in which he was placed on administrative segregation. The petitioner had no protected liberty interest in “good time” not yet credited.

Having reviewed the record, and for the reasons set forth previously, we conclude that the petitioner has failed to establish that the issues he has raised are debatable among jurists of reason, that a court could have resolved them in a different manner or that the questions he has raised are adequate to deserve encouragement to proceed further. See Simms v. Warden, supra, 230 Conn. 616. Accordingly, the habeas court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       The petitioner additionally argues that the habeas court’s “denial of every single motion and objection of the petitioner and granting of every motion and request of [the] respondent [the commissioner of correction] may not have been fair ac[judication.” Most of the rulings mentioned in the brief were not raised in his petition for certification to appeal. Of the rulings raised in the petition, the petitioner has not demonstrated that the court abused its discretion in so ruling, nor has he demonstrated that the rulings were debatable among jurists of reason, that a court could have resolved them in a different manner or that the questions he has raised are adequate to deserve encouragement to proceed further. See Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

       At the time of his placement in administrative segregation; the petitioner was afforded a departmental hearing.

       General Statutes § 18-7a (c) provides: “Any person sentenced to a term of imprisonment for an offense committed on or after July 1, 1983, may, while held in default of bond or while serving such sentence, by good conduct and obedience to the rules which have been established for the service of his sentence, earn a reduction of his sentence as such sentence is served in the amount of ten days for each month served and pro rata for a part of a month served of a sentence up to five years, and twelve days for each month served and pro rata for a part of a month served for the sixth and each subsequent year of a sentence which is more than five years. Misconduct or refusal to obey the rules which have been established for the service of his sentence shall subject the prisoner to the loss of all or any portion of such reduction by the commissioner or his designee. In the event a prisoner has not yet earned sufficient good time to satisfy the good time loss, such lost good time shall be deducted from any good time earned in the future by such prisoner.”

       General Statutes § 18-98a provides: “Each person committed to the custody of the Commissioner of Correction who is employed within the institution to which he was sentenced, or outside as provided by section 18-100, for a period of seven consecutive days, except for temporary interruption of such period as excused by the commissioner for valid reasons, may have one day deducted from his sentence for such period, in addition to any other earned time, at the discretion of the Commissioner of Correction.”

       The petitioner’s time sheets dated December 1,1997, bear the notation, “[administrative segregation] as of 11/24/1997.”

       The petitioner’s time sheets dated July 1, 1997, bear the notation, “as of 6/12/1999.”

       This item was referred to interchangeably as “disciplinary ticket” and “disciplinary report.” For clarity, we refer to it as a disciplinary report.

       See footnote 3 of this opinion.


author: BEAR, J.

text:
    IN RE ALBA P.-V. ET AL.

    (AC 33784)
    Lavine, Robinson and Bear, Js.
    Argued March 7 —
    officially released May 7, 2012

      Christina D. Ghio, for the appellant (respondent mother).

      Michael J. LaMonica, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

      Brendon P. Levesque, with whom, on the brief, were Dana M. Hrelic and Michael S. Taylor, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       May 7, 2012, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

BEAR, J.

The respondent mother appeals from the judgments of the trial court adjudicating two of her children neglected and ordering a six month period of protective supervision. On appeal, the respondent claims that: (1) the court erred when it concluded that there was a substantiation of sexual abuse of her daughter, (2) the court improperly found the children neglected based only on a prior substantiation of abuse and on her daughter’s recent pregnancy, (3) the court’s construction of General Statutes § 46b-120 (8) infringed on her constitutional right to family integrity and (4) as applied, § 46b-120 (8) is unconstitutionally vague. We do not address the respondent’s claims because we dismiss the appeal as moot.

The following facts and procedural history are relevant to our disposition of this appeal. The respondent’s minor children, Alba and Guadalupe, were adjudicated neglected in 2008 upon the respondent’s nolo conten-dere plea. Pursuant to the 2008 adjudications, a period of protective supervision was ordered. The respondent did not appeal from the adjudications of neglect or the dispositional orders. In September, 2009, the period of protective supervision expired.

On September 1, 2010, the department of children and families (department) opened an investigation after a school administrator reported that Alba, who at the time of the report was thirteen years old, was pregnant. On November 8, 2010, the petitioner, the commissioner of children and families, filed a petition for an adjudication of neglect with respect to both children, alleging that they had been denied proper care and attention, were living under conditions injurious to their well-being, had been abused and suffered from conditions resulting from that abuse. In support of her petition, the commissioner alleged, inter alia, that there was a substantiated case of sexual abuse of Alba and Guadalupe in 2008 by their father and that he did not provide for them financially. With regard to the respondent, the commissioner alleged that there was a substantiated case of physical neglect of the children stemming from the 2008 incident of sexual abuse by their father, one unsubstantiated case of physical neglect of Alba from 2010, and a 2010 substantiated case of physical neglect of both children due to Alba’s pregnancy.

On June 8, 2011, the court adjudicated Alba and Guadalupe as neglected based on its finding, pursuant to § 46b-120 (8), that they were denied proper care and attention. The court also entered an order of protective supervision for a period of six months. This appeal followed.

On December 28,2011, while this appeal was pending, the period of protective supervision expired. Thereafter, the petitioner filed a motion to dismiss the appeal on the ground that the appeal was moot. On January 11, 2012, this court denied the motion “without prejudice to the [petitioner] briefing the mootness claim in [a] brief in addition to the merits of the appeal.”

Mootness is an exception to the general rule that jurisdiction, once acquired, is not lost by the occurrence of subsequent events. See In re Shonna K., 77 Conn. App. 246, 258, 822 A.2d 1009 (2003). Because mootness goes to the power of this court to entertain an appeal, we address the issue as a threshold matter. See Kennedy v. Kennedy, 109 Conn. App. 591, 598-99, 952 A.2d 115 (2008).

The respondent concedes that the period of protective supervision of the children by the department has expired, and, as a result, no practical relief could flow from reversal of the court’s dispositional imposition of protective supervision. Nonetheless, she argues that review is proper under either of two exceptions to the mootness doctrine: collateral consequences and the capable of repetition yet evading review doctrine. The petitioner argues that the expiration of the period of protective supervision renders this appeal moot and that the exceptions do not apply. We agree with the petitioner.

We first address the respondent’s claim that her appeal is saved by the collateral consequences exception. “[D] espite developments during the pendency of an appeal that would otherwise render a claim moot, the court may retain jurisdiction when a litigant shows that there is a reasonable possibility that prejudicial collateral consequences will occur.” (Internal quotation marks omitted.) Williams v. Ragaglia, 261 Conn. 219, 226, 802 A.2d 778 (2002).

The respondent argues that her family’s history with the department makes it reasonably foreseeable that it will come under the department’s scrutiny in the future. She argues that if any future involvement does occur, the department or the court “will undoubtedly consider any prior substantiations and adjudications.”

Our Supreme Court has considered the relevance of past interaction .with the department when determining the reasonable possibility of future interaction with the department resulting in collateral consequences to a litigant. Williams v. Ragaglia, supra, 261 Conn. 228-29 (foster caregiver’s likelihood of future involvement with department based on previously accepting care of foster children). Even if we assume that the respondent’s history with the department creates a reasonable possibility that she or her family will have future interactions with the department, the respondent has not demonstrated that there is a reasonable possibility that the adjudications of neglect that are the subject of this appeal will result in prejudicial collateral consequences to her.

The respondent argues that the present adjudications may form the basis of a subsequent coterminous petition to terminate her parental rights. While acknowledging that the 2008 neglect adjudications could form the basis of a termination petition, the respondent argues that this “does not lessen the potential that [the department] and the [c]ourt would rely on this more recent adjudication.” The respondent contends that the present neglect adjudications, if left unchallenged, would burden her with multiple adjudications and “likely have significant impact in subsequent proceedings beyond the impact of the 2008 order of temporary custody and adjudication alone.” We are not persuaded.

General Statutes § 17a-112 (j) (3) (B) (i) provides that a court may terminate the parental rights to a child that “has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding . . . .” Thus, the statute requires only a single prior adjudication of neglect as to the child who is the subject of a termination of parental rights petition.

The respondent concedes that the 2008 adjudications can serve as the basis for a termination proceeding alleging her failure to achieve sufficient personal rehabilitation under § 17a-112 (j) (3) (B) (i). Accordingly, review of the present adjudications would provide the respondent with no practical relief from this claimed collateral consequence; Alba and Guadalupe still would be exposed to a subsequent termination of parental rights proceeding predicated on the 2008 adjudications. Whether the court would rely on the more recent adjudications or whether the present adjudications would have significant impact on a subsequent proceeding requires us to speculate as to what weight, if any, a court would assign to the present adjudications. Here, unlike Williams, the respondent did not have a “clean” record with the department prior to the adjudications of neglect that are the subject of this appeal. See Williams v. Ragaglia, supra, 261 Conn. 225. Thus, even if we were to review and to reverse the present adjudications, neither the status of the respondent nor her children with the department would change. The children will have been adjudicated neglected by virtue of the 2008 adjudications, and the respondent will remain the parent of children previously found to have been neglected. Thus, because of the 2008 neglect adjudications, which were not appealed, our review and reversal of the present neglect adjudications could not provide the practical relief of removing the respondent’s children from the ambit of § 17a-112 (j) (3) (B) (i).

Moreover, we are aware of no authority preventing the department or a court from considering the evidence underlying the present neglect adjudications in a subsequent termination or predictive neglect proceeding, regardless of whether the adjudications themselves stand. Contrarily, in termination and predictive neglect proceedings, courts are often presented with a broad evidentiary foundation encompassing many years, independent of previous judicial findings or department substantiations. See, e.g., In re Mia M., 127 Conn. App. 363, 373, 14 A.3d 1024 (2011) (court should consider all potentially relevant evidence, despite length of prior time to which it relates); In re Emerald C., 108 Conn. App. 839, 858-59, 949 A.2d 1266 (evidence concerning respondent’s children in Ghana, whom he had abandoned, relevant consideration in forming “a historical perspective of the respondent’s child caring and parenting abilities” for assessment of respondent’s failure to rehabilitate), cert. denied, 289 Conn. 923, 958 A.2d 150 (2008); In re Anna Lee M., 104 Conn. App. 121, 128, 931 A.2d 949 (court was required to obtain historical perspective of respondent’s child caring and parenting abilities), cert. denied, 284 Conn. 939, 937 A.2d 696 (2007); In re Brianna F., 50 Conn. App. 805, 814, 719 A.2d 478 (1998) (“Because the parent-child relationship is at issue, all relevant facts and family history should be considered by the trial court when deciding whether to terminate the respondent’s parental rights. . . . The parent-child relationship presents an ongoing dynamic that cannot be frozen in time. The entire picture of that relationship must be considered whenever the termination of parental rights is under consideration by a judicial authority.”). Accordingly, the respondent has not established by more than mere conjecture that the present adjudications will have a material effect on a subsequent proceeding, above and beyond the consequences that could flow from the 2008 adjudications. See In re Claudia F., 93 Conn. App. 343, 349, 888 A.2d 1138, cert. denied, 277 Conn. 924, 895 A.2d 796 (2006).

The respondent also argues that she will be unable to challenge the department’s 2008 and 2010 neglect substantiations and her listing on the central registry through the administrative hearing process if we dismiss her appeal as moot. She asserts that if she is not allowed to challenge in this court the department’s neglect substantiations underlying the court’s neglect adjudications, the substantiations will remain in the department’s records, rather than be expunged after five years. She contends that the department will rely on the substantiations in future investigations, the substantiations may damage her reputation because “substantiations and unsubstantiated allegations not yet expunged” maybe disclosed and, “if the substantiations are not reversed, the likelihood of a reversal of the decision to place [the respondent] on the [central registry] is diminished.” We are not persuaded.

Initially, we note that the parties have provided no indication that the respondent’s ability to challenge her placement on the central registry through the administrative process described in General Statutes § 17a-101k and, thereafter, the court appeals process, would be foreclosed by dismissal of the present appeal. See, e.g., Frank v. Dept. of Children & Families, 134 Conn. App. 288, 37 A.3d 834 (2012); Albright-Lazzari v. Commissioner of Children & Families, 120 Conn. App. 376, 991 A.2d 696, cert. denied, 297 Conn. 908, 995 A.2d 636, cert. dismissed sub nom. Albright-Lazzari v. Hamilton, 562 U.S. 998, 131 S. Ct. 516, 178 L. Ed. 2d 365 (2010). Furthermore, we are not required to analyze the respondent’s conclusory assertion that the likelihood of a reversal of her placement on the registry will be diminished if the substantiations are not reversed. See Carmichael v. Stonkus, 133 Conn. App. 302, 307, 34 A.3d 1026, cert. denied, 304 Conn. 911, 39 A.3d 1121 (2012).

Likewise, we are not persuaded by the respondent’s argument that dismissal of the present matter will foreclose her ability to challenge the substantiations administratively. The respondent contends that, under the department’s policy, a failure to overturn the court’s adjudications of neglect will result in the denial of her administrative hearings as a matter of course. The respondent points to § 17a-101k-4 (d) of the Regulations of Connecticut State Agencies and the department’s policy manual in support of her argument. Section 17a-101k-4 (d) provides that a “request for an internal review shall be denied by the department when a civil court proceeding has been finally disposed with a factual determination by the court that the identified person committed the act of child abuse or neglect that is the subject of the substantiation.” We reject the respondent’s argument, again noting that the court’s adjudications of neglect challenged on appeal are not findings about the respondent, but are directed at the status of her children. See footnote 4 of this opinion.

We next turn to the respondent’s claim that the present appeal falls within the capable of repetition yet evading review exception to the mootness doctrine. The respondent challenges the court’s adjudications of neglect and argues that there is a reasonable likelihood that the question presented in this case will arise again in the future, both for the respondent and for similarly situated parents. She further contends that the “substantial majority of such cases would become moot before appellate litigation could be completed because, where there is no actual inadequacy in parenting, the dispositions are inherently time limited because, as in this case, only minimal periods of protective supervision would be imposed.” She contends that the present case raises a matter of public importance. We are not persuaded.

“ [A]n otherwise moot question may qualify for review under the capable of repetition, yet evading review exception. To do so, however, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” (Internal quotation marks omitted.) In re Forrest B., 109 Conn. App. 772, 775-76, 953 A.2d 887 (2008).

The respondent states that “[i]n this case, the challenged action is the Court’s adjudication of neglect based solely on the prior substantiation and the child’s recent pregnancy. ” Aside from her conclusory assertion that a majority of similar cases would become moot because a minimal period of protective supervision would be ordered in those cases, the respondent has failed to offer any authority that suggests that a substantial majority of such cases will be disposed of with only minimal periods of supervision imposed, instead of an order of commitment of the child to the commissioner pursuant to General Statutes § 46b-129 (j), or that such cases “are, by their very nature, of such a limited duration that there is a strong likelihood that they will become moot before appellate litigation can be concluded. See Drabik v. East Lyme, 97 Conn. App. 142, 146, 902 A.2d 727 (2006).” In re Forrest B., supra, 109 Conn. App. 776. Accordingly, we reject her claim that the present matter is capable of repetition yet evading review under the first criterion of that exception.

The appeal is dismissed.

In this opinion the other judges concurred.

       Pursuant to General Statutes § 17a-93 (i), protective supervision “means a status created by court order following adjudication of neglect whereby a child’s place of abode is not changed but assistance directed at correcting the neglect is provided at the request of the court through the Department of Children and Families or such other social agency as the court may specify . . . .”

       On December 15, 2010, a default was entered against the children’s father. He is not a party to the present matter. Furthermore, the record indicates that the father has not had contact with the family since 2008. Accordingly, we refer in this opinion to the respondent mother as the respondent.

       Although we agree that Williams provides somewhat of an analogy for the respondent’s position that it is reasonably possible that she or her family will again come under the scrutiny of the department, we note an important distinction between that case and the present case. Unlike Williams, which involved the department’s revocation of a foster care license that it had issued to the plaintiff foster caregiver; see Williams v. Ragaglia, supra, 261 Conn. 219; the adjudications that are the subject of the present appeal do not directly implicate the respondent but, rather, are directed at the status of her children. See In re Claudia F., 93 Conn. App. 343, 347-48, 888 A.2d 1138 (revocation of foster care license “directly implicates holder of the license, whereas ... a finding of neglect is not directed against the parents”), cert. denied, 277 Conn. 924, 895 A.2d 796 (2006).

       Recently in In re Zamora S., 123 Conn. App. 103, 108-109, 998 A.2d 1279 (2010), this court stated that “[a]n adjudication of neglect relates to the status of the child and is not necessarily premised on parental fault. A finding that the child is neglected is different from finding who is responsible for the child’s condition of neglect. Although [General Statutes] § 46b-129 requires both parents to be named in the petition, the adjudication of neglect is not a judgment that runs against a person or persons so named in the petition; [i]t is not directed against them as parents, but rather is a finding that the children are neglected . . . .” (Internal quotation marks omitted.)

       Practice Book § 35a-3 provides: “When coterminous petitions are filed, the judicial authority first determines by afair preponderance of the evidence whether the child or youth is neglected, uncared for or dependent; if so, then the judicial authority determines whether statutory grounds exist to terminate parental rights by clear and convincing evidence; if so, then the judicial authority determines whether termination of parental rights is in the best interests of the child or youth by clear and convincing evidence. If the judicial authority determines that termination grounds do not exist or termination of parental rights is not in the best interests of the child or youth, then the judicial authority may consider by a fair preponderance of the evidence any of the dispositional alternatives available under the neglect, uncared for or dependent petition.”

       General Statutes § 17a-112 (j) provides in relevant part: “The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-lllb, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to section 17a-lllb, or determines at trial on the petition, that such efforts are not required, (2) termination is in the best interest of the child, and (3) . . . (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding . . . and the parent . . . has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . There are other acljudicative grounds for termination of parental rights that do not require a prior ac(¡udication of neglect. See, e.g., General Statutes § 17a-112 (j) (3) (A) (abandonment) and (D) (no ongoing parent-child relationship).

       In fact, evidence of the unsubstantiated 2010 allegations of neglect were before the court in the present case.

       Section 17a-101k-l (14) of the Regulations of Connecticut State Agencies provides in relevant part: “ ‘Central registry’ or ‘registry’ means the confidential data file maintained as part of the department’s computerized database, of persons who have been substantiated as individuals responsible for an act or acts of child abuse or neglect and for whom the commissioner has made a determination, based upon a standard of reasonable cause, that the individual poses a risk to the health, safety or well-being of children

       The respondent states in her reply brief that in October, 2010, she requested hearings regarding both the 2008 and 2010 substantiations and registry findings. “While our rules do not ordinarily permit us to consider information that is not contained in the trial record, we may do so when a question of mootness is raised.” PoLLio v. Conservation Commission, 32 Conn. App. 109, 114, 628 A.2d 20 (1993). The petitioner has not objected to the respondent’s offering. Thus, we will consider the respondent’s argument regarding the potential collateral consequences related to the alleged possible denial of her claimed administrative remedies.

       We note that the department’s substantiations of the respondent’s neglect are separate and independent from the trial court’s 2011 neglect adjudications that she appealed.

       The respondent states in her reply brief that she received a letter from the department deferring internal review of her challenge to the substantiations and registry listings and noting that “if the adjudication remains in place, [the respondent] may challenge her placement on the registry but not the substantiations.” There is no indication that this letter was submitted to the trial court.

       Section 22-12-4 of the department’s policy manual provides in relevant part: “A request for a substantiation hearing shall be denied by the Department when a criminal, civil, probate court or administrative proceeding has resulted in a finding that the perpetrator has committed the act of child abuse or neglect that is the subject of the substantiation.” Dept, of Children and Families Policy Manual § 22-12-4, available at the department’s website, http://www.ct.gov/dcfi,cwp/view.asp?a=2639&Q=332388 (last visited April 23, 2012).

       The respondent’s reliance on § 17a-101k-4 (d) of the Regulations of Connecticut State Agencies in support of her argument related to the administrative hearing process is misplaced. That regulation concerns internal review of substantiations and registry findings. The applicable regulation governing administrative hearings is codified at § 17a-101k-7 (i) of the Regulations of Connecticut State Agencies, which provides: “A request for an administrative hearing shall be denied by the department when a civil court proceeding has been finally disposed with a factual determination by the court that the identified person committed the act of child abuse or neglect that is the subject of the substantiation. Notwithstanding the foregoing, the department shall proceed with an administrative hearing for the sole purpose of determining the legal sufficiency of the registry finding in any civil case that does not result in a factual determination that at least one of the circumstances listed in subsection (b) of section 17a-101k-3 of the Regulations of Connecticut State Agencies exists.”

       We further note that the respondent does not argue that there are subordinate factual findings in the record concerning her conduct. To the contrary, the respondent argues, with regard to the merits of the present appeal, that the court’s finding of neglect was improper because it reached only “two factual conclusions — that there were prior substantiations and that Alba was pregnant.”


text:
    IN RE: CLAIMS OF RACIAL DISPARITY
    (AC 34300)
    (AC 34311)
    (AC 34312)
    DiPentima, C. J., and Beach and Robinson, Js.

      Considered April 24 —
    officially released May 10, 2012

      Jennifer Bourn, assistant public defender, and Michael Courtney, acting chief, capital defense unit, for the appellant Steven Hayes (petitioner in AC 34300).

      Vicki H. Hutchinson, special public defender, for the appellant Jessie Campbell et al. (petitioners in AC 34311 and AC 34312).

      Harry Weller, senior assistant state’s attorney, for the appellee (respondent).

       May 10, 2012, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

BEACH, J.

The commissioner of correction (commissioner) filed with this court a motion to dismiss for lack of a final judgment the appeals brought by the petitioners, Steven Hayes, Lazale Ashby and Jessie Campbell, all of whom have been sentenced to death. The petitioners appealed from the orders of the habeas court denying their requests to stay proceedings in a consolidated habeas corpus action and for other relief. We dismiss the petitioners’ appeals for lack of a final judgment.

In State v. Reynolds, 264 Conn. 1, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004), our Supreme Court considered the claim of Richard Reynolds, who had been sentenced to death, that the death penalty in Connecticut has been imposed in “ ‘a racially discriminatory and arbitrary manner.’ ” Id., 228. The claim had been raised by a motion in the trial court after the verdict and before sentencing. Reynolds requested in the trial court that his sentencing be delayed for “ ‘several months,’ ” because gathering and analyzing factual data “ ‘most likely [would take] four to six months ....’” Id., 229 n.200. The trial court had denied the motion, and our Supreme Court, noting that a similar claim had been raised by Sedrick Cobb, also sentenced to death, agreed with Reynolds that he had the right to develop a factual basis for making such a claim in some forum. Id., 231-33. The court observed that data in connection with Cobb’s claim was being finalized, and concluded that Reynolds and Cobb should proceed in a consolidated habeas corpus claim. It further stated that “judicial economy, as well as fairness to both defendants and the state, mandates that this claim be litigated before the same habeas judge and in the same general, consolidated hearing, on behalf of all defendants who have been sentenced to death.” Id., 233. Significantly, the court also noted: “We do not intimate, however, whether any particular defendant or the state would be barred from litigating a claim of this nature in the consolidated habeas proceeding that we contemplate when that defendant desires to present a different variation of the claim or when the state has a different variation of its response to the defendant’s claim. Those will be discretionary matters of case management for both [the special master] and the habeas judge to resolve.” Id., 234 n.207.

This consolidated habeas matter, contemplated by Reynolds, was formally instituted in 2005. Plaintiffs have been added and subtracted over time. A scheduling order setting a trial date of June 5, 2012, was put in place on September 27, 2011. The petitioners did not agree to the trial date. Sedrick Cobb, Daniel Webb, Robert Breton, Richard Reynolds, Todd Rizzo and Eduardo Santiago, petitioners in the consolidated action, are subject to the scheduling order. The data that have been gathered and analyzed include information regarding capital-eligible homicides disposed of through June 30, 2006.

The petitioners later joined the consolidated action. Campbell was sentenced to death in 2007 and Ashby in 2008. Hayes committed the criminal activity for which he was convicted in 2007, and was sentenced in December, 2010.

On September 30, 2011, Hayes filed a motion for extension of time “to ensure he may fully and fairly litigate the arbitrariness and constitutionality of his death sentence” and specifically requested three forms of relief: (1) a stay of the proceedings until his direct appeal was to be decided; (2) a continuance of the consolidated habeas hearing for two years so that the data and analysis could be updated or (3) the creation of a second consolidated action to allow the inmates who were joined later to develop updated data for presentation of their claims. On October 12, 2011, the habeas court denied the motion as to the first and second requests for relief and granted the motion as to the third. Hayes appealed from the partial denial of his motion. The habeas court issued identical orders as to Campbell and Ashby, who also have appealed.

The commissioner has moved to dismiss the appeals on two grounds. The commissioner argues that this court does not have jurisdiction to entertain the appeals because the petitioners are not aggrieved by the habeas court’s orders and because the appeals are not from final judgments of the habeas court. We disagree with the commissioner’s contention that the petitioners are not aggrieved, but agree with the commissioner that the orders appealed from are not final judgments for the purpose of appeal and, accordingly, dismiss the appeals.

I

The commissioner argues that the petitioners sought, in the alternative, three forms of relief. Because one of the requests was granted, he argues, the petitioners in effect prevailed and are not aggrieved.

Aggrievement is essential to jurisdiction. “The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision. . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.” (Internal quotation marks omitted.) Seymour v. Seymour, 262 Conn. 107, 110, 809 A.2d 1114 (2002).

Ordinarily, a party who is granted relief he or she sought is not aggrieved. Where the relief sought is in the alternative, and there is nothing in the record to suggest that one form of relief is preferred, a party is not aggrieved if one of the forms of relief is granted. Id., 114-15; see also Harris v. Commissioner of Correction, 40 Conn. App. 250, 253-54, 671 A.2d 359 (1996). If, however, a party claims alternate forms of relief but expresses in the trial court a clear preference for one of the forms of relief, the party may be aggrieved when the less preferred alternative is granted. See generally Blue Cross/Blue Shield of Connecticut, Inc. v. Gurski, 47 Conn. App. 478, 481, 705 A.2d 566 (1998); see also State v. T.D., 286 Conn. 353, 359, 944 A.2d 288 (2008); In re Allison G., 276 Conn. 146, 157, 883 A.2d 1226 (2005).

The petitioners expressed a clear preference that they remain parties to the consolidated action. In their motion dated September 30, 2011, they stated that the “second and third requests are made only in the alternative and do not sufficiently protect [the petitioners’] rights and interests in this matter.” Because aggrievement requires only the possibility that a legally protected interest has been adversely affected; see Seymour v. Seymour, supra, 262 Conn. 110; we decline to dismiss the appeals on the ground of lack of aggrievement.

II

In the unusual and perhaps unique circumstances of this case, we agree, however, with the commissioner that the appeals should be dismissed because the habeas court’s orders are not final judgments for the purpose of appeal. An analysis of the record shows that the petitioners were parties to the consolidated action and, as mentioned previously, requested a stay, in effect, so that they could update the data on which the determination of racial disparity or systemic bias would be made. The habeas court denied the request for the stay and, in effect, severed the petitioners from the consolidated action. The court expressly stated that the petitioners “may pursue [their] assertions of disparity separately under a different docket number.”

As a rule, this court has jurisdiction to entertain appeals only from final judgments. General Statutes § 52-263; Practice Book § 61-1. “An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). The petitioners recognize that the orders appealed from are interlocutory and do not claim that the orders terminate a separate and distinct proceeding. They do claim, however, that, because their party status in the consolidated action would effectively be revoked by the orders of the habeas court, they have lost the right granted by State v. Reynolds, supra, 264 Conn. 1, General Statutes § 53a-46b, and the order of the special master to participate in the consolidated litigation. They further analogize the court’s action to the decertification of a class action, which has been held to be a final judgment for the purpose of appeal. Rivera v. Veterans Memorial Medical Center, 262 Conn. 730, 735-36, 818 A.2d 731 (2003). Finally, they caution that piecemeal litigation is not favored.

In the circumstances of this case, however, no right has been lost such that further proceedings cannot affect them. The relevant right is the right to a determination of the claim that the death penalty has been sought in an impermissible manner. Because the habeas court allowed for the full ability to present the claim separately, the right has not been lost. It is true that the ability to be part of the presently constituted action has certainly been compromised. The need for flexibility in case management was, however, recognized specifically by our Supreme Court in State v. Reynolds, supra, 264 Conn. 234 n.207. The court expressly noted that there may be differences within the consolidated action, and it was contemplated that the special master and the habeas court would exercise discretion in managing the cases. So long as the substantive right at issue is fully preserved, the second prong of Curdo is not satisfied.

The present situation is significantly different from that of class decertification in Rivera v. Veterans Memorial Medical Center, supra, 262 Conn. 730. There, class certification had been granted; a subsequent order decertified the class. Class actions exist in part to allow the litigation of claims otherwise too small to pursue; class decertification likely has the effect of ending litigation for many members of the class. Id., 733-36. There is no suggestion that the orders in the present case will terminate the litigation on the part of any of the petitioners.

The situation in the present case is more analogous to Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 645 A.2d 978 (1994), and to Palmer v. Friendly Ice Cream Corp., 285 Conn. 462, 940 A.2d 742 (2008). In Waterbury Teachers Assn. v. Freedom of Information Commission, supra, 443, our Supreme Court held that a ruling on a motion for a stay pending resolution of an administrative appeal was not a final judgment for the purpose of appeal. In Palmer v. Friendly Ice Cream Corp, supra, 463, our Supreme Court held that an order denying class certification was not a final judgment for the purpose of appeal. No statutory or constitutional right had been lost. Id., 466-67. The court analogized the situation to permissive intervention: if permissive intervention is not allowed, the unsuccessful movant can file an independent action. Id., 478-80. Because no protected right of the petitioners was irretrievably lost by the orders of the habeas court, but rather may be fully asserted, we grant the commissioner’s motion to dismiss the appeals for lack of a final judgment.

The commissioner’s motion to dismiss the appeals is granted.

In this opinion the other judges concurred.

       Although the motion to dismiss was submitted in the name of the state, we will refer to the commissioner as the party who brought the motion at issue in this opinion.

       An appearance for Hayes was filed on September 15, 2011. Appearances on behalf of Ashby and Campbell were filed on April 16, 2008.

       The record indicates that Ashby and Campbell joined in Hayes’ motion for extension. On October 13 and 14, 2011, the trial court entered orders regarding Ashby and Campbell. The court ordered the same relief for Ashby and Campbell as it did for Hayes.

       The petitioners initially requested to appeal from the orders to our Supreme Court pursuant to General Statutes § 52-265a, which permits an interlocutory appeal in a matter of substantial public interest. The Chief Justice denied their request.

       General Statutes § 53a-46b provides for the review of death sentences by our Supreme Court.