text:
    STATE OF CONNECTICUT v. MITCHELL HENDERSON
    (AC 31610)
    DiPentima, C. J., and Bear and Borden, Js.

      Argued January 11
    officially released August 2, 2011

      Katharine S. Goodbody, special public defender, for the appellant (defendant).

      Emily Graner Sexton, special deputy assistant state’s attorney, with whom, on the brief, were GailP. Hardy, state’s attorney, and Herbert Carlson, former supervisory assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, C. J.

The defendant, Mitchell Henderson, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. On appeal, the defendant claims that the court improperly dismissed his motion for lack of subject matter jurisdiction. We agree with the defendant’s jurisdictional argument. We conclude, however, that as a matter of law, the defendant’s motion to correct an illegal sentence must be denied.

In September, 1993, a jury found the defendant guilty of robbery in the first degree, assault in the third degree, threatening and attempt to escape from custody. Following the jury trial, the defendant pleaded guilty, pursuant to the Alford doctrine, to two part B informations that had charged him with being a persistent dangerous felony offender under General Statutes (Rev. to 1993)

§ 53a-40 (a) and (f) and a persistent serious felony offender under General Statutes (Rev. to 1993) § 53a-40 (b) and (g). The defendant did not admit expressly to the provisions of subsection (g) that the public interest would be best served by extended incarceration and lifetime supervision. At the sentencing hearing, the court noted the defendant’s history of criminal convictions and concluded: “So, really, at this point in your life, having received all of the chances that you’ve received, the court really has no alternative or much of an alternative but then to impose a lengthy sentence of incarceration.” On December 14, 1993, the court, Espinosa, J., sentenced the defendant, inter alia, to twenty-five years incarceration for the crime of robbery in the first degree as a persistent dangerous felony offender and to a consecutive sentence of twenty years incarceration, execution suspended after ten years, for the crime of attempt to escape custody as a persistent serious felony offender. Thus the defendant’s effective sentence was forty-five years of incarceration, execution suspended after thirty-five years, and five years probation.

On December 9, 2008, the defendant filed a motion to correct an illegal sentence pursuant to Practice Book § 43-22. He alleged that Judge Espinosa had enhanced his sentence on the basis of her finding that an extended incarceration and lifetime supervision would best serve the public interest. The defendant then argued that pursuant to our Supreme Court’s opinion in State v. Bell, 283 Conn. 748, 931 A.2d 198 (2007), which relied on the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), such a finding by the trial court, and not the jury, violated his constitutional rights to due process and a trial by a jury.

The state filed a brief in opposition to the defendant’s motion, and the court, Gold, J., held a hearing. Thereafter, the court issued a memorandum of decision dismissing the motion to correct an illegal sentence. Specifically, the court concluded that it lacked subject matter jurisdiction because the motion failed “to assert any claim which this court is empowered to consider within the context of a motion to correct.” The court reasoned that the sentencing court did not impose an illegal sentence or impose a sentence in an illegal manner; accordingly, it lacked jurisdiction because the defendant’s motion fell outside of the purview of Practice Book § 43-22. This appeal followed.

“It is axiomatic that, in a criminal case, the jurisdiction of the sentencing court terminates once a defendant’s sentence has begun and a court may no longer take any action affecting a sentence unless it expressly has been authorized to act. . . . Pursuant to Practice Book § 43-22: The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.

“An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is inherently contradictory. . . . Sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but . . . imposed in a way which violates [a] defendant’s right ... to be addressed personally at sentencing and to speak in mitigation of punishment ... or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises .... State v. McNellis, 15 Conn. App. 416, 444, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). A defendant properly may challenge his criminal sentence on the ground that it was imposed in an illegal manner by filing with the trial court a motion pursuant to Practice Book § 43-22. . . . [T]hese enumerated examples [however] would not encompass rights or procedures subsequently recognized as mandated by federal due process. . . . Nor would those examples encompass procedures mandated by state law that are intended to ensure fundamental fairness in sentencing, which, if not followed, could render a sentence invalid. Therefore, the examples cited in McNellis are not exhaustive and the parameters of an invalid sentence will evolve. . . . State v. Parker, 295 Conn. 825, 839-40, 992 A.2d 1103 (2010).” State v. Pierce, 129 Conn. App. 516, 522-23, 21 A.3d 877 (2011).

To place the defendant’s motion in the appropriate context, we briefly digress from our jurisdictional discussion in order to explain his legal theory as to why his sentence was illegal. A discussion of Apprendi and Bell will facilitate our explanation. In Apprendi, the United States Supreme Court presented the issue as “whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt.” Apprendi v. New Jersey, supra, 530 U.S. 469. The court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. . . . [I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” (Internal quotation marks omitted.) Id., 490.

In State v. Bell, supra, 283 Conn. 784-85, our Supreme Court was presented with the question of whether a trial court’s decision to enhance a “sentence as a persistent dangerous felony offender . . . under § 53a-40 (h) violated the precepts of Apprendi v. New Jersey, supra, 530 U.S. 466, and its progeny.” The court concluded that a determination by the trial court, rather than the jury, that an extended period of incarceration would best serve the public interest violated the defendant’s constitutional rights under Apprendi, and, therefore, a new sentencing proceeding was needed. State v. Bell, supra, 786. In Bell, after the trial court had made this finding, the defendant’s sentence was doubled from the maximum term of incarceration for a class B felony. Id., 788.

After discussing Apprendi and its progeny, our Supreme Court in Bell turned to this state’s persistent felony offender statute. Id., 795. It noted that § 53a-40 (h) imposes two preconditions for an enhanced sentence: First, the jury must find that the defendant is a persistent felony offender, and second, the court must find that the defendant’s history and character and the nature and circumstances of his criminal conduct indicate that the public interest will be best served by extended incarceration. Id., 796. The court in Bell interpreted § 53a-40 (h) as mandating the enhanced sentence after the jury makes the first predicate finding and the court makes the second predicate finding. Id., 800. Because the defendant was exposed to a greater punishment than authorized by the jury’s guilty verdict, this statutory scheme was unconstitutional under Apprendi. See id., 804. In order to remedy this violation and to save the statute, our Supreme Court excised the offending language from § 53a-40 (h). Id., 812.

We now return to the present case and set forth our standard of review. A determination of whether the trial court has jurisdiction to consider a motion to correct an illegal sentence filed pursuant to Practice Book § 43-22 presents a question of law, and, therefore, our review is plenary. State v. Lewis, 108 Conn. App. 486, 488, 948 A.2d 389 (2008); see also State v. Koslik, 116 Conn. App. 693, 697, 977 A.2d 275, cert. denied, 293 Conn. 930, 980 A.2d 916 (2009). It is clear that “[i]n order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding, and not the trial leading to the conviction, must be the subject of the attack.” State v. Lawrence, 281 Conn. 147, 158, 913 A.2d 428 (2007); State v. Koslik, supra, 699; see also State v. Lewis, supra, 488 (defendant must demonstrate that motion to correct falls within purview of Practice Book § 43-22 or court lacks jurisdiction to entertain it).

In his appellate brief, the defendant expressly disavows any challenge to the canvass following his Alford plea to the part B informations that charged him with being a persistent dangerous felony offender and a persistent serious felony offender. His argument is that he was entitled to have a jury determine whether it would best serve the public interest to enhance the sentences, and, therefore, the sentences were imposed in an illegal manner. He also claims that the sentences exceeded the statutory limit for the crimes for which he was found guilty by the jury. The state counters that the defendant’s use of a motion pursuant to Practice Book § 43-22 is improper because the defendant challenges the validity and sufficiency of his plea canvass. We agree with the defendant.

We are mindful of recent decisions where the appellate courts of this state have closely examined the precise nature of the claim raised by a defendant in his or her motion to correct an illegal sentence under Practice Book § 43-22. For example, in State v. Parker, supra, 295 Conn. 840, the defendant had alleged that he was deprived of the opportunity to review a presentence investigation report and to address certain inaccuracies and that his counsel failed to review the report with him or bring these inaccuracies to the court’s attention. The court stated that while due process prevents a court from relying on materially untrue or unreliable information in imposing a sentence, in order to prevail on such a claim, the defendant was required to show that the information contained in the report was materially inaccurate and the sentencing judge relied on that information. Id., 843-44. It further reasoned that there is no authority requiring counsel to review a presentence investigation report with a defendant. Id., 847-48. Additionally, there is no statute or rule of practice requiring the court to make an affirmative inquiry as to the accuracy of the report or to correct all inaccurate information of which it is aware. Id., 849. “The defendant’s claimed constitutional basis for jurisdiction—the right not to be sentenced on the basis of inaccurate information—is predicated entirely on this claim that the rules of practice and the statutes afford him a personal right to review, and an opportunity to seek corrections to, the presentence report, a claim that we have rejected.” Id., 849-50. The defendant’s remaining claim was directed toward the conduct of his attorney, and not the sentencing court, and, therefore, there was no jurisdiction for the trial court to consider the merits of the defendant’s motion. Id., 850-52.

In State v. Pierce, supra, 129 Conn. App. 518, the defendant filed a motion to correct an illegal sentence on the basis that the sentencing court improperly relied on a presentence investigation report that contained confidential treatment records from an earlier report. In affirming the trial court’s conclusion that it lacked jurisdiction over the motion to correct, this court reasoned that the defendant actually was challenging the actions of the probation department in the preparation of the latter report. Because the defendant’s claim did not address the actions of the sentencing court, the court lacked jurisdiction to consider its merits. Id., 525-26.

The present case is distinguishable from Parker and Pierce because the defendant’s claims go to the actions of the sentencing court. Specifically, he challenges actions taken by the sentencing court that, although proper at the time, were affected by a subsequent change in the law. We conclude that this case is similar to State v. Koslik, supra, 116 Conn. App. 693.

In Koslik, the defendant was convicted of representing himself falsely as or impersonating a registered home improvement contractor in violation of General Statutes § 20-427 (b) (3) and offering to make home improvements without having a certificate of registration in violation of § 20-427 (b) (5). Id., 695. The court sentenced the defendant to an effective prison term of 180 days and three years probation. Id. The defendant subsequently was arrested for violating his probation. Id. The defendant then filed a motion to correct an illegal sentence, arguing that because violations of § 20-427 (b) (3) and (5) are class B misdemeanors, the term of probation could not exceed two years. Id., 696. Section 20-427 (c) authorizes a probation period of not more than five years if the court finds that the defendant could not repay the victim within the period set forth in General Statutes § 53a-29. Id. The defendant claimed that the sentencing court failed to make such a finding, and, therefore, its sentence of three years probation was illegal. Id.

The state argued that the trial court lacked jurisdiction to consider the defendant’s motion to correct an illegal sentence. Id., 697. We concluded that the defendant’s claim presented a “ ‘classic’ example” of an illegal sentence; that is, one imposed in excess of the relevant statutory maximum. Id., 700. “Put another way, the defendant argues ... a sentence of three years of probation is legal if, and only if, the sentencing court makes the required determination regarding repayment to the victim. Absent that determination, any sentence exceeding two years of probation is an illegal sentence because it exceeds the statutory maximum. Regardless of the merits of such a claim, we conclude that the court had jurisdiction to entertain the defendant’s motion to correct an illegal sentence.” Id.

In the present case, the defendant makes a similar claim regarding his enhanced sentence. He argues that, following the Apprendi and Bell decisions, he could not be sentenced to a term of imprisonment authorized by the next more serious degree of felony unless the jury, and not the sentencing court, made the required statutory findings. He maintains that because this did not occur, his sentence exceeded the permissible statutory maximum and therefore was illegal. We agree with the defendant that such a claim falls within the trial court’s jurisdiction and properly was raised by a motion pursuant to Practice Book § 43-22. Accordingly, we conclude that the trial court improperly dismissed the defendant’s motion without considering its merits.

The sole claim raised by the defendant in his motion is that a subsequent change in the law resulted in an illegal sentence. Our task, therefore, is to determine whether, as a matter of law, Apprendi and Bell should be applied retroactively to the defendant’s sentencing. Our threshold question is whether the rule of Apprendi and Bell is procedural or substantive in nature. See Luurtsema v. Commissioner of Correction, 299 Conn. 740, 753, 12 A.3d 817 (2011). Our review of this question of law is plenary. See Duperry v. Solnit, 261 Conn. 309, 318, 803 A.2d 287 (2002).

In Schriro v. Summerlin, 542 U.S. 348, 351, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004), the United States Supreme Court concluded that when it creates a “ ‘new rule,’ ” such a decision applies to all criminal cases still pending on direct review, but as to convictions that are final, the new rule applies only in limited circumstances. “New substantive rules generally apply retroactively. This includes decisions that narrow the scope of a criminal statute by interpreting its terms ... as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State’s power to punish .... New rules of procedure, on the other hand, generally do not apply retroactively .... [Retroactive effect [is given] to only a small set of watershed rules of criminal procedure impheating the fundamental fairness and accuracy of the criminal proceeding.” (Emphasis in original; internal quotation marks omitted.) Id., 351-52.

In Schriro, the Supreme Court then concluded that the Apprendi principle, as applied in the context of a death penalty case in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), was classified properly as procedural. Schriro v. Summerlin, supra, 542 U.S. 353. Specifically, it reasoned: “Ring altered the range of permissible methods for determining whether a defendant’s conduct is punishable by death, requiring that a jury rather than a judge find the essential facts bearing on punishment. Rules that allocate decisionmaking authority in this fashion are prototypical procedural rules . . . .” Id. The court concluded that the rule of Ring was procedural and did not apply retroactively to cases already final on direct review. Id., 358; see also In re Fitzgerald, 182 Vt. 639, 642-43, 945 A.2d 825 (2007) (noting that federal courts have uniformly held that Apprendi and its progeny should not be applied retroactively).

Although the defendant argues that Bell should be applied retroactively, we are not persuaded. As noted previously, the holding and rationale of Bell are premised on the Supreme Court’s decision in Apprendi. In Schriro, the Supreme Court determined that the rule set forth in Apprendi and its progeny was procedural and not subject to retroactive application. It follows, therefore, that the rule of Bell should receive the same treatment as Apprendi and not be applied retroactively. The defendant’s brief does not provide us with any basis to reject this syllogism. Accordingly, we conclude as a matter of law that the rule set forth in Bell does not apply retroactively. Therefore, the defendant’s motion to correct an illegal sentence fails on the merits.

The judgment of the trial court dismissing the defendant’s motion to correct an illegal sentence is reversed and the case is remanded with direction to render judgment denying the defendant’s motion.

In this opinion the other judges concurred.

       That judgment was affirmed on direct appeal. State v. Henderson, 37 Conn. App. 733, 658 A.2d 585, cert. denied, 234 Conn. 912, 660 A.2d 355 (1995).

       See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       General Statutes (Rev. to 1993) § 53a-40 (a) provides in relevant part: “A persistent dangerous felony offender is a person who (1) stands convicted of . . . robbery in the first . . . degree . . . and (2) has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence to a term of imprisonment of more than one year . . . for the following crimes: (A) The crimes enumerated in subdivision (1) of this subsection . . . .”

       General Statutes (Rev. to 1993) § 53a-40 (Q provides in relevant part: “When any person has been found to be a persistent dangerous felony offender, and the court is of the opinion that his history and character and the nature and circumstances of his criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest, the court, in lieu of imposing the sentence of imprisonment authorized by . . . section 53a-35a . . . may impose the sentence of imprisonment authorized by said section for a class A felony.”

       General Statutes (Rev. to 1993) § 53a-40 (b) provides in relevant part: “A persistent serious felony offender is a person who (1) stands convicted of a felony, and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year . . . for a crime . . . .”

       General Statutes (Rev. to 1993) § 53a-40 (g) provides in relevant part: “When any person has been found to be a persistent serious felony offender, and the court is of the opinion that his history and character and the nature and circumstances of his criminal conduct indicate that extended incarceration will best serve the public interest, the court in lieu of imposing the sentence of imprisonment authorized by . . . section 53a-35a . . . may impose the sentence of imprisonment authorized by said section for the next more serious degree of felony.”

       In State v. Bell, 283 Conn. 748, 812, 931 A.2d 198 (2007), our Supreme Court stated: “[I]n those cases in which the defendant chooses to waive his right to a jury trial under § 53a-40, the court may continue to make the requisite finding. Additionally, the court properly may impose an enhanced sentence if the defendant admits to the fact that extended incarceration is in the public interest.”
      In State v. Michael A., 297 Conn. 808, 820, 1 A.3d 46 (2010), our Supreme Court noted that, following its decision in Bell, “the General Assembly amended § 53a-40 to excise the unconstitutional language from each of the six sentencing subsections . . . and, therefore, the current statute no longer requires a public interest determination.”

       The defendant also pleaded guilty to criminal mischief in the third degree in violation of General Statutes § 53a-117 (a) (1) (A). The court sentenced him to six months incarceration on that count to run concurrently with counts one and two.

        In State v. McElveen, 117 Conn. App. 486, 491, 979 A.2d 604 (2009), cert. granted on other grounds, 294 Conn. 924, 985 A.2d 1063 (2010), this court expressly stated that § 53a-40 “constitutes a sentence enhancement provision, and not an independent criminal offense . . . .” (Internal quotation marks omitted.) See State v. Velasco, 253 Conn. 210, 225, 751 A.2d 800 (2000).

       “Practice Book rules do not [however] ordinarily define subject matter jurisdiction. General Statutes § 51-14 (a) [provides that] . . . [s]uch rules shall not abridge, enlarge or modify any substantive right nor the jurisdiction of any of the courts. . . . Because the judiciary cannot confer jurisdiction on itself through its own rule-making power, § 43-22 is limited by the common-law rule that a trial court may not modify a sentence if the sentence was valid and its execution has begun.” State v. Parker, supra, 295 Conn. 836.

       The court noted that as a result of its ruling on the threshold jurisdictional question, it did not need to resolve the question raised by the parties as to whether our Supreme Court’s holding in State v. Bell, supra, 283 Conn. 748, applied retroactively.


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    PLANNING AND ZONING COMMISSION OF THE TOWN OF POMFRET ET AL. v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 31780)
    (AC 31781)
    Bishop, Harper and Beach, Js.

      Argued February 7
    officially released August 2, 2011

      Trade C. Brown, principal attorney, with whom, on the brief, were Victor Perpetua, principal attorney, and Colleen M. Murphy, general counsel, for the appellant (named defendant in both cases).

      Michael A. Zizka, with whom, on the brief, was Lana M. Glovach, for the appellees (jplaintiffs in both cases).
   Opinion

BEACH, J.

The defendant freedom of information commission (commission) appeals from the judgments of the trial court sustaining the administrative appeals of the plaintiff planning and zoning commission of the town of Pomfret from the final decisions of the commission. On appeal, the commission claims that the court erred in overturning its decisions because the court (1) addressed issues that were not before the commission, and (2) construed General Statutes §§ 1-210 (a) and 1-212 (a) in a manner that (a) contradicted the statutes’ plain meaning, (b) contradicted the construction of the statutes by the commission, (c) failed to give deference to the commission’s construction of the statutes and (d) was inconsistent with the statutes’ underlying public policy interests. We disagree and, accordingly, affirm the judgments of the trial court.

The record reveals the following relevant facts and procedural history. The plaintiff conducted meetings on January 9 and 15, 2008. A purpose of both meetings was to review and to debate draft proposed amendments to the town zoning regulations concerning home occupation uses. Ford Fay, Charles A. Boster and Paul Heimen attended both meetings as members of the public. At the January 9, 2008 meeting, the plaintiff had copies of, planned to discuss, and in fact did discuss two documents: (1) a four page draft memorandum from the town planner entitled “Home Occupations Retail Sales,” dated January 8, 2008, and (2) a letter from town counsel to the town planner regarding the proposed zoning amendments dated January 8, 2008. Fay orally requested at the meeting a copy of both documents, and the plaintiff denied his request. Boster testified that he also had requested orally at the January 15, 2008 meeting a copy of both documents but such request was denied by the plaintiff.

At the January 15, 2008 meeting, the plaintiff had copies of, planned to discuss, and in fact did discuss an updated version of the “Home Occupations Retail Sales” draft memorandum, dated January 15,2008. Boster testified before the commission that he had requested orally that the plaintiff provide him with a copy of the memorandum. The plaintiff then offered to let Boster borrow a copy of the memorandum that he could view during the meeting but informed Boster that he would have to return it after the meeting concluded. Boster declined to borrow the copy and left the meeting. Fay also had requested orally to receive a copy of the memorandum, which request the plaintiff denied. It is undisputed that there was a functioning copy machine in the building dining both meetings.

Two or three days after the January 15,2008 meeting, Fay and Boster went to the Pomfret town hall and requested, and subsequently received, copies of all of the documents that they had requested during the two meetings. Fay then filed a complaint with the commission on January 28, 2008, alleging, inter alia, that the plaintiffs denial of his oral requests to provide copies of the documents at issue was “not in the best interest of ‘open’ or ‘transparent’ government.” Boster, Hennen and Fay filed an additional complaint with the commission on February 6, 2008, alleging, inter alia, that the plaintiffs denial of their oral requests for the documents at issue violated the Connecticut Freedom of Information Act, General Statutes § 1-200 et seq.

The two complaints were consolidated and heard before the commission on June 4, 2008. Boster offered testimony regarding the plaintiffs denial of his oral requests for the documents at issue and also testified that the plaintiff had extra copies of the documents available at the January 9, 2008 meeting. Boster also averred that copy machines were available and that it would not have inconvenienced the plaintiff, to have made extra copies of the documents. Boster also attempted to offer as evidence a statement prepared by Fay, who did not attend the hearing. The commission concluded that it would not admit Fay’s statement into evidence because Fay was not available for cross-examination regarding the assertions made in the statement. Hennen testified, however, that he was with Fay at the January 9, 2008 meeting and that he witnessed the plaintiff deny Fay’s oral request for copies of the documents. The plaintiffs counsel questioned Boster and Hennen as to whether any of the requests to receive copies of the documents at issue were in writing. They answered in the negative.

The commission issued final decisions on January 14, 2009, and made the following findings of fact and conclusions. Fay requested the documents at issue at the January 9, 2008 meeting. At the January 9, 2008 meeting, extra copies of the January 8,2008 draft memorandum were available. The commission found that the plaintiff denied Fay’s request for the documents at issue for the following reasons: “First, the [plaintiff] asserted that [it] had three or four days to provide copies of public records, pursuant to [its] own rules and pursuant to the Freedom of Information Act. Second, the [plaintiff] asserted that copies were only available from the town clerk during regular office or business hours. Finally, the [plaintiff] asserted that the draft memorandum was subject to change, and therefore could be misused by the public.” To the extent that the plaintiff argued before the commission that Fay’s requests were denied because they were not made in writing, “[the plaintiff] at no time during its meetings indicated that it was declining [Fay’s] request because he had failed to reduce his request to writing . . . [and thus] the lack of a written request by [Fay] is not a valid defense to the [plaintiffs] failure to provide a copy of the records . . . .” Additionally, “[w]ith respect to the [plaintiffs] argument that the request was not made during regular office or business hours . . . nothing in § 1-212 (a) . . . limits an agency’s obligation to provide copies of records strictly to regular office or business hours.” The commission concluded, therefore, that the plaintiff violated the “promptness requirement” of § 1-212 (a) by failing to provide to Fay a copy of the documents at issue at the time he requested them. The commission also issued a final decision on January 14, 2009, and made similar findings of fact and conclusions with respect to the complaint by Fay, Boster and Hennen concerning their request for documents at the January 15, 2008 meeting.

The plaintiff appealed from the commission’s decisions to the Superior Court. On November 10, 2009, the court issued memorandums of decision sustaining the plaintiffs appeals and overturning the decisions of the commission. In its decisions, the court briefly acknowledged the plaintiffs argument that the requests of Fay, Boster and Hennen for the documents at issue were required to be in writing. The court determined that this issue was moot because Fay, Boster and Hennen subsequently were provided with copies of all the documents that they had requested at the meetings. The court then concluded that the commission erred when it determined that the plaintiff violated the “promptness requirement” of § 1-212 (a) by failing to provide them with copies of the documents at the time they orally requested them. The court reasoned that the Freedom of Information Act “only requires agencies to respond to requests for copies promptly during regular office or business hours, not during evening meetings in progress.” Thus, the court concluded that because the oral requests in this case were made after regular office or business hours, the plaintiffs denial of such requests did not violate the promptness requirement of § 1-212 (a). These appeals followed.

On appeal, the commission claims that the court erred in overturning its decisions. Specifically, the commission argues that the court’s determination that the Freedom of Information Act requires agencies promptly to respond to requests for copies only during regular office or business hours was erroneous because that issue was not addressed by the commission and, in any event, the determination was an incorrect construction of §§ 1-210 (a) and 1-212 (a). We affirm the judgments of the trial court on the alternate ground urged by the plaintiff, which is that the requests were not reduced to writing as required by § 1-212 (a).

We begin by setting forth our well established standard of review of agency decisions. “Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes. . . . [A]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when a state agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference. . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law.” (Internal quotation marks omitted.) Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 305-306, 732 A.2d 144 (1999). Because our determination requires that we interpret a provision of a statute that previously has not been subject to judicial scrutiny by our appellate courts, our plenary review does not require special deference to the agency’s legal determinations. See id.

Principles of statutory interpretation govern our construction of § 1-212 (a). “A fundamental tenet of statutory construction is that statutes are to be considered to give effect to the apparent intention of the lawmaking body. . . . The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) State v. Boysaw, 99 Conn. App. 358, 362-63, 913 A.2d 1112 (2007).

We begin our analysis by examining § 1-210 (a), which provides in relevant part: “[E]very person shall have the right to (1) inspect such [public] records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. . . .” (Emphasis added.) Thus, pursuant to § 1-210 (a), an individual may seek review of public records by three separate avenues. In the present case, the commission found that Fay, Boster and Hennen sought to review the documents at issue by requesting to receive a copy of them, as opposed to requesting to inspect the documents or requesting to copy the documents themselves. Accordingly, we turn our attention to § 1-212, which governs the right to receive copies of public records.

Section 1-212 (a) provides in relevant part: “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. . . .” (Emphasis added.) The language of § 1-212 (a) clearly and unambiguously requires that an individual seeking to receive a copy of a public record, such as in the present case, must reduce the request to writing in order for the request to be enforceable by the commission. See State v. DeFrancesco, 235 Conn. 426, 437, 668 A.2d 348 (1995) (“no part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . and no word in a statute is to be treated as superfluous” [internal quotation marks omitted]). In its memorandums of decision, however, the court noted that the commission found that no written requests were made. Thus, the record clearly establishes that Fay, Boster and Hennen, by making only oral requests for the documents at issue, failed to satisfy the express requirement of § 1-212 (a) that requests for documents be reduced to writing. Accordingly, because the requests to receive copies of the documents at issue did not comport with § 1-212 (a), we conclude that the court correctly determined that the plaintiff did not violate the promptness requirement of § 1-212 (a).

Next, we discuss the issue of waiver addressed by the court. In its memorandums of decision, the court stated that there potentially was an issue as to whether the writing requirement was waived as a result of the plaintiff’s failure to reduce to writing its denial of the oral requests by Fay, Boster and Hennen. We conclude that the plaintiffs failure to object in writing to the oral requests did not amount to a waiver of the obligation to comply with the writing requirement of § 1-212 (a).

General Statutes § 1-206 (a) provides in relevant part: “Any denial of the right to inspect or copy records provided for under section 1-210 shall be made to the person requesting such right by the public agency official who has custody or control of the public record, in writing . . . .” (Emphasis added.) This language makes clear that the obligation of an agency to deny in writing an individual’s request to inspect or copy records is triggered only when the individual properly has complied with one of the three permissible means of requesting public records provided for in § 1-210 (a). In the present case, Fay, Boster and Hennen sought to review the documents at issue by requesting to receive copies pursuant to § 1-212 (a). As stated previously, their requests were ineffective because they were not reduced to writing. Accordingly, because Fay, Boster and Hennen did not invoke properly their right to inspect or copy records pursuant to § 1-210, the plaintiffs obligation to reduce to writing its denial of the requests was never triggered.

The judgments are affirmed.

In this opinion the other judges concurred.

       The other defendant in the first case, Ford Fay, and the other defendants in the second case, Fay, Charles A. Boster and Paul Hennen, did not participate in these appeals. We therefore refer in this opinion to the commission as the defendant.

       The following parties also were named as plaintiffs in these actions: Walter Hinchman, in his capacity as chairman of the planning and zoning commission of the town of Pomfret; James Rivers, in his capacity as first selectman of the town of Pomfret; Bonnie Ryan, in her capacity as clerk to the planning and zoning commission of the town of Pomfret; and James Rabbitt, town planner for the town of Pomfret. For convenience, we refer to the planning and zoning commission of the town of Pomfret as the plaintiff in this opinion.

       Both meetings commenced approximately at 7:30 p.m.

       General Statutes § 1-210 (a) provides in relevant part: “Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business horns, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. . . .”

       General Statutes § 1-212 (a) provides in relevant part: “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. . . .”

       We note that the bulk of § 1-212 is devoted to the allowable fees to be charged for providing copies of public records in different circumstances. Some formalities, perhaps most readily observed during regular office or business hours, adhere to the calculation and administration of fees. The commission’s final decision seems to overlook the administrative protocol required by the Freedom of Information Act.

       Because we affirm the court’s decisions on an alternate ground, we do not address the commission’s argument that the court erred because it addressed an issue that was not before the commission, namely, whether the Freedom of Information Act requires agencies promptly to respond to requests for copies only during regular office or business hours, nor do we address the commission’s argument that the court’s determination of that issue was an incorrect construction of §§ 1-210 (a) and 1-212 (a).

       In its final decisions, the commission stated that it “has previously concluded that, where an agency did not require a written request at the time of the request for copies, and has declined to provide the copy on other grounds, the agency may not subsequently, at a hearing on a complaint, raise the absence of a written request as a defense to its failure to promptly provide a copy.” We disagree with the commission’s contention as applied to the facts of this case.
      As stated previously, § 1-212 (a) clearly requires that a request to receive copies of public records must be in writing. There is nothing in the language of § 1-212, however, to suggest that if an agency does not affirmatively inform an individual that his oral request to receive public records must be in writing, the agency is then precluded from arguing that the requesting individual failed properly to comply with the writing requirement of § 1-212 (a). Moreover, the language of § 1-212 (a) provides notice that a request to receive copies of public records must be in writing if it is to be enforced by the commission. Accordingly, under the specific facts of this case, the plaintiff was not precluded from arguing that Fay, Boster and Hennen failed to satisfy the writing requirement of § 1-212 (a).

       In light of this decision, we leave for another day the question of whether an agency has an obligation to provide copies of public records when a request is made outside of regular office or business hours.


author: ALVORD, J.

text:
    STATE OF CONNECTICUT v. ANWAR SHAKIR
    (AC 31931)
    Alvord, Espinosa and Schaller, Js.

      Argued April 21
    officially released August 2, 2011

      Laljeebhai R. Patel, special public defender, for the appellant (defendant).

      Brace R. Lockwood, senior assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, and Charles M. Stango, senior assistant state’s attorney, for the appellee (state).
   Opinion

ALVORD, J.

The defendant, Anwar Shakir, appeals from the judgment of the trial court revoking his probation and imposing a two year sentence of incarceration. On appeal, the defendant claims that the court (1) improperly admitted videotape testimony into evidence, (2) violated his due process right to confront and cross-examine a witness, (3) improperly found a violation of probation with insufficient evidence and (4) abused its discretion in revoking his probation. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. On September 24, 2007, the defendant was sentenced to three years incarceration, execution suspended, with three years of probation for sale of narcotics in violation of General Statutes § 2 la-277 (b). The terms of the defendant’s probation included the condition that he not violate any criminal law.

On February 6, 2009, during the defendant’s period of probation, he was arrested in Derby and charged with two counts each of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes § 53-21 (a) (2). He was charged subsequently with a violation of probation based on the allegations underlying his 2009 arrest. The court held a revocation of probation hearing on October 2 and 7, 2009.

During the first day, the state called the defendant’s probation officer, who obtained the warrant for the defendant’s arrest upon being informed of the felony sex assault charges filed against the defendant. Additionally, Detective Charles M. Stankye III, who investigated the complaint, testified that the police department’s protocol is to schedule immediately a forensic interview by a licensed clinical social worker with the minor complainant upon being notified of an alleged sexual assault. He testified that this system prevents minor complainants from having to repeat their recollection of the events and that “clinical social workers are very adept at speaking at ease and getting the children victims at ease to get disclosures and the facts of the case.” In the present case, the social worker conducted the interview while being videotaped, during which Stankye, another police officer and an employee of the sexual abuse clinic observed behind a “two-way mirror.” The minor complainant’s mother was not present at the interview.

The defendant objected to the state’s offering of the fifty minute video of this interview (video) as an exhibit, arguing that it was inadmissible hearsay evidence without any indicia of reliability. The state claimed that the testimony on the video constituted reliable hearsay sufficient for the less rigid evidentiary standard in violation of probation hearings because, inter alia, the minor complainant was not told what to say, she identified the defendant, her mother was not allowed to be present at the interview, and the questioning was performed by a licensed clinical social worker trained to conduct such interviews. The court allowed the video to be entered as evidence, acknowledging that the strict admissibility rules do not apply during violation of probation hearings and stating that it would “allow it for what it is, the victim’s statement of the complaint.” Stankye also testified that a physician examined the minor complainant and produced a medical record showing that the minor complainant tested positive for chlamydia. This report was entered into evidence.

In its written decision, the court concluded by a preponderance of the evidence that the defendant violated a law by engaging in inappropriate sexual contact with a minor and exposing a minor to pornography, relying on “the medical examination of the minor victim in which she was diagnosed with a sexually transmitted disease and the videotaped statement of the victim in which she described her sexual assault by the defendant while viewing a sexually explicit video.” The court acknowledged that there were inconsistencies in the minor complainant’s statement but concluded that it was reliable and probative given the surrounding circumstances. The court revoked the defendant’s probation and sentenced him to two years incarceration. This appeal followed.

As a preliminary matter, we set forth the legal principles and the standard of review pertinent to our discussion. “Our Supreme Court has recognized that revocation of probation hearings, pursuant to [General Statutes] § 53a-32, [comprise] two distinct phases, each with a distinct purpose. ... In the evidentiary phase, [a] factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. ... In the dispositional phase, [i]f a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served. . . . [T]he ultimate question [in this phase is] whether the probationer is still a good risk .... This determination involves the consideration of the goals of probation, including whether the probationer’s behavior is inimical to his own rehabilitation, as well as to the safety of the public.” (Internal quotation marks omitted.) State v. Crosby, 125 Conn. App. 775, 779-80, 9 A.3d 794 (2011).

“Since there are two distinct components of the revocation hearing, our standard of review differs depending on which part of the hearing we are reviewing.” (Internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 185, 842 A.2d 567 (2004). “In making its factual determination [of whether a condition of probation has been violated] the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . Our review is limited to whether such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling. . . .

“The standard of review of the trial court’s decision at the sentencing phase of the revocation of probation hearing is whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) State v. Hill, 256 Conn. 412, 425-26, 773 A.2d 931 (2001).

I

The defendant first argues that it was an abuse of discretion for the court to admit the video into evidence because it was hearsay evidence that “lacked the indicia of reliability.” We disagree.

We note that “[i]t is well settled that probation proceedings are informal and that strict rules of evidence do not apply to them. . . . Hearsay evidence may be admitted in a probation revocation hearing if it is relevant, reliable and probative. ... At the same time, [t]he process ... is not so flexible as to be completely unrestrained; there must be some indication that the information presented to the court is responsible and has some minimal indicia of reliability.” (Citation omitted; internal quotation marks omitted.) State v. Lanagan, 119 Conn. App. 53, 58, 986 A.2d 1113 (2010); see also Conn. Code Evid. § 1-1 (d) (4).

In this case, our review of the record does not support a conclusion that the court improperly admitted the video. The court explicitly stated that the video was “rehable and probative under all the surrounding circumstances.” The court had before it Stankye’s testimony that (1) the chain of custody for the video was intact, (2) the minor complainant was not influenced as to her answers and (3) as a matter of procedure, the police department required questioning to be performed by a licensed clinical social worker trained to conduct such interviews. Moreover, because strict admissibility rules do not apply; State v. Quinones, 92 Conn. App. 389, 392, 885 A.2d 227 (2005), cert. denied, 277 Conn. 904, 891 A.2d 4 (2006); and the trier of fact was the court, not a jury, it was within the court’s discretion upon viewing the video to assess the reliability of the evidence in light of the circumstances reflected on the video. Thus, we cannot find that it was an abuse of discretion to allow the video into evidence.

II

The defendant next claims that the court improperly admitted the video into evidence because doing so violated the defendant’s right to due process under the fourteenth amendment to the United States constitution by failing to accord him the right to confront and cross-examine an adverse witness. This claim was not preserved properly; however, the defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because it fails to satisfy the first prong of Golding, we decline to review this claim.

“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. ... In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Hobson, 68 Conn. App. 40, 47, 789 A.2d 557, cert. denied, 260 Conn. 910, 796 A.2d 557 (2002).

“Probation revocation proceedings fall within the protections guaranteed by the due process clause of the fourteenth amendment to the federal constitution. . . . That clause provides in relevant part: [N]or shall any State deprive any person of life, liberty or property, without due process of law . . . . U.S. Const., amend. XIV, § 1. Probation itself is a conditional liberty and a privilege that, once granted, is a constitutionally protected interest. . . . The revocation proceeding must comport with the basic requirements of due process because termination of that privilege results in a loss of liberty.” (Internal quotation marks omitted.) State v. Barnes, 116 Conn. App. 76, 79, 974 A.2d 815, cert. denied, 293 Conn. 925, 980 A.2d 913 (2009).

The United States Supreme Court has outlined the requirements of due process in these types of hearings: “(a) written notice of the claimed violations of [probation]; (b) disclosure to the [defendant] of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body . . . and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation].” Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). “Despite that panoply of requirements, a probation revocation hearing does not require all of the procedural components associated with an adversarial criminal proceeding.” (Internal quotation marks omitted.) State v. Barnes, supra, 116 Conn. App. 79.

The constitutional requirements recognized in Morrissey are codified in Federal Rule of Criminal Procedure 32.1, which provides that in a revocation hearing the defendant is entitled to “an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear . . . .” Fed. R. Crim. P. 32.1 (b) (2) (C); see also Fed. R. Crim. P. 32.1, advisory committee notes to the 2002 amendments (explaining that in applying rule 32.1 [b] [2] [C], “[t]he court is to balance the person’s interest in the constitutionally guaranteed right to confrontation against the government’s good cause for denying it,” and citing Morrissey v. Brewer, supra, 408 U.S. 489).

Thus, the defendant’s right to confront the witness is not absolute. Further, “[a] strict interpretation of the Morrissey standards runs contrary to the spirit of flexibility with which the Supreme Court promulgated the Morrissey and [Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973)] due process requirements. . . . [D]ue process is flexible and calls for those procedural protections that the particular situation demands. ... A revocation proceeding does not require all of the procedural components associated with an adversarial criminal proceeding.” (Citations omitted; internal quotation marks omitted.) State v. Baxter, 19 Conn. App. 304, 312, 563 A.2d 721 (1989).

In considering whether the court had good cause for not allowing confrontation or “that the interest of justice [did] not require the witness to appear”; Fed. R. Crim. P. 32.1 (b) (2) (C); the court should “balance, on the one hand, the defendant’s interest in confronting the declarant, against, on the other hand, the government’s reasons for not producing the witness and the reliability of the proffered hearsay.” United States v. Williams, 443 F.3d 35, 45 (2d Cir. 2006); see also United States v. Chin, 224 F.3d 121, 124 (2d Cir. 2000). In the present case, the factual underpinnings for the minor complainant’s not being produced to testify that might amount to good cause were not developed via evidence on the record demonstrating whether producing her would cause great difficulty, expense or risk of harm. Consequently, we conclude that the record is inadequate for our review under Golding.

Ill

The defendant next claims that there was insufficient evidence to support the court’s conclusion that he violated his probation. We disagree.

“A challenge to the sufficiency of the evidence is based on the court’s factual findings. The proper standard of review is whether the court’s findings were clearly erroneous based on the evidence. ... A court’s finding of fact is clearly erroneous and its conclusions drawn from that finding lack sufficient evidence when there is no evidence in the record to support [the court’s finding of fact] ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) State v. Oliphant, 115 Conn. App. 542, 552, 973 A.2d 147, cert. denied, 293 Conn. 912, 978 A.2d 1113 (2009).

The record reveals sufficient evidence for the court reasonably to have found that the defendant violated his probation. The court relied on the video in which the minor complainant testified that she was assaulted by the defendant while watching a sexually explicit video, which the court specifically found to be reliable and probative, and the fact that the minor complainant was diagnosed with a sexually transmitted disease for which she identified the defendant as the source. “The weight to be given [to] the evidence and [to] the credibility of witnesses [is] solely within the determination of the trier of fact.” (Internal quotation marks omitted.) State v. Bostwick, 52 Conn. App. 557, 561, 728 A.2d 10, appeal dismissed, 251 Conn. 117, 740 A.2d 381 (1999). The court performed its duty, and we will not usurp its function. See State v. Campbell, 61 Conn. App. 99, 103, 762 A.2d 12 (2000), cert. denied, 255 Conn. 934, 767 A.2d 105 (2001). We cannot conclude, in light of this record, that there was insufficient evidence to find that the defendant violated his probation.

IV

Finally, the defendant claims that the court abused its discretion in revoking his probation. “If a violation [of a condition of probation] is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served.” (Internal quotation marks omitted.) State v. Brunette, 92 Conn. App. 440, 447, 886 A.2d 427 (2005), cert. denied, 277 Conn. 902, 891 A.2d 2 (2006). As a general matter, a trial court possesses, within statutorily prescribed limits, broad discretion in sentencing matters in revocation of probation hearings. See State v. Mapp, 118 Conn. App. 470, 478, 984 A.2d 108 (2009), cert. denied, 295 Conn. 903, 988 A.2d 879 (2010). On appeal, we will disturb atrial court’s sentencing decision only if that discretion clearly has been abused. See State v. Kelly, 256 Conn. 23, 81, 770 A.2d 908 (2001).

The court stated that it was the “combination of the crime which [the defendant] has committed and [his] inability to complete probation satisfactorily . . . that make the sentencing determination in this case. [The defendant] is not entitled to the benefit of continued probation in this matter, in view of the finding [by a preponderance of the evidence] that he committed a felony .... [T]he court found there was some sexually inappropriate contact and exposure to pornography, occurring on at least one or more occasions, with the child, sufficient to violate probation.” We conclude that the court’s decision to revoke the defendant’s probation, given a consideration of the whole record, was an appropriate exercise of judicial discretion. See State v. McElveen, 69 Conn. App. 202, 208, 797 A.2d 534 (2002).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . .

       General Statutes § 53-21 (a) provides in relevant part: “Any person who ... (2) has contact with the intimate parts ... of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of ... a class B felony . . . except that, if the violation is of subdivision (2) of this subsection and the victim of the offense is under thirteen years of age, such person shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”

       Stankye stated that “[t]he interviewer . . . and the child victim are in a separate room. [The officers and employee viewing the interview] are in a room that is . . . behind a two-way mirror. [The people observing] can see in. The interviewer and the victim cannot see out.”

       Specifically, the state noted that the licensed clinical social worker is trained to elicit “what happened, not what the police think happened, and not what [the state] think[s] happened . . . .”

       Although the defendant asserts that the court’s actions violated both the state and federal constitutions, he has failed to provide the analysis required by State v. Geisler, 222 Conn. 672, 684-85, 610 A.2d 1225 (1992), that is a prerequisite to asserting an independent claim under the state constitution. See Hogan v. Dept. of Children & Families, 290 Conn. 545, 567-68, 964 A.2d 1213 (2009) (refusing to address state constitutional claim where plaintiff failed to provide Geisler analysis). We therefore limit our analysis to the defendant’s claim under the federal constitution.

       In Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), the United States Supreme Court held that the due process requirements established for parole revocation were also applicable to probation revocation proceedings. See also United States v. Jones, 299 F.3d 103, 109 (2d Cir. 2002) (stating that constitutional guarantees are identical for revocation of parole, probation and supervised release).