author: DiPENTIMA, J.

text:
    VANGUARD ENGINEERING, INC. v. ANNA B. ANDERSON
    (AC 23814)
    Dranginis, DiPentima and Dupont, Js.

      Argued November 20, 2003
    officially released May 18, 2004

      William E. McCoy, for the appellant (defendant).

      Richard D. Dixon, for the appellee (plaintiff).
   Opinion

DiPENTIMA, J.

The defendant, Anna B. Anderson, appeals from the judgment rendered in favor of the plaintiff, Vanguard Engineering, Inc., after a trial to the court. On appeal, the defendant argues that the trial court improperly (1) found damages in the amount of $114,534.65 on the basis of common-law conversion where there was no showing of benefit or use to the defendant, (2) awarded treble damages and attorney’s fees as exemplary damages, (3) found that the defendant’s statutory theft was proven by clear and convineing evidence, (4) found that the defendant was liable for the federal taxes, state withholding and unemployment taxes and the associated penalties and interest, (5) found that the defendant was the chief executive officer and chief financial officer of the plaintiff, and (6) excluded evidence that the defendant had deposited money from her own funds into the plaintiffs account. Because of our resolution of the evidentiary claim, we do not reach the other claims. The judgment is reversed and the case is remanded for a new trial.

The following facts and procedural history are relevant to our disposition of the defendant’s appeal. The plaintiff, a single shareholder corporation, commenced this action against the defendant, claiming conversion and breach of fiduciary duty. James Anderson is the president and sole shareholder of the plaintiff. At all times relevant to this action, he was married to the defendant. The defendant, a certified public accountant, was the secretary and treasurer of the plaintiff, and was responsible for its bookkeeping and accounting. Subsequent to the occurrence of the facts alleged in this matter, James Anderson and the defendant were divorced.

After trial, the court found that the defendant had converted $155,427.68 of the plaintiffs funds. On the basis of its findings, the court trebled the $155,427.68, citing General Statutes § 52-564, awarded attorney’s fees of $12,177.25, costs and statutory interest. The award totaled $549,973.62. This appeal followed.

In her pro se answer to the plaintiffs complaint, the defendant alleged that any reimbursements from the plaintiff to her were deposited in the joint account of James Anderson and the defendant or paid directly for family liabilities such as credit cards. On appeal, she argues that the court improperly precluded her from presenting evidence concerning money that she or her family had contributed to the plaintiff.

As a threshold matter, our resolution of the defendant’s appeal requires us to interpret the defendant’s pro se answer. As a consequence, the issue before the court invokes our plenary power to review the legal effect of pleadings. See Baldwin v. Jablecki, 52 Conn. App. 379, 381, 726 A.2d 1164 (1999) (“interpretation of pleadings is always a question of law for the court”). “Whenever [the] language [of the pleadings] fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties. . . . [I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party. . . . The modem trend, which is followed in Connecticut, is to constme pleadings broadly and realistically, rather than narrowly and technically.” (Citations omitted; internal quotation marks omitted.) Hill v. Williams, 74 Conn. App. 654, 655-56, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003). Practice Book § 10-50 “requires that payment must be pleaded as a special defense even when nonpayment of the debt is alleged by the plaintiff . . . .” (Citation omitted.) Thompson & Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 132, 523 A.2d 1266 (1987).

Here, although the defendant’s answer was not artfully pleaded, its general theory was that she had used the corporation’s money to reimburse loans made by family members and to pay outstanding family bills and, therefore, the payments were not unauthorized or, in the alternative, they constituted a payment and should be considered as a setoff. In this case, and in line with the modem trend of interpreting pleadings, we conclude that the language of the defendant’s answer adequately sets forth both a general denial and a claim for setoff. As a consequence of that conclusion, we must next analyze whether the court’s evidentiary ruling was proper.

We note that we will set aside a court’s evidentiary ruling only when there has been a clear abuse of discretion. Sheiman v. Sheiman, 72 Conn. App. 193, 201, 804 A.2d 983 (2002). “Even when a trial court’s evidentiary ruling is deemed to be improper, we must determine whether that ruling was so harmful as to require a new trial. ... In other words, an evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful. . . . Finally, the standard in a civil case for determining whether an improper ruling was harmful is whether the . . . ruling [likely] would [have] a£fect[ed] the result.” (Internal quotation marks omitted.) Daley v. McClintock, 267 Conn. 399, 403, 838 A.2d 972 (2004).

During the cross-examination of James Anderson, the defendant’s counsel asked whether he had “analyzed whether [the defendant] deposited moneys to offset [missing money].” The court interrupted the exchange and stated that the defendant was asking about something that had not been pleaded. The court excluded the testimony regarding money that the defendant had contributed to the plaintiff specifically because she had not pleaded the special defense of setoff or payment. We conclude that the court improperly disallowed that line of questioning. The evidence concerning the infusion of personal and family funds into the plaintiff was relevant and material to the issue of the defendant’s intent and to whether the payments were in fact improper or authorized. Conversion requires a showing that the defendant’s conduct was in fact unauthorized. Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 649, 804 A.2d 180 (2002) (conversion defined as “ ‘[a]n unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner’s rights’ ”).

The court’s failure to allow the defendant to present evidence tending to show that her conduct was authorized effectively negated her ability to show which, if any, payments were in fact authorized. If the payments were authorized, the court could not have found that the defendant had converted that portion of the plaintiff’s money. We conclude that this evidentiary ruling likely has affected the outcome of the trial, and that the exclusion of the evidence was both improper and harmful. Therefore, a new trial is necessary.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       In its memorandum of decision, the court appeared to make no findings as to the breach of fiduciary duty count, but did award statutory interest on both counts. That has not been raised on appeal.

       General Statutes § 52-564 provides: “Any person who steals property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”

       At trial, the defendant objected to testimony of James Anderson regarding whether the defendant had taken money for herself out of the plaintiff’s account. The defendant’s counsel objected, stating that the testimony was relevant only if it showed some improper purpose on the defendant’s part. The court admitted the evidence and stated, “If you can show it was for some worthwhile purpose or appropriate purpose, that is a different matter, but at this point, it is certainly admissible to show that she did take the money.” As previously stated, the court later precluded the defendant’s counsel from presenting testimony tending to show that the defendant’s use of the funds was authorized.


source: Caselaw Access Project

author: LA.VERY, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. BARRIE WILSON
    (AC 23255)
    Lavery, C. J., and Schaller and Bishop, Js.

      Argued February 10
    officially released May 18, 2004

      David V. DeRosa, special public defender, for the appellant (defendant).

      Eileen F. McCarthy, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Richard J. Rabino, assistant state’s attorney, for the appellee (state).
   Opinion

LA.VERY, C. J.

The defendant, Barrie Wilson, appeals from the judgment of conviction, rendered after a jury trial, of eight counts of failure to pay wages in violation of General Statutes § 31-71b. On appeal, the defendant claims that the court improperly failed to charge the jury that the state must prove that he was at least criminally negligent in failing to pay wages. Alternatively, the defendant argues that the statute is unconstitutionally vague. We disagree with the defendant’s arguments and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In May, 2000, the defendant founded a flooring business called A Plus Flooring. The defendant contacted the Hartford Areas Rally Together, Inc., jobs center, an employment agency in Hartford, looking to hire employees for the new company. The defendant eventually hired 129 individuals who were referred to him by the agency. The defendant agreed to pay those employees $15 per hour while being trained by and working for the defendant. The employees filled out application forms and W-2 forms prior to commencing the training. The employees were trained for two weeks, but did not receive their first paychecks. They continued working for a short time, believing that they would get paid. The defendant, however, never paid the employees for their work, and the employees filed claims with the department of labor. The defendant eventually was convicted of eight counts of failure to pay wages in violation of § 31-71b.

I

The defendant first claims that the court violated his federal constitutional right to be convicted of the essential elements of the offense only as a result of proof that establishes guilt beyond a reasonable doubt. Specifically, the defendant argues that the court improperly failed to charge the jury that the state was required to prove that he was at least criminally negligent to be convicted of the offense of failure to pay wages. The defendant acknowledges that the statute articulates no mens rea element with respect to an employer’s failure to pay wages to an employee; the defendant argues, however, that the court should have applied an interpretive presumption that the statute requires a mens rea of at least criminal negligence.

In State v. Nanowski, 56 Conn. App. 649, 746 A.2d 177, cert. denied, 252 Conn. 952, 749 A.2d 1203 (2000), and State v. Merdinger, 37 Conn. App. 379, 655 A.2d 1167, cert. denied, 233 Conn. 914, 659 A.2d 187 (1995), we rejected the argument that intent is an element of General Statutes § 31-71a et seq. In those cases, we held, rather, that the failure to pay wages is a strict liability crime. “The statute is one of strict criminal liability designed to eradicate the evil of nonpayment of wages even though those without an evil purpose might end up ensnared in its net.” (Internal quotation marks omitted.) State v. Nanowski, supra, 655. The defendant has not persuaded us that we should depart from our precedent. The defendant’s 'claim, therefore, must fail.

II

The defendant next argues that if the mens rea of criminal negligence is not an essential element of the crime of failure to pay wages, then the statute is unconstitutionally vague because the conduct that is not subject to strict liability in the statute is so broad and essential to everyday life that it may not be constitutionally prohibited. According to the defendant, the crime of failure to pay wages must have at least a mens rea of criminal negligence to avoid being void for vagueness. We disagree.

We upheld the constitutionality of the failure to pay wages statute in State v. Merdinger, supra, 37 Conn. App. 382, and State v. Nanowski, supra, 56 Conn. App. 657. In Merdinger, the defendant argued that § 31-71b is unconstitutional because it does not prescribe a requisite mens rea. The defendant argued that the statute passes constitutional muster only if it is read as requiring that the state prove an intent to do the prohibited act (nonpayment of wages). State v. Merdinger, supra, 382. We concluded in Merdinger that “this public welfare offense properly does not require a mens rea and imposes strict criminal liability.” Id., 386. We further held that the defendant had failed to show by proof beyond a reasonable doubt that § 31-71b is unconstitutional. Id., 387.

In State v. Nanowski, supra, 56 Conn. App. 652, the defendant argued that § 31-71a et seq. was unconstitutional as applied to him because the increased penalty for conviction, from a misdemeanor to a felony, imposed by the 1993 amendments to the statute, required that an inference of mens rea be read into General Statutes § 31-71c. We rejected the defendant’s argument, stating that “[n] either the United States Supreme Court nor our Supreme Court has held that the magnitude of the penalty determines the constitutionality of strict liability statutes.” Id., 656. As we stated in Nanowski: “It is well established that a criminal statute is not necessarily unconstitutional because it imposes strict liability. [P]ublic policy may require that in the prohibition or punishment of particular acts it may be provided that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance .... The constitutional requirement of due process is not violated merely because mens rea is not a required element of a prescribed crime.” (Citation omitted; internal quotation marks omitted.) Id., 654-55. We concluded in Nanowski that the defendant had failed to prove that § 31-71a et seq. is unconstitutional. Id., 657.

The defendant has failed to persuade us that we should depart from our precedent that was established in State v. Merdinger, supra, 37 Conn. App. 379, and State v. Nanowski, supra, 56 Conn. App. 649.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-71b provides in relevant part: “(a) Except as otherwise provided in section 12-34b, each employer, by himself, his agent or representative, shall pay weekly all moneys due each employee on a regular pay day, designated in advance by the employer, in cash, by negotiable checks or, upon an employee’s written request, by credit to such employee’s account in any bank which has agreed with the employer to accept such wage deposits.
      “(b) The end of the pay period for which payment is made on a regular pay day shall be not more than eight days before such regular pay day, provided, if such regular pay day falls on a nonwork day, payment shall be made on the preceding work day. . . .”

       A small number of those employees were hired as crew chiefs and were to be paid approximately $29 per hour.

       In addition to arguing that the court violated his constitutional rights by failing to charge the jury that criminal negligence is an element of failure to pay wages, the defendant also argues that the court improperly failed to dismiss the case and to render a judgment of acquittal. Those claims also are based on the defendant’s contention that criminal negligence is an essential element of the crime of failure to pay wages; we therefore consider those claims together.

       General Statutes § 31-71a et seq. are the general provisions regarding payment of wages.

       See Public Acts 1993, No. 93-392, § 4.

       General Statutes § 31-71c provides in relevant part: “(a) Whenever an employee voluntarily terminates his employment, the employer shall pay the employee’s wages in Ml not later than the next regular pay day, as designated under section 31-71b, either through the regular payment channels or by mail.
      “(b) Whenever an employer discharges an employee, the employer shall pay the employee’s wages in Ml not later than the business day next succeeding the date of such discharge. . . .”


author: McLACHLAN, J.

text:
    LURRAE LUPONE ET AL. v. LARRY LUPONE ET AL.
    (AC 23692)
    SchaUer, Dranginis and McLachlan, Js.

      Argued February 20
    officially released May 18, 2004

      William F. Gallagher, for the appellants (defendants).

      John A. Keyes, with whom, on the brief, was Marlin M. Looney, for the appellees (plaintiffs).
   Opinion

McLACHLAN, J.

The defendants appeal from the judgment of the trial court denying their motion for a judicial determination of the issues to be submitted to an arbitration panel in their dispute with the plaintiffs. On appeal, the defendants claim that the court should have decided the scope of arbitrable issues rather than finding that such determination was within the purview of the arbitration panel. We affirm the judgment of the trial court.

The parties are general and limited partners in Lupone Associates Limited Partnership, which has holdings of undeveloped land, income producing real estate and securities. In November, 2000, following a dispute with the defendants, the plaintiffs demanded arbitration pursuant to an arbitration clause in the parties’ partnership agreement. When the defendants refused to submit to arbitration, the plaintiffs brought an application to compel arbitration and to appoint arbitrators.

At the hearing on the application to compel, the defendants expressed concern regarding the scope of the submission of issues for arbitration. The defendants sought to have the submission of issues narrowed so as not to include inadvertently certain joint interests the parties possessed that were not then in dispute. In response to that concern, the court stated: “So, in the first instance, you want to reserve the right to come here to object and then the court will determine as a matter of law whether the objection should be heard here or by the arbitrators.” The plaintiffs then agreed to present their submission of the issues to the defendants within thirty days, and the defendants agreed to respond to that submission within thirty days thereafter.

The plaintiffs timely provided their submission of issues to the defendants, who took exception to its purportedly expansive scope. After failed attempts to resolve the disagreement, the defendants filed amotion for the court to determine the submission of issues to arbitration.

After hearing argument, the court denied the motion on the ground that the arbitration clause constituted an “unrestricted submission,” such that the authority to determine the issues to be submitted to arbitration rested with the arbitration panel, not the court. This appeal followed.

The sole issue on appeal is whether the court improperly determined that the language of the arbitration clause compelled the conclusion that the arbitration panel must decide the scope of arbitrable issues.

It is a long-standing principle of consensual arbitration that the nature and scope of an arbitration panel’s authority is determined by the language of the arbitration clause. See, e.g., Garrity v. McCaskey, 223 Conn. 1, 4-5, 612 A.2d 742 (1992); International Assn. of Fire Fighters, Local 1339, AFL-CIO v. Waterbury, 35 Conn. App. 775, 778, 647 A.2d 361 (1994). In that regard, we have specifically determined that “[w]hether a particular dispute is arbitrable is a question for the court, unless, by appropriate language, the parties have agreed to arbitrate that question, also. . . . Whether the parties intended to submit the issue of arbitrability . . . to an arbitrator clearly depends on the parties’ intent. Whether the parties intended to arbitrate the issue of arbitrability may be determined from an express provision to that effect or from the use of broad terms. . . . Unless the agreement shows such intent, the determination of the question of arbitrability remains a function of the court.” (Citations omitted; internal quotation marks omitted.) Scinto v. Sosin, 51 Conn. App. 222, 227-28, 721 A.2d 552 (1998), cert. denied, 247 Conn. 963, 724 A.2d 1125 (1999).

The arbitration clause at issue in the present appeal provides that “[a]ny dispute, difference, disagreement, or controversy among the Partners arising out of or in connection with the Partnership or the interpretation of the meaning or construction of the Agreement, shall be referred to a board composed of one lawyer and one accountant agreed upon by the parties to such dispute. Such arbitration shall take place in New Haven, Connecticut, unless otherwise agreed upon by all of the parties. Every award or determination therein shall be final and binding upon all of the parties and the Partnership. There shall be no appeal from such award or determination and judgment thereon may be entered in any court [of] competent jurisdiction.”

In addition to defining broadly the scope of arbitration by use of the expansive prefatory phrase, “[a]ny dispute, difference, disagreement, or controversy among the Partners,” the clause expressly reserves to the panel the authority to decide any dispute arising out of “the interpretation of the meaning or construction of the Agreement . . . .” The issue of arbitrability arises directly from the interpretation of the meaning of the arbitration clause contained in the parties’ agreement. The terms of the clause, therefore, mandate that the issue of arbitrability be determined by the panel.

As we noted in Scinto, the “general rule” that arbitrability is determined by the court can be overcome if the parties manifest an intent to do so. See Scinto v. Sosin, supra, 51 Conn. App. 227-28. The language of the clause in the present case manifests an intent sufficient to overcome the general rale. We accordingly affirm the judgment of the trial court.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are Larry Lupone, as an individual and as a partner of Lupone Associates Limited Partnership, and the Lupone Associates Limited Partnership.

       The plaintiffs are Lurrae Lupone, individually, as a partner of Lupone Associates Limited Partnership, and as trustee of the Sylvio and Yetta Lupone Trusts for Marc Meyers and Jonathan Meyers, and Marc Meyers and Jonathan Meyers, individually.
      Lurrae Lupone and Larry Lupone are brother and sister, and the Meyers are Lurrae Lupone’s children.

       During the pendency of this appeal, the plaintiffs filed a motion to dismiss for lack of an appealable final judgment. We denied the motion in an order dated January 29, 2003, and further ordered that “the parties shall address in the briefs on the merits: Whether the trial court lost its authority to determine the scope of the submission once it compelled arbitration.” We concluded that the court’s denial of the motion for determination of submission was an appealable final judgment. We have determined that the court properly ruled on the issues to be submitted to arbitration. Therefore, in this case, the court had jurisdiction to rule on the issue.

       Although the clause subsequently was amended, by agreement of the parties, to provide for a three member panel and to change the manner in which selection of the panel is made, that modification does not affect our analysis in the present appeal, and we therefore refer to the original version.

       We note that our holding is consistent with our strong public policy in favor of arbitration. We have stated on numerous occasions that “[arbitration is a creature of contract and the parties themselves, by the agreement of submission, define the powers of the arbitrator. ... As the parties set the limits on the arbitrator’s powers, they are bound by the limits they have fixed.” (Citations omitted.) Board of Education v. Waterbury Teachers’ Assn., 174 Conn. 123, 127, 384 A.2d 350 (1977). Because public policy favors expeditious and autonomous alternative dispute resolution, arbitration tolerates only a minimum of judicial intrusion. See Garrity v. McCaskey, supra, 223 Conn. 4-5.


author: WEST, J.

text:
    DANIEL BERNSTEIN v. COMMISSIONER OF CORRECTION
    (AC 24021)
    Schaller, West and DiPentima, Js.

      Argued January 12
    officially released May 25, 2004

      Adam A. Laben, special public defender, for the appellant (petitioner).

      Madeline A. Melchionne, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Henri Alexandre and Steven R. Strom, assistant attorneys general, for the appellee (respondent).
   Opinion

WEST, J.

The petitioner, Daniel Bernstein, appeals from the judgment of the trial court dismissing his petition for a writ of habeas corpus. The underlying issue is whether the petitioner was denied full use of his presentence confinement credit as applied to concurrent sentences that were imposed on different dates. For the reasons set forth, we affirm in part and reverse in part the judgment of the trial court.

The following facts and procedural history are relevant to the petitioner’s appeal. The petitioner came into the custody of the respondent, the commissioner of correction, on November 23, 1999, for various crimes. On December 28, 1999, he was held in presentence confinement in lieu of bond in Docket No. CR99-78164 (New London matter). Beginning on January 10, 2000, while being held in presentence confinement on the New London matter, the petitioner began a period of pretrial confinement in lieu of bond in Docket No. CR00005560 (Waterbuiy matter). On January 20, 2000, while being held in presentence confinement on the New London and Waterbury matters, he began a period of presentence confinement in Docket No. CR00-171675 (Manchester matter). In the Manchester matter, the petitioner was sentenced on June 8, 2000, to a one year term of imprisonment. The respondent applied 140 days of presentence confinement credit, earned from January 20 to June 8, 2000, when the petitioner was held in custody for that offense, to adjust his release date to January 18, 2001.

From January 19 to April 17, 2001, he continued his presentence confinement in the New London and Waterbury matters. On April 17, 2001, the petitioner was convicted and sentenced in the Waterbury matter to a term of six years of incarceration. On May 16, 2001, he was sentenced in the New London matter to a prison term of six years to run concurrently with the Waterbury sentence.

The petitioner brought a habeas action, arguing that he was entitled to 505 days of credit in the New London matter for the period December 28, 1999, to May 16, 2001, or, in the alternative, 252 days, subtracting time served for the Manchester and Waterbury sentences. Additionally, he claimed 475 days of credit in the Waterbury matter for the period January 10, 2000, to April 17, 2001, or, in the alternative, 238 days, subtracting time served for the Manchester sentence. The court rejected those claims and dismissed his petition for a writ of habeas corpus. This appeal followed. Additional facts will be set forth as needed.

We are faced with three issues on appeal: (1) whether the court correctly held that that the petitioner did not earn presentence confinement credit while serving the Manchester and Waterbury sentences; (2) whether the court correctly held that credit used to reduce and ultimately to discharge the Manchester sentence could not also be credited to the Waterbury and New London sentences; and (3) whether the court correctly held that a prisoner serving multiple concurrent sentences imposed on different dates is not entitled to have presentence confinement credit applied to each of those sentences, when that credit represents the same period of presentence confinement.

We first note the standard of review for each of the three claims. “There are no factual issues in dispute; at issue is whether the respondent properly calculated the petitioner’s sentence .... Accordingly, [t]he conclusions reached by the trial court in its decision to dismiss the habeas petition are matters of law, subject to plenary review . . . .” (Internal quotation marks omitted.) King v. Commissioner of Correction, 80 Conn. App. 580, 584, 836 A.2d 466 (2003), cert. denied, 267 Conn. 919, 841 A.2d 1191 (2004).

I

The petitioner first claims that the court improperly deprived him of presentence confinement credit earned while he served the Manchester sentence, from June 8, 2000, to January 18, 2001, and while he served part of the Waterbury sentence, from April 17 to May 16, 2001. In other words, the petitioner argues that presentence confinement credit can be earned while actually serving a sentence. We disagree.

The petitioner could not earn presentence confinement credit while serving a sentence. By its very terms, General Statutes § 18-98d is directed at offsetting the length of a prison sentence by the period of presentence confinement. “Credits are properly applied to reduce the number of days of sentenced confinement to reflect days spent in presentence confinement . . . .’’(Emphasis added.) King v. Commissioner of Correction, supra, 80 Conn. App. 587. As a consequence, the petitioner cannot claim presentence credit for time served on the Manchester sentence, from June 8, 2000, to January 18, 2001, and on the Waterbury sentence, from April 17 to May 16, 2001.

II

The petitioner next claims that the court improperly denied him use of presentence confinement credit that he had used earlier to reduce, and ultimately to discharge, the Manchester sentence. In other words, the petitioner claims that the Waterbury and New London sentences should be reduced by the credit he earned while in custody on all three matters, from January 20 to June 8, 2000, even though it already had been applied to discharge the Manchester sentence. We disagree.

The petitioner cannot prevail on his claim. Once presentence confinement credit has been fully utilized to reduce a sentence, it cannot be applied again to reduce another sentence. Id., 586.

III

The petitioner last claims that the court improperly affirmed the respondent’s application of his presentence confinement credit, earned from December 28, 1999, to January 19, 2000, and from January 19, 2001, to April 17, 2001, against his concurrent sentences, which were imposed on different dates. A large part of the petitioner’s presentence confinement credit was earned simultaneously while he was in custody for the Waterbury and New London matters. We agree with the petitioner.

Our holding in Valle v. Commissioner of Correction, 45 Conn. App. 566, 696 A.2d 1280 (1997), rev’d on other grounds, 244 Conn. 634, 711 A.2d 722 (1998), addressed the same issue of how to apply presentence confinement credit, a large part of which was earned simultaneously for two separate offenses, toward concurrent sentences that are imposed on different dates. In Valle, the petitioner was held in presentence confinement in Docket No. CR92-133946 for a period of 253 days, from June 16,1992, to February 24,1993. Id., 567. On February 24, 1993, he was sentenced to a prison term of four years. Id. The petitioner came into custody for a second offense on June 30, 1992. Id. From June 30, 1992, to February 24, 1993, the date he was sentenced for the first offense, the petitioner was held in presentence confinement for a period of 239 days in Docket No. CR14-368284. Id., 567-68. The petitioner therefore accrued 239 days of presentence confinement credit while being held in custody in two separate cases. Id. He then was sentenced to a term of four years for the second offense on March 3, 1993, to run concurrently with the sentence that he already had been serving for one week. Id., 567-69.

In determining how to apply the earned presentence confinement credit in Valle, specifically 253 days for the first offense and 239 days for the second, we held that the respondent commissioner of correction “should have examined the pretrial confinement time under each docket pursuant to § 18-98d and then chosen as the effective release date the longer of the two sentences pursuant to [General Statutes] § 53a-38.” (Internal quotation marks omitted.) Valle v. Commissioner of Correction, supra, 45 Conn. App. 570. In other words, to determine the longer concurrent sentence, 253 days properly were subtracted from the four year sentence imposed on February 24, 1993, and 239 days properly were subtracted from the concurrent four year sentence imposed on March 3, 1993. Id. After those reductions were made, along with a proper application of good time credit to each sentence, the longer resulting sentence established the petitioner’s effective release date. Id. Our Supreme Court has recognized that “the determination of the discharge date by this method reflects a correct construction of the two applicable statutes.” (Internal quotation marks omitted.) Rivera v. Commissioner of Correction, supra, 254 Conn. 246, quoting Payton v. Albert, 209 Conn. 23, 32, 547 A.2d 1 (1988) (concerning similar problem of how to apply presentence confinement credit, much of which was earned simultaneously in custody for two separate cases, to concurrent sentences imposed on same date).

It is therefore improper to divide, as the respondent did in this case, presentence confinement credit that was earned simultaneously in two separate cases between what later became two concurrent sentences, because the resulting merger of sentences could not represent the true length of the respective concurrent sentences to be merged. A concurrent sentence, prior to merger, includes the full term of the sentence imposed, minus any presentence confinement credit earned toward it, even if simultaneously earned and applicable to another sentence.

Putting that formula to work in the present case, it is clear that the respondent failed to apply all of the petitioner’s presentence confinement credit in determining the discharge date of the merged sentence pursuant to §§ 18-98d and 53a-38 (b). The respondent should have subtracted ninety-eight days from the six year sentence imposed on April 17, 2001, and 111 days from the six year concurrent sentence imposed on May 16, 2001. When we perform those calculations, we obtain release dates of January 8, 2007, for the Waterbury sentence and January 24,2007, for the New London sentence. Because the New London sentence has the longer term to run, January 24, 2007, therefore serves as the operative release date based solely on the proper application ofpresentence confinement credit. We note that other factors within the respondent’s expertise could change that precise result. Moreover, we have not applied whatever good time credit has been earned to the concurrent sentences.

We therefore conclude that the court properly held that the petitioner could not earn presentence confinement credit during a period of time in which he was serving a sentence, nor could he make use of presentence confinement credit he had already used to reduce and to discharge a sentence. We also conclude, however, that the court improperly affirmed the respondent’s application of §§ 18-98d and 53a-38 (b). As a consequence, the petitioner was denied full use of his presentence confinement credit. Therefore, the court improperly dismissed the petition for a writ of habeas corpus.

The judgment is reversed only as to the application of presentence confinement credit against the petitioner’s concurrent sentences and the case is remanded with direction to render judgment granting the petition for a writ of habeas corpus and correctly to apply §§ 18-98d and 53a-38 (b) with respect to presentence confinement credit in accordance with this opinion; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Exhibit F, submitted at trial by the respondent, the commissioner of correction, illustrates how the petitioner’s presentence confinement credit was applied. The petitioner was held in simultaneous custody for ninety-eight days in the two cases at issue for which he later received sentences that were to be served concurrently. In determining the concurrent sentence that had the longer term to run pursuant to General Statutes §§ 18-98d and 53a-38 (b), the respondent divided the ninety-eight days of presentence confinement credit between the two sentences, as opposed to crediting each sentence with the full ninety-eight days. The respondent arrived at April 6, 2007, as the merged release date.

       General Statutes § 18-98d (a) (1) provides in relevant part: “Any person who is confined . . . under a mittimus or because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of such person’s sentence equal to the number of days which such person spent in such facility from the time such person was placed in presentence confinement to the time such person began serving the term, of imprisonment imposed-, provided (A) each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement . . . .” (Emphasis added.)

       That default rule must not be confused with the analysis in part HI in which General Statutes §§ 18-98d and 53a-38 (b) are used to determine a longer concurrent sentence. In that situation, it is permissible to apply simultaneously earned jail time credit against each concurrent sentence to determine which of the two has the longer term to run.

       See footnote 1.

       General Statutes § 53a-38 (b) provides in relevant part: “A definite sentence of imprisonment commences when the prisoner is received in the custody to which he was sentenced. Where a person is under more than one definite sentence, the sentences shall be calculated as follows: (1) If the sentences run concurrently, the terms merge in and are satisfied by dischar ge of the term which has the longest term to run . . . .”

       The respondent arrived at April 6, 2007, as the merged release date by applying only ten days of credit toward the Waterbury sentence and 101 days toward the New London sentence.

       That number represents the credit earned from January 10 to January 19, 2000, and from January 19, 2001, to April 17, 2001.

       That number represents the credit earned from December 28, 1999, to January 19, 2000, and from January 19, 2001, to April 17, 2001.


author: PER CURIAM.

text:
    CHRISTINE DEMCHAK ET AL. v. STATE OF CONNECTICUT ET AL.
    (AC 24464)
    Dranginis, DiPentima and Peters, Js.
    Argued March 23
    officially released May 25, 2004

      Michael F. O’Connor, for the appellants (plaintiffs).

      Stephen P. DelSole, with whom, on the brief, was Robert P. Murphy, for the appellee (defendant Safeco Insurance Company of America).
   Opinion

PER CURIAM.

The issues in this appeal by the plaintiff Christine Demchak from the summary judgment rendered by the trial court in favor of the defendant Safeco Insurance Company of America (Safeco) are (1) whether the defendant properly denied underinsured motorists benefits to the plaintiff because she failed to renew her insurance policy and (2) whether the plaintiff received proper notice that she was not insured. We affirm the judgment of the trial court.

Demchak and her husband, Mark Demchak, commenced a multicount action against numerous defendants for the personal injuries she sustained in a motor vehicle accident. See footnote 2. The plaintiff appeals from the judgment of the court that was rendered upon the granting of the motion for summary judgment filed by the defendant. The plaintiff claims that the granting of the motion for summary judgment was improper because (1) she did not receive notice that her insurance had been canceled, (2) Safeco did not provide timely notice of cancellation pursuant to General Statutes § 38a-343, (3) the policy at issue was a new one that required Safeco to give at least fifteen days notice of cancellation for nonpayment of premium, (4) the language of the cancellation warning did not comply with § 38a-343, (5) at short calendar, Safeco argued a legal basis for summary judgment that it had not raised initially and (6) Safeco waived its right to rely on its cancellation notice.

For the purposes of the summary judgment that was rendered in this case, the following facts, as alleged in the revised complaint, are not in dispute. On the afternoon of January 22, 2001, the plaintiff was operating her motor vehicle in Monroe when she was involved in a multivehicle accident. As a result of the accident, she sustained multiple, serious injuries that required hospitalization and extensive medical care. Linda J. Stem was an alleged negligent operator of one of the vehicles involved in the accident. The injuries and damages the plaintiff suffered exceeded the limits of Stem’s policy of liability insurance.

The plaintiff alleged with respect to Safeco that it had issued to her a motor vehicle insurance policy (policy) and that, on the date of the accident, the policy provided underinsured motorists coverage in the amount of $500,000 per person. The plaintiff also alleged that she had satisfied all of the terms and conditions of the policy and was, therefore, entitled to the benefits afforded under its underinsured motorists endorsement.

Safeco filed a motion for summary judgment claiming that there were no genuine issues of material fact that the policy was not in effect on the date of the accident and that it had notified the plaintiff, pursuant to § 38a-343, that it had canceled the policy. The plaintiff opposed the motion for summary judgment, claiming, in part, that there were genuine issues of material fact regarding Safeco’s notice of cancellation for nonpayment of the premium. Specifically, she claimed that Safeco’s notice of cancellation was untimely and that the language of the notice did not comport with § 38a-343. The plaintiff also alleged that Safeco’s conduct amounted to a waiver of its right to rely on the notice of cancellation and that the evidence in support of the motion for summary judgment was insufficient as to the notice of cancellation. In a reply memorandum of law, Safeco asserted a new basis for summary judgment, namely, that it was not required to provide the plaintiff with notice of cancellation because she had not accepted its offer to renew her policy. It cited Kane v. American Ins. Co., 52 Conn. App. 497, 725 A.2d 1000, aff'd, 252 Conn. 113, 743 A.2d 612 (2000), in support of its amended legal basis for summary judgment.

The parties filed no fewer than seven memoranda of law with supporting documents for the court to consider. The court heard oral arguments on the motion for summary judgment on May 5, 2003. In its memorandum of decision, the court framed the issue as whether the policy was terminated for nonpayment of monthly premiums or whether the policy was not renewed by the plaintiff and what warning, if any, Safeco was required to provide. The court concluded that the policy did not provide coverage on the date of the accident, as the policy had terminated when the plaintiff failed to renew it, despite having received appropriate notice.

Summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 17-49. Our review of the court’s granting of a motion for summary judgment is plenary. Faigel v. Fairfield University, 75 Conn. App. 37, 40, 815 A.2d 140 (2003).

On the basis of our examination of the trial court record and the briefs and arguments of the parties, we are persuaded that the judgment of the court should be affirmed. The court’s memorandum of decision fully addresses the arguments raised in the present appeal, and we adopt it as an accurate statement of the facts and the applicable law on those issues. See Demchak v. State, 48 Conn. Sup. 460, 849 A.2d 1 (2003). No useful puipose would be served for us to repeat the discussion that the court’s memorandum contains. See Norfolk & Dedham Mutual Fire Ins. Co. v. Wysocki, 243 Conn. 239, 241, 702 A.2d 638 (1997).

As to the plaintiffs claim that the court failed to address her waiver claim, our review of the court’s memorandum of decision discloses that the court was aware of the plaintiff’s waiver argument, but declined to consider it because the issue was not briefed adequately. On appeal, the plaintiff has argued that she adequately raised her claim in a memorandum of law dated October 23, 2002. We carefully have reviewed the court file and cannot find a memorandum of law bearing that date. The court’s docket sheet does not contain a filing by the plaintiff on or about that date. Although the plaintiff attempts to support her argument that the court failed to consider her claim by referring to the October 23, 2002 memorandum of law, she failed to include it in the appendix to her appellate brief. See Practice Book §§ 67-4 and 67-8. We, thus, decline to consider the issue. See Practice Book §§ 60-5 and 61-10.

The judgment is affirmed.

       The plaintiff Mark Demchak is not involved in this appeal because the summary judgment in favor of Safeco Insurance Company of America does not implicate his loss of consortium claim. We therefore refer to Christine Demchak as the plaintiff.

       The other defendants who are not parties to this appeal are the state of Connecticut, Linda J. Stem, Martin S. Stem, John F. McFadden, Laidlaw Transit, Inc., the town of Monroe and David Solek.

       The record demonstrates that Safeco raised its amended basis for summary judgment prior to oral argument in the trial court. On appeal, we are uncertain of the substance of the plaintiffs claim that Safeco made a legal argument during the short calendar hearing that it had not raised initially. She cannot claim lack of notice because the facts clearly indicate that Safeco had informed her of the alternate legal basis for its motion for summary judgment. The plaintiff has not cited any law, and we know of none, that a party may not offer an alternative basis on which a court may base its decision, even if it is contrary to what was asserted initially.


author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. EARL GRANT
    (AC 23215)
    Lavery, C. J., and Flynn and McLachlan, Js.

      Argued February 18
    officially released May 25, 2004

      Richard E. Condon, Jr., assistant public defender, for the appellant (defendant).

      AnnemarieL. Braun, special deputy assistant state’s attorney, with whom were James E. Thomas, state’s attorney, and, on the brief, Robin Cutuli, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Earl Grant, appeals from the judgments of conviction, rendered after a jury trial, of “age differential” sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). He also appeals from the judgments, rendered after a trial to the court, finding him guilty of violation of probation in violation of General Statutes § 53a-32. The defendant also was charged with, but found not guilty of, the following charges: forcible sexual assault in the first degree in violation of § 53a-70 (a) (1) and attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-70 (a) (1) and 53a-49.

On appeal, the defendant claims that the trial court (1) abused its discretion by permitting the state to amend the information, after trial had commenced, to expand the time frame of the charge of “age differential” sexual assault and (2) denied the defendant his constitutional right to effective assistance of counsel by failing to undertake an adequate inquiry into the defendant’s complaints regarding his counsel’s representation. We conclude that although the defendant has shown that a substantial right was affected by the court’s allowing the amendment to the information, he has not shown the required harm to warrant reversal of the judgments. We further conclude that the court did not have a sua sponte duty to inquire into the effectiveness of the defendant’s counsel. Accordingly, we affirm the judgments of the trial court.

The following facts are pertinent to our review. After arraignment, the defendant made a written motion to dismiss his first counsel. This motion was granted. The court appointed new counsel for the defendant, who represented him through the remaining proceedings. At both a pretrial hearing and during jury selection, the defendant made an oral motion to dismiss his second counsel. After inquiring into the defendant’s reasons and finding them baseless, the court denied both motions.

The trial then proceeded. The child victim, who was the only person who witnessed the charged illegal activities, testified for the state but was not cross-examined by the defendant. After her testimony, the state petitioned the court to allow an amendment to the information. The last information filed prior to trial stated that the crime of age differential sexual assault under § 53a-70 (a) (2) had occurred on or about December, 2000, and the crime of forcible sexual assault under § 53a-70 (a) (1) had occurred on or about January 24, 2000 through January 31, 2001. The state requested that the information be amended to expand by eleven months the time frame of the charged age differential sexual assault from “on or about December 2000” to “diverse dates from January 24, 2000 through January 31, 2001” to conform to the victim’s testimony. The new time frame coincided with the dates of the offense of forcible sexual assault already alleged in the charging document. The prosecutor stated in relevant part that “[t]he reason for the amended information is that it’s amended to comply with the testimony. It was expected that the victim would recall a specific incident in December, 2000. She testified that ... no particular [date] stands out in her mind, that they all occurred over the course of time between January 24, 2000, and January 31, 2001. . . . December, 2000, does occur within that time frame.”

When arguing in favor of the amendment, the prosecutor stated in relevant part: “And as far as notice . . . there is no way that [the defendant] can claim that there has not been notice of that because it’s the same conduct; it’s the same offense. All along, the allegation has been that it has been a history of sexual assault from the time she was eleven in the middle of the fifth grade . . . until she told her mother on January 31, 2001. Certainly, there was notice that she was under the age of thirteen at that time; she said she was eleven. She did not turn thirteen until last week, and certainly there is notice that the defendant is more than two years older than she is.”

The defendant objected to the amendment to the information. His counsel stated: “Your Honor, the state certainly had its witness. The state prepared the case. The state was preparing its witness as late as yesterday morning, yet we had no change in information until after the witness testified. The state had every opportunity to make any amendment to the information before the commencement of evidence. Obviously, we prepared our case based upon what the state did allege in its information, and this is a substantial departure in that.

“As Your Honor pointed out, count two requires proof of force. We were aware that for one year ... if there was proof of force, my client would be in jeopardy. Count one alleged one period of approximately one month in which my client would be in jeopardy for the alleged acts with a person under the age of thirteen years. Expanding from a one month period to a one year period is far too expansive when there has been no indication that there was difficulty communicating with the witness, that there was difficulty obtaining the witness. There have been no difficulties with the witness that are unusual in this circumstance, Your Honor. I don’t believe the state has met its burden unless it could show something to that effect.”

The court ruled in the state’s favor, stating: “[I]n my experience, the young lady turned thirteen two and one-half weeks ago and is in court to testily against [the defendant] while he sits there. And there are inherent difficulties in communicating with such witnesses and there are inherent difficulties in their testifying in court. And yesterday, the state had anticipated that [the victim’s] mother would be able to be with her and, of course, you objected because her mother was a witness, rightfully so. And one has to take into consideration the age and the relationships here. I mean, this is not like putting Doctor Lee on the [witness] stand and you get up and ask him two questions and you can sit down and he’ll testify for an horn. And then you get up and ask him another question and, you know, this is not a professional kind of a — kind of a witness.

“The question here is, to my mind, are any new offenses charged? No new factual offenses are charged. The same factual offenses are being gone over, just under a different additional theory. . . . It’s sort of a different method of committing the same crime between the same defendant and victim, during the same time period that he is already on notice for on the other count, at the same house, in the same town. They are the same acts. They are only differentiated because there are different methods of viewing them within the criminal law. He was on notice of acts being committed, same date, same acts, same victim, same place.

“I think he has sufficient notice. He hasn’t testified yet. If you decide that you would like, after consulting with your client, to change your decision, I will recall the complainant to the [witness] stand, and you can cross-examine her if you so choose. But on the basis of this, I’m going to allow the substituted information. You may have an exception.” The defendant chose not to cross-examine the victim.

Later, during a read-back of the victim’s testimony to the jury, the defendant made an outburst and told the court that he had asked his counsel to cross-examine the victim. The court stated that it would look into the matter at a later time. Neither the defendant nor his counsel addressed this issue to the court again.

At the sentencing hearing, the court was informed that the defendant had filed a grievance against his counsel and that he believed that this action effectively dismissed his counsel. Defense counsel stated that he had explained to his client that he still represented him. No objection to defense counsel’s continued representation was made at this time, and no motion to dismiss or withdraw was filed with the court. During the hearing, the court gave the defendant one last chance to object to his counsel, stating: “Now, I know you had some feelings in that area. If you wish to express them, now is the time because this is the last . . . time I will be handling this.” The defendant remained silent on the issue of his counsel's representation.

I

We first address the defendant’s claim that the court improperly allowed the state to amend the information, after trial had commenced, to expand the time frame of the charged age differential sexual assault in violation of Practice Book § 36-18. “On appeal, our review [standard] of the court’s decision to permit an amendment to the information is one of abuse of discretion.” State v. Caracoglia, 78 Conn. App. 98, 101, 826 A.2d 192, cert. denied, 266 Conn. 903, 832 A.2d 65 (2003).

“Before a trial begins, the state has broad authority to amend an information pursuant to Practice Book § 36-17. Once the trial has started, however, the prosecutor is constrained by the provisions of Practice Book § 36-18.” State v. Wilson F., 77 Conn. App. 405, 411, 823 A.2d 406, cert. denied, 265 Conn. 905, 831 A.2d 254 (2003). Practice Book § 36-18 provides in relevant part: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced . . . .”

“If the state seeks to amend charges after the commencement of trial, it shoulders the burden of establishing that no substantive rights of the defendant would be prejudiced. . . . Like any other party petitioning the court, the state must demonstrate the basis for its request. Under [Practice Book § 36-18], the state must show: (1) good cause for the amendment; (2) that no additional or different offense is charged; and (3) that no substantive right of the defendant will be prejudiced. This allocation of burden encourages the state to prepare its case carefully because it bears the burden of justifying subsequent adjustments.” (Citation omitted; internal quotation marks omitted.) State v. Wilson F., supra, 77 Conn. App. 412-13.

We conclude that by virtue of the change from the anticipated testimony of the victim, which occurred at trial, the state showed good cause sufficient to meet the first prong of Practice Book § 36-18. The second prong was satisfied in that no new charge or different charge was alleged in the amendment.

We now address the third prong, which requires that an amendment made after trial has commenced not “prejudice” any “substantive right of the defendant.” This formulaic phrase requiring that there be no prejudice to substantive rights has been used consistently in our case law. We find no definition of the term substantive right in any of these repeated expressions of this phrase in this context.

We therefore look to Black’s Law Dictionary, which defines a “substantive right” as “[a] right to the equal enjoyment of fundamental rights, privileges and immunities”; Black’s Law Dictionary (6th Ed. 1990); or “a right that can be protected or enforced by law.” Black’s Law Dictionary (7th Ed. 1999). Fundamental rights have been defined as those rights that originate from and are explicitly or implicitly guaranteed by the federal constitution. See Zapata v. Burns, 207 Conn. 496, 506, 542 A.2d 700 (1988); Black’s Law Dictionary (6th Ed. 1990). We conclude that “[t]he constitutional right to be informed of the nature and cause of the accusation entitles the defendant to insist the indictment apprise him of the crime charged with such reasonable certainty that he can make his defense and protect himself after judgment against prosecution on the same charge.” The Constitution of the United States of America: Analysis and Interpretation (J. Killian & L. Beck eds., 1987) p. 1349, citing Bartell v. United States, 227 U.S. 427, 33 S. Ct. 383, 57 L. Ed. 583 (1913), Burton v. United States, 202 U.S. 344, 26 S. Ct. 688, 50 L. Ed. 1057 (1906), and United States v. Simmons, 96 U.S. 360, 24 L. Ed. 819 (1878).

Although the state has a duty to inform a defendant, within reasonable limits, of the time the offense charged was alleged to have been committed, it does not have a duty to disclose information that it does not have and could not obtain. See State v. Vumback, 263 Conn. 215, 224-25, 819 A.2d 250 (2003). The defendant argues that a violation of the substantive right to be informed of the charges against him occurred when the court allowed the state to amend the information. In his brief, he claims that “the amendment prejudiced his ability to defend against the charge. It is established that, for the purpose of Practice Book § 36-18 [in determining whether an amendment to the information should be permitted], ‘the decisive question is whether the defendant was informed of the charges with sufficient precision to be able to prepare an adequate defense.’ State v. Tanzella, [226 Conn. 601, 608, 628 A.2d 973 (1993)]. The amendment [offered after the victim’s testimony] materially modified the charge based on evidence concerning [one] specific incident occurring ‘on or about December, 2000,’ to continuous sexual assaults occurring on diverse dates ‘from January 24, 2000, [through] January 31, 2001.’ The expansion from a month to more than a year is, standing alone, a substantial departure from the prior information. . . . [T]he count at issue read as if it were charging a single incident during the month time frame of December, 2000. By way of the substitute information, the charge transformed into multiple sexual assaults over the course of more than a year . . . .” (Citation omitted.)

The principal question in this case is whether amending the information to conform to the evidence near the end of a short trial prejudiced the defendant’s substantive right to be informed of the nature and cause of the crimes for which he was charged. After a careful review of the informations for both forms of sexual assault in the first degree alleged at the commencement of trial and as amended after the victim’s direct testimony, we conclude that the defendant’s substantive right to notice of the charges against him was not violated.

In State v. Wilson F., supra, 77 Conn. App. 412, we determined that “[t]he trial court may permit the state, after the start of the trial, to file an amended information to conform to the evidence. . . . The order of the trial court allowing the filing of such an amendment to conform to the evidence is generally within its sound discretion . . . .” (Internal quotation marks omitted.) In making its determination, the court may consider such facts as the age of the victim at the time of the assaults, the age of the victim at the time of trial and the victim’s testimony at trial concerning dates of the assaults. Id., 412-15. The evidence presented in this case was that the assaults commenced when the child was eleven years old.

The court clearly took these factors into consideration when making its decision. It stated that “[i]n my experience, the young lady turned thirteen two and one-half weeks ago and is in court to testify against [the defendant] while he sits there. And there are inherent difficulties in communicating with such witnesses, and there are inherent difficulties in their testifying in court. And yesterday, the state had anticipated that [the victim’s] mother would be able to be with her and, of course, you objected because her mother was a witness, rightfully so. And one has to take into consideration the age and the relationships here.”

“[I]t is not essential in a criminal prosecution that the crime be proved to have been committed on the precise date alleged, it being competent ordinarily for the prosecution to prove the commission of the crime charged at any time prior to the date of the complaint and within the period fixed by the [s]tatute of [limitations. . . . Thus, it is entirely proper for a court to permit an amendment or a substitute information merely to amplify or to correct the time of the commission of the offense when time is not a material ingredient of the crime charged.” (Citations omitted; internal quotation marks omitted.) State v. Ramos, 176 Conn. 275, 276-77, 407 A.2d 952 (1978).

Section 53a-70 (a), which sets out the requirements for age differential sexual assault in the first degree, 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 . . . .” Force is not a necessary element of the crime under the statute. In this case, during the year in which the amended information alleged that the assaults had occurred, the victim was younger than thirteen years of age at all times and the defendant turned thirty-seven years of age. Therefore, although the state bore the burden of proving that the victim was younger than thirteen years of age at the time of the assaults and that the defendant was more than two years older than the victim, the change in the date of the alleged offenses did not have any effect on the proof required on those elements of the crime with which the defendant was charged.

The amendment expanded the time frame for the charged crime of age differential sexual assault to conform to the victim’s testimony. “The state does have a duty to inform a defendant, within limits, of the time an offense is believed to have occurred. . . . The state does not have a duty, however, to disclose information which the state does not have.” (Citation omitted; internal quotation marks omitted.) State v. Wilson F., supra, 77 Conn. App. 414.

“Practice Book § 36-18 is primarily a notice provision. Its purpose is to ensure that the defendant has adequate notice of the charges against which he must defend. ... It is the defendant’s burden to provide a specific showing of prejudice resulting from the state’s delay in providing notice of the charge against which [he] must defend.” (Internal quotation marks omitted.) State v. Caracoglia, supra, 78 Conn. App. 101-102. The defendant is entitled to insist that the information apprises him of the crime charged with enough certainty that he can properly prepare a defense. As the state admitted at oral argument: “[T]he purpose of alleging the date in [an] information is to give the defendant notice in order to prepare a defense to the charges. It sets the framework for him.”

Both before and after the amendment, the defendant was charged with two counts of sexual assault. One count charged commission of an age differential sexual assault pursuant to § 53a-70 (a) (2). The second count charged a violation of § 53a-70 (a) (1) and alleged that the sexual assault was committed by use of force. Although the amendment as to count one was granted near the end of the trial, the charged second count of sexual assault put the defendant on notice that he was charged with sexually assaulting the victim by compelling her to engage in sexual intercourse through the use of force on or about January 24, 2000, through January 31, 2001. We agree with the observations made by the prosecutor and the court that the defendant was on notice prior to trial that he was charged with sexually assaulting the victim on diverse dates during those times by virtue of the approximate twelve month period referenced in the second count of forcible sexual assault. Therefore, the defendant’s substantive right of notice of the charges against him was not prejudiced by the amendment.

II

The defendant next claims that the court denied him his sixth amendment constitutional right to effective assistance of counsel by failing to undertake adequate inquiry into his complaints regarding his counsel’s representation of him. Specifically, the defendant claims that the court had an obligation to inquire, sua sponte, into the effectiveness of his counsel after the defendant yelled at his attorney for failing to cross-examine the victim while the court reporter was reading back the victim’s testimony to the jury and after the defendant later filed a grievance against his attorney. We disagree.

Although the defendant does not expressly concede that his claim is unpreserved, nothing in the record indicates that an objection was made to the court’s actions at these times. Therefore, the defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “[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.” Id. Although the defendant’s claim meets Golding's first two prongs, we conclude that his claim fails because he cannot satisfy the third prong by establishing that a constitutional violation clearly exists.

“The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to [the] effective assistance of counsel.” (Internal quotation marks omitted.) State v. Drakeford, 261 Conn. 420, 426-27, 802 A.2d 844 (2002). “Almost without exception, we have required that a claim of ineffective assistance of counsel must be raised by way of habeas corpus, rather than by direct appeal, because of the need for a full evidentiary record for such [a] claim. . . . On the rare occasions that we have addressed an ineffective assistance of counsel claim on direct appeal, we have limited our review to allegations that the defendant’s sixth amendment rights had been jeopardized by the actions of the trial court, rather than by those of his counsel.” (Emphasis in original; internal quotation marks omitted.) State v. Vega, 259 Conn. 374, 385, 788 A.2d 1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002).

“[A] trial court has a responsibility to inquire into and to evaluate carefully all substantial complaints concerning court-appointed counsel .... The extent of the inquiry, however, lies within the discretion of the trial court. ... A trial court does not abuse its discretion by failing to make further inquiry where the defendant has already had an adequate opportunity to inform the trial court of his complaints.” (Citations omitted; internal quotation marks omitted.) State v. Ruffin, 48 Conn. App. 504, 514, 710 A.2d 1381, cert. denied, 245 Conn. 910, 718 A.2d 18 (1998). “In the absence of an affirmative duty by the trial court to inquire, however, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his [or her] lawyer’s performance in order to obtain reversal of his [or her] conviction. . . . Before the trial court is charged with a duty to inquire, the evidence of a specific [problem in the defendant’s counsel’s representation] must be sufficient to alert a reasonable trial judge that the defendant’s sixth amendment right to effective assistance of counsel is in jeopardy.” (Citation omitted; internal quotation marks omitted.) State v. Gaines, 257 Conn. 695, 708, 778 A.2d 919 (2001).

In the present case, the nature and timing of the defendant’s complaints did not require a sua sponte inquiry by the court into the effectiveness of counsel. The court already had reviewed the defendant’s previous complaints against counsel and had refused to dismiss counsel prior to trial. An outburst during jury deliberations as to trial strategy and the posttrial filing of a grievance against his counsel prior to sentencing does not trigger the need for the court to inquire into the quality of defense counsel’s representation, especially when the defendant was given a chance to formally object at sentencing and chose to remain silent. “[T]he filing of a grievance in and of itself is insufficient to establish a violation of a defendant’s sixth amendment rights.” State v. Vega, supra, 259 Conn. 388. The court may rely on the silence of the defendant and his counsel in determining whether a duty to inquire has arisen. State v. Gaines, supra, 257 Conn. 708. In addition, the defendant has not shown that there was an actual conflict of interest that denied him a fair trial. Therefore, we must conclude that the defendant’s claim fails because he cannot satisfy Golding’s third prong.

Although the defendant also requests plain error review of his claim, such review is not warranted.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state argues that the defendant’s claim is unpreserved because he did not expressly raise it at trial. After review of the transcript, we have determined that “[although the defendant’s objections . . . failed to incorporate the specific language that he now uses on appeal, the objections were succinct and adequately alerted the trial court to the basis of [his] objection. We conclude that the trial court and the state were fairly put on notice of the basis for the defendant’s objections . . . and that . . . the defendant’s claim [was] adequately preserved.” (Citation omitted; internal quotation marks omitted.) State v. Paulino, 223 Conn. 461, 476-77, 613 A.2d 720 (1992).

       “The state’s right to amend must be limited to substitutions that do not charge the defendant with an additional or different offense because the defendant has a constitutional right to fair notice, prior to the commencement of trial, of the charges against which he must defend himself. ” (Internal quotation marks omitted.) State v. Ward, 76 Conn. App. 779, 794-95, 821 A.2d 822, cert. denied, 264 Conn. 918, 826 A.2d 1160 (2003). No new offense was charged in the amended information, but there was a new allegation that the offending conduct had occurred multiple times.

       See, e.g., State v. Caracoglia, supra, 78 Conn. App. 101, 104; State v. Ward, 76 Conn. App. 779, 794-95, 821 A.2d 822, cert. denied, 264 Conn. 918, 826 A.2d 1160 (2003); State v. Carneiro, 76 Conn. App. 425, 434, 439-40, 820 A.2d 1053, cert. denied, 264 Conn. 909, 826 A.2d 180, cert. denied, 540 U.S. 915, 124 S. Ct. 304, 157 L. Ed. 2d 208 (2003); State v. Rodrigues, 69 Conn. App. 779, 795, 796 A.2d 611, cert. denied, 260 Conn. 938, 802 A.2d 91 (2002); State v. Phillips, 67 Conn. App. 535, 542-43, 787 A.2d 616 (2002); State v. Ryan, 53 Conn. App. 606, 620-22, 733 A.2d 273 (1999); State v. Morris, 49 Conn. App. 409, 416, 716 A.2d 897, cert. denied, 247 Conn. 904, 720 A.2d 516 (1998).

       “To prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Hooks, 80 Conn. App. 75, 86, 832 A.2d 690, cert. denied, 267 Conn. 908, 840 A.2d 1171 (2003).


author: HENNESSY, J.

text:
    CHRISTOPHER B. KENNEDY v. LEANNA L. KENNEDY
    (AC 24017)
    Dranginis, DiPentima and Hennessy, Js.
    Argued January 16
    officially released May 25, 2004

      Christopher B. Kennedy, pro se, the appellant (plaintiff).

      Susan Boyan, for the appellee (defendant).
   Opinion

HENNESSY, J.

The plaintiff, Christopher B. Kennedy, appeals from the judgment of the trial court modifying the custody of the parties’ minor children and from the court’s finding of contempt. On appeal, the plaintiff claims that the court improperly (1) denied his request for a continuance and (2) granted the motion filed by the defendant, Leanna L. Kennedy, to modify the award of custody. We affirm in part and reverse in part the judgment of the trial court.

The plaintiff and the defendant were manied in Connecticut in 1988. Three minor children, a boy and two girls, were bom to the parties during the years 1988, 1993 and 1996. The parties’ marriage was dissolved on May 7, 2002. Pursuant to a separation agreement, the terms of which the court incorporated into the judgment of dissolution, the parties were to maintain joint legal and physical custody of their minor children as well as a shared parenting plan. In accordance with the shared parenting plan, the children were to spend approximately 50 percent of their time with each parent. On June 18, 2002, the defendant filed a motion for a modification of custody and for support. The defendant sought sole custody of the children because, inter alia, “the shared parenting plan is not in the best interests of the children.” The defendant filed a motion for contempt on December 17,2002, alleging that the plaintiff wilfully had violated a court order directing him to provide the children with telephone access to her while in his care.

Following an evidentiary hearing, the court granted both of the defendant’s motions. The defendant thereafter was awarded sole custody “subject to reasonable rights of visitation to the plaintiff father.” The plaintiff was found in contempt of court for “wilfully [disregarding] the May 7, 2002 court order regarding telephone access.” Additional facts will be provided as necessary.

I

The plaintiff first claims that the court improperly denied his request for a continuance to retain an attorney. The following facts and procedural history are necessary to the resolution of his claim. On June 10, 2002, the defendant mailed a copy of the motion for modification, dated June 11, 2002, to the plaintiffs then attorney, James L. Katz. On June 25, 2002, the parties agreed to have the issue of custody referred to a family relations officer. That agreement was entered as a court order. On December 2, 2002, the evaluation was completed by the family relations officer and filed with the court. On December 3, 2002, the plaintiff filed a pro se appearance in lieu of Katz. On December 17, 2002, the defendant filed a motion for contempt with the court and mailed a copy to the plaintiffs home address. The motion to modify was scheduled for the court’s short calendar on January 6, 2003, and, at the short calendar, scheduled for a special hearing on February 4, 2003.

The plaintiff did not appear at short calendar on January 6, 2003, but was present at the special hearing on February 4, 2003, and represented to the court that he had received notice of the special hearing approximately one week before that date. On February 4, 2003, the defendant informed the court that the motion to modify custody had been reclaimed subsequent to the completion of the family relations evaluation, that the plaintiff had been sent copies of the reclaimed motion and that he had been told at the family relations meeting that the defendant intended to pursue the motion. The defendant also told the court that she had marled copies of the short calendar- motion to the plaintiff and had informed him that the motion would be pursued on January 6, 2003.

At the February 4, 2003 hearing, the plaintiff requested a continuance in part because he (1) “did not have notice of the motions” at issue and (2) sought time to retain an attorney to represent him. We must analyze separately whether it was improper for the court to deny his request for a continuance as to each of the motions heard on February 4, 2003. At the outset, we set forth our standard of review of a court’s decision to deny a request for a continuance. “A motion for continuance is addressed to the discretion of the trial court, and its ruling will not be overturned absent a showing of a clear abuse of that discretion. . . . The burden of proof is upon the party claiming an abuse of discretion. . . . We are especially hesitant to find an abuse of discretion when the motion is made on the day of trial. . . . Every reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made.” (Citations omitted.) Tufano v. Tufano, 18 Conn. App. 119, 123, 556 A.2d 1036 (1989).

A

On the basis of the foregoing standard, we conclude that in regard to the motion to modify custody, it was not an abuse of the court’s discretion to deny the plaintiffs motion for a continuance. The plaintiff was represented by counsel when the motion to modify custody was filed on June 18, 2001. On December 3, 2002, just two months prior to the hearing in question, the plaintiff filed a pro se appearance in lieu of that attorney. Then, on the date of the hearing, the plaintiff requested time to obtain representation. The court stated that the matter had been pending for a considerable amount of time and that the defendant was prepared and ready to proceed. We therefore cannot conclude that it was an abuse of the court’s discretion to deny the plaintiffs request for a continuance on the motion to modify custody postjudgment.

B

The denial of the plaintiffs request for a continuance to retain an attorney for assistance on the motion of civil contempt raises different concerns.

Practice Book § 25-63 provides a right to counsel in family civil contempt proceedings. We have held that a court’s failure to advise a party of the right to counsel in a contempt proceeding in which he faces potential incarceration, and in the event he is indigent, to court-appointed counsel, is fatal to the finding of contempt and any order related thereto. See Emerick v. Emerick, 28 Conn. App. 794, 800, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992). Moreover, a waiver of a right to counsel “should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear on the record.” (Internal quotation marks omitted.) Id., 799. The following additional facts are relevant.

The plaintiff requested counsel numerous times at the outset of the hearing and renewed his request during the proceeding as well. We note that although the court found that notice of the hearing was proper, the plaintiff seemed unaware that the contempt motion was being heard on February 4, 2003. Moreover, the court did not advise him of his right to counsel in a civil contempt proceeding at any point in the hearing. In addition, the court did not and could not have found a waiver of that right on the record. Moreover, the court did not remove the threat of incarceration until it made the decision to find the plaintiff in contempt. We conclude, therefore, that the court abused its discretion by denying the plaintiffs request for a continuance to obtain counsel on the matter of contempt.

II

The plaintiffs final claim is that the court improperly granted the defendant’s motion to modify custody, which he alleged was not supported by sufficient evidence to conclude that a substantial change in circumstances had occurred. We disagree.

The authority to render orders of custody and visitation is found in General Statutes § 46b-56, which provides in part: “(a) In any controversy before the Superior Court as to the custody or care of minor children . . . the court may at any time make or modify any proper order regarding . . . custody and visitation .... (b) In making or modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child . . . .” “Before a court may modify a custody order, it must find that there has been a material change in circumstance since the prior order of the court, but the ultimate test is the best interests of the child. . . . The sole question is whether the trial court abused its discretion in deciding that the best interests of the child would be served by [the modification]. The trial court [has] the advantage of observing the witnesses and the parties. Considerable evidence [normally is] presented concerning the activities of the parties since [the rendering of the original judgment]. In circumstances like these, whether the best interests of the [child] dictate a change of custody is left to the broad discretion of the trial court. ... A mere difference of opinion or judgment cannot justify the intervention of this court. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.” (Internal quotation marks omitted.) Lambert v. Donahue, 78 Conn. App. 493, 505, 827 A.2d 729 (2003).

After reviewing the court’s oral decision, we conclude that the court stated that its orders were made in accordance with the aforementioned statutory criteria. The court specifically stated in relevant part that “there is no way the shared joint custody is working in the slightest, and the children are suffering as a result of that. The parties . . . are clearly unable to agree on matters that are affecting the children’s health, their education, their extracurricular activities, their visitation, their holidays.” The court further stated that “the joint custody system . . . [has] fallen apart” and attributed “the bulk of the reason why to [the plaintiff for] being inflexible, in putting [the] children in the middle and making [the] children pawns in this custody battle.” The court found that the parties’ relationship with one another was “hostile . . . deceitful . . . manipulative, and it is leading to a situation that is not fostering a healthy environment” for the children. We conclude, therefore, on the basis of our review of the record, that the court did not abuse its discretion when it concluded that it was in the best interest of the children that sole custody be awarded to the defendant.

The judgment is reversed only as to the finding of contempt and the case is remanded with direction to vacate the contempt finding. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       In its order, the court specifically delineated the terms of the plaintiffs visitation rights.

       In response to that request, the court stated: “[T]his case has been pending since — it was first filed in April of the year 2001. Reviewing the file, you’ve had multiple attorneys representing you over the period of time. So, you clearly understand what it means to have an attorney. You last filed an appearance in lieu of attorney [James L.] Katz on December 3, 2002. You have had ample time to get an attorney if you so desired. When the scheduled date for the hearing on this matter has occurred, there’s no reason why (a) I’m going to inconvenience any of the parties who have prepared and are ready, willing and able to proceed, and (b) it does involve some serious issues and, as such, I’m not going to grant your request for you to have a continuance to obtain an attorney. You’ve had ample time to do so.”

       Although phrased as a claim of a lack of notice, the plaintiffs actual argument, before the court and on appeal, was that he needed the continuance for more time to prepare his case. The record reveals that the plaintiff argued at trial that he was aware of the motion to modify custody, but that he did not know what specific claims were made in the motion. In other words, he knew that the motion was filed, but did not know the substance of the motion and needed more time to become prepared for the hearing. We find that claim to be disingenuous because (1) service of the motion on his attorney would impute knowledge of the motion to him and (2) once he filed his appearance in lieu of Katz, he had complete access to the court file and could therefore have read the motion himself. Moreover, to the extent that he claims that he was not served properly with notice of the proceedings, the court found that he had been sent notice on January 17, 2002, and he conceded that he had received the notice. That claim, therefore, also fails to show that it was an abuse of the court’s discretion to deny his request for a continuance.

       Practice Book § 25-63 provides: “(a) A person who is before the court, in a civil contempt proceeding involving the failure to comply with the order of a judicial authority in a family matter and who faces potential incarceration shall be advised of his or her right to be represented by counsel and his or her right to court appointed counsel if he or she is indigent. If the person is unable to obtain counsel by reason of his or her indigency he or she shall have counsel appointed to represent him or her unless:
      “(1) He or she waives such appointment pursuant to Section 25-64; or
      “(2) At the time of the application for the appointment of counsel, the judicial authority eliminates incarceration as a possible result of the proceeding and malees a statement to that effect on the record.
      “(b) The person shall be further advised that no person shall continue to be detained in a correctional facility pursuant to an order of civil contempt for longer than thirty days, unless at the expiration of such thirty days he or she is presented to the judicial authority. On each such presentment, the contemnor shall be given an opportunity to purge himself or herself of the contempt by compliance with the order of the judicial authority. If the contemnor does not so act, the judicial authority may direct that the contemnor remain in custody under the terms of the order of the judicial authority then in effect, or may modify the order if the interests of justice so dictate.
      “(c) Any attorney appointed to represent the contemnor shall represent such contemnor only on the contempt, and shall not be appointed for any other purpose.”

       Practice Book § 25-64 provides: “A person shall be permitted to waive his or her right to counsel and shall be permitted to represent himself or herself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the person:
      “(1) Has been clearly advised of his or her right to the assistance of counsel, including his or her right to the assignment of counsel when he or she is so entitled;

        “(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent himself or herself;
      “(3) Comprehends the nature of the proceedings, the range of permissible sanctions and any additional facts essential to a broad understanding of the case; and
      “(4) Has been made aware of the risks and disadvantages of self-representation.”

       The following colloquy occurred:
      “[The Plaintiff]: Oh, the contempt is included in this?
      “The Court: Yes. '
      “[The Plaintiff]: Oh, I’m sorry, Your Honor. I thought we were focused—
      “The Court: That’s what we said.
      “[The Plaintiff]: Oh, I didn’t realize that we were pursuing the contempt.
      I thought it was just the sole custody and support—
      “The Court: Well, you should have been aware because we went over it in great detail beforehand.
      “[The Plaintiff]: I thought it was only—
      “The Court: And you cross-examined on it on numerous occasions, in talking about the issue of the telephone access.
      “[The Plaintiff]: The telephone access, only as it pertains to the sole custody. I didn’t realize it was an issue in itself, but I will continue.
      “The Court: Well, that was the motion of the contempt that you said you never got, that I had the clerk photostat a copy of and give it to you.”

       Although the court found that the plaintiff understood what it meant to have an attorney, that determination was based on the court’s observation that the plaintiff had been represented by counsel in the past and not on the basis of an inquiry as required by our rules of practice. See footnote 2.

       We note that a matter of concern to this court is the absence of independent counsel acting on behalf of the minor children in what was clearly an embattled custody dispute. “The puipose of appointing counsel for a minor child in a [custody matter] is to ensure independent representation of the child’s interest and such representation must be entrusted to the professional judgment of appointed counsel within the usual constraints applicable to such representation. . . . Whenever child custody is seriously.contested, it is preferable to appoint independent counsel. . . . Generally, appointment of counsel for minor children rests within the discretion of the court . . . [and] the failure of the court to appoint an attorney [generally is] not such a clear abuse of discretion that [a party] would be entitled to reversal on that ground. Kearney v. State, [174 Conn. 244, 251, 386 A.2d 223 (1978)].” (Citations omitted; internal quotation marks omitted.) Lambert v. Donahue, supra, 78 Conn. App. 503. Neither party, however, presented anything on appeal from which we could conclude that the court clearly abused its discretion by not appointing an attorney for the children in this matter.