author: FLYNN, J.

text:
    DARIO BERTOTTI v. COMMISSIONER OF CORRECTION
    (AC 31993)
    Gruendel, Beach and Flynn, Js.
    Argued April 16
    officially released June 26, 2012

      David B. Rozwaski, special public defender, for the appellant (petitioner).

      Timothy F. Costello, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Kelly A. Masi, assistant state’s attorney, for the appellee (respondent).
   Opinion

FLYNN, J.

The petitioner, Dario Bertotti, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims the court (1) abused its discretion in denying his petition for certification to appeal and (2) committed error in denying his petition for a writ of habeas corpus. In support of his second claim, the petitioner alleges that his court-appointed counsel, Claud Chong, was ineffective. We dismiss the petitioner’s appeal.

The following facts and procedural history inform our review. It is not disputed that the petitioner robbed a New Alliance bank in Wethersfield in 2004. After a jury trial, he was found guilty of robbery in the second degree in violation of General Statutes § 53a-135 (a) (2) and larceny in the third degree in violation of General Statutes § 53a-124 (a) (2). He was sentenced to twelve years to serve followed by two years of special parole. He did not file a direct appeal. He asked for review of the sentence before the sentence review division of the Superior Court, but received no relief. The petitioner then filed this petition. It arises out of a claim of ineffective assistance of trial counsel, which he claims led to his rejection of a plea offer of eight years imprisonment. The habeas court heard testimony from Chong offered by the respondent, the commissioner of correction, and from the petitioner, his sister and a social worker experienced with drug abuse. The court found Chong’s version of events credible and denied the petition. The court also denied the petitioner’s request for certification to appeal. This appeal followed.

“Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). “A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason . . . [the] court could resolve the issues [in a different manner] . . . or . . . the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 564, 941 A.2d 248 (2008), quoting Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

“In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review the petitioner’s substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria identified in Lozada and adopted by this court for determining the propriety of the habeas court’s denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed.” Taylor v. Commissioner of Correction, 284 Conn. 433, 449, 936 A.2d 611 (2007).

In reviewing a habeas appeal, we cannot disturb the facts found by the habeas court unless they are clearly erroneous. Our review of whether the facts found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of his legal counsel, however, is plenary. See Phillips v. Warden, 220 Conn. 112, 131, 595 A.2d 1356 (1991).

“A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice. . . . For ineffectiveness claims resulting from guilty verdicts, we apply the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Levine v. Manson, 195 Conn. 636, 639-40, 490 A.2d 82 (1985).” Ricks v. Commissioner of Correction, 98 Conn. App. 497, 502, 909 A.2d 567 (2006), cert. denied, 281 Conn. 907, 916 A.2d 49 (2007). “Under Strickland, it is not sufficient to find that counsel rendered ineffective assistance; rather, the court also must find that the petitioner was prejudiced by that action. To satisfy Strickland . . . the petitioner [must] show that he would have accepted the offer and that the court would have rendered judgment in accordance with that offer. See Cimino v. Robinson, 6 Conn. App. 680, 683, 507 A.2d 486, cert. denied, 200 Conn. 802, 509 A.2d 517 (1986).” Sanders v. Commissioner of Correction, 83 Conn. App. 543, 552, 851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004); see Missouri v. Frye, U.S. , 132 S. Ct. 1399, 1409, 182 L. Ed. 2d 379 (2012). We now examine the petitioner’s underlying claims of ineffective assistance of counsel to determine whether the court abused its discretion in denying the petition for certification to appeal.

The petitioner’s claims, as to the eight year plea offer and filing of a direct appeal, depend entirely on the habeas court’s determinations on credibility to which, on appeal, we defer.

We first turn to the petitioner’s claim that the habeas court committed error in denying his writ of habeas corpus. The petitioner claims that he received constitutionally ineffective counsel from Chong arising out of (1) rejection of a favorable plea offer, (2) failing to perfect and file a direct appeal on the petitioner’s behalf and (3) failing to present evidence from his social worker concerning an intoxication defense arising out of the petitioner’s drug dependency.

We next address the petitioner’s claim that Chong’s rejection of a favorable plea offer constituted ineffective assistance of counsel. The court found that it was the petitioner who rejected the offer and that the case against the petitioner was strong. He admitted to police that he had robbed the bank with a gun, directed them to the place where he had secured some of the cash taken and was shown on surveillance tapes committing the robbery. Chong testified before the habeas court that he communicated to the petitioner the state’s plea offer of eight years incarceration on a split sentence, but that the petitioner rejected this offer claiming, inter alia, that he should receive no more than five years because of his cooperation with the police and that he hoped for a better sentence after trial. The court believed Chong, despite the petitioner’s contrary testimony and that of his sister, who both claimed that Chong recommended rejecting the plea offer. The court found that the petitioner, contrary to Chong’s advice that the state had a strong case and that the petitioner should accept the state’s offer, rejected the state’s eight year pretrial offer. In view of the habeas court’s factual findings, which the petitioner has not shown to be clearly erroneous, we reject this claim.

The petitioner’s second claim that Chong was ineffective in not perfecting a direct appeal also fails. The habeas court rejected this claim also based on its credibility finding, to which we defer. The court found that it was the petitioner who rejected Chong’s advice to accept the eight year offer and go to trial. The court found that, after the petitioner’s conviction, it was the petitioner who decided not to take a direct appeal about which he had been advised. It further found that Chong fully advised the petitioner of his right to take an appeal and also specifically found that it was the length of the sentence that was of concern to the petitioner, not the fact that he was found guilty. Finally, the court found that it was the petitioner who decided to forgo an appeal and resort only to sentence review. The habeas court was entitled to credit Chong’s testimony and reject that of the petitioner and his sister. Accordingly, this claim also is without merit.

The petitioner further claims that Chong failed to investigate adequately a defense of intoxication and to present social worker Keith Osborne’s testimony in support of that defense. We disagree with the petitioner. Intoxication is not a defense to a criminal charge, but it may be offered by the defendant to negate an element of the crime charged. D. Borden & L. Orland, 10 Connecticut Practice Series: Criminal Law (2d Ed. 2007) § 53a-7, p. 16. To commit the crime of robbery in the first of second degree in violation of General Statutes §§ 53a-134 and 53a-135, the defendant must, in the course of committing a larceny, intend to use force or threaten the use of force. We observe that the petitioner did not raise before the habeas court that any further investigation of the petitioner’s drug issues was necessary nor has the petitioner provided this court with a record of what additionally should have been done. We do not entertain claims not raised before the habeas court but raised for the first time on appeal. See Copeland v. Warden, 26 Conn. App. 10, 13-14, 596 A.2d 477 (1991), aff'd, 225 Conn. 46, 621 A.2d 1311 (1993). The habeas court rejected the petitioner’s claim that Chong should have called Osborne to the stand to testily about the petitioner’s past drug abuse. The habeas court specifically found that “[a]n issue has arisen at the habeas trial that the petitioner was intoxicated at the time of the robbery and the testimony of . . . Osborne was presented to support that argument. Notwithstanding, the petitioner did not tell . . . Chong that he was intoxicated nor did he mention this in his statement given to the police. Moreover, the petitioner was driving a motor vehicle both before and after the robbery. All of this goes to significantly reduce any possibility that intoxication could have been used as a means to show that the petitioner was incapable of forming the intent to commit robbery.” Nothing in the record showed that Osborne’s testimony, although evidence of the petitioner’s drug dependency, would have established that the petitioner was intoxicated on the day of the robbery. There is a difference between being a drug-dependent person and being so intoxicated as to be incapable of forming intent.

Furthermore, as to Chong’s trial strategy concerning an intoxication defense, the habeas court specifically found that the petitioner’s conduct during and after the robbery made unlikely the possibility that intoxication could have been used successfully to show that the petitioner was incapable of formulating intent to commit robbery. Additionally, the court found no prejudice to the petitioner by any of Chong’s decisions in representing him at trial. The court specifically cited the petitioner’s admission to the robbery, appearance on videotapes committing it and knowledge of the hiding place of the money.

The petitioner also alleges that the court abused its discretion in denying the petition for certification to appeal. Suffice to say, that after a careful review of the record and the court’s findings, we conclude that the petitioner has failed in his burden to show that the issues are debatable among jurists of reason, or that the court could resolve the issues differently or that the legal issues he raises deserve encouragement to proceed further.

For all these reasons, the appeal is dismissed.

In this opinion the other judges concurred.

       The United States Supreme Court decided two cases concerning ineffective assistance of counsel while this appeal was pending. We think that neither case should alter the court’s judgments. Missouri v. Frye, U.S. , 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012), determined that defense counsel must meet responsibilities in the plea bargain process to render the adequate assistance of counsel that the sixth amendment requires at a critical stage of the proceeding. In Lafler v. Cooper, U.S. , 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012), a plea agreement was rejected resulting in a sentence 3.5 times greater after trial than the defendant would have received under the plea. Citing Frye, the court noted the criminal justice system is, for the most part, a system of pleas, not a system of trials; it rejected the notion that a fair trial wipes clean any deficient performance by defense counsel during plea bargaining. Id., 1388. In Lafler, counsel had incorrectly advised the defendant about a legal rule. Id., 1384. In Frye, counsel’s deficient performance caused the defendant prejudice because he had pleaded guilty to a felony rather than a misdemeanor. Missouri v. Frye, supra, 132 S. Ct. 1405.
      In the case before us, the habeas court, based on its credibility finding, did not find any failure by Chong to communicate the eight year plea offer to the petitioner, nor did it find any mistaken advice as to any legal rule. Nor did it find that counsel’s performance prejudiced the petitioner. We therefore conclude that the court’s ruling was unaffected by Frye or Lafler.

       The court found that the petitioner never told Chong that he was “intoxicated” by controlled or narcotic drugs at the time of the robbery, nor did he mention that he was intoxicated when he gave his statement to the police.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LAMBERTO LUCARELLI v. FREEDOM OF INFORMATION COMMISSION
    (AC 33799)
    Beach, Robinson and Pellegrino, Js.

      Argued April 18
    officially released June 26, 2012

      Lamberto Lucarelli, pro se, the appellant (plaintiff).

      Trade C. Brown, principal attorney, for the appel-lee (defendant).
   Opinion

PER CURIAM.

The self-represented plaintiff, Lam-berto Lucarelli, appeals from the judgment of nonsuit rendered against Mm in Ms appeal to the Superior Court from a final decision of the defendant, the freedom of information commission, and from the trial court’s subsequent orders denying Ms motion to open the judgment of nonsrnt, denying Ms motion to reargue the motion to open, finding Ms motion to disqualify the judge that rendered the judgment of nonsuit moot, and denying Ms second motion for reargument, clarification and disqualification. We construe the plaintiffs arguments on appeal as claiming that the court abused its discretion by rendering the judgment of nonsrnt and by denying Ms postjudgment motions. We affirm the judgment of the trial court.

The record reveals the following facts and procedural Mstory. In July, 2009, the plaintiff filed an admimstrative appeal with the Superior Court from a final decision of the defendant dismissing his freedom of information complaints against the police chief, police department and department of public works for the town of Old Saybrook. See Lucarelli v. Chief of Police, Town of Old Saybrook, Freedom of Information Commission, Docket No. FIC 2008-275; Lucarelli v. Dept. of Public Works, Town of Old Saybrook, Freedom of Information Commission, Docket No. FIC 2008-400. The gravamen of the appeal to the Superior Court was whether the defendant was obligated to issue subpoenas for witnesses on behalf of the plaintiff, an indigent, self-represented party. Pursuant to an agreement reached by the parties at a pretrial conference, the court, Hon. George Levine, judge trial referee, issued an April 22, 2010 order, in which it retained jurisdiction over the appeal but remanded the matter back to the defendant “for the limited purpose of permitting the plaintiff the opportunity to subpoena witnesses so that the plaintiff can present evidence to the effect that the respondent town of Old Saybrook withheld documents that were responsive to the freedom of information request, which is the subject of this appeal.” The court further ordered that, if the plaintiff prevailed on remand, it would dismiss the appeal with prejudice; however, if the new decision was unfavorable to the plaintiff, “the record [would] be supplemented with the new evidence and final decision, and the appeal [would] be back before this court.”

The defendant held the remand hearing, but the plaintiff did not subpoena any witnesses. The plaintiff believed that the agreement reached at the pretrial conference required the defendant to issue subpoenas on his behalf. After the remand hearing, the plaintiff requested that the court hold a second pretrial conference to address what he perceived as the defendant’s noncompliance with the court’s remand order. The court initially scheduled the requested pretrial conference for May 13, 2011, but later granted the defendant’s motion to continue the hearing to June 13, 2011. On June 13, 2011, the court rendered a judgment of nonsuit against the plaintiff when he failed to appear for the pretrial conference.

On June 17, 2011, the plaintiff filed a motion to open the judgment of nonsuit. The plaintiff stated in his motion that he “forgot or neglected to note the hearing date upon any calendar” because he was “preoccupied with preparing for and appearing at” other legal proceedings. The defendant objected to the motion to open, arguing that the plaintiffs lack of regard for the court and its process should not be tolerated and that the plaintiff was not likely to prevail on the merits of his appeal. The court held a hearing on the motion to open on July 8,2011. After hearing from the parties, the court denied the motion to open on the record without comment.

On July 20,2011, the plaintiff filed a combined motion for reargument and reconsideration of his motion to open and for disqualification of Judge Levine. The defendant objected to the plaintiffs motions. On July 26,2011, the court, Pittman, J., issued an order denying the motion to reargue/reconsider without comment and indicating that the motion to disqualify was moot “as a final judgment has entered in this file and this court has granted an extension of time to file an appeal.” On August 3, 2011, the plaintiff filed a motion seeking reargument, reconsideration and clarification of Judge Pittman’s orders and also seeking to disqualify Judge Pittman. Judge Pittman denied that motion without comment on August 4, 2011. This appeal followed.

The plaintiff has appealed from the court’s judgment of nonsuit rendered against him for failing to appear for a scheduled pretrial conference and from the court’s subsequent orders denying his motion to open the judgment of nonsuit, denying his motion to reargue the denial of the motion to open, determining that his motion to disqualify was moot and denying his second motion for reargument, clarification and disqualification. We apply an abuse of discretion standard of review to all of the challenged decisions; see In re Christopher C., 134 Conn. App. 464, 471, 39 A.3d 1122 (2012) (court’s ruling on motion for disqualification reviewed for abuse of discretion); Fort Trumbull Conservancy, LLC v. New London, 135 Conn. App. 167, 190, 43 A.3d 679 (2012) (court’s denial of motions to reconsider, to reargue or to open judgment reviewed for abuse of discretion); except for the court’s determination that the motion to disqualify Judge Levine was moot, over which our review is plenary. See Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 84, 942 A.2d 345 (2008) (mootness raises question of law over which we exercise plenary review).

“This court does not presume error on the part of the trial court; error must be demonstrated by an appellant on the basis of an adequate record.” State v. Tocco, 120 Conn. App. 768, 781 n.5, 993 A.2d 989, cert. denied, 297 Conn. 917, 996 A.2d 279 (2010). As previously noted, although we afford self-represented parties some latitude, “the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Internal quotation marks omitted.) Keating v. Ferrandino, 125 Conn. App. 601, 604, 10 A.3d 69 (2010). Accordingly, as the appellant, it was the plaintiffs burden to provide this court with an adequate record to review his claims on appeal. See Practice Book § 61-10.

In order to determine whether the court abused its discretion, we first need to know the basis for the court’s decisions. The court did not file any memoranda of decision or otherwise state on the record the factual or legal basis for the various decisions the plaintiff challenges on appeal. The plaintiff, in turn, did not follow procedures to compel the court’s compliance with Practice Book § 64-1, where applicable; see Practice Book § 64-1 (b); nor did he move the court to articulate the basis for its decisions pursuant to Practice Book § 66-5. Without any articulation of the basis for the court’s decisions, we are left to guess at or to surmise the reasoning of the court. We have stated on many occasions that we will not engage in such speculation. See, e.g., Cassotto v. Thibault, 131 Conn. App. 328, 335-36, 27 A.3d 399 (2011); Bria v. Ventana Corp., 58 Conn. App. 461, 467, 755 A.2d 239 (2000). There is nothing in the record before us from which we can conclude that the court abused its discretion by rendering the judgment of nonsuit for the plaintiffs failure to appear at the pretrial conference or by later refusing to open that judgment. Likewise, the record does not support a determination that the court abused its discretion when it denied the plaintiffs motions for reargument and reconsideration of its prior rulings or the motion to disqualify Judge Pittman.

Finally, to the extent that the plaintiffs brief can be construed as raising a claim of error regarding the court’s determination that his motion to disqualify Judge Levine was moot, the plaintiff has failed to brief any such claim adequately. “We are not obligated to consider issues that are not adequately briefed. . . . [M]ere conclusory assertions regarding a claim, with no mention of relevant authority and minimal or no citations from the record, will not suffice.” (Citations omitted; internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Connecticut Siting Council, supra, 286 Conn. 87. In the present case, although the plaintiff certainly expresses general dissatisfaction with Judge Pittman’s rulings, including the determination that his motion to disqualify Judge Levine was moot, he has failed to assert how the court’s decision is erroneous or to provide any legal analysis. Accordingly, we decline to review the court’s decision.

The judgment is affirmed.

       “Although we are solicitous of the rights of [self-represented] litigants . . . [s]uch a litigant is bound by the same rules . . . and procedure as those qualified to practice law.” (Internal quotation marks omitted.) Thompson v. Rhodes, 125 Conn. App. 649, 651, 10 A.3d 537 (2010). Throughout his brief, the plaintiff states that his arguments raise “constitutional questions of due process and equal protection.” Other than frequently repeating that phrase, however, the plaintiff has not clearly set forth any specific constitutional claim or provided any factual or legal analysis based on constitutional principles. “It is well settled that [w]e are not required to review claims that are inadequately briefed. ... We consistently have held that [ajnalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited.” (Internal quotation marks omitted.) Keating v. Ferrandino, 125 Conn. App. 601, 603-604, 10 A.3d 59 (2010). “Assignments of error which are merely mentioned but not briefed beyond a mere statement of the claim will be deemed abandoned and will not be reviewed by this court. . . . This also applies to constitutional claims.” (Citations omitted; internal quotation marks omitted.) Dichello v. Holgrath Corp., 49 Conn. App. 339, 348 n.8, 715 A.2d 765 (1998). Accordingly, to the extent that the plaintiff has inadequately attempted to raise constitutional challenges to the court’s orders on appeal, we deem such claims abandoned.

       The plaintiffs request for records arose out of an incident involving the plaintiff at the Old Saybrook transfer station and his dissatisfaction with the town’s investigation of that incident.

       The court issued notices on July 8, 2011, indicating that it denied the plaintiffs motion to open and sustained the defendant’s objection to the motion to open “for reasons stated on the record.” Our review of the transcript reveals, however, that the court did not provide on the record the legal or factual basis for its decision.


author: M1HALAKOS, J.

text:
    STATE OF CONNECTICUT v. VINROY HINES
    (AC 33652)
    DiPentima, C. J., and Robinson and Mihalakos, Js.

      Argued April 25
    officially released June 26, 2012

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

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Robin D. Krawczyk, senior assistant state’s attorney, for the appellee (state).
   Opinion

M1HALAKOS, J.

The defendant, Vinroy Hines, appeals from the judgment of conviction, rendered after a jury trial, of criminal attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1), two counts of assault in the second degree in violation of General Statutes § 53a-60 (a) (2), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and criminal violation of a protective order in violation of General Statutes § 53a-223 (a). On appeal, the defendant claims that the trial court committed reversible error when it failed to provide the jury with the statutory definition of “abduct” as set forth in General Statutes § 53a-91 (2) in its instruction on the charge of kidnapping in the first degree in violation of § 53a-92 (a) (2) (A). We disagree and, accordingly, affirm the judgment of the trial court.

The record discloses the following facts and procedural history. The defendant and Denise Watson, the victim, were in a romantic relationship and had two children together. The victim and their two children resided in a family shelter in East Hartford, but often stayed with the defendant in his apartment in Bridgeport. On January 1, 2009, the defendant and his cousin, Conray Jones, arrived at the family shelter to take the victim and their children to Bridgeport. On the way to Bridgeport, the group stopped to eat at a restaurant. While sitting next to the victim in the backseat of Jones’ car, which was parked outside the restaurant, the defendant began talking to the victim and then suddenly struck her on the nose with a beer bottle. Jones then proceeded to drive the group toward Bridgeport. For the first thirty minutes of the drive, the defendant remained in the backseat with the victim and their two children, punching the victim in the head, back and shoulder. Once in the New Haven area, the defendant produced a box cutter and repeatedly stabbed the victim on various parts of her body. He put the box cutter near the victim’s face and told her that, when they arrived in Bridgeport, he would “pop off [her] head and pop off his head.”

Throughout the ride, the defendant asked Jones to pass him a knife. When Jones told the defendant that he did not have one, the defendant reached into the front of the car and opened the glove compartment in front of the passenger seat. In fear that the defendant was reaching for a knife with which to stab her, the victim slid behind the defendant and jumped out of the car, which was traveling at a speed of sixty-five miles per hour. Jones continued to drive the defendant and the children to Bridgeport. Meanwhile, the victim was rescued from the side of the road by a passing driver who drove the victim to a gas station where she called the police. The victim was taken to the hospital where she was treated for a broken nose and toe, two one-half inch lacerations on her scalp and multiple contusions and abrasions from contact with the road.

Thereafter, the defendant was arrested and charged by long form information, dated September 15, 2009, with the five aforementioned offenses, and, in addition, two counts of kidnapping in the second degree in violation of General Statutes § 53a-94 (a). On September 22, 2009, before the jury was sworn in, the court indicated to the parties that it had begun working on the jury instructions and asked the defendant if he had begun thinking about lesser included offenses. The state then presented its case-in-chief, which was completed on September 23, 2009. On that same day, the defendant filed a request to charge in regard to the two counts of kidnapping in the second degree under § 53a-94 (a) contained in the long form information. The request to charge included, inter alia, the statutory definition of “abduct.” Later that day, after the state presented its case-in-chief, the defendant moved for a judgment of acquittal as to all charged crimes. The court granted the motion with respect to the two counts of kidnapping in the second degree, but denied the motion with respect to the five remaining charges. As a result, the state filed a substitute information, dated September 24, 2009, charging the defendant with the foregoing five counts.

The defendant then presented his case, which he completed on September 24, 2009. The state indicated that it would not be presenting any rebuttal witnesses. After the closing arguments, the jury was removed from the courtroom in order for the court and the parties to review the jury instructions and make certain changes before the court presented the instruction to the jury. The court returned the jury to the courtroom and read to them the final charging instruction, including the charge of kidnapping in the first degree. The instruction on the count of kidnapping in the first degree included the elements of the crime as set forth in § 53a-92 (a) (2) (A). The court stated in relevant part: “The first element is the defendant abducted another person using or threatening to use physical force or intimidation. The defendant does not need to actually use force. He need only threaten to use force in such a manner that [the victim] reasonably believed that force would be used if she tried to escape. ... In abducting [the victim], the defendant must have specifically intended to prevent her liberation. A person acts intentionally with respect to a result when his conscious objective is to cause such result.” The court then went on to explain the second element of the crime, which, it stated, was that “the defendant abducted [the victim] with the specific intent to inflict physical injury on the person.”

The case was committed to the jury, which returned a verdict of guilty on all counts contained in the substitute information. The court rendered judgment in accordance with the jury verdict and sentenced the defendant to a total effective sentence of eighteen years in prison and seven years of special parole.

The defendant’s sole claim on appeal is that the court denied him his constitutional right to a fair trial because it did not provide the jury with the statutory definition of “abduct” when it instructed the jury on the charge of kidnapping in the first degree. The state argues that this claim is not reviewable. Because the defendant raised no objection at trial to the court’s exclusion of the statutory definition of “abduct” in the jury instruction of kidnapping in the first degree, his claim is unpreserved. The defendant asserts, however, that he is entitled to a new trial because he has satisfied the requirements of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), in which our Supreme Court has held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.)

The state argues that the defendant has failed to establish a constitutional violation under the third prong of State v. Golding, supra, 213 Conn. 239-40. To this end, the state asserts that the defendant has (1) impliedly waived his claim on appeal on the basis that the defendant failed to take exception to the jury instruction on the charge of kidnapping in the first degree despite having: (a) been on notice that the jury instruction of kidnapping in the first degree did not contain the statutory definition of “abduct” as evidenced by the fact that he reviewed the charge immediately prior to the court presenting the final instruction to the jury and (b) been aware of, and considered the statutory definition of “abduct,” as evidenced by the fact that he had, one day prior, requested the court to instruct on that definition in regard to the two counts of kidnapping in the second degree. In the alternative, the state argues that (2) if we determine that the defendant did not waive his claim of instructional error, then the defendant’s claim must fail because when the jury instructions are read as a whole, it is clear that the defendant’s due process rights were not violated by the failure of the court to provide the jury with the statutory definition of “abduct.”

We agree with the state’s argument that the defendant cannot prevail because he has failed to establish that the jury instruction delivered by the court constitutes a constitutional violation. Although we disagree with the defendant on the merits of his claim, we nonetheless agree with his position that the record is adequate for our review and that his claim is of constitutional magnitude. Accordingly, we consider his claim under our standard of review. “When reviewing [a] challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . [I]n appeals involving [an alleged] constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled. ... In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Emphasis added; internal quotation marks omitted.) State v. Reid, 254 Conn. 540, 559, 757 A.2d 482 (2000).

The jury instruction as delivered by the court fairly presented the case to the jury. The court instructed the jury on every element of the crime of kidnapping in the first degree in violation of § 53a-92 (a) (2) (A), which requires the state to prove beyond a reasonable doubt that the defendant (1) abducted and restrained the victim with (2) the intent to inflict physical injury. Under § 53a-91 (2), “abduct,” in relevant part, means “to restrain a person with intent to prevent his liberation by . . . using or threatening to use physical force or intimidation.” Although the court did not define “abduct,” the jury would have understood the meaning of the term from the instruction given by the court. The court indicated, for example, that “[i]n abducting [the victim], the defendant must have specifically intended to prevent her liberation.” The court also stated, to find the defendant guilty, the jury must find that “the defendant abducted another person using or threatening to use physical force or intimidation. The defendant does not need to actually use force. He need only threaten to use force in such a manner that [the victim] reasonably believed that force would be used if she tried to escape.” The instruction of the court, therefore, indicates that “abduct,” consistent with its statutory definition, means to prevent one’s liberation through the use of force or the threat of force or intimidation. As a result, the jury would have understood what was required, under the statutory definition, to find that the defendant had abducted the victim. Accordingly, we conclude that the jury instruction of the court on the crime of kidnapping in the first degree did not deprive the defendant of a fair trial under the third prong of State v. Golding, supra, 213 Conn. 239-40.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-91 (2) states: “ ‘Abduct’ means to restrain a person with intent to prevent his liberation by either (A) secreting or holding him in a place where he is not likely to be found, or (B) using or threatening to use physical force or intimidation.”

       General Statutes § 53a-92 (a) provides in relevant part: “A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . .”

       The defendant argues that his claim of instructional error is preserved on the basis that he filed a request to charge on two counts of the crime of kidnapping in the second degree, dated September 23, 2009, in which he expressly requested the court to instruct the jury on the statutory definition of “abduct.” This argument is unavailing. That same day, the court granted the defendant’s motion for a judgment of acquittal on the two counts of kidnapping in the second degree. Thereafter, the defendant did not indicate that the statutory definition of “abduct,” included in his request to charge in regard to the crime of kidnapping in the second degree, should be included in the court’s instruction to the jury on the charge of kidnapping in the first degree. Nor does the defendant offer any law in support of his position that a claim of instructional error can be preserved in this way. We, therefore, conclude that the defendant’s claim of instructional error on appeal was not properly preserved.

       We are not persuaded by the state’s claim that the defendant has impliedly waived his claim of instructional error on appeal. “[W]hen the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal.” State v. Kitchens, 299 Conn. 447, 482-83, 10 A.3d 942 (2011). “[A] defendant will not be deemed to have waived [an instructional] claim unless the court has provided counsel with a copy of the proposed instructions and a meaningful opportunity for review and comment, which can be determined in any given case only by a close examination of the record. The significance of a meaningful opportunity for review and comment cannot be underestimated. ” (Emphasis in the original.) Id., 495 n.28.
      Our review of the record does not indicate that there was a charge conference in which the jury instruction was discussed, but only that the court reviewed the court’s proposal of the jury instructions with the parties immediately before the instruction was given to the jury. During this time, the defendant had only a brief opportunity to except to the charge of kidnapping in the first degree on the basis that he now advances on appeal. We therefore conclude that the defendant was not given a meaningful opportunity for review and comment and that he did not waive his claim of instructional error on appeal. See id. (“[hjolding an on-the-record charge conference, and even providing counsel with an advance copy of the instructions, will not necessarily be sufficient in all cases to constitute waiver of Golding review if defense counsel has not been afforded adequate time, under the circumstances, to examine the instructions and to identify any potential flaws”); see also State v. Collins, 299 Conn. 567, 597, 10 A.3d 1005, cert. denied, U.S. , 132 S. Ct. 314, 181 L. Ed. 2d 193 (2011).


author: BEAR, J.

text:
    STATE OF CONNECTICUT v. SHAMON CLARK
    (AC 33404)
    Beach, Bear and Espinosa, Js.
    Argued April 26
    officially released June 26, 2012

      Deborah G. Stevenson, special public defender, for the appellant (defendant).

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

BEAR, J.

The defendant, Shamon Clark, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant claims that the court “abused its discretion and committed plain error in denying the defendant’s motion to correct an illegal sentence, when the record shows that, in violation of the defendant’s [constitutional right to due process, the [sentencing] court imposed a sentence different from that which was the subject of the plea agreement but did not inform the defendant that he could withdraw his plea and did not allow him to do so, thus rendering the plea unknowing and involuntary, and void ab initio.” We conclude that the court was without subject matter jurisdiction to hear this motion and, accordingly, reverse the judgment of the trial court and remand the case with direction that the motion be dismissed.

The record reveals the following relevant facts. On November 16, 2006, the state and the defendant entered into a plea agreement that allowed the defendant to entered an Alford plea to one count of possession of narcotics in violation of General Statutes § 21a-279 (a) and one count of conspiracy to sell narcotics by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 and 21a-278 (b) in exchange for a sentence of eighteen years imprisonment, execution suspended after six and one-half years, with five years probation. The state informed the sentencing court of the plea agreement, and the sentencing court thoroughly canvassed the defendant to ensure that his plea was knowing and voluntary before the court accepted the plea. Upon the request of the defendant, the court delayed sentencing and permitted the defendant to remain free during the holiday season subject to certain conditions, including the condition that he not engage in any further criminal activity supported by probable cause, in accordance with State v. Garvin, 242 Conn. 296, 300-302, 699 A.2d 921 (1997). The court explained to the defendant that if he violated any of the conditions of this agreement, the court would not be obligated to accept the state’s recommended sentence and could impose the maximum sentence, namely, twenty-seven years imprisonment, for the crimes to which the defendant pleaded guilty.

On December 6, 2006, the defendant breached the Garvin agreement by possessing drugs, an AK-47 rifle and a bulletproof vest. On February 9, 2007, the court sentenced the defendant to a term of eighteen years imprisonment, execution suspended after twelve years, with five years probation. On October 8,2010, the defendant filed a motion to correct an illegal sentence pursuant to Practice Book § 43-22, which the court denied. This appeal followed.

On appeal, the defendant claims that the trial court improperly denied his motion to correct an illegal sentence because the sentencing court had violated several sections of our rules of practice by failing to inform him that he could withdraw his guilty plea if he violated the Garvin agreement by imposing a harsher sentence than the one to which the defendant had agreed. He argues that this error by the sentencing court rendered his plea “unknowing and involuntary, and void ab initio.” On appeal, he requests that we reverse the judgment of the trial court and remand the matter to enable him to withdraw his plea and elect a new trial. The state argues that the trial court should have dismissed the defendant’s motion for lack of jurisdiction because the defendant was attacking the validity of his plea not the legality of his sentence. We agree with the state.

“In the absence of statutory or constitutional provisions, the limits of [the trial court’s] jurisdiction are delineated by the common law. . . . Although the [trial] court loses jurisdiction over the case when [a] defendant is committed to the custody of the commissioner of correction and begins serving [his] sentence [Practice Book] § 43-22 embodies a common-law exception that permits the trial court to correct an illegal sentence or other illegal disposition [or it may correct a sentence imposed in an illegal manner]. . . . Thus, if the defendant cannot demonstrate that his motion to correct falls within the purview of [Practice Book] § 43-22, the court lacks jurisdiction to entertain it. . . . Our determination of whether a motion to correct falls within the scope of Practice Book § 43-22 is a question of law and, thus, our review is plenary.” (Citation omitted; internal quotation marks omitted.) State v. Osuch, 124 Conn. App. 572, 578-79, 5 A.3d 976, cert. denied, 299 Conn. 918, 10 A.3d 1052 (2010).

In the present case, the defendant claims that his sentence was illegal because his plea was not knowing and voluntary, and he requests that his conviction be set aside and he be permitted to withdraw his plea. The state asserts that such a claim is outside of the parameters of Practice Book § 43-22 because it attacks the plea and not the sentence. During oral argument before this court, the defendant argued that “everyone is missing the point here [because] jurisdiction is granted by the first amendment of the [United States] constitution and article first of the Connecticut constitution because everyone has a right to petition for redress of their grievances and this is a grievance that the defendant has — that his sentence was imposed in an illegal manner.” Although the defendant argues that the state is incorrect in asserting that the trial court did not have jurisdiction over his motion, there is nothing in the motion filed by the defendant that attacks the validity of his sentence; rather, he attacks the validity of his plea, and he seeks to have that plea set aside.

“An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is inherently contradictory. . . . Sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but . . . imposed in a way which violates the defendant’s right ... to be addressed personally at sentencing and to speak in mitigation of punishment ... or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises . . . .” (Internal quotation marks omitted.) State v. Starks, 121 Conn. App. 581, 586, 997 A.2d 546 (2010). This court has explained that “[t]he purpose of Practice Book § 43-22 is not to attack the validity of a conviction by setting it aside but, rather to correct an illegal sentence or disposition, or one imposed or made in an illegal manner.” State v. Mollo, 63 Conn. App. 487, 491, 776 A.2d 1176, cert. denied, 257 Conn. 904, 777 A.2d 194 (2001). The relief permitted under Practice Book § 43-22 “require[s], as a precondition, a valid conviction.” (Internal quotation marks omitted.) State v. Saunders, 132 Conn. App. 268, 271, 50 A.3d 321 (2011), cert. denied, 303 Conn. 924, 34 A.3d 394 (2012). In the present case, the defendant contests the validity of his conviction, claiming that his guilty plea was “unknowing and involuntary, and void ab initio.” Accordingly, his claim does not fit within the parameters of Practice Book § 43-22, and the trial court was without jurisdiction to consider the motion. See State v. Saunders, supra, 271-72; State v. Mollo, supra, 491.

The form of judgment is improper, the judgment is reversed and the case is remanded with direction to render judgment dismissing the defendant’s motion to correct an illegal sentence.

In this opinion the other judges concurred.

       We note that the defendant has not provided a transcript of the hearing on his motion to correct. Nevertheless, because we decide this case on jurisdictional grounds, the lack of the transcript does not impede our review.

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

       “A Garvin agreement is a conditional plea agreement that has two possible binding outcomes, one that results from the defendant’s compliance with the conditions of the plea agreement and one that is triggered by his violation of a condition of the agreement.” (Internal quotation marks omitted.) State v. Petaway, 107 Conn. App. 730, 732 n.2, 946 A.2d 906, cert. denied, 289 Conn. 926, 958 A.2d 162 (2008).

       Practice Book § 43-22 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

       Specifically, in his motion to correct an illegal sentence, the defendant claimed that the sentencing court had violated Practice Book §§ 39-9, 39-10, 39-19, 39-26 and 43-10.