author: BEACH, J.

text:
    MICHAEL DAWSON v. COMMISSIONER OF CORRECTION
    (AC 27528)
    Flynn, C. J., and Beach and Robinson, Js.

      Argued January 3
    officially released March 25, 2008

      Mary Boehlert, special public defender, for the appellant (petitioner).

      Kathryn Ward Bare, deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Erik T. Lohr, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

BEACH, J.

The petitioner, Michael Dawson, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) found that he had violated the terms of his plea agreement, (2) concluded that he failed to prove that he had received ineffective assistance of counsel and (3) rejected his claim that the prosecutor was improperly involved in his representation. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of the petitioner’s appeal. On August 29, 2002, the petitioner appeared before the court, Hickey, J., and entered a plea of guilty under the Alford doctrine to possession of narcotics with intent to dispense or sell in violation of General Statutes § 2 la-277 (a), two counts of failure to appear in the first degree in violation of General Statutes § 53a-172 and sale of a controlled substance in violation of General Statutes § 21a-277 (b). The petitioner also admitted to a violation of the conditions of his probation. In connection with his guilty pleas, the petitioner agreed to certain conditions of probation, as well as alternative sentences, the imposition of which would be based on his compliance with the terms of the Garvin agreement. Under the terms of the agreement, the petitioner was to appear for sentencing on September 13, 2002, at 10 a.m. If the petitioner complied, he would be sentenced to ten years incarceration, execution suspended after six years, and five years probation, and the state would nolle the petitioner’s other charges on the docket pending at the time of the plea agreement. If the petitioner failed to appear for sentencing at 10 a.m. on September 13, 2002, he then would be sentenced to ten years incarceration, execution suspended after eight years, and five years probation, and the state would not nolle his other pending charges.

The petitioner failed to appear for sentencing at 10 a.m. on September 13, 2002, and the court, Reynolds, J., ordered bond forfeitures and rearrest warrants on all outstanding files and ordered that the petitioner be held without bond on the files to which he already had entered guilty pleas. When the petitioner subsequently arrived at the courthouse sometime between 10:55 a.m. and 2:20 p.m. that same day, the court recalled the matter and, after hearing argument from both counsel, vacated the bond forfeitures and rearrest warrants and ordered the petitioner held without bond on the files to which he previously had entered guilty pleas. The court then continued the matter until September 24, 2002, in order for the court that had overseen the plea negotiations, Kavanewsky, J., to determine whether there had been a violation of the Garvin agreement.

On September 24, 2002, the court, Kavanewsky J., after hearing argument from both sides, found that the petitioner had not complied with the terms of the plea agreement and imposed a sentence of ten years incarceration, execution suspended after eight years, and five years probation.

Thereafter, on March 26, 2003, the petitioner pleaded guilty to possession of narcotics with intent to sell in violation of § 2 la-277 in connection with his August 21, 2002 arrest, which was not included in the Garvin agreement. The court, Hickey, J., sentenced the petitioner to fifteen years incarceration, execution suspended after eight years, and five years probation to run concurrently with the sentence he was then serving as a result of his first guilty pleas. The petitioner did not file a direct appeal.

The petitioner thereafter filed an amended petition for a writ of habeas corpus, alleging, inter alia, abrogation of the plea agreement, ineffective assistance of counsel regarding representation by his trial counsel, Stephen Feinstein, and improper involvement of Michael A. DeJoseph, the prosecutor, in his representation. The court rejected the petitioner’s claims but later granted the petition for certification to appeal to this court. This appeal followed. Additional facts will be set forth as necessary.

I

The petitioner first claims that the court improperly found that he had violated the terms of the plea agreement when he arrived at court on the day of sentencing after 10 a.m. We disagree.

We first set forth our standard of review. “[A] habeas court’s findings of fact are reviewed under a clearly erroneous standard of review, questions of law are subject to plenary review. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings. . . . In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make eveiy reasonable presumption . . . in favor of the trial court’s ruling.” (Citation omitted; internal quotation marks omitted.) Dickinson v. Mullaney, 284 Conn. 673, 678, 937 A.2d 667 (2007). When reviewing a finding regarding a breach of a plea agreement, the standard of review is whether, on the basis of the evidence, the court’s finding of a breach of the agreement was clearly erroneous. See State v. Small, 78 Conn. App. 14, 23, 826 A.2d 211 (2003).

The court’s factual finding that the petitioner had violated the terms of the Garvin agreement was not clearly erroneous. The court found that, according to the agreement between the parties, “the case was to be continued until September 13, 2002, at 10 a.m. for sentencing. If the petitioner showed up on September 13, 2002, at 10 a.m., then the court would impose the agreed upon sentence, and the state would nolle all open charges. However, it was made clear to all parties involved that if the petitioner failed to show up at 10 a.m. on September 13, 2002, then the sentence would go to ten years, suspended after the service of eight years, to be followed by five years probation, and the state would not nolle any of the open charges. ” It further found that the petitioner “was not in court at 10 a.m. on September 13,2002. Although his exact time of arrival is subject to some dispute, it is clear that [the petitioner] arrived no earlier than 10:55 a.m. and perhaps as late [as] 2:20 p.m. on September 13, 2002.”

The court determined that the 10 a.m. requirement was part of the Garvin agreement. On the basis of the evidence adduced at the habeas hearing, the habeas court found that the petitioner failed to arrive at court at 10 a.m. on September 13, 2002, as required under the terms of the Garvin agreement. Specifically, the petitioner testified before the habeas court that, as part of the agreement, he was required to arrive at court at 10 a.m. on September 13, 2002, and failed to do so. Accordingly, we conclude that the finding of the court that the petitioner had breached the terms of the agreement was not clearly erroneous.

II

The petitioner next claims that the court improperly concluded that he failed to prove that he had received ineffective assistance of counsel with respect to his motion to withdraw his guilty pleas. We are not persuaded.

The following additional facts are relevant to our resolution of this issue. At the sentencing hearing on September 24,2002, the petitioner made an oral motion, which he argued himself, to withdraw his guilty pleas. The petitioner argued that it was his understanding that the plea agreement included the file arising out of his August 21, 2002 arrest and maintained that he would not have accepted the agreement if he had known that the August 21, 2002 file was not included in the agreement. Feinstein noted that at the time of the pleas, he had not been assigned to the August 21, 2002 file. The state argued that all the requirements of a binding plea agreement were met and that the petitioner had not met his burden with respect to his request to withdraw his guilty pleas.

The trial court denied the petitioner’s motion in an oral ruling. The court noted that according to the terms of the plea agreement, the petitioner was required to appear on time for sentencing and that if he did not comply, he would receive a longer sentence and the state would not nolle any charges. The court further reasoned that even if the August 21, 2002 arrest had appeared on the docket and had been contemplated by the plea agreement, it would have been nolled only if the petitioner had appeared on time. He did not appear on time.

There was evidence before the habeas court, which it was free to credit, that neither Feinstein, DeJoseph nor the court were aware of the August 21, 2002 arrest at the time of the plea negotiations. Feinstein testified that when the guilty pleas were entered on August 29, 2002, he was not aware of the petitioner’s August 21, 2002 arrest and that he had not been appointed on that file. DeJoseph testified that the petitioner’s August 21, 2002 arrest came to his attention sometime after the petitioner entered his pleas on August 29, 2002, that his conversations with Feinstein indicated that he had no knowledge of the new arrest and that the August 21, 2002 file was not contemplated in the plea agreement. DeJoseph further testified that the petitioner was a veteran of the criminal justice system and that his allegation that the August 21, 2002 arrest was included in the plea agreement was disingenuous because he had not yet been arraigned on that file at the time he entered his pleas on August 29, 2002. The petitioner testified that as of August 29, 2002, he had not been arraigned on a file arising out of the August 21, 2002 arrest and that Feinstein had not been appointed to represent him on that file.

We begin by setting forth our standard of review. “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) .... For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), which modified Strickland’s prejudice prong. . . .

“To satisfy the performance prong, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. ... To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. . . . Reasonable probability does not require the petitioner to show that counsel’s deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome. . . . The Hill court noted that [i]n many guilty plea cases, the prejudice inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. ... A reviewing court can find against a petitioner on either ground, whichever is easier.” (Citations omitted; internal quotation marks omitted.) Baillargeon v. Commissioner of Correction, 67 Conn. App. 716, 721-23, 789 A.2d 1046 (2002).

A

The petitioner contends that Feinstein was ineffective with respect to his motion to withdraw his guilty pleas because he failed to request an evidentiary hearing on that motion and failed to request a recess to speak with the petitioner to advise him of his rights and burdens. We disagree.

The petitioner has failed to demonstrate that any prejudice resulted from Feinstein’s performance. The petitioner does not point out any additional arguments that could have been made or facts that could have been elicited in support of the motion had a recess and an evidentiary hearing occurred. In addition, the petitioner has not demonstrated that the outcome of the proceeding would have been different if Feinstein had requested a recess or an evidentiary hearing. The evidence before the habeas court revealed that the petitioner had not been arraigned on the August 21, 2002 arrest, Feinstein had not yet been appointed as the petitioner’s attorney on that file and that the file had not been contemplated to be part of the plea agreement. See Constantopoulos v. Commissioner of Correction, 47 Conn. App. 828, 838, 708 A.2d 588 (examining whether outcome would have been different if defense counsel performed differently with respect to petitioner’s pro se motion to withdraw guilty plea), cert. denied, 244 Conn. 927, 711 A.2d 726 (1998). Critically, the Garvin agreement contemplated that, in light of the petitioner’s late arrival on September 13, 2002, any additional charges would not be nolled. Accordingly, we conclude that the petitioner was not denied the effective assistance of counsel.

B

The petitioner also claims that Feinstein was ineffective for failing to advise him regarding his right to appeal from the trial court’s denial of his motion to withdraw his guilty pleas. We decline to review this claim.

There is no constitutional mandate that to provide reasonably competent assistance, defense counsel always must inform a criminal defendant of the right to appeal from the judgment rendered after the acceptance of a guilty plea. Ghant v. Commissioner of Correction, 255 Conn. 1, 9, 761 A.2d 740 (2000). Instead, counsel has a constitutional obligation to advise a defendant of appeal rights “when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. . . . Roe v. Flores-Ortega, [528 U.S. 470, 480, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000)].” (Internal quotation marks omitted.) Ghant v. Commissioner of Correction, supra, 9-10. “[T]o show prejudice [when counsel fails to apprise a defendant of his or her appellate rights], a defendant must demonstrate that there is a reasonable probability that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.” (Internal quotation marks omitted.) Id., 10.

The petitioner testified before the habeas court that he had told Feinstein that he wanted to appeal and that Feinstein had not consulted with him regarding the filing of an appeal. The petitioner further testified that when he returned to court approximately one month after the court had denied his motion to withdraw his guilty pleas, he asked Feinstein about appealing and that Feinstein answered that he thought the petitioner was going to file an appeal pro se. The petitioner did not question Feinstein regarding the failure to file an appeal from the denial of the motion to withdraw the guilty pleas.

The court’s decision does not mention specifically Feinstein’s alleged failure to consult with the petitioner regarding his right to appeal. The petitioner failed to request an articulation on this issue. See Practice Book § 66-5. Because the court’s memorandum of decision is devoid of any findings or analysis on the issue, and because the petitioner did not seek an articulation, the record is inadequate, and we cannot review his claim. See Bowden v. Commissioner of Correction, 93 Conn. App. 333, 342, 888 A.2d 1131, cert. denied, 277 Conn. 924, 895 A.2d 796 (2006).

III

The petitioner next claims that the court improperly rejected his claim that the prosecutor was improperly involved in his representation. We decline to review this claim.

The petitioner alleges that during the time in which he was trying to acquire enough money to hire Frederick Paoletti, DeJoseph’s relative through marriage, as his trial counsel, DeJoseph continually “signed off’ on misdemeanor arrest warrants, and Paoletti continually raised his fees. The petitioner contends that as a result of the increased number of charges, he was unable to afford to hire Paoletti or a “qualified private attorney” and was forced to accept the services of a public defender. After the petitioner decided not to hire Paoletti, he alleged that DeJoseph became hostile toward him. The court rejected the claim. Not reaching the substance of the offense, the court found that Paoletti never filed an appearance in the case. While these allegations may be cause for concern, we cannot review the petitioner’s claim. The court’s decision is devoid of any findings or analysis on that issue, and the petitioner did not seek an articulation; therefore, the record is inadequate and we cannot review his claim. See, e.g., King v. Commissioner of Correction, 73 Conn. App. 600, 603, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003).

The judgment is affirmed.

In this opinion the other judges concurred.

       The respondent, the commissioner of correction, contends that the court should not have reached the merits of the petitioner’s claims regarding the terms of the plea agreement or his claim regarding improper involvement by the prosecutor because these claims were procedurally defaulted, and the petitioner failed to demonstrate cause and prejudice to excuse that default. Although the court made no express finding on the issue of procedural default or cause and prejudice in its oral ruling, it denied the respondent’s motion to dismiss for failure to demonstrate cause and prejudice and then subsequently decided the merits of the claims. The respondent failed to seek an articulation on the issue of procedural default and cannot now complain that the record does not contain an express finding by the court on that issue. See Orcutt v. Commissioner of Correction, 284 Conn. 724, 737-41, 937 A.2d 656 (2007) (habeas court implicitly determined issue of procedural default in favor of petitioner where it did not expressly decide issue of procedural default but decided merits of claim). The respondent did not claim procedural default in its return with respect to the petitioner’s ineffective assistance claims, and the court addressed those claims on the merits.

       See North Carolina v. Alford, 400 U.S. 25, 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 the defendant’s violation of a condition of the agreement. See State v. Garvin, [242 Conn. 296, 299-302, 699 A.2d 921 (1997)].” (Internal quotation marks omitted.) State v. Stevens, 278 Conn. 1, 3 n.1, 895 A.2d 771 (2006).

       The petitioner disputes the existence of the 10 a.m. requirement. The habeas court determined that the 10 a.m. requirement was part of the Garvin agreement, and there was evidence to support its determination. See Orcutt v. Commissioner of Correction, 284 Conn. 724, 742, 937 A.2d 656 (2007) (when there is dispute as to terms of plea agreement, analysis turns on real intent of parties); Martinez v. Commissioner of Correction, 105 Conn. App. 65, 73, 936 A.2d 665 (2007) (intent of parties with respect to plea agreement question of fact subject to clearly erroneous standard of review), cert. denied, 285 Conn. 917, 943 A.2d 475 (2008).

       The following colloquy occurred during cross-examination of the petitioner:
      “[The Respondent’s Counsel]: . . . And what was the plea arrangement at that tune?
      “[The Petitioner]: Ten years suspended after six years with five years probation.
      “[The Respondent’s Counsel]: Okay. So, as shorthand, I’m going to say ten, six, five.
      “[The Petitioner]: Yes.
      “[The Respondent’s Counsel]: You thought it was ten, six, five you were pleading out to. Correct?
      “[The Petitioner]: Yes.
      “[The Respondent’s Counsel]: And didn’t Judge Kavanewsky say, it’s ten, six, five if you show up? And if you don’t show up—
      “[The Petitioner]: It’s ten, eight, five.
      “[The Respondent’s Counsel]: And let me back up a second. It was ten, six, five and nolle on all open counts if you show up.
      “[The Petitioner]: Miran hmm. Yes, sir.

        “[The Respondent’s Counsel]: If you don’t show up, it’s ten, eight, five, and nothing else gets nolled. Right?
      “[The Petitioner]: Because they thought I was a flight risk, yes, sir.
      “[The Respondent’s Counsel]: Right. And you understood that at that time. Right?
      “[The Petitioner]: Yes.
      “[The Respondent’s Counsel]: You understood that there were two possible outcomes—
      “[The Petitioner]: If I—
      “[The Respondent’s Counsel]:—ten, six, five, nolles, or ten, eight, five, nothing. Right?
      “[The Petitioner]: Yes.
      “[The Respondent’s Counsel]: So, you understood that you were supposed to be in court at 10 a.m. on September 13, 2002.
      “[The Petitioner]: Yes.
      “[The Respondent’s Counsel]: Is that correct?
      “[The Petitioner]: Yes.
      “[The Respondent’s Counsel]: And you, in fact, didn’t show up. Isn’t that correct?
      “[The Petitioner]: I did show up.
      “[The Respondent’s Counsel]: You showed up late.
      “[The Petitioner]: Yes, sir.”

       A court may impose a sentence reflecting a failure to fulfill a condition of the agreement so long as “[f]ulfillment of [the] condition [is] within the [petitioner’s] control.” State v. Garvin, 242 Conn. 296, 314, 699 A.2d 921 (1997); State v. Small, supra, 78 Conn. App. 22. The habeas court found, and there is evidence supporting its finding, that the petitioner bargained for the term, understood what would happen if he was late and that his failure to fulfill the condition was within his control.

         The petitioner also argues that Feinstein was ineffective for failing to ensure that his August 21, 2002 arrest, docket number CR-02-0098452, was included as part of the plea agreement. The court did not address this claim but instead construed it as a claim of an improper plea canvass and concluded that the canvass was proper and fulfilled all the statutory and Practice Book requirements. We do not consider the claim because the court did not address it, and the petitioner did not seek an articulation pursuant to Practice Book § 66-5. See, e.g., King v. Commissioner of Correction, 73 Conn. App. 600, 603, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003).

       On direct examination by the petitioner’s counsel, Feinstein testified that he had no recollection of the petitioner informing him on August 29, 2002, that he recently had been arrested. On cross-examination, the respondent’s counsel asked: “You testified earlier that at the time the petitioner pled guilty on August 29, 2002, you didn’t even know about [the August 21, 2002 arrest]. ... Is that correct?” Feinstein responded: “Correct.”

       The petitioner testified that Feinstein knew about the August 21, 2002 arrest on August 29, 2002. The court was free not to credit the petitioner’s testimony. “The habeas court, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” Alexander v. Commissioner of Correction, 103 Conn. App. 629, 638, 930 A.2d 58, cert. denied, 284 Conn. 939, 937 A.2d 695 (2007).

       Because we conclude that the petitioner has failed to satisfy the prejudice prong of Hill, we do not determine whether Feinstein’s representation constituted deficient representation. See Pierce v. Commissioner of Correction, 100 Conn. App. 1, 12 n.5, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007).


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. LUCAS BETANCOURT
    (AC 27955)
    McLachlan, Gruendel and Pellegrino, Js.

      Argued January 16
    officially released March 25, 2008

      Joseph A. Jaumann, special public defender, for the appellant (defendant).

      Raheem L. Mullins, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly and GailP. Hardy, state’s attorneys, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Lucas Betancourt, appeals from the judgment of conviction, rendered after a jury trial, of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), conspiracy to commit kidnapping in the first degree in violation of General Statutes §§ 53a-48 and 53a-92 (a) (2) (B), burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-48 and 53a-101 (a) (2), robbery in the second degree in violation of General Statutes § 53a-135 (a) (1), and conspiracy to commit robbery in the second degree in violation of §§ 53a-48 and 53a-135 (a) (1). On appeal, the defendant claims that (1) there was insufficient evidence from which the jury could have found him guilty of the charged crimes and (2) the prosecutor engaged in impropriety that deprived him of a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 29, 2005, the defendant drove his two nephews, Ricco Torres and Felipe Buitrago, his friend, Michael Meteiver, and his own six year old daughter to a McDonald’s restaurant in Waterbury in a green Ford Escort. While at McDonald’s, the defendant and Meteiver had a discussion about stealing guns from the home of Meteiver’s father-in-law, Mario Fusco, the victim. Meteiver was aware that the victim’s son had a gun collection and that it had been kept at the victim’s home. The defendant then drove his nephews, Meteiver and his daughter to the victim’s home.

After arriving at the victim’s home, the defendant ordered everyone except his daughter out of the car. The defendant directed Buitrago to watch from the front door and to enter the house last. The men then knocked on the victim’s door, and when the victim answered, the men pushed themselves into the house, knocking the victim to the floor and breaking his glasses. After entering, the defendant and Torres bound the victim’s hands and feet with duct tape and covered his head with a pillowcase. The defendant then asked the victim where he kept his guns and searched through the house looking for them even though the victim explained that he no longer kept his son’s guns in his house. While searching, they stole $150 as well as the victim’s bank card and a handgun. The defendant and Meteiver demanded of the victim the personal identification number for his bank card. After receiving it, the two men went to a Webster Bank automatic teller machine and tried unsuccessfully to withdraw funds from the victim’s account. They then returned to the victim’s home. After arriving, the defendant, Meteiver, Buitrago and Torres returned to the car where the defendant’s daughter was waiting, and the defendant drove to his apartment in Naugatuck where he left his nephews and his daughter. The defendant then left the apartment with Meteiver. When he returned, he gave Buitrago the gun that either he or Meteiver had stolen from the victim’s home and told Buitrago to put the gun in a drawer under the bed of the defendant’s daughter. The defendant left the apartment again.

In the meantime, the victim had called the police. An interview with the victim led the police to believe that Meteiver might be involved in the break-in because he was the only person who knew the victim had kept his son’s gun collection in his home. The police found Meteiver and arrested him on an unrelated charge. During a search of Meteiver’s person, the police found the keys to the victim’s car and house. Meteiver admitted that he had taken part in the break-in at the victim’s house and directed the police to the defendant’s apartment to find the other individuals involved.

The police arrived at the defendant’s apartment with a search warrant, where they found and arrested Buitrago and Toixes. Buitrago told the police that the gun they were looking for was in a drawer under the bed of the defendant’s daughter. The police found the gun, which was the gun taken from the victim’s home, as well as some money and mail addressed to the defendant. A little while later, the defendant arrived at his apartment and was arrested.

The following day, the police found a green Ford Escort in the driveway next to the defendant’s apartment. The police obtained a search warrant for the car and found a roll of duct tape inside. An analysis of the duct tape revealed that the tom end of the duct tape roll matched the tom end found on the victim’s socks. Following a jury trial, the defendant was found guilty on all counts. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the testimony given by Buitrago as a witness for the state was inconsistent and vague and failed to prove every element of each of the crimes charged. “The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Davis, 283 Conn. 280, 329, 929 A.2d 278 (2007). In conducting our review, we are mindful that “[w]e do not sit as a [seventh] juror who may cast a vote against the verdict based [on] our feeling that some doubt of guilt is shown by the cold printed record. . . . Rather, we must defer to the juiy’s assessment of the credibility of the witnesses based on its firsthand obseivation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Morgan, 274 Conn. 790, 800, 877 A.2d 739 (2005).

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Davis, supra, 283 Conn. 329-30. “[P]roof of a material fact by inference from circumstantial evidence need not be so conclusive as to exclude every other hypothesis.” (Internal quotation marks omitted.) State v. St. Cyr, 100 Conn. App. 189, 195, 917 A.2d 578, cert. denied, 282 Conn. 915, 924 A.2d 140 (2007).

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Davis, supra, 283 Conn. 330. Our review of the record indicates that there was evidence before the jury from which it could find the defendant guilty of the crimes charged beyond a reasonable doubt. Because the defendant has raised his claim in general terms, we address each crime in turn.

A

The defendant was convicted of kidnapping in the first degree in violation of § 53a-92 (a) (2) (B), which 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 . . . (B) accomplish or advance the commission of a felony . . . .’’In the present case, Buitrago testified that the defendant forced his way into the victim’s home and duct taped the victim’s arms and legs, restricting his movement. A pillowcase was then put over the victim’s head. Once the victim was secure, Buitrago testified, the defendant asked the victim where the guns were and proceeded to search the home for guns. The victim, although unable specifically to identify the defendant, testified to the same events. There was sufficient evidence, therefore, from which the jury could have concluded that the defendant abducted the victim and restrained him with the intent to steal the victim’s guns, which is a felony.

B

The defendant also was convicted of burglary in the first degree in violation of § 53a-101 (a) (2). “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.” General Statutes § 53a-101 (a).

The victim testified that upon hearing a knock at the front door of his home, he answered the door and immediately was knocked to the floor, where he was held down, and his hands and feet were bound with duct tape. Buitrago testified that it was the defendant who forced his way into the victim’s home, knocking the victim down and, subsequently, taping his hands and feet. Buitrago also testified that the defendant’s puxpose in forcibly entering the house was to steal guns that belonged to the victim. In addition, Stanley Stasaitis, a detective with the Waterbuiy police department who responded to the victim’s 911 call, noticed red marks on the right side of the victim’s forehead and offered him medical assistance. From this evidence, the jury reasonably could have found that the defendant knowingly and unlawfully entered the victim’s home, intentionally, knowingly or recklessly inflicting bodily injury to the victim, with the intent to steal the victim’s guns.

C

The defendant was convicted of robbery in the second degree in violation of § 53a-135 (a) (1). “A person is guilty of robbery in the second degree when he commits robbery as defined in section 53a-133 and (1) he is aided by another person actually present . . . .” General Statutes § 53a-135 (a). General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

The victim testified that he was knocked to the ground and held down by the individuals who forcibly had entered his home. Buitrago testified that it was the defendant who had knocked the victim to the ground, held him there and taped his hands and feet. A pillowcase was also put over the victim’s head. In addition, Buitrago testified that the purpose of the forcible entry was to steal the victim’s guns. Furthermore, Buitrago testified that he, Torres and Meteiver were present and assisted the defendant in committing the crime. From this evidence, the jury reasonably could have found that the defendant, assisted by other individuals actually present, used physical force against the victim in an effort to steal his guns and to prevent the victim from resisting.

D

In addition to the previously discussed charges, the defendant also was charged with conspiracy to commit kidnapping in the first degree in violation of §§ 53a-48 and 53a-92 (a) (2) (B), conspiracy to commit burglary in the first degree in violation of §§ 53a-48 and 53a-101 (a) (2), and conspiracy to commit robbery in the second degree in violation of §§ 53a-48 and 53a-135 (a) (1). “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.” General Statutes § 53a-48. “The existence of a formal agreement between the parties need not be proved. It is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. . . . Because of the secret nature of a conspiracy, a conviction is usually based on circumstantial evidence. . . . The state need not prove that the defendant and a coconspirator shook hands, whispered in each other’s ear, signed papers, or used any magic words such as we have an agreement.” (Internal quotation marks omitted.) State v. Gonzalez, 69 Conn. App. 649, 653, 796 A.2d 1225, cert. denied, 260 Conn. 937, 802 A.2d 91 (2002).

Buitrago testified that, while they were at McDonald’s, the defendant and Meteiver had a conversation about “getting guns” from the home of Meteiver’s father-in-law. After having this conversation, the four men drove to the home of Meteiver’s father-in-law, forcibly entered, knocked the victim to the ground, taped his hands and feet, put a pillowcase over his head, demanded to know where the victim kept his guns, searched the home for guns and stole $150, a handgun and the victim’s bank card. From this evidence, the jury reasonably could have concluded that the defendant had conspired with others to commit the crimes for which he was charged and convicted..

II

The defendant’s second claim is that the prosecutor engaged in impropriety when, during closing argument, she argued facts that were not in evidence that “significantly infected the fairness of the trial” by appealing to the jury’s emotions. “In analyzing claims of prosecutorial impropriety, we engage in a two step analytical process. . . . The two steps are separate and distinct. . . . We first examine whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial. ... If we conclude that prosecutorial impropriety has occurred, we then must determine, by applying the six factors enumerated in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987), whether the entire trial was so infected with unfairness as to deprive the defendant of his due process right to a fair trial. . . . These factors include the extent to which the misconduct was invited by defense conduct, the severity of the misconduct, the frequency of the misconduct, the centrality of the misconduct to the critical issues in the case, the effectiveness of the curative measures adopted and the strength of the state’s case.” (Citations omitted; internal quotation marks omitted.) State v. Ayuso, 105 Conn. App. 305, 320, 937 A.2d 1211, cert. denied, 286 Conn. 911, 944 A.2d 983 (2008).

“In determining whether [prosecutorial impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.” (Internal quotation marks omitted.) State v. Ancona, 270 Conn. 568, 594, 854 A.2d 718 (2004), cert. denied, 543 U.S. 1055, 125 S. Ct. 921, 160 L. Ed. 2d 780 (2005).

The defendant argues that the prosecutor improperly appealed to the emotions of the jury by arguing facts that were not in evidence regarding the defendant’s relationship with his daughter. In addition, the defendant argues that the prosecutor improperly bolstered Buitrago’s credibility when she argued facts that were not in evidence regarding Buitrago’s concern for the defendant’s daughter and for the victim. The defendant posits that this impropriety amounted to a shifting of the burden of proof from the state to the defendant, in that the prosecutor led the jury to believe that it had to accept Buitrago’s testimony as true unless the defendant proved he was not credible.

During final argument, when speaking about the defendant’s relationship with his daughter, the prosecutor stated: “The defendant . . . didn’t care anything about his six year old daughter. He took her to a crime scene. He took her to commit a crime. He didn’t care anything about her, [and] [w]e know if [the defendant] doesn’t care enough about his daughter, then, to take her to a crime such as this, he has no regard for his young nephews . . . .” Regarding Buitrago’s relationship with the defendant’s daughter, the prosecutor stated: “Buitrago cared about his six year old cousin. He didn’t want her to be scared. He ran up to the bedroom, knew there was a gun there, a gun that the defendant . . . told [him] to put away. He goes there, he protects his cousin.” And, regarding Buitrago’s concern for the victim, the prosecutor stated: “But [Buitrago] still found some compassion in his heart to offer [the victim] a pillow.”

During trial, the state presented evidence that the defendant took his six year old daughter with him and left her alone in the car when he committed the crimes. There was further testimony that the handgun that was taken from the victim’s home was found in a drawer under the bed of the defendant’s daughter. Because the prosecutor may properly ask the jury to draw reasonable inferences from the facts presented; see State v. Ancona, supra, 270 Conn. 594; it was not improper for the prosecutor to ask the jury to draw a reasonable inference that the defendant’s actions demonstrated a lack of concern for his daughter’s welfare.

Similarly, there was evidence that when the police knocked on the door of the defendant’s apartment, Buitrago ran to where his cousin was sleeping because he thought she might be frightened. Furthermore, there was evidence that the victim told Buitrago that he had a broken hip and, in response, Buitrago placed a pillow under the victim’s hip, while he lay on the floor. Again, the prosecutor properly asked the jury to draw reasonable inferences from the facts that Buitrago demonstrated concern for his cousin and concern for the victim. Because the prosecutor was arguing facts that were in evidence and was calling on the jury to draw reasonable inferences from those facts, there was no prosecutorial impropriety. See id.

Finally, the defendant argues that by asking the jury to believe Buitrago’s testimony unless something occurred in the courtroom that made the jury disbelieve him, the state improperly shifted the burden of proof to the defendant. During closing arguments, the prosecutor stated, “you need to look for other reasons that were established in this courtroom of why you should not believe . . . Buitrago. It has to be established in this courtroom. It can’t be something that’s speculative. It can’t be something that you just dream up. It has to have been established in this courtroom for . . . Buitrago to have made up this story about his uncle.” In addition, during rebuttal, the prosecutor stated, “[y]ou can’t discount what . . . Buitrago says merely because the defendant tells you to,” and “you can’t come up with a doubt. You can’t raise a doubt. Your verdict here, the evidence here, everything that you do in this courtroom is based upon the evidence that’s presented in this courtroom.”

The defendant argues that these comments “lead to the logical conclusion that, unless the defendant can prove his nephew lied, the jury must believe the state’s witness.” The prosecutor’s comments to the jury did not amount to a mandate to believe Buitrago’s testimony unless the defendant proved otherwise. The prosecutor merely requested that the jury believe Buitrago unless any evidence, including evidence put forward by the defendant, discredited his testimony. The prosecutor’s comments, therefore, directed the jury to do exactly what it was supposed to do—weigh the credibility of the witness in accordance with all of the evidence put before it in the courtroom and not engage in speculation. See State v. Ayuso, supra, 105 Conn. App. 334. Asking the jury to believe a witness unless there is evidence to discredit the witness is a proper request and in no way shifts the burden of proving the defendant’s guilt from the state to the defendant. We conclude that no prosecutorial impropriety occurred.

The judgment is affirmed.

In this opinion the other judges concurred.

       Within the defendant’s insufficiency claim, he makes several arguments, namely, (1) there was evidence that Buitrago made a written statement explaining that the defendant was not involved in the crimes charged, (2) Buitrago’s testimony was inconsistent with the victim’s testimony and (3) Buitrago received a sentencing benefit for his testimony implicating the defendant, which evidence was not before the jury when it made its credibility determination.

        “[I]t is well settled that [wjhether [a witness’] testimony [is] believable [is] a question solely for the jury. It is . . . the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. . . . [T]he [jury] can . . . decide what—all, none or some—of a witness’ testimony to accept or reject. . . . [QJuestions of whether to believe or to disbelieve a competent witness are beyond our review . . . .” (Citations omitted; internal quotation marks omitted.) State v. Ayuso, 105 Conn. App. 305, 334-35, 937 A.2d 1211, cert. denied, 286 Conn. 911, 944 A.2d 983 (2008). In addition, “[e]vidence is not insufficient merely because it is conflicting or inconsistent.” (Internal quotation marks omitted.) State v. Russell, 101 Conn. App. 298, 320 n.23, 922 A.2d 191, cert. denied, 284 Conn. 910, 931 A.2d 934 (2007). “[The jury] may believe or disbelieve all or any portion of the testimony offered. ... A trier of fact is free to reject testimony even if it is uncontradicted . . . and is equally free to reject part of the testimony of a witness even if other parts have been found credible.” (Internal quotation marks omitted.) State v. Stewart, 77 Conn. App. 393,400, 823 A.2d 392, cert. denied, 265 Conn. 906, 831 A.2d 253 (2003). “[A]n appellate court does not retry the case or evaluate the credibility of the witnesses.” (Internal quotation marks omitted.) Moran v. Media News Group, Inc., 100 Conn. App. 485, 493, 918 A.2d 921 (2007). Because the defendant’s arguments focus exclusively on determinations solely within the province of the jury, they have no merit.
      We also decline to review the argument regarding an alleged sentencing benefit bestowed on Buitrago in exchange for his testimony against the defendant. A review of the record does not reveal whether Buitrago was receiving a sentencing benefit. As this information is not a part of the record, this argument is not properly before us. “This court will not speculate on what is not in the record.” State v. Hermann, 38 Conn. App. 56, 68, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995).

       General Statutes § 53a-91 (2) provides: “ ‘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-91 (1) provides in relevant part: “ ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent. . . .”

       The defendant correctly notes that although he did not object to the challenged statements at trial, his claim is reviewable in light of State v. Fauci, 282 Conn. 23, 33, 917 A.2d 978 (2007) (“[o]nce prosecutorial impropriety has been alleged ... it is unnecessary for a defendant to seek to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and it is unnecessary for an appellate court to review the defendant’s claim under Golding”).


author: DiPENTIMA, J.

text:
    STATE OF CONNECTICUT v. JASON DEVIVO
    (AC 28304)
    DiPentima, Harper and Dupont, Js.

      Argued November 27, 2007
    officially released March 25, 2008

      Elena R. Goldstein, with whom, on the brief, was H. Daniel Murphy, for the appellant (defendant).

      Jessica Probolus, special deputy assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Ronald Dearstyne, senior assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, J.

The defendant, Jason DeVivo, appeals from the judgment of the trial court dismissing his motion to vacate his guilty plea. The defendant claims that the court did not lack jurisdiction to hear the motion and that, had the court heard his motion, he would have prevailed on the merits. We affirm the judgment of the trial court.

The following procedural facts are relevant to our analysis. On February 1, 2002, the defendant pleaded guilty to operating a motor vehicle while under the influence of intoxicating liquor or drugs as a second offender in violation of General Statutes § 14-227a and to operating a motor vehicle while his operator’s license was under suspension in violation of General Statutes § 14-215 (c). On May 10, 2002, the defendant was sentenced to a total effective term of two years incarceration, suspended after 150 days, and two years probation. On August 9, 2004, the defendant completed his sentence and probation. On September 18,2006, the defendant filed a motion to vacate his guilty plea on the ground that the plea was accepted without substantial compliance with Practice Book § 39-19, the plea was not made Imowingly, intelligently and voluntarily, and the plea resulted from the denial of effective assistance of counsel in violation of his constitutional rights. A healing on the defendant’s motion was held on November 16, 2006, and at the conclusion of the hearing, the court dismissed the motion for lack of jurisdiction. This appeal followed.

The defendant’s sole claim on appeal is that the court improperly concluded that the holding in State v. Reid, 277 Conn. 764, 894 A.2d 963 (2006), precluded it from reaching the merits of the motion to vacate his guilty plea because it lacked subject matter jurisdiction. We disagree with the defendant.

We begin with the standard of review. “A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Fairfax Properties, Inc. v. Lyons, 72 Conn. App. 426, 431, 806 A.2d 535 (2002).

Turning to the defendant’s argument that the court improperly applied Reid, we first look at the circumstances under which a defendant can withdraw a plea. Practice Book § 39-26 provides: “A defendant may withdraw his or her plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his or her plea upon proof of one of the grounds in Section 39-27. A defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed.” Because the defendant here moved to withdraw his guilty plea not only after sentencing, but two years after he had completed his sentence, the court looked to Reid to determine if it had jurisdiction to decide the motion.

In Reid, the defendant also filed a motion to withdraw his plea, on the basis of a constitutional violation, after he had completed his sentence. State v. Reid, supra, 277 Conn. 775-77. Our Supreme Court concluded in that case that “in the absence of a legislative or constitutional grant of continuing jurisdiction, the trial court lost jurisdiction . . . when the defendant was taken in execution of his sentence and transferred to the custody of the commissioner of correction.” Id., 774. Our Supreme Court stated: “The Superior Court is a constitutional court of general jurisdiction. ... In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law. ... It is well established that under the common law a trial court has the discretionary power to modify or vacate a criminal judgment before the sentence has been executed. . . .

“In a criminal case the imposition of sentence is the judgment of the court. . . . When the sentence is put into effect and the prisoner is taken in execution, custody is transferred from the court to the custodian of the penal institution. At this point jurisdiction of the court over the prisoner terminates.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 774-75.

The Reid court, however, did reach the merits of the defendant’s motion to vacate his plea, not because the trial court had jurisdiction over the motion, but because under the “rare” and “unique” circumstances, it was appropriate for the court to invoke its infrequently exercised supervisory powers and treat the motion to withdraw as a request to file an untimely appeal from a judgment of conviction. Id., 778-79 (circumstances include fact that conviction used by federal government as basis for deportation was vacated as result of DNA testing and conviction that resulted from guilty plea was later substituted as basis for deportation). Furthermore, the court considered the defendant’s unpreserved constitutional claim because the defendant affirmatively sought to have his claim reviewed under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). State v. Reid, supra, 277 Conn. 781.

In the present case, the defendant argues that Reid is inapposite and that the court instead should apply State v. Falcon, 84 Conn. App. 429, 853 A.2d 607 (2004) (trial court lacked authority or jurisdiction to hear motion to withdraw plea fifteen days after sentencing defendant to time served). We disagree that Reid is not on point, and moreover, applying Falcon would provide the same result for the defendant. We further note that “[a]s an intermediate appellate court, we are bound by Supreme Court precedent and are unable to modify it . . . .” Hopkins v. Commissioner of Correction, 95 Conn. App. 670, 672, 899 A.2d 632, cert. denied, 279 Conn. 911, 902 A.3d 1071 (2006). We address Falcon only to demonstrate that it can be read as in concert with Reid. The most significant factor that distinguishes the defendant’s case from both Reid and Falcon is that the defendant has not requested review of his unpreserved constitutional claims under Golding. Although this court can review unpreserved claims, “[i]t is well established . . . that parties must affirmatively seek to prevail under State v. Golding [supra, 213 Conn. 239-40] or the plain error doctrine [embodied in Practice Book § 60-5] and bear the burden of establishing that they are entitled to appellate review of their unpreserved constitutional claims.” (Internal quotation marks omitted.) State v. Reid, supra, 277 Conn. 781.

uGolding is a narrow exception to the general rule that an appellate court will not entertain a claim that has not been raised in the trial court. The reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial—after it is too late for the trial court or the opposing party to address the claim—would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party. . . . Nevertheless, because constitutional claims implicate fundamental rights, it also would be unfair automatically and categorically to bar a defendant from raising a meritorious constitutional claim that warrants a new trial solely because the defendant failed to identify the violation at trial. Golding strikes an appropriate balance between these competing interests: the defendant may raise such a constitutional claim on appeal, and the appellate tribunal will review it, but only if the trial court record is adequate for appellate review.” (Citation omitted.) State v. Brunetti, 279 Conn. 39, 55, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007). “In the absence of such a request, we have, in the past, declined to review a defendant’s claim under similar circumstances. . . . The defendant’s failure to address the four prongs of Golding amounts to an inadequate briefing of the issue and results in the unpreserved claim being deemed abandoned.” (Internal quotation marks omitted.) State v. David P., 70 Conn. App. 462, 474, 800 A.2d 541, cert. denied, 262 Conn. 907, 810 A.2d 275 (2002).

In both Reid and Falcon, the courts held that the trial court was without jurisdiction to consider the merits of the motion to withdraw. State v. Reid, supra, 277 Conn. 776; State v. Falcon, supra, 84 Conn. App. 430. In both cases, the appellate courts themselves considered the merits of the motion because the defendants had requested review under Golding. State v. Reid, supra, 781; State v. Falcon, supra, 432. Moreover, even if the defendant in the present case had requested review under Golding, he has not argued that the circumstances of his case are rare and unique such that it would have been appropriate to invoke our supervisory powers, as was necessary in Reid, to reach the merits of the motion to withdraw the plea. See State v. Reid, supra, 778-79. Thus, we hold that the court properly determined that it lacked jurisdiction to consider the merits of the defendant’s motion, and we decline to reach the merits of the motion because the defendant did not request review of his unpreserved constitutional claims under Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court ruled that State v. Reid, 277 Conn. 764, 894 A.2d 963 (2006), precluded it from considering the motion because it no longer had jurisdiction to hear the motion. The judgment file has recorded this ruling as a denial of the motion, but because the court did not reach the merits of the motion, we treat the ruling as a dismissal. See Bee v. Bee, 79 Conn. App. 783, 798-99, 831 A.2d 833 (construction of judgment is question of law for court and determinative factor is intention of court as gathered from all parts of judgment), cert. denied, 266 Conn. 932, 837 A.2d 805 (2003).

       Despite having served his sentence, the defendant’s appeal is not moot because the defendant may be subject to collateral legal consequences as a result of the conviction. See Barlow v. Lopes, 201 Conn. 103, 112, 513 A.2d 132 (1986).

       Practice Book § 39-19 provides in relevant part: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
      “(1) The nature of the charge to which the plea is offered . . .

       Our Supreme Court in Reid recognized that a rule of practice cannot be jurisdictional because it is not a constitutional or statutory mandate. State v. Reid, supra, 277 Conn. 776 n.14. The court noted that “Practice Book § 39-26 merely recognizes the general or common-law grant of jurisdiction, regulates the procedure by which that jurisdiction may be invoked, and acknowledges that, absent a legislative grant, jurisdiction does not continue indefinitely, once invoked, but, rather, terminates with the conclusion of the proceeding at which the sentence is imposed.” State v. Reid, supra, 776 n.14.

       The defendant’s claims are unpreserved because he did not seek to withdraw his plea prior to sentencing. See State v. Williams, 60 Conn. App. 575, 577-78, 760 A.2d 948, cert. denied, 255 Conn. 922, 763 A.2d 1043 (2000).

       The Falcon court, however, did not first invoke its supervisory powers to reach the constitutional claims under the Golding analysis.


text:
    LUCY GRIGNANO v. CITY OF MILFORD
    (AC 27474)
    Bishop, DiPentima and Mihalakos, Js.

      Argued November 26, 2007
    officially released April 1, 2008

      MarcJ. Ubaldi, for the appellant (substitute plaintiff).

      Thomas R. Gerarde, with whom, on the brief, was Alan R. Dembiczak, for the appellee (defendant).
   Opinion

DiPENTIMA, J.

The substitute plaintiff, Vincent Grignano, executor of the estate of Lucy Grignano, appeals from the summary judgment rendered by the trial court in favor of the defendant municipality, the city of Milford. The substitute plaintiff claims that the court improperly concluded that the plaintiffs personal injury claim is barred by the doctrine of governmental immunity, pursuant to General Statutes § 52-557n. We affirm the judgment of the trial court.

On July 2, 2004, the plaintiff brought this personal injury action against the defendant. In her complaint, the plaintiff alleged that on August 29, 2003, she tripped over an uneven patio stone and sustained injuries while lawfully present as a public invitee of the defendant on property located at 37 Helwig Street in Milford, also known as Milford Landing. She further alleged that the negligent acts or omissions of the defendant, or its officers, agents or employees acting within the scope of their official duties, caused her injuries. Specifically, the plaintiff alleged that the defendant negligently constructed the patio, failed to inspect the patio for defects, failed to repair the defective stone and failed to warn her of the existence of the defective stone. In response, the defendant denied liability and claimed, by way of special defense, that the plaintiffs action was barred by the governmental immunity provided under § 52-557n. On September 7, 2005, the defendant filed a motion for summary judgment on its special defense, which the court granted in a written memorandum of decision on February, 27, 2006. This appeal followed.

We begin by setting forth the standard of review. “Practice Book § 17-49 provides that 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 198-99, 931 A.2d 916 (2007).

“It is frequently stated in Connecticut’s case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . [T]ypically [demonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred. . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief. . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact.” (Internal quotation marks omitted.) McKinney v. Chapman, 103 Conn. App. 446, 451, 929 A.2d 355, cert. denied, 284 Conn. 928, 934 A.2d 243 (2007). “A material fact is a fact which will make a difference in the result of the case.” (Internal quotation marks omitted.) Stokes v. Lyddy, 75 Conn. App. 252, 257, 815 A.2d 263 (2003).

The plaintiff claimed that the defendant’s negligence caused her injuries. “The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. . . . If a plaintiff cannot prove all of those elements, the cause of action fails.” (Internal quotation marks omitted.) Angiolillo v. Buckmiller, 102 Conn. App. 697, 711, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007).

“The status of an entrant on another’s land, be it trespasser, licensee or invitee, determines the duty that is owed to the entrant while he or she is on a landowner’s property.” Salaman v. Waterbury, 246 Conn. 298, 304-305, 717 A.2d 161 (1998). “A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.” (Internal quotation marks omitted.) Sevigny v. Dibble Hollow Condominium Assn., Inc., 76 Conn. App. 306, 320, 819 A.2d 844 (2003). “A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe. ... In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover. ... An occupier of land is chargeable with constructive notice of defects when dealing with invitees. . . . The determinative question is whether the defective condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have discovered it and remedied it. . . . Thus, to establish liability for an injury caused by a [defect on the landowner’s premises], a plaintiff must establish that the landowner had either actual or constructive notice of the . . . defective condition.” (Citations omitted; internal quotation marks omitted.) McDermott v. Calvary Baptist Church, 68 Conn. App. 284, 294-95, 791 A.2d 602 (2002), aff'd, 263 Conn. 378, 819 A.2d 795 (2003).

When negligence is alleged against a municipality, our Supreme Court has stated that “[a] municipality itself was generally immune from liability for its tortious acts at common law .... [H]owever, that governmental immunity may be abrogated by statute. . . . General Statutes § 52-557n (a) (1) provides in relevant part: Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by . . . [t]he negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties .... [T]his language clearly and expressly abrogates the traditional common-law doctrine in this state that municipalities are immune from suit for torts committed by their employees and agents,” except under the circumstances set forth in subsection (a) (2) (B). (Citation omitted; internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 47-48, 881 A.2d 194 (2005).

General Statutes § 52-557n (a) (2) provides in relevant part: “Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.” Because the parties in the present matter assume that the immunity provided by § 52-557n (a) (2) (B) is identical to a municipal employee’s qualified immunity for discretionary acts at common law, we also assume, without deciding, that § 52-557n (a) (2) (B) codifies the common law. See Martel v. Metropolitan District Commission, supra, 275 Conn. 48.

Under the common law, “a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts. . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. . . . The hallmark of a discretionary act is that it requires the exercise of judgment.” (Citation omitted; internal quotation marks omitted.) Id., 48-49. “If by statute or other rule of law the official’s duty is clearly ministerial rather than discretionary, a cause of action lies for an individual injured from allegedly negligent performance.” Shore v. Stonington, 187 Conn. 147, 153, 444 A.2d 1379 (1982). “[Mjinisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.” (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, supra, 275 Conn. 49; see also Blake v. Mason, 82 Conn. 324, 327, 73 A. 782 (1909) (ministerial act is one which person performs in given state of facts, in prescribed manner, in obedience to mandate of legal authority, without regard to or exercise of own judgment on propriety of act being done).

Our Supreme Court has explained the policy rationale for governmental immunity. “Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society. . . . Discretionary act immunity reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.” (Internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 105-106, 931 A.2d 859 (2007).

“Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint.” (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, supra, 275 Conn. 49. “[T]he determination of whether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to § 52-557n (a) (2) (B), turns on the character of the act or omission complained of in the complaint. . . . Accordingly, where it is apparent from the complaint that the defendants’ allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 51 n.8.

Against this legal backdrop, the pivotal question we must resolve is whether the court properly concluded that the defendant’s duties to inspect the premises, to maintain the premises in a reasonably safe condition and to warn invitees of the existence of an unsafe condition were discretionary rather than ministerial in nature, thereby sheltering the defendant under the umbrella of immunity provided by § 52-557n (a) (2) (B). The substitute plaintiff claims that the court’s conclusion was improper because two city ordinances removed all discretion from the defendant’s performance of its duties to inspect, maintain and warn. The defendant argues that those ordinances do not dictate the “ ‘prescribed manner’ in which inspection, maintenance and the issuance of warnings are to be performed.” The court, in siding with the defendant, determined that “the ordinances cited do not prescribe the manner in which [the defendant’s] facilities are to be kept safe. While § 16-173 [of the Milford Code of Ordinances] does specifically provide what is to be done once a structure is found to be unsafe, the manner in which such determination is made requires the exercise of discretion.” Although we agree with the court’s statements, we disagree with the court’s implication that the discretionary nature of the predicate act of inspection rendered the subsequent act of warning also discretionary. We conclude, however, that because there is no evidentiary foundation for the plaintiffs assertion that the defendant had notice of a defect, the defendant had no duty to perform its ministerial warning function. Accordingly, the court properly rendered summary judgment in favor of the defendant.

In general, the exercise of duties involving inspection, maintenance and repair of hazards are considered discretionary acts entitled to governmental immunity. See Evon v. Andrews, 211 Conn. 501, 506-507, 559 A.2d 1131 (1989) (defendants’ acts discretionary in nature because what constitutes reasonable, proper or adequate inspection involves exercise of judgment); Segreto v. Bristol, 71 Conn. App. 844, 857-58, 804 A. 2d 928 (city’s allegedly negligent design and maintenance of stairwell was discretionary because determinations of what is reasonable or proper under particular set of circumstances necessarily involve exercise of judgment), cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002). A municipality necessarily makes discretionary policy decisions with respect to the timing, frequency, method and extent of inspections, maintenance and repairs. The substitute plaintiff claims, however, that § 16-91 (b) of the Milford Code of Ordinances converted the defendant’s otherwise discretionary duties to inspect and maintain into ministerial functions. We disagree.

Section 16-91 (b) of the Milford Code of Ordinances provides in relevant part: “It shall be the responsibility of the owner, licensee, or operator of any marina, repair yard, or other maritime facility located within any harbor, waterway or other maritime facility, to maintain the physical improvements under his jurisdiction in a safe . . . condition at all times . . . .” The plain language of this ordinance does nothing to alter the common-law duty of a possessor of land to inspect and to maintain its premises in a reasonably safe condition for its invitees. See McDermott v. Calvary Baptist Church, supra, 68 Conn. App. 294-95. Neither the common law nor the ordinance prescribes the manner in which the defendant is to perform reasonable and proper inspection and maintenance activities. What is reasonable and proper is left to the discretion of the defendant. See Evon v. Andrews, supra, 211 Conn. 506-507 (inspection by definition involves checking or testing subject against established standards, and no matter how objective standard is, inspector’s decision whether subject of inspection falls below standard and whether remedial measures are required involves exercise of judgment); Segreto v. Bristol, supra, 71 Conn. App. 857-58 (where city employees not ordered to maintain premises in any particular manner, duty to maintain remained discretionary). The defendant’s discretionary duty under the common law is not rendered ministerial by the mere fact that a municipality chooses to codify it as an ordinance. The nature of the duty remains unchanged. Accordingly, the defendant’s actions in connection with the inspection and maintenance of its premises are shielded by the immunity preserved under § 52-577n (a) (2) (B).

With respect to the defendant’s duty to warn of unsafe conditions, we reach a different conclusion. Section 16-173 of the Milford Code of Ordinances provides: “Whenever any buildings, structures or floating facilities within a harbor or marine facility either on land or water are found to be defective or damaged so as to be unsafe or dangerous to persons or property, it shall be the duty of the owner, agent, lessee, operator or person in charge thereof to immediately post a proper notice and/or fence or barricade and at night to adequately light such unsafe area or areas, and such unsafe area or areas shall be kept posted and lighted and/or fenced or barricaded until the necessary repairs are made.” Similar to § 16-91 (b), this ordinance codifies the common-law duty to warn invitees of known hazards and in addition prescribes the manner in which that warning shall be issued. The form of the warning, i.e., by posting a notice or fence or barricade and by lighting the hazard at night, as well as the timing of the warning, i.e., immediately upon discovery of the unsafe condition and until necessary repairs are made, are set forth explicitly in the ordinance.

We are not persuaded by the defendant’s argument that the duty to warn of known hazards, under both the common law and the ordinance, is a “general objective” that, in order to be achieved, requires the exercise of sound discretion and judgment by those in charge of the premises. As we observed in Kolaniak, v. Board of Education, 28 Conn. App. 277, 281, 610 A.2d 193 (1992), “[e]veiy voluntary physical act necessarily requires some sort of preceding thought process and decision by the actor.” On the basis of this maxim, we declined to equate the act of clearing snow and ice by maintenance workers, in accordance with a directive by the policymaking board of education, with policy decisions usually afforded protection by the doctrine of governmental immunity. Id. The act of warning invitees of hazards is not rendered more discretionary than the removal of snow from a sidewalk merely by virtue of the fact that the defendant may choose between a sign or a barricade. The general objective, i.e., the safety of the premises, remains unchanged.

In addition, our Supreme Court has observed that “[a] ministerial duty on the part of an official often follows a quasi-judicial determination by that official as to the existence of a state of facts. Although the determination itself involves the exercise of judgment, and therefore is not a ministerial act, the duty of giving effect, by taking appropriate action, to the determination is often ministerial.” Pluhowsky v. New Haven, 151 Conn. 337, 347-48, 197 A.2d 645 (1964).

For example, “[i]n Leger v. Kelley, 142 Conn. 585, 589, 116 A.2d 429 [(1955)], the determination by the motor vehicles commissioner as to whether the car in question was manufactured after July 1, 1937, and, if so, whether it was equipped with a type of safety glass approved by him, was quasi-judicial and not ministerial. After that determination had been made, the commissioner’s duty of registering or refusing to register the car, according to the determination which he had reached, was ministerial, since the commissioner had no discretion in the matter.” Pluhowsky v. New Haven, supra, 151 Conn. 348. Similarly, in Wright v. Brown, 167 Conn. 464, 471-72, 356 A.2d 176 (1975), the dog warden was charged under General Statutes § 22-358 with the duty of quarantining a dog for fourteen days once she found that the dog had bitten a person who was not on the premises of the owner or keeper of the dog. The court observed: “While the determination of that state of facts involved the exercise of judgment, the subsequent duty to quarantine for fourteen days was mandatory and, therefore, ministerial.” Wright v. Brown, supra, 472.

In this case, the duty of the defendant to inspect and to maintain its property is, as we have explained, discretionary in nature. The court improperly concluded, however, that the discretionary nature of that predicate activity rendered the subsequent duty to warn invitees of known hazards equally discretionary. Once an initial determination of an unsafe condition is made, § 16-173 of the Milford Code of Ordinances requires “some sort of preceding thought process and decision” that falls well short of the type of policy decision usually afforded protection by the doctrine of governmental immunity. See Kolaniak v. Board of Education, supra, 28 Conn. App. 281.

The court nonetheless properly rendered summary judgment because the plaintiff failed to provide an evidentiary foundation for her assertion that the defendant had made the initial determination of an unsafe condition. Our review of the record reveals that in support of its motion for summary judgment, the defendant provided a partial transcript of the deposition testimony of Richard Hosking, the harbor operations director in charge of Milford Landing. At his deposition, Hosking testified that repairs are made to the patio on an annual basis in the spring, due to the winter frost, and that in his judgment, such repairs were never necessary during the summer, notwithstanding daily inspections of the patio surface. The plaintiff, in response, failed to submit any evidence that made the defendant’s knowledge of a defect a genuine issue. Accordingly, the court properly rendered summary judgment because the plaintiff could not prove that the defendant had a duty to perform its ministerial warning function under § 16-173 of the Milford Code of Ordinances.

The judgment is affirmed.

In this opinion the other judges concurred.

       The original plaintiff, Lucy Grignano, died during the pendency of this appeal. On July 20,2007, we granted a motion to substitute Vincent Grignano as a party plaintiff.

       The defendant, concedes that its management of Milford Landing is subject to the provisions of both ordinances cited by the substitute plaintiff but disputes only the nature of the duties imposed by those ordinances.