author: ALVORD, J.

text:
    JOSEPHINE PERRONE, CO-ADMINISTRATRIX (ESTATE OF DANIEL RILEY), ET AL. v. STATE OF CONNECTICUT ET AL.
    (AC 31073)
    Graendel, Alvord and Mihalakos, Js.

      Argued April 7
    officially released July 6, 2010

      Donn A. Swift, with whom, on the brief, was Benjamin D. Gettinger, for the appellants (plaintiffs).

      Thomas J. Davis, Jr., assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (named defendant).
   Opinion

ALVORD, J.

The plaintiffs, Josephine Perrone and Gail Perrone, administratrices of the estate of Daniel Riley, appeal from the judgment of the trial court dismissing their negligence action against the defendant state of Connecticut. On appeal, the plaintiffs claim that the court improperly concluded that it lacked subject matter jurisdiction because the plaintiffs’ claim against the state was barred by the doctrine of sovereign immunity. We affirm the judgment of the trial court.

The record and the complaint reveal the following undisputed facts and procedural history. On April 3, 2005, Daniel Riley, while being held in custody, committed suicide by hanging himself at the Union Avenue detention center in New Haven. By letter dated July 29, 2005, the attorney for the estate of Riley filed a claim with the claims commissioner (commissioner), seeking permission to bring an action against the state for Riley’s wrongful death. On November 29, 2006, the plaintiffs filed the present action in the Superior Court. By motion filed November 30, 2006, the state moved to dismiss the claim filed with the commissioner on the ground that the commissioner lacked subject matter jurisdiction over “claims upon which suit is otherwise authorized by law including suits to recover similar relief arising from the same set of facts.” On January 23, 2007, the state filed a motion to dismiss count one of the complaint in the present action, claiming that the court lacked jurisdiction because sovereign immunity barred the plaintiffs’ negligence claim against the state. By decision dated March 2, 2007, the commissioner dismissed the claim pending before him because “ [b] oth the claimant’s civil rights lawsuit and the instant claim seek money damages and therefore satisfy the ‘similar relief requirement of [General Statutes] § 4-142 (2).”

Before the court ruled on the state’s motion to dismiss count one of the complaint, the plaintiffs filed a motion to stay the proceedings until the General Assembly ruled on the plaintiffs’ request to overturn the decision of the commissioner. The court granted the plaintiffs’ motion on March 14, 2007. On April 20, 2009, the plaintiffs filed a notice indicating that the stay should be terminated because “the Committee on Judiciary confirmed the decision of the Claims Commissioner ... .” By memorandum of decision filed April 29, 2009, the court concluded that it lacked subject matter jurisdiction over the plaintiffs’ claim against the state because the commissioner did not grant the plaintiffs permission to bring suit against the state. Accordingly, the court dismissed count one of the complaint. This appeal followed.

We begin by setting forth the applicable standard of review. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo. . . . [T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. . . .

“It is a well-established rule of the common law that a state cannot be sued without its consent. . . . We have held that a plaintiff seeking to circumvent the doctrine of sovereign immunity must show that . . . the legislature, either expressly or by force of a necessary implication, statutorily waived the state’s sovereign immunity . . . .” (Citations omitted; internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706-707, 987 A.2d 348 (2010).

“In the absence of a statutory waiver of sovereign immunity, the plaintiff may not bring an action against the state for monetary damages without authorization from the claims commissioner to do so.” Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 351, 977 A.2d 636 (2009). General Statutes § 4-160 (a) provides: “When the Claims Commissioner deems it just and equitable, the Claims Commissioner may authorize suit against the state on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be liable.” “When sovereign immunity has not been waived, the claims commissioner is authorized by statute to hear monetary claims against the state and determine whether the claimant has a cognizable claim. . . . This legislation expressly bars suits upon claims cognizable by the claims commissioner except as he may authorize, an indication of the legislative determination to preserve sovereign immunity as a defense to monetary claims against the state not sanctioned by the [claims] commissioner or other statutory provisions.” (Citation omitted; internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 317-18, 828 A.2d 549 (2003).

The plaintiffs argue that they may bring a direct action against the state in the Superior Court because § 4-142 (2) exempts their claim from the claims process. They maintain that they did not need permission to bring the present action against the state because the commissioner made a finding in his decision that the plaintiffs already had filed an action authorized by law in the Superior Court, thereby exempting them from proceeding further with the commissioner. The state argues that the plaintiffs made the election to file both a claim with the commissioner and a civil action in the Superior Court, that both matters were pending at the same time, that the negligence action against the state had been commenced without permission from the commissioner, that § 4-142 (2) precluded the plaintiffs’ claim before the commissioner once the plaintiffs filed their civil rights and intentional infliction of emotional distress action in the Superior Court and that adoption of the plaintiffs’ interpretation of § 4-142 (2) would undermine the doctrine of sovereign immunity. We agree with the state.

Section 4-142 provides in relevant part: “There shall be a Claims Commissioner who shall hear and determine all claims against the state except ... (2) claims upon which suit otherwise is authorized by law including suits to recover similar relief arising from the same set of facts . . . .” It is undisputed that the plaintiffs sought permission to bring suit against the state for money damages in the claim that it filed with the commissioner. It also is undisputed that the negligence count against the state in the present case is an action seeking money damages. The facts underlying the claim and the relevant count in the civil lawsuit, as set forth in the claim and the complaint, are identical. The theories of recovery differ, in part, however, because the plaintiffs brought suit in the Superior Court against the judicial marshals for civil rights violations and intentional infliction of emotional distress.

The commissioner dismissed the plaintiffs’ claim because the civil rights lawsuit against the judicial marshals in the Superior Court and the claim before him both sought money damages and arose from the same incident. The commissioner concluded that he therefore lacked subject matter jurisdiction over the claim before him because § 4-142 (2) excepts “claims upon which suit otherwise is authorized by law including suits to recover similar relief arising from the same set of facts . . . .” General Statutes § 4-142 (2). The present action against the judicial marshals, brought against them in their individual capacities, was a suit authorized by law, sought the same monetary relief as sought in the claim before the commissioner and arose from the same set of facts as set forth in the claim before the commissioner. On that basis, the commissioner concluded that the claim before him was an excepted claim under § 4-142 (2) and dismissed the claim.

The plaintiffs disagreed with the decision of the commissioner and filed a request for review of that decision by the General Assembly. The General Assembly confirmed the decision. This review by the legislature was their only recourse. The Superior Court lacks jurisdiction to hear appeals from the decisions of the commissioner. “[T]he trial court does not have jurisdiction over an administrative appeal from the claims commissioner’s discretionary denial of authorization to bring an action against the state because [t]he commissioner of claims performs a legislative function directly reviewable only by the General Assembly.” (Internal quotation marks omitted.) D’Eramo v. Smith, 273 Conn. 610, 618, 872 A.2d 408 (2005).

Simply put, the plaintiffs were denied permission by the commissioner to bring an action against the state, and there is no statutory provision that authorizes the commencement of a negligence action against the state in the Superior Court for money damages without permission from the commissioner or the General Assembly. The doctrine of sovereign immunity therefore bars the plaintiffs’ negligence claim against the state, and the court lacked subject matter jurisdiction over that claim. See Miller v. Egan, supra, 265 Conn. 317-18. Accordingly, the court properly dismissed count one of the plaintiffs’ complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       In their complaint, the plaintiffs also named five judicial marshals as individual defendants and claimed that they violated Riley’s civil rights and intentionally inflicted emotional distress. The court dismissed count one of a six count complaint, which was the only count directed against the state. Thus, there still are pending counts in the trial court with respect to the individual defendants. The state is the only defendant in this action on appeal. Because the partial judgment disposed of all causes of action against the state, there is a final judgment for purposes of this appeal. See Practice Book § 61-3.

       “[Ljack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” (Internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 347, 977 A.2d 636 (2009). In the present case, the jurisdictional issue was decided on the basis of the complaint and the undisputed facts in the record.

       In their appellate brief, the plaintiffs acknowledged that the decision of the commissioner was ratified by the legislature during the 2008 regular session of the General Assembly in Substitute House Joint Resolution No. 22, File No. 557 (April 9, 2008).

       As an initial matter, we note that we have jurisdiction to hear this appeal regardless of whether the trial court had jurisdiction over the plaintiffs’ claim in count one of the complaint. See Gemmell v. Lee, 42 Conn. App. 682, 684 n.3, 680 A.2d 346 (1996) (appellate court has jurisdiction to determine whether trial court had subject matter jurisdiction).

       We disagree with the plaintiffs’ interpretation of the commissioner’s decision in dismissing the claim. Nevertheless, even if the legal conclusions of the commissioner are as stated by the plaintiffs, we are not bound by them. See Capers v. Lee, 239 Conn. 265, 269 n.7, 684 A.2d 696 (1996).

       The plaintiffs did not need permission from the commissioner to bring the present action against the judicial marshals in their individual, as opposed to their official, capacities. “If the plaintiffs complaint reasonably may be constraed to bring claims against the defendants in their individual capacities, then sovereign immunity would not bar those claims.” Miller v. Egan, supra, 265 Conn. 307. Counts two through six of the plaintiffs’ complaint in the present action clearly indicate that the individual defendants are being sued in their individual capacities.

       Public Acts 1996, No. 96-85, amended subsection (2) of § 4-142 to include ‘‘suits to recover similar relief arising from the same set of facts . . . .” The summary of Public Act 96-85 provides: “This act specifies that someone who is seeking monetary damages from the state and is authorized by law to file a suit against the state cannot bring a claim based on the same set of facts to the claims commissioner.” Office of Legislative Research, Connecticut General Assembly, Summary of 1996 Public Acts (1996) p. 170.
      In the legislative history, the testimony of Attorney General Richard Blumenthal before the judiciary committee was supportive of the amendment to the statute. He indicated: “In some limited circumstances, the General Assembly has allowed people to bring a lawsuit directly to the [SJuperior [CJourt, bypassingthe [cjlaims [cjommissioner. The [cjlaims [cjommissioner may not review claims which could be brought directly in the [SJuperior [CJourt. Specifically, the statute provides that the [cjlaims [cjommissioner is not authorized to review claims ‘upon which suit otherwise is authorized by law’ ....
      “Despite the statutory prohibition against the [cjlaims [cjommissioner hearing cases which could be otherwise brought in court, my office is defending several suits simultaneously in two forums—both the [cjlaims [cjommissioner and the [SJuperior [CJourt—although the claim arises out of the same action of a state employee or official and both requests are for money damages. In essence, these claimants are afforded two opportunities to collect from the state.
      “[This amendment] would clarify the original intent of the [cjlaims [cjom-missioner statute by specifying that a claimant who is seeking money damages from the state, and who is authorized to bring a direct action in [SJuperior [CJourt, cannot bring a claim based on the same set of facts simultaneously through the[c]laims [cjommissioner.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 1996 Sess., p. 785.

        We usually limit our review of legislative history to remarks made during the debates on the floor of the House of Representatives or the Senate. Mahoney v. Lensink, 213 Conn. 548, 559 n.15, 569 A.2d 518 (1990). “We have occasionally, however, cast a wider net, when committee testimony contains particularly compelling evidence about the problem, issue or purpose underlying a statute.” Id.

       The commissioner most definitely did not say, as claimed by the plaintiffs, that permission to bring suit against the state was not necessary because there already was a pending civil action against the state and the individual marshals that was authorized by law. The plaintiffs have referenced no statutory provisions that authorize the commencement of a negligence action against the state for money damages in the Superior Court without first having obtained permission from the commissioner to bring that action.

       Accordingly, we do not and cannot determine whether the decision of the commissioner dismissing the plaintiffs’ claim was proper under these circumstances. “As undesirable as the plaintiff may find this statutory scheme, it nevertheless is the expression of a policy decision committed to the legislature. Thus, [w] e must resist the temptation which this case affords to enhance our own constitutional authority by trespassing upon an area clearly reserved as the prerogative of a coordinate branch of government.” (Internal quotation marks omitted.) 184 Windsor Avenue, LLC v. State, 274 Conn. 302, 313, 875 A.2d 498 (2005).


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. GARY C. BERNACKI, SR.
    (AC 30176)
    Flynn, C. J., and Beach and West, Js.

      Argued March 15
    officially released July 6, 2010

      Glenn W. Falk, special public defender, with whom, on the brief, was Elliot Morrison, law student intern, for the appellant (defendant).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, and Kimberley N. Perrelli, senior assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

FLYNN, C. J.

The defendant, Gary C. Bemacki, Sr., appeals from the judgment of the trial court, following a jury trial, convicting him of, and sentencing him for, criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (3) (A) and criminal violation of a protective order in violation of General Statutes § 53a-223 (a). On appeal, the defendant claims that his conviction of, and his punishment for, both of these crimes violates the double jeopardy clause of the fifth amendment to the United States constitution and article first, § 9, of the Connecticut constitution because, as charged, they constitute the same offense. Although we agree that the crimes as charged constitute the same offense, we conclude that the legislature intended to permit multiple punishments for the crimes of criminal violation of a protective order and criminal possession of a firearm. Accordingly, we affirm the judgment of the trial court.

In this case, the charging document provides in relevant part: “Second Count,. And the [senior assistant state’s] attorney aforesaid further accuses [the defendant] of criminal possession of a firearm and charges that in the [t]own of Shelton on or about August 10, 2005, the said [defendant] possessed a firearm and knew that [he] was subject to a protective order of a [c]ourt of this [s]tate that had been issued against such person, after notice and opportunity to be heard had been provided to such person, in a case involving the use of physical force, attempted use or threatened use of physical force against another person in violation of [§] 53a-217 (a) (3) (A) of the Connecticut General Statutes.

“Third Count. And the attorney aforesaid further accuses [the defendant] of criminal violation of a protective order and charges that in the [t]own of Shelton on or about August 10, 2005, an order issued pursuant to [s]ubsection (e) of [General Statutes §] 46b-38c had been issued against [him,] and [he] violated such order in violation of [§] 53a-223 (a) of the Connecticut General Statutes.” The basis of the charge of criminal violation of a protective order was the defendant’s possession of a firearm, which specifically is prohibited by anyone against whom a protective order has been issued.

The jury found the defendant guilty of these two charges, and the court sentenced him on count two to a four year term of imprisonment, execution suspended after two years, with four years of probation. On count three, the court sentenced the defendant to a four year term of imprisonment, execution suspended after one year, with four years of probation. The sentences were ordered to run concurrently, for a total effective sentence of four years imprisonment, execution suspended after two years, with four years of probation. This appeal followed.

The defendant claims that his conviction of, and his punishment for, both of these crimes violates double jeopardy because the crimes, as charged, constitute the same offense. He requests review of this unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The record on appeal is adequate for review, and a claim of double jeopardy is of constitutional magnitude. See State v. Chicano, 216 Conn. 699, 704-705, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). Accordingly, we will review the defendant’s claim.

“A defendant may obtain review of a double jeopardy claim, even if it is unpreserved, if he has received two punishments for two crimes, which he claims were one crime, arising from the same transaction and prosecuted at one trial .... Because the claim presents an issue of law, our review is plenary.” (Internal quotation marks omitted.) State v. Bozelko, 119 Conn. App. 483, 507, 987 A.2d 1102, cert. denied, 295 Conn. 916, 990 A.2d 867 (2010). “[T]he double jeopardy clause protects [defendants] from multiple punishments for the same offense. To be entitled to this type of double jeopardy protection, the defendant must satisfy both prongs of a two-pronged test. First, the charges must arise out of the same act or transaction. Second, it must be determined [that] the charged crimes are the same offense. ... In conducting this inquiry, we look only to relevant statutes, the information, and the bill of particulars, not to the evidence presented at trial.” (Internal quotation marks omitted.) State v. Kurzatkowski, 119 Conn. App. 556, 569, 988 A.2d 393, cert. denied, 296 Conn. 902, 991 A.2d 1104 (2010); see Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932) (developing this two-pronged test).

“The application of the Blockburger test, however, does not end our analysis of the double jeopardy issue. [T]he Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history. . . . Double jeopardy protection against cumulative punishments is only designed to ensure that the sentencing discretion of the courts is confined to the limits established by the legislature. . . . Where ... a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the same conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial. . . . The Blockburger test is a rule of statutory construction, and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent. . . . The language, structure and legislative history of a statute can provide evidence of this intent.” (Citations omitted; internal quotation marks omitted.) State v. Greco, 216 Conn. 282, 292-93, 579 A.2d 84 (1990).

The defendant argues that his conviction and sentence violate his constitutional right not to be placed in double jeopardy because criminal violation of a protective order by the act of possessing a firearm and criminal possession of a firearm, while there is a protective order, punish him for the same acts. The state argues that the two offenses are not the same for double jeopardy proposes because criminal possession of a firearm has possession of a firearm as an element and criminal violation of a protective order does not. In the alternative, the state argues that there was no intent by the legislature to prohibit multiple punishments for the same conduct under these circumstances and that each of these statutes aims to promote different interests. Although we agree with the defendant that the crimes as charged constituted the same offense because he could not have committed one of the crimes without having committed the other, we further conclude that the legislature intended to provide multiple punishments for the defendant’s conduct in possessing a firearm while being subject to a protective order.

In reaching our conclusion, we look to the reasoning of this court’s decision in State v. Quint, 97 Conn. App. 72, 77-83, 904 A.2d 216, cert. denied, 280 Conn. 924, 908 A.2d 1089 (2006), which we find persuasive. In Quint, the defendant had been charged with criminal violation of a protective order pursuant to § 53a-223 (a) and with criminal trespass in the first degree in violation of General Statutes § 53a-107 (a) (2). As explained in Quint, “§ 53a-107 (a) (2), criminal trespass in the first degree, makes it a crime when a person ‘enters or remains in a building or any other premises in violation of a . . . protective order issued pursuant to [General Statutes §§] 46b-38c, 54-lk or 54-82r by the Superior Court ....’” Id., 77 n.3. This court explained that criminal violation of a protective order and criminal trespass in the first degree as charged in the Quint case constituted the same offense because the defendant could not have committed one of the crimes without having committed the other. Id., 80. We can discern no meaningful difference between Quint and the present case.

In the present case, the defendant was charged with criminal violation of a protective order, which stemmed from his possessing firearms in violation of that order, and he was charged with criminal possession of a firearm while subject to a protective order. As in Quint, we conclude that the defendant could not have committed one of these crimes without having committed the other. Our inquiry, however, does not end there.

“It frequently happens that one activity of a criminal nature will violate one or more laws or that one or more violations may be charged. Although the question is not totally free of doubt, it appears that the double jeopardy clause does not limit the legislative power to split a single transaction into separate crimes so as to give the prosecution a choice of charges that may be tried in one proceeding, thereby making multiple punishments possible for essentially one transaction.” J. Killian, G. Costello & K. Thomas, The Constitution of the United States of America Analysis and Interpretation (2002) pp. 1386-87. Essentially, there are two types of situations in which a single transaction may be split into separate crimes. “There are ‘double-description’ cases in which criminal law contains more than one prohibition for conduct arising out of a single transaction. E.g., Gore v. United States, 357 U.S. 386, 392-93 [78 S. Ct. 1280, 2 L. Ed. 2d 1405] (1958) (one sale of narcotics resulted in three separate counts: [1] sale of drugs not in pursuance of a written order, [2] sale of drugs not in the original stamped package, and [3] sale of drugs with knowledge that they had been unlawfully imported). And there are ‘unit-of-prosecution’ cases in which the same conduct may violate the same statutory prohibition more than once. E.g., Bell v. United States, 349 U.S. 81 [75 S. Ct. 620, 99 L. Ed. 905] (1955) (defendant who transported two women across state lines for an immoral purpose in one trip in same car indicted on two counts of violating Mann Act [18 U.S.C. § 2421]).” J. Killian, G. Costello & K. Thomas, supra, 1387 n.139.

In the present case, we must determine whether we are dealing with a double-description case in which the legislature has indicated an intent to permit multiple punishments for the relevant crimes. To do this, we must look to the language, structure and legislative history of §§ 53a-217 (a) (3) (A) and 53a-223 (a). See State v. Greco, supra, 216 Conn. 293.

Initially, we look to the language of §§ 53a-217 (a) (3) (A) and 53a-223 (a). General Statutes § 53a-217 provides in relevant part: “(a) A person is guilty of criminal possession of a firearm . . . when such person possesses a firearm . . . and ... (3) knows that such person is subject to (A) a restraining or protective order of a court of this state that has been issued against such person, after notice and an opportunity to be heard has been provided to such person, in a case involving the use, attempted use or threatened use of physical force against another person . . . . (b) Criminal possession of a firearm ... is a class D felony, for which two years of the sentence imposed may not be suspended or reduced by the court.” General Statutes § 53a-223 provides: “(a) A person is guilty of criminal violation of a protective order when an order issued pursuant to subsection (e) of section 46b-38c, or section 54-lk or 54-82r has been issued against such person, and such person violates such order, (b) Criminal violation of a protective order is a class D felony.” Reviewing the language of these statutes, we conclude that neither statute contains language barring multiple punishments for the same offense. “We have held that because the legislature has shown that it knows how to bar multiple punishments expressly when it does not intend such punishment . . . the absence of similar language in those statutes provides evidence that the legislature intended cumulative punishments.” (Internal quotation marks omitted.) State v. Quint, supra, 97 Conn. App. 80-81.

Section 53a-217 was enacted by Public Acts 1982, No. 82-464. Subsection (a) (3) of § 53a-217 was added by amendment in 2001 via Public Acts 2001, No. 01-130 (P.A. 01-130), entitled “An Act Concerning Assault Weapons, A Single State Handgun Permit, A Firearms Evidence Databank and Restraining and Protective Orders in Firearms Cases.” In part, P.A. 01-130 addressed the act of possessing a firearm by a person who knows he or she is subject to a restraining or protective order. In discussing the proposed bill, Senate Bill No. 1402, later enacted as P.A. 01-130, Representative Ronald S. San Angelo explained that “[u]nder current law ... if somebody is under a restraining or protective order, they’re required, under state law, to turn in their gun within [forty-eight] hours. That is a requirement under current law.” 44 H.R. Proc., Pt. 15, 2001 Sess., p. 5070. Senator Alvin W. Penn explained that the bill, in part, “tightens control over people possessing firearms ... in violent situations.” 44 S. Proc., Pt. 11, 2001 Sess., p. 3229. Although this history is not very informative on the issue of whether the legislature intended multiple punishments in this instance, the history surrounding § 53a-223 is a bit more telling.

Section 53a-223, enacted by Public Acts 1991, No. 91-381, was amended in 2002, via Public Acts 2002, No. 02-127. In discussing the proposed amendment to the statute, Representative Michael P. Lawlor explained that the proposal “changes the existing penalty for the crime of criminal violation of a protective order from a Class A misdemeanor to a Class D felony.” 45 H.R. Proc., Pt. 16, 2002 Sess., p. 5191. When asked what impact this change might have on a person’s right to carry a firearm, Representative Lawlor explained: “I don’t think this amendment . . . impacts . . . that right. The right is already subject, the right to have a firearm is, you don’t have that right once you’re subject to a restraining order, so this doesn’t change that in any way.” Id., p. 5194. He further explained: “[T]his does rewrite the domestic violence laws considerably. However, it doesn’t change any of the existing firearms laws as they relate to the domestic violence laws. . . . Once you’re subject to a restraining order or a protective order, you’re not permitted to have a firearm. In fact, you’re obligated to turn in your firearm within a relatively short period of time. This doesn’t change those laws. However, it is relevant to those laws.” Id., p. 5195.

When asked to clarify further the reason for increasing the penalty for a violation of § 53a-223 and how it applied to crimes committed that both violated the protective order and violated another criminal statute, Representative Lawlor explained that both laws would apply in such cases. Representative Rosta M. Diamantis asked: “My question [is] . . . does this particular offense or the consequences of a violation of a protective order apply to both equally?” Id., p. 5199.

Representative Lawlor explained: “Well, in that situation I think the answer is yes, assuming that the specific violation of the protective [order] was a specific order issued by the court.” Id. He also stated: A “protective order is only an option after there’s been an arrest for a criminal violation. . . . [Y]ou can’t engage in conduct which would give rise to a protective order without . . . [a]t least the allegation that you’ve committed a crime. . . . [There would be] a criminal charge pending and ... in effect [if you commit another crime, you would] have violated the conditions of your release, one of which now is to abide by a protective order.” Id., p. 5204.

Reviewing this history, we are persuaded that the legislature knew of both statutes at issue in this case and that it intended to permit multiple punishments when a person who was subject to a protective order possessed firearms. See General Statutes §§ 53a-217 (a) (3) (A) and 53a-223 (a).

Furthermore, “[additional evidence of the legislature’s intent to provide for cumulative punishments [can be evidenced by whether] the statutes set forth separate penalties rather than using a multiplier of a penalty established for another offense.” (Internal quotation marks omitted.) State v. Quint, supra, 97 Conn. App. 81. In the present case, neither statute refers to the other, and, although both are defined as class D felonies, a violation of § 53a-217 carries a mandatory minimum sentence of two years imprisonment that may not be suspended or reduced by the court, and a violation of § 53a-223 does not carry such a mandate.

On the basis of the foregoing, we conclude that the defendant’s conviction of, and punishment for, criminal possession of a firearm in violation of § 53a-217 (a) (3) (A) and criminal violation of a protective order in violation of § 53a-223 (a) was consistent with the legislature’s intent to provide cumulative punishments for the single act of possessing a firearm in violation of a protective order. The defendant, therefore, has failed to establish that a constitutional violation clearly exists, and that it clearly deprived him of a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-217 provides in relevant part: “(a) A person is guilty of criminal possession of a firearm . . . when such person possesses a firearm . . . and ... (3) knows that such person is subject to (A) a restraining or protective order of a court of this state that has been issued against such person, after notice and an opportunity to be heard has been provided to such person, in a case involving the use, attempted use or threatened use of physical force against another person ....
      “(b) Criminal possession of a firearm ... is a class D felony, for which two years of the sentence imposed may not be suspended or reduced by the court.”

       General Statutes § 53a-223 provides: “(a) A person is guilty of criminal violation of a protective order when an order issued pursuant to subsection (e) of section 46b-38c, or section 54-lk or 54-82r has been issued against such person, and such person violates such order.
      “(b) Criminal violation of a protective order is a class D felony.”

       “The fifth amendment to the United States constitution provides in relevant part: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a [g]rand [j]ury . . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law ....
      “Although the Connecticut constitution has no specific double jeopardy provision, we have held that the due process guarantees of article first, § 9, include protection against double jeopardy. . . .
      “Article first, § 9, of the Connecticut constitution provides: No person shall be arrested, detained or punished, except in cases clearly warranted by law.” (Citation omitted; internal quotation marks omitted.) State v. Tabone, 292 Conn. 417, 421 n.6, 973 A.2d 74 (2009).
      We also note at the outset that “this court [previously] has held that our state constitution does not afford any greater due process rights than those afforded under the federal constitution’s double jeopardy clause in analyzing double jeopardy claims arising from multiple convictions and punishments imposed in a single trial.” State v. Kurzatkowski, 119 Conn. App. 556, 568 n.9, 988 A.2d 393, cert. denied, 296 Conn. 902, 991 A.2d 1104 (2010).

       The jury found the defendant not guilty of possession of a machine gun in violation of General Statutes § 53-202 (c).

       Although compiled after the passage of P.A. 01-130, the General Assembly’s office of legislative research summary of P.A. 01-130 explains in relevant part: “By law, a family violence offender cannot possess handguns if he knows he is subject to ... a restraining or protective order, issued after notice and an opportunity to be heard, for using, attempting to use, or threatening to use physical force against someone. If he was issued a permit to carry guns or an eligibility certificate to acquire them, the issuing authority must revoke it. Failure to surrender a permit or eligibility certificate within five days of notification is a class C misdemeanor. He must also transfer any handgun he possesses to the [department of public safety] commissioner within two business days of becoming subject to the order. If he fails to do so, he is guilty of criminal possession of a handgun'—a class D felony.” Office of Legislative Research, Connecticut General Assembly, Summary of 2001 Public Acts (2001) p. 200.


author: BEACH, J.

text:
    FRANCIS A. MINITER v. STATEWIDE GRIEVANCE COMMITTEE
    (AC 31470)
    Gruendel, Beach and West, Js.

      Submitted on briefs April 15
    officially released July 6, 2010

      Francis A. Miniter, pro se, the appellant (plaintiff), filed a brief.

      Suzanne B. Sutton, assistant chief disciplinary counsel, filed a brief for the appellee (defendant).
   Opinion

BEACH, J.

The plaintiff, Francis A. Miniter, appeals from the judgment of the trial court granting the motion to dismiss filed by the defendant, the statewide grievance committee (committee). The plaintiff argues that the court improperly granted the committee’s motion to dismiss his appeal from an order of presentment for lack of a final judgment. We affirm the judgment of the trial court.

The record discloses the following facts and procedural history. Grace Wright, a client of the plaintiff, filed a grievance complaint against him, claiming that he had failed to return to her a retainer fee of $1500 that she had paid to him for representation in a civil case. The reviewing committee found that the plaintiff had violated various Rules of Professional Conduct and other rules of practice. As a result of these findings, the reviewing committee ordered disciplinary counsel to file a presentment in accordance with Practice Book § 2-36. The plaintiff thereafter filed an appeal from the decision of the committee in the Superior Court, claiming, in sum, that his due process rights were violated and that the conclusion that he had violated certain Rules of Professional Conduct and other rules of practice was improper. The committee then filed a motion to dismiss the plaintiffs appeal for lack of subject matter jurisdiction in that there was no final judgment from which to appeal. The court granted the motion, reasoning that the decision from which the plaintiff appealed was interlocutory and, thus, not appealable. This appeal followed.

We begin by setting forth our standard of review. “In an appeal from the granting of a motion to dismiss on the ground of subject matter jurisdiction, this court’s review is plenary.” (Internal quotation marks omitted.) Bloom v. Miklovich, 111 Conn. App. 323, 335, 958 A.2d 1283 (2008).

We next examine relevant case law. “Disciplinary proceedings are for the purpose of preserving the courts from the official ministration of persons unfit to practice in them. . . . The proceeding to disbar [or suspend] an attorney is neither a civil action nor a criminal proceeding, but is a proceeding sui generis, the object of which is not the punishment of the offender, but the protection of the court.” (Internal quotation marks omitted.) Doe v. Statewide Grievance Committee, 240 Conn. 671, 678, 694 A.2d 1218 (1997). “Judges of the Superior Court possess the inherent authority to regulate attorney conduct and to discipline members of the bar. ... In exercising their inherent supervisory authority the judges have authorized grievance panels and reviewing committees to investigate allegations of attorney misconduct and to make determinations of probable cause. . . . Further, the judges have empowered the statewide grievance committee to file presentments in Superior Court seeking judicial sanctions against those claimed to be guilty of misconduct. . . . In carrying out these responsibilities, these bodies act as an arm of the court.” (Citations omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Presnick, 215 Conn. 162, 166-67, 575 A.2d 210 (1990).

The court properly granted the committee’s motion to dismiss. The plaintiffs appeal to the Superior Court challenged the committee’s decision to proceed with a presentment. An order of presentment is an initial step in disciplinary proceedings against an attorney. Following the filing of a presentment complaint, a hearing on the merits is held after which the court renders judgment on the presentment complaint. See Practice Book § 2-47 (a). The committee’s decision directing that a presentment be filed in Superior Court is interlocutory in nature and not a final judgment from which an appeal to the Superior Court lies.

This interlocutory order is not immediately appeal-able under State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), because it neither terminates a separate and distinct proceeding, nor so concludes the rights of the parties that further proceedings cannot affect them. Following an order of presentment by the committee, a presentment complaint is filed, and the matter continues in the Superior Court until judgment is rendered on the presentment complaint.

The plaintiff argues that court improperly granted the committee’s motion to dismiss because the rules of practice provide him with the right to appeal from an order of presentment. He contends that because Practice Book § 2-35 (e) provides that “the reviewing committee shall render a final written decision dismissing the complaint, imposing sanctions and conditions as authorized by Section 2-37 or directing the disciplinary counsel to file a presentment,” the decision directing disciplinary counsel to file a presentment is an appeal-able final judgment. We do not agree. The language in Practice Book § 2-35 (e) regarding a final written decision directing disciplinary counsel to file a presentment may be the last step taken by the committee when presentment is directed, but it is clear from the context that this section is not specifying that the decision of presentment is a final judgment. Practice Book § 2-38 (a), which was in effect at the time the appeal was taken in this case and specifically concerns appeals from the decision of the statewide grievance committee or reviewing committee, provides in relevant part: “A respondent may appeal to the superior court a decision by the statewide grievance committee or a reviewing committee imposing sanctions or conditions against the respondent, in accordance with Section 2-37 (a). . . .” An order of presentment is not included in the exclusive list of sanctions or conditions contained in Practice Book § 2-37 (a). If presentment is ordered, the presentment is simply an intermediary step in the disciplinary proceedings, which continue in the Superior Court.

The plaintiff also contends that the language of Practice Book § 2-47 (d) (2) makes clear that he has a right to appeal before the presentment proceeds. That section provides: “If the respondent has appealed the issuance of a finding of misconduct made by the statewide grievance committee or the reviewing committee, the court shall first adjudicate and decide that appeal in accordance with the procedures set forth in subsections (d) through (f) of Section 2-38. In the event the court denies the respondent’s appeal of the finding of misconduct, the court shall then adjudicate the presentment brought under this section. In no event shall the court review the merits of the matters for which the prior reprimands were issued against the respondent.” Practice Book § 2-47 (d) (2). This section has no bearing as to whether an order of presentment is interlocutory or constitutes a final judgment.

For the foregoing reasons, we conclude that the court properly granted the committee’s motion to dismiss for lack of a final judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       Unlike a reprimand or other disciplinary action ordered by the committee, the order of presentment does not itself impose discipline. Rather, further action, which may or may not result in discipline, is required.

       Practice Book § 2-37 (a) provides: “A reviewing committee or the statewide grievance committee may impose one or more of the following sanctions and conditions in accordance with the provisions of Sections 2-35 and 2-36:

        “(1) reprimand;
      “(2) restitution;
      “(3) assessment of costs;
      “(4) an order that the respondent return a client’s file to the client;
      “(5) a requirement that the respondent attend continuing legal education courses, at his or her own expense, regarding one or more areas of substantive law or law office management;
      “(6) an order to submit to fee arbitration;
      “(7) with the respondent’s consent, an order to submit to periodic audits and supervision of the attorney’s trust accounts to insure compliance with the provisions of Section 2-27 and the related Rules of Professional Conduct;
      “(8) with the respondent’s consent, a requirement that the respondent undertake treatment, at his or her own expense, for medical, psychological or psychiatric conditions or for problems of alcohol or substance abuse.”

       The plaintiff also claims that the court violated his right to due process by granting the committee’s motion to dismiss because, as a result, he is unable to raise the claim that the procedure leading to presentment constituted a denial of his due process rights. The court did not violate his right to due process and properly granted the motion to dismiss for lack of a final judgment. Our Supreme Court has reviewed claims, on appeal from a final judgment, that the procedure leading to his presentment violated his due process rights. See Statewide Grievance Committee v. Presnick, supra, 215 Conn. 168-70.


author: PETERS, J. BEACH, J.,

text:
    MICHAEL T.
      v. COMMISSIONER OF CORRECTION
    (AC 30046)
    Bishop, Beach and Peters, Js.

      Argued February 11
    officially released July 6, 2010

      Frederick W. Fawcett, special assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellant (respondent).

      Temmy Ann Pieszak, chief of habeas corpus services, for the appellee (petitioner).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to use the petitioner’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

PETERS, J.

This habeas case contests the petitioner’s conviction of sexual assault and risk of injury to a young child. In accordance with Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and citing Gersten v. Senkowski, 426 F.3d 588, 607 (2d Cir. 2005), cert. denied sub nom. Artus v. Gersten, 547 U.S. 1191, 126 S. Ct. 2882, 165 L. Ed. 2d 894 (2006), the habeas court held that trial counsel had been ineffective in failing to present expert testimony to challenge the state’s presentation of incriminatory expert evidence on medical issues relating to the child’s symptomatology and on psychological issues relating to her credibility. Concluding that trial counsel’s failure to present such expert evidence had been prejudicial to the petitioner, the court rendered judgment on the petitioner’s behalf. With the permission of the habeas court, the commissioner of correction has appealed. We affirm the judgment of the habeas court insofar as it rests on trial counsel’s failure effectively to challenge the state’s inculpatory medical testimony.

On February 9, 2007, the petitioner, Michael T., filed an amended three count petition for a writ of habeas corpus, alleging ineffective assistance of trial counsel and actual innocence with respect to his conviction of sexual assault in the first degree in violation of General Statutes (Rev. to 2001) § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes (Rev. to 2001) § 53-21 (a) (2). The respondent, the commissioner of correction, filed a denial and a special defense alleging that the petitioner had procedurally defaulted by failing to pursue his claim of ineffective assistance of counsel in a previous petition for a writ of habeas corpus. After an evidentiary hearing, the habeas court rejected the respondent’s special defense and the petitioner’s claim of actual innocence but granted the petition with respect to his allegation of ineffective assistance of trial counsel. The respondent has appealed.

The factual basis for the criminal judgment against the petitioner is described in the opinion of this court affirming his conviction. State v. Michael T., 97 Conn. App. 478, 480-83, 905 A.2d 670, cert. denied, 280 Conn. 927, 909 A.2d 524 (2006). In 2002, when the child was four years old, she was living at home with her mother, her older brothers and the petitioner. At the end of May, 2002, after the child complained of vaginal pain, her mother took her to a clinic in Bridgeport, where testing disclosed that the child was infected with tricho-monas. Id., 480.

Because the pediatric clinic nurse who assisted in the examination suspected that the child had been sexually abused, she properly reported the incident to the department of children and families (department). When subsequently questioned by a departmental investigative social worker assigned to the case, the child stated that no one had ever touched her private parts. A subsequent inquiry by a pediatric nurse practitioner affiliated with the child sexual abuse evaluation program at Yale-New Haven Hospital elicited the same response, that nothing had happened to her. Id., 480-81.

In light of the child’s infection, everyone in the child’s family was asked to be tested for trichomonas. Only the child’s mother tested positive for the disease. The petitioner, who had moved out of the family home in the interim, did not keep a scheduled appointment for testing. Id., 480.

Approximately one year later, after attending a “ ‘good touch-bad touch’ ” presentation in her kindergarten class, the child told her mother that the petitioner had touched her inappropriately. She testified to the same effect at his trial. Id., 481.

At the criminal trial, the state presented expert witnesses on two subjects, trichomonas and the reliability of children’s statements. Four expert witnesses who were questioned about trichomonas testified that it was a condition that was sexually transmitted. To explain the delay in the child’s reporting that someone had touched her inappropriately, an expert witness who was a school psychologist and forensic interviewer testified that, because a four year old child could not be expected to have knowledge of sexual activity, she would not know that she had been abused until she learned what abuse was. Id., 482. Trial counsel challenged this expert testimony only by cross-examination of the state’s witnesses.

The petitioner was the only defense witness to testify at his trial. He denied having sexually abused the child. Defense counsel, in his closing argument to the jury, argued for acquittal either because trichomonas could be transmitted nonsexuaily or because the state had not proven penetration. The jury found the petitioner guilty of sexual assault in the first degree and risk of injury to a child.

In the petitioner’s direct appeal to this court, the only issues that he raised were two challenges to the trial court’s jury instructions. This court affirmed the judgment against him. Id., 490.

At the petitioner’s habeas hearing, senior assistant state’s attorney Cornelius P. Kelly, who had successfully prosecuted the petitioner, testified that the petitioner’s trial counsel, David M. Abbamonte, now deceased, had been given access to everything in the state’s file. There was no evidence, at the habeas trial, that trial counsel had ever requested funding for expert testimony.

The principal witness at the habeas hearing was Suzanne M. Sgroi, a physician who is an adjunct professor at St. Joseph College in West Hartford, the director of the St. Joseph College Institute for Child Sexual Abuse Intervention for the treatment of child sexual abuse and the executive director of New England Clinical Associates, an organization that works with child abuse trauma. Without objection by the respondent, Sgroi was found to be qualified as an expert in child sexual abuse and venereal disease. Furthermore, the respondent did not challenge the admissibility of any of her testimony.

The habeas court found that Sgroi’s testimony identifying “mistakes, flaws and omissions” in the petitioner’s criminal trial was highly credible. Sgroi testified that the child had had urinary-vaginal symptomology at least eight months prior to being diagnosed with trichomo-nas. Contrary to the state’s expert testimony at trial linking trichomonas to sexual abuse, she stated that a child could have contracted such an infection by “living in the same home with somebody who had the infection, who wasn’t all that careful about hygiene, perhaps because of not being careful about laundering towels or having community towels in the bathroom, perhaps because of washing the child in bath water already used by adults and the like.” She further testified that guidelines published by the American Academy of Pediatrics do not include trichomonas as a disease that is diagnostic of sexual abuse.

Sgroi also expressed her professional opinion that the record raised questions about the reliability of the information provided by the child. In her view, in light of the child’s developmental delays, “the interviewing procedures were inadequate to the task of finding out [whether the information the victim provided was] a detailed, reliable, trustworthy account of alleged sexual abuse by [the petitioner].”

In addition to relying on Sgroi’s testimony, the habeas court also found persuasive the testimony of attorney Michael Blanchard about the use of expert witnesses to assist the defense in a criminal trial. Blanchard testified that the proper preparation for a criminal trial involving charges of sexually assaulting a minor, in particular when the defendant denies the charges and will proceed to trial, necessitates the utilization of an expert witness both for trial preparation and during the trial itself. In his view, such required evidence was exemplified by Sgroi’s testimony describing nonsexual modes of transmitting trichomonas and challenging the manner in which the child had been interviewed.

In her posttrial brief, the respondent did not challenge the propriety or the accuracy of the expert testimony presented by the petitioner. She argued only that the issues identified by the experts at the habeas hearing had been adequately brought to the attention of the trial jury by trial counsel’s cross-examination of the state’s lay and expert witnesses.

The habeas court concluded, however, that trial counsels failure to call an expert witness in the petitioner’s criminal trial constituted ineffective assistance of counsel that had been prejudicial to the petitioner. The court faulted trial counsel for failing to utilize a subject matter expert during the criminal trial to inform the jury about issues relating to the transmission of trichomonas and the reliability of the belated disclosure of an assault by the child.

The respondent’s appeal challenges only the legal conclusions of the habeas court. We begin by setting forth our standard of review. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Mock v. Commissioner of Correction, 115 Conn. App. 99, 103-104, 971 A.2d 802, cert. denied, 293 Conn. 918, 979 A.2d 490 (2009).

The respondent advances three arguments in support of her claim that, as a matter of law, the habeas court should not have faulted trial counsel for failing to present expert evidence to inform the jury about transmission of trichomonas infections. First, the respondent claims that trial counsel’s cross-examination of the state’s witnesses at trial and his argument to the jury sufficiently informed the jury about the possibility of nonsexual transmission of trichomonas. Second, the respondent hypothesizes that trial counsel’s decision not to present expert evidence on this subject may have been “sound trial strategy.” Third, the respondent questions the extent to which Sgroi’s testimony would have been admissible at trial. Finally, the respondent questions the validity of the habeas court’s determination that the petitioner was prejudiced by the identified omissions in his trial representation.

The habeas court expressly considered and rejected the respondent’s first two arguments about the necessity for defense counsel to present expert evidence under the circumstances of this case. The court relied on this court’s dictum, in Peruccio v. Commissioner of Correction, 107 Conn. App. 66, 76, 943 A.2d 1148, cert. denied, 287 Conn. 920, 951 A.2d 569 (2008), that, under certain circumstances, such as those involving the sexual abuse of children, the failure to use any expert can result in a determination that a criminal defendant was denied the effective assistance of counsel. The habeas court also cited with approval the detailed analysis contained in Gersten v. Senkowski, supra, 426 F.3d 607, and the cases cited therein, in which that court held that “[i]n sexual abuse cases, because of the centrality of medical testimony, the failure to consult with or call a medical expert is often indicative of ineffective assistance of counsel. . . . This is particularly so where the prosecution’s case, beyond the purported medical evidence of abuse, rests on the credibility of the alleged victim, as opposed to direct physical evidence such as DNA, or third party eyewitness testimony.” (Citations omitted.) Id.; see also B. A. Townsend, “Defending the ‘Indefensible’: A Primer to Defending Allegations of Child Abuse,” 45 A.F. L. Rev. 261,270 (1998) (“[i]t is difficult to imagine a child abuse case . . . where the defense would not be aided by the assistance of an expert”). Except for stating her disagreement with the court’s conclusion, the respondent has not proffered a reasoned basis for rejection of the court’s analysis of these issues. We are not persuaded to do so.

Turning to the respondent’s third ground for reversal, we note that the habeas court was not asked to address the admissibility of Sgroi’s testimony in a judicial proceeding. When she presented evidence at the habeas hearing, the respondent did not question Sgroi’s professional credentials or challenge the admissibility of her testimony. At the same hearing, when attorney Blanchard testified that Sgroi’s testimony would have transmitted valuable information to the jury based upon her medical expertise and the medical issues presented in this case, the respondent did not question whether that testimony would have been admissible at trial. The respondent filed no motion for articulation; see Practice Book § 66-5; to supplement the record. We decline to overturn the judgment of the habeas court on this ground.

Finally, even though a habeas court may deny a petition for habeas corpus because of the failure of the petitioner to demonstrate prejudice from trial error, the respondent has failed to present a reasoned argument why, in this case, the habeas court improperly found prejudice to have been established. Having been persuaded by Sgroi’s expert testimony of “mistakes, flaws and omissions” in the medical testimony underlying the criminal prosecution of the petitioner, the court properly determined that trial counsel’s ineffectiveness prejudiced the petitioner.

On this state of the record, we are persuaded that we need not address the habeas court’s alternate conclusion questioning the reliability of the child’s recollection, one year after the event, that the petitioner had engaged in sexual conduct with her. The respondent has not briefed this issue separately. We need not, therefore, decide today whether jurors are so likely to be unfamiliar with issues relating to the alleged suggestibility of young children as to require expert evidence to be presented by the defense. For this case, it suffices to affirm the habeas court’s judgment on the ground that the petitioner is entitled to a new trial because his trial counsel was ineffective in failing to present expert testimony to challenge the state’s expert medical testimony that strongly linked the child’s trichomonas to a sexual assault.

The judgment is affirmed.

In this opinion BISHOP, J., concurred.

BEACH, J.,

dissenting. I respectfully dissent. While I have reservations regarding the habeas court’s conclusions that trial counsel rendered deficient performance, I would reverse the habeas court’s judgment because I do not believe that the petitioner, Michael T., was prejudiced by the performance of counsel.

The applicable standard of review is well known. “Under [Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], to prevail on a constitutional claim of ineffective assistance of counsel, the petitioner must demonstrate both deficient performance and actual prejudice.” Russell v. Commissioner of Correction, 49 Conn. App. 52, 53, 712 A.2d 978, cert. denied, 247 Conn. 916, 722 A.2d 807 (1998), cert. denied sub nom. Russell v. Armstrong, 525 U.S. 1161, 119 S. Ct. 1073, 143 L. Ed. 2d 76 (1999). “The prejudice prong requires showing that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. . . . The [petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) Raynor v. Commissioner of Correction, 117 Conn. App. 788, 796, 981 A.2d 517 (2009), cert. denied, 294 Conn. 926, 986 A.2d 1053 (2010).

“The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. . . . The application of historical facts to questions of law that is necessary to determine whether the petitioner has demonstrated prejudice under Strickland, however, is a mixed question of law and fact subject to our plenary review.” (Citation omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 717, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008).

I begin my analysis of Strickland’s prejudice prong by comparing the evidence elicited at the habeas trial with the evidence actually presented at the petitioner’s criminal trial to determine whether the petitioner has proved that there is a reasonable probability that, had the additional evidence been presented at the criminal trial, the result would have been different. As stated by the majority, the habeas court determined that Suzanne M. Sgroi, an expert witness in child sexual abuse and venereal disease who testified for the petitioner, was credible and factually accurate. For the purpose of analyzing prejudice, then, I accept and apply the court’s findings in that regard. Sgroi summarized her opinion as to the means of transmission of trichomonas: “Although trichomonas is primarily sexually transmitted, in my opinion, there are also nonsexual ways for a child to acquire the infection.” (Emphasis added.) She stated that the leading authoritative source for the guidance of professionals was the set of guidelines published by the American Academy of Pediatrics. The 1999 publication stated that if one found trichomonas in a child, the treater should be “highly suspicious” of sexual abuse and that a report to authorities was mandated. The presence of one of several other sexually transmitted diseases, gonorrhea, syphilis, human immunodeficiency virus and chlamydia, was considered “diagnostic” or, apparently, conclusive of sexual abuse. She said that she agreed with the testimony of Janet Murphy, a witness for the state in the criminal prosecution, regarding information from the Centers for Disease Control. Murphy had testified at the criminal trial that trichomo-nas was “primarily” a sexually transmitted disease but that it could also be transmitted by nonsexual means.

The habeas court found Sgroi to be credible and implicitly seems to have found that her opinion, or a very similar opinion, would have been able to have been produced by defense counsel at the criminal trial in 2004. A scouring of the transcript of the criminal trial reveals that very similar information was elicited by David M. Abbamonte, the petitioner’s attorney in the criminal trial. The habeas court referred to the testimony of Sanjeev Rao, who was produced by the state in the criminal trial for the sole purpose of providing expert testimony. Rao testified on direct examination that trichomonas was a sexually transmitted disease, and stated that the only known mode of transmission was through sexual means.

On cross-examination by Abbamonte, Rao qualified his opinion to a degree. The following transpired:

“Q. There are nonsexual ways that a female can get trichomonas?
“A. I can’t say that.
“Q. All right. It can come from a toilet seat, perhaps?
“A. It is—
“Q. I know it—
“A. —in the literature but, again, just because you see it in print, it doesn’t mean it can happen. . . .
“Q. It’s been found hours later in urine that’s been exposed; is that correct?
“A. Urine and semen, yes.
“Q. And the way it could be transferred, for instance, by toilet seat, if urine was on it, that urine was infected, and a female sitting on the toilet seat could get it; is that correct, within a short time, within a few hours?
“A. Yes.
“Q. How . . . does that affect—does the protozoa move? Locomotes?
“A. They have flagella which helps them move.
“Q. It would find its way into the vagina in that situation?
“A. It could.
“Q. And also says that this protozoa can’t live long in a dry environment, so presumably [in] urine or certain waters it can live a lot longer; is that correct?
“A. Yes.
“Q. And wet towels, it could live a lot longer?
“A. It hasn’t been documented, wet towels. It’s seen in semen, it’s seen in urine, but it’s never been documented in wet towels as a mode of transmission.”

On redirect examination by the state, Rao testified that the protozoa could five on a toilet seat for “a few hours” so long as the environment is moist.

Murphy also testified for the state in the criminal trial. She was a pediatric nurse practitioner who worked with the Yale-New Haven Hospital child sexual abuse evaluation program, among other responsibilities. She had a master’s degree in nursing from Yale University and had lectured in the field. She examined the victim shortly after she had been diagnosed with trichomonas; the victim at that time denied any inappropriate touching. Murphy was concerned because trichomonas was “primarily” a sexually transmitted disease.

On cross-examination, after establishing that the physical examination of the victim had showed that the victim was entirely normal, Abbamonte questioned Murphy as follows:

“Q. Okay. With regard to trichomonas, and, now I’m jumping on the word you used twice with regard to [the prosecutor’s] question, and, that is, primarily, there are ways of a nonsexual nature, are there not, that trichomonas can be passed on to a female?
“A. It’s very uncommon, but there are reports of— from moist toilet seats. It’s thought to be in the elderly population where occasionally it is diagnosed, which is where we have that kind of information, but primarily it’s a sexually transmitted disease.
“Q. And it can also be spread by wet or a moist towel, can it not?
“A. It’s thought that to be possible, yes.
“Q. . . . Let’s say a female is infected with trichomo-nas, and maybe she touches herself, for whatever reason, not a male involved, just touching her own fluids, and then touching, for instance, a child or another person on their sexual organ; that could cause a transmission, then, even without the presence of semen or seminal fluid?
“A. That’s a possibility, although I think when hands get washed, it would wash it away.
“Q. But it is a possibility—
“A. I think—
“Q. —that it can come directly from a female? Whether she’s had sex with a male or not, it can come directly from a female?
“A. It’s a possibility.”
Abbamonte then inquired about different hypothetical situations, and the concluding question and answer were:
“Q. So, there are a number of ways nonsexually that this can be transmitted—
“A. Yes.
“Q. —to the female? Okay.”

In closing arguments to the jury, both sides suggested that transmission by other than sexual means was possible. Both sides appeared to accept the same general proposition that trichomonas was “primarily” transmitted sexually but that there were other means of transmission. The state argued that “the [petitioner] ... is going to present to you a scenario that the only way [the victim] got this was because of her mom . . . .” The prosecutor went on to discuss weaknesses in the petitioner’s testimony and the strength, he claimed, of the victim’s identification of the petitioner as the culprit. Later, the prosecutor asserted that doctors and other witnesses said that “the only way you see this in a child who is four years of age is through sexual intercourse. And scenarios were presented to the doctors and some of the experts here, I suppose that’s possible, but the literature—I haven’t come across anything in the literature that suggested that that could take place in that fashion. . . . Possibilities were thrown out to explain how you could possibly get this, and those are just possibilities and mere speculation.” The prosecutor did not focus at length on the medical opinions.

Abbamonte, however, stressed that it was medically possible for the victim to contract trichomonas without sexual contact. He argued that “[t]here’s evidence from medical specialists that either semen or urine that’s contaminated with the protozoa trichomonas can be transferred by hand either in a sexual or nonsexual way. . . . These are the nonsexual ways that trichomo-nas can be gotten. These experts also indicated that it is extremely rare for a four year old to get trichomonas.” He discussed the idea that the protozoa can live for two hours “in a moisture environment” and that they can move. He argued: “There is no question that most of the time trichomonas means sexual transmission, but this is a four year old, which is extremely rare for them to get. It’s a four year old that was in a house with the mom, as it turned out, having trichomonas. A mom who admittedly . . . you still have to dress them, bathe them, groom them, etc., etc. It’s not unusual for a four year old to be naked in the household. There’s a bathroom in the household. Doctors say—say it can be transferred by hand. So, obviously, no one sets out to give this poor little girl this disease. So, it is obviously an accidental transmission of people who don’t know that they’re—that they’re infected. . . . Again, there is no question. [The prosecutor] said it’s speculation. It’s not speculation. It’s just inferences you could make from the evidence. There are ways, in the distinct minority, but there are ways that trichomonas can be transferred to others through activity other than sexual.” Abbamonte went on to urge that there was at least reasonable doubt, based on the science and that the victim’s testimony was not reliable.

The prosecutor began his rebuttal by arguing that nonsexuai transmission was unlikely but never argued that it was impossible. He continued: “The most important thing I think you have to worry about is— the trichomonas situation, that is almost like a side issue here. It is almost like a tag on.” He stressed the credibility of the victim. In closing, he said: “[S]ome of the arguments that [Abbamonte] makes may raise a little bit of doubt in your mind; well, you know, that’s a possibility. Dr. Rao said that. Janet Murphy said that’s a possibility. Dr. [Joel] Allen, who treated the woman, said that’s a possibility. We’re not dealing with possibilities here. We’re dealing with proving the case beyond a reasonable doubt . . . .”

Several witnesses at the habeas trial noted the similarities between the opinions offered by Sgroi and the evidence actually introduced at the criminal trial. Sgroi testified that many of her concerns had been raised in the direct and cross-examination of Murphy and Sgroi agreed that she “basically agreed” with Murphy. Sgroi also agreed that in closing argument Abbamonte had mentioned the opinions. Her conclusion was that an expert witness should have been presented “to help clarify all of these things or to provide, first of all, a more accurate interpretation about how trichomonas can be transmitted nonsexually . . . .”

In order to determine whether the petitioner was prejudiced by the failure of his trial counsel to produce at his criminal trial an expert opinion similar to that expressed by Sgroi at his habeas trial, we, as a reviewing court, are to compare the omitted evidence with the evidence actually produced at trial. We then make a de novo determination as to the effect the omitted evidence would have had on the outcome of the criminal trial had it been produced. The petitioner has the burden to show that there is a reasonable probability that, absent the unprofessional errors, the result of the criminal proceeding would have been different. A “reasonable probability” is one that undermines one’s confidence in the outcome. Strickland v. Washington, supra, 466 U.S. 694.

It is true, as the expert witness Michael Blanchard testified in the habeas trial, that an expert for the defense may have been useful in the presentation of the petitioner’s criminal trial and may have presented the issues with somewhat more clarity.1 agree that an expert conceivably may have had some effect on the outcome of the trial. But because the essential points of Sgroi’s opinion were raised by Abbamonte in his cross-examinations of the witnesses presented by the state, the jury already had the essential information on the topic. The effect that more testimony, subject, of course, to cross-examination, would have had on the outcome of the criminal trial is quite speculative. There does not exist a reasonable probability that the outcome of the criminal trial would have been different if additional testimony on the same topic had been presented. During the criminal trial, both sides suggested during closing arguments that trichomonas was primarily transmitted sexually, and both sides suggested that nonsexual transmission was possible. This was the essence of Sgroi’s opinion. Accordingly, I do not believe that one’s confidence in the verdict is undermined by the lack of a defense expert. I would, therefore, conclude that the petitioner’s burden to prove the prejudice prong of Strickland has not been sustained.

Although it is not necessary for me to analyze the performance prong of Strickland because I have already concluded that the petitioner’s ineffective assistance claim fails under the prejudice prong, I will discuss it briefly because I have reservations as to whether this prong has been satisfied. Because the factual findings of the habeas court are not clearly erroneous, and no such claim was raised on appeal, I accept the court’s historical findings that Abbamonte did not consult an expert and, of course, did not present an expert at trial. As noted by the habeas court, pretrial decisions regarding hiring an expert are inextricably related to the conduct of trial, and, because Abbamonte died prior to the habeas trial and his file apparently could not be found or reproduced, pretrial decisions and trial strategy in general were difficult to determine. We simply do not know the extent to which Abbamonte educated himself or sought the assistance of others; we do know that his questions on cross-examination presaged to a significant extent the opinion expressed by Sgroi.

In order to prove the performance prong, the petitioner must show that counsel made “errors so serious that [he] was not functioning as the counsel guaranteed the [petitioner] by the Sixth Amendment. . . . The petitioner must thus show that counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. . . . We will indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Citations omitted; internal quotation marks omitted.) Siano v. Warden, 31 Conn. App. 94, 97, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993).

Abbamonte’s performance was significantly less egregious, even assuming the historical facts as found by the habeas court, than that found lacking in the cases relied upon by the habeas court. In Siano v. Warden, supra, 31 Conn. App. 99-105, the petitioner had been convicted of a burglary in which he allegedly had broken into a house with an accomplice, ascended to the second floor and took “heavy” computer equipment, which the petitioner carried at one point. The petitioner had broken his leg and his wrist about one month before the accident; the fractures were displaced and the wrist had been pinned. Defense counsel had announced to the jury that the petitioner’s orthopedist would testify, but he failed to talk to or to subpoena the physician. During the criminal trial, counsel tried to call the orthopedist, despite the lack of a subpoena, but the orthopedist did not testify at the criminal trial because he was in surgery at the time. The petitioner was convicted. At the habeas hearing, the orthopedist testified about the injury and stated that it would have been very difficult for the petitioner to have carried the equipment at the time in question. In this situation, counsel was held to have provided ineffective assistance.

In Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001), the United States Court of Appeals for the Second Circuit found that a defense attorney provided ineffective assistance in a trial in which the petitioner was found guilty of sexual abuse. At the criminal trial, a physician testifying for the state said that the victim had physical signs of abuse, and based his testimony on a study that was never introduced into evidence or “produced or usefully identified” at any time later. Id., 194. At the habeas trial, a study diametrically opposed to the state’s position was introduced. Id., 201. Trial counsel had done nothing to contradict the state’s expert, had conducted no relevant research, had not requested the studies the state’s witness purportedly relied on and was unable to cross-examine effectively. In these circumstances, performance was deficient. Other cases have a similar tenor. See Gersten v. Senkowski, 426 F.3d 588, 608 (2d Cir. 2005) (defense counsel simply conceded medical evidence without consultation with expert), cert. denied sub nom. Artus v. Gersten, 547 U.S. 1191, 126 S. Ct. 2882, 165 L. Ed. 2d 894 (2006).

The facts in the present case do not appear to fall into quite the same category as cases such as Siano v. Warden, supra, 31 Conn. App. 94, Lindstadt v. Keane, supra, 239 F.3d 191, and Gersten v. Senkowski, 426 F.3d 588. Abbamonte appeared to be generally familiar with the subject matter and forced the state to concede that his theories were possible. We should take care to note that “[t]here is no perse rule that requires trial attorneys to seek out an expert.” (Emphasis in original; internal quotation marks omitted.) Gersten v. Senkowski, supra, 609. I am reluctant to suggest that failure to call an expert witness constitutes constitutional ineffectiveness where the jury was informed of the substance of the opinion. From the perspective of a trial lawyer, the presentation of an expert witness can be dangerous, as, among other considerations, it leaves the expert exposed to potentially damaging cross-examination. Expert testimony should not be considered to be constitutionally required in all sexual abuse cases. In some cases, of course, expert testimony may be constitutionally required, but, in light of the testimony that was presented to the jury in this trial, this is not such a case.

I would reverse the judgment of the habeas court and direct that judgment be rendered in favor of the respondent, the commissioner of correction.

       General Statutes (Rev. to 2001) § 53a-70 (a) provides in relevant part that “[a] person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes (Rev. to 2001) § 53-21 (a) provides in relevant part that “[a]ny person who ... (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years . . . shall be guilty of a class C felony.”

       At the time the petition was filed, the commissioner of correction was Theresa C. Lantz.

       Trichomonas is a parasitic protozoa that can infect the urinary tract or prostate of males and the vagina or urinary tract of females.

       The state’s case included the testimony of Sanjeev Rao, a medical doctor, who stated categorically that the disease had only been documented to be transmitted through a deposition of semen.

       The court declined to address trial counsel’s pretrial and investigative efforts because there was an inadequate record, as a result of trial counsel’s death prior to the habeas hearing.

       The respondent’s brief states: “The habeas court’s historical fact determinations are not erroneous.”

       Sgroi referenced the 1999 guidelines published by the American Academy of Pediatrics and a website of the Centers for Disease Control.

       As noted previously, this assertion was not uncontested.

       Blanchard also agreed, however, that Abbamonte had covered the main points on cross-examination of the prosecution’s witnesses.

       It is noted in Peruccio v. Commissioner of Correction, 107 Conn. App. 66, 77 n.8, 943 A.2d 1148, cert. denied, 287 Conn. 920, 951 A.2d 569 (2008), that “[t]he Constitution does not entitle a criminal defendant to the effective assistance of an expert witness. To entertain such claims would immerse federal judges in an endless battle of the experts .... Wilson v. Green, 155 F.3d 396, 401 (4th Cir.), cert. denied sub nom. Wilson v. Taylor, 525 U.S. 1012, 119 S. Ct. 536, 142 L. Ed. 2d 441 (1998).” (Internal quotation marks omitted.)

       One consideration regarding the performance prong is whether an expert opinion should have been presented regarding the reliability of the victim’s testimony. The majority did not need to reach this issue, and I consider it only briefly. Part of Sgroi’s testimony at the habeas trial made the point that investigators for the department of children and families, misled by assertions of medical personnel that trichomonas could be transmitted only by sexual means, jumped to that conclusion and influenced the victim’s accusation of the petitioner. The victim, because of her age and developmental factors, was susceptible to suggestion. The state produced an expert witness, Lisa Melillo-Bush, to explain delayed disclosure and other characteristics of children who have been the victims of sexual abuse. Abbamonte cross-examined Melillo-Bush and broached the concept of suggestiveness. Both counsel mentioned suggestiveness in closing arguments to the jury.
      The habeas court alluded to Sgroi’s opinion regarding suggestiveness and held that Abbamonte’s representation was defective in not producing any expert witness, but the habeas court did not analyze independently the suggestiveness claim in depth. Sgroi’s opinion is critical of the investigative procedure, in that the investigators leaped to the conclusion of sexual abuse. Sgroi suggests that the conclusion was communicated in some fashion to the victim. It is difficult to imagine how an expert would testify about suggestiveness, in that witnesses are forbidden to comment on the credibility of another witness. State v. Singh, 259 Conn. 693, 708, 712, 793 A.2d 226 (2002) (improper to ask witness to comment on another witness’ veracity; credibility determinations solely within province of jury). Counsel are of course free to argue suggestiveness from facts presented in evidence, and suggestiveness is not necessarily a subject which is beyond the ken of the average juror and, thus, requiring expert testimony. State v. Arline, 223 Conn. 52, 58, 612 A.2d 755 (1992) (counsel has right to argue in final argument any reasonable inferences from facts elicited); State v. Calabrese, 116 Conn. App. 112, 124, 975 A.2d 126 (jury may draw inferences from evidence presented based on its common knowledge and experience), cert. denied, 293 Conn. 933, 981 A.2d 1076 (2009). Such witnesses do not seem to be presented with any frequency in the trial courts. I would not conclude, on the record before us, that counsel rendered constitutionally deficient performance in this regard, especially in light of the presumption of competent representation, or that the defense was prejudiced to the degree required by Strickland.