author: PER CURIAM.

text:
    DAVID OSUCH v. COMMISSIONER OF CORRECTION
    (AC 28350)
    McLachlan, Lavine and Beach, Js.
    Argued September 23
    officially released November 4, 2008

      Jodi Zils Gagne, special public defender, the appellant (petitioner).

      Robin S. Schwartz, assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Steven G. Weiss, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, David Osuch, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying in part and granting in part his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion when it denied his petition for certification to appeal and improperly rejected his claims that his trial counsel rendered ineffective assistance. We dismiss the appeal.

The petitioner was convicted of five counts of burglary in the third degree in violation of General Statutes § 53a-103 and sentenced to a total effective term of twenty years imprisonment. The petitioner’s conviction was upheld by this court in State v. O’Such, 74 Conn. App. 906, 815 A.2d 296, cert. denied, 263 Conn. 902, 819 A.2d 838 (2003).

The petitioner filed an amended petition for a writ of habeas corpus, alleging that his trial counsel rendered inadequate assistance. The habeas court concluded that the petitioner failed to demonstrate that counsel’s performance was deficient. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

“In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, 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. . . . Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satislying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Citations omitted; internal quotation marks omitted.) Coleman v. Commissioner of Correction, 108 Conn. App. 836, 837-38, 949 A.2d 536, cert. denied, 289 Conn. 913, 957 A.2d 876 (2008).

After a thorough review of the record and briefs, we conclude that the petitioner has not demonstrated that the issues he has raised in the petition for certification to appeal are debatable among jurists of reason, that a court could resolve those issues differently or that the questions raised deserve encouragement to proceed further. Consequently, the petitioner has failed to demonstrate that the court abused its discretion in denying his petition for certification to appeal. See id., 838.

The appeal is dismissed.

       The court granted the petition for a writ of habeas corpus as to the petitioner’s claim that his counsel was ineffective in failing to file an application for sentence review. With respect to that claim, the court granted relief and restored the petitioner’s right to file an application for sentence review. The only issue on appeal is whether the court abused its discretion when it denied the petition for certification to appeal from the partial denial of the habeas petition.

       Specifically, the petitioner alleged that his counsel failed (1) to conduct an adequate investigation, (2) to present the testimony of an alleged coconspirator, (3) to present evidence that the petitioner was not guilty of the charged offenses, (4) to review the presentence investigation report with the petitioner prior to sentencing, (5) to move for a corrected presentence investigation report, (6) to argue adequately for a lesser sentence and (7) to file an application for review of the petitioner’s sentence.


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    CHRISTOPHER COLEMAN v. COMMISSIONER OF CORRECTION
    (AC 28720)
    McLachlan, Beach and Mihalakos, Js.
    Argued May 30
    officially released November 11, 2008

      Christopher Coleman, pro se, the appellant (petitioner).

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

MIHALAKOS, J.

The petitioner, Christopher Coleman, appeals from the dismissal of his petition for a writ of habeas corpus. On appeal, he claims that the habeas court abused its discretion by refusing to rule on his petition for certification to appeal. The petitioner further claims that the claims raised in his habeas corpus petition, if proven, would establish a due process violation. The court, in dismissing the petition for a writ of habeas corpus, stated that the petition did not present a claim on which the habeas court could grant relief. We dismiss the appeal.

The following facts are relevant for our disposition of the petitioner’s appeal. The petitioner is serving a twenty year sentence for crimes committed after October 1,1994. On December 16, 2004, while the petitioner was an inmate at Cheshire Correctional Institution, prison staff members confiscated a photograph and two letters from the petitioner’s family members. As a result of the contraband, the petitioner was given a disciplinary report that charged him with being affiliated with a security risk group. The petitioner was given a hearing on the disciplinary report and subsequently was found guilty of the charge. He thereafter was sanctioned with fifteen days confinement to punitive segregation, confinement to quarters for fifteen days and the loss of telephone privileges for ninety days and transferred to the Northern Correctional Institution.

The petitioner filed a petition for a writ of habeas corpus, alleging that he was denied due process in connection with the guilty finding and the resulting sanctions. The court dismissed the petition because it “[did] not present a claim upon which the [hjabeas court can grant relief per . . . Practice Book § 23-24 (a) (3).”

Following the court’s refusal to issue the writ, the petitioner timely filed a petition for certification to appeal from the court’s decision. The court took no action on the petition for certification to appeal. This appeal followed.

In the present case, as previously stated by this court, the habeas court dismissed the petition for a writ for habeas corpus. The petitioner then filed a petition for certification to appeal. No action was taken by the court on that petition. Our Supreme Court has held that “[t]he trial court’s decision not to consider the defendant’s motions was the functional equivalent of a denial . . . .’’Ahneman v. Ahneman, 243 Conn. 471, 480, 706 A.2d 960 (1998). The inaction by the court is the equivalent of a denial. This court has jurisdiction to determine whether such denial is an abuse of the court’s discretion. See Simms v. Warden, 230 Conn. 608, 613-15, 646 A.2d 126 (1994).

We must next set forth the applicable standard of review. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted.) Id., 612. “A petitioner satisfies that burden by demonstrating: that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Id., 616.

In determining whether the court abused its discretion by denying the petition for certification to appeal, we must first consider the merits of the petitioner’s appeal. In the present case, the petitioner alleged that his disciplinary hearing denied him due process. Specifically, he claims that (1) he was not provided adequate assistance by his advocate and (2) the guilty finding was not supported by sufficient evidence. We conclude, however, that the petitioner was not entitled to habeas relief for an alleged due process violation at his disciplinary hearing because the adverse consequence, regardless of the sufficiency of the evidence, did not result in the deprivation of a liberty interest.

“In order to state a claim for a denial of procedural due process ... a prisoner must allege that he possessed a protected liberty interest, and was not afforded the requisite process before being deprived of that liberty interest.” Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000); see also Santiago v. Commissioner of Correction, 39 Conn. App. 674, 680, 667 A.2d 304 (1995). A petitioner has “no right to due process [at his disciplinary hearing] unless a liberty interest has been deprived . . . .” Scott v. Albury, 156 F.3d 283, 287 (2d Cir. 1998) (per curiam). To constitute a deprivation of liberty, a restraint must have imposed an “atypical and significant hardship ... in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). Additionally, the petitioner must establish that “the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint.” Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996).

In this case, the petitioner alleged that the adverse decision in his disciplinary hearing violated two liberty interests. First, he claims that he was classified as a security risk group member. Second, he claims that he was transferred to a different, more secure prison. He argues that these liberty interests triggered his right to due process at the disciplinary hearing. We conclude, however, that neither claimed action implicates a liberty interest and that the petitioner, therefore, was not entitled to due process.

The petitioner’s classification as a security risk group member does not implicate a liberty interest. “Prison classification and eligibility for various rehabilitation programs, wherein prison officials have full discretion to control those conditions of confinement, do not create a statutory or constitutional entitlement sufficient to invoke due process.” Wheway v. Warden, 215 Conn. 418, 431, 576 A.2d 494 (1990), citing Moody v. Daggett, 429 U.S. 78, 88 n.9, 97 S. Ct. 274, 50 L. Ed. 2d 236 (1976). Accordingly, the petitioner was not entitled to due process prior to being classified as a security risk group member.

Similarly, the petitioner’s transfer from Cheshire Correctional Institution to Northern Correctional Institution does not implicate a liberty interest. “Discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of a sentence imposed by a court of law.” (Internal quotation marks omitted.) Martinez v. Commissioner of Correction, 105 Conn. App. 65, 77, 936 A.2d 665 (2007), cert. denied, 285 Conn. 917, 943 A.2d 475 (2008). “[A] prisoner generally has no due process right to challenge a transfer from one facility to another.” Prins v. Coughlin, 76 F.3d 504, 507 (2d Cir. 1996). “Confinement in any of the [s]tate’s institutions is within the normal limits or range of custody which the conviction has authorized the [sjtate to impose.” (Emphasis added.) Meachum v. Fano, 427 U.S. 215, 225, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976). If the petitioner believes that the conditions at Northern Correctional Institution impose on him an atypical and significant hardship, the proper course of action would be a challenge to the conditions at Northern Correctional Institution, not a challenge to his transfer from Cheshire Correctional Institution. See Prins v. Coughlin, supra, 507. Accordingly, the petitioner was not entitled to due process at his disciplinary hearing because his transfer did not implicate a liberty interest.

The petitioner’s claims that his classification and his placement are liberty interests are not issues that are debatable among jurists of reason, issues that a court could resolve in a different manner or questions that are adequate to deserve encouragement to proceed further. See Simms v. Warden, supra, 230 Conn. 616. Because the petitioner failed to allege the deprivation of a liberty interest, we conclude that the court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       Practice Book § 23-24 (a) provides: “The judicial authority shall promptly review any petition for a writ of habeas corpus to determine whether the writ should issue. The judicial authority shall issue the writ unless it appears that: (1) the court lacles jurisdiction; (2) the petition is wholly frivolous on its face; or (3) the relief sought is not available.” Although the habeas court cited subdivision (3), a petition that fails to state a claim would be subject to dismissal under subdivision (1) for lack of jurisdiction. “[I]t is axiomatic that [w]e may affirm a proper result of the trial court for a different reason.” (Internal quotation marks omitted.) Wilson v. Jefferson, 98 Conn. App. 147, 161 n.12, 908 A.2d 13 (2006).

       The petitioner claims that the court improperly failed to rule on his petition for certification to appeal. Because we conclude that the court’s refusal to rule on the petition for certification to appeal was the functional equivalent of a denial, we need not decide whether the court abused its discretion in declining to rule on the petition for certification to appeal.


author: FLYNN, C. J.

text:
    MARK E. PICTON v. ALISON G. PICTON
    (AC 28688)
    Flynn, C. J., and DiPentima and Beach, Js.

      Argued September 5
    officially released October 2, 2008

      William C. Franklin, for the appellant (plaintiff).

      Judith Dixon, with whom, on the brief, was Lori Welch-Rubin, for the appellee (defendant).

       October 2,2008, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

FLYNN, C. J.

In this marital dissolution action, the plaintiff, Mark E. Picton, appeals from the judgment of the trial court with respect to the court’s financial orders. Specifically, the plaintiff claims that the court abused its discretion by ordering (1) a division of property that was unreasonable, inequitable and inconsistent with the court’s factual findings, (2) the plaintiff to pay to the defendant, Alison G. Picton, an unreasonable amount of interest from the date of judgment until the plaintiff is able to sell certain property and (3) the plaintiff to pay to the defendant alimony in the amount of $20,800 each year for a period of seven years. Concluding that statutory interest may not begin to accrue until payment is due in accordance with the court’s judgment, we reverse in part and affirm in part the judgment of the trial court.

On March 21, 2007, the court issued its memorandum of decision, in which it made the following relevant findings: “The parties were married on June 1, 1985, in Washington, Connecticut. . . . The parties have two children [bom of the marriage] . . . . The parties agree that the marriage has broken down irretrievably. The breakdown resulted from the very different personalities and expectations of the parties and the plaintiffs inability or unwillingness to satisfy the emotional needs of the defendant. As time went on, they realized that they were leading separate lives, were no longer in love and no longer wanted to be married. . . .

“The plaintiff ... is [fifty-three] years of age and in good health. He holds a bachelor’s degree and has had a productive career in building, land investing and development. The plaintiffs income has been extremely variable, year to year. In good years he has earned in excess of $300,000; in bad years, as low as $20,000. His testimony about the reasons for this variation was credible. His financial affidavit reflects that his average net weekly income is $1485.85, a figure which [the court found] to be true.

“The defendant ... is [fifty] years of age and in good health. She has a bachelor’s degree and a master’s degree in historic preservation. She was the primary parent at home during the raising of the children and has worked outside the home at part-time jobs. She presently holds two part-time jobs with a total net weekly income of $410.53.

“The parties jointly own ahorne in Washington, which they purchased in 1986 and used as the marital residence. They renovated the entire house over the years and paid off the mortgage. They agree that the home is now worth $560,000.

“The plaintiff owns a [twenty-six] acre parcel of land in the Merryall section of New Milford, which he purchased as an investment during the marriage. This property is under contract to be sold for $320,000, from which the plaintiff will net $250,000 after payment of closing costs and income taxes.

“The plaintiff owns a vacation home in Orleans, Massachusetts, which he purchased in 1994. Over the next several years, he constructed a substantial addition and made major renovations. The property is in a desirable location and is rented in the summer months. There is no mortgage on the property. Having considered the conflicting evidence, I conclude that the property is worth $1,600,000.

“The plaintiff is a 50 [percent] owner of a building company known as Picton Brothers, LLC. The net value of the plaintiffs interest is $34,704. The plaintiff is a 50 [percent] owner of a real estate investment company known as Ten Titus, LLC. The net value of the plaintiffs interest is $643,761.

“The parties have liquid assets as follows. The plaintiff has an individual retirement account (IRA) worth $73,844, a Fidelity investment account worth $99,842, a certificate of deposit (CD) at NewMil Bank worth $111,050, and checking and money market accounts worth approximately $6000. The defendant has a Fidelity money market account worth $56,475, an IRA worth $47,000, a one-half interest in a CD worth $22,070 and a checking account with an undetermined variable balance.

“In all, the parties have assets valued at approximately $3,500,000 with no debt. The parties take disparate positions regarding the division of these assets. The plaintiff proposes that he receive roughly 70 [percent] of the assets and the defendant roughly 30 [percent]. The defendant proposes that each party receive 50 [percent].”

On the basis of those findings and others, the court issued the following relevant financial orders: “The plaintiff shall pay to the defendant the sum of $400 per week as alimony. This award shall terminate upon the death of either party, the defendant’s remarriage or the passage of seven years, whichever occurs first. This award is nonmodifiable as to term only. . . .

“The real property shall be distributed as follows: (a) The plaintiff shall transfer to the defendant all of his right, title and interest in the marital home. Thereafter, the defendant shall pay for all costs associated with the home and shall indemnify and hold the plaintiff harmless therefrom. The plaintiff shall vacate the premises within [thirty] days from this judgment, (b) The plaintiff shall sell the Merryall lot in New Milford and shall pay the defendant the sum of $200,000 from the net proceeds (the gross proceeds less the cost of sale and capital gains taxes due the federal and state governments). The court retains jurisdiction [over] this sale and payment, (c) The plaintiff may retain the house in Orleans, Massachusetts, provided that he pays to the [defendant] the sum of $700,000 within [ninety] days from the date of this judgment. If this payment is not made within that time, the plaintiff shall immediately list the property for sale at the listing price of $1,600,000 and shall accept any offer of purchase at that figure. From the net proceeds of that sale (the gross proceeds less the cost of sale and capital gains taxes due the federal and state governments), the plaintiff shall pay to the defendant the sum of $700,000 plus interest from the date of judgment at the statutory rate for judgments. The court retains jurisdiction [over] this sale and payment. ...

“The plaintiff shall retain his interest in Picton Brothers, LLC, and Ten Titus, LLC, free and clear of any claim of the defendant. . . .

“The parties shall each retain their own motor vehicles, bank accounts, stocks, bonds, IRAs, CDs, investment accounts, and money market accounts free and clear of the claims of the other. . . .

“The parties shall divide all of their personal property in Washington and Orleans equally. Should they be unable to reach an accord, they shall agree to an arbitrator who will conduct a binding arbitration in which the parties shall participate, with the decision of the arbitrator being final. The court shall retain jurisdiction for the purpose of compelling the arbitration and the enforcement of any arbitration award. . . .

“The plaintiff shall, in accordance with this court’s order of November 7, 2005, continue to pay through the date of judgment those expenses he was specifically ordered to pay at that time. The court shall retain jurisdiction to enforce this order.” This appeal followed.* *

On appeal, the plaintiff claims that the court abused its discretion by ordering a division of property that was unreasonable, inequitable and inconsistent with the court’s factual findings, especially as to the Orleans property (hereinafter the Cape Cod property). He also claims that the court’s order requiring him to pay interest to the defendant from the date of judgment, at a rate of $70,000 per annum, until he is able to sell the Cape Cod property for $1,600,000 also is an abuse of discretion. Finally, the plaintiff claims that the court abused its discretion in ordering him to pay alimony for a period of seven years when the court’s findings regarding the defendant’s income were clearly erroneous.

“[T]he issues involving financial orders are entirely interwoven. The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other. . . . Furthermore, trial courts are endowed with broad discretion to distribute property in connection with a dissolution of marriage.” (Citation omitted; internal quotation marks omitted.) Greco v. Greco, 275 Conn. 348, 354, 880 A.2d 872 (2005). “Generally, [a reviewing court] will not overturn a trial court’s division of marital property unless [the trial court] misapplies, overlooks, or gives a wrong or improper effect to any test or consideration which it [had a] duty to regard. ... [A reviewing court] must, however, consider the paramount purpose of a property division pursuant to a dissolution proceeding [which] is to unscramble existing marital property in order to give each spouse his or her equitable share at the time of dissolution.” (Citations omitted; internal quotation marks omitted.) Id., 355. With these caveats in mind, we will address each of the plaintiffs claims in turn.

I

The plaintiff first claims that the court improperly ordered a division of property that was unreasonable, inequitable and inconsistent with the court’s factual findings, especially as the division relates to the Cape Cod property. He argues that it is “undisputed that [he] brought to the marriage the assets which, when sold during the marriage and segregated in [his] accounts, resulted in the acquisition and renovation of the Cape Cod property, which remained solely in the name of the plaintiff thereafter.” He also argues that he “was not only solely responsible for the acquisition and appreciation in value of the Cape Cod property, but [that he] did so entirely as a result of the sale of assets he brought to the marriage, and to which the defendant made no contribution.” Accordingly, he argues, for the court “[t]o order that well in excess of one-half of the equity on that asset procured by the plaintiff be given to the defendant was, under the circumstances, an abuse of discretion” and in contravention of General Statutes § 46b-81. We disagree.

First of all, we take the opportunity to point out that the court did not mandate that the plaintiff sell the Cape Cod property. Rather, the court ordered the plaintiff to pay to the defendant $700,000 within ninety days. The defendant’s ownership of the Cape Cod property would be unaffected by this order if the plaintiff paid the defendant in accordance with the court’s order. If, however, he was unable to make such payment, the court’s order required that he sell the Cape Cod property and pay interest on the amount due to the defendant from the date of judgment until such time as he was able to sell the property.

General Statutes § 46b-81 provides in relevant part: “(a) At the time of entering a decree . . . dissolving a marriage . . . the Superior Court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect. . . .

“(c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

The plaintiff focuses on § 46b-81 (c) and its requirement that the court consider the contribution of the parties to the acquisition, preservation or appreciation in value of the Cape Cod property and argues that the court abused its discretion by failing to take proper consideration of these factors. These factors, however, are only a few of the many factors specifically mentioned in § 46b-81 (c). In this case, the court unequivocally stated that it gave careful consideration to the statutory factors. Our own independent review of the record reveals nothing that would dispute the accuracy of this statement. We observe that a “judge is presumed to have performed [his] duty unless the contrary appears [from the record].” (Internal quotation marks omitted.) Miller v. Miller, 22 Conn. App. 310, 314, 577 A.2d 297 (1990).

Here, the court clearly found that the plaintiff was the record owner of the Cape Cod property and that he had been responsible for the major renovations and upgrades made to the home. Although the plaintiff argues that the court did not give sufficient weight to those facts, the weight to be given one fact or factor over another is within the court’s discretion. “Although it is not improper for the trial court to consider the actual source or ownership of an asset, these are but two factors to be considered in reaching an equitable division in dissolution proceedings. The fact that a particular asset belongs to one spouse may cause the trial court to be predisposed to awarding it to its named owner; however, if the marital estate is otherwise insufficient to maintain the other spouse, the court must be able to exercise its discretion in arriving at an equitable distribution, taking into consideration the needs and assets of both parties. . . . Unlike provisions in effect in many other jurisdictions that limit distributions to property based upon how and when it was acquired, § 46b-81 does not draw such distinctions.” Lopiano v. Lopiano, 247 Conn. 356, 370-71, 752 A.2d 1000 (1998).

The plaintiff purchased the Cape Cod property in 1994, nine years into his marriage with the defendant, at a cost of $230,000. Over approximately a three year period, the plaintiff renovated and upgraded the property, spending virtually every weekend at this property. All of the renovations and upgrades were done during the marriage, while the parties had two small children at home in need of care. The plaintiff admitted that the defendant remained at their primary residence, caring for the children, while he spent weekends upgrading this property over a three year period. Certainly the court would not be abusing its discretion in considering the defendant’s substantial nonmonetary contributions that enabled the plaintiff to spend weekends away from his primary residence and his children so that he could upgrade the Cape Cod property. In O'Neill v. O'Neill, 13 Conn. App. 300, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988), we explained that “an equitable distribution of property should take into consideration [each spouse’s] contributions to the marriage, including homemaking activities and primary caretaking responsibilities”; id., 311; and that “a determination of each spouse’s contribution within the meaning of ... § 46b-81 includes nonmonetary as well as monetary contributions.” (Internal quotation marks omitted.) Id., 312. With these considerations in mind, we cannot agree with the plaintiffs argument that the defendant made no contribution to the preservation of or appreciation in value of the Cape Cod property. Furthermore, the preservation and appreciation in the value of property are only two of the many factors that the court was required to consider pursuant to § 46b-81 (c) before distributing the assets of the parties. On the basis of the record before us, we are unable to conclude that the court failed to give proper consideration to the statutory factors or that it acted in abuse of its discretion when ordering the property distribution.

II

The plaintiff next claims that the court abused its discretion in ordering him to pay statutory interest to the defendant from the date of judgment until he is able to sell the Cape Cod property for $1,600,000. He argues that “[t]he current real estate market is in freefall [and] [e]ven if the Cape Cod property was worth $1,600,000 in March of 2007 ... it may not be worth nearly that sum at this point in time. . . . Given the foregoing, it may take years to sell the Cape Cod property at a fair price. During that time frame, although the plaintiff has no control over the market, no control over the sales price and no control over individuals who might make offers to purchase the property, the plaintiff is incurring a penalty of $70,000 per year against the equity [in the property].” The defendant argues that the court awarded her $700,000 as her equitable portion of the Cape Cod property and that it did not order the plaintiff to sell the property unless he failed to pay the defendant $700,000 within ninety days. She further argues that it was not an abuse of discretion for the court to order the payment of statutory interest if the plaintiff took more than ninety days to pay the $700,000 that she was awarded. We conclude that the court did not abuse its discretion in ordering interest but that it improperly ordered that the interest was to accrue from the date of judgment.

“The trial court has the discretion to decide whether to make an award of interest under General Statutes § 37-3a [which] . . . provides for interest on money detained after it becomes due and payable.” (Citations omitted.) Crowley v. Crowley, 46 Conn. App. 87, 96-97, 699 A.2d 1029 (1997). “It is well established that we will not overrule a trial court’s determination regarding an award of interest absent a clear abuse of discretion.” (Internal quotation marks omitted.) Dowd v. Dowd, 96 Conn. App. 75, 85, 899 A.2d 76, cert. denied, 280 Conn. 907, 907 A.2d 89 (2006). “The determination of whether . . . interest is to be recognized as a proper element of [recovery] is one to be made in view of the demands of justice rather than through the application of any arbitrary rule.” (Internal quotation marks omitted.) Id. “[T]here is no statutory prohibition against awarding interest on a judgment in domestic relations cases . . . because the courts may fashion remedies that are appropriate and equitable . . . .” LaBow v. LaBow, 13 Conn. App. 330, 353, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988). “The question of whether . . . interest is a proper element of recovery ordinarily rests upon whether the detention of money is or is not wrongful.” Id., 352. “When a former spouse is not justified in failing to pay sums due . . . the award of interest is proper.” (Internal quotation marks omitted.) Dowd v. Dowd, supra, 86.

Although the plaintiff focuses on the possibility that he will be unable to sell the Cape Cod property in today’s market, the court’s order required him to pay to the defendant the sum of $700,000 within ninety days, and only if he failed to pay this sum would he be required to put the Cape Cod property on the market and to pay interest to the defendant. Additionally, although he argues that he lacks “sufficient income to borrow and repay the $700,000 even if he were willing to mortgage the Cape Cod property to do so,” in this case, the court found that the parties had assets valued at $3.5 million, approximately. It also found that the parties had no debts and that they had liquid assets. The plaintiffs interest in Picton Brothers, LLC, was valued at $34,704, and his interest in Ten Titus, LLC, was valued at $643,761. The court awarded no interest in these companies to the defendant. The plaintiff was the sole owner of the Cape Cod property, which the plaintiff valued at $1.5 million on his financial affidavit and which the court valued at $1.6 million after considering all of the evidence, including the appraiser’s report valuing it at $1.7 million, free of any mortgages.

On the basis of the record before us, we are unable to conclude that the court abused its discretion in ordering the plaintiff to pay statutoiy interest on the outstanding amount due to the defendant if the plaintiff failed to pay the defendant the amount due within ninety days. The court did abuse its discretion, however, in ordering that interest was to accumulate from the date of judgment. As this court explained in Sosin v. Sosin, 109 Conn. App. 691, 952 A.2d 1258, cert. granted, 289 Conn. 934, 935, 958 A.2d 1245 (2008), § 37-3a “permits interest to accrue on money awarded in a civil action [only] after it has become payable by virtue of the court’s judgment.” (Emphasis added.) Id., 709. In this case, the plaintiff had ninety days to make payment to the defendant. Accordingly, interest should not have begun to accrue until that time had lapsed and the plaintiff had failed to make payment in accordance with the court’s judgment.

Ill

The plaintiff also claims that the court “abused its discretion relative to its alimony award on the basis that neither the factual predicate for the alimony award was supported by the evidence at trial, nor could the trial court reasonably conclude as it did relative to its alimony award.” Specifically, he argues that the court’s finding regarding the defendant’s net income was clearly erroneous because the court failed to include the $11,000 in income that the defendant receives from her mother on an annual basis. The defendant argues that the court did consider this income when fashioning the alimony order and that this fact was made clear by the court in its memorandum of decision and in its articulation. We agree with the defendant.

“In dissolution proceedings, the court must fashion its financial orders in accordance with the criteria set forth in General Statutes § 46b-81 (division of marital property), [General Statutes] § 46b-82 (alimony) and [General Statutes] § 46b-84 (child support). All three statutory provisions require consideration of the parties’ amount and sources of income in determining the appropriate division of property and size of any child support or alimony award.” (Internal quotation marks omitted.) Bartel v. Bartel, 98 Conn. App. 706, 711, 911 A.2d 1134 (2006). Relevant to the present claim concerning alimony, § 46b-82 (a) provides in relevant part: “In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”

“Our Supreme Court has emphasized the importance of using an expansive definition of income when formulating financial orders during the course of marriage dissolution proceedings. . . . Adopting a flexible definition of income, the court has explained, ensures that each spouse fulfills his or her continuing duty to support one another and each receives his or her equitable share of the marital assets. ... In keeping with this notion, the court has upheld an alimony award that counted as net income regularly and consistently received gifts, whether in the form of contributions to expenses or otherwise ... to the extent that they increase the amount of income available for support purposes.” (Citations omitted; internal quotation marks omitted.) Bartel v. Bartel, supra, 98 Conn. App. 712.

In its memorandum of decision, the court found that the plaintiffs income had varied from year to year, the plaintiff having earned more than $300,000 in some years and as little as $20,000 in other years. The court accepted as true the plaintiffs affidavit stating that he had an average net income of $1485.85 per week. As to the defendant, the court found that she held “two part-time jobs with a total net weekly income of $410.53.” In addition to these findings regarding employment income, the court also found that the defendant’s mother “gave the defendant $10,000 or $11,000 each year . . . [and that] [t]here was evidence that the defendant’s mother intended] to continue to give . . . $11,000 per year to the defendant.” Following these and other findings, the court fashioned the financial orders in this case, including ordering the plaintiff to “pay to the defendant the sum of $400 per week as alimony.” It also ordered that the alimony would “terminate upon the death of either party, the defendant’s remarriage or the passage of seven years, whichever occur [red] first.” This alimony award was “nonmodifiable as to term only.”

The plaintiff filed a motion for articulation, asking, among other things, that the court articulate whether it considered the $11,000 gifts from the defendant’s mother to be income for purposes of the financial orders. After the court denied the plaintiffs motion, the plaintiff filed a motion for review with this court. Upon granting in part the plaintiffs motion for review, this court directed the trial court to articulate “whether it considered the $11,000 given each year by the defendant’s mother to the defendant to be income for purposes of the entry of financial orders in this case.” The trial court responded: “I considered the $11,000 given each year by the defendant’s mother to be a regularly recurring gift, which would continue in the future as income to the defendant.”

On the basis of the court’s memorandum of decision and its articulation in this case, it is clear that the court did consider as income to the defendant the $11,000 yearly gift from her mother when it fashioned the alimony award. Accordingly, the plaintiffs claim that the court failed to consider these gifts as income to the defendant is without merit.

The judgment is reversed only as to the date on which interest began to accrue and the case is remanded with direction to render judgment ordering interest pursuant to General Statutes § 37-3a from ninety days after the date of judgment. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Although the plaintiff has expressed his dissatisfaction with the court’s division of assets in this case, where the parties leave such a determination to the court, it likely is a rarity that both sides would be satisfied with the outcome. The record indicates that the court, recognizing that the parties might want further time to make their own agreement, offered them that additional time.

       The parties’ son was bom on March 21, 1987, and at the time of the dissolution was a sophomore at Bates College. Their daughter was bom on April 13, 1990, and was a junior at Taft School.

       General Statutes § 37-3a (a) provides in relevant part: “[IJnterest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable. . . .”

       The plaintiff also requested that the court articulate several matters. The court denied the requested articulation, and, upon granting in part the plaintiffs motion for review, we directed the court to articulate “whether it considered the $11,000 given each year by the defendant’s mother to the defendant to be income for purposes of the entry of financial orders in this case.” This issue will be discussed more fully in part III.

       Specifically, the plaintiff testified that over a three year period, he “went up there on weekends and extended weekends and worked as many hours in the day as [he] could .... [He] was heav[ily] personally involved in the construction of that house and over many, many, weekends [that] otherwise [would have been] vacations times for me or family times.” He also testified that the defendant “was usually home” with the children during this time.

       We note that “[i]n the absence of any exceptional intervening circumstances, the date a dissolution of marriage is granted is the proper time to determine the value of the parties’ estate upon which to base division. An increase in the value of property following the date of dissolution does not constitute an exceptional circumstance. . . . Logically, there is no reason why the same date should not be used when there has been a decrease in the value of property. The usual rule in the interpretation of dissolution judgments, when no separation agreement exists, is that financial awards are based on the parties’ current (date of the judgment) financial circumstances." (Citation omitted.) Kremenitzer v. Kremenitzer, 81 Conn. App. 135, 139-40, 838 A.2d 1026 (2004). Although the plaintiff argues that the value of the property has decreased due to market conditions, the court properly valued the property as of the date of the dissolution, and, as a reviewing court, we are unable to look at happenings subsequent to that judgment date.


author: GRUENDEL, J.

text:
    ROBERT WATSON v. COMMISSIONER OF CORRECTION
    (AC 28664)
    McLachlan, Gruendel and Borden, Js.
    Argued September 12
    officially released November 11, 2008

      Kirstin B. Coffin, special public defender, for the appellant (petitioner).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Yamini Menon, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

GRUENDEL, J.

The petitioner, Robert Watson, appeals from the judgment of the habeas court denying his sixth amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that (1) identifications of the petitioner introduced at his criminal trial did not deprive him of his right to due process of law and (2) the alleged failures of his trial and appellate counsel did not deprive him of his right to effective assistance of counsel. We affirm the judgment of the habeas court.

The following facts and procedural history inform our disposition of the petitioner’s appeal. On September 6, 1996, the petitioner was convicted of assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-8, assault of a victim sixty or older in the second degree in violation of General Statutes §§ 53a-60b (a) and 53a-8, robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (3) and 53a-8, conspiracy to commit robbeiy in the third degree in violation of General Statutes §§ 53a-136 and 53a-48 (a), burglary in the first degree in violation of General Statutes §§ 53a-101 (a) (2) and 53a-8, and conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a-103 and 53a-48 (a). On November 8,1996, the petitioner was sentenced to forty-five years in prison, suspended after thirty-five years, and five years of probation. This court affirmed his conviction on direct appeal. State v. Watson, 50 Conn. App. 591, 718 A.2d 497, cert. denied, 247 Conn. 939, 723 A.2d 319 (1998), cert. denied, 526 U.S. 1058, 119 S. Ct. 1373, 143 L. Ed. 2d 532 (1999), cert. dismissed, 255 Conn. 953, 772 A.2d 153 (2001).

In that appeal, we determined that the jury reasonably could have found the following facts. “On October 18, 1994, Hoyt Pease, eighty-five years old, drove from his home in Southington to the Fleet Bank branch office in Berlin. He withdrew $100 from the automatic teller machine (teller machine). He was then approached by the [petitioner], who claimed to be lost and ... to be having car problems. . . . Pease offered to show the [petitioner] the way to the highway and added that it would take them past his home.” Id., 594.

The petitioner, driving a red Yugo “with distinctive wheel covers and a broad white stripe underlined in black,” followed Pease for several minutes before sounding his horn and pulling over, indicating that the car was overheating. “Pease stopped his car and . . . offered to take the [petitioner] to his home to get water to fill the radiator. The [petitioner] then followed Pease to his home.” Id.

In his driveway, Pease filled the petitioner’s radiator, noting that the water was low but that it was not boiling over. While the petitioner and Pease were in the driveway, Pease’s wife, Patricia Pease, joined the men and greeted the petitioner. “[Hoyt] Pease then led the [petitioner] to a road that led to Interstate 84. The [petitioner] told Pease that his car needed gasoline. . . . Pease then led the [petitioner] to a nearby gas station . . . .” Id., 594-95. The gasoline station attendant attempted to assist the petitioner, but the petitioner instructed him not to pump any gasoline. After Pease drove away, the petitioner told the attendant, “[t]o hell with the gas,” and was seen driving away in the same direction as Pease. (Internal quotation marks omitted.) Id., 595.

“Pease followed the same route home [that he had taken to the gasoline station] and parked his car in the garage. Approximately ten minutes later, Patricia Pease returned home and parked her car in the garage, but did not close the garage door. During this time, Patricia Verderame, the Peases’ neighbor, and Paul Stocking, Verderame’s business partner, were in Verderame’s front yard .... They both observed the Peases arrive home. Shortly after Patricia Pease arrived home, Verderame and Stocking observed two cars drive up the Peases’ driveway at excessive speeds. The first car was a small red import with white stripes along the sides.” Id.

Several minutes after the cars arrived, Verderame and Stocking left Verderame’s yard. “At approximately the same time, Patricia Pease heard someone in the garage. She called to her husband, and the two went to the garage. As Hoyt Pease entered the garage, he was struck by a man standing to his right near a pile of firewood logs. Patricia Pease turned and charged his attacker, but was struck by a second blow and knocked to the floor. . . . The attacker then took Hoyt Pease’s wallet and fled. The couple assisted each other, returning to the house to call 911.” Id., 596.

Hoyt Pease testified that he was taken to the Southington police department several days after the attack and identified a vehicle in police custody as being “exactly like the car [he] had seen a few days before” being driven by the individual he met at the teller machine. He also identified the petitioner in court as being the person he had met at the teller machine and testified that he had also done so from a photographic array. The state introduced a videotape and two still photographs from the teller machine surveillance, allegedly showing the petitioner. In addition, the state called two police officers to testify, over the objection of defense counsel, that in their opinion the petitioner was the individual depicted in the photographs and videotape.

At trial, the state presented a theory of the case that the petitioner was at the bank looking for “a mark or atarget.” It argued that the petitioner was the individual whom Hoyt Pease met at the teller machine and assisted in the driveway and that the petitioner later returned to the Pease home with an accomplice and attacked the Peases. There was a large quantum of evidence introduced showing that the petitioner was the individual whom Pease had helped in the driveway and that one of the cars driven by the assailants matched the description of the petitioner’s car. There was no eyewitness, however, who actually saw the petitioner attacking the victims, and the Peases were unable to identify their attackers. Hoyt Pease indicated that he never saw the assailant, and Patricia Pease testified that she did not believe that the petitioner had been the person who attacked her and her husband. The petitioner’s trial attorney proceeded under the theory that although the petitioner may or may not have been the individual who met Hoyt Pease at the teller machine and sought his help, he was not the person who later attacked the Peases.

After his conviction and subsequent direct appeal, the petitioner filed a petition for a writ of habeas corpus dated March 5,1997, and on April 28,2006, filed his sixth amended petition. The petition, as amended, contained three counts. The first alleged that the multiple perceived failures of his attorney at trial deprived the petitioner of effective assistance of counsel in abrogation of his sixth and fourteenth amendment rights. The second count alleged that his appellate counsel’s failure “to pursue all meritorious issues on appeal” similarly deprived the petitioner of his constitutional rights. Finally, the third count alleged that the petitioner was deprived of due process of law by introduction of the police opinion testimony identifying him from the teller machine videotape. After a two day trial, the court rendered judgment denying his petition on February 13, 2007. The court granted certification to appeal, and this appeal followed.

On appeal, the petitioner claims that the court incorrectly decided each of the three counts in his petition. First, he argues that his due process rights were violated when the trial court allowed the police officers to testify as to their opinion that he was the individual appearing in the teller machine surveillance videotape. Next, the petitioner claims that his counsel in the direct appeal from the conviction was ineffective in failing to raise the issue of the police officers’ opinion testimony in that appeal. Finally, he argues that trial counsel was ineffective in that counsel failed to introduce photographs, an investigative report and 911 tapes that may have exonerated the petitioner. The petitioner also claims that trial counsel was ineffective in failing to argue that it would have been difficult for the petitioner to find an accomplice and return to the Peases’ home in the allotted time frame. We address each of these claims in turn.

I

We begin our analysis with the applicable standard of review: “The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review.” (Internal quotation marks omitted.) Faraday v. Commissioner of Correction, 288 Conn. 326, 338, 952 A.2d 764 (2008).

Some nine years after the petitioner’s conviction, our Supreme Court decided State v. Finan, 275 Conn. 60, 881 A.2d 187 (2005). In that robbery case, four police officers who had not witnessed the crime itself testified that they had viewed a surveillance videotape of the robbery and that in their opinion, the defendant was the individual appearing in the videotape. Id., 63. The Supreme Court held that such an identification was “an ultimate issue” in the case and, as such, was inadmissible as provided in § 7-3 (a) of the Connecticut Code of Evidence. Id., 69.

In this case, the petitioner claims that Finan enunciated a preexisting constitutional rule of evidence. He argues that the police officers’ testimony as to their opinion that he was the individual appearing in the teller machine surveillance tape violated his due process rights. This claim is entirely unfounded.

In Finan, the Supreme Court held that this type of evidentiary issue “is not constitutional in nature . . . .” (Internal quotation marks omitted.) Id. Further, the Supreme Court explicitly cited our decision in the petitioner’s direct appeal as illustrating a situation in which “lay witnesses may testify regarding identity or similarity of persons.” (Emphasis added.) Id., citing State v. Watson, supra, 50 Conn. App. 600, and State v. Gagnon, 18 Conn. App. 694, 714, 561 A.2d 129, cert. denied, 213 Conn. 805, 567 A.2d 835 (1989). As such, we affirm the judgment of the habeas court with regard to the petitioner’s due process claim.

II

The petitioner next claims that the court improperly concluded that he was not deprived of his constitutional right to effective assistance of trial and appellate counsel. “A criminal defendant’s right to the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution.” Small v. Commissioner of Correction, 286 Conn. 707, 712, 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). “The standard of review of a habeas court’s denial of a petition for a writ of habeas corpus that is based on a claim of ineffective assistance of counsel is well settled. To prevail on a claim of ineffective assistance of counsel, a habeas petitioner generally must show [1] that counsel’s performance was deficient and [2] that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687,104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).” Ortiz v. Commissioner of Correction, 92 Conn. App. 242, 243-44, 884 A.2d 441, cert. denied, 276 Conn. 931, 889 A.2d 817 (2005). “Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Strickland v. Washington, supra, 689.

A

The petitioner claims that his appellate counsel was ineffective for failing to raise the preserved claim regarding the officers’ testimony expressing their opinions that the petitioner was the individual appearing in the teller machine surveillance videotape. When applying the two part Strickland analysis in the context of a claim of ineffective assistance of appellate counsel, the petitioner must first “establish that appellate counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. . . . While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every color-able issue runs the risk of burying good arguments ... in a verbal mound made up of strong and weak contentions. . . . Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on the central issue if possible, or at most on a few key issues.” (Internal quotation marks omitted.) DaEria v. Commissioner of Correction, 107 Conn. App. 539, 542, 946 A.2d 249, cert. denied, 289 Conn. 911, 957 A.2d 877 (2008).

After demonstrating deficient performance, the petitioner must then satisfy the prejudice prong of Strickland by “establish[ing] that, because of the failure of his appellate counsel to raise a [particular] claim, there is a reasonable probability that he remains burdened by an unreliable determination of his guilt. ... In order to prevail on a claim of ineffective assistance of appellate counsel, therefore, a habeas petitioner must show not only that his appeal would have been sustained but for counsel’s deficient performance, but also that there is a reasonable probability that the trial verdict would have been different.” (Internal quotation marks omitted.) Id., 542-43.

The court held that the petitioner did not meet his burden on either prong of the Strickland analysis. On appeal, the petitioner argues that his appellate counsel's performance was deficient because she failed to raise a claim that was ultimately decided nine years later in what might have been the petitioner’s favor. See State v. Finan, supra, 275 Conn. 60. He urges us to consider that there were several cases and a treatise indicating the inadmissibility of lay opinion testimony regarding ultimate issues existing at the time of the direct appeal.

Regardless of the state of the common law at the time, a habeas court will not, with the benefit of hindsight, second-guess the tactical decisions of appellate counsel. “Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one [issue] .... [Multiplying assignments of error will dilute and weaken a good case and will not save a bad one. . . . Most cases present only one, two, or three significant questions. . . . The effect of adding weak arguments will be to dilute the force of the stronger ones.” (Internal quotation marks omitted.) Ormsby v. Frankel, 54 Conn. App. 98, 113 n.6, 734 A.2d 575 (1999), aff'd, 255 Conn. 670, 768 A.2d 441 (2001).

On direct appeal, the petitioner’s counsel, attorney Lisa J. Steele, raised three claims. See State v. Watson, supra, 50 Conn. App. 593. Any additional claims would likely have weakened the overall case on appeal. In fact, at the habeas trial, Steele testified that she spent several hours researching the possibility of raising the issue of the police opinion testimony on appeal. She reviewed C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988), the treatise cited by the petitioner; see footnote 3; and several cases. She indicated that the treatise and the case law led her to the conclusion that the police officers’ testimony was likely admissible and decided not to pursue that avenue on appeal. We conclude that Steele’s decision not to pursue this issue on the petitioner’s direct appeal falls within “the wide range of reasonable professional assistance”; Strickland v. Washington, supra, 466 U.S. 689; and did not constitute deficient performance. We therefore need not reach the prejudice prong of the Strickland analysis.

B

The petitioner’s final claim alleges ineffective assistance of his trial counsel, John Watson. He argues that attorney Watson’s performance was deficient because (1) he failed to introduce an investigative report showing that the horn on the petitioner’s car was inoperable, (2) he failed to introduce the audiotape from Patricia Pease’s 911 call, (3) he failed to introduce a photograph of the victims’ garage door being open, (4) he failed to introduce a computer printout that was inconsistent with the 911 recording and (5) he did not effectively argue that the petitioner would not have had enough time to find an accomplice and return to the Peases’ home from the gasoline station. We address each of these claims, noting initially that “[c]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Internal quotation marks omitted.) Henderson v. Commissioner of Correction, 104 Conn. App. 557, 572, 935 A.2d 162 (2007), cert. denied, 285 Conn. 911, 943 A.2d 470 (2008).

Regarding the investigative report, Hoyt Pease testified at trial that the petitioner sounded his car horn to indicate that he was having car trouble. Attorney Watson had an investigator inspect the petitioner’s vehicle prior to trial, and the investigator determined that the vehicle’s horn did not work. The petitioner argues that attorney Watson’s failure to introduce this report at trial amounted to deficient performance under the first prong of the Strickland analysis. Attorney Watson, however, testified at the habeas trial that by the time the investigator viewed the vehicle, the car had been sitting “for probably two years without a hood on it in an open lot at the Southington police station . . . .” He determined that introducing the report would invite difficult questions regarding the difference between the condition of the car at the time of the robbery and at the time of the defense investigation two years later.

Next, we address the 911 tape, the police computer printout and the photograph of the Peases’ garage door. The petitioner argues that these items should have been introduced at trial to contradict the victims’ and witnesses’ testimony. Attorney Watson testified at the habeas trial, however, that he did not introduce this evidence because he did not want to contradict the victims’ testimony. Hoyt Pease had testified that he never saw the assailant, and Patricia Pease testified that she did not believe that the petitioner had been the person who attacked her and her husband. Attorney Watson decided not to contradict their testimony so as not to “undermine the jury’s belief in their ability to be accurate in that determination.”

Finally, the petitioner argues that attorney Watson’s performance was deficient under the first Strickland prong because he failed to argue effectively that time would have been too limited for the petitioner to find an accomplice and drive to the victims’ home within the time allotted by the state’s theory of the case. During closing arguments, however, attorney Watson made the following statement: “So, if, as the state claims, [the petitioner] is involved in the crimes at the [Peases’ home], he has less than forty-five minutes to go somewhere, find this phone—according to the state—following [Hoyt] Pease at least just long enough to make sure he’s going home—then find the phone—contact his confederate. The confederate comes, they meet somewhere and they talk and plan. He leads the confederate to the Pease home—they commit the crime and leave. Is that humanly possible? Maybe. Maybe. It sounds iffy, and I’ll leave it to you.” This statement appears to convey argument that the petitioner insists was not presented adequately at trial. It is clear, however, that the point was made to the jury, which had the opportunity to determine whether it believed that the petitioner would have had the opportunity to complete the crime. The fact that the petitioner, with hindsight, would have liked his trial attorney to have spent more time bringing this issue to the jury’s attention is of no import. As discussed previously, “[this] court will not, in hindsight, second-guess counsel’s trial strategy.” Mitchell v. Commissioner of Correction, 109 Conn. App. 758, 770, 953 A.2d 685 (2008).

On each of these arguments in support of the petitioner’s claim of ineffective assistance of trial counsel, we conclude that attorney Watson’s decisions fall within the category of strategic decisions that our courts consistently refuse to second-guess. See Peruccio v. Commissioner of Correction, 107 Conn. App. 66, 84, 943 A.2d 1148, cert. denied, 287 Conn. 920, 951 A.2d 569 (2008). As such, we need not address the prejudice prong of the Strickland analysis because we agree with the habeas court that attorney Watson’s performance was not deficient. See Strickland v. Washington, supra, 466 U.S. 687.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner cites both the federal and state constitutional provisions in support of his claims. Because he has not provided an independent analysis of the Connecticut constitutional provisions, however, we review only the federal constitutional claims. See State v. West, 274 Conn. 605, 623 n.27, 877 A.2d 787, cert. denied, 546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005).

       The respondent, the commissioner of correction, devotes much of her argument to the proposition that the petitioner is procedurally barred from raising his due process claim. Because we conclude, however, that the trial court’s admission of the testimony at issue did not implicate the petitioner’s due process rights, we need not address whether he is barred from raising the claim in the first instance.

       The petitioner cites C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.17.3, p. 186; State v. Spigarolo, 210 Conn. 359, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); Kowalewski v. Mutual Loan Co., 159 Conn. 76, 266 A.2d 379 (1970); and State v. Donahue, 141 Conn. 656, 109 A.2d 364, 109 A.2d 364 (1954), cert. denied, 349 U.S. 926, 75 S. Ct. 775, 99 L. Ed. 1257 (1955), in support of his argument.

       We note again that Steele may have been correct because the Finan decision cited the petitioner’s direct appeal as an example of a situation in which “lay witnesses may testify regarding identity or similarity of persons.” State v. Finan, supra, 275 Conn. 69, citing State v. Watson, supra, 50 Conn. App. 600.


author: McLACHLAN, J.

text:
    STATE OF CONNECTICUT v. RAJPAUL JAGAT
    (AC 29215)
    DiPentima, McLachlan and Peters, Js.
    Argued September 16
    officially released November 11, 2008

      Julie M. Strzemienski, with whom, on the brief, was Walter R. Hampton, Jr., for the appellant (defendant).

      Richard K. Greenalch, Jr., special deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Amy Sedensky, senior assistant state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, Rajpaul Jagat, appeals from the judgment of conviction, rendered after a trial to the court, of two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (2). The defendant claims that the evidence was insufficient to prove that (1) he possessed the requisite intent for conviction and (2) he subjected the victim to sexual contact. We affirm the judgment of the trial court.

The court reasonably could have found the following facts. On June 16, 2006, at 10 a.m., the victim parked her vehicle at 249 Thomaston Avenue in Waterbury for an appointment. At approximately 10:30 a.m., the victim returned to her vehicle and discovered that it would not start. When the defendant parked alongside the victim’s car, the victim asked if he had jumper cables, and the defendant replied that he did not but might be able to help the victim. The defendant worked under the hood of the victim’s car and engaged the victim in conversation. While standing near the front of her car, the defendant asked the victim to try to start her car, but she could not. The defendant then approached the open driver’s door and said that he was looking for a fuse box. The defendant bent over the victim and put his hand under her shorts and underwear, touching her thighs and genital area. The victim slapped the defendant’s hand and pushed it away. The defendant asked if he could touch the victim again, and she told him no, but he touched her thighs and genital area a second time.

When the victim started to get out of her car and told the defendant that she was going to ask someone else for help inside of the building, the defendant stood up and allowed her out of the car. As the victim began to walk away, however, the defendant grabbed her wrist, pulled her up against him and asked for her telephone number. When the defendant pulled the victim up against him, she thought that she felt the defendant’s erection, saw that they were standing next to the defendant’s open trunk and was afraid he was going to abduct her. The victim gave the defendant a fake telephone number and pulled away from him. The victim walked back toward the building and encountered a security guard outside an entrance. The victim told the security guard what had just happened and pointed out the defendant, who had entered the building and was walking out of another door. As the guard approached the defendant, the defendant kept repeating, “I didn’t do anything.” The guard detained the defendant until an extra-duty Waterbury police officer arrived and arrested the defendant. The extra-duty officer then called for a police vehicle to transport the defendant to the Waterbury police station.

The defendant was charged by amended substitute information with unlawful restraint in the second degree in violation of General Statutes § 53a-96 and two counts of sexual assault in the fourth degree in violation of § 53a-73a (a) (2). The defendant elected to be tried by the court.

The court orally rendered its findings of fact and judgment in open court, finding the defendant guilty of two counts of sexual assault in the fourth degree and not guilty of unlawful restraint in the second degree, but failed to sign the transcript of the decision as required by Practice Book § 64-1. The defendant did not seek to remedy this defect. See Practice Book § 60-2. The judgment file stated that the defendant was convicted of one count of unlawful restraint in the second degree in violation of § 53a-96 and one count of sexual assault in the fourth degree in violation of § 53a-73a (a) (2). The discrepancy between the unsigned transcript and judgment file prevented this court from proceeding without further clarification of the record. Following oral argument on this matter, this court issued an order to the trial court, pursuant to Practice Book § 60-2, to file a signed copy of the transcript of its findings and judgment and to prepare a judgment file consistent with that signed transcript. On September 26, 2008, this court received a signed copy of the transcript and on September 30, 2008, a corrected judgment file. The signed transcript and corrected judgment file state that the defendant was convicted of two counts of sexual assault in the fourth degree and found not guilty of unlawful restraint in the second degree.

The defendant makes two challenges to the sufficiency of the evidence adduced at trial. The defendant claims that there was insufficient evidence of his intent and that there was insufficient evidence of sexual contact. We do not agree.

“The standard for reviewing sufficiency of the evidence claims is well settled in this state. . . . [Ojur courts apply a two-prong 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 [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“[I]n viewing evidence which could yield contrary inferences, the [trier of fact] is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the [trier of fact’s] function is to draw whatever inferences from evidence or facts established by the evidence it deems to be reasonable and logical. ” (Citation omitted; internal quotation marks omitted.) In re Mark R., 59 Conn. App. 538, 540-41, 757 A.2d 636 (2000).

General Statutes § 53a-73a (a) provides in relevant part that “[a] person is guilty of sexual assault in the fourth degree when ... (2) such person subjects another person to sexual contact without such other person’s consent . . . .” “Sexual contact” is defined as “any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person . . . .” General Statutes § 53a-65 (3). “Intimate parts” of a person include “the genital area” and the “inner thighs . . . .” General Statutes § 53a-65 (8).

The defendant claims that the court could not and did not find beyond a reasonable doubt that he had the requisite intent because the victim’s testimony was inconsistent and he denied the allegation. The defendant, however, confuses the issues of sufficiency and credibility. “Questions of whether to believe or to disbelieve a competent witness are beyond our review.” (Internal quotation marks omitted.) State v. Montoya, 110 Conn. App. 97, 104, 954 A.2d 193 (2008). The defendant has not provided us with any basis for his apparent argument that the findings of the court were clearly erroneous aside from bald allegations that the victim’s testimony varied from direct to cross-examination and that he denied the allegation. We will not upset a court’s factual findings when, as in this case, they are supported by sufficient evidence. See id., 103-104.

The defendant also claims that there was not sufficient evidence that he subjected the victim to sexual contacts. Again, the defendant challenges the victim’s “conflicting testimony” as to where he touched her and claims that inconsistencies in her testimony made it impossible for the court to find beyond a reasonable doubt that he made contact with her “intimate parts.” There is sufficient evidence in the record to support the court’s findings. The testimony of the victim, as well as the testimony of the security guard and the extra-duty police officer, which was admitted without objection, support the court’s finding that the defendant touched the victim’s genital area and inner thigh twice. See State v. Montoya, supra, 110 Conn. App. 103-104.

The judgment is affirmed.

In this opinion the other judges concurred.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identify may be ascertained. See General Statutes § 54-86e.

       The building at 249 Thomaston Avenue housed the department of social services, the department of labor and appeals, and the bureau of rehabilitation services.

       The extra-duty police officer worked during the morning hours at 249 Thomaston Avenue.

       The defendant initially elected to be tried by a jury, but after two jurors were chosen, the defendant obtained new counsel and requested an interpreter. The defendant was offered the opportunity to select an entirely new jury because he had not fully understood the jury selection process, but he chose a trial to the court.

       This court previously has considered claims in which the transcript was unsigned but nevertheless contained sufficient findings for appellate review. Collins v. Wetherbee, 31 Conn. App. 518, 518 n.1, 625 A.2d 838, cert. denied, 227 Conn. 902, 630 A.2d 72 (1993). The lack of a signed transcript coupled with the inconsistency in the record of this case, however, made such review impossible without additional action by the trial court. Cf. Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 529 n.1, 893 A.2d 389 (2006) (“[wjhen there is an inconsistency between the judgment file and the oral or written decision of the trial court, it is the order of the court that controls”).

       On September 18, 2008, this court issued the following order: “Pursuant to Practice Book §§ 60-2 and 64-1, the trial court is directed to file a signed copy of the April 12, 2007 transcript of its findings as to the charges against 1he defendant. Thereafter, a judgment file shall be prepared consistent with the signed transcript. The signed transcript and judgment file shall be filed with the appellate clerk forthwith.”

       The defendant asserts that General Statutes § 53a-73a (a) (2) includes intent as an essential element because § 53a-73a (a) specifically uses the term “intentionally.” This case, however, follows from a conviction under § 53a-73a (a) (2), which does not include the term “intentionally.” The court properly stated that “[t]he sexual contact must be intentional and not accidental .... One’s intent or the purpose in the performance of an act or acts may be determined from the conduct itself and from the circumstances surrounding the conduct.” The court found on the second count in the information, sexual assault in the fourth degree, that the “defendant did subject [the victim] to sexual contact ... by touching her genital area and inner thigh intentionally and for the purpose of the defendant’s own sexual gratification all without [the victim’s] consent.” As to the third count, the court found that “after the incident that resulted in the finding of guilty on the second count . . . the defendant did subject [the victim] to sexual contact by touching her genital area and inner thigh intentionally and for the purpose of his own sexual gratification, all without [the victim’s] consent.” The court found that the state proved “each and every element” of both counts beyond a reasonable doubt.


text:
    EDWARD D. WRIGHT v. COMMISSIONER OF CORRECTION
    (AC 28333)
    McLachlan, Robinson and Pellegrino, Js.
    Argued September 19
    officially released November 11, 2008

      John C. Drapp III, special public defender, with whom, on the brief, was Joseph A. Jaumann, special public defender, for the appellant (petitioner).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

This is an appeal from the judgment of the habeas court denying a petition for a writ of habeas corpus in which the petitioner, Edward D. Wright, claimed that his conviction of attempt to commit murder and assault in the first degree was obtained as a result of the ineffective assistance of counsel. On appeal, the petitioner claims (1) that the court abused its discretion in denying his petition for certification to appeal and (2) that the court improperly found that the ineffective assistance of counsel was not prejudicial to him. The appeal is dismissed.

In 1999, following a jury trial, the petitioner was convicted of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a, and assault in the first degree in violation of General Statutes § 53a-59 (a) (l). He was sentenced to a total effective term of eighteen years imprisonment. The petitioner appealed, and this court affirmed the judgment of the trial court. State v. Wright, 62 Conn. App. 743, 774 A.2d 1015, cert. denied, 256 Conn. 919, 774 A.2d 142 (2001). He then filed a petition for a writ of habeas corpus, which was amended for the third time on September 19, 2006. The petition was denied by the court on November 15,2006, and a later petition for certification to appeal also was denied on November 24, 2006. The petitioner now appeals.

The jury heard the following evidence. The petitioner had moved out of an apartment that he shared with his former girlfriend, Jane Cadorette, one week prior to the incident that gave rise to the charges against him. On the morning of the incident, the petitioner entered Cadorette’s apartment and then broke down the door to the bedroom where he found Cadorette with the victim, Verrand Little. A fight ensued between the petitioner and Little. The petitioner then went into the kitchen to obtain a knife and returned to the bedroom where he stabbed Little in the back. The petitioner’s claim of self-defense was based on his assertion that when he entered the bedroom, the victim hit him in the face with a bat, that the petitioner then staggered into the kitchen where he grabbed the knife and returned to the bedroom, and that, as the fight continued, the petitioner dropped the knife, which the victim rolled onto, causing the “stab wounds” in the victim’s back. The jury did not accept the petitioner’s self-defense claim.

We begin by setting forth the standard of review and legal principles that guide our resolution of the petitioner’s appeal. “Faced with the habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the [denial] of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must prove that the decision of the habeas court should be reversed on the merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Dontigney v. Commissioner of Correction, 87 Conn. App. 681, 684, 867 A.2d 93 (2005).

We examine the petitioner’s underlying claim of ineffective assistance of counsel to determine whether the court abused its discretion in denying the petition for certification to appeal. The petitioner’s claim of ineffective assistance of counsel centers on the failure of his counsel to impeach the testimony of Cadorette. First, the petitioner argues that counsel was ineffective in failing to impeach Cadorette with her prior felony conviction. Second, the petitioner argues that counsel was ineffective in failing to impeach Cadorette with a prior inconsistent statement made to a defense investigator thirty days prior to trial. Last, the petitioner argues that the failure to impeach Cadorette was prejudicial to him. The court found that even though the representation by the petitioner’s trial attorney was deficient and did amount to ineffective assistance, it was not prejudicial to the petitioner given the strength of the state’s case. We agree with the court.

“Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. 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.) Griffin v. Commissioner of Correction, 97 Conn. App. 200, 202, 903 A.2d 273, cert. denied, 280 Conn. 922, 908 A.2d 543 (2006).

Following the two-pronged test set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the court denied the petition for a writ of habeas corpus, which alleged ineffective assistance of counsel. “Under [the Strickland] test, to prevail on a constitutional claim of ineffective assistance of counsel, the petitioner must demonstrate both deficient performance and actual prejudice. The first prong is satisfied by proving that counsel made errors so serious that he was not functioning as the ‘counsel’ guaranteed by the sixth amendment. The second prong is satisfied if it is demonstrated that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 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).

In the present case, the petitioner has prevailed under the first prong of Strickland—deficient performance— but did not prevail under the second prong—prejudice. The court found that based on the petitioner’s damaged credibility and the overall strength of the state’s case, it was unlikely that the outcome of the criminal trial would have been different.

After a thorough review of the record and briefs in this habeas action, we conclude that the petitioner has failed to make a substantial showing that a reasonable probability existed that, but for counsel’s ineffective representation, the outcome would have been different. Therefore, we conclude that the court properly found that the petitioner was not prejudiced by the ineffective assistance of counsel. Further, as the petitioner has failed to sustain his burden of showing prejudice, he has also failed to show that the resolution of the underlying claim involves issues that are debatable among jurists of reason, that a .court could resolve the issues differently or that the questions are adequate to deserve encouragement to proceed further. Accordingly, we conclude that the court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

       The petitioner also was charged with burglary in the first degree in violation of General Statutes § 53a-101. This charge was not submitted to the jury, as the court granted the petitioner’s motion for a judgment of acquittal on that charge. Additionally, the jury found that the petitioner had committed the crimes wlrile on pretrial release.

       The court in its memorandum of decision noted that the petitioner made “outlandish accusations” against the police, claiming that a police officer had planted blood on the knife used to stab Little and that there was a massive conspiracy to frame the petitioner.